author: CONNER, C. J.

text:
    CAMDEN FIRE INS. ASS'N OF CAMDEN, N. J., v. PUETT.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 10, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Appeal and Error (§ 1043) — Review-Harmless Error.
    In an action upon an insurance policy, defendant was not prejudiced by the action of the court in refusing it a continuance to procure the testimony of a witness to prove a fact which the insured on the stand admitted.
    [Ed. Note. — For other cases, see Appeal and Error, ^ Cent. Dig. §§ 4115-4121; Dec. Dig. §
    2. Insurance (§ 281) — Proof op Loss — Misrepresentation — Statutory Provisions.
    Under Rev. St. 1911, art. 4949, providing that any provision in an insurance policy that the same shall be void or voidable if any misrepresentation be made in the proofs of loss shall be of no effect, and shall not constitute any defense to any suit thereon, unless the false statement or misrepresentation was fraudulently made, and was of a fact material to the liability of the company, the fact that the insured in her proof of loss misrepresented the value of a stove could not affect the liability of the company upon the policy, where the total value of the property destroyed, exclusive of the stove, was largely in excess of the amount of the policy.
    [Ed. Note. — For other cases, see Insurance,. Cent. Dig. §§ 597-600; Dec. Dig. § 281.]
    3. Evidence (§ 317) — Hearsay.
    A statement by plaintiff’s agent, not having been made in the presence of plaintiff, was-heai’say and not admissible.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    4. Appeal and Error (§ 1001) — Review— . Verdict.
    A verdict and judgment cannot be disturbed merely because there is evidence which might lead to a contrary result.
    [Ed. Note. — For other cases,_ see Appeal and. Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action ,by Mrs. J. C. Puett against the-Camden Fire Insurance Association of Camden, New Jersey. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Ben h. Cox, of Abilene, for appellant. S. P. Hardwicke, of Abilene, for appellee.

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

   CONNER, C. J.

Appellant presents tbe following statement of tbe nature and result of ibis suit, wbicb we tbink sufficient: “This suit was filed in the district court of Taylor county by Mrs. J. C. Puett, a widow, to recover tbe amount alleged to be due on a certain policy dated tbe 25th day of May, 1932, and issued to plaintiff by G. B. Trip-lett, a local agent of the defendant company at Abilene. The policy was in tbe sum of $2,500, $1,750 of wbicb was' on tbe house and $750 on tbe contents thereof, including furniture, stoves, carpets, window shades, etc., a full list of which was attached to and included in plaintiff’s petition. Plaintiff alleged that a fire occurred on tbe 15th day of June, 1912, wbicb totally destroyed said bouse and contents. She further alleged a full compliance with all tbe terms of said policy, including tbe payment of tbe premium due thereon, and she alleged tbe defendant’s failure and refusal to pay her tbe amount due on said policy according to its terms. Tbe defendant answered by general demurrer, general denial, and specially answered that tbe fire wbicb destroyed said property was brought about by virtue of a fraudulent conspiracy among plaintiff and her brother, J. B. Jordan,- and one J. 0. Nix, and defendant further pleaded that plaintiff bad violated certain warranties contained in said policy, fully set out in defendant’s answer. Among other special defenses, tbe defendant pleaded that plaintiff bad fraudulently misrepresented to defendant the character and amount and value of the property covered by tbe policy sued on; that she was guilty of false swearing in material matters touching said insurance; that she .concealed from plaintiff tbe fact that she was not occupying said bouse as her dwelling bouse at tbe time of the issuance of said policy. Defendant further pleaded that tbe statement in said policy, ‘occupied by tbe owner as a dwelling bouse,’ was a warranty in said policy, and that said warranty was breached by virtue of the fact that plaintiff was not so occupying said bouse at tbe time of tbe issuance of said policy. Plaintiff filed a first supplemental petition in wbicb she denied all of tbe special defenses set up by tbe defendant. Tbe case was tried before a jury, and tbe matters of fact were submitted to tbe jury by the court upon special issues prepared by tbe court in the form of questions, wbicb questions were answered by tbe jury in favor of plaintiff, and upon said answers as tbe verdict of said jury tbe court rendered judgment in favor of plaintiff for tbe full amount sued for by plaintiff, from wbicb judgment of tbe court defendant duly filed its motion for a new trial, which was by tbe court duly overruled, to wbicb action and judgment of the court tbe defendant excepted and gave notice of appeal, and now brings the case here for revision.”

Appellant first complains of the action of tbe court in overruling its first application for a continuance. Appellee objects to tbe manner of presenting the question, and, while tbe objections are probably well taken, we think the assignment must'be overruled on its merits and prefer to so treat it. It appears that, following the destruction of appellee’s premises and its contents, she presented to the appellant company her proofs of loss, including a list of tbe personal property destroyed, and that, among other things, appellee listed a range cooking stove at a value of $40, and appellant sought a continuance in order to procure tbe testimony of one Jobe, who it was alleged was absent because of a smallpox quarantine in the city of Abilene, and who would testify that be was familiar with tbe market value of said range and “that the market value thereof was $6 or $8, and that plaintiff paid witness tbe sum of $8 for said range.” It is very doubtful indeed whether tbe motion is sufficient in form under tbe statute in its statement of diligence; but, conceding its sufficiency, we tbink tbe court’s action cannot amount to reversible error. Tbe appellee while a witness on tbe stand, herself testified that she only gave “$5 for that stove.” She further testified: “I put it in on this list at $40 because be told me it was a good stove, and he told me it was a $40 stove, and they sell for $55 and $65 down here at Hughes’ and it was a secondhand stove.” Tbe jury in answer to a special issue submitted found that tbe fair value of all of the personal property situated in the house at the time of its destruction was $1,430, and further found in answer to another special issue that tbe plaintiff bad not fraudulently concealed or misrepresented to tbe defendant tbe value of tbe contents of tbe bouse, and we fail to see how tbe desired testimony could have materially affected appellant’s rights.

Our statutes (Revised Statutes 1911, art. 4949) provides that: “Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the same shall be void or voidable, if any misrepresentations or false statement be made in proofs of loss or of death, as the case may be, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract or policy, unless it be shown upon tbe trial of such suit that tbe false statement made in such proofs of loss or death was fraudulently made, and misrepresented a fact material to the question of the liability of the insurance company upon the contract of insurance sued on, and that tbe insurance company was thereby misled, and caused to waive or lose some valid defense to the policy

While, as stated, tbe jury found that the plaintiff had not fraudulently misrepresented tbe value of tbe personal property situated in tiie house, the fraud, in overvaluing the stove if conceded, could not affect the liability of the appellant upon its contract, of insurance. The issuance of the policy and the loss as declared upon was established, and plaintiff’s recovery upon the contents, by the very terms of the policy, was limited to $750; whereas, the total value of the personal property also covered by the policy, exclusive of the item relating to the stove, was largely in excess of the amount of the recovery she was entitled to on this account. We, accordingly, overrule appellant’s first assignment of error.

In the second assignment complaint is made of the action of the court in excluding a statement made by one J. O. Nix, who had been employed by G. B. Triplett, appellant’s agent who issued the policy in question. The issue of the alleged conspiracy was not raised by the evidence, and the statement offered was not in appellee’s presence and was, as to her, hearsay, and the court properly ruled as he did.

The remaining assignments all in one form or another question the sufficiency of the evidence to sustain the verdict and judgment; but, after a careful examination of the record, we feel no hesitation in saying that appellee’s testimony supported all the material issues of her petition and that the verdict and judgment cannot be disturbed merely because there is evidence in behalf of appellant of a contrary tendency.

It is ordered that the judgment be affirmed.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    MORTON et al. v. CALVIN.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1914.
    Rehearing Denied March 5, 1914.)
    1.Wills (§ 487) — Evidence to Aid Construction — Mistake by Testator.
    A testator, who by his will disposed of the estate of his deceased wife as well as his own, and who owned four tracts of 17, 15, 41, and 284 acres, respectively, in the S. survey, gave to his daughter E. the 325 acres of land owned in such survey and purchased in one block from F. and gave to two other daughters 17 acres owned in such survey, and also 15 acres in that survey. The deed from F. to his deceased wife conveyed land described as 325 acres, and by metes and bounds, embracing the 41 and the 284 acre tracts, but the testator claimed to own the 41-aefe tract prior to such deed, and regarded it as a part of his homestead or home place. He told the lawyer who drew the will that he wanted the two daughters mentioned to have the home place, and that he wanted E. to have the land bought from F., but said nothing about the number of acres in the tract bought from F., and the attorney, in stating the number of acres, followed the r.ecital in the deed. 3eld that, assuming that parol testimony of these facts showed that the testator intended to give the 41-acre tract to the two daughters, such intention could not be given effect, as the will itself contained no ambiguity, and the courts cannot grant relief against a mistake by the testator not apparent on the face of the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. §t 487.]
    2.I-Iusband and Wife (§ 193) — Wife’s Separate Estate — Mode of Alienation.
    That a married woman did not know that a devise to her included a particular tract, and that she treated her two sisters as the owners thereof did not transfer the title to them, in view of Rev. St. 1911, art. 1114, providing that the husband and wife shall join m the conveyance of the wife’s separate property and for the due acknowledgment of the deed.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940; Dec. Dig, § 193.]
    3.Husband and Wife (§ 244) — Actions— Costs.
    Where, in trespass to try title by a married woman’s grantee, he demanded judgment against her and her husband on the warranty of title in the event of a determination that a third person owned the land, and in their answer the husband and wife offered to rescind the sale, and judgment was rendered awarding the title and possession to plaintiff, the judgment properly awarded costs to plaintiff against the husband and wife, though he did not recover on the warranty, since they were in effect plaintiffs in a suit against the grantee to rescind the sale, in which suit they failed.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 875-877, 988; Dec. Dig. '§ 244.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Trespass to try title by Grover C. Calvin, against Mattie Morton and others. Judgment for plaintiff, and defendants appeal.
    Affirmed:
    William Morton died in May, 1906, and left surviving him a son, S. T. Morton, and four daughters, Mattie Morton, Annie Morton, who afterwards married Clark Dickson, Mrs. Ellen Reynolds, wife of J. D. Reynolds, and Mrs. Lela Compton, wife of W. E. Compton. At the time, and for many years prior to the time he died, William Morton resided on a tract of land owned by him, known as the Baggett survey. ' Adjoining said tract of land on the east were the Wm. McGurry and Nathan Screws surveys; the latter being situated north of the former, and the west boundary line of each being identical with the east boundary line of said Baggett survey. William Morton owned the McCurry survey. He also owned tracts of about 17, 15, 41, and 284 acres, respectively, on the Screws survey, perhaps all of said survey, except a portion thereof known as the “Angelí tract,” situated in the southwest part thereof. The 17-acre tract referred to was in the extreme southeast corner of the survey. The 15-acre tract was a strip 33 varas wide off the west end of the Screws survey and extending 2,070 varas north and south along the east line of said Baggett survey. The 41-acre tract was 233 varas east and west and 1,010 varas north and'south, and lay between the Angelí tract on the east and said 15-acre tract on the west. The 284-acre tract was situated west of and adjoining the 15-acre tract north of and adjoining the 41-acre and the Angelí tracts.

