author: TABBOT, J.

text:
    KELLY v. DALLAS CONSOL. ELECTRIC ST. RY. CO.
    (Court of Civil Appeals of Texas. Dallas.
    June 7, 1913.)
    1.Street Railroads (§ 90) — Injuries to Travelers — Negligence.
    Where, in an action against a street railroad company for injuries resulting from a collision between a car and a vehicle in which plaintiff’s wife was riding, there was evidence that as the car approached the place where the accident occurred it was stopped before coming in contact with the vehicle, and while it was standing still plaintiff’s wife drove the horse and vehicle in the clear, and that the motorman told plaintiff’s wife to stand still that he might pass, and while the vehicle was still in the clear the motorman started forward, and after the front of the car had passed the vehicle without striking it was suddenly backed and came in contact with the side of the car, the court properly charged that, if the car was stopped and while the vehicle was in the clear, the car started forward and in so starting the motorman exercised ordinary care and after the front of the car had passed in safety the vehicle came suddenly in contact with the side of the car under such circumstances that defendant could not by the use of means at hand have stopped the car and avoided the accident, then plaintiff could not recover.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-193; Dec. Dig. § 90.*]
    2. Street Railroads (§ 118) — Injuries to Travelers — Contributory Negligence — Duty to Exercise Care.
    Where plaintiff’s wife was injured in a collision between a street car and a vehicle in which she was riding, which it was claimed came suddenly in contact with the side of the car as it was attempting to pass, the court properly charged that it was plaintiff’s duty to exercise ordinary care for her own safety, and that if the jury believed that as the car approached the scene of the accident plaintiff drove to a place of safety where the car could have passed the vehicle without striking it, had the vehicle remained stationary, and if, while the car was passing the vehicle and after the front of it had passed, plaintiff’s wife permitted or caused the vehicle to come in contact with the side of the car, and an ordinarily prudent person would not have done so and such act on the part of plaintiff’s wife contributed to the accident, then she was negligent, and plaintiff could not recover.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*]
    3. Appeal and Error (§ 739) — Assignments oe Error — Propositions.
    A single assignment of error cannot be based on separate paragraphs of the court’s charge submitting distinct and unrelated questions to the jury and submitted as a proposition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3034-3036; Dec. Dig. § 739.*]
    4.Appeal and Error (§ 742) — Assignments op Error — Proposition op Law.
    Where an assignment of error based on the submission of paragraphs of the court’s charge is not a proposition of law within itself, it must be accompanied by an appropriate proposition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.*]
    5.Appeal and Error (§ 1058) — Reception op Evidence — Curing Error.
    Error in the exclusion of evidence is cured where practically all the evidence so excluded is subsequently admitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*]
    6.Appeal and Error (§ 1056) — Exclusion op Evidence — Prejudice.
    Where, in an action for injuries to plaintiff’s wife as a result of a collision with a street car, the jury found that the accident was not the result of any negligence of the defendant, plaintiff was not prejudiced by the exclusion of evidence relating solely to the extent of the injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*]

      Error to District Court, Dallas County; Kenneth Poree, Judge.
    Action by W. E. Kelly against the Dallas Consolidated Electric Street Railway Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Parks & Patton, of Dallas, for plaintiff in error. Baker, Botts, Parker & Garwood and Walter H. Walne, all of Houston, and Spence, Knight, Baker & Harris, of Dallas, for defendant in error.

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

   TABBOT, J.

This suit was instituted by the plaintiff in error, W. E. Kelly, who will hereinafter be referred to as plaintiff, against the defendant in error, hereinafter called defendant, to recover damages for personal injuries alleged to have been inflicted upon his wife, Mrs. S. B. Kelly, through the negligence of the defendant’s servants. It is alleged, in substance, that on the 3d day of August, 1909, while Mrs. Kelly, her daughter, and granddaughter were seated in a buggy or surrey, on Elm street, in the city of Dallas, Tex., the defendant’s servants in charge thereof negligently propelled one of its street cars against said vehicle, “so jarring, tilting, and upsetting the said vehicle as to force plaintiff’s wife therefrom with great force and violence, whereby she was seriously and permanently injured.” The defendant pleaded general and special demurrers, a general denial, and specially that the plaintiff’s wife negligently caused and permitted the horse hitched to the vehicle in which she was riding to back into and against the side of the ear while the said car was passing the vehicle in which plaintiff’s wife was seated, and this after the plaintiff’s wife knew of the approach of the said car and of its attempt to pass the vehicle. Defendant alleges that the aforesaid negligence upon the part of plaintiff’s wife caused and contributed to cause any injury that she may have received, if she in fact received any injury. A jury trial resulted in a verdict and judgment in favor of the defendant, and the plaintiff appealed.

It is assigned that the court erred in giving the following special charge requested by the defendant, namely: “You are instructed that if you find and believe from the evidence that as the defendant’s car approached the scene of the accident it stopped before reaching the vehicle in which plaintiff’s wife was seated, and that while it was standing still that plaintiff’s wife drove the horse and vehicle in the clear of the car so that the car could have passed same in safety, if it had remained stationary, and that the motorman thereupon told the plaintiff’s wife to stand still, that he could pass, and that after such statement, while the vehicle was in the clear, the motorman started his car forward, and that in so starting his car.he was in the exercise of that care that an ordinarily prudent person would exercise under the same or similar circumstances, and that the front of the car passed the vehicle in safety, and that after the front of the car passed the vehicle in safety, that the vehicle for some reason suddenly came in contact with the side of the car, and that it did so at such time and under such circumstances that the defendant could not by the use of the means at hand have stopped the ear and avoided the accident, then in that event you are instructed that the plaintiff would not be entitled to recover anything of the defendant herein, and you will return your verdict for the defendant.” There was no error in giving this charge. It very accurately and correctly grouped the facts relied upon by the defendant to show that it was not negligent upon the occasion of the said accident to plaintiff’s wife, and was authorized by the evidence. That the defendant was entitled to such a charge is thoroughly settled by the decisions of this state. The evidence was clearly sufficient to warrant the conclusion that as the defendant’s 1 car approached the place where the accident occurred it was stopped before coming in contact with the vehicle in which plaintiff’s wife was seated; that while it was standing still the plaintiff’s wife drove the horse and vehicle such a distance from the railway track that defendant’s car could have passed the vehicle without colliding with it had it remained stationary; that defendant’s motorman operating the car thereupon told plaintiff’s wife to stand still, that he could pass; that after such statement, and while the vehicle was still in the clear of the car, the motorman started the car forward; that in so starting the car he was in the exercise of ordinary care; that the front end of the car passed the vehicle without striking it; that after the front of the car had passed the vehicle in safety, the vehicle was suddenly backed, and came in contact with the side of the car; that neither of defendant’s servants in charge of the car was responsible in any sense for the backing of the vehicle, and that it was so backed under circumstances that said servants could not, by the use of the means at their command, have stopped the car and avoided the accident. By the express terms of the special charge complained of it required the jury to find the existence of the foregoing essential facts in order to return a verdict in favor of the defendant. Said group of facts, if true, entitled defendant to a verdict, and the court properly so instructed them. The charge, especially when read in connection with and construed in the light of the court’s main charge, is not sub-, ject to the criticism that it “makes the starting of the car and not what happened in both the starting and what happened up to the time of the starting and until the front end of the car had passed the vehicle the test of liability.” The court’s main charge ex? plicitly and more than once informed the jury that there was a continuing duty resting upon the defendant to exercise ordinary care for the safety of plaintiff’s wife.

Plaintiff’s case was predicated upon the theory and proposition that the defendant negligently notified his wife that the vehicle in which she was seated was a sufficient distance from the railway track to enable the ear to pass without striking it, when such was not true, and negligently ran the car against the vehicle while it was situated too near the track. The charge, as said by counsel for the defendant, negatives these allegations of negligence, and presupposes a state of facts that, if true, must necessarily entitle the defendant to a verdict.

The fourth assignment of error questions the correctness of the court’s action in giving the following special charge requested by the defendant: “You are instructed that it was the duty of the plaintiff herein to exercise ordinary care for her own safety; that is, such care as an ordinarily prudent person would have exercised under the same or similar circumstances. You are therefore instructed, if you find and believe from the evidence that as the car approached the scene of the accident, the plaintiff drove to a place of safety, where the car could have passed the vehicle without striking same had it remained stationary, and if you further find and believe that while said car was passing said vehicle, after the front of the car had passed same, that the plaintiff’s wife permitted or caused the vehicle to come in contact with the side of the car, and you further find that an ordinarily prudent person would not have permitted the vehicle thus to come in contact with the car under the same or similar circumstances, and that the act of the plaintiff in thus permitting the vehicle to come in contact with the side of the car contributed to the accident complained of herein, then in that event you are instructed that plaintiff’s wife would be guilty of contributory negligence.” For like reasons authorizing the giving of the special charge just discussed this charge was authorized and furnishes no ground for a reversal of the case. As said in Railway Company v. Rogers, 91 Tex. 52, 40 S. W. 956: “It is especially appropriate in this class of cases to submit to the jury the group of .facts which it is claimed constitutes negligence of either party and to instruct them what to do if they find the facts to be true or not. Such a charge directs the minds of the jury to the very facts in issue, and invokes their judgment upon the evidence relative to that issue.” Neither of the objections urged to this charge is well taken.

