author: WALTHALL, J.

text:
    ADAMS et al. v. KELLY.
    (No. 709.)
    (Court of Civil Appeals of Texas. El Paso.
    May 31, 1917.
    On Rehearing, June 21, 1917.)
    1. Evidence <§=>420(7) — Parol Evidence-Liability of Indorser.
    In action by purchaser of bank stock for misrepresentations as to value of its assets, parol evidence was admissible to show that an indorsement on a note among such assets was a qualified indorsement.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1800, 1804, 1943.]
    2. Bills and Notes <§=>190 — Partial In-dorsement.
    An indorsement intended to be partial only, and not as to the whole amount of the note, is void.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 454, 455.]
    On Rehearing.
    3. Appeal and Error <§=>907(5) — Record-Presumptions.
    Where record did not show how notice of sale was to be made under certain deeds of trust, the appellate court will not presume, on objection to allowance of item for t advertising notice of sale thereunder, that the, deeds of trust provided for notice by posting instead of advertisement, in view of Rev. St. arts. 3757, 3759, as to notices of sales of real estate.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2914, 3674, 3676.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by R. H. Kelly against E. K. Adams and another. From judgment for plaintiff, defendants appeal.
    Affirmed.
    L. Old, of Uvalde, and H. C. King, of Sabinal, for appellants. H. N. Goodson, of Comanche, for appellee.
   WALTHALL, J.

R. H. Kelly, appellee, brought this suit in the district court of Comanche county against E. K. Adams and Roy J. Davenport, appellants, for damages alleged to grow out of a transfer to him (ap-pellee) by appellants, of certain bank stock in the Merchants’ & Farmers’ State Bank of Gnstine, Tex. Appellee alleged, in substance, that in May, 1913, he made a certain land deal with the appellants whereby they, in part payment, transferred to him stock in said bank to the amount of $14,100, which stock was taken in said trade by appellee at $20,000; that the bank stock was to be of the total value of $19,000, and if it was not, then appellants were to pay to appellee in money the difference in the correct book value of said bank stock and the $19,000. The'cause of action is alleged to grow out of the fact that appellants misrepresented the outstanding accounts owed by the bank; it being alleged that the appellants fraudulently represented to appellee that the outstanding accounts were all paid, but that after the trade was made certain accounts, duly itemized, were found to be outstanding, unsettled, and still owed by the bank. It was alleged in the fourth paragraph of the petition, to which several of the grounds of error are directed, that:

“Among other things in settling said book value there was in said bank as one of its assets a note given by J. T. and Maggie McWher-ter, dated February 15, 1913, and due October I, 1913, for $2,619.67, with 10 per cent, interest after maturity, and said note was secured by the said McWherter by certain deed in trust and chattel mortgages, but which was subordinate to other deeds of trust and chattel mortgages to secure other large amounts due said bank by said McWherter, and the said McWher-ter being actually insolvent, and nothing whatever could be made out of him, except such as might be realized from the foreclosure of said deeds of trust and chattel mortgages, and on this note now complained of nothing could be realized to discharge it out of said mortgage property until the other and prior mortgages were satisfied, and it was a fact and then known to the plaintiff and to the defendants, Davenport and Adams, that the mortgage property was wholly insufficient as security on this $2,619.-67 note, and the plaintiff refused to allow said note to be figured in such settlement, as he considered it insolvent and uncollectable, and added no real value to the assets of the bank, and he then and there refused to have said note considered or to carry out his trade if said note was put into said settlement, because of its insolvency ; when and whereupon * * * in order to induce the plaintiff to let said note be put in at its face value, * * * the said Roy J. Davenport, for himself, and acting in the capacity hereinbefore stated, as agent for E. K. Adams, stated * * * to plaintiff that one J. E. McQuatters * * * was liable as an indorser for the whole amount of said $2,619.67 * ,* ® exhibited * * * to plaintiff, the name of J. E. McQuatters written across the back of said note, and which he then declared that McQuatters had written and delivered to the bank for the purpose of becoming an indorser and guarantor to the bank for the payment of the whole of said money, and by which representations he induced the plaintiff to believe that the said J. E. McQuatters was a surety, guarantor, and indorser for the whole amount of said note, and in that connection the plaintiff alleges that he knew J. E. McQuatters, and knew him to be perfectly solvent, * * * and, so believing in said representations, * * * the plaintiff was induced to permit the whole of said .note * * * to be considered in said settlement * * * in fixing the value of said bank stock. * * * ”

Appellee alleged the effort made and diligence used to collect the said note, enforced the said deeds of trust and chattel mortgages, and realized a small amount, leaving a balance due on said note of $2,387.06, and alleged:

“The said J. E. McQuatters claims and represents, and so believing therein, the plaintiff alleges the fact to be, that the said McQuatters is not and was not a surety, guarantor, and in-dorser for the full amount of said McWherter note, and never did sign his name as stated for the purpose of being surety, guarantor, and in-dorser, but that the said McQuatters was. a stockholder in said bank owing in common with Adams and Davenport, and had only become in-dorser of the McWherter note., and had only signed his name thereon as an indorser on said note to the proportion that his stock in said bank bore to all the balance of the stock, and the said McQuatters refused to pay the balance due on said note, and refuses and repudiates any liability except to the extent aforesaid.”

The petition alleges knowledge on the part of appellants of said facts, and that same were concealed from appellee in making the trade; that had he known the facts as-he alleges them to he he would not have considered the note in fixing the value of the bank stock. Plaintiff made McQuatters a party defendant to determine what the real amount he might be liable for, and asked for judgment against McQuatters for what amount McQuatters might owe on the note, judgment against Adams, and Davenport on the note for whatever balance on the note McQuatters was not liable for, and a judgment against Adams and Davenport for the aggregate sum of the other items as pleaded, alleging same to be $333.02.

Defendants answered by plea' of privilege to be sued in the county of their domicile, general demurrer and various and numerous special exceptions, pleas • to the jurisdiction and in abatement, general denial, and special answers which will be stated where it is necessary to do so.

The court overruled all exceptions, and, the ease having been tried without a jury, judgment was rendered in favor of appellee and against Davenport and Adams for $535, and that appellee take nothing as against McQuatters. The trial court made findings of fact and conclusions of law as follows:

“Findings of Fact.
“(1) I find that about the Sth day of May, 1913, the plaintiff and the defendants entered into a contract in writing wherein, among other things, the defendants were to sell and transfer to the plaintiff their bank stock in the Farmers’ & Merchants’ State Bank of Gustine, Tex., and which consisted of 141 shares of the par value of $100 per share, and that in the trade between said parties said stock was to be taken as a payment by the plaintiff at the sum of $20,000, provided that the books of said bank should show the stock to be of the book value of $19,000, and in the event the book value of said stock was not $19,000, then the defendants were to pay to the plaintiff in cash the difference between the ascertained book value of said stock and the sum of $19,000.
“(2) I find that by subsequent contract between, the parties that the investigation as to the book value of the stock, and the settlement of all of the matters pertaining to said contract, and that said (record here incomplete) contract should be closed up as of date on July 1, 1913.
“(3) I find.that the plaintiff on or about July 1, 1913, in all things complied with his part of said contract, and that at said time the capital stock of said bank consisted of 200 shares of the par value of $100 each.
“(4) I find that during the negotiations, at an investigation connected with said trade and prior to July 1, 1913, in the office of the Farmers’ & Merchants’ State Bank at Gustine, Tex., in Comanche county, Tex., that the plaintiff was shown the notes and books of said bank by the defendant E. K. Adams, acting for himself and Roy J. Davenport; and upon the information and data furnished to the plaintiff by said Adams it was agreed that the book value of said stock was a little less than $19,000, and that for such difference the defendants paid in cash to the plaintiff the amount of the difference between the book value of the stock and said $19,000, said settlement being made on the face of the representations of the defendants.
“(5) I find that at the time stated in the last finding of fact that in Comanche county, Tex., the said E.- K. Adams, acting for himself and Roy J. Davenport, fraudulently represented as a fact, and stated as a fact to the plaintiff that one J. E. McQuatters was an indorser on a certain note executed by J. T. and Maggie Mc-Wherter, dated February 15, 1913, for the sum of $2,619.67, with 10 per cent, interest after maturity and payable to. the Farmers’ & Merchants’ State Bank of Gustine, Tex., and at said time exhibited to plaintiff the said note, across the back of which was written the name ‘J. E. McQuatters,’ and that the plaintiff, knowing said McQuatters to be solvent, accepted said note at its face value, in arriving at the book value of said stock, and, but for said representation of said defendants that McQuatters was an indorser on said note, would have not accepted said note at its face value in arriving at the book value of said stock, and that in accepting the same the plaintiff relied on the representations of fact made by the said defendants.
“(6) I find that in fact J. E. McQuatters was. not an indorser on said note, and that neither “the Farmers’ & Merchants’ State Bank of Gus-tine” nor “J. T. or Maggie McWherter” ever requested the said J. E. McQuatters to indorse said note, and that he did not indorse said note at the request or for the benefit of either of the parties to said note, but, while his name appeared written on said note, that long after the execution of said note, and at the request of the defendants E. K. Adams and Roy J. Daven-pox’t, in connection with prior trade of bank stock in said bank between said McQuatters and Davenport & Adams, that the said McQuatters indorsed the same in order to guarantee said note to Davenport and Adams to the extent that his (McQuatters) stock bore to the entire stock of said bank, and that said transaction had between said parties was had before the plaintiff bought stock in said bank, and the only parties to such transaction were Davenport and Adams and J. E. McQuatters, and from said facts I find that as to said bank or as to said J. T. and Maggie MeWherter, and as to plaintiff, that J. E. McQuatters was not liable as an indorser on said MeWherter note.
“(7) I find that the extent of the liability of J. E. McQuatters by reason of said contract with Davenport and Adams was the sum of $1,200, and which I find has been paid by the said McQuatters, and that said MeWherter note is entitled to said credit of $1,200, and that said amount is the extent of the liability to any party by reason of the name of J. E. McQuatters being written across the back of said note.
“(8) I find that at the -time said representations were made by E. K. Adams to the plaintiff that McQuatters was not indorser on said note for the full amount, and that said indorsement made it good, that the same was false and known to said Adams to be false, and that the plaintiff acted thereon in a belief of the truth of said representation, and would have not acted otherwise, and that said representations were made in Comanche county, Tex.
“(9) I find that said McQuatters note was secured by a third lien on certain real estate and a second lien on certain stock, and that said real estate and stock were sold at trustee’s sale, and that there was due on account of prior liens on said real estate and stock as follows:
The W. T. Humble indebtedness $1,973.70
The' J. R. Eanes indebtedness 305.29
On account of the Gibbs note 224.00
On account of Taxes, advertising and feeding, ' 183.68
On account of attorney’s fees 250.00
On account of trustee’s fees 170.00
And all of which proper and legal charges against said security amount to the sum of $3,106.67.
“(10) I find that the sale of said real estate brought $3,400, and, after deducting said legal charges above shown of $3,106.67, leaves a balance of $293.33, which should be credited on the MeWherter note.
“(11) I find to date of sale of said property there was due on the MeWherter note $2,684.32, and that the same is entitled to the following credits:
Por sale of land ■ $ 293.33
Por sale of stock ' 607.00
By cash, paid by J. E. McQuatters 1,200.00
—making a total credit on said note $2,100.33, and which left a balance due on said note of $583,99. And I find that said note is uneolleeta-ble in said sum of $583.99.
“(12) I find that at the time the books of the bank were exhibited to the plaintiff for investigation, and that at the time the statement of July 1, 1913, was rendered to the plaintiff for final settlement, that the following charges, which were enforceable against the bank as a liability, did not appear on the books as a charge, and that all of said items were after-wards paid by said bank:
Salary for E. K. Adams $125.00
Salary for B. P. Game! 40.00
Gustine Gazette 6.25
The Tutwiler item 2.21
Phone expense 2.25
$175.71
—which were legitimate charges against said bank, and which should have • been shown by the defendants in said statement as liabilities of said bank, and which were not shown in said statement or on said books, and I find that said false entries, in which said items failed to be shown on the books, in said statement, and the representations concerning the same, were made and occurred in Comanche county, Tex.
“(13) I find on account of the balance due on the MeWherter note of $583.99 and on account of the liability shown in the last finding of fact of $175.71, and that the bo'ok value of said stock was misrepresented by the defendant to the plaintiff in the aggregate of said sums, to wit, $759.70, and had the true condition of said stock and the book value thereof been represented to the plaintiff, that the book value of said stock would have been worth $759.70 less than said sum of $19,000.
“(14) X find that, except as to the specific items set out and itemized above, there is no liability of the defendants to the plaintiff on, account of any of the other matters set up in the plaintiff’s petition; and I find that the balance due on the MeWherter note is insolvent and uncollectable, and no part of it, nor the amount of the liabilities of $175.71, has ever been paid to said bank or to the plaintiff by the defendants or any other person.
“Conclusions of Law.
“(1) I conclude as a matter of law that the acts of the defendant Adams constituted actionable fraud, and were committed in Comanche county, Tex., and that the venue is properly laid, and that this court has the right to try said cause, and I refuse to sustain the plea of privilege of defendants, and overrule the same.
“(2) I conclude as a matter of law that this court has jurisdiction of this cause, and refuse to dismiss the suit on this reason.
“(3) I conclude as a matter of law that the name of J. E. McQuatters written on the back of said MeWherter note was not an indorsement, but was only written under the private agreement between himself and Davenport and Adams, and was without consideration, and that he has discharged all of his liability by reason-thereof.
“(4) I conclude as a matter of law that the books of the bank, which were examined at the time of the investigation and the statement furnished to close up said transaction of July 1, 1913, not showing the various liabilities listed the findings of fact above, and they not being taken into consideration at the time, and having-been made and exhibited by the defendants in Comanche county, Tex., constituted actionable fraud, and the plaintiff is entitled to recover from the defendants said amount shown on account thereof in the findings of fact.
“(5) I find as a matter of law that the measure of damages in this ease is 141/2oo of the total amount which the value of the bank was decreased by reason of the actions and representations of the defendants Adams and Davenport, as is shown in the findings of fact above, and which decreased value aggregates $759.70.
“(6) I conclude as a matter of law that on account of all of the matters stated that the difference in the total debits and credits being the sum of $759.70, and the plaintiff owning at the time 141 shares of stock of said bank, and that the total number of shares in said bank being 200 shares, I conclude that the plaintiff is entitled to recover of and from the defendants E. K. Adams and Roy J. Davenport jointly and severally *4V2oo of the sum of $759.70, and which is $535, and I here now render judgment in favor of the said plaintiff, R. H. Kelly, and against the defendants E. K. Adams and Roy J. Davenport jointly and severally the sum of $535, with interest thereon from July 1, 1913, at 6 per cent, per annum and all costs in this behalf expended.
“(7) I conclude as a matter of law there is no liability of the defendant J. E. McQuatters to the plaintiff or any one else; and judgment is rendered that he go hence without day.”

Appellants’ first seven and the tenth assignments, in various ways have reference to the fourth paragraph of the appellee’s petition hereinabove set out, and the action of the Court having reference thereto. The first three assignments complain of the overruling of appellants’ special exceptions directed to said paragraph. The fourth and fifth claim, error in the court's fifth finding of fact on the issue tendered in said fourth paragraph. The sixth'assigns error to the court's sixth finding of fact under said-fourth paragraph in holding that appellants fraudulently represented to appellee as a fact that Mc-Quatters was an indorser for the full amount of the note. The -seventh assignment complains of the court’s seventh finding 'of fact, fixing McQuatters’ liability at $1,200. The tenth assignment asserts error in the court’s third conclusion of law. We think we need not discuss these several assignments separately and severally,- as they all tend to the one question of McQuatters’ liability as in-dorser on the note under the facts stated and the proof offered under the fourth paragraph of the petition.

At the time appellants and appellee perfected their trade, fixing the hook value of the bank stock, the McWherter note was not then due, and the name of J. E. McQuatters was written in blank across the back of the note. The name of McQuatters on the note was the inducement to appellee to consider the note as thus indorsed in fixing the value of the bank stock. When appellee refused to consider the note in fixing the value of the stock, it was alleged, and the court found, that appellants stated to appellee as a fact that McQuatters was an indorser on the Mc-Wherter note, and exhibited to appellee the said n'ote across the back of which was written the name, “J. E. McQuatters,” and appellee, knowing McQuatters to be solvent, accepted the note at its face value in fixing the value of the bank stock, relying upon the representation of appellants as to McQuat-ters’ indorsement thereon. Appellee in his pleading alleged that McQuatters, in fact, was not a surety and indorser of said note for the full amount thereof, and that he did not sign his name thereon for the purpose of ■being such surety, guarantor, and indorser, but signed said note as an indorser only to the proportion that his stock in the bank bore to all the balance of the stock.