      William Morton left a will, In which he devised. the lands mentioned and other tracts, some of which belonged to him and others to the estate of his deceased wife, which he disposed of, as if his own, to their children. The devise to his daughter Mrs. Ellen Reynolds was in the words following: “I give to my daughter Ellen Reynolds the 325 acres of land that I own on the Nathan Screws headright survey that' I purchased in one block from Geo. Foster; also 200 acres of land off of the east end of the 320-acre tract I own on the J. G. Walker survey that I purchased from Martin Casey;" also 30 acres off the John Keiser survey, beginning,” etc. The devise to his daughters Mattie and Annie was as follows: “I give to my daughters Mattie Morton and Annie Morton, share and share alike, in equal portions, the 320 acres of land I own on the Silas Baggett survey; also all that part of the land I own on the Wm. Hester survey, except that part that I have bequeathed to my son S. T. Morton in section fourth of this will, the part of said survey herein given to the said Mattie and Annie Morton being about 255 acres; also all the land I own on the Wm. McOurry survey, being 320 acres; also all the land I own on the W. J. McCurry survey, being 67 acres; 17 acres that I own on the Nathan Screws survey that I purchased at tax sale; also 15 acres of land that I own on the Nathan Screws survey that I purchased from Geo. Foster, which is west of the 325 acres given to my daughter Ellen Reynolds in section second of this will; also 95 acres of land on the John Keiser survey to which I have tax title; also the 15% acres of land I own on the James Hilliard survey, which I purchased from Miss Eliza Barber.”
    Within a few days after the death of William Morton, his children, the devisees named in the will, agreed, each with the others, that the bequest to each should be confirmed by deeds from the others. The agreement was consummated by deeds dated June 4, 1906. The deed to Mrs. Ellen Reynolds was made by Mattie, Annie, and S. T. Morton and Mrs. Compton, joined by her husband, and it purported to convey to Mrs. Reynolds the land devised to her in the will, to wit, the 325 acres of the Screws survey, describing same by metes and bounds, within which were included as one tract the 41-acre and the 284-acre tracts referred to above.
    Notwithstanding the 41-acre tract on the Screws survey was not mentioned in the will as a part of the lands thereby devised to Mattie and Annie Morton, all the parties concerned assumed it had passed to them by the terms of the will, and notwithstanding the deed to Mrs. Reynolds, whereby all the other devisees in the will conveyed to her 325 acres of the Screws survey by a description which included said 41-acre tract, Mattie and Annie thereafterwards assumed to own, and the other devisees recognized and treated them as the owners of, said 41 acres.' '
    After the marriage of Annie Morton to Clark Dickson, she and her sister Mattie partitioned between them the lands devised to them jointly, treating the 41 acres as k part of those lands. In the partition the 4Í acres was allotted’ to Mattie Morton,' and thereafterwards she claimed to own samé. The other devisees acquiesced in her claim, treating her as the sole owner of said 41 acres, except so far as the act of Mrs. Reynolds and her husband, now to be mentioned, may have appeared to the contrary.
    Said Mrs. Reynolds and- her husband by their deed dated March 22, 1911, in consideration of $2,275 paid and to be paid to them by Grover C. Calvin, conveyed to said Calvin the 325 acres of the Screws survey conveyed to them by the other devisees named in the will, describing same by metes and bounds, which, as was the case in the deed to them, included said 41 acres.
    ' By the terms of a contract between J. D. Reynolds, representing his wife, and J. O. Calvin, representing his son said Grover C. Calvin, possession of the 325 acres was not to be delivered to said Grover C. Calvin until December 1, 1911. He then, or afterwards, obtained possession of all the 325 acres except the 41-acre tract, which Mattie Morton claimed to own. She refused to yield possession of said 41 acres, asserting, as she had since the partition between herself and her sister Annie was made, that she was the owner thereof. Thereupon said Grover C. Calvin commenced and prosecuted to the judgment appealed from a suit of trespass to try title against her. He made Mrs. Reynolds and her husband parties defendant to the suit, asking judgment against them on their warranty of the title to the land, in the event it was determined that Mattie Morton owned it. In her answer Mattie Morton pleaded “not guilty,” set up the statute of limitations of ten years, and suggested that she had in good faith made improvements on the land. In their answer Reynolds and his wife denied the allegations in the petition, averred that the land in controversy passed to Mattie and Annie Morton by the terms of the will; that the conveyance of same by them to Ellen Reynolds was the result of a mutual mistake ; that until Annie married she and Mattie were in possession of the land, and that Mattie thereafterwards, as the sole owner thereof, was in possession of same; that Calvin knew she was in possession of same, and knew that they had not agreed to sell same to him, but had only agreed to sell him the 284-acre tract; and that, in so far as their deed purported to convey the 41 acres to Calvin, it was the result of a mutual mistake. In their answer Reynolds and his wife also offered to rescind the sale made by them-to Calvin.

      The trial was to the court without a jury. The court found the facts to be as follows, quoting: “(1) That the Morton will devised the 41% acres of land in suit to Ellen Reynolds, which was included in the 325 acres given her by the will. (2) That all of the legatees accepted the terms of the will and received the land' given to them by the will; and that they afterwards, by partition deeds, conveyed to each other, by metes and bounds, the land which had been given to them in the will. (3) That the defendant Mattie Morton was in possession of the land in suit since the death of William Morton, cultivating, using, and enjoying itbut “that she had no title to the same by deed, devise, or limitation, and therefore has no title of any kind to the said land. (4) That by the conveyance” from the Reynolds “to the plaintiff in the suit, the plaintiff has title to the land and' is entitled to 'recover possession of the same. (5) That at the time of plaintiff’s purchase of the land he had actual knowledge, through his agent, his father J. O. Galvin, that Mattie Morton was in possession of the land, but that he relied upon the description of record title; and, if he had not, the prosecution of an inquiry as to how she held would have informed him that she had no title, either legal or equitable.”
    On the findings set out above, and others as to the rental value of the land for the year 1912, and as to the value of certain timber cut therefrom, the court rendered a judgment in favor of Calvin against said Mattie Morton, J. D. Reynolds, and Ellen Reynolds, the appellants here, for the title to and possession of the 41 acres of land, against said Mattie Morton alone for the sum of $64 as damages, and against her and the other appellants for the costs of the suit. In so far as appellee Calvin sought a recovery against the Reynolds on their warranty of the title to the land, the judgment was that he take nothing.
    Young & Stinchcomb, of Longview, for appellants. McCord & Campbell, of Longview, for appellee.

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

   WILLSON, C. J.

(after stating’ the facts as above).

The objections urged to the judgment in the brief filed by appellant Miss Mattie Morton are not the same as those urgjed to it in the brief filed by appellants Mrs. Ellen Reynolds and her husband. We will first consider questions made by assignments in the brief of Miss Morton, and in doing so will refer to her as “appellant.”

Appellant insists the court erred in finding that William Morton devised the land in controversy to Ellen Reynolds, “because,” she says, quoting from the brief, “the undisputed evidence shows that it was the intention of the said William Morton to not give the said land to Ellen Reynolds, but to give it to Mattie Morton and Annie Morton.”

If the evidence appellant refers to is that furnished by the language used by the testator in his will, clearly she has misconstrued the meaning of that language, for it not only does not show the intention of the testator to have been to give the land to her and her sister Annie, but, on the contrary, shows his intention to have been to give it to Ellen Reynolds. The testator owned on the Nathan Screws survey only the tracts of 17, 15, 41, and 284 acres, respectively, referred to in the statement above. In plain language he gave to appellant and her sister Annie the 17 and 15 acre tracts, and in as plain language he gave to Ellen Reynolds '325 acres, or the sum of the other two tracts.

If the evidence referred to in the assignment is the parol testimony heard on the trial, then, to determine whether the contention should be sustained or not, it is necessary to look to the record to see what that testimony was, and then to inquire whether it was testimony the court was authorized to consider for the purpose of determining the intention of the testator.

