author: PRENDERGAST, J. DAVIDSON, P. J.

text:
    WHITEHEAD v. STATE.
    (No. 4367.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.
    On Motion for Rehearing, May 9, 1917.)
    1. Criminal Law <@=»695(6) — Appeal—Preservation or Exceptions.
    'Where offered evidence is in part admissible and in part inadmissible, objection must be specifically to the particular inadmissible portion in order to point out any error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1637.]
    2. False Pretenses <g=>9 — Reliance Thereon — Necessity or Sole Reliance.
    In view of Pen. Code 1911, art. 1421, stating that swindling is the acquisition of any personal property by means of some false or deceitful pretense or device or fraudulent representation with intent to appropriate the same to the use of the party so acquiring it, it is not essential to a conviction that the swindled party should have relied exclusively and solely upon the false pretenses.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 14.]
    On Motion for Rehearing.
    3. False Pretenses <S^52 —Instructions— Evidence — Sufficiency.
    Evidence in a prosecution for swindling held to require giving requested instruction that if prosecuting witness relied on the advice of others than accused, there could be no conviction.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 64.]
    4. False Pretenses <®=341 — Evidence — Admissibility.
    In prosecution for swindling and thereby securing a mule and a horse, evidence that some time after the transaction accused bought a farm and incurred a large indebtedness thereon, giving a mortgage on stock which may have included the horse and mule, is inadmissible, since the subsequent indebtedness could have no bearing-on his statement of the existing indebtedness at the time of the alleged swindling.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 55.]
    5. Criminal Law <g==>695(4) — Evidence—Objection to — Admissibility.
    In prosecution for swindling where a bankruptcy schedule of defendant made after the alleged swindling was introduced, the objection that the debts therein were contracted after the alleged swindling, while not specifically pointing out said debts, although the schedule included debts contracted prior to the swindling, sufficiently pointed out inadmissible evidence and rendered the schedule inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1636.]
    6. False Pretenses @=^49(1) — Evidence — Sufficiency.
    Evidence held insufficient to sustain a conviction of swindling.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 62.]

    Prendergast, J., dissenting from opinion on rehearing.
    Appeal from District Court, Hood County; J. B. Keith, Judge.
    H. G. Whitehead was convicted of swindling, and he appeals.
    Affirmed. On motion for rehearing, affirmance set aside, and cause reversed and remanded.
    Dean & Zweifel and Estes & Estes, all of Grarubury, and Martin & McDonald, of Austin, Tex., for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of swindling, and his punishment assessed at the lo-west prescribed by law.

The evidence was conflicting, tnough taken as a whole, and especially that of the state, it was sufficient to sustain the conviction. The questions raised can be understood and decided without a statement of the facts proved. However, what further is necessary will be stated in discussing the questions. The alleged false representation made the basis of the conviction was in substance that appellant falsely and fraudulently represented to Miss Ada Karnes that he was not indebted to any one in any amount which she believed and relied upon, and was thereby induced to part with title to and deliver possession of a horse worth $100 and a mule worth $75 to appellant on November 4, 1914, and to accept a note for $175, the value of said animals.

His first bill of exceptions shows that the court admitted in evidence over his objections, which were many, the schedule in bankruptcy of appellant and his brother, 11. S. Whitehead, sworn to and subscribed by each of them and filed in the bankruptcy court in December, 1915. This schedule embraced a list of a large number of different items of indebtedness of different amounts owed by said Whiteheads to various and sundry persons, aggregating nearly $20,000. Many of these embraced items which showed that appellant was indebted to various persons before he induced Miss Ada Karnes on his representations to turn over to him her said stock and part with title thereto to him. This prior indebtedness aggregated not less, though probably much more, than $5,000. All of appellant’s objections were to the introduction of said schedule at all. He made no objections whatever to any items of indebtedness shown by said schedule which may have been incurred by him subsequently to the obtaining of said animals from Miss Karnes. The court, in allowing and approving appellant’s bill on this subject, did so with this qualification,' which was accepted by him, to wit:

“The schedule in bankruptcy was admitted by the court in evidence after it had been properly identified as having been signed and sworn to by the defendant and his brother R. S. Whitehead as admissions by them on the question of their insolvency, the indictment having alleged that they were insolvent, and they both, the defendant and R. S. Whitehead, afterwards testified as witnesses in the case, and both admitted that they were insolvent at the time the note set out in the indictment was" executed and continued in that condition to the date of trial. The defendant objected to the introduction of the schedules as a whole, and the greater portion of the items in said schedule accrued prior to November 4, 1914, the date of the note set out in the indictment. The court overruled their objection to the schedule as a whole, as he was not required to search through the items to discover whether there were any debts that were incurred subsequent to November 4, 1914. The statement in the bill of exception to the effect that the prosecuting witness Ada Karnes admitted on cross-examination that she relied upon the statements of Dr. Lancaster, Henry Zweifel, and Mike Luring about the deal ‘ with the Whiteheads I do not certify as being correct. I have not the statement of facts before me, but my recollection of her testimony on this point is that she, in substance, testified that she had confidence in them, and believed what they said to her, but in this connection she testified also that she would not have consummated the deal but for the statements made to her by the defendant.”

It is ■unquestionably settled in this state that where evidente is introduced over an appellant’s objections, some of which is admissible and some of it is not, but all of it is together objected to, no error is shown; that in order to point out any error, the objection must be specifically to the particular portion which is inadmissible. Martin v. State, 189 S. W. 266, and these cases cited therein: Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1056; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Gaines v. State, 37 S. W. 333; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Hughes v. State, 68 Tex. Cr. R. 587, 152 S. W. 912; Pinkerton v. State, 71 Tex. Cr. R. 203, 160 S. W. 87; Boyd v. State, 72 Tex. Cr. R. 523, 163 S. W. 67; Lopez v. State, 73 Tex. Cr. R. 625, 166 S. W. 154; Francis v. State, 75 Tex. Cr. R. 362, 170 S. W. 782; Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W. 751; Ghent v. State, 76 Tex. Cr. R. 523, 176 S. W. 568; Aven v. State, 177 S. W. 82; 1 Thomp. on Tr. (2d Ed.) § 696. There can be no question but that said schedule showing appellant’s prior indebtedness was admissible, even if some of the items of subsequent indebtedness may not have been admissible. The court’s ruling was correct.

By another bill it is shown that appellant objected to the state’s proving by appellant’s said brother R. S. (Bob) Whitehead on cross-examination that they had bought from another of their brothers in March, 1915, a tract of land on credit and gave their note to him for 87,000, and to further secure it, besides being a vendor’s lien on the land they at the time executed to him a mortgage on all of their personal property, which included the marc and mule that they and appellant had obtained from Miss Ada Karnes. This testimony, under the circumstances of this ease and the bill as explained and qualified by the judge, which he accepted, and which is borne out by the record, was admissible. In explaining and qualifying the bill the court said:

“The testimony objected to and set out in the bill as to the $7,000 note was elicited by the state on cross-examination of the defendant’s witness Bob Whitehead, and proved by said witness that he and the defendant in March, 1915, executed a note to their brother for $7,000, the same being a vendor’s lien note, and also secured said vendor’s lien note by a mortgage covering all the personal property of the defendant and Bob Whitehead, and that after executing said mortgage, they disposed of practically all of it and then deeded the place back to their brother in cancellation of said note, and before the said note became due, and this was admitted by the court as throwing whatever light it would upon the intent of the defendant to defraud the prosecuting witness Ada Karnes, and the court thought it was material as tending to show that, shortly after the creation of this debt, that the defendant put all of his property beyond the reach of his creditors, thus rendering the note absolutely worthless, which the defendant and It. S. Whitehead had given to the witness Ada Karnes. That said testimony was also admissible on cross-examination for the purpose of showing the interest, the bias, and the credibility of the testimony of the witness R. S. Whitehead, and showing his relation to the defendant, and bearing upon his credibility. The court does not certify to the correctness of the statement in said bill as to the testimony of the state’s witness Ada Karnes, as the statements made in the bill as to the testimony of said witness consist more or less as to the defendant’s conclusion as to what she testified. The witness Ada Karnes did testify that she talked with Lancaster, Zwei-fel, and Luring in regard to the proposed transaction with the defendant, but she stated that at the time she took the note she relied upon what the defendant told her as to his financial condition, and would not have taken the unsecured note of the defendant and his brother R. S. Whitehead for her property but for the statements made, to her by the defendant as to their financial condition at the time the said note was executed. The witness Ada Karnes did not testify that she knew the defendant owed Mike Luring at the time she took the note, but she said she knew he had been trading at Luring’s store and having articles charged occasionally, and that she knew nothing about what he owed, except what he, the defendant, told her; that she had nothing to do with the books at Luring’s store; that she did not know whether he had settled the account or not. The bill is allowed with the foregoing explanation.”