The question is presented under the several assignments: Can parol evidence be heard to show that McQuatters made the qualified indorsement 'of the note under the facts alleged by appellee? The trial court held to the view that parol evidence could be heard to show the real facts, and, so holding, overruled appellants’ exceptions to the fourth paragraph of the petition, heard the evidence, found that McQuatters was not an indorser for the face value of the note, that he did not indorse the note at the request or for the benefit of either of the parties to the note, but that, after the note was executed and delivered in connection with a prior trade of bank stock in said bank between' Mc-Quatters, Adams, and Davenport, McQuatters indorsed the note in order to guarantee said note to Davenport and Adams to the extent that his stock bore to the entire stock in the bank, and that such indorsement was before the appellee bought stock in said bank, and that the only parties to the transaction in which he made the indorsement were himself (McQuatters) Adams and Davenport.

If parol proof could properly be heard in this suit to show the qualified indorsement of McQuatters, his name being written in blank across the back of the note without any qualifying words thereon, the court was not in error in the several matters pointed out in the several assignments.

McQuatters was not the payee of the note; nor, so far as the transaction in which the note was originally made, nor the transaction involved in this suit, did McQuatters receive any benefit by his indorsement of the note. His indorsement was not made at the time the note was executed and delivered by the McWherters, but afterward, .and in a separate transaction from the making of the note. McQuatters’ liability on the note to the bank at the time he indorsed the note and by reason of his indorsement would be the extent of his liability in fixing the book value of the bank stock.

We think that parol evidence was admissible to show the facts and contract between McQuatters and Adams and Davenport under which the indorsement was made.

The ground for admissibility of parol evidence is stated by Daniel on Negotiable Instruments, § 711 (6th Ed.), to be, that the position of the name upon the paper is one of ambiguity in itself, that it is not a complete c'ontract, as is the case of an indorsement by the payee, which imports a distinct and certain liability, but rather evidence of authority to write over it the contract that was entered into, and that parol evidence merely discloses and brings- to light the terms of the unwritten contract that was made between the parties. The rule stated, we think, is sustained by the courts of this state, and we need not review them here. Heidenheimer v. Blumenkron, 56 Tex. 312 and cases there cited. In Marshall Nat. Bank v. Smith et al., 33 Tex. Civ. App. 555, 77 S. W. 237, and in which a writ of error was denied by the Supreme Court, the Court of Civil Appeals for the Fifth District referred to and quoted with approval the early cas-e of Cook v. Southwick, 9 Tex. 615, 60 Am. Dec. 181, in which it was held that:

“ ‘When a person not the payee of a note signs Ms name -upon the back at the time of its inception, without any words to express the nature of his undertaking, he is liable as an original promisor or surety,’ and ‘it is competent for the person so signing to show by oral or other evidence the real obligation intended to be assumed at the time of signing.’ ”

The same principle is announced in Burke v. Cruger, 8 Tex. 66, 58 Am. Dec. 102; Latham v. Flour Mills, 68 Tex. 127, 3 S. W. 462; Hueske v. Broussard, 55 Tex. 201; Barton v. Bank, 8 Tex. Civ. App. 223, 29 S. W. 210.

We think the theory adopted by the trial court in hearing the parol evidence is strengthened, if need be, by the fact as found, that the indorsement made by McQuatters was made in, a transaction between McQuat-ters and Adams and Davenport wholly separate and distinct from the making and delivery of the note, and subsequent thereto, and in’ which the bank, the owner* and holder of the note, was not a party, and not made at the instance of any party to the' note.

Again, if, as alleged in the petition, the indorsement was intended to be partial only, and not as to the whole amount of the note, the indorsement was void. Daniel' on Negotiable Instruments, § 668 (6th Ed), states:

“A bill or note cannot be indorsed for part of the amount due the holder, as the law will not permit one cause of action to be cut up into several, and such indorsement is utterly void as such.”

And this view seems to be sustained by the authorities referred to in the note under the section. Chancellor Kent, 3 Com. p. 59, says:

“The bill cannot be indorsed for a part only of its contents, unless the residue has been extinguished.”

In Douglass v. Wilkeson, 6 Wend. (N. Y.) 640, a similar question was presented. In that case, the note was for $2,500, and the holder, the payee, indorsed the note to the plaintiffs for- $750, a part only of the contents of the note. The question was whether that was a transfer in the due and ordinary course of business. After a full and able discussion of the question by Chief Justice Savage, Judge Marey, and others composing the court, they say:

“When, therefore, the contract between the payee of a negotiable note and a third person is of such a character as to give the latter no rights against the maker, * . * * that contract is not an indorsement of the note within the custom of merchants.”

Prom these authorities, sustained by our own Supreme Court in Goldman v. Blum & Heidenheimer, 58 Tex. 630, it is our opinion that the court was not in error in the matters pointed out in the assignments, that parol proof was properly heard to show the real facts of McQuatters’ indorsement of the note, and that the indorsement, being partial only, was absolutely void.

The question of the reasonableness of the items of charges complained of in the eighth and ninth assignments was matter of fact to be found by the court, and his finding is supported by the evidence. The assignments are overruled. If we are correct in the views expressed under former assignments, the court was not in error in, rendering judgment for $535, as claimed in the eleventh assignment.

There was no error! in the court’s ninth finding of fact! as claimed in the twelfth assignment; the items found being matters of contract in the note and deed of trust.

The case is affirmed.

On Rehearing.

In their motion for a rehearing, appellants insist with much earnestness that this court is in error in sustaining the trial court’s ninth finding of fact as to the charge of $58.-30 for advertising the notice of sale under the three several deeds of trust. The item is included in the $183.68. Appellants’ insistence leads us to state the evidence and our view more specifically than in the original opinion. There is only one deed of trust shown in the record. It- is in the usual form, and provides, among other things, that in default of payment the trustee shall take possession of and sell the land after giving notice by posting three notices in three public places, etc. It does not provide for advertisement in a newspaper. If that was the only deed of trust considered by the trial court in allowing the charge for the newspaper advertisement, it is clear that the $58.30 charged for advertising the notice of sale would be error. But the trustee testified:

“I sold that land under a trustee’s sale. I was the trustee that sold it. I advertised it and put up notices as the trust deed provided. I sold the land as provided for. * * • I paid the printer $58.50. * * The next money we got was from the sale of the land. That was a deed of trust on an ordinary form we had on that land. I advertised it in the paper by instructions of my attorney. I think we followed the conditions as laid down in that deed of trust. I will say we did do that; the best of my knowledge we did do that. To the very best of my knowledge, I would say that we followed the conditions of that deed of trust in regard to advertising. If the deed of trust says that I should have advertised it by placing three notices in public places one of which should be at the courthouse door, I did not comply with the instructions in the deed of trust. * * * I only made one sale of that land; made that sale under the original deed of trust. I do not remember whether it was advertised under the second deed of trust or not. I don’t remember how the transaction, just how* it was done. Xes; it was sold under this deed of trust and the title passed to the bank.”

Witness recalled and testified:

“We advertised under the second deed of trust, but only sold under the first deed of trust; only sold one time. * * * The trial and trustee sale was under all three of the deeds of trust. I was under the impression there were just two, but there were three. While it was advertised under the three deeds of trust, yet when the sale came off I offered it for sale under the first deed of trust. My attorney gave notice that there were tyro other deeds of trust on the land. The trustee’s deed was made under the first deed of trust. The proceeds were credited to all three of them.”

The trial court allowed as a proper charge the $58.30 paid by the trustee for advertising the notices of sale in the newspaper. The evidence does not show how notice of sale was to be made under the two deeds of trust not shown in- the record, nor does the evidence show the amount severally charged and paid for the notices. The date of the deed of trust shown in the record is November 17, 1910. The dates of the other two deeds of trust are not shown in the record. The statute in force on the date of the execution of the deed of trust shown in the record provides:

“All sales of real estate made in this state under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated. Notice shall be given as now required in judicial sales.” Article 3759, R. S.

Article 3757, R. S., provides:

“The time and place of making sale of real estate under execution, order of sale, or vendi-tioni exponas, shall be advertised by the officer by having the notice thereof published in the English language once a week for three consecutive weeks * * * in some newspaper published in said county.”