The fifth assignment of error complains of separate paragraphs of the court’s charge, and is submitted as a proposition. The paragraphs of the charge submit distinct and unrelated- questions for the determination of the jury, and for this reason the assignment of error is in violation of the rules, and not entitled to consideration. If we should be mistaken in this, then it is clear that the assignment is not a proposition of law within itself, and as it is not accompanied by an appropriate proposition as required by the rules is not entitled to consideration.

The sixth and last assignment of error is that the verdict of the jury is without evidence to support it. If it should be conceded that this assignment is in compliance with the rules, still it should be overruled for the reason that it is not sustained by the record.

The first and second assignments of error challenge the correctness of the court’s ruling in excluding certain testimony offered by the plaintiff- If there was error in these rulings of the court, it became harmless for the reason that it affirmatively appears that practically all the testimony excluded by the rulings complained of was subsequently admitted.

Besides, the jury having found that the accident in question and the injury received by plaintiff’s wife was not the result of any negligence of the defendant, and the evidence offered and excluded relating solely to the extent of her injury and the amount of recovery, is harmless error, if error at all.

The evidence is abundantly sufficient to support the verdict; and, finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: RAINEY, O. J.

license: Public Domain

text:
    LANE, State Comptroller, v. MAYFIELD.
    (Court of Civil Appeals of Texas. Dallas.
    June 7, 1913.)
    1. Courts (§ 155) — Jurisdiction — Injunction to Officers of State — Performance of Duty under Laws.
    The contract of the commissioners’- court of a county with plaintiff to collect delinquent taxes having been joined in by the State Comptroller, on behalf of the state, as authorized by Rev. Civ. St. 1911, art. 7707, it became his duty under the law to recognize plaintiff as collector of such taxes, and to pay him his stipulated fees within article 7707, prohibiting any court,, except the Supreme Court, from issuing mandatory injunction to an officer of the executive department of the government of the state to perform a duty prescribed by law.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 37S, 402½ ; Dec. Dig. § 155.*]
    2. Injunction (§ 118) — Petition.
    The petition alleging prior interference, but not alleging it was being continued, states no-cause for injunction on that account.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dee. Dig. § 118.*]
    3. Injunction (§ 7) — Necessity — Other Remedy.
    The county tax collector -being enjoined from ignoring plaintiff under his contract with the commissioners’ court of the county to collect delinquent taxes, there is no necessity for -enjoining the State Comptroller, who has no authority to cancel the contract as far as the state is concerned, and who has no authority over the county tax collector; plaintiff, if he shall collect delinquent taxes, and so become entitled to commissions, which the Comptroller shall refuse to pay, having remedy by proceeding to compel payment.
    [Ed. Note — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. § 7.*]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Action by C. A. Mayfield against W. P. Lane, State Comptroller, and another for injunction. Judgment for plaintiff. Defendant Lane appeals.
    Reversed, and injunction dismissed.
    W. D. Walthall and O. C. Funderburk, of Palestine, for appellant.

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

   RAINEY, O. J.

This is an injunction suit brought in the district court of Hill county by appellee against appellant, as Comptroller of the state of Texas, and John E. McKenzie, as tax collector of Hill county, seeking to restrain the defendants from doing certain things as will be shown hereafter. Appellant answered by motion to abate for lack of jurisdiction in the district court, to adjudicate the matter as to him, and further answered by general and special demurrer, and McKenzie answered by general demurrer and general denial. The motion to abate and the demurrers of both parties were overruled. The cause was tried and a judgment perpetuating the injunction thereto granted, and Lane alone appeals.

Appellee has filed no brief in this court, and we find the following, taken from appellant’s brief, as a correct statement of the facts of the case:

“Appellee’s petition sets out a contract between him and the commissioners’ court of Hill county, Tex., by the terms of which appellee obligated himself: (a) To prepare and bring down to date all the delinquent tax records of the county, and (b) to collect all delinquent state and county taxes. For these services said court agreed to pay ap-pellee 10 per cent, of the amount of all delinquent taxes (county) collected and paid over to the tax collector, and 25 per cent, on all that it was necessary to collect by suit. Appellant evidenced his joinder in said contract in the following words, to wit: T, W. P. Lane, Comptroller of Public Accounts of the state of Texas, hereby join the commissioners’ court of Hill county in the above contract made with C. A. Mayfield to collect the delinquent taxes of Hill county, on this, the first day of August, 1911. W. P. Lane, Comptroller.’
“On November 25, 1912, appellant wrote appellee in part as follows: ‘This is to notify you that I have this day canceled your contract as delinquent collector to take effect December 1, 1912. * ⅜ * Eor these reasons I have this day canceled your contract.’ On the same date appellant wrote defendant McKenzie in full, as follows: T am inclosing herewith copy of letter this day written to C. A. Mayfield, delinquent tax collector of Hill county, which explains itself. Upon taking charge of the tax collector’s office, please be governed by the inclosed letter.’ (The inclosed letter was the one quoted above, declaring cancellation of contract.) On November 30, 1912, appellant wrote to appellee in part as follows: ‘As to my authority to cancel your contract, the Attorney General’s Department advises there can be no question. ⅜ * * The contract itself provides that you shall prosecute your duties under the said contract to the full satisfaction of all parties hereto, including the state of Texas. In this respect you have completely failed, as your contract is in no instance satisfactory to the state, and for this reason I have canceled same. I do not care to have any further correspondence with you concerning this matter, and suffice it to say that, if the collector makes you any allowances for further collections of delinquent taxes, he will do so at his own risk.’
“Based upon the portions of correspondence quoted above, appellee in his petition makes the following allegations respecting appellant: ‘Plaintiff alleges that on or about the 1st day of December, 1912, the defendant W. P. Lane, purporting to act in his official capacity as Comptroller of Public Accounts of the state of Texas, by letter addressed to plaintiff, notified plaintiff that his contract with said commissioners’ court as set out above was canceled, and said defendant is refusing to recognize plaintiff as the delinquent tax collector of Hill county, Tex. That said defendant Lane is representing to the defendant John E. McKenzie, the said tax collector of 1-Iill county, Tex., that plaintiff’s said contract is canceled and that plaintiff is no longer authorized to collect the said delinquent taxes, and said Lane has instructed said McKenzie not to permit plaintiff to collect said delinquent taxes and not to recognize plaintiff as said delinquent tax collector.’ Here follow allegations complaining of the action of defendant McKenzie as follows: "That the defendant McKenzie has since the 1st day of December, 1912, refused to permit plaintiff to collect any of the delinquent taxes and has refused to accept from plaintiff any delinquent taxes collected by him and has refused to issue official receipts for such taxes so collected and has refused and still refuses to recognize plaintiff as such delinquent tax collector and has refused and still refuses to pay him any commissions on delinquent taxes collected since said date. Plaintiff alleges that, under the terms and provisions of said contract and the provisions of the law with reference thereto, plaintiff had the legal right for the full period of two years from the date of said contract to perform the duties of same unmolested by
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes defendants and to receive tlie benefits arising therefrom, and that it was the duty of said John E. McKenzie and of the said W. P. Lane in all things to recognize him as the collector of delinquent taxes for Hill county under said contract, and was and is the duty of said John E. McKenzie, tax collector of Hill county, Tex., to issue his official receipts for delinquent taxes collected and to pay over to plaintiff 10 per cent, of all such delinquent taxes so collected.’ Further complaining of the conduct of appellant, it is alleged: ‘Plaintiff alleges that the acts and conduct of said W. P. Lane in purporting to cancel said contract is arbitrary and malicious and without authority of law, and that the refusal by said John E. McKenzie, tax collector of Hill county, to perform his said duties under said contract, which he alleges are minister rial, is without authority of law, and that unless the said W-. P. Lane and John E. McKenzie are restrained from interfering with plaintiff in the performance of his duties under said contract, and unless the said J. E. McKenzie permits plaintiff to collect said delinquent taxes and to complete all of his laEors under same, this plaintiff will suffer great and irreparable damages.’ In his prayer appellee says: ‘Wherefore this plaintiff prays that your honor immediately grant his most gracious writ of injunction restraining until further hearing hereof the said defendants, W. P. Lane and John E. McKenzie, from in any manner interfering with plaintiff in the performance of his duties under said contract and commanding said defendants to recognize plaintiff as the duly authorized collector of delinquent taxes of Hill county, Tex., and commanding the defendant John E. McKenzie to permit plaintiff to collect said delinquent taxes and to issue official receipts therefor, to receive from plaintiff the said delinquent taxes so collected by plaintiff, and to pay over to plaintiff, in accordance with the terms of said contract, 10 per cent, of said delinquent taxes, and that upon final hearing after due service of citation hereon said injunction be made perpetual. Plaintiff prays for all relief, general and special, to which he may be entitled under the facts herein set forth, and for costs.’ ”

The proposition of appellant is that “the district court has no jurisdiction to issue the writ of injunction against an executive officer of the state government to order or compel him to perform any act or duty which, by the laws of this state, he is authorized to perform, whether such act or duty be judicial, ministerial, or discretionary.”

Article 5732, R. S. 1911, which is a re-enactment of article 4861, R. S. 1895, reads: “No court of this state (except the Supreme Court, as provided by article 1526) shall have power, authority, or jurisdiction to issue the writ of mandamus or injunction or any other mandatory or compulsory writ of process against any of the officers of the executive departments of the government of this state to order or compel the performance of any act or duty which, by the laws of this state, they or either of them are authorized to perform, whether such act or duty be judicial, ministerial, or discretionary.” This article of the statutes prohibits any court, other than the Supreme Court, from issuing mandatory or compulsory writs against an officer of the executive department of the government of this state to perform a duty (prescribed by law) whether judicial, ministerial, or discretionary.