By another bill appellant complains of the court’s action in permitting the state to introduce in evidence the summary of the schedule, of appellant and R. S. Whitehead in said bankrupt proceedings. Under the explanation and qualification by the court of said bill' said evidence was admissible, and tbe action of tbe court correct. Tbe court’s explanation, accepted by appellant, was tbis:

“The indictment alleged that the defendant represented to the prosecuting witness that he had a number of items of property set out in the indictment, and that he did not owe any one, that the prosecuting witness relied on his statements that he was not indebted, and took the unsecured note of the defendant and R. S. Whitehead for a horse and mule of the value of $175, and that the defendant’s representations that he did not owe any one were false, and that he in fact did owe large sums of money aggregating more than $5,000, and was at said time insolvent, and that the other maker of said note, R. S. Whitehead, likewise was insolvent. The court admitted the summary of the schedules in bankruptcy filed by the defendant and R. S. Whitehead after it had been shown that said schedules had been signed and sworn to by the defendant and R. S. Whitehead as showing, first, that the representations made by the defendant were untrue, and the schedules show this representation to be untrue and to show that both the defendant and R. S. Whitehead were at the time of the execution of said note insolvent, and said schedules did show that both the defendant and R. S. Whitehead were insolvent at the time of the execution of said note. Being voluntary bankrupts, the court thought the schedules admissible under the above facts as admissions of defendant.”

Tbe only other question necessary to be discussed is appellant’s bill wherein be objected to what be claims was an omission in tbe court’s charge and in connection therewith tbe refusal of bis special charge on tbe subject. Tbe court explained and qualified this bill presenting these matters, as follows:

“The court charged the jury in substance that before the defendant could be convicted they must believe beyond a reasonable doubt that in parting with the title of her property to the defendant she must have relied upon and been induced by the statement alleged to be false before a conviction could be bad, and in substance gave tbe special charges requested by the defendant and met all the exceptions to the charge save and except the possible one embodied in a special charge to the effect that Ada Karnes must have relied solely and alone upon the statements made to her by the defendant. The statement contained in the bill as to testimony of the witness Ada Karnes on cross-examination, in-so far as set out in question and answer form, is certified to as correct, but that portion of her testimony appearing in the bill of exceptions which is not in question and answer style 1 do not certify as being correct, but refer to the statement of facts on this point.”

The question raised by tbis assignment is whether or not tbe false representations of appellant to Hiss Ada Karnes upon which she relied and which she believed, and without which she would not have parted with the title and possession of her said mare and mule to appellant, was tbe sole and only cause which induced her to so part with tbe title and possession of her property to appellant. Appellant insists that she must have so relied solely and alone before be could be convicted. Our statute (article 1421, B. O.) prescribing what is swindling:

“ ‘Swindling’ is the acquisition of any personal ’ * * * property * * * by means of some false or deceitful pretense or device, or fraudulent representation, with' intent to appropriate the same to the use of the party so acquiring.”

It will be seen by tbis that our statute does not require, by direct enactment nor by any proper inference therefrom, that tbe false, etc., pretense or representation whereby one acquires tbe personal property of another shall be tbe sole and only inducing cause whereby such other is induced to and does part with tbe title and possession of bis property. Tbis court and no other, has tbe right to inject into a statute what tbe Legislature has not enacted therein. No court has tbe right to add to or take from any statute prescribing- an offense. If tbe Legislature in enacting tbis statute bad intended that such false, etc., pretense or representation should be the sole and only means whereby one should be guilty of swindling another, it could and would have said so in plain and clear language, but it did not say so, and this court, and no other, can legally inject into it any such language either in specific words or by implication. Such requisite as is contended for by appellant herein is directly held against him by every modern or other American text-book writer. In 19 Oyc. 407, subd. “b,” it is laid down:

“Although the pretense must be an inducing cause of the owner’s parting with his property, it need not be the sole inducing cause; it is sufficient if it had material influence in inducing tbe owner to part with his property, although he was also influenced in part by other causes.”

In support of this text cases are cited from Alabama, Arkansas, California, Georgia, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Virginia, Washington, and Wyoming, and also from England and Canada. Prom many of these states and from England are cited more than one case — in some instances, several cases. An examination has not been made of all of these decisions from these different states and countries, but a good many of them have been examined, and in every instance they support the text in Cyc., and many of them discuss more fully the question. Precisely the same is laid down as the law by such great and eminent text-book writers as Bishop and Wharton. 2 Bishop’s New Grim. Law, § 461; 2 Wharton’s Crim. Law, § 1440. M5r. Bishop says:

“All tbe decisions affirm that the faise pretense need not have been the only inducement.”

Mr. Wharton says:

“To require that the belief [in tbe false representation]; should be the exclusive motive would exclude a conviction in any ease; for in no case is any motive exclusive.”

Many of the cases from the states above enumerated are to precisely the same effect. It is unnecessary to incumber this opinion with quotations further from the authorities above cited.

The court’s charge on this point required the jury to believe everything that was necessary or proper beyond a reasonable doubt before they could convict appellant. Appellant’s special charge requested on this subject was correctly refused, because it did not present the law applicable to the point nor in this cáse. On this point appellant only cited and relied upon two decisions of this court, Blum v. State, 20 Tex. App. 578, 54 Am. Rep. 530, and McDaniel v. State, 63 Tex. Cr. R. 260, 140 S. W. 232. In neither of those cases did the question arise, nor was the point decided. In the Blum Case Presiding Judge White, who wrote the opinion for the court, said:

“The solo question to be determined is, Do the facts averred and the facts as proven constitute swindling?”

Then he states the facts proven, which were to this effect: Blum had been in the habit of buying goods from Goodman, the prosecutor, and others upon credit prior to December 21st. He had used in his bakery and grocery business something over $1,800 belonging to his wife and stepdaughter. To pay them this debt, he on December 21st executed a deed to them of all of his property. This deed was executed in the forenoon, and when he left it with the clerk for registration he requested him to say nothing about it, as, if known, it might affect or hurt him in his business. The same day, and subsequently to this, his wife and father-in-law started out on quite an extensive purchasing tour, visiting several stores and buying quite a quantity of goods at each, regardless of the price, and having the bills charged to Blum. He was not present in a single instance when these goods were thus bought. When Goodman sold these goods, from his previous dealings with Blum and representations previously made to him by Blum and the fact that he was ignorant of his said sale of his property to his wife and stepdaughter, he was still of the impression and belief that Blum owned said property, and would not have extended him credit had he known that such was not the case. Under this state of fact, the court held that they were not sufficient to sustain a conviction. The court said:

“No false pretenses in words are claimed to have been made by Blum; for he was not present in person and no false pretenses and declarations are shown to have been made by his wife and father-in-law, who acted as his agents in the purchase of the goods. That Goodman may have entertained the opinion that Blum still owned the property in the bakery and grocery and made the sale upon the belief that he still owned said property cannot affect the question, unless the acts of the parties purchasing the goods induced that belief at the time. It was simply an error of opinion on his part; and a knowledge of the fact that he was acting upon such belief or opinion without correcting it will not subject him or his agents to a charge' of having made a false pretense by withholding the information which would have corrected his belief. It was his own opinion as to the existence of a fact which did not exist, and not the acts, declarations, or representations of the parties with whom he was trading, which caused him to be deceived.”