It then states what the notice shall contain and the newspaper charges for the. publication. It is true that in making a sale under a deed of trust the trustee must abide by and comply with the terms of the deed, but we cannot presume that the deeds of trust not shown or stated in' the record provided that notices of sale should be given by posting in three public places., and especially is this true where the trial court, after hearing the evidence, allowed the account for publication of notice. The deed executed by the trustee recites that:

“Notices have been posted one of which has been at the courthouse door, and that a copy of. same has been delivered to each of the grantors, etc., and also by advertising same for three weeks in the Comanche Vanguard, a weekly newspaper published in Comanche county, Tex.”

We have concluded that, in the condition of the record, we were not in error in sustaining the finding of the trial court in allowing the charge for publishing the notice of the sale.

The motion is overruled.
      <gs»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    PATE v. WHITLEY.
    (No. 701.)
    (Court of Civil Appeals of Texas. El Paso.
    June 7, 1917.)
    1. Set-Off and Counterclaim <&wkey;29(2) — Action on Improvement Certificate — Cross-Action.
    Under Rev. St. 1911, arts. 1325, 1330, as to counterclaims, in action by contractor on improvement certificate, a cross-action for damages to defendant’s property in the course of plaintiff’s work was proper; it being a counterclaim directly incident to the improvement out of which plaintiff’s cause of action arose, and the plaintiff, not the city, being the real party in interest.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. § 50.]
    2. Evidence &wkey;>31 — Judicial Notice.
    Under Acts 33d Leg. e. 147, § 3, as to judicial notice of recorded city charter, due recording of the charter is prerequisite to taking of such judicial notice.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 40, 41.]
    3.Evidence '«&wkey;31 — Judicial Notice.
    Notwithstanding such statute, it is at least highly advisable that a copy of a city charter be offered in evidence in any case involving consideration thereof, since such charters may contain different provisions.
    [Ed. Note. — For other cases, see' Evidence, Cent. Dig. §§ 40, 41.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Action by Frank Whitley, against R. L. Pate. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    W. H. Penix, of Mineral Wells, for appellant. Ritchie , & Cousins, of Mineral Wells, for appellee.
   HIGGINS, J.

Whitley brought this suit against Pate upon an improvement certificate issued by the mayor of the city of Mineral Wells to recover the sum of $70.58, with interest and attorney’s fees and to foreclose an improvement lien declared by the board of commissioners of said city against a lot owned by Pate, abutting on Pecan street in said city. The certificate purports to evidence a special assessment for paving Pecan street by Whitley under a contract with ■the city, which assessment was declared a lien against said property and a personal charge and liability against Pate, due and payable to Whitley or his assigns for Pate’s proportionate share of the cost of the paving. A further statement of its contents is not necessary to the conclusion reached herein.

A general denial was filed by Pate and special pleas not necessary to mention. He also filed a cross-action setting up that, while plaintiff was placing paving along his property and other property, he piled many barrels of asphalt on and along defendant’s property, and smeared his fence with asphalt and permitted same to run in his yard, and took possession of his premises and used same for a period of two months, preventing defendant from renting the premises, to his damage in the sum of $50, the reasonable rental value, and that plaintiff damaged his fence in the additional sum of $15 and damaged the premises in the additional sum of $500, by permitting asphalt to run on the same and become smeared on the fence and house, and that the defendant had damaged the closets upon the premises in the further sum of $10.

An exception to the cross-action was sustained, and the same was dismissed. Judgment was thereupon rendered in Whitley’s favor as prayed for. The ground of the sustained exception was:

“That same constitute no defense to his cause of action herein, for that they cannot be set up and pleaded in defense to a suit on a paving assessment; but, if the allegations therein contained are true and give rise to any liability on the part of plaintiff, they cannot be tried in this proceeding.”

The first error assigned relates to the action of the court with respect to the cross-action amd is well taken. The suit was to. enforce a personal liability against Pate in Whitley’s favor, arising out - of the paving of the street upon which Pate’s property abutted. The defendant’s cross-action was a counterclaim arising in a tort committed by Whitley which was directly incident to and connected with the paving out of which Whitley’s asserted cause of action arose. This being the, case, Pate had the right to plead his counterclaim in bar of Whitley’s suit. Articles 1325 and 1330, R. S. In reply to this assignment, appellee submits this counter proposition:

“A defendant in a suit based on an assessment for special improvement made by a municipality cannot set up a cross-action against the plaintiff, who was the contractor, and seek to x’ecover damages for injury alleged to have been done to the property by the plaintiff during the construction of the improvement, for the reason that in such suits the municipality is the real party at interest, and the action brought for it, it being an action to recover money due to the municipality in the nature of a tax, and the contractor is only its collecting agent.”

This counter proposition may be disposed of by the observation that Whitley was the real party at interest, and he was bringing the action for himself, and not for the municipality. That is plainly the nature of the suit, and the certificate expressly undertakes to evidence a special assessment of a “personal charge and liability against said owner due and payable to said Frank Whitley or his assigns.” A basic premise of the counter proposition is false.

In order to pass upon the questions presented by the remaining assignments, we must be advised of the terms and provisions of the charter of the city of Mineral Wells and the law under which it is incorporated. The statement of facts consists simply of the certificate upon which the suit is based and the testimony of Paul Whitley, plaintiff’s son and witness who testified:

“I assist my father in his business. I look after the collections, etc. I know the defendant in this case. I have presented him a bill for this certificate just offered in evidence here, several times. He has never' paid any of it. I have employed the firm of Ritchie & Cousins to bring suit for me, and I have agreed to pay them an attorney’s fee in the sum of $25. I think that a reasonable fee for their services.”

Cross-examined by Mr. Penix, witness answered, “I am not an attorney.”

The case was tried before the court, but no findings of fact were filed.

The petition alleges:

“That the city of Mineral Wells is a municipal corporation, duly incorporated and acting under and by virtue of a charter adopted by its citizens on the 19th day of August, 1913, pursuant to chapter 147, p. 306, Acts of the Thirty-Third Legislature of the State of Texas.”

This is to be taken as true, in the absence of a sworn denial thereof by the defendant. Article 1822, R. S. But, if we can assume that it was incorporated under that law, that would not be sufficient to apprise the court of the terms and provisions of the charter with reference to street paving as it was frained and adopted.

Section 3 of said act of the Thirty-Third Legislature provides that, upon the adoption of any charter thereunder, it shall he the duty of the mayor or chief executive officer, as soon as practicable after the adoption of such charter, to certify to the Secretary of State an authenticated copy, showing the approval by the qualified voters of any such charter, and that the Secretary of State shall thereupon file and record same in a book to be kept in his office for such purpose. That it shall be the duty of the city secretary of any such city, or other officer exercising like or similar powers, upon the adoption and approval of any such charter by the qualified voters, to record at length upon the records of the city, in a separate book to be kept in his office for such purpose, any such charter.

Said section' 3 then further provides that:

“When said charter * * * shall be recorded as hereinabove provided for, it shall be deemed a public act and all courts shall take judicial notice of same, and no proofs shall be required of same.”

As we construe this section, it means that the courts shall take judicial notice of the charter when it has been recorded as stated, and that no proof is necessary of the terms and provisions of the charter. We do not construe the statute as imposing judicial notice of the fact that the charter has been certified to the .Secretary of State and that it has been by that officer filed and recorded and also recorded by the city secretary or other officer of the city exercising the powers of the city secretary. The Legislature surely did not intend that courts shall be charged with notice of facts of which they could not have knowledge without some evidence. We think it is a prerequisite to the taking of the judicial notice imposed by the act that the charter shall have been certified to the Secretary of State and shall have been recorded by that officer and shall also have been recorded by the city secretary or other officer exercising like or similar powers, and that there must be some evidence of the fact that the charter has been so certified and recorded. There is no evidence in this record that the charter of Mineral Wells has been certified to the Secretary of State and by that officer recorded, nor is there any evidence that such charter has been recorded by the secretary of the city of Mineral Wells or other officer thereof exercising like or similar powers. So this court has no knowledge, actual or constructive, of the terms and provisions of the charter of Mineral Wells. It would be mere speculation for this court to assume what the terms and provisions of the charter were with respect to street paving. Section 4 of the act mentioned provides:

“That by the provisions of this act it is contemplated to bestow upon any city adopting the charter or amendment hereunder the full power of local self-government, and among the other powers that may be exercised by any such city, the following are hereby enumerated for greater certainty: * * * To have exclusive dominion, control and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city and to provide for the improvement of any public streets, alleys, highways, avenues or boulevards by paving, raising grading, filling, or otherwise improving the samo and to charge the cost of making such improvements against the abutting property, by fixing a lien against the same, and a personal charge against the owner thereof according to an assessment specially levied therefor in an amount not to exceed the special benefit any such property received in enhanced value by reason of making any such improvement and to provide for the issuance of assignable certificates covering the payments for said cost, provided that the charter shall apportion the cost to be paid by the property owners and the amount to be paid by the city. * * * That the power herein granted for making street improvements and assessing the cost by special assessment in the manner herein stated shall not he construed to prevent any city from adopting any other method or plan for the improvement of its streets, sidewalks, alleys, curbs or boulevards, as it may deem advisable! by its charter.” (Italics ours.)