It was shown that the testator claimed he had acquired title to the 41 acres from one Berry, and that he had had possession of it, cultivating and using it as his own during the 35 or 40 years immediately preceding his death. It was also shown that he regarded it as a part of his homestead or “home place.” A few days before his death he had the witness Ras Young, a lawyer, to come to his home, where he was sick,, for the purpose of preparing the will in question. He then stated to Young, as he had previously to other persons who testified, that he wished appellant and her sister Annie “to have the home place, so that they would not be interfered with at all in their occupancy or usé of that.” He further stated to said Young that he wished to give to his daughter Ellen Reynolds the land “he brought from Geo. Foster that lay north of the home place.” Young did not remember whether the testator, at the time he expressed his wish with reference to the devise to said Ellen Reynolds, said anything about the number of acres in the tract he mentioned as one he bought from Geo. Foster or not, but thought he did not, and that in writing the will he (Young), in stating the number of acres in the tract, followed the recital, as to quantity, contained in the deed from Geo. Foster to the testator’s deceased wife, which was placed in his hands by members of the testator’s family for use by him (Young) in drafting the will. In the deed from Geo. Foster referred to the land thereby conveyed was described as 325 acres of the Nathan Screws survey, and by metes and bounds, which embraced both the 41 acres in controversy and the 284-acre tract hereinbefore referred to.

The testimony recited above and that furnished by the will itself is about all, if not all, there Is In the record which can be said to have a bearing on the question as to the disposition the testator intended to make of the land in controversy. As we have seen,' looking to the language of the will alone, the intention of the testator clearly was to give the land to Mrs. Reynolds, and not to appellant and her sister Annie. Assuming that the other testimony recited established his intention to be to the contrary (that is, to be to give the land to appellant and her said sister, instead of to Mrs. Reynolds), then the question to be determined is this: Should the court have given effect to the intention of the testator evidenced by the language used by him in the will, or should it have given effect to his intention as shown by the parol testimony heard?

In the light of the authorities, we think the only answer to be made to the question is that the court was bound to give effect to the intention of the testator evidenced by the language used in the will. The rule has been thus stated: “That parol evidence is not admissible to add to, vary, or contradict the words of a written will, not only because the will itself is the best evidence of the testator’s intention, but also because wills are required by the statute of frauds to be in writing.” 30 A. & E. Enc. of Law, p. 673. Discussing the rule and the qualifications to which it is subject, the author of the article in the work cited says: “Where the will contains a latent ambiguity, or its language is uncertain or indefinite, it is a firmly established rule that parol evidence is admissible to show the facts and circumstances that surrounded the testator at the time of the execution of the will, such as the condition and situation of his property and family, so that the court may be placed as nearly as possible in his position, and thus arrive at his- intention; but, when the words of the will are plain and unambiguous, such evidence is inadmissible. Although collateral aids, such as a view of the situation and circumstances surrounding the testator, are often necessary to enable a court to see things as he saw them, and to apply his language as he understood and intended it, yet the will must speak for itself, and the intention of the testator must be gathered from what appears on its face. To allow the natural import of the words thus ascertained to be varied or contradicted, or omissions supplied, or apparent ambiguities removed, or intention supplied by parol evidence, would be to repeal the law requiring a will to be in writing and to introduce all the uncertainty, fraud, and perjury the statutes were designed to prevent.” 30 A. & E. Enc. of Law, pp. 676 to 678; 2 Underhill on Wills, § 908 et seq.; Hunt v. White, 24 Tex. 643; Peet v. Ry. Co., 70 Tex. 527, 8 S. W. 203.

The case-made clearly is not one of a latent ambiguity appearing in the will, when considered with reference to the property devised. The bequest to appellant and her sister Annie of land on the Nathan Screws survey was, as has been stated, of the 17 and 15 acre tracts alone. The bequest to Mrs. Reynolds was of the 325 acres on that survey “purchased in one block from Geo. Foster.” It appeared that the testator, or his deceased wife, whose estate he was disposing of with his own, had purchased of Geo. Foster “in one block” 325 acres of the Screws survey. It may be that at the time this purchase was made the testator owned 41 acres (the land in controversy) of the 325 acres, but we think the fact that he did was of no importance, for nevertheless, as shown by the deed from Foster, he, or his said wife, purchased same as a part of the 325 acres, and “in one block.” So, it appearing that the 325 acres, the only land owned by the testator or his wife on the Screws survey not otherwise disposed of by the will, answered in all respects the description of the tract devised by the will to Mrs. Reynolds.

The case-made, instead of presenting a latent ambiguity in the will which could be explained by a resort to the parol testimony, presented one in which it may have appeared from the parol testimony that the testator, as the result of a mistake, devised the land in controversy to his daughter Ellen, when he intended to devise same to appellant and her sister Annie. It is well settled that, unless the mistake is one apparent on the face of the will, courts are powerless to grant relief against it; and that “omissions in a will, though due to accident or mistake, cannot be supplied by parol proof of intention.” 30 A. & E. Enc. Law, p. 680; Underhill on Wills, § 912; Hunt v. White, 24 Tex. 652. In the section cited in Underhill on Wills it is said: “Parol evidence is never receivable to supply single words or clauses where the omission is not apparent on a reading of the will. Thus it cannot be shown by parol that the testator stated that he would give or had given a legacy to a person whose name is not mentioned, or that the draughtsman of the will had forgotten to insert a legacy which the testator meant to give; nor can the amount of a legacy precisely stated be increased ort diminished by parol evidence, no matter how clear and convincing such evidence may be. * * * Under the rule that parol evidence cannot be employed to vary or add to a will, it is incompetent to show by the declarations of the testator or other intrinsic evidence that the testator has by his own mistake or that of some other person given a legacy of less value or of a different character from that which he in fact actually meant to give. Thus, where the testator owned land in A. county, and also in B. county, both of which he intended to devise to his wife, but, as was conclusively proved, the description of the land in B. was inadvertently stricken out in copying the will, parol evidence was rejected, though it appeared that the final copy of the will had never been read to the testator, and that the original draft in his own hand included the property in B. county. In another case $10,000 was directed to be divided equally between A. and B. The draughtsman drew two clauses, in each of which, by his mistake, $10,000 was given to A. The name of B. was wholly omitted from the draft and also from the engrossment, and the will was executed with the mistake uncorrected. The name of A. was stricken out of one of the clauses by the court, as the error was apparent upon the face of the will. But the name of B. could not be inserted on parol evidence to. give him a legacy not given by the will.”

It thus appearing that the effect of the will was to pass the title to the land in controversy to Mrs. Reynolds, and not to appellant and her sister Annie, it follows that the judgment, so far as it is in favor of Calvin against appellant, must be affirmed. Eor it is clear that the title so vested in Mrs. Reynolds never passed from her until it was conveyed by her and her husband to Calvin. The mere fact that she did not know that the land had been devised to her, and treated appellant and her sister Annie as the owners thereof, would not operate to transfer the title to them. The title of a married woman to land belonging to her separate estate cannot be passed in that way. Article 1114, R. S. 1911.

The objection and only one urged by appellants Reynolds and his wife to the judgment is that it should not have been against them either for the land or for any of the costs, because Calvin did not sue them for the land, but on their warranty of the title thereto. The argument is that as Calvin recovered the land of appellant Miss Mattie Morton, the only person he sued therefor, he was not entitled to recover and did not on the warranty, and therefore that judgment should have been that he take nothing as against Reynolds and wife, and that they recover costs of him. It is further urged that as to Mrs. Reynolds the judgment against her for costs was unauthorized, if for no ¿other reason, because she was a married woman. In making the contention, said appellants, Reynolds and his wife, seem to have overlooked the fact that the land belonged to Mrs. Reynolds’ separate estate, and that in their answer they asked for a rescission of the contract of sale between them and Calvin, praying that the title to same be decreed to be in them. They thus in effect became plaintiffs in a suit against Calvin to rescind the sale made to him and to recover the land. They failed in this suit, and clearly were liable for the costs thereby incurred. Therefore the assignments urged by them are overruled.

There is no error in the judgment, and it is affirmed.


author: LEW, J.

text:
    FORD v. JOHNSTON.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 24, 1914.
    On Rehearing, March 5, 1914.)
    1. Appeal and Error (§ 48) — Appellate Jurisdiction — Value or Amount in Controversy.
    Under Rev. St. 1911, art. 1589, limiting jurisdiction on appeal from the county court to cases wherein the judgment or amount in controversy exceeds $100, judgment on a note for $75, and for foreclosure of a mortgage securing it on cattle, alleged to be worth $100, is not ap-pealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§. 226-2S2; Dec. Dig. § 48.]
    On Rehearing.
    2. Appeal and Error (§ 51) — Appellate Jurisdiction — Value or Amount in Controversy.
    Under Rev. St. 1911, art. 1589, limiting jurisdiction on appeal from the county court to cases wherein the judgment or amount in controversy exceeds $100, a counterclaim for more than $100 in a suit for a less amount confers jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 237, 267; Dec. Dig. § 51.]
    3. Appeal and Error (§ 389) — Appeal in Forma Pauperis — Affidavit in Lieu of Bond.
    An affidavit in lieu of an appeal bond stating the style and number of suit, the date of the judgment, and the court wherein it was rendered is sufficient in form to give jurisdiction.
    ■ [Ed., Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.]
    4. Appeal and Error (§ 389) — Appeal by Codefendant — Sufficiency of Pauper’s Oath.
    A defendant sued on a note, and to foreclose a mortgage securing it, was not legally required to appeal from the judgment against him in favor of his codefendant for conversion of the mortgaged property, and his failure to do so would not make his pauper’s oath insufficient on appeal from the judgment against himself in plaintiff’s favor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.]
    Appeal, from Bowie County Court; Lee Tidwell, Judge.
    Action by Edward Johnston against C. E. Ford and another in justice court. From a judgment for plaintiff, defendant Ford appealed to the county court. The appeal was dismissed; and he again appeals.
    Reversed and remanded for trial.
    J. W. Hillman, of Texarkana, for appellant. Graham & Smitha, of Texarkana, for appellee.