So that it is seen clearly that the point at issue was not whether Goodman in that case relied solely and alone upon any representations made to him. by Blum, because the court specifically holds that as a matter of fact Blum made no representations to him at all, nor did his agents, his wife and father-in-law. However, in discussing the law generally, Judge White did state that the old English writer Mr. Archbold, in his work on Criminal Practice and Pleading, had said that it must appear by the evidence that the prosecutor parted with his title by means of the false pretenses alleged and that alone, but he immediately states1 that several states had held directly the reverse, citing several of the cases on that point collated by Cye., above cited. It does not appear from the decision in the Blum Case that it was either the opinion of Judge White or the court that Mr. Archbold had announced the correct rule, but, on the contrary, that the reverse of that, as held by the several decisions cited, was the true and correct rule. What is said about the Blum decision is also applicable to the McDaniel decision. A reading of that case will demonstrate that the point at issue in this case was not at issue in that case, but that the holding in that case and the opinion demonstrate that the alleged swindled party did not and could not have relied upon the claimed alleged false pretense, etc., and the case was reversed solely on that account.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

On a former day of this term the judgment herein was affirmed. Appellant has since filed a motion for rehearing setting up several reasons why this court was in error in the affirmance. It is urged that the trial court committed error in his original charge and refusal to give requested instructions. In order to review this question in the light of appellant’s motion it may be necessary to make a statement of some of the facts.

Miss Karnes, the alleged injured party,, testified that she had a conversation with R. S. Whitehead, brother of defendant, with reference to selling him a mare and mule. There were two of these conversations. Appellant was not present at either. Some time after these conversations, to meet the agreement between herself and R. S. Whitehead, a note was prepared to be signed by R. S. Whitehead, appellant, and she says she understood that another brother, Rollie Whitehead, would also sign the note. On the 4th of November, 1914, the note was signed at the bank by appellant. She testified that at the time of the signing of the note she had a conversation with appellant. She said:

“I read the note and told Grady that I wanted Rollie on the note. He said he didn’t under-stand it that way; said Eollie would go on it all right, but there wasn’t use of it, as he had 5 or 6 head of mules, 75 or 100 head of hogs, a big crop, and didn’t owe anything. When he made these statements to me I thought he was telling me the truth, and I took their note, Grady and Bob’s note. They signed it, and I gave the note to Mr. Nutt and went back to work. That is the note. Q. Was there anything said in that conversation about where the mare and mule colt were at that time? A. When I told Grady that I wanted Eollie on the note Bob said that he had done got the mare and mule; that he thought it was settled, and he had done taken them to his place. I didn’t know before that time that he had taken them. I had not authorized him to do so. This note has never been paid, and nothing has been paid on it. These representations were made to me here at the First National Bank in Granbury, Hood county, Tex. I believed what Grady told me about his financial condition. I would not have taken their unsecured note for this property if he had not made those statements to me.”

From the facts it appears that E. S. Whitehead had already signed the note. Appellant, testifying to this phase of the case, stated:

“I have heard the testimony in regard to a certain note that I executed to Miss Ada Karnes on the 4th of November, 1914. I signed that note in the First National Bank here. I did not have any conversation with Miss Ada Karnes at the time, or prior to the time, I signed the note regarding the purchase of the property. I very likely saw her the day I signed the note. I usually see her every time 1 am in town. 1 did not that day or any other day undertake to tell her how much stuff I had. I did not tell her how many horses, mules, cattle or hogs that I had. I did not tell her how much I owed nor how much Bob owed. I did not tell her how much stuff, such as mules, horses, etc., that Bob owned. I made no statement similar to that. I had no conversation with her prior to the note about what she would require as security. I had no conversation with her about the note. I signed the note in the First National Bank, and I think I was standing near the stove at a part of the desk that is near there. Jeff Nutt handed me the note and I signed it, and I think handed it back to him. 1 had no intention at that time of defrauding her or swindling her put of the value of this property. Prior to that time I had been buying mules and horses and stock, and dealing in them all my life.”

Jeff Nutt was not placed upon the stand, and his testimony in regard to the transaction in the bank is not in the record. The conversations she had had about the trade prior to this transaction in the bank were had with E. S. Whitehead in the absence of appellant. Further testifying, Miss Karnes stated:

“The matter was finally consummated in the First National Bank. He said that he and Grady would make the note. Jeff Nutt drew up the note, and Grady brought it into the lobby of the bank, and I read it and asked him for Eollie on the note, and when he made these statements about having 5 or 6 mules and 75 or 100 head of hogs and owed nobody, I accepted them on the note.”

In this connection another phase of the testimony may be necessary to mention in order understand the issue brought into the case by reason of the court’s charge and refusal to give requested instructions. Miss Karnes testified:

“I talked to Dr. Lancaster and Henry Zweifel in regard ' to the sale.’ I didn’t talk to Mrs. Eosa Blake about tbis sale or in her presence. I may have said something to Mike Luring about it. I was working at Luring’s store at the time, the Famous. I asked him what he thought about it, and he said he thought it was perfectly safe to sell them. I asked Mr. Luring about my selling Bob and Grady this mule and horse. He said he thought it was perfectly safe. I stated awhile ago that up to the consummation of the note I thought I was going to get Eollie on it.. Q. How came you to ask Luring what he' thought about selling tbis property to them and taking their note? A. Just because I asked him. Although I was expecting to get Eollie on the note, I asked Mr. Luring about taking the note because I wanted his advice. I consulted with him some time after my .first conversation with Bob. It was between the first and second conversations that I talked with Uncle Mike. I don’t remember talking to him any more about the transaction. I don’t remember asking Uncle Mike in that conversation whether or not he knew Grady owed anything. He told me he thought it was perfectly safe to take Bob and Grady’s note for the stock. He thought they were safe. I don’t know that I relied on his advice. I went to him through force of habit. Q. Is. it not a fact that you would not have gone to him and asked his advice if you were not willing to rely on it? A. Tes, sir; I did. I was working for him at the time this note was consummated, selling goods. Tes, sir; I stated that Grady told me at the time he signed this note that he didn’t owe anything. ■ I knew there was something on the books at Mi-. Luring’s against Grady, not much. Q. If he stated that he didn’t owe anything, now you state that you knew he did owe Mr. Luring? A. I know he owed some, not how much. I just stated the facts of the case. I knew he owed Mr. Luring some, not how much. If I had thought of it that way, I would have known his statement to me was not true. I did rely on his statements, just like I told you awhile ago. I had sold Grady some goods, and had charged them to him I think. I don’t think I sold him numbers of times. Grady did not do most of his trading with me. I know that he got some things on a credit there. I relied on Grady’s statement when he told me he didn’t owe anything. I knew at that time he owed a little something at the store, but I didn’t think of it. Q. If it was not true, you could not rely on it; if he made that statement to you that he didn’t owe anything and you knew at the time that he did owe Mr. Luring, you didn’t rely on his statement? A. I did; yes, sir, knowing that it 'was not true, because I didn’t think of it at the time.”

Her testimony goes further and shows that she talked with Mr. Zweifel and Dr. Lancaster before the note was executed. In reference to Dr. Lancaster Miss Karnes testified:

“I talked to Dr. Lancaster before the note was executed. I asked Dr. Lancaster about selling them, and he said that he had done the same thing or was going to do the same thing, or had sold them, I don’t know which; and that they were not involved; that they told him they were not involved. I knew they had an account at Luring’s store. I didn’t know they owed anybody else. I had never hoard their credit questioned. I relied on what Dr. Lancaster said- He advised me that he believed they would pay me. I had that in mind when I took their note, and was relying on it at the time. I don’t remember who.ejse I advised with about the matter. I talked to Dr. Lancaster and Mr. Zweifel and Mr. Luring and relied on their advicp. I believed what they told me, and I had that in mind and was relying oxs. it at the time I took the note.”

On re-cross this same witness testified:

“Yes, sir; I was relying on the statements of these other people at the time I made this sale, bnt X would not hare sold to them with Rollie on the note if Grady hadn’t told me that. I don’t know whether I asked Dr. Lancaster anything about Rollie or not. X don’t remember to have asked Mike Luring and Henry Zweifel about Rollie. Boh and Grady were 'the ones I was asking about.”

The court charged the jury as follows:

“If you do not so believe and find, beyond a reasonable doubt, you will acquit the defendant, or if you have a reasonable doubt as to whether or not Ada Karnes believed the said representation, if any, made to her by the said H. G. Whitehead, to be true, and was induced thereby to part with the possession and title to said mule and horse, then and in that event you will likewise acquit the defendant. Again, if you have a reasonable doubt as to whether or not the said H. G. Whitehead made the representations to the said Ada Karnes alleged in the indictment, or if he did make them and you believe they were false and the said Ada Karnes knew they were false when she parted with the title and possession of said mule and horse, then in either event you will acquit the defendant.”