Erom the above quotation, it is apparent that the city of Mineral Wells may have adopted a charter which would have authorized it to pave Pecan, street and to charge the cost of same against abutting property by fixing a lien against the same and a personal charge against the owner thereof, or, under the italicized portion of the quotation, the charter may have provided some other method or plan for such paving. The assignments question the validity of the certificate upon which the suit is brought, and, without any knowledge of the terms and provisions of the charter under which the certificate was issued, this court cannot determine such questions. We are therefore unable to pass upon the questions presented by the other assignments.

In this connection, it is not improper to .suggest that although the Legislature has seen fit, as indicated above, to provide that, when certain acts have been performed, the courts shall take judicial notice of the charter, yet, as a matter of fact, no court could know the various terms and provisions of such charter unless it had a copy thereof before it, and, notwithstanding the provision with reference to the judicial notice imposed upon courts, it seems imperative, or, at least, highly advisable, that a copy of any such charter be offered in evidence in any ease which involves a consideration of its various terms and provisions. It is true that under the provisions of the act, all cities incorporated thereunder have certain powers common to all; but it does not follow that all charters adopted under the provisions of said act are the same in all particulars. As is clearly shown by the above quotation, the charters may provide different methods or plans for paving streets.

For the error in. sustaining the exceptions to the defendant’s cross-action and dismissing the same, the case is reversed and remanded.
      <S=iFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    HODGE v. CITY OF FT. WORTH.
    (No. 8589.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 14, 1917.
    Rehearing Denied June 9, 1917.)
    1. Contracts &wkey;ol47(l) — Evidence &wkey;>448— Parol Evidence — Construction of Contract.
    The primary rule in the construction of contracts is that the intention of the parties is to be sought and carried out whenever possible, and where the contract is in writing and the language is unambiguous, such intention must be ascertained from the language of the contract as written; but where language is ambiguous, explanation of such ambiguities is permitted by parol testimony.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 730; Evidence, Cent. Dig. §§ 208ft-2082, 2084.]
    2. Evidence <&wkey;450(7) — Parol Evidence — Ambiguities.
    A contract calling for clearing a basin to the height of 608 feet above sea level, containing approximately 1,250 acres, is ambiguous, where in fact the line stated includes an excess of 2,-900 acres. .
    3. Contracts &wkey;>350(l) — Construction—Evidence— Sufficiency.
    Evidence held to show that a contract providing for clearing a basin for a reservoir was made upon the basis of acreage, and not the flow line, so that the contractor could not recover for acreage cleared in excess of that named.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1819, 1822, 1823.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by C. T. Hodge against the City of Ft. Worth. Judgment for plaintiff in part only, and he appeals.
    Affirmed.
    Thompson & Barwise and J. C. Terrell, all of Ft. Worth, for appellant. T. A. Altman ánd B. L. Agerton, both of Ft. Worth, for appellee.
   BUCK, J.

Suit .was instituted by C. T. Hodge against the city of Ft. Worth to recover the balance alleged to be due for work and labor performed under a contract with said city in the clearing of what is known as the reservoir site up to the 608-foot line above the sea level, and to recover damages from the city for the alleged failure to permit him to clear the remainder of said reservoir site embraced within said measurements.

The cause was tried before the court without the intervention of a jury, and judgment rendered for plaintiff as follows: (1) In the sum of $1,729.61, the amount found to be due on estimates and retained by said city; (2)' the sum of $554.01, the amount found to be due for clearing other land; (3) the amount of $250 found to be due for 5,000 fence posts sold and delivered to tlie city by plaintiff; and (4) the balance found to be due for work in clearing the river channel, in the sum of $161.75, making a total of $2,695.37. A credit thereon of $100 was allowed the city, because by reason of the city’s failure to furnish the material to build a fence which appellant had contracted to build, the appellant was not required to spend for labor in erecting said fence the amount named. Interest was allowed on $2,595.37, from October 12, 1912, amounting at the time of the suit, to wit, April 25, 1916, to $3,145.98: The plaintiff has appealed.

The controversy arises by reason of the wording of the contract between plaintiff and defendant, plaintiff contending that the contract was intended to cover and did cover the work of clearing the entire reservoir site, including all the lands both below and above the nine-mile -bridge inundated by reason of the construction of the dam, up to the 608 flow line. The contention of the city is that it should not be held liable for the clearing of more than approximately 1,250 acres, which both parties agreed and so stated in the contract, constituted the acreage contemplated by the contract, and that in no event could it be held liable for the profits claimed by plaintiff in the way o'f damages on the land above the nine-mile bridge, and which lands the plaintiff was not permitted by the city to clear. On July 24, 1911, the city advertised for bids “for clearing the West Fork reservoir site of trees, undergrowth, etc., according to specifications on file in the board of engineers’ office.” These specifications provided:

“The work to- be done consists of clearing the West Fork reservoir site up to the flow line, as staked out at elevation of 608, of all trees, logs, stumps, brush and other undergrowth, to •the approval and satisfaction of the board of engineers.”

By a proposition in writing dated August 15, 1911, appellant offered to clear the land, in accordance with the specifications with the board of engineers on file, for $19.25 per acre. This bid was recommended for acceptance by the board of engineers on August 22,1911, said recommendation stating:

“It being further understood that O. T. Hodge understands that all of the land is not now purchased, and that the work shall progress under the direction of the board of engineers on such lands as are acquired and as may be acquired from time to time.”

This report was adopted, by the commissioners of the city, and the contract awarded to said Hodge. The contract between the city of Ft. Worth, styled party of the first part, and O. T. Hodge, styled party of the second part, dated September 21, 1911, provided, in part, as follows:

“First. Party of the second part agrees to clear the West Fork reservoir site, belonging to the party of the first part, or hereinafter to be acquired consisting of approximately 1,250 acres up to the flow line as staked out at an elevation of 607 feet [it is agreed that this number should be 608, and will be hereinafter so treated], of all trees, logs, on ground, but not in river channel, brush and other undergrowth (permanent improvements, houses, barns, outhouses, etc., excepted) to the approval and satisfaction of the board of engineers of the party of the first part. * * *
“Sixth. Party of the second part is to furnish bond in the sum of $5,000, conditioned upon the faithful performance of this contract and upon the payment by him to the full satisfaction of all claims for damage of every character whatsoever arising from or connected directly or indirectly with any work done by him or his agents or-employes under the provisions of this contract.
“Seventh. Party of the second part is to begin work clearing said reservoir site within ten days from date of acquiring all said land to be cleared, and all said work is to be completed within eleven months (or September 1, 1912) from said date and all timber and wood of every character belonging to the party of the second part shall be removed by him from said reservoir site above elevation 607 within said period. Extraordinary weather or conditions beyond control of party of second part shall extend the time of completion of this contract and the removal of said timber and wood to the extent of the time that such weather or conditions continue. * * *
“Ninth. Party of first part is to acquire by purchase or condemnation the land to be cleared as expeditiously as possible and consistent, in order that progress of the work may not be delayed.”

Plaintiff filed, his bond, dated September 22, 1911, with the Commonwealth Bonding & Casualty Insurance Company as surety, said bond ¡providing, in part, as follows:

“The condition of the above obligation is such that the said principal herein has entered into a certain contract with the said city of Ft. Worth, bearing date of September 21, 1911, for the performance of certain work in clearing off the West Fork reservoir site.
“Now, if the said principal herein shall faithfully do and perform all the obligations imposed on him in said contract, and shall save the said city harmless from any damage or injuries arising from, or connected directly or indirectly with, any work done by him or his agents or em-ployés under the provisions of said contract, then this obligation shall be null and void; otherwise to remain in full force and effect.”