As we construe plaintiff’s petition, it is to prevent the Comptroller from interfering with the tax collector in permitting plaintiff to proceed with the collection of delinquent taxes and to pay plaintiff for his services, in accordance with said contract, and that the Comptroller be required to recognize him as the duly authorized collector of delinquent taxes of Hill' county. The contract with plaintiff • to collect delinquent taxes was-made by the commissioners’ court of Hill county and was joined in for the state by the. appellant. R. S. 1911, art. 7707. By its terms appellee was to be paid ten per cent, on all taxes collected. Hence'it became the duty of the Comptroller under the law to recognize plaintiff as collector of delinquent 'taxes and his duty to pay him his fees as prescribed by said contract, Thus, as we see it, the injunction was issued to compel the performance' of a duty which the district court had no jurisdiction to issue; such a writ against the Comptroller and. the plea of abatement should have been, sustained. Const, art. 4, § 1; McKenzie v. Baker, 88 Tex. 676, 32 S. W. 1038; Betts v. Johnson, 96 Tex. 360, 73 S. W. 4.

The appellant had no authority to cancel the contract made with the county of Hill and joined- in by him for the state, and no authority or control over the.conduct of McKenzie, the tax collector of Hill county, in relation to said contract; hence his ipso dixit that it was canceled amounted to nothing as no one was affected thereby.

The Comptroller’s statement to McKenzie, the tax collector of Hill county, in effect that appellee’s contract was canceled and that he was not authorized to collect said delinquent taxes, and for him not to recognize appellee as said collector and not to permit him to collect said delinquent taxes, etc., was made before said writ of injunction was issued, and there is no allegation that the' saitv Comptroller was then continuing his interference; therefore there was no cause for an injunction against him. Again, as the Comptroller had no right to cancel the contract as far as the state was a party thereto without a judicial action for that purpose, and McKenzie was not compelled to act in obedience to the Comptroller, it was not necessary to make him a party to this action; and,- the court having enjoined ■ McKenzie from ignoring him under said .contract,' appel-lee accomplished what he' was entitled to, so if appellee collects taxes under the contract, pays it ■ over and ■ becomes entitled to commissions, and payment is refused by the Comptroller, he can proceed in a court of competent jurisdiction to compel payment.

As no power existed in the district court to issue the writ .of injunction 'under the circumstances, the judgment against the appellant granting the injunction is reversed, and the injunction dismissed.


author: RASBURY, J.

text:
    McCORD v. SOUTHWESTERN SUNDRIES CO.
    (Court of Civil Appeals of Texas. Dallas.
    June 7, 1913.)
    1. .Corporations. (§ ,90) — Subscription to Stock — Nature op Action.
    Under' a' contract to take a certain number of shares in plaintiff corporation, then “in process of formation” and to be chartered under the laws of the state, the law supplied the condition that the concern should in fact be incorporated, and On performance of such condition the subscribers’ liability became absolute and enforceable by an action of assumpsit, and an action 'for damages for breach of contract was not the sole remedy.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 245, 383-419; Dec. Dig. § 90.*]
    2. Corporations (§ 90) — Issuance of Certificate-Condition Precedent to Action for Subscription.
    The certificate showing the number of shares in a corporation owned by the shareholder is but the evidence of that fact, since he acquired a present interest in the corporation when his contract of subscription was executed, so that the corporation’s issuance, delivery, or tender of a certificate is not a condition precedent to an action against a subscriber for the balance due upon his subscription.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 245, 383-419; Dee. Dig. § 90.*].
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by the Southwestern Sundries Company against W; 0. McCord. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Spence, Knight, Baker & Harris and Alex F. Weisberg, all of Dallas, for appellant. W. S. Bramlett, of Dallas, for. appellee.

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

   RASBURY, J.

The appellee sued the appellant in the court below, alleging in substance that appellant had subscribed to a given amount of the capital stock of appel-lee, and had paid the subscription in part and refused to pay the balance. Judgment against the, appellant was asked for such unpaid balance. Appellant, so far as the issues raised on this appeal are concerned, answered by general demurrer and general denial. Upon trial before jury, and at the conclusion of appellee’s testimony — appellant offering none except to cross-examine appel-lee’s witness Bramlett — the court directed the jury to Return a verdict for the appellee, which it did. Judgment was entered upon the verdict, from which this appeal is prosecuted.

The facts developed upon trial show that by two agreements in writing, one dated March 13, 1911, and one dated March 20, 1911, appellant subscribed,- respectively, for 50 shares and 12 shares of the par value of $100 each of the capital stock of the appellee, a, corporation then in process of formation, and to be chartered under the laws of the state of Texas, and agreed to pay therefor one-half ■ cash, one-fourth in 90 days, and one-fourth in six months from the date of said subscriptions. The cash payment on each subscription was paid. Thereafter, on March 31,1911, the corporation was chartered by the state of Texas. After incorporation appellant also paid the first maturing one-fourth of his subscription. Payment of the remaining one-fourth on both subscriptions was refused by appellant, and the suit resulted. Appellee, at the time of the suit, was “an active going- concern,” conducting a wholesale business at Dallas, Tex. Appellant did not deny the execution of the two subscriptions sued upon.

Appellant’s first group of assignments of error raises substantially two points, and under them all it may be said the proposition is first advanced that when appellant refused to pay the balance due on his subscription contract, appellee’s remedy was not a suit to recover the unpaid balance thereon, but a suit for damages, the recovery to be the difference between the price agreed to be paid for the stock and the then market value of the stock, less the payments upon the contract by the appellant. We think the contention unsound in view of the facts stated, though the principle announced under a different state of facts is undoubtedly sound. Bearing in mind that appellant’s contract was an express and unconditional agreement to take a given number of shares in appellee corporation, then “in process of formation” and to be chartered under the laws of the state of Texas, and to pay therefor the amount named, an accepted authority, after noting the fact that in a few American jurisdictions a doctrine prevails that, in the absence of an express agreement to pay for the shares so subscribed, an action of as-sumpsit cannot be maintained without first a forfeiture and sale of the shares, says: “But where the contract of subscription does contain an express promise to pay the assessments, and the conditions of the subscription have been performed, then by all the authorities an action of assumpsit or other like action can be maintained in the first instance without a proceeding to forfeit the shares, or a declaration of forfeiture, sale of them, or other equivalent act.” 10 Oye. 383. The only condition that can be said to have been a part of the contract of appellant is the condition which the law furnishes that the

concern would in fact be incorporated. That condition was performed within the month in which appellant subscribed for the shares. In fact he paid part of the subscription after incorporation. The authority just cited further holds that upon incorporation the subscriber’s “liability becomes absolute.” 10 Oyc. 887. Our Supreme Court, in discussing the liability of subscribers to shares before incorporation, says: “ ‘The mutual promises of the several subscribers constitute the consideration, but the promise is to pay the subscriptions to a third party, viz., the corporation, and the promise is valid and binding, notwithstanding the corporation is to be formed thereafter.’ * * * The promise * * * to take the shares * * * is undoubtedly * * * a promise, not only to take the shares, but to pay for them, to take them upon the terms and conditions set forth in the subscription paper.” Belton

Compress Co. v. Saunders, 70 Tex. 699, 6 S. W. 134.

While it is true that in the case cited the question of whether the contract price or the difference between the contract price and the market value of the stock was the measure of recovery was not an issue, it seems too clear for argument that the right to recover the price agreed to be paid, as there held, precludes the application of any other rule. In our opinion the rule applicable in the instant case is the one quoted by counsel for ■appellee from Cook on Corporations (6th Ed.) vol. 1, p. 300, as follows: .“A preliminary agreement to form a corporation and take stock therein is not a contract by the subscribers with each other, and cannot be enforced by one or more against any other, but only by the corporation. Such an agreement, not made as a step authorized by statute in the process of forming the corporation, is a mere offer to the corporation not yet in existence, and is revocable by any subscriber until the birth of the corporation, which operates as an acceptance of the offer, and thereafter the subscription, if not previously revoked, is irrevocable and may be enforced by the corporation. Such an agreement, made as a step authorized by statute, in the process of forming a corporation, is made valid by the statute, and is binding upon each subscriber from the time of signing, and is irrevocable thereafter, but can be enforced only by the corporation. The damages recoverable by the corporation upon a subscription is the amount of the subscription; and all discussion of any other measure of damages, such as difference between par and market value of stock subscribed, arises from a misconception of the situation, and disappears from the net result of the authorities.”

It is also urged by appellant that the judgment is erroneous for the reason that ap-pellee did not plead or prove a segregation or setting aside of the stock to appellant, nor a delivery or tender thereof by appellee. In addition to what we have just said in reference to the binding force of an unconditional and express agreement to pay for shares of stock in a corporation in process of formation, the general rule is that the certificate showing the number of shares owned by the shareholder is but the evidence of that fact, since he acquired a present interest in the corporation when the contract of subscription was executed. It follows that the issuance, delivery, or tender of delivery by the corporation of a certificate evidencing appellant’s number of shares was not a condition precedent to his payment of the balance due upon his subscription. Van Norman’s Ex’rs v. Wheeler, 13 Tex. 316.

All other assignments of error are based upon the refusal of the court below to permit appellant to prove by R. S. Bramlett, appellee’s secretary, that the market value of the shares of appellant was equal to their market value. In view of our preceding conclusion, such testimony wa§ immaterial, and hence inadmissible.