Preceding the charges above quoted the court, in substance, without setting it out, charged that if appellant fraudulently represented to Miss Karnes that he was not indebted to any person, and that by means of such false and fraudulent representations, if any, the said Ada Kames was induced to sell and deliver to the said H. G. Whitehead and Bob Whitehead the title and possession of one horse and one mule, and to accept for the animals a promissory note unsecured and signed by H. G. and R. S. Whitehead, and they further should believe that H. G. Whitehead was indebted to other persons and was not solvent, and that Bob Whitehead was insolvent, and that said representations made, if any, by H. G. Whitehead were false, and that in truth and in fact he was largely indebted and owed large amounts aggregating more than $5,000, and that the said Ada Karnes, in parting with the title and possession of the said mule and horse, believed said representations, if any were made, to be true and was induced thereby to part with the possession and title to said property, and that the value of said property was more than $50, and so on, they should convict. Appellant excepted to the charge above quoted, and requested the court to charge the jury as follows:

“Gentlemen of the jury, in this cause I charge you at the request of defendant’s counsel that if you find and believe that the prosecuting witness, Ada Karnes, before accepting the note set out and described in the indictment herein, advised with Henry Zweifel, Mike Luring, and J. R. Lancaster, or either of them, about selling the property described in said indictment to the defendant Bob Whitehead, and accepting their unsecured note for the price of same, and that she acted on said advice, if any, at the time she accepted said note, if she did, or if you have a reasonable doubt as to whether she did so act on said advice, if any, you will acquit the defendant, and say by your verdict not guilty.”

This charge was refused. It is unnecessary to set out the facts further than has been stated. The court’s qualification to the bill of exceptions reserved is as follows:

“The court charged the jury in substance that before the defendant could be convicted they must believe beyond a reasonable doubt that in parting with the title of her property to the defendant she must have relied upon and been, induced by the statement alleged to be false before a conviction could be had, and in substánce gave the special charges requested 'by the defendant, and met all the exceptions to the charge save and except the possible one embodied in a special charge to the effect that Ada Karnes must have relied solely and alone upon the statements made to her by' the defendant. The statement contained in the bill as to testimony of the witness Ada Karnes on cross-examination in so far as set out in question and answer form is certified to as correct,_ but that portion of her testimony appearing in the (bill of exceptions which is- not in question and answer style I do not certify as being correct, but refer to -the statement of facts on this point.”

The writer is of opinion, after reading the record, that the bill of exceptions does correctly state her testimony about which the court refers to the statement of facts. The court in his qualification seems to have mis--conceived the charge requested by appellant in using the language that that special charge suggested that Miss Kames “must have relied solely and alone upon the statements made to her by the defendant.” The charge has been quoted, • and the court in that qualification certainly misunderstood the charge, because it does not ask that the jury be instructed to rely solely upon the statements of the defendant made to Miss Kames. The charge simply asked the court to instruct the jury, as stated by its terms, that if she relied upon the statements and representations of the three gentlemen named, or there was a reasonable doubt about it, appellant was entitled to an acquittal. This charge was called for by the facts heretofore stated. She testified she talked with these gentlemen and relied upon what they told her, and this occurred before the execution of the note. This advice, which she says was at her own suggestion from those-gentlemen, indicated that she was not willing to trust defendant on their statements,, and sought the advice of the other named parties. This charge should have been given. It was an issue in tbe case. If appellant had' requested the court to charge that she must rely solely and alone upon the statements of defendant, we would have had the question presented in a different light, but as that question is not presented by the requested charge, it is not discussed.

There is another bill of excejitions reserved to the introduction of evidence to the effect that appellant bought a farm for $7,-000. He paid nothing on the $7,000 in cash, but gave vendor lien notes for that amount and in addition executed a mortgage on his stock. Whether this horse and mule were included in that is not shown, unless it be.under tire general statement that he gave a mortgage on all of his stock. In this connection the evidence shows that this debt was canceled later by deeding the farm back to his brother and receiving a release of the mortgage given on the stock. Some of the reasons urged why this matter should not have gone before the jury should have been sustained. The facts show and the bill shows that this indebtedness accrued months after the execution of the note to Miss Karnes, which was for $175, and could not have had any effect upon the indebtedness of appellant at the time he bought the horse and mule from Miss Karnes. This case is based upon the proposition; that is, the court only submitted the theory that appellant was insolvent at the time he made the purchase, or rather at the time he made the representations to Miss Karnes, which she claimed to have been made by him, to the effect that he did not owe anything. The court did not submit the statements that he owned 5 or 0 mules and 75 to 100 hogs. These were excluded, and were not even mentioned in the charge. He certainly did not owe this amount at that time, because the facts show plainly that that transaction occurred months after he executed the note to Miss Karnes. Just how this could affect the insolvency of appellant at the time he executed the note is not readily explainable. Where a party is solvent at the time of the contract and subsequently becomes insolvent, the subsequent insolvency would generally not enter into prior statements of solvency. It would hardly be held that appellant entered into this contract with his brother some months afterward for $7,000 with a view of beating Miss Karnes out of $175 that he owed her; but if he did, that would not be swindling, because the contract and swindling, if any, had already occurred and the property had passed to appellant. Having acquired the property, he had the right to use it; it became his when he gave the note for it. The fact that he may have used it subsequently in trading, making contracts, etc., would not render him insolvent at the time he purchased the mule and horse. He did not then owe the $7,000. That debt was canceled long before the maturity of the Karnes’ note. This matter upon another trial should not be permitted to go to the jury.

There is another question, to wit, the introduction of a great number.of items in the schedule filed in the bankruptcy proceedings which were filed by appellant and his brother Bob over a year after the purchase of the horse and mule. This bill is very lengthy, and recapitulates and recites a great number of transactions, some of which appellant owed at the time of the purchase of the horse and mule and execution of the note therefor. A great number of the items were debts contracted long subsequent to the transaction with Miss Karnes. In the original opinion we passed this out with the statement that the items to which objections were made must be specifically specified, otherwise the court will not look through to ascertain which were and which were not admissible. This is based upon the rule that where some of the testimony mentioned in a bill is admissible and some not the bill must particularize the matters to which objection was urged. Recognizing that rule, the writer is of opinion that this bill, while not technically pointing out all these different illegitimate items, is sufficient to present the question. Among other exceptions stated to the introduction of this evidence this is found: The contract upon which the defendant is charged by indictment with swindling was entered into between the parties prior to the date of the items shown on the schedule, and the prosecuting witness knew at the time she entered into the contract that he, the defendant, did owe something, and, further, that she was relying, not on these statements as the indictment alleges, but on the testimony of three different parties, to wit, Dr. J. R. Dan-caster, Mike During, and Henry Zweifel; that therefore the testimony cannot be offered for any purpose in view of the assignments in the indictment and under the law except for the purpose of prejudicing the minds of the jury against the defendant, and that the items taken from said schedule, and the schedule itself were not admissible on account of being an ex parte proceeding. This is one of the grounds. Another ground is that the items shown in said schedule were evidences of debt created after the execution of the note given by the defendant to the prosecuting witness, Ada Karnes, which note and the transaction out of which it grew are the basis of this prosecution; and because the proof shows that these items of debt were not in existence at the time of the execution of said note; and because said testimony is immaterial and does not sustain any charge made in the indictment, and are immaterial to any issue in the case, and could serve no purpose except to prejudice the minds of the jury against the defendant; that the items objected to were created after the execution of the note given to Ada Karnes, and because said testimony could not, in any manner, have influenced the prosecuting witness, Ada Karnes, when she sold the property to the defendant and took his note therefor. These are just mentioned in passing. The writer is of the opinion that these, while not very specific, were sufficiently so though to call the court’s attention to the fact that the items to which he was objecting were those debts created since the transaction between himself and Miss Karnes. The trial court qualifying the bill, among other things, stated he did not feel called upon to go through all the schedule, which was rather an extensive one, and cull out the items of debt which occurred between appellant and Miss Karnes after the transaction. It was not necessary for him to do so. He was the presiding judge; he heard the testimony read to the jury and the dates of the items as they were called in reading the matter to the jury. Appellant, while not specifying each item in a general way, called his attention to the fact he was objecting to all those items in which debts occurred after the transaction alleged in the indictment. The date of this transaction was the 4th of October, 1914. Many of the items occurred at varying times during a year or more after the transaction declared upon in the indictment. The writer is of the opinion that that was specific enough to call the court’s attention to the fact that these items were referred to in the objections by appellant. The court could have required the state to eliminate such items at the time they were read to the jury, and could also have confined the state to debts existing at the time of the execution of the Karnes’ note, and if the schedule in bankruptcy was admissible at all for any purpose, then certainly no other items as this record presents it should have been admitted except those specifying debts that were in existence at the time of giving Miss Karnes the note relied upon in this transaction. But if he is in error in regard to the sufficiency of the bill to present these matters, then upon another trial all such matters occurring subsequent to the transaction set out in the indictment should be excluded. The matter at issue was whether or not appellant owed anything at the time he made the statement to Miss Karnes. This was the theory upon which the case was tried under the court’s charge. Certainly it could not be held to be proper to introduce evidence of indebtedness incurred by appellant after the execution of the note. He did not and could not have owed subsequent debts at the time of the execution of the note; therefore it could not have been a misrepresentation as to such subsequent debts.