The court in his findings of fact found that before the signing of any contract for the doing of said work, the timbered area within the lines of the reservoir as then proposed was estimated under the direction of' the board of engineers, and that said estimate showed said timbered area to consist of approximately 1,250 acres; that at the time sai’d contract was made and said work begun there were no stakes indicating where the 608 line extended, but the line of 615 feet elevation was staked' on the ground at said time and showed said 615 line to extend no further than the nine-mile bridge, and no lines had been marked north of said bridge; that said O. T. Hodge cleare'd 1,411 acres of land upon the reservoir site, and within the 608 line, which were accepted and paid for by the city of Ft. Worth, and that said Hodge cleared an additional amount of 590 acres, and that said work of clearing said 599 acres was accepted by the board of engineers. of the city, an'd that proper estimates. were given said Hodge for same; that said Hodge further cleared 28.78 acres of land for which he was entitled to payment in the sum of $553.01, and that said work was duly accepted hy the city of Ft. Worth; that a controversy having arisen between the parties to the contract as to whether or not said contract was applicable to the work of clearing the- river channel within the reservoir site, a separate contract was made, by the terms of which Hodge was to be paid fdr the clearing of the river channel and the removal of growing timber therein, for which he was entitled to $161.75. The court further found that it was within the contemplation of the parties to the contract that un'der same approximately 1,250 acres of land should be cleared, and that all the lands for the clearing of which Hodge was entitled to recover under his contract, and for which he was employed to clear, lay south of what is known as the nine-mile bridge; that on June 23, 1013, the city notified the plaintiff not to clear any additional land until instructed so to do, and that thereafter the city did not instruct the plaintiff to clear any additional land; that it was not within the contemplation of the parties to the contract that said plaintiff should clear any portion of the reservoir site flooded by water lying north of said nine-mile bridge; that there lay north of said bridge 932 acres of timber within the 608 flow line; that on 725.5 acres of this there would have been a profit of $7.50 per acre; that upon 32 acres cleared, known as the Murphy tract, there would have been a profit of $9.25 per acre, being the difference between what it cost to clear the same and the contract price as stipulated in the contract with Hodge; that upon 10.8 acres of land cleared there would have been a profit of $6.75 per acre, amounting to $72.-90; that on 44.9 acres of land cleared the cost of clearing same was $13 per acre, and a profit of $280.62 would have been realized under plaintiff’s contract; that 20 acres of land was cleared by the city at a cost of $10 per acre, and that the profit to Hodge on same would have been $185. Other parties cleared various tracts of land north of the nine-mile bridge, under separate contracts with the city, on which the court found that Hodge would have made a profit, if he had been permitted to clear the same. The court found that plaintiff was not entitled to recover for various tracts of land cleared by other parties under contracts with the city, lying north of the nine-mile bridge; that Hodge was ready, able, and willing to clear said land, but was not permitted to clear- the same by the city.

Appellant has presented in his brief six assignments of error; the first directed to the failure of the court to render judgment for him for the profit on 727.5 acres lying north of the nine-mile bridge and included in the 608 line at $7.51 per acre; the second, to the refusal of the court to render judgment for plaintiff for $19.25v per acre upon 20 acres of land, known as the Cook tract, lying south of the nine-mile bridge, because, as asserted, appellant had already contracted with other parties to clear said land according to his contract with the 'city free of cost to him, that is, for the wood growing thereon; third, to the refusal'of the court to award judgment for plaintiff for profits claimed in clearing five acres, known as the Camp site, near the dam; fourth, to the findings of fact Nos. 18 and 19, in which the court found that it was in the contemplation of the parties to the contract that approximately 1,250 acres of land should be cleared, and that all of the land which Hodge was employed to clear lay south of the nine-mile bridge. The fifth assignment is directed to the finding of the court that it was in the contemplation of the parties to the contract that the overflow line did not extend beyond said nine-mile bridge, and that said contract was only intended to embrace the woodland south of said bridge. The sixth assignment is directed to the finding of fact by the court in the seventh paragraph of his findings, which was that before the signing of any contract the timbered area within the lines of the reservoir as then proposed was estimated by the board of engineers and by the parties to the contract to consist of approximately 1,250 acres.

But we think all of these assignments present but one question, and that the question of their sufficiency depends upon whether the court correctly held that it was within the contemplation of the parties to the contract that the land to be cleared consisted of approximately 1,250 acres. It is elementary that the primary rule in the construction of contracts is that the intention of the parties is to be sought and carried out whenever possible; that where the contract is in writing and the language is unambiguous, such intention must be ascertained from the language of the contract, as written; that where language is ambiguous, explanation of such ambiguities is permitted by parol testimony.

It appearing that the acreage of the land to be cleared which lay south of the nine-mile bridge and lying within the flooded area and within the 608 flow line exceeded 2,000 acres, and that that portion lying north of the nine-mile bridge, within the description mentioned, amounted to some 932 acres, we think the court correctly held that the contract as written was subject to explanation for ambiguity. As evidence supporting the court’s conclusion that in placing in the contract the estimate of the land to be cleared at approximately 1,250 acres, it was in the contemplation of the parties that the agreement was upon the basis of acreage rather than upon the basis of the total inundation and up to the 608 flow line, the record discloses that a map of the proposed reservoir site was made under tiie supervision of the board of engineers on June 19, 1911, which showed the reservoir site to extend only to the nine-mile bridge. J. D. Trammell, chairman of the board of engineers, testified that at the time of the execution of the contract between the city and Hodge — •

“we had staked out the contour line at the elevation of 615 feet the entire distance around the reservoir and as far up as the nine-mile bridge —the old nine-mile bridge. At that time no surveys had been made of the contour lines run in connection with this reservoir above the nine-mile bridge. We had made some surveys for another reservoir above the ten-mile bridge and around the ten-mile bridge, but it was some five or six miles up the stream from the nine-mile bridge. That was in connection with other reservoir sites or dam sites, you will understand, and not in connection with this one that was afterwards actually built. No such surveys or contour lines had been run concerning the site mentioned in this contract. Prior to September 21, 1911, two engineers had been sent out in connection with the timbered area within the reservoir site as then staked out. * * * After the map of the reservoir site had been made which they were sent out to make, they were then sent out to make an estimate of the number of acres of land in the flooded area up to the nine-mile bridge, and at the time of the execution of this Hodge contract on September 21, 1911, there had been made an estimate of the number of acres of timbered land within the flooded area up to the nine-mile bridge, and that estimate was 1,250 acres. * * . * The information I had as to the timbered area was not derived entirely from information given me by Adams and Orlop [the engineers who made the survey above mentioned]. I had been over and about the reservoir site, and I had some knowledge relative to the amount of land cleai’ed and not cleared just from riding over and about it. My information derived in that way was not accurate at all, and I considered the information I got from these engineers as to the actual acreage of the timbered land more accurate than my own estimate would have been which was just an approximation from my observation. * * * As I say, the amount of timbered area as shown by the work of these engineers within the flooded lines was 1,250 acres up to the nine-mile bridge, and that was very close to the approximation which I had in my mind. I had been looking "over the situation and I considered that more than half of the land had been already cleared and was in cultivation. These measurements on this map which the city has introduced in evidence were obtained before the contract with Mr. Hodge was made,, and the board of engineers had' the information contained in this map at the time they entered into the contract with Mr. Hodge. The acreage of 1,250 acres was based on the contour line of 609 feet, and the area of the 608 feet contour line would be slightly smaller than the 609 contour line; the 609 contour line would go a little higher up the hillside. This map was made under the supervision of the board of engineers, and it i? dated, June 19, 1911. * * * My recollection is that we furnished Mr. Hodge with a copy or copies of this map about the time the contract with him was executed. I am pretty sure we furnished him copies of this map. We did not furnish him'with any map showing the lands to be cleared above the nine-mile bridge; as a matter of fact, we had no map of the lands above the nine-mile .bridge.”

As indicating that-Hodge understood the contract- to contemplate ■ the clearing of approximately 1,250 acres, on July 29, 1912, he wrote the board of engineers as follows:

'“On July 20th, I finished cutting all the timber in the water lines of the reservoir on land owned by the city and discharged my Mexican cutting gangs. There are other timber lands to be cut in the water lines, but the city has not acquired title to same. Please issue me a written release as to any responsibility for clearing the unpurchased land. When your measurements are completed they will show that I have done over 50 per cent, more clearing than the contract originally called for. Please issue to me a written extension of time proportionate to the excess, and the original time I had. I am needing the money I have tied up in the river channel, and wish you would arrange so I can get same.”