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

   LEW, J.

Appellee brought suit in the justice court against C. E. Ford and J. C. Parrish. According to the record the nature of the suit is described as being a suit by the plaintiff against C. E. Ford to recover on a promissory note executed by Ford for $75, with 10 per cent, interest, and to foreclose a chattel mortgage on cattle, alleged to be of the value of $100, given by Ford to secure the payment of the note, and against Parrish for conversion of a part of the mortgaged property. Judgment was entered on the verdict of the jury in favor of the plaintiff against Ford and Parrish, and with foreclosure of the mortgage, and in favor of Parrish against Ford for the value of the four head of mortgaged cattle bought by Parrish. C. E. Ford undertook to appeal to the county court from the judgment on an affidavit of inability to pay the cost of appeal, or give security therefor. The county court dismissed the appeal on motion of the appellee, and the case is in this court to revise the ruling of the county court.

As neither the debt nor the alleged value of the mortgaged property exceeds $100, this court has not jurisdiction to entertain this appeal. Article 1589, R. S.; Green v. Warren, 18 Tex. Civ. App. 548, 45 S. W. 608; Mask v. Lumber Co., 145 S. W. 299. Reference: De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882.

For this reason the appeal is dismissed.

On Rehearing.

The statement of the case made in the briefs failed to mention that the defendant C. E. Ford sued on a counterclaim against the plaintiff, Johnston, for $113. As a consequence we were misled as to the record. There was error in dismissing this appeal for want of jurisdiction, and the former judgment is here set aside. The counterclaim sought here to have judgment for confers jurisdiction over the case.

The county judge, on motion of appellee, dismissed the appeal from the justice court, on the ground that the affidavit in lieu of appeal bond was not sufficient in form to give jurisdiction. The affidavit states the style and number of the suit, the date the judgment was rendered, and the court it was rendered in, and contains the requirements of the statute. The court erred in dismissing the appeal. Hodde v. Susan, 63 Tex. 307; Womack v. Gardner, 10 Tex. Civ. App. 367, 30 S. W. 589; Farrar v. Dowd, 28 S. W. 919; Landa v. Heermann, 85 Tex. 1, 19 S. W. 885.

Appellee had no legal concern with the controversy between appellant and Parrish, and appellant had the right, if he desired, to allow the Parrish judgment against .him to remain final and unappealed from, and was not legally required to appeal from it. Therefore, even if there had been a failure of appellant to appeal from the Parrish judgment, such failure would not have the effect to make the pauper’s oath insufficient for jurisdictional purposes. But we think the appeal from the justice court was perfected as to all parties.

The judgment is reversed, and the cause remanded for trial.


author: PLEASANTS, C. J.

text:
    BROWN et al. v. WM. CAMERON & CO. et al.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 11, 1914.)
    1. Appeal and Eeeoe (§ 771) — Beiees— Delay in Filing — Excuses.
    In trespass to try title against C. & Co., who impleaded the T. Co. on its warranty of title, where the parties stipulated, in writing, that on an appeal by plaintiffs they might file their briefs within a specified time, a verbal agreement by one of the attorneys for the T. Co., extending the time was not a sufficient excuse for plaintiffs’ failure to file their briefs within the time specified in the written agreement, or within a reasonable time before the submission of the case, since the verbal agreement, even if binding on the T. Co., was not binding on C. & Co.j and it could avail plaintiffs nothing to have their appeal heard against the T. Co., who was only a party to the appeal, because of its interest in the adjudication of the issue between plaintiffs and C. & Co.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3105; Dec. Dig. § 771.]
    2. Appeal and Eeeoe (§ 773) — Beiefs—De-lay in Filing — Dismissal op Appeal.
    Where, on an appeal set for submission on December 18th, the parties on June 5th stipulated that appellants’ briefs might be filed within 90 days from that date, and that appel-lees should then have 90 days within which to file their briefs, and appellants did not file their briefs until December 8th, the appeal would be dismissed, as appellees were entitled to have the cause submitted in its regular order, and to at-least 20 days after the notice of the filing of appellants’ brief to prepare and file their briefs, and one of such rights would be denied by overruling the motion to dismiss.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Trespass to try title by Nancy Brown and others against William Cameron & Co. and another. From the judgment, plaintiffs appeal.
    On motion by each defendant to strike out plaintiffs’ briefs and dismiss the appeal. Motion sustained.
    C. N. Smith, of Cleveland, Marshall & Marshall, of Liberty, and Crow & Phillips, of Groveton, for appellants.

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

   PLEASANTS, C. J.

The judgment from which this appeal is prosecuted was-rendered on February 1, 1913; the appeal was perfected on the 6th of March, 1913; and the record was filed in this court on June 7, 1913. The cause was set for submission in this court on December 18, 1913. Appellants’ briefs were filed herein on December 8, 1913.

On December 17, 1913, appellees filed motions to Strike out appellants’ briefs and. dismiss the appeal because the briefs were not filed in the time required by law. In these motions, which were separately made-by the attorneys for appellee Wm. Cameron & Co. and the attorneys for appellee Trinity Lumber Company, it is alleged under oath that appellees had made no agreement for extending the time of filing briefs other than the following written agreement:

‘‘In the Court of Civil Appeals, First Supreme Judicial District of Texas, at Galveston.
“Nancy Brown et al., Appellants, v. Wm. Cameron & Co. et al., Appellees.
“In the above-entitled and numbered cause, tried at the January term of the district court of Trinity county, and now pending on appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, at Galveston, come now appellants and ap-pellees by their counsel respectively and agree that the time of issuance and filing of transcript, statement of facts, and briefs of appellant in the trial and appellate courts be waived, and that appellant may now file the transcript and statement of facts in the appellate court, and may within 90 days from date hereof file copies of his brief in the appellate court, and that delivery of a copy thereof to counsel for appellees shall be sufficient notice and service thereof, and that appellees shall have thereafter the additional time of 90 days within which to file their brief for appellees, and that delivery of a copy of the same to counsel for appellants shall be sufficient notice and service of the sama
“Witness our hands at Groveton, Texas, this the 5th day of June, A. D. 1913.”

It was further alleged that counsel for ap-pellees cannot, in the time intervening between the filing of appellants’ briefs and the submission of the cause on December 18, 1913, prepare and file briefs for appellees.

In a sworn answer to these motions N. H. Phillips, counsel for appellees, says that, subsequent to the execution of the written agreement, R. O. Kenley, senior member of the firm of Kenley & Minton, and leading counsel for appellees, made an oral agreement with appellants’ counsel extending the time of filing briefs in this case and in two other cases pending in the court, in both of which said Kenley & Minton were opposing counsel to counsel for appellants in this case, which agreement was in substance as follows : “Each party appellant to prepare his brief as early as practicable and submit same to the opposite party, who should sign an agreement to permit copies of the same to be filed in the appellate court, and that, should either party or any party appellee be pressed for time in which to prepare his reply, appellant should join in a request to the appellate court to grant such relief as the court in its discretion for the cause shown might deem proper, such as postponing submission, or allowing appellee to file brief after the day of submission; that affiant and the firm of which he is a member have carried out their part of all of said agreements, as will more fully appear from the records of the appellate court.”

A copy of appellants’ brief was delivered to counsel for appellees on December 6, 1913.

It is shown that the firm of Kenley & Min-ton was dissolved on October 1, 1913, and R. O. Kenley left this state to seek a home elsewhere, and his address was unknown to all of the counsel in this case at the time these motions were filed. This suit, which is an action of trespass to try title, was brought by appellants against appellee Wm. Cameron & Go. Appellee Trinity Lumber Company was impleaded by the defendant on its warranty of title. The firm of Kenley & Minton represented the Trinity Lumber Company, and the Wm. Cameron Company was represented by the firms of Sleeper, Boynton & Kendal and Nelms & Platt.

It is not claimed that the attorneys for Wm. Cameron & Co. made any agreement with appellants’ attorneys other than the written agreement before set out, and R. O. Kenley, with whom the verbal agreement was made, had no authority to represent Wm. Cameron & Co. in making said agreement. It is also shown that, prior to the date of the filing of appellants’ briefs, counsel for appellants was notified by Minton that he would not respect the oral agreement claimed to have been made by his former partner, R. O. Kenley, in regard to the filing of briefs in this case. These facts do not show sufficient excuse for the failure of appellants’ counsel to file his briefs within the time specified in the written agreement before set out, or within a reasonable time before the submission of the ease. Niday v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 462; Krisch v. Richter, 125 S. W. 935; Ry. Co. v. Martin, 132 S. W. 834.

The verbal agreement with R. O. Kenley, if it could be held binding upon him and his client, the Trinity Lumber Company, could not affect the rights of the Wm. Cameron Company because Kenley was not its attorney, and it could avail appellants nothing to have only their appeal against the Trinity Lumber Company heard. Their suit for the land was against the Wm. Cameron Company alone, and the judgment of the court below awarded the land to that company. The Trinity Lumber Company was only sued on its warranty by its coappellee and is only a party to this appeal because of its interest in the adjudication of the issues between appellants and the Wm. Cameron Company.

As said by Mr. Justice Reese, speaking for this court in the case of Niday v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 462: The statutes in regard to the time of filing briefs and the submission of cases in appellate courts gives to an appellee two substantial rights: . (1) To have the cause submitted in its regular order; and (2) to be allowed 20 days after notice of the filing of appellants’ brief to prepare and file his briefs. “To overrule his motion to dismiss in the present case will inevitably require him to yield one of these substantial rights. We will have either to postpone the submission or hear and determine the cause without a brief for ap-pellee. Certainly appellee could not have been expected to prepare and file briefs in this court in the limited time from November 16th, when he first received a copy of appellant’s briefs filed in this court, and the 21st of November, the day set for submission. We do not think the allegations of appellant’s answer to the motion present good cause for the postponement of the submission, thus impairing the substantial right of. appellee to have the cause submitted in its regular order. Appellant’s excuse for failure to file briefs as required cannot be ¿considered sufficient to authorize such action.” This language is as applicable to the facts of the instant case as to those of the case in which it was used.

The motion to dismiss must be sustained, and it has been so ordered.


author: HODGES, J.

text:
    RED MINERAL SPRINGS DEVELOPMENT CO. v. DAVIS.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 12, 1914.)
    1. Triad (§ 251) — Instructions—Payment.
    In an action for services rendered to a corporation, defendant not having pleaded payment except as embraced in a plea of settlement, the court charged that, if the jury believed that plaintiff contracted with defendant’s manager for the rendition of plaintiff’s services to defendant at the rate of $75 per month, then, in ascertaining what, if anything, was due plaintiff, the jury should allow him $75 per month for such time as the evidence showed he worked under and by virtue of the contract, unless plaintiff and defendant had a settlement of all matters and things between them September 1, 1909, in which case the jury should not take into consideration anything that occurred between plaintiff and defendant prior to that date, but that the burden was on defendant to show such settlement. Held, that the instruction was not objectionable for failure to charge that, if defendant had paid plaintiff for all the services rendered under the first contract, he could not recover.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    2. Corporations (§ 400) — Employment op Manager — Authority — Termination op Authority — N otice.
    Where a corporation employed a manager to take charge of its business, and he employed plaintiff to perform certain services, and the manager, after the termination of his authority, was permitted to continue in charge of the property as lessee, the corporation was bound to notify plaintiff of the change in the manager’s capacity in order to prevent liability on a further contract of employment between plaintiff and the former manager.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1587, 1590, 1591; Dec. Dig. § 400.].
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by James A. Davis against the Red Mineral Springs Development Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Rolston & Rolston and Ward & Ward, all of Mt. Pleasant, for appellant. S. P. Pounders, of Mt. Pleasant, for appellee.

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

   HODGES, J.

This suit was instituted in the court below by the appellee against the appellant to recover the sum of $482.75, claimed to be due as wages upon certain contracts of employment. The petition sets' out three separate and distinct contracts under which it is claimed services were rendered to the appellant. It is alleged that on the 18th day of March, 1909, the appellee entered into a contract with W. C. Wolfe, who was at the time the manager of the appellant’s hotel property at Red Mineral Springs in Titus county; that by virtue of the terms of that contract appellee was to receive $75 per month; that he performed services under that contract until the 15th day of October, 1909, earning in the aggregate $525; that on the 15th day of October, 1909, he made a second contract with W. C. Wolfe, as the manager of the appellant’s property, by virtue of which he was to work till the 1st day of March, 1910, 4% months, and was to receive the sum of $40 per month and house rent, amounting in the aggregate to $180; that on the 30th of April, 1910, he made and entered into a third contract with W. H. Florey, as appellant’s manager of said property, by the terms of which he was employed for a period of 5 months at the sum of $60 per month. It was also stipulated in this last-mentioned contract that appellee was to receive the sum of 25 cents .per hour for all overtime he was employed. It is further alleged that the service performed was in operating, superintending, and managing the water and light plants and the pumps used in and about the property of the appellant. It is alleged that under the last-mentioned contract he earned in working overtime the sum of $41.75. The aggregate amount earned under all of the contracts is placed at $1,-049. The petition admits that appellee had received payment in the various items set out the sum of $354.50, leaving the balance previously stated as the amount still due.

The appellant answered by a general denial, and specially pleaded substantially as follows: It is admitted that prior to the 1st day of May, 1909, W. C. Wolfe was the appellant’s manager in charge of the properties at Mt. Pleasant, but is alleged that on the above-mentioned date he was discharged as such manager, and the property was thereafter exclusively under the control of the directors. It is admitted that Davis worked for the appellant company in 1909, under -the first contract referred to in the petition, until the 1st day of September; but it is alleged that the defendant and the plaintiff had a settlement, “and it was agreed and stipulated by and between the plaintiff and the defendant on the 1st day of September, 1909, that' the defendant owed the plaintiff the sum of ¡£248.60, less the following credits, which were paid by the defendant to the plaintiff, as follows.” Then follows a list of credits and payments, amounting in the aggregate to $248.95. Continuing, the answer charges that “the plaintiff is now estopped by that settlement to claim any further amounts against the defendant for any services rendered prior to that date.” It is also alleged that on the 1st day of September the plaintiff was informed by the defendant that his services would no longer be needed by the company, and that it would not be responsible for his services through the winter season of 1909-10, that he would have to look to W. C. Wolfe for any further pay for services rendered after the 1st day of September, and that it was then understood and agreed between the parties that, if plaintiff worked on the premises for Wolfe, the latter would be responsible for his wages.

As to the third contract, it is alleged that on or about the 1st of May, 1910, the defendant company resumed the possession of the property, and employed the plaintiff for an indefinite period of time to run the dynamo, gasoline engine, and pumping plant, at a stipulated salary of $60 per month, that the plaintiff worked under that contract from the 1st day of May until the 17th day of July, 1910, 2 months and 17 days, and that at the end of that time by mutual agreement their contract relations were terminated. It is also alleged that plaintiff performed during that time, in overtime, services amounting to about $5. Eor all of the services under this last-mentioned contract, it is alleged that plaintiff was paid in full.

A verdict was rendered in favor of the appellee in the court below for $180.

In the first two assignments of error complaint is made at the admission of certain testimony. In this we think there was no error.

The second and fourth assignments of error . complain of the following paragraphs of the court’s charge:

“If you believe from, the evidence in this case that on the 18th day of March, 1909, that the plaintiff made and entered into a contract with W. C. Wolfe, as manager of the defendant corporation, and that the said Wolfe was at that time manager of the said company, and that by the terms of the said contract the said Wolfe contracted and agreed to pay the plaintiff the sum of $75 per month for his services, then, in estimating and ascertaining what, if anything, is due this plaintiff, you will allow him the sum of $75 per month for such time as you may find from the evidence he worked under and by virtue of the said contract, unless you find from the evidence that the plaintiff and the defendant company had a settlement of all matters and things between them on the 1st day of September, 1909, about which you are instructed in a following paragraph of this charge.
“If, from the evidence in this case, you believe and find that on the 1st day of September, 1909, the plaintiff and the defendant had a full and complete settlement and adjustment of all matters and accounts between them prior to the said 1st day of September, 1909, then and in that case you will not take into consideration anything that occurred between the plaintiff and the defendant before and prior to the 1st day of September, 1909; but in this connection you are instructed that the burden is upon the company to show the said settlement by a preponderance of the testimony.”

The error pointed out in the first paragraph of this charge was the failure to therein tell the jury to find for defendant, if they found from the evidence that defendant had paid the plaintiff for all of the services rendered by him under the first contract. The objection to the second paragraph is that it is not applicable to the evidence in omitting the defense of payment. It may be that this charge did not submit the defense of payment as fully as a portion of the evidence warranted. But it submitted the very defense that was pleaded, and in the mariner pleaded. There was no plea of payment except as embraced in the averments concerning the settlement. The evidence also shows very conclusively that the appellee was paid in full for his services under the first contract till September 1. 1909, and that he was paid in full for all services rendered under the third contract, unless it be a small balance for overtime. We think it clear that the verdict for $180 must be based upon a finding in favor of the appellee upon the second contract alone, and that the jury found in favor of the appellant both as to the first and third contracts. Liability upon the second contract depended upon whether or not the appellant was estopped to deny the authority of Wolfe to bind it by such a contract at that time. That portion of the charge relating to that issue which is assigned as error is not subject to the objection urged. The evidence shows that Wolfe had been in charge of the appellant’s business, and had authority to bind it by contracts such as that alleged. When that authority was terminated, and Wolfe allowed to continue in charge of the property as a lessee, the appellant owed it to those who had been dealing with Wolfe as its agent to give notice in some way of the change in its business relations. It was an issue of fact as to whether or not that had been done in this instance, and the jury found in favor of the appellee.

The remaining assignments are overruled, and the judgment is affirmed.


text:
    SMITH v. HUFF et ux.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 19, 1914.)
    1. Appeal and Error (§ 520) — Record-Bill op Exceptions — Application for Continuance — Denial—Review.
    An order denying plaintiff’s motion for a continuance because of the absence of a witness could not be reviewed, where the bill of exceptions did not set out either the application or the substance thereof, and it could not be ascertained from the bill itself whether the application was sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 520.]
    2. Appeal and Error (§ 1043) — Denial op Continuance — Prejudice.
    The denial of a continuance for absence of a witness was not prejudicial to plaintiff, where the witness’ affidavit, produced on the hearing of the motion for a new trial, showed that his testimony would not have been of material benefit to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dee. Dig. § 1043.]
    .3. Adverse Possession (§ 43) — Possession-Separate Parcels.
    S., having aiscovered that the P. survey, ■consisting of 530 -acres, had been forfeited to the state for taxes, redeemed, placed the redemption certificate of record, and supposed she had title. Later she sold 80 acres on which all her improvements were situated, and from that time the 80-acre tract was segregated from the ■balance of the survey. She had then not held possession long enough to perfect title by limitations to the entire survey, but moved onto a :200-acre tract which had been previously segregated from the balance of the survey. Held, that her possession prior to the segregation of the two tracts could not be added to her possession of the 200-acre tract in order to complete ten years’ adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 213-224; Dec. Dig. § 43.]
    4. Trespass to Try Title (§ 6) — Rights of Parties — Trespassers.
    Where neither party in .trespass to try title proved title in himself, plaintiff could not recover in the absence of proof of such prior possession as would entitle him to recover as against a naked trespasser.
    [Ed. Note. — ITor other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. ■§ 6.]
    .5. Witnesses (§ 143) — Competency—Stat-TTTES.
    Where H. did not claim the land in controversy as an heir of her brother, she was not disqualified to testify that on the death of her mother there had been a parol partition between witness and her brother by which she took the land in controversy under Rev. St. 1911, art. 3090, providing that a person shall not be permitted to testify concerning a transaction with one since deceased, and that the prohibition shall include actions by or against heirs,or legal representatives of a decedent arising out of any transaction with such decedent.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §<j 619-624; Dec. Dig. § 143.]
    6. Vendor and Purchaser (§ 220) — Innocent Purchaser,
    Where plaintiff’s grantor never had title nor apparent title to the land in controversy, plaintiff acquired neither title nor apparent title by his purchase, and hence plaintiff’s want of notice of an alleged verbal agreement be’ tween his grantor and grantor’s sister to partition a larger tract, including the land in controversy, which was alloted to the sister, was immaterial, and plaintiff could not claim any portion of the land as an innocent purchaser for value without notice.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 461 — 465, 720; Dec. Dig. § 220.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Trespass to try title by Sylvan Blum Smith against H. D. Huff and wife. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    B. F. Bean, of Livingston, and Crow & Phillips, of Groveton, for appellant. Kenley & Minton, of Groveton, for appellees.

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

   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellant against the appellees. The land involved consists of two tracts, one of 80 acres, and the other of 200 acres, out of the George W. Penny 530-acre survey in Trinity county. Plaintiff, in addition to the' general allegations of ownership and title in fee simple, specially pleaded title under the three, five, and ten years’ statutes of limitation. The defendants disclaimed title to the 80-acre tract. As to the 200-acre tract, they pleaded not guilty, and title by limitation of ten years. The trial in the court below, with a jury, resulted in a verdict and judgment in favor of defendants for the 200-acre tract. The tract of. 80 acres was adjudged to plaintiff on defendants’ disclaimer. Neither plaintiff nor the ■ defendants show a chain of title from the original grantee.

The evidence shows that W. A. Suggs conveyed the 200 acres of land in controversy to. John Ed. Smith by deed of date December 8, 1890, which was filed for record on said date in the deed- records of Trinity county. Through mesne conveyances plaintiff holds the title conveyed by this deed. Mrs. Nancy Caroline Suggs, a widow with three minor children, took possession of and began to cultivate a portion of the Penny survey in 1875 or 1876. She cleared and put in cultivation a small field of 8 or 10 acres. The house in which they lived had been placed on the land by a previous occupant, and was purchased by a brother of Mrs. Suggs, who lived with her when she first moved to the place. At that time it was thought that the house was on the Hathorn survey. In a year or two it was discovered that the house was on the Penny survey, and the brother, having in the meantime purchased the Hathorn survey, moved thereon, leaving Mrs. Suggs in possession of the house. About that time he advised his sister to purchase the Penny survey, and, learning that it had been sold to the state for taxes, she sent her son, W. A. Suggs, to the tax collector of Trinity county, and he procured a redemption certificate for tlie land by paying the amount due the state. This certificate was issued to W. A. Suggs, the son; but the money paid therefor was furnished by Mrs. Suggs. The redemption certificate was placed on record in Trinity county, and thereafter Mrs. Suggs claimed the Penny survey, and supposed that she had title thereto. The field before mentioned, which was on the 80-acre tract, appears from the evidence to have been cultivated by Mrs. Suggs until she sold the 80 acres in 1883 or 1884. In the latter year she moved upon the 200-acre tract in controversy. This 200 acres seems to have been segregated from the balance of the Penny survey prior to this time. Mrs. Suggs died on this place in 1885, leaving as her heirs two children, W. A. Suggs, under whom appellant claims, and Dessie Suggs, who intermarried with the appellee, H. D. Huff, shortly after her mother’s death. After the death of Mrs. Suggs, W. A. Suggs and his sister, Dessie, verbally agreed to partition the land. Under this agreement the sister took the 200 acres in controversy, and W. A. Suggs took the balance of the 530 acres, less the 80 acres which had been sold by Mrs. Suggs. Ap-pellees lived on the 200 acres for some time after the death of Mrs. Suggs; but the evidence fails to show that they have had continuous possession for as long as ten years prior to the filing of this suit. W. A. Suggs died in 1901.

The ease was submitted to the jury upon special issues, and the jury found:

First. That Mrs. Suggs and her children, W. A. Suggs and Mrs. Huff, held peaceable and adverse possession of the land in controversy, claiming to own the same, for a period of ten years, beginning about the year 1875.
Second. That after the death of Mrs. Suggs the land was divided between W. A. Suggs and Mrs. Huff, and in said partition the 200 acres in controversy was given to Mrs. Huff.
Third. That plaintiff had not had peaceable, continuous, and adverse possession of the land, holding the same under a deed duly registered, and paying all taxes thereon, for a period of five years.
Fourth. That plaintiff had not had peaceable, adverse and continuous possession of the land for a period of ten years.

Appellant’s first assignment of error complains of the refusal of the trial court to grant a motion made by plaintiff to continue the case because of the absence of J. R. Witt, a witness for plaintiff. The bill of exceptions taken by plaintiff to the.refusal of the court to grant his application for continuance does not set out the application, nor the substance thereof, and it cannot be ascertained from the bill itself whether or not the application was sufficient. Such a bill of exception is .insufficient to authorize this court to review the action of the trial court in overruling the application for continuance. An application by plaintiff for a continuance because of the absence of the witness Witt appears in the record, and, if we can assume that this is the application refused by the court, and to which the bill of exceptions was intended to apply, the assignment cannot be sustained. If it be conceded that the application for a continuance was sufficient, the refusal of the court to grant the motion did not injure appellant because, from the affidavit of the absent witness produced on the hearing of the motion for a new trial, his testimony upon the trial would not have been of material benefit to the plaintiff, and, taken with all of the other evidence favorable to plaintiff adduced upon the trial, would not have authorized a verdict in his favor.

The second assignment of error is as follows: “The court erred in overruling plaintiff’s first amended motion for a new trial, and in not granting the same upon the ground stated in the second paragraph thereof, which is as follows: ‘Because the evidence is insufficient to support the jury’s first finding of fact.’ This assignment we submit as a proposition.”

We agree with appellant in his contention that the evidence is insufficient to sustain this finding. The possession by Mrs. Suggs of a segregated portion of the 530-acre survey could not be extended by construction to the remainder of the survey. The evidence shows that in 1883 or 1884 she sold the 80 acres upon which all of her improvements were situated, and from that time the 80-acre tract was segregated from the balance of the survey. At that time she had not held possession long enough to perfect title by limitation to the entire survey. It is further shown by the evidence that the 200-acre tract had been segregated from the balance of the survey prior to the time that she moved thereon. In these circumstances her possession prior to the segregation of the two tracts could not be added to her possession of that tract in order to complete the ten years’ adverse possession of said tract necessary to give her title thereto by limitation. But such holding cannot affect the disposition of the appeal, because the plaintiff, having failed to show any title, was not entitled to recover, regardless of the failure of defendants to- show title. The findings of the jury against plaintiff’s claim of title by limitation are fully sustained by the evidence, and are not complained of by any assignment presented in appellant’s brief, and it is not contended that plaintiff has any record title. Neither party having shown any title, and plaintiff not having shown such prior possession as would entitle him to recover as against a naked trespasser, no other judgment than one in favor of the defendants could have been properly rendered. Hooper v. Hall, 35 Tex. 82; Chinn v. Taylor, 64 Tex. 385; Maverick v. Flores, 71 Tex. 110, 8 S. W. 636; Jones v. Lee, 41 S. W. 195; Staley v. King Bank & Mercantile Co., 144 S. W. 308.

The trial court did not err in permitting the defendant Mrs. Huff to testify that after the death of her mother she and her brother agreed verbally upon a partition of the Penny survey by which she was to have the 200 acres in controversy. Mrs. Huff was not claiming the land as an heir of her brother, and article 3690 of the Revised Statutes 1911 has no application. ■

The fact that appellant purchased the land without any notice of this agreement would not render evidence of the agreement inadmissible. Mrs. 1-Iuff acquired no title by the partition agreement. At the time it was made her mother’s possession had not ripened into title, and neither she nor her brother had any title to the land which they agreed to partition between them, and, as before stated, we agree with appellant that the evidence is insufficient to support the finding that any title by limitation was ever acquired by Mrs. Huff. W. A. Suggs never had title nor apparent title to the land, and plaintiff, therefore, acquired neither title nor apparent title by his purchase, and, for that reason, his want of notice of the verbal agreement to partition was immaterial, and he could not acquire title as an innocent purchaser for value, without notice, to any portion of the land. Waggoner v. Dodson, 96 Tex. 422, 73 S. W. 517.