These matters have been treated in a general way in view of the motion for rehearing. There are many other facts and details in evidence which would throw light upon these matters which are not herein mentioned or discussed. The writer does not believe that the facts show a case of swindling. To his mind this is just a credit sale, evidenced by the note mentioned by the witness Miss Karnes. I do not care to go into a detail of the facts bearing on it further than as stated. This note was executed on the 4th of November, 1914, and matured before the bankruptcy proceedings were instituted which occurred in December, 1915. This indictment was not preferred until the 25th of April, 1916. That appellant’s credit was good at the bank and in the community where he was dealing seems not to be questioned, and the unfortunate matters occurring during 1915, and the reduction of the. price of cotton and matters of that sort, forced appellant into bankruptcy. He had always sustained a high rating as a business man up to the time of the bankruptcy or just before it, and it is shown that he raised in 1915 something over 100 bales of cotton, but on account of existing circumstances, the war in Europe, and matters of that sort, cotton was reduced to a very low value. It seems to be not questioned that if the cotton had sold at the subsequent high prices, he would have been able to have avoided bankruptcy and paid his debts. To the mind of the writer this record does not show evidence which. would justify the conclusion that appellant, in signing the note or buying the horse and mule, intended to defraud Miss Karnes. It was a credit sale and not a swindle.

For the reasons indicated, the motion for rehearing is granted, the judgment of af-firmance set aside, and the cause reversed and remanded.

PRENDERGAST, J., dissents.
      <En»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    DAVENPORT v. KELLY.
    (No. 712.)
    (Court of Civil Appeals of Texas. El Paso.
    June 7, 1917.
    On Rehearing, June 28, 1917.)
    1. Appeal and Ebeob <@=396 — -Notice op Appeal.
    Under Rev. St. art. 2084, the Court of Civil Appeals is without jurisdiction to hear an appeal unless the appellant gives notice of appeal in open court during term at which final judgment is rendered, and within two days after final judgment overruling motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2099, 2102, 2104, 2150.]
    On Rehearing.
    2. Appeal and Erbok <@=417(1) — Notice of Appeal.
    The certificate of a trial judge, stating that appellant’s attorney came to his office and stated that he wished to except to the judgment and take an appeal, does not show giving of notice of appeal necessary to perfect it, where it does not show that judge’s office was place where court was then being held.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2140, 2141'.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by R. H. Kelly, trustee, suing for the benefit of himself and the stockholders of the Farmers’ & Merchants’ State Bank of Gustine, Tex., against Roy J. Davenport. From a judgment for plaintiff, defendant appeals.
    Appeal dismissed.
    Merton L. Harris, of Comanche, L. Old, of Uvalde, and H. C. King, of Sabinal, for appellant. H. N. Goodson, of Comanche, for appellee.
   WALTHALL, J.

This suit was brought in the county court of Comanche county by R. H. Kelly, trustee, suing therein as plaintiff, for tlie benefit of himself and the stoekhold-ers of the Farmers’ & Merchants’ State Bank of- Gustine, Tex., and against appellant, Roy J. Davenport. The cause was tried by the court, who rendered judgment in favor of appellee for the amount sued for. Appellee objects to a consideration by this court of this appeal and of the brief of appellant, on the ground that it does not appear, from the minutes of the county court, as shown by the transcript, that notice of appeal from the judgment of the trial court was given in open court.

This objection is sustained by the record, and this court is without jurisdiction to hear this appeal. Article 2084, R. S., provides that an appeal may be taken during the term of the court at which the final judgment in the cause is rendered by the appellant, giving notice of appeal in open court within two days after final judgment overruling a motion for a new trial. The record does not disclose that the notice of appeal was given in open court,' but shows to the contrary. Western Union Telegraph Co. v. O’Keefe, 87 Tex. 428, 28 S. W. 945; Beaumont v. Newsome, 143 S. W. 941. For the reason stated, the appeal must be dismissed, and it is so ordered.

On Rehearing.

Appellant insists that we are in error in dismissing this case for want of jurisdiction. The record does not show that notice of appeal was given in open court; The county judge who tried the case certifies that within due time, and before the adjournment of the term of the court at which the case was tried, the attorney for appellant, Merton L. Harris, “came into my office and stated that he wished to except to the judgment and take an appeal in the case, but that I, through inadvertence, failed to enter said notice of appeal and exception on the docket, and the same is not entered on the minutes for said reason.” The statute provides that appeal is perfected “by the appellant giving notice of appeal in open court * * * w’hich shall be noted on the docket and entered of record,” and by filing the apiieal bond. We are of the opinion that by the attorney simply going'into the office of the judge and stating to the judge that he “wished to except to the judgment and take an appeal in the case,” is not.the giving of notice of appeal in open court. Notice of appeal given in open court takes the place of citation or other writ designed for the same purpose, and such notice is necessary to the exercise of jurisdiction of this court. Western Union Telegraph Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945. It is the giving of notice of appeal in open court that perfects the appeal. It is not shown in the certificate nor otherwise that the judge’s office was the place where the. court was then being held, nor that court was .then open at the judge’s office or" elsewhere at the time the attorney expressed to the judge his wish to except to the judgment and take an appeal. In Western Union Telegraph Co. v. O’Keefe the notice of appeal was in fact given. Appellant here relies upon and refers us to the certificate of the trial judge as showing the fact of notice of appeal given in open court. We accept the certificate as to what occurred, and are of the opinion that the certificate does not show the fact that notice óf' appeal was given in , open court. It is true that the statute does not prescribe a form of words in giving the notice, but it does prescribe the manner of giving the notice, and the place where given, and that what is done must be a notice of appeal of the case to the Court of Civil Appeals. A notice to the trial judge in his private office, conceding it to be otherwise sufficient, certainly would not be notice given in open court. The notice given in open court is intended to apprise the opposing party of the appeal taken, and is the only notice of that fact required. Russell v. Koennecke, 190 S. W. 253.

The motion is overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    COMMONWEALTH NAT. BANK v. HAWES.
    (No. 7624.)
    (Court of Civil Appeals of Texas. Dallas.
    May 26, 1917.
    Rehearing Denied June 23, 1917.)
    1. Banks and Banking t®=^148(2) — Payment oe Check — Duty of Bank.
    Plaintiff, by issuing his check, cast upon his bank the duty to pay the amount to the payee, or, if indorsed by the payee, the duty of ascertaining the genuineness of his indorsement, unless plaintiff knew, when the check was issued, that the payee was a fictitious person, in which case payment to any holder of the check was authorized.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 438, 441), 441, 452.]
    2. Pleading <s^291(2) — Veeification — Non Est Factum — Statute.
    In suit against plaintiff’s bank to recover money paid by the bank to a third person on forged indorsement of a check for. the amount drawn by plaintiff, where plaintiff did not file an affidavit charging; that the indorsement was a forgery, the genuineness of the indorsement on the check was not required' to be assumed; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5S8. providing that, whenever the assignee or in-dorsee of any written instrument shall sue thereon, the assignment or.indorsement shall be regarded as fully proved, unless the defendant shall tender sworn plea of non est factum, being without application, as it has reference to instruments or obligations emanating from the party sought to be charged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 864.]
    Appeal fi'om Dallas County Court; T. A. Work, Judge.
    Suit by J. W. Hawes against the Commonwealth National Bank. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Leake & Henry, of Dallas, for appellant. Lively & Groggans, and W. M. Jones, all of Dallas, for appellee.
   RASBURY, J.

This appeal is from a judgment in favor of appellee for $250 in a suit wherein it was alleged that appellant paid to another upon a forged indorsement a check for said amount drawn by appellee in favor of -JVC. F. Robertson against a fund on deposit with appellant. The pleadings support all issues presented on appeal and for that reason will not be detailed.

The essential facts dedueible from the evidence developed at trial are these: Appellee agreed with Joe Weil to advance $250 to one M. F. Robertson, who Weil represented to appellee desired to borrow $500 on good security, and whom appellee believed to be a real person, on condition that Weil would advance the remaining one-half. For that purpose the appellee drew a check on appellant bank, where he had money deposited, in favor of M. F. Robertson, and delivered it to Joe Weil to be in turn delivered to Robertson. After the cheek was delivered to Weil he exhibited to appellee a note for $550, signed “M. F. Robertson,” together with another note ostensibly secured by some character of real estate lien and supposed to be in collateral security of the $550 Robertson note. Weil retained both notes and placed them in his private vault. The check was paid by appellant, and when returned to ap-pellee was indorsed “M. F. Robertson” and “Joe Weil.” When the Robertson note, which was not in possession of appellee, was due, appellee set about to find Robertson, with the result that it developed that Robertson was a fictitious person, and that the only Robertson who had ever owned the land by which payment of the note was secured was a Mrs. M. F. Robertson, who died long prior to the transaction between appellee and Weil. Upon discovery that Robertson was a fictitious person appellee notified the bank. It does not appear to whom the bank paid the money, since it introduced no testimoney on that issue or concerning Robertson’s indorsement, but we assume from the order of the indorse-ments on the check it was paid to Weil, who was not accounted for at trial. Appellee relied upon and was deceived by Weil’s representations that Robertson was a real person and that the notes and security were genuine. They were forgeries.

By the first assignment of error it is urged that the judgment is erroneous on the ground, in substance, that it appears without controversy in the testimony that what appellee intended by the issuance of his cheek was accomplished, that is to say, that what Weil represented to be a real person and a genuine obligation, while in the one case fictitious and in the other a forgery, was what appellee bargained for and got, since he relied upon Weil in the matter, and in which deceit appellant did not participate. It is correct to say that the appellee did rely on the statements of Weil concerning the genuineness of the note purporting to be executed by Robertson and its security, and that appellant did not participate in the deceit in reference thereto. Appellant’s liability, however, does not depend upon appellee’s reliance upon the statements of Weil or upon the fact that Weil deceived him.

Regardless of the verity of such claims appellee, by the issuance of his check, cast upon appellant the duty of paying the amount thereof to the payee, Robertson, or, if indorsed by Robertson, the duty of ascertaining the genuineness of Robertson’s indorsement, unless, of course, appellee, the drawer, knew at the time'the cheek was issued that .the payee was a fictitious person, in which case payment to any holder of the check would be authorized. Guaranty State Bank & Trust Co. v. Lively, 149 S. W. 211. In the case cited the Supreme Court granted the writ of error, but in an opinion rendered during the current month affirmed the holding of the Court of Civil Appeals. The rule stated was announced in the case cited upon facts substantially similar to those in the present case, for which reason we deem it unnecessary to further discuss the issue.

The remaining assignment asserts that the genuineness of the indorsement upon appellee’s cheek should have been assumed, since it appears from the record that appellee did not file in the suit an affidavit charging that such indorsement was a forgery. The contention is based upon the provisions of article 588, Vernon’s Sayles’ Civil Stats., which provides, in substance, that whenever the assignee or indorsee of any written instrument shall sue thereon, the assignment or indorsement thereof shall be regarded as fully proved unless the defendant shall, in effect, tender sworn plea of non est factum. It is clear, we believe, that the statute invoked is without application in this proceeding. Obviously it has reference to instruments or obligations emanating from the party sought to be charged. Further, this suit is not upon any instrument or obligation assignable by indorsement under the general law merchant as controlled by our statutory provisions, but is in true analysis a proceeding in tort arising upon the negligence of appellant.

Finding no reversible error in the record, the judgment is affirmed.
      <§=s>For other cases see same topic and KEY -NUMBER, in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    FOLMAR v. THOMAS et al.
    (No. 5787.)
    (Court of Civil Appeals of Texas. Austin.
    May 23, 1917.
    Rehearing Denied June 27, 1917.)
    1. Contracts <§=>9(1) — Description or Property.
    Unless the description of real property sought to be covered by a written contract is so defective as to render it manifest that the property cannot ,be identified by the aid of extrinsic testimony, the contract will not be declared void, though there is uncertainty and ambiguity in the description.
    [Ed. Note. — For other cases, see' Contracts, Cent. Dig. §§ 10-15, 17, 19, 20.]
    2. Landlord and Tenant <§=>24(3) — Lease Contract — Description op Property — Uncertainty.
    A lease contract obligating the lessee to cultivate, erect buildings, etc., provided that it covered 300 acres of land “on the Thorndyke place near Gause.” The lessor owned a tract of 470 acres near the town of Gause known as the Thorndyke place, and the parties living in the vicinity knew the fact of ownership, and that 170 acres were in cultivation. In the lessor’s action against the assignee of the lessee the petition alleged that the lessee and defendants took possession of the 300 uncultivated acres and constructed rent houses on a portion, etc. Held that, in view of the allegations of the petition, the contract was not void for uncertainty of description of the property, though .it did not specify what particular 200 acres of the 300 uncultivated acres owned by plaintiff were to be put in cultivation.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 64.]
    3. Frauds, Statute op <§=>129(3) — Landlord and Tenant — Lease Contract — Partial Perpormance — Insuppiciency op Description.
    A contract for the lease of land, the terms of which have been complied with by the lessor, partially complied with by the lessee, and under which the lessee has taken possession and received benefits for the contract term, is not within the statute of frauds, and is enforceable irrespective of its validity when executed, and the lessee cannot escape liability under such contract by asserting its invalidity for insufficient description of the land or for other cause.
    [Ed. Note. — For other cases, see Frauds, Statute of, Gent. Dig. §§ 289-291.]
    4. Landlord and Tenant <§=>157(1) — Application op Lease Contract — Obligation op Lessees.
    Where the lessees of land by contract obligating them to cultivate, build houses, etc., undertook to apply the contract, which purported to cover 200 acres as to cultivation, to plaintiff’s uncultivated 300 acres, the obligation rested on them to put 200 acres in a reasonably good state of cultivation, and to surround them with a reasonably good fence, as was commonly done by persons of ordinary; prudence, and the same rule was applicable in determining the boundary lines between the 200 acres to be placed in cultivation and 100 acres to be fenced for use as a pasture.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572.]
    5. Landlord and Tenant <§=>157(1) — Lease Contract — Obligation to Sink Wells, Etc.
    Where a lease contract obligated the tenant to erect houses and cribs and to sink wells to obtain water for domestic uses, but did not state the character of such improvements, the lessee and his successors were under obligation to spend a reasonable amount of money and labor to construct such wells as were in general use in the locality, also to construct reasonably good houses and cribs.
    [Ed. Note. — For other cases, see landlord and Tenant, Cent. Dig. §§ 571, 572.]
    6. LANDLORD AND TENANT <§=>157(1)— COVENANTS for Improvements — Construction— Building Contract.
    . In construing lessee’s building contract, or contract for some other improvements, which does not contain full specifications of the structure to be made, due consideration should be given the attending circumstances, the contemplation of the parties, and the general character, uses, and purposes of the improvements, and the contract should receive a reasonable construction to render it equitable.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572.]
    Appeal from District Court, Milam County; J. O. Scott, Judge.
    Suit by J. T. Folmar against P. H. Thomas and others. From a judgment dismissing the suit, plaintiff appeals.
    Reversed, and cause remanded.
    Henderson, Kidd & Gillis, of Cameron, for appellant. Morrison & Lewis and Chambers & Baskin, all of Cameron, for appellees.
   KEY, C. J.

Appellant is prosecuting this appeal and complaining of the action of the trial court in sustaining a general demurrer and several special exceptions to his petition, and dismissing his suit. We copy, the following statement from appellees’ brief:

“This action was begun in the district court of Milam county by the appellant, J. T. F'ol-mar, as plaintiff, against the appellees Thomas & Sons, as principal, and A. J. Rhodes and J. A. Ely, as sureties, for damages alleged to have accrued to the appellant by reason of the failure of Thomas & Sons to fulfill and perform the obligations and requirements of a certain written contract which had been executed between the appellant, Folmar, and one Z. S. Roque, and which last-named contract was in words and figures as follows:
“ ‘Know all men by these presents that I, J. T. Folmar, party of the first part, do hereby agree to lease to Z. S. Roque, party of the second part, until January 1, 1915, 200 acres of land on the Thorndyke place near Gause for the following consideration: Said Z. S. Roque in payment for wood on said tract of land and the use of the land for the time during this date and January 1, 1915, is to erect at his expense 4 rent houses, 8 cribs, and is to dig 4 wells on said place (J. T. Folmar, party of the first part, having the right to select locations for said rent houses and cribs and wells); further said rent houses to be built not later than the following dates: First house to be built in 1910, and to consist of three rooms 16x16 feet each room sealed overhead, with gallery in front, 2 cribs, good log cribs, 12x12 feet, covered with corrugated iron, also to be built in 1910. Second house to be like first house, together with 2 cribs built same as two cribs to be erected not later than 1911. Third house and two cribs to be built the same as above-mentioned houses to be erected not later than 1912. Fourth house and two cribs to be erected not later than 1913, and to be built like above-mentioned houses. In addition said Z. S. Roque, party of the first part, in further consideration, is to dig four wells on said 200-acre tract of land, one each year from date of this instrument, 1910, 1911, 1912, 1913.
“ ‘Z. S. Roque, party of the second part, hereby agrees to put said 200 acres of land in good state of cultivation by the first day of January, 1915, to clear and cut off all trees and brush and to turn said land over to said J. T. Folmar, party of the second, part, on January 1, 1915; further, J. T. Folmar, party of the second part, agrees to allow Z. S. Roque the use for a pasture of all that land outlying and belonging to Thorndyke place for the consideration that Z. S. Roque, party of the first part, agrees to place a good four barb wire fence with posts every 8 feet around said 200-acre tract of land to be erected during the lifetime of this lease.’
“It was alleged that before the completion of the contract by Roque he had departed this life, and that the plaintiff had made a contract of settlement with the surviving widow of Roque, and claimed the right of possession to the land mentioned in the contract, and that the appellees Thomas & Sons were in possession of the land and claimed the right to possess the same by virtue of an assignment of the contract from Roque, and that these conflicting claims resulted .in litigation between Thomas & Sons and the appellantj Folmar, and that this litigation was compromised on November 27, 1912, and at which time, the appellees Thomas & Sons, as principals, and the appellees A. J. Rhodes and J. A. Ely, as sureties, made, executed and delivered, to the appellant, Folmar, a contract as follows:
“ iKnow all men by these presents that whereas, heretofore, on the 31st day of January, 1910, J. T. Folmar and Z. S. Roque made and entered into certain contract in writing bearing date last above written, and a copy of which said contract is hereto attached, and the same is recorded in Volume 110, page 33, of the Deed Records of Milam County, Tex.; and
“ ‘Whereas, afterwards the said Z. S. Roque assigned, transferred, and delivered said contract to Thomas & Sons, a firm composed of P. H. Thomas, R. Mi. Tilomas, and Mrs. Lizzie Thomas, and that said last-named parties went into the actual possession of the land described in said contract, and are now in the peaceable possession of said land, and the said J. T. Fol-mar here now consents to such transfer and assignment of lease contract from the beginning; and
“ ‘Whereas, the parties hereto and the parties plaintiff and defendant in said two lawsuits have settled, compromised, and adjusted all of the matters and things in issue and in controversy in said two lawsuits; and
“ ‘Whereas, three certain houses under the terms of said contract have been erected and constructed upon said premises under the direction and supervision of the said J. T. Folmar, and whereas, he has heretofore accepted said houses as being in compliance with the specifications of such three houses contained in said contract, and the same are here now accepted as being in compliance with such specifications:
“ ‘Now, therefore, in consideration of the settlement of all of said issues and controversies between the parties hereto, it is hereby agreed by the said J. T. Folmar and said firm of Thomas & Some that said two suits shall be dismissed from the docket of said court as settled, and that each party thereto shall assume and pay all of the cost properly and legally chargeable against him respectively in each of said suits.
“ ‘It is further agreed between the parties that said Thomas & Sons shall continue in possession of said -lease until its expiration on the 1st day of- January, 1915, and the said J. T. Folmar here now guarantees that he will not ‘nterrupt or interfere with said Thomas & Sons m the possession of said premises until the expiration of said lease, and that the said Thomas & Sons, a firm as aforesaid, hereby agree, obligate, and bind themselves to carry out and perform the conditions, agreements, and stipulations of the said Z. S. Roque in the said contract in manner and form as therein provided, including the particulars in which the said Roque failed to perform under the terms thereof, and for the faithful performance on the part of said Thomas & Sons for the agreements and covenants herein made, and for the faithful performance of the stipulations of said contract hereto attached in accordance with the meaning and tenor hereinabove expressed, they here now as principals and the other subscribers hereto as sureties bind and obligate themselves unto the said J. T. Folmar in the sum of twenty-five hundred dollars ($2,500), for the payment of which well and truly to be made they hereby bind themselves, their heirs, executors, administrators, and assigns.’
“The plaintiff alleged that after the execution of the last above contract that he delivered the possession of the 200 acres of land to the appel-lees Thomas & Sons, and that he had performed all of the obligations and agreements chargeable against him, and that the Thomases had failed and refused to meet their obligations under the said contract, and had failed and refused to perform and comply with the said Roque’s part of the contract in many specific and enumerated particulars, which will be noticed hereafter.”

We also make the following additional statement concerning plaintiffs’ pleadings: He alleged:

“That, at the time he and the said Z. S. Roque entered into the contract they were both residents of Milam county, Tex., and resided near Gause, which is a town in said county, and the tract of land referred to in said contract as ‘200 acres of land on the Thorndyke place, near Gause,’ is a part of a tract of 470 acres on the Jennett Bowen League, in Milam county, Tex., then owned by plaintiff and commonly known as the Thorndyke place, and being die same conveyed to plaintiff by William Thorndyke by deed of date November 3, 1909, of record in Volume 95, page 185, Deed Records of Milam County, Tex., and beginning at the N. W. corner of said Jennett Bowen league for the N. W. corner of this tract, from which a P. O. brs. S. 30° E. 11 vrs.; thence N. 60° E. 1,336 vrs. with the N. line of the Jennett Bowen league, same being the S. line of the A. W. Sullivan % league to N. W. corner of the Dallas land for corner of this tract; thence S. 30° E. 2,000 vrs. with the W. line of said Dallas land to its S. W. corner for corner of this tract; thence S. 60° W. 1,336 vrs. with the S. line of the M. Farley 640-aere survey, same being the N. line of the B. L. Ham 229 acres, to a comer in the N. line of the Jennett Bowen league, and being also the B. line of the Samuel Chair survey; thence N. 30° W. 2,000 vrs. with the W. line of the Jennett league, same being the E. line of the Samuel Chair league, except, however, 2 acres in the N. W. corner.
“That at the time said contract was so made about 170 acres of said tract was inclosed and in a state of cultivation, and the remainder, being about 300 acres, was uninclosed and covered with a growth of timber, and said entire tract of land was commonly known as the Thorndyke tract, and was at that time so known to said Roque and to each of the defendants to this suit; and the said 200 acres to be so placed in cultivation by said Roque under said contract was a part of the uninclosed and timber portion of said tract, and the part to be so inclosed by him as a pasture, as specified in said contract, was the remainder of said un-inclosed portion of said Thorndyke tract.
“Said Thorndyke tract of land is situated about 2 miles from the town of Gause, in Milam county, Tex., the said town of Gause being an old and well-established town, having been in existence for about 40. years, and each and all of said defendants resided in said town at the time said contract was so made, and have all resided there continuously since, except the defendant P. H. Thomas, who resides on a farm about 4 miles from said town of Gause.
‘•That immediately after said contract was so made by plaintiff and said Roque the said Roque entered into possession of said uninclosed portion of said Thorndyke tract, and so continued in the actual possession thereof, carrying out his contract, until the time of his death and the assumption thereof by Thomas & Sons, as alleged in plaintiff’s petition, and the said Roque had cleared a portion of said land and placed some of the improvements thereon,_ as stipulated in the contract, and when the said Thomas & Sons assumed the performance of said contract, they took immediate possession of said premises, and were in possession thereof for the purpose of carrying out and performing said contract at the time said bond sued. on herein was executed by the defendants in this suit, and said defendants, and each of them, were then and there fully informed and knew that the promises mentioned in said contract were the same then and there in possession of said Thomas &.Sons and which previously had been in possession of the said Rorree, and that the same was the land_ referred to in the contracts set out in plaintiff’s petition, and the said Thomas & Sons, in pursuance of their said contract and for the purpose of carrying it out, continued in possession of said premises until the expiration of the time or term of said Roque contract, to wit, January 1, 1915, and so held the same under the terms of said contract and used, occupied, and enjoyed the fruits and revenue thereof under the terms and for the time of said Roque’s contract.
“And plaintiff further shows that a portion of said land, to wit, about 170 acres, had been in cultivation at the time of the execution of his contract with said Roque for a number of years, and, as aforesaid, said tract of land was well known as the Thorndyke tract, and that said land so known as the Thorndyke tract or Thorn-dyke place is the only tract of land near the town of Gause known as the Thorndyke place.
“Plaintiff reaffirms all of the foregoing allegations, and further says that at the date of the bond executed by defendants and sued on by plaintiff the defendants Thomas & Sons were in possession of the land in question, claiming the right of possession thereof and had instituted suit against plaintiff to enjoin him from taking possession of said land, all of which was known to the defendants Rhoades and Ely, sureties on said bond, that said original contract between plaintiff and Roque has expired, and that said contract has been fully executed on the part of plaintiff and fully executed on the part of the said Z. S. Roque and the defendants Thomas & Sons, except as to the breaches complained of in plaintiff’s second amended original petition, and that the said Z. S. Roque and the defendants Thomas & Sons have recovered and enjoyed the benefits of said contract. Wherefore plaintiff represents and shows to the court that the defendants are estopped from setting up a misdescription of said land and from avoiding their obligations under the contract and bond sued on in this cause.”

The plaintiffs not only alleged that the defendants Thomas & Sons ha'd entered into a contract by which they became bound to fulfill the obligations of Z. S. Roque, but also alleged that they had partially performed the contract as to about ISO acres, but that they had not done so in the manner required by "the terms of the contract, in that they had not removed all the trees, etc., therefrom, and had not placed a reasonably good fence around same, and had not properly plowed the ground, and had unreasonably placed the boundaries of the ISO acres, which they pretended to have put in cultivation in such an irregular shape as not to be in compliance with the contract. It was also alleged that they had pretended to build certain cribs and dig certain wells, and construct certain fences, but that the same were not done in the manner required by the contract. Attached to the plaintiff’s petition, and made a part thereof, was a sketch of the Thorndyke 470-acre tract of land, showing the 170 acres on the north end thereof, which was in cultivation at the time the contract was made, and the remaining SOO acres which the plaintiff alleged Z. S. Roque and the defendants Thomas & Sons took possession of under their contracts with the plaintiff, and that they held and used the same during the entire period of the contract.

Opinion.

In the appellant’s brief the action of the trial court in sustaining the general demurrer and special exceptions to appellant’s petition is assigned as error, and we sustain the assignments.

The main point which seems to be relied upon by appellees’ counsel is the contention that the contract is void for uncertainty of description of the land, as well as uncertainty of description of the character of improvements to be placed thereon by Z. S. Roque and appellees Thomas & Sons, and that, as the verbal contract related to the lease of land for a longer period than one year, it is within the statute of frauds, and therefore vpid.

Unless the description of property sought to be covered by a written contract is so defective as to render it manifest that the property cannot be identified by the aid of extrinsic testimony, such contract will not be declared void, although there may be uncertainty and ambiguity in the description. Wilson v. Smith, 50 Tex. 365; Pierson v. Sanger Bros., 93 Tex. 163, 53 S. W. 1012.

The facts alleged in plaintiff’s pleading show that at the time the contract was made appellant owned a tract of 470 acres of land near the town of Gause, in Milam county, Tex., known as the Thorndyke place; that the parties to the contract lived in that vicinity and knew the fact that the plaintiff owned that tract of land, and also knew that 170 acres of it was in cultivation, and as the contract shows on its face that it was to apply to 300 acres of the Thorndyke place, and to land not in cultivation, it is manifest that the parties intended that it should apply to all the Thorndyke tract which was not in Cultivation. But it is urged on behalf of appel-lees that the contract aid not specify what particular 200 acres of the 300 acres was to be put in cultivation, and that for that reason it was void upon its face.

The point referred to is not free from difficulty, but we have reached the conclusion that such difficulty has been removed by the allegations in plaintiff’s petition to the effect that Roque and the defendants Thomas & Sons took possession of the 300 acres of land, constructed certain rent houses on a portion thereof, and pretended to construct the other improvements required by the contract to the extent of 180 acres. The allegations referred to, if true, show that Roque and the defendants Thomas & Sons have construed the contract as to what particular portion of the 300 acres should be put in cultivation and otherwise improved, at least to the extent of 180 acres; and as the petition charges that they breached the contract in reference to the improvements placed upon that 180 acres, it undoubtedly states a good cause of action to that extent at least.

A contract for the lease of land, the terms of which have been complied with by the lessor, and partially complied with by the lessee, and under which the lessee has taken possession and received benefits for the contract term, is not within the operation of the statute of frauds, and is enforceable irrespective of its validity when executed ; and the lessee cannot 'escape liability under such contract by asserting its invalidity for insufficient description of the land, or for other cause. Wanhscaffe v. Pontoja, 63 S. W. 663; Alford Bros. v. Williams, 41 Tex. Civ. App. 436, 91 S. W. 637; Taffinder v. Merrill, 61 S. W. 936; Dockery v. Thorne, 135 S. W. 593; Garrett v. Danner, 146 S. W. 678; Ry. Co. v. Settegast, 79 Tex. 261, 15 S. W. 228.

Inasmuch as the lessees undertook to apply the contract to the 300 acres of land, we think the obligation rested upon them to put 200 acres thereof in a reasonably good state of cultivation, an'd to surround the same with a reasonably good fence, such as was commonly done by persons of ordinary prudence; and we think the same rule should be applied in determining the boundary lines between the 200 acres to be placed in cultivation and the 100 acres to be fenced for use as a pasture.

As to the houses, cribs, and wells, the same rule should be applied, in so far as the contract omitted to state the character of such improvements. Manifestly the purpose sought to be accomplished by the stipulation requiring the lessee to dig certain wells to •obtain water for domestic uses; and while the contract does not guarantee that water should be procured, and does not specifically state how deep the wells should be, nor the •character thereof, we hold that it placed upon the lessee an'd his successors an obligation to expend a reasonable amount of money or labor for the purpose of constructing such wells as are in general use in that locality, and the petition alleged, in substance, that the lessees had failed to perform that obligation. Similar allegations were made in reference to the cribs and fencing, and we hold that the court erred in sustaining exceptions to the allegations referred to.

In construing a building contract, or contract for other improvements, which does not contain full specifications of the structure to be made, due consideration should be given to the attending circumstances, and to the contemplation of the parties, find the general character, uses, and purposes of such improvements; and, thus considered, the contract should receive a reasonable construction such as will render it equitable between the parties. Harrell v. Zimpleman, 66 Tex. 294, 17 S. W. 478; Dwyer v. City of Brenham, 70 Tex. 32, 7 S. W. 598; Parks v. O’Connor, 70 Tex. 390, 8 S. W. 104; Chapman v. Warden, 50 Tex. Civ. App. 282, 110 S. W. 533; Hartford M. Co. v. Hartford T. W. Co. (Ky.) 121 S. W. 479.

For the reasons stated, the judgment of the trial court will be reversed, and the cause remanded for a trial consistent, with this opinion.

Reversed and remanded.
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