And on November 27, 1912, lie wrote said board of engineers the following letter:

“The bonding company who made my bond for $5,000 on clearing the reservoir claim this bond was made on the time' limit of the contract and based on approximately 1,250 acres, and they are after me for a release, and request that I ask you gentlemen to write them a release. Within the year the bond had to run, I had downed over 2,000 acres and cleared according to contract 1,491.60 acres. There has been since September 22d a good deal more land cleared up, and the entire tract is practically completed with the exception of the Cetti bottom. Kindly give this your attention.”

On December 20, 1912, he wrote to said board of engineers a letter, which reads, In part, as follows:

“In regard to releasing bond: I obligated myself to clear approximately 1,250 acres and within lines 607, and do the work of building 15 miles of fencing; this work to be completed within a given time. I recognized the obligation imposed, and have more than complied with the same, on -which bond was based, with the exception of the building of the fence.”

While there are expressions in the last-mentioned letter which could reasonably he construed as the assertion of the right under the contract to clear and receive pay for all wooded lands flooded by the water of the lake, yet the fact that the appellant was insisting on his right to be relieved of the obligation- of the bond, which bond certainly was intended by both parties to insure the completion of the entire contract, strongly tends to show that the appellant himself in making the contract understood that said contract contemplated the clearing of approximately the 1,250 acres. Appellant further testified that the reason and occasion for putting in,the contract the recital that the land to be clearly consisted “of approximately 1,250 acres up to the flow line as staked out,” etc., was that the bonding company objected to making the bond, unless some limitation oh the land to be cleared was made and contained in the contract that said contract might contemplate the clearing of land up- to Jacksboro (of which we are- perhaps justified in taking judicial cognizance, is situated some 70 miles further upstream), and that he asked Mr. Trammell of the board of engineers how much land would be included, and Trammell told him that he thought approximately 1,250 acres, and it was so stated in the contract. Mr. Trammell testified further hi regard to these three letters mentioned:

“I recall having received letters from Mr. Hodge dated July 29, 1912, November 27, 1912, and December 30, 1912, and addressed to the board of engineers. At the time we received those letters Mr. Hodge had cut and downed very nearly all the timber below the nine-mile bridge. This estimate showing 599 acres was given a long time after the receipt of these letters there was approximately 600 acres that had been cut down, but the timber had not been cut up or removed; the balance of the land had been very well cleared. As to the land within the area of the 600 acres just referred to, they had just gone in there and taken axes and cut the trees down and just let them lay there; that is all there was to that. That is the condition that was existing there at the time Mr. Hodge was asking the release from his bond.”

We ‘have carefully examined the cases of Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622, Wolff v. Wells Fargo & Co., 115 Fed. 32, 52 C. C. A. 626, Inman Bros. v. Dudley, 146 Fed. 449, 76 C. C. A. 659, Marx v. American Malting Co., 169 Fed. 582, 95 C. C. A. 80, Loeb v. Winnsboro Cotton Co., 93 S. W. 515, and Lumber Co. v. Ogilvie, 113 Wis. 482, 89 N. W. 483, cited by appellant in support of his contention that the recital in the contract of the approximate acreage to be cleared would not be of controlling effect when, in connection with said estimate or approximation of the acreage, the contract recited that the party of the second part (Hodge) agreed “to clear the West Fork reservoir site.” Such a construction as claimed by appellant would be justified if the facts aliunde the contract disclosed that the inclusion of the larger term, i. e., “the West Fork reservoir site,” was not intended to be limited by the expression “consisting of approximately 1,250 acres,” etc. But since the testimony of the city’s agent, the chairman of the board of engineers, and the letters of appellant himself aforementioned, very strongly support the trial court’s conclusion that the latter expression was intended to control rather than the former, we are of the opinion that the judgment below should not be disturbed. In addition to the fact that at the time the contract was made no lines had been staked out above the nine-mile bridge, and the map of the reservoir site contained no area of lines above said bridge, and since the evidence sustains the conclusion of the court that this map was shown the appellant before the contract was ma.de, it may reasonably be concluded that the parties made the contract in view of the estimate made by the engineer as to the probable acreage of the submerged lands, and that, in any event, neither party understood that the contract contemplated, the clearing! of lands above the bridge. In fact there is some evidence to show that the engineers did not anticipate that lands above the bridge would be submerged, and outside of the fact that one tract of land north of the bridge, the Durin-ger tract, had been purchased by the city before the'making of the contract in question, there is no evidence to which we have had our' attention called that the city was making any effort or provision for the purchase or condemnation of lands lying north of the bridge. It is true that the appellant denied that he ever was shown or saw the map mentioned, but this is a conflict of testimony which the trial court had the right to determine.

All things considered, we are of the opinion that we would not be justified in disturbing the judgment as rendered by the trial court. All assignments of error are overruled, and the judgment affirmed. '
      <S=x>For otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    SOUTHERN SURETY CO. et al. v. SEAGRAVES et al.
    (No. 7392.)
    (Court of Civil Appeals of Texas. Galveston.
    June 7, 1917.)
    1. Indemnity <&wkey;9(l) — Valuation.
    In an action against a surety company on an indemnity bond required to be given by the charter of a moto-rb&at, the lessor is not bound by a valuation of $5,000 inserted in the charter when it was thought that no marine insurance could be procured and that lessee would furnish only an indemnity bond for $5,000 covering the loss of the boat, and also the other loss and damage provided against in the contract, when it is apparent that it was not intended as and is not its real'value, and such figure was inserted to protect the owner in the event of loss to the full extent of the required bqnd.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 16.]
    2. Indemnity <&wkey;9(l) — Construction oe Bond.
    Where a lease of a motorboat provides that the-charterer should furnish a marine insurance policy in the sum of $5,000 and a surety bond in the sum of $1,000 to cover loss not fully covered by the policy, and such surety bond obligates the company to indemnify owners against loss or damage to boat to extent of $1,000, and it is proven that the boat is worth more than $6,000, the insured is entitled to recover on the bond, though no loss other than the value of the boat was sustained, 'since such loss was not fully covered by the policy, and loss other than the value of the boat was not covered by the policy at all.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 16.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by O'. R. Seagraves and another against the Southern Surety Company and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    W. B. Lockhart and Stewarts, all of Galveston, for appellants. Marsene Johnson, Elmo-Johnson, Roy Johnson, and Marsene Johnson,. Jr., all of Galveston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellees, O. R. Seagraves and W. C. Beers, against appellants, Southern Surety Company and T. J. Anderson, to recover upon a bond of indemnity and insurance executed by tlie appellants and payable to appel-lees.

The bond sued on was given to indemnify and insure appellees, who were at the time the bond was executed engaged in business under the firm name and style of Pearce Forwarding Company, against loss or damage to the motor freight boat Mary Me, which ap-pellees had contracted to lease to the appellant T. J. Anderson, and bound and obligated appellants to pay to appellees the sum of $1,000, conditioned:

“That if the above-bounden T. X Anderson,, which (who) has entered into the foregoing and attached lease, rental, and charter contract with the said Pearce Forwarding Company as owner for the lease and charter of the motor freighter Mary Me shall well and truly pay the said Pearce Forwarding Company all and singular the amounts, payments, and obligations, and fully discharge all of the debts, liens, and liabilities and charges of whatsoever nature in said contract mentioned and provided for within the time and in the manner in said attached contract specified and provided for, and shall return and deliver the said motor freighter Mary Me and all of her fixtures, appurtenances, and appliances to the said Pearce Forwarding Company, their heirs and assigns or legal representa-fives, in a like condition as when received by it, the said principal, under said contract, usual wear and tear only excepted, within the time and in the manner therein stipulated, and shall further well and truly, keep and perform, or cause to be kept and performed, all and singular its said premises, covenants, agreements, stipulations, and obligations, as ‘charterer’ in said contract made and provided for, and shall pay off and discharge any and all liens, claims, damages, demands, or charges, including reasonable attorney’s fees, that may be bx-'ought against the said boat Or vessel, or the owner thereof based upon any actions of omission or commission during the life of this lease, or any extension thereof, then and in that event this obligation shall terminate and be of no further force and effect, but not otherwise.”