This disposes of all of the questions presented by appellant’s brief. It follows from the views above expressed that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


author: MOURSUND, J.

text:
    HOUSTON PACKING CO. v. GRIFFITH.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.)
    1. Trial (§ 333) — Verdict—Designation oe Amount.
    A verdict, “We, the jury, find for plaintiff damages to amount of $1,732.26, less freight,” was too uncertain to be the basis of a judgment, since reference to the evidence was required to ascertain the freight.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig. § 333.]
    2. Appeal and Erbob (§ 1153) — Judgment (§ 198*) — 'Verdict—Rendering Judgment.
    When a verdict is too uncertain to support a judgment, neither the tidal court nor the appellate court can enter judgment thereon, since to do so would be to make the verdict for the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4512; Dec. Dig. § 1153;* Judgment, Cent. Dig. §§ 362, 363; Dee. Dig. § 198.]
    3. Evidence (§ 441) — Parol Evidence — Contradicting Contract op Sale.
    Where a clause in a written contract for the sale of cattle provided that the purchaser would not have to take any cattle that did not get fat, parol evidence was not admissible to show that there was a parol agreement that the purchaser was to be the sole judge of whether they were fat, since this would materially vary the contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845; Dec. Dig. § 441.]
    4. Appeal and Error (§ 971) — Review-Opinion Evidence — Market Value.
    The action of the trial court in admitting witnesses as competent to testify as to market value will not be revised in an appellate court so long as reason has been exercised.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. § 971.]
    5. Appeal and Error (§ 842) — Market Value — Newspaper Quotations.
    Where newspaper market quotations were offered in evidence to prove the market value of cattle in a city upon a certain date, an issue of fact was made as to whether the quotations were credible.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. §. 842.]
    6. Evidence (§ 142) — Market Value — Newspaper Quotations.
    Newspaper market quotations could not be rejected as evidence of the market value of cattle in controversy because they referred to a different class of cattle; there being evidence that the class of cattle in controversy were as valuable as the class referred to in the newspapers.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.]
    7. Evidence (§ 323) — Market Value — Newspaper Quotations.
    Where newspaper market quotations were offered as evidence of market value and it was shown that the quotations were based upon information furnished by one dealer alone, the quotations should have been rejected as mere individual hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1214-1217; Dec. Dig. § 323.]
    8. Evidence (§ 543) — Opinion Evidence-Market Value.
    In an action for breach of a contract of sale of cattle plaintiff was properly permitted to express an opinion as to market value of cattle in Houston, whore he had knowledge of the market in Ft. Worth and had made a comparison of the two markets.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 23561/2-2358; Dec. Dig. § 543.],
    9. Evidence (§ 151) — Market Value — Newspaper Quotations.
    Where newspaper market quotations were admitted in evidence to prove market value,, witnesses were properly permitted to testify that they relied upon such newspaper quotations; it being admissible upon the issue of the credit to be given the quotations.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 440; Dee. Dig. § 151.]
    10. Evidence (§ 318) — Market Value.
    Letters from two commission merchants were not admissible as evidence of market value.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.]
    11. Evidence (§ 183) — Best and Secondary Evidence — Grounds for Admission of-Secondary Evidence.
    The loss of letters must be shown before a witness can testify as to their contents.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 605-637; Dec. Dig. § 183.]

      12. Evidence (§ 543) — Opinion Evidence-Market Value.
    Where, in an action for breach of a contract for the sale of cattle, a witness had no knowledge of the local market except the market quotations in the newspapers, he was not qualified to express an opinion as to such value, yet, as he vas experienced in the cattle business, he was qualified to express an opinion of the comparative value of the class of steers in controversy and the class referred to in the market quotations.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356%-2358; Dec. Dig. § 543.]
    Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
    Action by W. D. Griffith against the Houston Packing Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    See, also, 144 S. W. 1139.
    Hutcheson & Hutcheson, of Houston, and O. A. McCracken, of Floresville, for appellant. J. Ed Canfield and J. Albert King, both of Floresville, and J. B. Dibrell and Emil Mosheim, both of Seguin, for appellee.

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

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

   MOURSUND, J.

Appellee and appellant, by its agent, M. D. Bennett, entered into a written contract, reading as follows: “San Antonio, Texas, January 18, 1909. Houston Packing Company, Houston, Texas. Dear Sirs: I have bought from Wm. Griffith, at Floresville, 200 steers that are now being fed on meal and hulls at Floresville; also 100 steers that are now being fed on corn on the McDaniel place, near Floresville; the time of delivery of these steers is to begin two cars on Feb. 1, and to be followed two cars each week until the cattle are all shipped out. We have also bought from Wm. Griffith 175 steers that are being fed on cotton seed and sorghum on the McDaniel place near Floresville, and 105 that are being fed on cotton seed on the Tullos place, near Floresville. The final delivery of these steers is to be not later than June 15th, and we have the privilege of taking any of them at any time that we may want them.. It is agreed that we do not have to take any steers that do not get fat The purchase price of these different lots of steers is four and 60-100 dollars, to be weighed and delivered to the Houston Packing Company, in their pens in Houston, Texás, in good condition. M. D. Bennett. Wm. D. Griffith.” On September 22, 1909, appellee filed this suit, alleging that the first two lots of cattle mentioned in the contract were shipped by him and accepted by appellant; that appellant sent its agent to Floresville to cut and receive the last two lots of cattle, but said agent, after coming to Floresville, failed and refused to cut and receive the steers, and failed and refused to inspect them; that 250 of them were fat and in good condition, and were according to the requirements of the contract, and the market price of such cattle in Houston on June 15, 1909, was $3.75 per hundredweight gross; that they weighed 825 pounds average per head. ' The prayer was as follows: “Wherefore plaintiff prays judgment against the defendant for his actual damages in the sum of $1,753.12, with interest from June 15, 1909, at 6 per cept. per annum to date of trial, less the estimated freight charges for delivering said cattle in Houston, Tex.” The amended original answer, filed May 13, 1913, contained a general demurrer, a general denial, and a special answer, as follows: That the memorandum of agreement set out in the petition did not contain a complete statement of all the terms of the contract; that it did not purport to embrace or cover the question of how it was to be determined, fixed, and ascertained whether the cattle did or did not get fat within the meaning of the contract, but the determination of that matter was fixed by the parties by another portion of their agreement which rested on parol, and which provided that defendant’s agent, Bennett, should inspect the cattle. before delivery, and should take such cattle as in his judgment were fat, and that his decision upon the matter should determine the question between the parties, and such cattle as were received as fat were to be taken and they were not to be taken should said agent, in the exercise of his judgment, declare the same were not fat; that upon the inspection made by Bennett it was ascertained that the cattle were not fat, and defendant, relying upon the decision of said Bennett, declined to receive the cattle; that had the cattle been of contract grade, they would have been worth on the market in Houston on June 15th $4.85 per hundredweight or 25 cents more than the contract price. Defendant filed a cross-action, alleging that plaintiff had failed to deliver fat cattle as he was bound to do, whereby defendant suffered damages in the sum of $600. Plaintiff excepted to that part of the answer which set up the parol agreement for the inspection of the cattle by Bennett, and denied the allegations made in the answer. The exception was sustained. The case was tried before a jury, which returned' the following verdict: “We, the jury, find for plaintiff damages to amount of $1,732.26, less freight. J. W. Seale, foreman.” The court entered judgment for plaintiff for $1,732.26, and defendant appealed. This is the second appeal in this case. See 144' S. W. 1139.

The first two assignments of error question the sufficiency of the verdict as a basis for judgment, the contention being that the same was not definite and certain, and could not be made certain by resorting to the pleadings or charge, but only by resorting to the -evidence. Appellee contends that the jury meant to say by the verdict that they had deducted the freight, and that $1,732.26 was the net amount found by them to be due plaintiff. The argument is made that if the jury figured interest, the total amount prayed for would be $2,165.17, and that, deducting the freight $386.70, would leave $1,-77S.47, an amount greater than the sum awarded plaintiff by the judgment. This contention is fallacious. It is based upon giving plaintiff nearly four years’ interest on the amount of the freight which would have been paid out by him before he made the profits of which he claims to have been deprived. If the freight be deducted from the $1,753.12 claimed to represent the profits, and interest be figured on the difference, it will be seen that the amount which plaintiff could have recovered was approximately $1,-687.50. While the evidence shows the freight was $386.70, such fact is not admitted in the pleadings, nor mentioned in the court’s charge. Paragraph 2 of the court’s charge reads as folldws: “If you find for the plaintiff you will give him such damages as you find he has sustained, and in arriving at the amount of such damages you will determine whether or not there was any difference between the price agreed to be paid plaintiff by defendant as expressed in the contract for his steers delivered in Houston on June 15, 1909, and the market price of such steers in Houston on said date, and such difference, if any, between the contract price and the market price of such steers in Houston on June 15, 1909, less the amount of freight required to be paid to deliver the steers in Houston, would constitute the amount of plaintiff’s damages.” It is evident that the jury was trying to follow this paragraph of the charge, and, after having figured the damages, they added the words “less freight” to show that the freight was to be deducted from the damages so found. The court could not render judgment upon the verdict without referring to the evidence for the purpose of ascertaining the amount to be deducted. When reference to the evidence is required, according to our decisions, the verdict is not sufficiently certain to be the basis for a judgment, even though the evidence be undisputed. Curlee v. Rogan, 136 S. W. 1126; Williams v. Smith, 98 S. W. 916; Smith v. Tucker, 25 Tex. 594; Bennett v. Seabright, 32 S. W. 1048; Brient v. Bruce, 5 Tex. Civ. App. 580, 24 S. W. 35; Blakeley v. Bldg. Ass’n, 26 S. W. 294; Burnett v. Harrington, 58 Tex. 363; Akin v Jefferson, 65 Tex. 141; Claiborne v. Tanner, 18 Tex. 78; Mays v. Lewis, 4 Tex. 45; Browne v. Fechner, 159 S. W. 465.

The case of Mays v. Lewis, supra, is the only case decided by our Supreme Court, cited by appellee in support of the verdict in this ease. The verdict in that case was for full amount of the notes “adduced in the ease,” and drawn by defendant in favor of plaintiff. The court said, in part: “Now, if the jury meant, as I believe they clearly did, the notes read in evidence, we should be * * * at a loss to say what notes, whether two. or all three of the notes set forth in the petition, or some other notes.” A reference to the evidence would probably have shown that the notes in evidence were those described in the petition, so it seems the court was of the opinion that the evidence could not be referred to. Such has been the construction placed upon the opinion by our courts. See the case of Smith v. Tucker, supra, in which the verdict could have been made certain by referring to the description of a tract of land contained in a deed which was in evidence, but the court held it could not be done. It appears clear that under the authorities cited the court could not look to the evidence in this case to fix the amount of the freight on the cattle, because to do so would be to give judgment upon the evidence, and not upon the verdict. Appellee suggests that if we find that the jury intended to have the freight deducted, we could require a remitti-tur of the amount thereof, and thus cure the error in the judgment. If the verdict had named the sum to be deducted, we could correct the error, but when a verdict is too uncertain to support a judgment, neither the trial court nor this court can enter judgment thereon. To do so would be to make the verdict for the jury, which is not permitted.

Assignments 3 to 6 raise the issue of excess in the judgment. As we have held that the verdict will not support a judgment, it is unnecessary to further discuss the matter presented by these assignments.

The seventh assignment questions the ruling of the court in striking out that part of defendant’s answer wherein he pleaded that it was agreed by parol for Bennett to determine whether the steers were fat. So many exceptions have been rcognized to the rule that parol evidence is not admissible to vary or contradict a written agreement that it has become a difficult question to determine whether the rule is applicable in a given cape. The change sought to be made would make the contract read that, instead of the question whether the cattle were fat being determined like any other question in the case, the same would be determined primarily by Bennett, and his decision would be final unless he failed to act in good faith. This would materially change the contract, and we think should not be permitted. The sole matter contracted about was the sale of the cattle. The matter sought to be proved did not involve a transaction constituting part of an original verbal entire contract, of which only a part was reduced to writing, but a matter directly qualifying a clause, and one of the important clauses, of the written contract. It provides for something inconsistent with what has been expressly stated, as it seeks to change the contractual obligations of the parties on the material question of what is required to be performed to comply with the contract. The assignment is overruled. Whitaker v. Willis, 146 S. W. 1004; Fish Bros. Wagon Co. v. Adams, 146 S. W. 704; Boone v. Mierow, 33 Tex. Civ. App. 295, 76 S. W. 772.

The eighth and ninth assignments relate to the admission of evidence upon the issue of market value. Whether evidence offered to prove such value is relevant is frequently a most difficult question, and one in the determination of which a certain amount of discretion is vested in the trial court. “The action of a trial judge in admitting witnesses as competent to testify on the question of value will not be revised in an appellate court, so long as reason has been exercised. * » * Should it appear that the action of a trial judge is unreasonable, and that prejudice has ensued, the appellate court may be compelled to reverse the judgment. Thus, should the preliminary detail of facts stated by the witness be rationally insufficient to warrant affirmative action by the jury in accordance with the estimate based upon it, the appellate court may be justified in setting aside the result reached by the trial judge. * * * Where the facts upon which the trial judge has acted are uncontroverted, the right of an appellate court to revise the action below seems much clearer. The question raised under such circumstances is one of law.” Chamberlayne on Modern Law of Evidence, § 2117.

The Houston Post and Houston Chronicle of June 15, 1909, were admitted in evidence, over appellant’s objections, for the purpose of proving the market value of the plaintiff’s steers in Houston upon that date. The statement in the Post was as follows: “The A. C. Bell Live Stock Commission Company quotes the Houston market as follows: Steers, good to choice $3.75 to 4.00 per cwt., common to fair 3.00 to 3.50.” The quotations in the Chronicle were exactly the same as those in the Post, except that they did not refer to the A. C. Bell Commission Company. A. C. Bell testified that he furnished the quotations to the Post, but did not know who furnished those to the Chronicle. 1-Ie and other witnesses testified that the quotations in the Houston newspapers related to the coast country steers, and not fat West Texas steers such as plaintiff contracted to sell. It was also proved that there was no cattleman’s exchange in Houston, or any other organization which issues official quotations of the market ; that Ft. Worth quotations were generally taken as a basis by which 'to buy cattle; that the quotations in said newspapers frequently were not changed for several days, although the market changed in the meantime. Plaintiff and some of his witnesses testified that the quotations in said newspapers were relied upon by persons dealing in cattle, and that they themselves relied upon them. These statements did not appear to have been based upon any actual deals with reference to such quotations made by themselves or others, and the writer doubts whether they should be held sufficient to accredit the newspapers, and also the wisdom of holding newspapers accredited unless proof be made as to their methods of procuring information. Wharton on Ev. vol. 1, § 674 (3d Ed.); Elliott on Ev. § 1302; Cham-berlayne on Mod. Law of Ev. § 2099c. In view, however, of the holding of this court upon the former appeal of this case and of the case of Railway v. Isenhower, 131 S. W. 298, we hold that an issue of fact was made as to whether the quotations were credible which justified the trial court (in the exercise of the discretion vested in .him) in holding the market reports in said newspapers sufficiently accredited. Even though the quotations related to a different class of cattle, there being testimony to the effect that coast country cattle were equally as good and valuable as those contracted to be’sold by plaintiff, we think the quotations could not be rejected as evidence because referring to coast country cattle. Railway v. Gunter, 39 Tex. Civ. App. 129, 86 S. W. 939. It appears, however, that when it was shown that the quotations in the Post represented only the opinion of A. C. Bell, such quotations should have been rejected as being merely individual hearsay. Chamberlayne’s Mod. Law of Ev. § 2099d; Bank v. City of New Bedford, 175 Mass. 257, 56 N. E. 290. We, therefore, sustain assignment No. 8 relating to the admission of the Post, but overrule No. 9 relating to admission of the Chronicle.

The tenth assignment is overruled for the reasons stated in discussing the seventh assignment.

As the case will be reversed, we will not discuss the eleventh and twelfth assignments, which relate to the sufficiency of the evidence.

By assignments 13 and 14 appellant attacks the admissibility of the testimony of plaintiff as to the market value, at Houston, on June 15, 1909, of cattle such as are described in the contract sued upon. Appellant contends that plaintiff upon cross-examination admitted that he based his opinion solely upon the quotation in the Post and Chronicle of a different class of cattle from those he-was testifying about, but upon examining his entire testimony we conclude that the court was authorized to hold that he could express-an opinion as to the market value of cattle in Houston such as he owned. While he-made no comparison of his cattle with the elass quoted, he testified to knowledge of theFt. Worth market, and made a comparison of values in the two markets. The same may be said of John Griffith’s testimony. Chamberlayne, Mod. Law of Ev. § 2099g. Assignments 13, 14, 16, and 17 are overruled.

The testimony of plaintiff, John Griffith, and Freeman that they relied upon the quotations in the Post and Chronicle was-merely for the purpose of accrediting said newspapers, and was admissible upon the issue of the credit to be given said newspapers, under the former decision of this' case and the case of Railway v. Isenhower, 131 S. W. 298. Assignments 15, 18, and 20 are overruled.

The nineteenth assignment complains of the admission of plaintiff’s testimony to the effect that he had written certain letters to two commission firms at Ft. Worth a few days after June 15th, and received replies that his cattle would bring about $3.50 on the Ft. Worth market. The loss of letters should be shown before a witness can be permitted to testify to their contents. The letters would not have been admissible if produced. Pecos Ry. v. Hughes, 44 Tex. Civ. App. 135, 98 S. W. 410; Western Union Company v. Bradford, 41 Tex. Civ. App. 281, 91 S. W. 818; Railway y. Williams, 43 Tex. Civ. App. 549, 96 S. W. 1088; Brockman Com. Co. v. Aaron, 145 Mo. App. 307, 130 S. W. 116; Chamberlayne, Mod. Law of Ev. § 2099d. The assignment is sustained.

The witness Freeman had no knowledge of the Houston market except what he got from the Post and Chronicle. He had never sold or bought any cattle at Houston, and did not testify to knowledge of any sales being made there by any one else. Yet, having testified to many years’ experience in the cattle business, and thorough familiarity with the class of steers which appellant’s witnesses testified were the ones quoted in the Chronicle, and also with the class of steers owned by plaintiff, we think he showed himself qualified to express an opinion as to the comparative value of the two classes of steers in the market at Houston or any other place, but did not show himself qualified to testify to what the market at Houston in fact was on June 15, 1909, as to either class of steers. Railway v. Gunter, 39 Tex. Civ. App. 129, 86 S. W. 939; Chamberlayne on Mod. Law of Ev. §§ 2101a, 2102. The twenty-first and twenty-second assignments are overruled.

The judgment is reversed, and the cause remanded.