The judgment is affirmed.


author: HARPER, C. J.

text:
    PURINGTON v. BROUGHTON.
    (Court of Civil Appeals of Texas. El Paso.
    May 1, 1913.
    Rehearing Denied June 5, 1913.)
    1. Counties (§ 191) — 'Taxation—Lew—Order — Validity.
    An order of the commissioners’ court of a county reciting that it is ordered by the court that the rate of taxation for a year for the county “be and is as follows,” followed by a tax rate for various purposes, does not levy a tax within the statute.
    [Ed. Note. — Eor other cases, see Counties, Cent. Dig. §§ 300, 305; Dec. Dig. § 191.*]
    2. Taxation (§ 734) — Tax Sales — Validity.
    A legal levy of taxes for which a sale is made must be shown or a tax sale is invalid, and the tax deed is no evidence of title.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1408, 1470-1473; Dee. Dig. § 734.*]
    3. Executobs and Administrators (§ 444)— Right oe Executor to Recover Real Estate-Plea in Abatement.
    The right of an executor to sue and recover property of the estate may only be questioned under a plea in abatement.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1813-1817, 1837-1841; Dec. Dig. § 444.*]
    4. Executors and Administrators (§ 7)— Right to Recover Real Estate — Actions —Evidence.
    Where, in trespass to try title by an independent executor, the record of probate proceedings showing the appointment and qualification of the executor was introduced in evidence, and there was nothing to show that the estate had been wound up-by an order of the probate court, it will be presumed that the executor was acting executor, and as such could maintain the suit.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig §§ 19, 20; Dee. Dig. § 7.*]
    5. Adveese Possession (§ 13) — Elements-Evidence — SUEEICIENCy.
    Where defendant in trespass to try title begun October 31, 1908, relied on adverse possession, he must show that he had adverse possession prior to October 31, 1903, and where there was no evidence that the premises were fenced prior to that time, and the proof showed that the possession since that time through tenants was not continuous and exclusive, a verdict for plaintiff showing legal title was properly directed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. .Dig. § 13.*]
    Appeal from District Court, Pecos County; W. C. Douglas, Judge.
    Action by John Broughton, independent executor of James P. Douglas, deceased, against Mary L. Purington. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. C. Jacltyon, of Ft. Stockton, for appellant. Carlton, Townes & Townes, of Houston, O. W. Williams, of Ft. Stockton, and John Broughton, of Houston, for appellee.

      For other oases 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

   HARPER, C. J.

Appellee, John Brough-ton, independent executor of the estate of James P. Douglas, deceased, filed this suit in the district court of Pecos county in trespass to try title to a section of land described in the petition against J. H. Nations and Mary L. Purington. Nations entered his disclaimer. Appellant filed her answer, containing general demurrer, plea of not guilty, and plead the three, five, and ten years statutes of limitation.

The appellee instituted this suit on October 31, 1908, to recover the land in controversy in his capacity as independent executor of the estate of Jas P. Douglas, deceased. As evidence of his right to recover he introduced in evidence patent from the state of Texas to Jas. P. Douglas, deceased, to the land in controversy. Appellee also introduced certified copy of an order from the probate records of Smith county, Texas, admitting the will of Jas. P. Douglas, deceased, to probate, and the appointment of appellee independent executor of said estate. The appellee also introduced in evidence certificate from the county clerk of Smith county, Tex., showing that appellee duly qualified as such independent executor on the 31st day of October, 1902. The appellant, Mary L. Purington, introduced in evidence a deed from Jno. Edgar, tax collector of Pecos county, Tex., to G. A. Purington for the land in controversy, dated July 17, 1885, which was filed for record in Pecos county, Tex., September 3, 1888. The appellant also testified by deposition that she was the surviving wife of G. A. Purington, deceased, and introduced evidence to show the payment of taxes on the section of land in controversy for a number of years prior to the institution of this suit.

In Dawson v. Ward, 71 Tex. 75, 9 S. W. 107, is held: “Our courts have determined that from the tax deed no presumptions are drawn that the requisite proceedings upon which the power to sell follows have been taken by the officers charged with the duty of levying the taxes, assessing the property and making the collections. That the deed of the collector without proof of the compliance with all the requirements of the law necessary to call into exercise his authority to make the sale, is no evidence of title in the party claiming under it is no longer an open question.” Clayton v. Rehm, 67 Tex. 54, 2 S. W. 45.

The following order of the commissioners’ court of Pecos county, Tex., was offered as proof that the commissioners’ court complied with their duty under the statute to levy the tax: “On this the 11th day of August, 1884, it is ordered by the court that the rate of taxation for the year 1884 for Pecos county, Texas, be and is as follows, to wit: County ad valorem tax, 15 cents on each $100.00 worth of taxable property. Courthouse and jail tax, 20 cents on each $100.00 taxable property.” This order does not in terms levy the tax, and it is impossible to interpret the words used as having that effect.

A legal levy of taxes for which sale was made must be shown or a tax sale is without authority, and the deed is no evidence of title; and for the reason that there is no evidence of compliance with other statutory provisions which are essential to a valid tax deed the deed offered in evidence did not convey title.

The fourth assignment of error charges error because the evidence show that the plaintiff had no right to sue for or recover the land. An executor’s right to sue and recover property belonging to the estate can only be questioned under a plea in abatement. Fischer v. Giddings, 43 Tex. Civ. App. 393, 95 S. W. 33.

And in the instant case the record of probate proceedings showing the appointment and qualification of executor, and no evidence appearing that the estate had been wound up by an order of the probate court, it will be presumed that appellee is still acting executor of the estate and as such has authority to bring the suit.

The other assignments raise the question, in different ways, that the court erred in instructing the jury for appellee when it should have been submitted upon the plea of limitation. The appellant, Mrs. M. L. Purington, was a nonresident of the state of Texas at the date of the institution of this suit, and had been for many years prior thereto. She sought to show possession to the lands in controversy through R. B. Neighbors and J. H. Nations, who were alleged to be her tenants. At the date of the institution of the suit, the section of land in controversy was in the pasture of J. H. Nations, and it seems that J. H. Nations purchased the ranch and cattle interest of R. B. Neighbors. The premises involved were located in which is known as the Lemons Tank pasture at the date of the institution of this suit. The tract of land was not in the Neighbors pasture at the time it was first inclosed, but the fences were at some subsequent date rearranged in such manner as to bring it within its boundaries. According to the testimony of Lee Serna, the Lemons tank pasture, which seems to have been a subdivision of the R. B. Neighbors pasture, contained about 22 sections, which were under the control of R. B. Neighbors; and according to the testimony of H. M. Patterson, the foreman of the J. H. Nations ranch, the section of land in controversy at the time J. H. Nations acquired the property was in a pasture containing more than 65,000 acres of land. Relying upon the possession of R. B. Neighbors and J. H. Nations, who appellant claims were her tenants, the appellant introduced the testimony of Lee Serna and J. L. Moore to show the nature and character of the appellant’s occupancy of the premises in controversy.

The witness Lee Serna testified as follows: “I lived in Pecos county from the spring of 1897 to 1898 and went to work for R. B. Neighbors on his ranch about 40 miles south of Ft. Stockton in Pecos county, and worked for him continuously until January after his death. I think he died in November or December, 1904. I am acquainted with the Lemon Tank pasture in Pecos county, Tex. Don’t remember when it was fenced, but know it was fenced after I worked for Mr. Neighbors. Mr. Neighbors ordered the pasture fenced and had control of the pasture after it was fenced. We used the pasture principally for steer cattle. I know where the southeast corner of the Lockwood or E. L. pasture is in Pecos county. I constructed a fence there from near the southeast corner of the E. L. pasture east of the J. O. Smith pasture. It is about three miles from the southeast corner of the E. L. Lockwood pasture. I do not remember when the fence was built. This fence inclosed what is known as the Lemons Tank pasture ih Pe.cos county. I removed from Pecos county about seven years ago in January after R. B. Neighbors died. I went to work for Neighbors either in the spring of 1897 or 1898. The R. B. Neighbors ranch in Pecos county was located about 40 miles south of Ft. Stockton. The ranch on the west side was all open. The Lemons Tank pasture was fenced by joining with Lockwood and Smith fences. The Lemons Tank pasture was fenced by joining other fences. I am not positive whether or not Neighbors owned all the land inclosed in the Lemons Tank pasture or not. I know that he owned some, and that he did not own other lands. Private parties may have owned lands in said pasture, but will not be positive about it. There was school land in the pasture — do not know whether he had it leased or not. It was my impression that he had control over all the land in said pasture. I do not know whether Neighbors inclosed the land that he did not own as he attended to the lands himself. I was foreman of the ranch. There was 20 odd sections inclosed in this pasture, but do not remember the exact number. Don’t know how many acres. I don’t know who owned the E. L. Lockwood pasture; don’t know who owned the Smith pasture; don’t know the size of the pasture; don’t know who owned the land lying between these two pastures ; know 'that Neighbors owned some. The map shows school lands and whether or not it was all sold I cannot say. I was in the employ of Neighbors when he died — do not know how long it was after his death until J. H. Nations took possession of the Lemons Tank pasture.”

The witness Moore on direct examination testified as follows: “I am tax assessor of Pecos county. Have held the office for 11 years. I was acquainted with R. B. Neighbors in his lifetime. I was acquainted with the. ranch he owned in Pecos county. In January, 1905, I took charge of that ranch after his death. I was sent out there to take charge of this and sell it and the cattle out of the estate. I took charge January 1, 1905. I am acquainted with what is known as the Lemons Tank pasture. I knew it when I took charge of the Neighbors pasture. Section 1, block 110½, S. A. & M. G. Ry. Co., was located in the southwest corner of the Lemons Tank pasture at the time I took charge of the Neighbors ranch. There was something like 20 sections in the Lemons Tank pasture. I don’t know exactly when that pasture was fenced. I was in the habit of passing down through that country before 1905, and saw that fence and knew that the Lemons Tank pasture was fenced. I am positive that it was there in 1904, and think it was fenced in 1903. I would not be right positive, but I know it was there in 1904, because I passed there two or three times through that pasture and I think it was there in 1903, and at that time there was about 20 sections of land in the pasture. Neighbors used it mostly for a beef pasture. He hardly ever kept any stock cattle in it; usually kept his steers in it and used it exclusively.” On cross-examination he testified : “The fenee that fences the Lemons Tank pasture joins onto the southeast corner of the Lockwood pasture and runs due east and joins the Smith pasture. That was the Smith pasture in 1905. When thé Smith pasture was first fenced, it did not go as far south as it' does now, and it was afterwards extended south so as to take in another block. Lemons Tank is on section 4, block 2, and is about three miles north of the southeast corner of the Lockwood pasture, and about the same distance north of section 1, block 110½. I remember the old fence which crossed between the Lockwood pasture and the old south fence as first put in. It run right by the Lemons Tank and did not include section 1, block 110½. Q. You did not know that the fence at the southeast corner of the Lockwood pasture running east so as to take this section 1 in block 110½ into the Lemons Tank pasture — you did not know that this was there before the year 1904, do you? A. No, sir; I went by this place twice. I don’t know just when that fence was moved south. It was there, though, in 1904. In January, 1905, I am positive of it. When I went to the ranch, January, 1905, there was no partition fence between Neighbors ranch and Moss ranch. Moss was running cattle in the west end of the same ranch. That had been going on for some little time. Moss’ cattle run over into Neighbors’ range and Neighbors’ cattle over into Moss’ range. There was a man by the name of Barnes on the southwest corner of same inclosure with a well and bunch of sheep. Section 1, block 110½, was supposed to be right in the corner of the Lemons Tank pasture against the fence. I was never with a surveyor who run out the line. I don’t know whether the fence is light on the line or not. It was supposed to be right on the south line of the survey. I never surveyed it out, though, to see where the line was. The fence from Lockwood ranch to Smith ranch running somewhere about the south line of section 1, block 110⅜, was there when I went there in 1905. That section was included or inclosed on all sides by other lands.” On redirect examination he testified: “There was a fence on the south supposed to be on the south line, and the fence on the west, the Lockwood pasture, which fenced two sides. Moss nor any of the parties mentioned as being in the pasture with Neighbors did not pasture stock in the Lemons Tank pasture. They had nothing to do with it. It was controlled exclusively by Neighbors. There was no partition fence between the Neighbors ranch and Moss. Just the Lemons Tank pasture fenced off by Neighbors. When I went down there in January, 1905, the fence on the south side of Lemons Tank pasture the wire was knocked off and tied down to the bottom for 200 or 300 yards so cattle could pass backwards and forwards. I think it had been that way all winter. I am not sure. In about 1 or 1½ months after I went there I put this fence back up. I put it up before Mr. Patterson came out there. Don’t know how long it had been down before I went there. That was just temporary. There was not very much water on that end of the range and the Lemons Tank had plenty of water in it, and they knocked the wire off the posts and tied them down to the ground so the cattle could go in and water. When the cattle would water and pass out over the fence where it was tied down, they would pass into the pasture where Moss also had cattle ranging, and in which Barnes was located in the southwest corner of same. There was 50,000 or 60,000 acres or more in that pasture. I think there was something like a 100 or 125 sections in it. It was bounded on the north by the Lockwood pasture fence and extended along the south fence of Lockwood’s pasture for 20 miles or more back into the mountains without any fence to fence it off from the surrounding country. Joe Irving’s was the next fence west, something like 20 miles from the Lemons Tank, and stretched over to what was called the old W. B. pasture on the south, being about 20 miles east and west by from 5 to 15 miles north and south. It was all open country south of Lockwood’s pasture as far west as Irving’s; part of that territory was occupied by Moss with cattle, and Barnes in southwest corner of Moss. I don’t believe there was anyone else in there. I do not know of my own knowledge whether or not the taking the fence down so the cattle could go to the Lemons Tank for water was temporary or not. I was guessing at that. Do not know how long the fence had been down, nor for what purpose it was left down. There was no trouble for cattle, horses, or any stock to pass over it. A wagon could pass over it. It was fiat on the ground. The stock of both Neighbors and Moss passed over the fence and watered at this tank. They were all mixed up together, and we did not try to keep them separate. When we gathered the cattle, we got about as many of the Moss cattle as we did of the Neighbors cattle.”

On being recalled, J. L. Moore testified as follows: “I have lived in this county about 15 years. The rental value of lands like the land in controversy is about 4 cents per acre per annum. The fence I spoke of being down on the south side of the Lemon Tank pasture was not on this section of land in controversy. It was, I think, more than a mile from the corner of the fence. It might not have been over a mile. There is a little strip as well as I remember between it and the Lockwood fence, a quarter to a half mile wide; lays between the section of land in controversy and the Lockwood fence. Before the fence was moved from the Lemons Tank south to where it was located in 1905, when I went there, this section of land in controversy was in the large pasture used by Neighbors and Moss as hereinbefore described. I do not know when the fence was moved south. It was there though in 1904. The fence was moved from immediately south of the Lemons Tank to the south side of the section of land in controversy. Before that the land then lay in the pasture which had Moss and some one else ranching. There was no fence immediately below or south of the Lemons Tank when I went there in 1905, until you got to this southeast corner of the Lockwood pasture. I do, not remember the year that the J. O. Smith fence was put in there. It was about 1899, though. Q. You know that that fence was moved in 1904 from the Lemons Tank to where it stood in 1905, and I believe you stated this morning that you thought in 1903 it had been moved? A. Yes; it struck me that it was there earlier than that, but I would not be positive, but I was through that pasture two' or three different times in 1904, and it was where it now is in 1904, but I am not positive just when it was moved. Q. Your best opinion is that it was there in 1903; your best recollection is that it was there in 1903, is it not? A. Well, it seems to me that it was; I am not positive though, whether it was or not. By Plaintiff: You cannot swear that it was not there? A. No; I passed through that country there usually every year once or twice. Sometimes, though, I would go the other road. J. L. Crawford lived close there and had a better opportunity to know when it was moved than I had.”

J. L. Moore, being recalled, stated: “I have no date that I can refer to further back than 1904 as to when the fence was there. I am not sure that I went through the pasture in 1903. If this fence was moved in 1903, and I passed there during that year and saw the fence standing where it now does on the south end of the Lemons Tank pasture, it was before May or during that month, 1903, that I saw it.”

Appellee instituted this suit October 31, 1908. In order for appellant to recover, it is necessary for her to show that she had adverse possession of the premises in controversy prior to October 31, 1903. There being no evidence that the land was fenced prior to that date; and, the evidence further showing that the possession since that date through her agents or tenants was not continuous and exclusive, the court did not err in instructing a verdict. The judgment of the lower court is therefore affirmed.

McKENZIE, j., did not sit in this case.


author: LEVY, J.

text:
    HARTFORD FIRE INS. CO. v. ADAMS.
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1913.
    Rehearing Denied June 5, 1913.)
    1.Insurance (§ 335) — Provisions for Forfeiture — 'Validity.
    A provision of a policy of insurance on a stock of merchandise requiring the taking of
    an inventory within 12 months of the last preceding inventory, or, if no inventory had been taken within 12 months of the date of the policy, then within 30 days after the date of the policy, and providing that if this was not done the policy would be void, was valid and enforceable.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.*]
    2. Insurance (§ 335) — Forfeiture—Failure to Take Inventory.
    Where a policy of insurance on a stock of merchandise required an inventory tó be taken within 30 days after its date, and provided that a failure to do so would render the policy void, noncompliance with this provision avoided the policy, and it could not be revived by taking the inventory after the expiration of 30 days and before a fire without the insurer’s consent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.*]
    3. Insurance (§ 335) — Forfeiture—Failure to Take Inventory.
    Where a policy of insurance on a stock of merchandise required the taking of an inventory and provided that it should be void unless this was done, the insurer could not be compelled to accept the invoices of the goods purchased by the insured in lieu of an inventory, since it would be assumed that, by stipulating for an inventory, the parties contemplated that there was a practical and substantial difference between an inventory and invoices, especially as the invoices would have no verity as evidence of goods received into the stock of merchandise unless it were shown by other evidence that the goods were checked therewith and found correct, and the goods represented thereby actually received and added to the stock before the close of the period for which they were to be used as an inventory, and the furnishing of the invoices not being a compliance with the policy, the rule of substantial compliance did not apply.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.*]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by James R. Adams against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    This is a suit on a fire insurance policy covering a stock of merchandise. There was a loss payable clause to defendant in error, and after the fire the insured assigned the policy to him. The policy, among other things, provided: “The following covenant is hereby made a part of this policy and a warranty upon the part of the assured: Section 1. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory if such has been taken. Unless such an inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at- the date of this policy, one shall be taken within thirty days after the date of this policy, or in each and either case this entire policy shall be null and void.” Plaintiff in error pleaded that the policy was null and void because the assured failed to take an inventory of his stock of goods within 80 days after the policy; none'having been taken before the issuance thereof. •
    The facts are undisputed. On January 11, 1911, Lloyd Cone opened up a hardware business in Edgewood. On January 19, 1911, the policy sued on was issued to him by plaintiff in error’s agent and insured his stock of goods for one year. On June 20, 1911, the insured contracted an undivided half of the stock of merchandise to C. E. Swartztrauber, and on July 1, 1911, an inventory was taken to effectuate the sale. It is an admitted fact that the inventory taken on July 1, 1911, was the first and only inventory ever taken of the stock. A fire destroyed a part of the merchandise on November 23, 1911. The insured testified: “I kept my original invoices showing each item of the goods purchased from the time I opened business to the fire and offer them in lieu of an inventory. They represent the goods I bought.” There is no proof that the articles of merchandise represented by the invoices were or were not ever in the store.
    Wm. Thompson and Jno. S. Patterson, both of Dallas, for plaintiff in error. Price & Beaird, of Tyler, for defendant in error.

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

   LEVY, J.

(after stating the facts as above).

By its first assignment the plaintiff in error makes the contention that the failure on the part of the insured to take an inventory of the stock of merchandise within 30 days after the date of the policy worked a forfeiture of the policy, and a verdict should have been directed in favor of plaintiff in error. It was an admitted fact in the trial that an inventory of the stock of merchandise was not taken by the insured within 30 days after the date of the policy, and that none was ever taken before the date of the policy, and the loss occurred several months after the date of the policy. The provision of the policy under consideration has been generally declared by the courts as a valid and enforceable term of contract and to be performed to entitle the insured to recover for a loss. See Insurance Co. v. Mercantile Co., 126 S. W. 616; Id. (Sup.) 135 S. W. 1165. So it must be said that the parties entered into a valid and enforceable contract embraced in the policy wherein it was expressly agreed that “this entire policy shall be null and void” unless (1) “the assured will take a complete itemized inventory of stock on hand,” and do so (2) “within thirty days after the date of this policy.” There can be no question about what was intended by the parties. The policy was either valid or invalid after the 30 days, according to whether or not the assured took an inventory within the 30 days. If the courts must enforce all valid and reasonable terms of contract, as they must and properly should do, then there could be no justification for the court’s setting aside the terms of contract because the insured, subsequent to the 30 days, did what he was obligated to do within the 30 days in order to keep the policy in force. The policy being voided by its terms after the 30 days, the subsequent act' of taking an inventory in July would not operate to revive the policy without the consent of the insurance company.

Defendant in error relies in this case on invoices of the goods by which they were purchased as being equivalent to an inventory of the stock and as constituting substantial compliance with the requirement of an inventory. The parties having stipulated, as they had the right to do, for a record of the class of an “inventory” which “the assured will take,” it is not believed that the courts would be justified in so changing the language of the parties as to compel the insurance company to accept a record of a different class or a substitute for that which it had contracted for. And there is a practical difference between submitting an inventory taken of stock in the store and offering an invoice of goods by which they were purchased. For invoices to have any verity as evidence of goods received into a stock of merchandise, it would become necessary to show outside the invoice that the goods were checked with the invoice at the time they were received into the store and were found to be correct in quantity and soundness, and that the merchandise represented by the invoice was actually received into the house and added to the stock before the close of the period for which the invoices are to be used as an inventory, for it is commonly known that invoices most frequently precede shipments and sometimes the goods are only on approval. It must be assumed that the parties contemplated there was a practical and substantial difference between an inventory and commercial invoices by stipulating, as they did, for an inventory to be taken by the assured. It has been decided that the furnishing of invoices by which goods were purchased was not a compliance with the requirement of taking of an inventory by the assured within 30 days after the- date of the policy. Fire Ass’n v. Masterson, 25 Tex. Civ. App. 518, 61 S. W. 962; Insurance Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Reynolds v. Insurance Co., 107 Md. 110, 68 Atl. 262, 15 L. R. A. (N. S.) 345. In the case of Insurance Co. v. Delta Bank, 71 Miss. 608, 15 South. 932, the insured was not required to produce invoices in lieu of an inventory under the requirement of a clause that ■ an inventory be takén, kept, and produced. If an insured is not required to produce invoices in lieu of an inventory under the requirement that an inventory be taken and kept then, conversely, the furnishing of invoices would not be a compliance with the requirement that an inventory be taken. The case of Assurance Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661, would not have full application to the question here, for in that case an inventory had been taken but destroyed by fire at the time the goods burned, and in the instant case there is default in any compliance at all. Defendant in error contends that offering the invoices operates as a substantial compliance with the requirement, and that this was sufficient. It is not believed that, where there has been no compliance or undertaking to comply with the requirements, the rule of substantial compliance could apply. It is correctly said by Justice Brown in the Re-mendó Case, supra: “But when there is no compliance whatever there can be no question of a substantial compliance with such requirement.” The case of Insurance Co. v. Kearney, 180 U. S. 132, 21 Sup. Ct. 326, 45 L. Ed. 460, has no application to an insured who has never undertaken to comply with the requirements, and therefore does not support the proposition here. Giving full legal effect to the admitted facts under consideration, the policy was voided at the time of the fire; and defendant in error, taking his rights subject to the conditions of the policy, cannot recover. The assignment is sustained.

The judgment is reversed and here rendered for plaintiff in error, with costs of appeal and of the county court.


author: PLEASANTS, C. J.

text:
    HOUSTON MOTOR CAR CO. v. BRASHEAR.
    (Court of Civil Appeals of Texas. Galveston.
    May 7, 1913.
    Rehearing Denied June 5, 1913.)
    1. Sales (§ 130) — Rescission — Actions — Sufficiency of Evidence.
    Evidence, in an action by the purchaser to rescind the sale of an automobile, held to show that plaintiff kept and used the car after he knew that its defects could or would not be cured by the seller.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.*]
    2. Sales (§ 121) — Rescission—Waives.
    The purchaser of an automobile, by keeping and using it after he became satisfied that its defects could or would not be cured by the seller, waived his right to rescind the contract because of such defects, leaving as his only remedy an action for damages for breach of warranties.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 296-301; Dec. Dig. § 121.*]
    3. Sales (§ 121) — Rescission—Fbaud.
    As a rule, one defrauded in a contract of sale must disaffirm at the earliest practical time after discovering the fraud, and if he retains and continues to use the property thereafter he waives his right to rescind, especially when he elects to affirm the contract by notifying the seller that he will hold him for damages for breach of warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §,§ 291-301; Dec. Dig. § 121.*]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Action by S. H. Brashear against the Houston Motor Car Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    C. P. & Otis K. Hamblen, of Houston, for appellant. A. L. Jackson, of Houston, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant to rescind the sale of an automobile purchased by him from appellant, and to recover the money paid by him for said automobile, and in the alternative to recover, for alleged breach of warranties made by appellant in the sale of said automobile, the difference between the amount paid by appellee and the value of the automobile, which difference is alleged to be the sum of $2,000. In addition to a general denial the defendant specially pleaded that plaintiff had waived any right of rescission he may have had because of the length of time he had kept and used the automobile after he had discovered the alleged defects therein, and, further, that defendant had procured from the factory the necessary equipment for curing the alleged defects in the car and desired to remedy said defects, but plaintiff would not permit such work to be done, and defendant made tender of such equipment and offered to adjust same to the car and remove the cause of plaintiff’s complaint free of charge to him. In answer to this plea of defendant plaintiff filed a supplemental petition, which alleges, in substance, that his delay in tendering the car back, and his continued use thereof, was induced by the repeated assurance of appellant that all defects in the car would be remedied. The cause was submitted to a jury upon special issues, and upon the return of the verdict judgment was rendered in favor of plaintiff for a rescission of the sale and recovery of the sum of $2,250, the amount paid by him for the car.

The contract for the purchase and sale of the automobile was executed on December 20, 1910. This contract contains this stipulation : “It is understood that this car may be rejected if after arrival it does not come up to representation in every detail.” The car was delivered to plaintiff about January 10, 1911. After using it for a week without discovering any defects plaintiff, believing that the car was what it was warranted to be, paid defendant the agreed price of $2,250. About a month after this the car began to show defects, and plaintiff complained to defendant company, and was assured by the member of the company with whom he had made the trade, that there was nothing radically wrong with the machine, and that the defects would be remedied. Defendant was called upon, on various occasions prior to May 16, 1911, to remedy defects in the car, but never succeeded in making more than a temporary improvement in its operations. On May 16, 1911, .plaintiff wrote defendant a letter, which contains the following: “We have been assured by you from time to time that some little thing here or there was out of order, and that upon the same being adjusted or repaired the machine would then work all right. Having waited patiently some months for this condition to come about, we began several weeks ago to arrive at the conclusion that it was a failure, and that we have not received our money’s worth. Developments since that time have confirmed that conclusion. * * * We are compelled to give you notice that we do not regard this auto as value received, and that we shall have to hold the company for the difference between the actual value and that of a car of the kind which we contracted for and had a right to expect.” On May 29, 1911, appellee wrote appellant, complaining of the defects, and saying: “While I appreciate very much your curtesy in the matter, I do not expect the car to give satisfaction.” On June 1, 1911, appellee wrote appellant, making complaints, and saying: “I have made up my mind to bring suit for the damage which we have suffered for having paid you $2,250 for this car when apparently it is not worth one-fourth of that figure.” On June 10th appel-lee- wrote appellant a post card, asking appellant to reply to his letter of June 1st. On June 12th appellant replied, stating that it had ordered some equipment from the factory with which to adjust the trouble, and that when same arrived a representative of the factory, who would be in town, would put same in shape. On June 28th appellee wrote appellant in answer to the foregoing letter, in which appellee mentioned appellant’s statement that it had sent to the fac-ory for the equipment, but asserting that there were other complaints that appellant did not refer to it in its letter, and saying: “As you have before admitted, there are other defects which should be made good, and I do not intend to drop the matter until they have been.” In said letter last referred to appellee said: “The chain guards have been replaced or repaired, as contemplated by you in your letter, but I have no idea that it will be satisfactory.” There was no offer by appellee to return the car until July 4, 1911. Appellant then declined to accept the car and return the purchase price, and on July 5, 1911, this suit was filed. On July 6th appellant wrote appellee that the factory had advised appellant that new chain fasteners had been shipped which would remedy the defect in the car, and that the factory representative had arrived and would take the matter up with him. Appellee declined to furnish the car for further experiments of this kind. On July 11th appellant again informed appellee that the necessary equipment had arrived and requested that it be permitted to place same on the car. During the six months that appellee kept and used the car he ran it 3,914 miles. It was also shown that while in use by appellee one of the wheels of the car and one of the battery jars were broken, but the wheel had been repaired and the jar replaced by appellee or at his cost.

We think it clear from this evidence that appellee, by keeping and using the car after he knew or became satisfied that its defects could or would not be cured by the appellant, waived his right to rescind the contract, and his only remedy is to recover damages for breach of the warranties in the contract of sale. It cannot be said that he was induced to keep and use the car by the assurance of appellant that its defects would be remedied, when there is nothing in the evidence to indicate that he ever contemplated or desired, prior to July 4, 1911, a rescission of the sale. 1-Ie made no offer to rescind prior to that time, but his effort was to get the defects remedied, and this appellant was trying to accomplish. The letters of May 16th and June 1st, before mentioned, show that appellee did not then intend to rescind the contract, though he knew or believed that the defects would not be remedied. How can it be said that appellee was induced by appellant’s promises and'assurances not to do a thing which his own testimony and his letters show he did not contemplate or intend doing? In these letters he notifies appellant, not that he will rescind the contract, but that he will sue for damages. There is no rule of law that will permit appellee, after reaching this conclusion and so notifying appellant, to keep and use the car for six weeks longer and then change his mind and require appellant to take the car back and return him the money paid for it.

The general rule is that a defrauded party must disaffirm the fraudulent contract at the earliest practicable time after the discovery of the fraud; and, if a buyer retains an article and continues to use it after discovering the fraud that induces its purchase, he waives the right to rescind the contract. If the retention and use of the article by the buyer, after the discovery of the defects which would have authorized a rescission of the sale, is generally sufficient to estop him from asserting the right of rescission, he certainly loses such right when, in addition to the retention and use of the article, he expressly elects to affirm the contract by notifying the seller that he will hold him for damages for breach of warranties in the contract of sale. In the case of Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857, it was held that the use by appellee Berry of a machine, purchased by him from appellant, for 14 days after he had discovered its defects and had written appellant that he intended to sue,for recovery of the money he had paid therefor, was a waiver of his right to rescind the contract of sale, and that the trial court should have so instructed the jury. In support of this holding the court cites the cases of Foster v. Rowley, 110 Mich. 63, 67 N. W. 1077, Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090, and Bassett v. Brown, 105 Mass. 551, each of which sustains the holding. The holding also finds support in the following cases: Pullman Car Co. v. Street Car Co., 157 U. S. 94, 15 Sup. Ct. 503, 39 L. Ed. 632; Scalf v. Tompkins, 61 Tex. 476; Geiser Mfg. Co. v. Lunsford, 139 S. W. 68.

We think, upon the facts shown by the undisputed evidence, the trial court erred in submitting to the jury the question of whether plaintiff’s offer to return the car was made in a reasonable time, and should have instructed the jury to find for defendant upon the issue of plaintiff’s right to rescind the contract of sale. The evidence upon the question of the value of the car is indefinite and unsatisfactory, and there is no finding of the jury upon that question which would authorize this court to render a judgment for any amount. Such being the state of the record, the judgment of the court below should be reversed and the cause remanded, and it has been so ordered.

Reversed and remanded.


author: REESE, J.

text:
    BEEBE et al. v. SWEENEY et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 15, 1913.
    Additional Findings of Fact, June 5, 1913.)
    1. Boundaeies (§ 37) — Sufficiency of Evidence-Acquiescence.
    > Evidence in trespass to try title held not to show a recognition of, and acquiescence in, a certain line as a boundary line by the person, under whom defendant claimed.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-194; Dee. Dig. § 37.]
    2. Boundaries (§ 35) — Evidence—Acquiescence.
    In trespass to try title, in which plaintiff claimed that defendant was estopped from claiming the land in controversy by his grantor having acquiesced in the establishment of a certain line as a boundary line, evidence was not admissible to support such claim that witness after examining the title to the property for plaintiff’s vendor advised him that title was good.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 153-155, 157-159, 163, 165, 177-183; Dec. Dig. § 35.]
    3. Boundaeies (§ 48) — Establishment of Line — Acquiescence.
    Acquiescence in a boundary line established by an adjoining owner affords a strong presumption that such line is the true line, but is not conclusive thereon; the weight of such acquiescence depending upon the circumstances and being for the jury’s determination.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 232-242; Dec. Dig. § 48.]
    4. Trial (§ 170) — Directed Verdict — Submission on Special Issues.
    A request to direct a verdict for plaintiff in certain contingencies was properly refused, where the case is submitted on special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 390-394; Dec. Dig. § 170.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by J. C. Beebe and others against Hallie B. Sweeney and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    W. J. Howard, of Houston, for appellants. Campbell, Sonfield, Sewall & Myer and W. F. 'Carothers, all of Houston, for appellees.

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

   REESE, J.

This is an action in trespass to try title instituted by J. C. Beebe et al. against Hallie B. Sweeney et al. to recover a tract of about 120 acres of land out of the Wm. Scott league in Harris county. The suit, in fact, is to settle a boundary between two parts of said league, being that part set apart to Sarah P. Williams and that set apart to George W. Scott, two of the four children and heirs at law of William Scott, out of said league, in so far as said boundary is also the boundary line between lands belonging to plaintiffs on the George W. Scott part of said league, and lands belonging to defendants on the Sarah P. Williams portion. The case was submitted to the jury on special issues. The verdict upon these special issues was in favor of defendants, and judgment was rendered in their favor, from which the plaintiffs appeal.

The following sketch will explain the subject-matter in controversy:

Bay

Appellants deraign their title from George W. Scott and appellees under Mrs Sarah P. Williams. It is not disputed that each of these parties owned approximately one-fourth of the William Scott league, and that the league was partitioned between the four heirs mentioned. The division line between the Sarah P. Williams tract and the George Scott tract, it is agreed, began at a cypress on Bridge gully on the bay, the location of which is not disputed, and ran thence to the north line of the league. Appellants claim that this line ran from this cypress north 5 degrees east, and appellees claim that the course was north 12 degrees east. The land in controversy is the tract bounded by these two lines on the east and west, respectively, by the Overland tract on the south and the north line of the league on the north. The partition of the league among the four heirs, it is contended by appellants, was effected by each of them conveying a separate tract, approximately one-fourth of the league, by several and separate deeds. Appellees contend, on the other hand, that there was a verbal partition made and agreed on about 1843, a survey having been made by a surveyor for that purpose, one John Carson, and that afterwards each one of the heirs conveyed the portion so allotted to him in this verbal partition. In answer to questions propounded by the court, the jury replied, first, that the partition of the league was made by the heirs in the year 1843; second, that at the time of the partition there was a “sole” division line actually established on the ground between the portions of the William Scott league awarded to Sarah P. Williams and George Scott, respectively, in said partition; third, that this line starting at the mouth of Bridge gully at the cypress mentioned, ran north 12 degrees east to the north line of the William Scott league; and, fourth, that Mrs. Williams and George W. Scott never subsequently changed this line. The evidence fully authorizes and supports these findings, and we hereby adopt them as our conclusions of fact. The evidence is voluminous, and it is neither necessary nor proper that this opinion be burdened with a recitation of it. The evidence that such partition was actually made is shown by recitals in the deeds afterwards made by the several heirs, by the original field notes of Carson of the Sarah P. Williams tract dated in 1843, and which have been handed down and kept with the deeds of that tract, and produced at the trial. It does not appear that these field notes were ever recorded, but their genuineness was sufficiently shown. Certain old original maps or sketches of the land were also introduced in evidence. This evidence also sufficiently established that the division line between the 'Sarah Williams and George Scott portions of the league ran from the cypress called for north 12 degrees east. The Carson field notes called for this line, and so did the old original maps referred to. The further answer of the jury that this line so actually established on the ground was never subsequently changed by Mrs. Williams and George Scott was supported by the evidence.

Appellants’ contention rests mainly upon the following facts: In 1848 George Scott conveyed to one Overland a part of his tract, marked on the sketch as the “Overland tract,” the deed describing this line, the west line of the Overland tract, as running north 5 degrees east from the cypress mentioned. In 1848 he also conveyed to Thomas Wright what appears to be the remainder of his tract, giving the boundaries as in part along the east and north lines of the Overland tract to its northwest corner, and thence north 5 degrees east to the north line of the league. This last line would be a prolongation of a line from the cypress referred to, north 5 degrees east to the north line of the league. In 1860 Sarah P. Williams conveyed to William H. Williams her portion of the Scott league by the following description: “All that tract of land situated in Harris county, state aforesaid, on the E. side of San Jacinto or Galveston Bay about 5 miles from the town of Lynchburg and the upper division of the league of land granted by the government of Coahuila & Texas to my father, William Scott, and that part of said league set apart to me as one of my said father’s heirs under and by virtue of a partition effected between said heirs, said tract hereby conveyed includes all the front on said bay comprehending the old homestead improvements and land back to the back line of the league and between the Bloodgood place above and the piece or division of said league below acquired by my brother, Geo. W. Scott, one of the heirs, part of which the Overlands now occupy and own, containing 1100 acres of land more or less, to irientify the said land the same hereby conveyed the grant to my father, Wm. Scott, the division including the field notes and all other papers relating to the same are made a part of this deed.”

In 1861 William H. Williams conveyed it to Campbell by the same description. At the time these last two deeds were executed the deeds from George W. Scott to Overland and Wright, respectively, were on record. It is contended that this showed a recognition of and acquiescence in this north 5 degrees east line as the division line between the two tracts by Mrs. Williams and her vendee, and, further, that by these facts Mrs. Williams and all persons claiming under her, including appellees, are estopped to deny that this line is the true division line between their respective tracts. If Mrs. Williams in her deed had called for the line of the Overland tract as the dividing line, there would be much force in this contention. This would, of course, have authorized the assumption that she knew that this line ran north 5 degrees east from the cypress, and that she recognized this as the dividing line. This effect can by no kind of reasoning be given to the reference to the Overland tract in her deed. This reference only authorizes the assumption that Mrs. Williams knew that her brother had sold a portion of his tract to Overland, which he was occupying. That she stands by the partition previously made among the heirs, and intends to convey the land so allotted to her, is clearly shown by the recitations in tier deed. She refers to the land conveyed as “that part of said league set apart to me as one of my said father’s heirs under and by virtue of a partition effected between said heirs,” and she makes a part of the deed "the division, including the field notes and all other papers relating to the same.” This evidently refers to the 'Carson field notes of this tract above referred to which were shown to have been delivered to the successive owners and kept with their deeds. These field notes, as stated, appear to have been made in 1843 by Carson, and show this line to run north 12 degrees east from the cypress tree. It may be remarked here that in the deed from Mary Jane Scott, one of the heirs, made in 1858, conveying her interest, it is recited that the description given of the land conveyed “is according to a survey made by John Carson in 1843.” It is true that there was a good deal of evidence introduced tending to show that there was. an old marked line along this north 5 degrees east line; and while there was some evidence of old marks on the north 12 degrees east line, it appeared that the north 5 degrees east line was better delineated by old marks than the other, but these old marks were not conclusive in establishing the fact that they marked the division line as agreed by Mrs. Williams and George W. Scott. There was also some evidence tending to show that Overland was actually occupying up to the north 5 degrees east line probably prior to 1860, when Mrs. Williams made her deed, but the evidence on this point was conflicting; the testimony of some of appellees’ witnesses tending to show that no part of the Overland tract west of the north 12 degrees east line had been actually occupied by him at the date of Mrs. Williams’ deed.

The evidence was not sufficient to raise the issue of recognition of, and acquiescence in, this north 5 degrees east line by Mrs. Williams, nor to raise the issue of estop-pel upon her or her vendees. The vendees under the deed to Wright had no right to assume from the reference to the Overland transaction in Mrs. Williams’ deed that she conveyed with reference to the line of the Overland deed, or that she by this reference recognized or acquiesced in the north 5 degrees east line as the division line between the two tracts. So far from any recognition of or acquiescence in this line being shown, the evidence repels such inference. George R. Davis, who bought 928 acres of the Sarah Williams tract in 1869 from Townsend, testified that Townsend showed him the lines and corners of the tract when he bought, and that the west line shown him by Townsend, the line in dispute, ran north 12 degrees east, and that he afterwards had a surveyor locate the lines and he located the line the same as Townsend had shown him. This testimony was corroborated by other witnesses, and was undisputed. The only evidence of acquiescence, if it can be called that, is the reference in Mrs. Williams’ deed to the ownership and occupancy of the Overland tract referred to. The only issues properly raised were as to whether there had been a partition and actual division on the ground, and where the dividing line between the Williams’ tract and the George Scott tract was located by such division. This line, when so established and located, must be taken as the true boundary line between the lands of appellants and those of appellees.

It will.not be necessary to discuss the several assignments of error. What we have said disposes of the first assignment, that the court erred in refusing to direct a verdict for plaintiffs. The evidence of a partition among the heirs, antedating any of the deeds by them, and in accordance with which division they each conveyed his part, was of such a character as to justify the court in assuming that such partition had been made. The evidence left as little doubt that the old field notes by John Carson, purporting to have been made in 1843, and which had been transmitted with the several deeds in the chain of title down to the present appellees, were the original field notes of the Sarah Williams tract in said partition.

There was no error in sustaining appel-lees’ objection to the evidence sought to be elicited from E. P. Hamblen by appellants referred to in the second assignment. This evidence was offered to support the plea of estoppel, but the effect of it was simply that Hamblen, after examining the title for Willard, vendor of appellants, advised him that the title was good. After all the plea of estoppel is based solely upon what is claimed to have been recognition of, and acquiescence in, the north 5 degrees east line arising out of the simple reference in SaTah Williams’ deed to the Overland tract. ° The court did n.ot err in excluding the testimony. This also applies to the evidence, the exclusion of which was made the basis of the third and fourth assignments.

We have been unable to find in the record the charge of the court of which appellants complain by their fifth assignment, to the effect that the uncontroverted evidence showed that the Scott heirs made or attempted to make a partition of the league. Appellants do not refer in their brief to the page of the transcript where such charge can be found. There would have been no error if the chaTge had been given. This disposes also of the sixth assignment of error, which presents the same point.

There was, as we have shown, no evidence to raise the issue of acquiescence or estoppel. Certainly there was no evidence of such acquiescence up to about the year 1909; and, if there had been such evidence of acquiescence, it would not have justified the charge requested by appellants, the refusal of which is made the ground of the seventh assignment of error, that such acquiescence would make said line the true boundary between the tracts, whether it was the true line originally run by the surveyor or not. The law is that such acquiescence affords a strong presumption that the line so acquiesced in is the true line. The weight to be given such evidence depends upon many circumstances, all of which are for the determination of the jury. Schunior v. Russell, 83 Tex. 96, 18 S. W. 484; Bohny v. Petty, 81 Tex. 528, 17 S. W. 80; Koenigheim v. Sherwood, 79 Tex. 508, 16 S. W. 23; Lagow v. Glover, 77 Tex. 451, 14 S. W. 141; Medlin v. Wilkins, 60 Tex. 409; Davidson v. Pickard, 37 S. W. 375.

The case having been submitted on special issues, this charge in the form in which it was requested, directing the jury to return a verdict for plaintiffs in certain contingencies, was on that ground properly refused, even if otherwise proper. Moore v. Pierson, 100 Tex. 117, 94 S. W. 1132. This disposes also of the eighth assignment of error, presenting similar questions. There was nothing in the evidence calling for the charge requested, as set out in the ninth assignment of error, and the court did not err in refusing to give it. The evidence was conclusive as to a division between the Scott heirs prior to the execution of any deeds by them, and the court did not err in refusing to charge the jury, as set out in the tenth assignment of error, that the execution of such deeds operated as such partition. The heirs might have effected a partition in this way, but it is clear that they did not. Mrs. Williams’ deed was not executed until 1860. Some of the other heirs conveyed their interests 15 years prior to this, and they all refer in their deeds to the former partition. The evidence did not raise the issue of limitation of either three, five, or ten years. The evidence set out in the brief of appellants in support of the eleventh assignment, complaining of the refusal of the trial court to submit special issues as to such limitation, refers to a possession of a portion of the George Scott tract remote from the land in dispute, and did not present the issue of limitation as to this part of the land.

By the twelfth assignment of error appellants complain of the action of the court in refusing to grant their motion for a new trial. The motion for new trial sets out 18 different grounds. The assignment is too general to require consideration. However, the only grounds urged by the propositions and statements thereunder are that the verdict is contrary to and not supported by the evidence. What we have already said fully disposes of this objection to the verdict and judgment.

We find no error in the record, and the judgment is affirmed.

Affirmed..

Additional Findings of Fact.

In this case appellants request us to find whether or not George Scott ever agreed to the line running north 12 degrees east from the cypress at the mouth of Bridge gully as the west boundary line of the portion acquired by him in the Scott survey. There is in the record no direct evidence of such agreement. That there was such agreement, we think, necessarily results from the finding of the jury, upon sufficient evidence, that the league was by verbal agreement partitioned among the four heirs of William Scott in 1843 according to a survey or surveys made by Oar son and that by this partition the east line of the Sarah Williams tract, being the division line between the Sarah Williams tract and the George Scott tract, ran north 12 degrees east from the cypress at the mouth of Bridge gully as shown by Carson’s field notes of the Sarah Williams tract and by the old maps.