The charter or contract for the lease of the boat referred to in the bond was executed on November 10, 1914. The provisions of said contract which are material to the questions presented by this appeal are the third, fourth, and last paragraphs, said last paragraph having been executed after the original agreement, but being attached thereto and made a part thereof, as follows:

“Third. It is expressly agreed and stipulated hereby that said charterer assumes all marine risks, damages, casualties, charges, or liabilities against, for, or on account of said twin screw freighter Mary Me during the full period of this rental contract, or any extension thereof, and shall provide and pay for all provisions, wages, consular, shipping, and discharging fees, and all wages of captain, officers, and crew or claims by any of such, and for any insurance on said vessel and for all stores, provisions, outfitting, and maintenance of said boat, and for all port charges, pilotages, agencies, commissions, consular charges, and for any and all other charges, damages, liabilities, or claims of, against, or on account of the said boat during the entire time that it handles or controls the same, and of whatever kind and character, and whether under the laws of the state of Texas, or of the United States, or of any. foreign country, and the said charterer further obligates itself to comply with all of the laws, rules, and regulations provided for under the laws of the United States of America relating to navigation of boats of this character and procuring at his own cost, expense, and risk all proper papers that may be required, and that it will use said boat for no other than lawful purposes, and shall pay any and all penalties, -assessments, or damages of whatsoever kind or character that may be assessed against said boat or vessel during the pei-iod of this charter or any extension thereof, whether assessed by the government of the United States or any agency thereof, or any foreign government or agency thereof, and shall hold the owner free and harmless from any and all claims, demands, suits at law, or action of any kind or character whatsoever, whether by any government or agency thereof, or by any corporation, person, association of persons, firm, or individual.
“Fourth. It is further agreed that the said twin screw motor freighter Mary Me shall not be removed from present location, Pier IS, city of Galveston, Galveston county, Tex., until said charterer has furnished good and acceptable bond in some surety company, or by other sureties accepted by said owner, in the amount of five thousand dollars ($5,000.00) conditional upon the full and faithful performance of this contract and every portion thereof as herein set out, and upon the covenants of said bond as therein contained, and said bond, up to the full face thereof, shall be liable under the terms of this contract not only for the stated value of said boat in the sum of five thousand dollars ($5,000.00), less charter fees as hereinabove stated, but for any and all other damages that may accrue to the owner thereof or for which it may become liable up to the full face and amount of said bond, which shall not be exhausted by any one suit or demand thereon or thereunder, but may be sued on as often as said owner may deem necessary under the terms of this contract and of the bond itself, until the full amount of five thousand dollars ($5,000.00) therein provided for shall have been exhausted.
“It is further agreed between Pearce Forwarding Company and T. X Anderson that the aforesaid sureties mentioned in fourth section of original contract shall consist of marine insurance policy in a reliable company in favor of owners. The aforesaid insurance policy or "contract is to cover liabilities as actually specified in such policy for not less than five thousand dollars ($5,000.00) lawful currency of the United States. ' In addition to the aforesaid insurance, it is agreed that the charterer shall furnish surety bond of the Southern Bonding Company in amount of one thousand dollars ($1,000.00) to cover loss or damage to twin screw motor freighter Mary Me not fully covered by aforesaid marine insurance policy.
“This document shall be attached to and become part of the original charter contract of the twin screw motor freighter Mary Me entered into by Pearce Forwarding Company and T. J. Anderson.”

The boat with all of its appurtenances and properties was lost while in possession of Anderson under the lease contract. The plaintiffs’ petition alleges that the value of the boat and its equipment and properties was $8,000.

The $5,000 marine insurance was paid ap-pellees by the company which executed said policy. The appellants deny liability upon the bond sued on upon the ground that it was not intended to cover loss of the value of the property which they say was fully covered by the $5,000 insurance policy, but was only intended to indemnify against the loss or damage specified in the contract other than the value of the boat and its equipment, and, as appellees sustained .no .such loss, they are not entitled to recover anything on the bond.

The cause was tried with a jury in' the court below; the only issue submitted for the jury to determine being the value of the boat at the time of its loss. The jury found such value to be $7,000. Upon the return of this verdict the court rendered judgment for appellees in the sum of $1,000.

The first, second, and third assignments of error presented in appellants’ brief and the proposition submitted thereunder are as follows:

First. “The court erred in refusing to give to the jury the special charge requested by defend-ants, instructing the jury to bring in a verdict for defendants.”
Second. “The court erred in failing to instruct the jury that the parties by their contract had agreed bn the value of the said launch Mary Me, and there being no evidence in the record of any damages suffered by the plaintiffs other than for the loss of the said launch Mary Me, they should bring in a verdict for the defendants.”
Third. “The court erred in failing to instruct the jury that the plaintiffs and defendants having agreed by their contract as to the value of the said launch Mary Me in the sum of $5,-000, and, there being no evidence in the record of any damages suffered by plaintiffs, other than the loss of said launch Mary Me, they should bring in a verdict for the defendants.”
Proposition. “The value of the Mary Me, her fixtures, appliances, engines, boats, furniture, apparel, and accessories, was by the contract of charter in writing stipulated and stated to be $5,000, and no more, and that sum has been fully paid to appellees as marine insurance for the loss of the Mary Me, her fixtures, appliances, engines, boats, furniture, apparel, and accessories. Since there was no loss, damage, or liability not fully covered by aforesaid marine insurance policy, there is not, and cannot be, any liability upon the appellants for a breach of a condition which provides that they shall be further liable to the extent of $1,000 only for ‘loss and damage not fully covered by aforesaid ma--rine insurance policy.’ ”

These assignments and. proposition present the only material question 'raised by the record.

The evidence shows that, when the contract of lease requiring an indemnity bond in .the sum of $5,000 was prepared, the parties did not think a policy of marine insurance could be obtained, and when such policy was subsequently obtained for $5,000 “upon the good motorboat called Mary Me, her body, tackle, apparel, furniture, stores, supplies, engines, machinery, and appurtenances,” it was agreed by the parties that the bond provided for in paragraph 4 of the contract should be reduced from $5,000 to $1,000. This bond, as appears from its recitals before set out, not. only covered the loss or damage to the boat and its properties and appurtenances, but also any loss or damage that appellees might suffer by the failure of the appellant Anderson to comply with the provision .of paragraph 3 of the contract before set out. The policy of marine insurance states that the value of the boat is $6,000, and the insured is authorized to obtain insurance thereon in addition to the $5,000 up to the full amount of $6,00(1 Anderson was the surveyor at the port of Galveston for the company who issued the policy to appellees, and testified that he agreed to the valuation stated in the policy.

The undisputed evidence shows that appel-lees sustained no loss or damage other than the value of the boat and its properties.

We cannot agree with appellants in their contention that the bond sued on, construed with the contract under which it was executed, and in the light of the circumstances shown by the evidence, did not obligate and bind them to pay anything for the loss of the boat. The. bond by its terms obligated appellants to pay $1,000 for the loss of the boat, and there is no allegation that the obligation to pay for the boat was inserted in'the bond by mutual mistake, and if the evidence raises such issue in the absence of such allegations, that issue is not in the case. The statement in the contract as originally written that the value of the boat is fixed at $5,-000 must be considered in connection with the fact that when this valuation was fixed it was only contemplated that appellants should furnish appellees an indemnity bond for $5,000 covering the loss of the boat, and also the other loss and damage provided against in the contract, and it is evident that the value of the boat was then fixed at $5,-000 to protect appellees in event of loss to full extent of the required bond. When the insurance policy was obtained to protect appellees in the sum of $5,000 against the loss of the boat, it was agreed that an indemnity bond for $1,000 should be 'furnished by appellant Anderson to cover loss or damage to the boat not fully covered by the insurance policy. This.policy, which was procured by Anderson ifor the [protection of appellees, fixed the value of the boat at $6,000, and insured it for $5,000 of that amount, with express permission to the insured to obtain additional insurance thereon of $1,000.

Upon these facts we do not think the clause in the contract that the $1,000 bond was to cover loss or damages “not fully covered by the insurance policy” must be construed to mean that it was only to cover loss or damage other than the value of the boat. The insurance policy did not cover any of such loss or damage, and if such loss or damage only was referred to, it could not properly have b.een described as loss or damage not “fully” covered by the insurance policy. If the $1,000 value of the boat covered iby the policy was intended to be provided against by the bond, the term “loss or damage not fully covered by the insurance policy” was accurately used. The evidence was sufficient to sustain the finding of the jury that the value of the boat was $7,000. We think appellees were entitled to recover the $1,000 which the appellants agreed by their bond they would pay in event the boat was lost.

The remaining assignments of error complain of the admission of testimony as to the value of the boat. We think none of said assignments is meritorious, and each of them is overruled without discussion.

It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <S=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes