author: RASBURY, J.

text:
    DALLAS WASTE MILLS v. TEXAS CAKE & LINTER CO.
    (No. 7948.)
    (Court of Civil Appeals of Texas. Dallas.
    June 1, 1918.
    Rehearing Denied June 29, 1918.)
    1. Sales <@=>440(3) — Rejection oe Goods — Evidence.
    In action for failure to deliver goods according to sample, evidence that part of goods accepted were not equal to sample, though showing good faith in making rejections, was not admissible to show quality of that rejected.
    2. Words and Phrases — “Good Faith.”
    Good faith, aside from any peculiar significance it may have in relation to property lights, denotes honesty of purpose, and is said to be a state of the mind.
    [Ed. Note — For other definitions, see Words and Phrases, First and Second Series, Good Faith.]
    3. Trial <§=>60(1) — Reception oe Evidence —Foundation.
    In action for failure to deliver goods according to sample, evidence held, to sufficiently identify the samples to authorize their admission in evidence.
    4. Trial <@=>193(1) —Instructions — Repetí- . TION.
    Burden of proof being a legal principle, not a fact issue, the repetition of such principle in instructions cannot mislead the jury into the belief that the court entertained views on fact issues adverse to plaintiff.
    5. Trial <@=194(13) — Instructions—Weight oe Evidence.
    In action, for damages for failure to deliver goods according to sample, a charge that it appeared that a sufficient amount had been tendered held not erroneous as upon the weight of the evidence.
    6. Sales <§=>179(3) — Acceptance—'Waiver.
    Where goods were to be delivered within a certain time, acceptance of the goods delivered after such time bars a suit'for damages for failure to deliver on time.
    7. Sales <@=>418(2) — Failure to Deliver-Measure oe Damages.
    In a contract for 600 bales of linters, “each car to be considered a separate contract,” measure of damages for nondelivery, purchaser having rejected part of the cotton, would be the difference between the price agreed to be paid and the prevailing market price on the date in which the tender of each car was made.
    8. Appeal and Error <@=>1068(4) — Harmless Error.
    In action for failure to deliver goods rejected after tender because not up to sample, any error in affixing the measure of damages was immaterial where jury found that property tendered was of standard agreed upon.
    9. Sales 3=441(3) — Action by Buyer — Quality oe Goods.
    In action for damages for failure to deliver goods according to sample, evidence held sufficient to sustain finding that property tendered was equal to standard agreed upon.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by the Dallas Waste Mills against the Texas Cake & Dinter Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Spence, Haven & Smithdeal, of Dallas, for appellant. Marshall & Young, of Dallas,, for appellee.
   RASBURY, J.

Appellant Sued appellee in the court below for damages, alleging in substance that appellee sold appellant 600 bales of cotton linters of an agreed quality to be delivered ■ during the months of May and June, 1915, at the price of 3 cents per pound f. o. b. cars at mills, 257 bales of which appel-lee failed to deliver, and which were on the final day for delivery of the market value of 4 cents per pound f. o. b. cars at mills, by reason of which appellant was damaged $1,285, being the difference in the contract price and the market value of said linters when the time for delivery expired. Appellee answered by general denial, and specially that it tendered to appellant for delivery 600 bales of linters of the quality called for by the contract, of which number appellant rejected 257 bales without cause. The case was submitted to the jury upon issues of fact in the form of interrogatories for special verdict, who, in substance, found that each bale of linters tendered to appellant was equal to the quality agreed on. Upon the verdict of the jury judgment was for appellee, from which this appeal is taken.

The contract out of which the controversy arose was in writing and in the form of Iet-ters addressed by both parties to the other, and provided, among other matters, compositely in substance that the appellee had sold appellant 600 bales of clean mill run linters, made from sound seed, and equal to sample exhibited, a portion of ■which was retained by each party, at 3 cents per pound f. o. b. mills, to be shipped in 25-bale lots from mills during May and June of the current year, accompanied by sight draft with bill of lading attached, without ri^ht of cancellation, save by mutual agreement, and that appellant had agreed to purchase same on ’such terms. Each car was to constitute a separate contract. On June 11, 1915, appel-lee tendered to appellant for delivery 220 bales of linters, of which 71 were accepted and 144 rejected. On June 23, 1915, 219 bales were tendered for delivery, of which 111 were accepted and 108 rejected. On June 30,-1915, 100 . bales were tendered and accepted. On July 23, 1915, 61 bales were tendered and accepted. The evidence adduced by appellant tended to show that the linters rejected were not of the quality purchased and agreed to be delivered, while the evidence adduced by appellee tended to show that they were. The foregoing is a sufficient specification of the facts in view of the issues presented on appeal, save such other facts as may be related in discussing the issues.

Error is assigned because of the refusal of the court to permit Stenger, witness for appellant,, and wlio inspected the linters when tendered, to testify that some of the linters actually accepted were not equal in quality to the sample agreed upon. The contention is that the testimony was admissible as tending to show the good faith of appellant in making rejections. We conclude the evidence was properly excluded. The issue on which the ease turned was whether the linters rejected by appellant were of the quality agreed upon by the parties. The evidence excluded amounted to no more nor less than that some of the linters actually accepted by appellant and about which there was no controversy were not of the quality agreed upon. Obviously such evidence did not tend to prove that those rejected were not of the agreed quality. Appellant argues, however, that since appellee’s witnesses testified that at the time the rejections were made the market price was below the contract price, thereby raising the issue of appellant’s good faith in rejecting the linters, as a consequence the evidence was admissible on that issue. Good faith, aside from any peculiar significance it may have in relation to property rights, denotes honesty of purpose, and is said to be a state of the mind. It might be conceded that the witness who testified as an expert acted in good faith, both in accepting and in rejecting the lin-ters, and yet it would in no sense follow that his rejection was justified, since his sincerity in arriving at a conclusion upon a given state of facts is not, it appears to us, a standard ■ for proving a given fact. The result would be to corroborate his conclusion by his sincerity of purpose concerning ’another transaction.

Error is assigned to the action of the court in admitting in evidence what purported to be samples taken from the bales of lin-ters rejected by appellant for the purpose of showing that the linters rejected were equal to the sample agreed on as a standard. The contention is that the samples admitted in evidence were not shown to have been taken from the rejected bales of linters. The witness Sansen, testified in substance that he took samples of the linters from the rejected bales, leaving part of them on the bales and taking several, which were considered representative of the lot, into the office of ap-pellee. He instructed McCullough, an employe of appellee, to bring the remainder into the office and mark same, which he did. He could not say that the samples offered in evidence were the identical samples originally taken from the bales and carried into the office. E. H. Young testified that he had seen the samples offered in the testimony before trial, and that they were those brought into the office by McCullough or Sansen, and that they had been in the office of appellee unwrapped from that time until trial. We conclude the samples were sufficiently identified to admit'them in evidence. Sansen testified to taking them from the bales and carrying a portion into the office of appellee, and to sending McCullough for the balance, and to the return of McCullough therewith. Young identified them as the identical samples deposited in the office of appellee by Sansen and McCullough, where they had remained wrapped since that time. Certainly the identity was- traced with such reasonableness as authorized their admission in .evidence for whatever weight the jury might attach thereto.

Error is assigned in respect to the court’s charge on the burden, of proof. The court charged twice on that issue, and the contention is that such action was prejudicial to appellant, because emphasizing that issue. Preliminary to submitting to the jury the issues of fact in the form of interrogatories the court instructed the jury in a general way that it was the duty of the appellee under the contract to deliver to appellant 600 bales of linters of the quality therein specified, etc., then submitting the interrogatories, following which the jury was told that the burden of proof was upon appellant to make out his case by a preponderance of the evidence. At request of ap-pellee the court further instructed the jury that the burden of proof was also upon the appellant to show the number of bales of lin-ters that appellee failed to deliver in accordance with the contract. There is no contention that the burden was not on appellant to show by a preponderance of the evidence the number of bales of linters not in compli-anee with the contract; only that twice the jury were told that the burden of proof was upon the appellant. It is not to be denied that issues of fact may be given undue prominence or emphasis by constant repetition so as to obviously mislead the jury into the natural conclusion that such issues are considered by the court of marked or controlling importance. The difficulty in applying the rule in the present case lies in the fact that the burden of proof is a legal principle, not a fact issue, and the repetition of a legal principle could not, it occurs to us, mislead the jury into the belief that the court entertained views on fact issues adverse to appellant. A charge upon the burden of proof in its very nature fails to indicate the opinion of the court upon the facts. San Antonio & A. P. Ry. Co. v. Klaus, 34 Tex. Civ. App. 492, 79 S. W. 58. It is but a direction to them to remember in considering and passing on the facts that it is the duty of the plaintiff to sustain his facts by a preponderance of the evidence.

The court charged the jury by way of premise that it appeared without dispute in the evidence that appellee tendered appellant 600 bales of linters. Following the charge an interrogatory was submitted to the jury inquiring whether the linters tendered were of the quality agreed upon as a standard. Appellant urges that the charge is erroneous, and upon the weight of the evidence, because it appears without dispute in the evidence that appellee did not tender 600 bales of lint-ers during the life of the contract. As appears from our statement of the case appellee offered for delivery 600 bales of linters, all but 61 thereof being tendered during May and June. The 61 bales were tendered in July, after the time agreed upon had expired. However, those tendered in July or after the expiration of the time set for performance of the contract were accepted by appellant. Obviously appellant could not accept the linters after the time fixed for delivery, and yet maintain a suit for damages for failure to deliver. If time was of the essence of the contract it was waived by the acceptance.

As appears from the factá recited tenders of linters for delivery were made June 11th, 23d, 24th, and 30th, which was before the time for delivery had expired under the contract. Some were accepted and some rejected. At the request of appellee, and for the purpose of measuring appellant’s damages, the court interrogated the jury as to what was the market value of the quality of linters agreed to be delivered to appellant at the respective dates of said tenders. The complaint is that since appellant’s damage was the difference between the contract price and the market price of the linters on the last day on which appellee could have complied therewith the question referred to the jury was improper. In' connection with the issue so presented the contract provided that “each car is to be considered a separate contract.” If that provision has any meaning it is that upon each tender, wherein the linters fail to equal the standard agreed upon, the measure of damages would be the difference between the price agreed to be paid and the prevailing market price on the day on which the tender was made. Further, the jury having found that the linters actually tendered were of the standard agreed upon' and appellant as a consequence-'hot entitled to recover at all, any error in fixing the measure of damages is immaterial.

It is finally contended that the finding of the jury that the linters tendered by appel-lee were equal to the standard agreed upon is without support in the evidence. The contract provided that the linters should be clean, mill run linters, made, from sound seed and equal to sample. The witness Sansen testified that the sample agreed upon was of average clean, mill run linters. This witness in substance further testified that the linters tendered appellant were “clean, mill run lin-ters made from sound seed.” The witness Earnest in substance testified that the linters tendered appellant were clean, mill run lin-ters made from prime seed. The foregoing is in our opinion sufficient, under the rule in such cases, to sustain the finding complained of.

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


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    ROYALTY et al. v. STRANGE.
    (No. 7653.)
    (Court of Civil Appeals of Texas. Galveston.
    June 27, 1918.)
    1. Nuisance ⅞=⅞35 — Injunction—Terms.
    In suit to restrain nuisance of hog ranch near plaintiff’s land situated on a tract of 50 acres only 4 acres of which nearest plaintiff’s was so used, injunction merely restraining use of such land as to constitute a nuisance was erroneous as too vague, indefinite and uncertain, and amounting to absolute prohibition against the conducting of a hog ranch anywhere on the 50-acre tract.
    2. Nuisance ¡@=>3(10) — ■Nuisance Per Se — Hog- Ranch.
    Hog ranch situated in the countoy seven or eight miles from any city or town is not a nuisance per se.
    3. Nuisance <®=19 — Remedy—Injunction.
    If a landowner keeps such a number of hogs in such small pens or in such a way or feeds them with garbage in such a way as to produce disagreeable and noxious odors interfering with the comfort, use, and enjoyment of another owner, such owner is entitled to injunction abating the nuisance.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by W. T. Strange against George W. Royalty and others. Decree for plaintiff, and defendants appeal.
    Reversed and remanded.
    Cooper & Merrill, of Houston, for appellants. Atkinson & Atkinson, of Houston, for appellee.
   LANE, J.

This suit was brought by appel-lee, W. T. Strange, against appellants,George W. Royalty, George W. Cole, and Eli W. Gaffney, to recover certain alleged damages and for a mandatory injunction requiring appellants to remove certain hogs which were being confined and fed near ap-pellee’s residence by appellants under such conditions and in such manner as to create a nuisance, and to perpetually restrain appellants from continuing such nuisance.

The question of damages is not involved in this appeal, and the prayer therefor will not be further mentioned in tins opinion.

The petition for injunction was filed on the 18th day of December, 1917. The testimony with reference to the question of whether the matter complained of -by appellee was or was not a nuisance which should- be abated was heard on the application for temporary injunction, pending a trial on the merits, on the 9th day of February, 1918.

On the 20th day of February, 1918, upon evidence amply sufficient to support a judgment for temporary injunction to restrain appellants from continuing some of the acts complained of, the trial court rendered a decree containing the following:

“It is further adjudged and decreed by the court that said writ shall enjoin and restrain the defendants and eaoh of them and their agents and employés from operating and conducting the hog ranch in its present location, near the residence of the plaintiff, and said writ shall also enjoin and restrain them and each of them from operating and conducting said hog ranch at any place where it will be a nuisance and where it will interfere with the comfort, enjoyment, and health of the plaintiff or his family in their home until the further orders of this court.
“This decree is based upon the evidence adduced herein on the 9th day of February, 1918.”

The court by proper order suspended tbe effect of tbe decree pending this appeal.

Tbe main and controlling complaint made of tbe decree rendered is that tbe same absolutely prohibits the operation of appellants’ bog ranch within certain undefined limits, without respect to the manner or method in which the same is conducted, and without proof or evidence negativing the fact that the alleged wrong and injuries suffered by appellee could not be prevented and obviated by a relatively slight change in the location of said hog ranch, or in the method and manner of conducting the same; that it was error for the court to order the issuance of an injunction in such general terms that appellants could not readily know what they were restrained from doing.

We think appellants’ complaint should be sustained. There are about 45 or 50 acres in the tract of land in the premises occupied by appellants. At the time appellee filed his petition, the hogs of appellants were confined and being fed on four acres of said land nearest to appellee’s residence; at tbe time the testimony was heard, February 9, 1917, this four acres was being abandoned and the feeding pens had been m'oved back about 600 feet further from appellee’s residence, and the nearest part thereof after the final removal was completed- was about 1,300 feet from said residence. There was no evidence tending to show that said hog ranch could not be so conducted on some part of the land under the control of appellants without being or becoming a nuisance; but, on the contrary, there was an abundance of evidence tending to show that tbe same could be so conducted. Appellants cannot determine from the decree rendered whether they are enjoined from conducting their hog ranch on the four acres first used only, or on that portion of the tract of land which was being used by them on February 9tb, tbe date of the hearing, or whether they are precluded from using any portion of their said land for that purpose.

The only part of the decree which throws any light on! this question is that portion which precludes appellants from conducting their ranch at any place where it will ho a nuisance and interfere with the comfort, enjoyment, and health of the plaintiff and his family. This is so vague, indefinite, and uncertain as to amount to an absolute prohibition against the conducting of a hog ranch anywhere near ajjpellee’s property, unless appellants assume the risk of being punished for a violation1 of the injunction.

Since appellants are manifestly unable to determine just what facts might cause the court to conclude that their hog ranch constitutes a nuisance to the appellee, the order as entered practically amounts to an inhibition against their conducting such hog ranch at any place in that neighborhood or on any portion of their property.

It cannot he bold that a hog ranch situated in the country 7 or 8 miles from any city or town is a nuisance per se. A hog ranch is not within itself a nuisance, nor does it necessarily become such by conducting it for the purpose for which it is improved or prepared. It might become sucb in tbe method or manner of its- use, and, if so, its maintenance in that manner could and should he enjoined. But the fact that the method and manner of conducting such ranch has been such as to cause annoyance and discomfort' to some persons living in the neighborhood of its location, by reason of its owners permitting it to become in such condition as to produce noxious and disagreeable odors, is no evidence that sucb improper use must or will be permitted or continued in the future. It is incumbent upon the owners of such ranch to conduct the same in such manner as not to become a nuisance and an annoyance to those living near it, and, failing in this, they may subject themselves to correction and restraint by tbe courts as for maintaining a nuisance. If appellant shall confine, or permit to be confined, sucb a number of bogs in pens too small for their care in a sanitary manner, or so small for such number of hogs as would necessarily or most likely result in rendering such pens nuisances, such as emitting disagreeable and noxious odors, or if they permit garbage to be thrown and remain upon the ground near appellee’s residence, which causes the emission of disagreeable and noxious odors, or in any other manner cause such odors to be emitted which interferes with the comfort, use, and enjoyment of appellee’s home by himself and members of his family, such nuisance should be enjoined and abated by the courts upon proper application. Baptist Church v. Webb, 178 S. W. 689; Cardwell v. Austin, 168 S. W. 385; Clark v. Wambold, 165 Wis. 70, 160 N. W. 1039, L. R. A. 1917C, 211; Stricber v. Ward, 196 S. W. 720; Block v. Fertitta, 165 S. W. 504.

In the case last cited it is said:

“A lawful business may be' conducted in such manner as to become a nuisance, and in such case the parties so conducting it might at the suit of one injured thereby be restrained from continuing to conduct it in such manner, but they could not be denied the right to carry on the business in a proper manner.”

We have reached the further conclusion that the decree of the court was in such general terms that appellants cannot know what they are restrained from doing, and for that reason the same should be reversed. Such decree first enjoins appellants from operating and conducting their hog ranch in any manner near the residence of appellee, without naming any specific distance; second, it enjoins them from conducting such ranch at any place where it will be a nuisance and where it will interfere with the comfort, enjoyment, and health of appellee or his family in their home, without specifically pointing out or naming the attempted forbidden limits, or place, and as to what specific acts in conducting their hog ranch they are prohibited from doing, so that they may protect themselves from the ever present danger of being fined by the court for a breach of the terms of such decree. We think no person enjoined from the performance of acts by an order of court should -be left in doubt and confusion as to what acts are intended to be prohibited by said order. “The order as entered puts the appellants in the embarrassing attitude of being compelled to find out at their peril what conduct on their part might be held by the trial judge to constitute a nuisance as to appel-lee.” Such order, we think, should not be upheld. Lone Star Salt Co. v. Blount, 49 Tex. Civ. App. 138, 107 S. W. 1163; Robinson v. Clapp, 65 Conn. 365, 32 Atl. 939, 29 L. R. A. 582; 22 Cyc. 958.

In 22 Cyc. it is said that the rule has been established:

“That the injunction should be so clear and certain in its terms that the defendants may know what they are restrained from doing.”

In the lease of Lone Star Salt Co. v. Blount, supra, the Court of Civil Appeals, in passing upon the question under consideration, cites the case of Ballentine v. Webb, 84 Mich. 38, 47 N. W. 485, 13 L. R. A. 321,. which was an action to restrain a defendant from maintaining a slaughterhouse for swine, on the ground that it constituted a nuisance, and our Court of Civil Appeals adopted the following language from the cited case:

“ ‘The trial court decreed that defendant refrain from using or employing the building and sheds erected on defendant’s premises for the purpose of a slaughterhouse wherein to slaughter hogs in such a way as to be offensive to, or become a nuisance to, the complainant, and that defendant desist and refrain from using or employing the said inclosure or building for the purpose of. confining therein quantities of swine or other animals in such a way as to be offensive to, or to be a nuisance to, the complainants, or any of them; and that defendant desist and refrain from using said inclosure, or any part thereof, as a drying yard in which to dry hair or bristles taken from the slaughtered swine.’ In passing upon this decree the Supreme Court of that state said: ‘The trouble with the decree is that it fails to point out specifically what defendant is required to do in order to comply with its requirements. To adjudge that defendant should so conduct his business as not to be offensive is to give him no rule of conduct which the law had not before prescribed. The decree should have specifically pointed out the things that defendant was required to do and refrain from doing, in order to abate the nuisance which the court found to exist.’1 ”

For the reasons pointed out, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.
      ©SjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    J. W. JENKINS’ SONS’ MUSIC CO. v. TRUEX.
    (No. 6048.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.
    On Motion for Rehearing, June 21, 1918.)
    1. Appeal and Ekboe <®=»301 — Resebva-txon op Exceptions.
    An assignment of error, not contained in the motion for new trial, cannot be considered.
    On Motion for Rehearing.
    2. Payment <S=»65 (3) — Evidence.
    Possession by debtor of evidence of indebtedness raises the presumption of payment.
    3. Payment <®=>73(1) — Evidence — Suefi-ciency.
    In action for balance due on price of piano, evidence held insufficient to show payment.
    Appeal from Bexar County Court for Civil Oases; John H. Clark, Judge.
    Action by the J. W. Jenkins’ Sons’ Music Company against Dr. H. E. Truex. Judgment for defendant, and plaintiff appeals. Affirmed. On motion for rehearing.
    Judgment reversed, and cause remanded.
    Emmett B. Cocke, of San Antonio, for appellant. Barrett, Eskridge & Barrett and Joseph A.' MeCaleb, all of San Antonio, for appellee.
   MOURSUND, J.

Appellant sued appellee to recover balance of $137.75 and interest thereon from September 9, 19Í0, alleged to be due for a piano, and to foreclose chattel mortgage lien. The piano was alleged to be of the value of $300. -Defendant pleaded payment. The trial resulted in a verdict and judgment in favor of defendant.

Appellant’s first assignment is not contained in the motion for new trial and cannot be considered.

By the second and third assignments it is contended that the verdict is not supported by the evidence, in that the burden was on defendant to show specifically how he paid the amount sued for, and to show that such payment was received by plaintiff, and that there is no evidence in the record establishing these facts with any degree of probity. Defendant was in possession of the only instrument evidencing the debt, but plaintiff claimed it had been sent him by mistake. Defendant testified that he remitted $164.35 to plaintiff on November 12th, of which sum $150 was by means of a check of another person, but he could not recall whose check it was, and the remainder was in currency and silver. He testified that after doing this he received the piano contract, with a contract for a victrola, which he had also purchased on the installment plan. There is no direct evidence that the plaintiff company received the remittance, and the only evidence from which its receipt can be deduced is that of defendant, to the effect that after making-such remittance his piano contract was sent him by plaintiff. There are some circumstances which cast great doubt on the correctness of such statement. The plaintiff’s manager of the collection department attached to his depositions a carbon copy of a letter purporting to have been written on October 2, 1913, in which receipt of balance due on- the victrola contract was acknowledged, and it was stated that such contract, duly canceled, was inclosed. Receipt was therein acknowledged of $21.24 to toe applied on the piano contract. In view of this evidence, and defendant’s statement, it occurs to us that plaintiff’s contention that the piano contract was sent out by mistake, and that it never received any remittance such as was testified about by defendant, is probably correct; but, after all, the jury had the right to disbelieve the plaintiff’s manager, and to believe that no such letter was sent, or that, if it was sent, the victrola contract was left out by mistake, and the two contracts sent afterwards. Mr. Hulland, plaintiff’s employe, who handled all money received by mail from outside of Kansas City, did not testify; nor did Mr. Jenkins, plaintiff’s treasurer, who indorses all checks received and deposits the money. No effort was made to show by the bank with which plaintiff did business that no check such as was described by defendant was deposited in November, 1913. Plaintiff’s sole testimony was that of its manager, who of course testified from the records of his department. The defendant was in possession of the only evidence of the indebtedness sued on by plaintiff. If the jury believed his statement as to how he came into possession thereof, they were authorized to find that plaintiff received the remittance and accepted it as full payment. Defendant’s possession of the evidence of the indebtedness raised a presumption of payment, and the burden of overcoming the prima facie case made by the possession of the contract devolved upon the plaintiff. The evidence by which it sought to discharge such burden was found unsatisfactory by the jury, and defendant’s testimony was believed, despite a number of strong circumstances tending to discredit the same.

We have carefully considered the evidence, and, however much we might differ with the jury as an original proposition, we conclude that we would not be authorized to set aside the verdict and judgment.

The judgment is affirmed.

On Motion for Rehearing.

Upon a reconsideration of the entire testimony in this case, we conclude that the verdict of the jury rests upon such unsatisfactory and highly improbable testimony that we should exercise the right of reversing the judgment and remanding the cause for another trial. The possession of the evidence of the indebtedness raises a presumption of payment, which presumption, unre-butted, would support a verdict. That presumption, if not disproved, would be sufficient to satisfy the burden imposed by law on the debtor to prove payment. It is not such a presumption as would justify a charge that the burden was on plaintiff to show nonpayment, and we did not hold that it was. In this case the explanation is made that the piano contract was attached to a victrola contract, and that it could not have come into possession of appellee, except by some mistake, which probably consisted in that, when the victrola debt was paid in full, the piano contract was not detached, but was sent to appellee with the victrola contract. This theory is supported by many facts.

There is no testimony or evidence tending to show that the victrola contract was not inclosed in the letter of October 2, 1913. That letter states that the victrola contract was duly canceled. The piano contract contains indorsements showing each payment made up to October 2, 1913. Each payment consisted of $18 and interest, except one, which was for $36. The piano contract contains no indorsement that it is canceled, or that it is paid in full, or any kind of indorsement of payment made subsequent to the date when the balance due on the victrola was paid. A copy of the piano contract was duly registered in Bexar county as a chattel mortgage, and a release would be proper, and would naturally be desired by appellee, if full payment had been made. No demand was ever made by appellee for any release or receipt showing full payment, and when it was discovered, in going through the ledger, that there was apparently a balance due on the piano account, and letters written him asking for further payments, he failed to claim that he had made payment,'and did not answer the letters.

.The foregoing facts and circumstances destroy any presumption of payment arising from the mere possession 'of the contract, Appellee’s testimony tending to show payment is very unsatisfactory. It appears that at a previous trial he testified he sent his personal check in payment of the balance, blit afterwards ascertained that he did not have that much money in the bank, and recollected that he sent to. appellant by mail a check for $150, given by a patient of the Terrell Medical & Surgical Institute, which was operated by a corporation in which ap-pellee was a stockholder and manager, and the remainder, $14.35, in money. 1-Ie was unable to recollect who gave the check, or on what bank it was drawn. Appellee’s recollection, admitted to be so faulty, may also be faulty as to whether the remittance of which he had such a vague recollection was in fact made to appellant, or to some other creditor; but, aside from that, 'there is no evidence that appellant ever received the remittance of check and money claimed to have been sent, unless it be deduced from the fact that appellee had possession of the contract. In view of the facts of this case, we do not believe that such possession can be considered as satisfactory evidence of the receipt of the remittance claimed to have been sent.

The motion for rehearing is granted, and our former Judgment set aside, the Judgment of the trial court is reversed, and the cause remanded.
      i&^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: .DUNKLIN, J. ÜUNKMN, J.

text:
    POPPDEWELL v. BUCHANAN et al.
    (No. 8880.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 1, 1918.
    On Rehearing, June 29, 1918.)
    1. Bbokees <s=»46 — Commissions — Sale by Owneb.
    Owner cannot by selling the property himself escape liability to the agent for commissions which he could have earned by selling the property within the time for which exclusive agency was given.
    2. Bbokees <S=>86(51,— Actions fob Commission — Evidence—Sufficiency.
    Evidence held to sustain a finding that the broker had procured a purchaser ready, willing, and able to buy for the price and terms authorized.
    3. Bbokees <S=^>C6 — Right to Commission — Assignment of Sales Oonteact.
    The fact that a broker holding an exclusive sales contract has employed another to aid him in consideration of a share of the commission and has assigned a half interest in the contract to him docs not defeat his right of action for the commission, especially where the owner makes no objection thereto.
    4. Evidence <S=»398 — -Pabol Evidence.
    Evidence that at the time a broker’s written contract of employment was executed the owner had informed him that he was then negotiating a sale himself was properly excluded as contradicting a written instrument.
    Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.
    Action by J. W. Buchanan and another against J. M. Popplewell. From a judgment for plaintiffs, defendant appeals.
    Affirmed, and rehearing denied.
    C. O. Cummings, R. C. Fuller, and J. X. Cummings, all of Ft. Worth, for appellant. Lee, Lomax «& Smith, of Ft. Worth, for ap-pellees.
   .DUNKLIN, J.

J. M. Popplewell executed and delivered to J. W. Buchanan, a real estate broker, a contract by the terms of which Buchanan was employed as Popplewell’s agent to negotiate the sale of a tract of land owned by Popplewell. Bucbanan assigned to Brown Harwood one-half of his interest in the contract. This suit was instituted by Buchanan and Harwood to recover of Pop-plewell damages for an alleged breach of the contract of employment. Upon the trial Buchanan took a nonsuit, after which the trial was prosecuted by Harwood, without any objection on the part of Popplewell that there was then a lack of a necessary party plaintiff in Buchanan, and a judgment was rendered in Harwood’s favor for one-half the commissions claimed. From that judgment Popplewell has appealed.

The contract of employment was as follows:

“This contract made and entered into by and between J. M. Popplewell, of Tarrant county, Texas, hereinafter called party of> the first part, and J. Wallace Buchanan, of Tarrant county, Texas, hereinafter called party of . the second part, witnesseth: For and in consideration of the sum of one dollar cash in hand paid to party of the first part by party of the second part, receipt of which is hereby acknowledged, and for other good and valuable considerations, party of the first part hereby grants to party of the second part, solely, the exclusive right of sale, as agent, on the following described property, for six months: Situated in Tarrant county, Texas, and being part of the Simon Akers survey of 320 acres, and part of the Thomas Akers survey of 320 acres, said tract containing 363½ acres of land, and being fully described in deed of trust executed by party of the first part in favor of Union Central Life Insurance Company of Cincinnati, dated May 1, 1915, and recorded in Deed of Trust Records of Tarrant County, Texas, vol. 130, p. 410. Party of the second part is to sell said land for a price o-f net less than sixty dollars per acre, purchaser to assume the incumbrance on said land of nine thousand dollars, covered by above-mentioned deed of trust in favor of Union Central Life Insurance Company, dated -May 1, 1915, due ten years after date; the balance to be paid as follows: One-third cash and the balance of said equity to be arranged to suit purchaser running for a term of one to five years, at 8 per cent, interest. In the event party of the second part sells above-described property according to the terms of this contract within six months from the date hereof, the time this contract is to remain in force and effect, then party of the first part agrees to pay to party of the second part a commission of 5 per cent, of the sale price of said land, said commission to be paid in cash upon consummation of said sale.
“Witness our hands in duplicate this 9th day of May, A. D. 1916.
“J. M. Popplewell,
“Party of the First Part.
“J. W. Buchanan,
“Party of the Second Part.”

On June 24, 1916, Buchanan found, a proposed purchaser of the land in one T. H. Skaggs, and secured from him a written contract to buy the property for $60 per acre, Skaggs agreeing to assume the outstanding incumbrance against the land mentioned in Popplewell’s contract of employment of Buchanan set out above and to pay the balance of the purchase price one-third cash and the rest in five equal installments, in one, two, three, four, and five years after date, with interest thereon at the rate of 8 per cent, per annum. On the same date Skaggs executed that contract, Popplewell sold the land to a man by the name of Jones with whom he was negotiating at the time he gave the contract to Buchanan. Neither Buchanan nor Harwood was in any manner instrumental in bringing about the sale to Jones.

The $9,000 incumbrance on the land mentioned in Popplewell’s contract with Buchanan was a loan which was secured for Pop-plewell by Buchanan. After the execution of the contract of employment and before Popplewell sold the land to Jones an interest installment of $700 upon that loan fell due and Popplewell was unable to pay it. Thereupon Buchanan procured the money with which to meet the installment by taking Pop-plewell’s note to him (Buchanan), secured by a second mortgage upon the land and by transferring the note with his indorsement thereon to Harwood. One of the principal inducements to Harwood to make this loan was the transfer to him by Buchanan of a half interest in the latter’s contract of employment with Popplewell made the basis of this suit, and the undisputed evidence shows that Popplewell knew of such -transfer before he sold the land to Jones, and that he made no objection thereto. The proof shows further that before Popplewell executed his written contract of sale to Jones he was notified over the telephone by Buchanan that the latter had sold the land to Skaggs, but according to the testimony of Popplewell £e at that time had already reached a parol agreement with- Jones to' sell the land, and was then in the act of reducing that agreement to writing. The record, shows further that the authority given Buchanan to sell the land was revoked in no other manner than by the sale to Jones; in other words, no contention was made by Popplewell that the termination of Buchanan’s agency to sell the land was due to any fault or failure on the part of Buchanan to properly discharge his duties as such agent, except that in Popplewell’s motion for a new trial, as one of the grounds urged, which is the first assignment of error here, he insisted that the court erred in overruling his general demurrer to plaintiff’s petition because the transfer of a part interest in the contract of agency to Harwood was itself a breach of the contract of agency. But that contention so urged in the motion for a new trial was predicated upon the action of the trial judge in overruling the general demurrer to plaintiff’s petition. The general demurrer was as follows:

“He (defendant) demurs to each and every allegation, in said petition contained, and says that the same and each of the same are insufficient in law to constitute and do not constitute cause of action against this defendant, and of this he prays the judgment of the court.”

Appellant insists further that the contract which he gave to Buchanan did not preclude him from the right to sell the property himself without incurring liability to Buchanan, and that the contract of employment of Buchanan involved personal confidence reposed in him which could not be delegated to another agent in the absence of some express power of substitution. It will be noted that the contract of employment in very specific /terms ⅝ authorizes and empowers Buchanan to sell the property during a period of six months from the date of the instrument, and the instrument contains no stipulation exempting Popplewell from the payment of a commission in the event he should himself sell the property within that period.

In the case of Hancock v. Stacy, 103 Tex. 219, 125 S. W. 884, the Supreme Court affirmed a judgment in favor of Stacy, the broker, against Hancock, the owner, for the breach of a contract of employment of Stacy before the expiration of the period of employment. In that -case after Hancock had expressly revoked the agency he proceeded to sell the property himself during the period of time covered by his contract of employment of Stacy. In the opinion rendered in that case the following was said:

“In deference to the verdict of the jury, this court must treat the contract between Hancock and Stacy as having been extended so as to give Stacy the privilege of selling the property at any time up to ‘late in the fall.’ It is not claimed by the plaintiff in .error that the revocation of the authority to sell was based upon any fault or failure on the part of Stacy, therefore, in withdrawing the property from áe market and terminating Stacy’s authority ,to sell, Hancock violated the contract between. them, -which gave to defendant in error a right of action for such damages as arose out of the unlawful revocation of his' agency. Chilton v. Butler 1 E. D. Smith (N. Y.) 150; Gleason v. McKay, 37 Ill. App. 464; Schuster v. Martin, 45 Ill. App. 481; Blumenthal v. Goodal, 89 Cal. 251 [26 Pac. 906]; Gootschuck v. Jennings, 1 La. Ann. 5, 45 Am. Dec. 70; Carroll v. Pettit, 67 Hun, 418 [22 N. Y. Supp. 250]; Rowan & Co. v. Hull [55 W. Va. 335, 47 S. E. 92, 104 Am. St. Rep. 998], 2 Am. & Eng. Ann. Cas. 884. In the last case cited the court draws the distinction between the power and the right to revoke the agency thus: ‘Nor does it malee any difference in this view that the principal has expressly agreed he will continue to confide in the agent for a definite period. It is no less difficult on that account to coerce compliance. * * * The law, therefore, leaves the principal in such cases to determine for himself how long the relation shall continue. This, then, is what is meant when it is said that the principal may revoke the authority at any time. But it by no means follows that, though possessing this power the principal has a right to exercise it without liability regardless of his contract in the matter. It is entirely consistent with the existence of the power that the principal may agree that for a definite period he will not exercise it, and for the violation of such agreement the principal is as much liable as for the breach of any contract.’ ” -

In Hardwick v. Marsh, 96 Ark. 23, 130 S. W. 524, the Supreme Court of Arkansas affirmed a judgment for damages in favor of a real estate broker for breach of a contract of employment of the brokér to sell real estate. The broker had been given a period of six months in which to make sale of the land, and his agency was revoked by the sale of the land by the owner himself during that period. The court held that that case was ruled by the decision of the same court in Blumenthal & Co. v. Bridges, 91 Ark. 212, 120 S. W. 974, 24 L. R. A. (N. S.) 279, and quoted from the latter case with approval the following:

“Appellants contend that the contract was not one for exclusive agency, and that they had the right at any time before a sale was negotiated by appellee, to revoke it. They rely upon numerous cases which announce the general rule that where real estate is placed in the hands of an agent or broker for sale in the ordinary way, without a stipulation to the contrary and without specifying any definite period of time within which the agent is to have the exclusive right to sell, this does not deprive the principal of the right to sell the land himself, when he acts in good- faith towards the agent, and that in such cases there is an implied reservation of the right of the principal to sell, free from any charge or liability for commission (citing cases). Those cases do not, however, announce the controlling principle in this case, for here the contract expressly stipulated for a definite period of time within which the agent might make a sale. In such case the contract implies an exclusive right to sell within the time named, without the right of the principal to revoke the agency unless there is a reservation to, the contrary. * * * Now, if the principal cannot, under a contract of this kind, stipulating a definite time within which the sale may be made, revoke the agency directly, it follows that he cannot do so indirectly by making a sale of the property himself, thereby putting it beyond the power of the agent to -perform the contract. The revocation of the agency, either directly or by making a sale of the property, is a breach of the contract on the part of the principal, and renders him liable to the agent for damages which the latter sustains thereby.”

To the same effect is Cloe v. Rogers, 31 Okl. 255, 120 Pac. 201, 38 L. R. A. (N. S.) 366, decided by the Supreme Court of Oklahoma, in which the authorities -are reviewed at length sustaining the conclusion reached. Also Glover v. Henderson, 120 Mo. 367, 25 S. W. 175, 41 Am. St. Rep. 695; Byers v. Chatfield, 164 S. W. 415; Johnson v. Buchanan, 54 Tex. Civ. App. 328, 116 S. W. 876.

In view of those authorities, which we think are entirely sound, and which in our opinion are not contravened by any of the authorities cited by appellee, we perceive no escape from the conclusion that Popplewell could not by selling the property himself escape liability to Buchanan for the amount of commissions which he was able to show he could have earned by negotiating a sale of the property within the six-month period given him by the terms of the contract of employment, even though it could be said that Popplewell sold to -Jones before Buchanan procured the -contract of sale to Skaggs, upon which issue the evidence, to say the least, was conflicting.

The proof was sufficient to sustain a finding that Buchanan did procure a purchaser in Skaggs ready, willing, and able to purchase the property for the price and upón the terms authorized by Popplewell, and it is undisputed that he found such proposed purchaser within the period of six months from date of his employment. Having found such a purchaser within the period of time authorized, Buchanan had a cause of action against Popplewell for the commissions stipulated in the contract of employment, and the fact that he employed Harwood to aid him in those negotiations did not defeat his right of action to recover the commission. The transfer of an interest in his contract of employment had the legal effect to transfer the same interest in the cause of action after it matured, especially in view of the fact that Popplewell after being informed of such transfer made no objection thereto and by his silence impliedly acquiesced therein.

Appellant offered testimony of himself and wife to the effect that at the time the contract of employment was executed Popple-well informed Buchanan that he was then negotiating a sale of the land to Jones, and that he reserved the right to make such sale and thereby terminate the contract of employment at any time, and that Buchanan assented thereto and agreed that Popplewell should have that right. The trial judge sustained an objection to that testimony on thé ground that its admission would be in violation of the rule excluding parol testimony which tends to vary or contradict the terms of a written instrument There was' no error in that ruling.

For the reasons noted, all assignments of error are overruled, and tlie judgment is affirmed.

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.

On Rehearing.

ÜUNKMN, J.

The rule announced in our opinion on original hearing, to the effect that a principal who employs an agent to sell property during a fixed period of time cannot breach such contract of employment without incurring liability for damages resulting therefrom, is also slated in 1 Mechem on Agency (2d Ed.) § 568, as follows:

“Distinction may be made in these cases between the power to revoke and the right to revoke ; the principal always having the power to revoke, but not having the right to do so in those cases wherein he has agreed not to exercise his power during a certain period. If, in the latter case, he does exercise his power, he must respond in damages. The same conclusion may also be reached in other cases by distinguishing between the authority and the contract of employment. The authority may be withdrawn at any moment, but the contract of employment cannot be terminated in violation of its terms, without making the principal liable in damages.”

The case of Bomar v. Munn, decided by this court and reported in 15S S. W. 1186, is easily distinguishable from the present suit. In that case the brokers claimed the right to recover from the owners of property placed in their hands for sale for a definite period of time, which authority was revoked by the sale of the property by the owners themselves before the expiration of the period of time given to the brokers in which to sell the property. The claim' of right of recovery in that suit was based solely upon the breach of the contract of agency by the owners, without any attempt to show that the services of the brokers were the procuring cause 0⅛ the sale made by the owners, and without any attempt to prove that, but for the revocation of the agency, the brokers could have effected a sale of the property within the period of time covered by the contract of agency. In other words, a breach of the contract of agency was alleged and proven, but there was neither allegation nor proof that the brokers sustained any damages by reason of such breach, in that, but for the breach, the brokers could have earned a commission by selling the property, or that they did earn a commission by being the procuring cause of the sale that was made by the owners. The language used in that opinion, to the effect that the owners had the right to sell the property themselves without incurring liability to the brokers, had reference to the peculiar facts of that casa, and was not intended as being applicable to cases like the present suit.

The appellant again urgently insists that Buchanan’s contract of agency was breached by Buchanan by a transfer to Harwood of a one-half interest in his contract with Popple-well. This contention is based upon the stipulation in that contract to the effect that Popplewell granted to Buchanan “solely the exclusive right of sale as agent on the following described property for six months, * * * ” and upon the further proposition that such authority to sell the property could not be delegated to Harwood without the consent of the owner. As shown in our original opinion, we construed such transfer to Harwood by Buchanan as a transfer of an interest in any commission that might be earned or any cause of action that might arise in Buchanan’s favor, under and by virtue of his contract of employment. The suit by Harwood was merely for a one-half interest in the damages resulting from the breach of the contract of employment of Buchanan, and did not involve the enforcement of any contract made by Harwood as agent of Pop-plewell, and hence the authorities cited and discussed in Williams v. Moore, 24 Tex. Civ. App. 402, 58 S. W. 953, to the effect that such a subagent cannot bind the owner by any contract, are not applicable. Furthermore, the decision last cited announces the doctrine that, while such a subagent may not bind the owner of property to pay for services rendered by a person employed by the subagent, yet such a subagent may be employed to perform ministerial acts, such as showing the property and efforts made to induce the sale thereof, all at the expense of the agent employing him. ' In' other words, the doctrine is clearly announced that a broker engaged to sell real estate may employ the services of a subagent to assist in procuring a sale; and the record in this case clearly shows that such was the extent of the employment of Harwood by Buchanan, and that Buchanan himself found a purchaser for the property in Skaggs within the period of time covered by the contract of agency. It is too well settled to need the citation of authorities that a cause of action like the present one, or an interest therein, may be transferred to another, who may recover the interest therein so transferred.

Por the reasons indicated, the motion for rehearing is overruled.

Motion overruled.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      <®^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J..

text:
    HARROP et al. v. NATIONAL LOAN & INVESTMENT CO. OF DETROIT, MICH.
    (No. 8831.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 30, 1918.
    On Rehearing, May 11, 1918.)
    1. Mechanics’ Liens @=>73(2) — Liens on Homestead — Contbact.
    A mechanic’s lien contract on a homestead, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5631, need not set out specifications of building, except general essentials.
    2. Mechanics’ Liens @==373(2) — Contract itor Lien.
    Contract for lien on homestead providing for construction of $2,000 house, $600 to be paid in cash, and $1,400 to be secured by mechanic’s lien, is not invalid, as far as the owner is concerned, because contract was really to repair and enlarge an old house; contractor allowing $600 for lumber and material in standing walls.
    3. Mechanics’ Liens @=>73(2) — Liens on Homestead — Contract.
    A contract for mechanic’s lien on homestead, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5631, could validly provide that a failure to complete improvements should not defeat lien for contract price, less such amount as would be reasonably necessary to complete improvement.
    4. Husband and Wife @=>62 — Estohpel— Acts oe Husband.
    Wife by occupying with her husband a house not constructed according to a contract for its erection made by them jointly with a third person is not estopped to deny performance of contract on account of acts by husband, by reason of mere silence, except where such silence deceives an innocent person, and she intends that it shall do so.
    5. Mechanics’ Liens' @=>73(2) — Homestead.
    In absence of substantial compliance with building contract, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5631, no lien can be fixed on homestead.
    6. Mechanics’ Liens @=>93 — Contract fob Lien — Compliance with Contract.
    Where omissions by contractor on improvements to homestead are unintentional, and do not impair the structure as a whole, and may be compensated for by deduction from contract price, there is a substantial performance which entitles contractor to lien, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5631.
    7. Usury ⅞=>47 — Loan—Payment in Installments.
    Contract of loan company extending $1,400 loan, to be repaid at 6 per cent, interest in 94 monthly payments o.f $21.42, is not usurious on its face.
    On Rehearing.
    8. Mechanics’ Liens @=>161(4) — Attorney’s Fees.
    In foreclosure of mechanic’s lien on homestead, a lien should not be adjudged for attorney’s fees.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Suit by the National Loan & Investment Company of Detroit, Mich., against Doretta I-Iarrop and others. Judgment for plaintiff, and defendants appeal.
    Reformed and affirmed.
    Muse & Mluse, of Dallas, for appellants. J. L. Penry, of Ft. Worth, and J. H. Syn-nott, of Dallas, for appellee.
   BUCK, J..

We take the following statement of this case from appellants’ brief, which, with such additions as we may see fit to make, we believe will present tbe substantial features:

“The case was tried 'by the judge without a jury, resulting in a judgment for the appellee for $1,⅜6.46, principal and interest, and the further sum of $144.64, as 10 per cent, attorney’s fees, with 10 per cent, interest upon both amounts from date of judgment and with foreclosure of lien upon the homestead property, except as to the judgment for attorney’s fees.
“The appellee sued upon a note for $1,400 dated February 22,1915, executed by the appellants to IC C. Berry, or order, due April 1, 1915, with 10 per cent, interest from date, and providing for 10 per cent, attorney’s fees and acknowledging therein a mechanic’s, materialman’s, builder’s, and contractor’s lien on the premises described in appellee’s petition, and alleged the execution of such lien of same date to secure the payment of said note, and that said note and lien were assigned to the appellee, and that on March 1, 1915, appellants, to further secure said note, executed to appellee a bond for $2,800, conditioned for the payment of $21.42 per month on said note, for 10 per cent, attorney’s fees, and that said bond was secured by deed of trust upon the same property described.
“It is admitted by both parties that the transaction shown by the instruments sued on set out in the statement of facts was a loan of money by the appellee, and that it is the owner of the obligations alleged, and of any liens that may exist thereunder.
“The appellants pleaded that the property covered by the alleged lien was a homestead; pleaded usury against the debt, and that the lien was void: (1) Because the lien contract provided that the house to be constructed was to be built in accordance with specifications made part of the contract, when in fact there was never any written specifications attached or otherwise existent, hence the essence of the contract was verbal and the contract void; (2) because the written contract lien provided for the construction of a new house to cost $2,000 when in fact the thing done was to enlarge and repair an old house for the contract price of $1,400; (3) because the contract, however construed, whether for a new house or the repair of an old house, was breached, and the house not completed, and the plaintiffs only entitled to a quantum meruit recovery, which was destructive of the lien.”

The court filed his findings of fact and conclusions of law, and no assignment in the appellants’ brief attacks the correctness of a finding, and we adopt the findings of fact as thus made, which are as follows:

“The property in controversy is now and was the homestead of the defendants I-Iarrop and wife continuously during all the times as alleged in their answer. The homestead residence on said premises prior to Christmas, 1914, consisted of a six-room frame cottage used and occupied as a home by the defendants; that at said time the cottage was partially destroyed by fire, the ro'o'f of the house being burned off and the ceilings being burned, leaving the walls and foundation standing.
“The defendants made the written application for the loan from the plaintiff, and executed the mechanic’s lien note and contract to K. C. Berry, and the bond and deed of trust sued on, as set out in the statement of facts. That S. M. Bradley solicited business for the plaintiffs, hut acted as the agents of Harrops in taking their application for the loan and forwarding it to the plaintiff. He also wrote the mechanic’s lien note and contract at the instance of the contractor, Berry, and A. H. Harrop. Bradley knew at the time of the execution of the mechanic’s lien contract the condition of the homestead residence upon said premises as above stated, but was advised by said Berry and A. H. Har-r'op at the time of drawing said mechanic’s lien contract that the old house was to be torn down and the lumber therein used in the construction of the house provided for under the mechanic’s lien contract, and also advised that the $600 specified in the contract represented the valuation by the contractor of the material in the old house that was to be used in the construction of the house provided under the contract, and that the cash payment of $600 specified in the contract, was to be satisfied by the appropriation of the material in the old house by the contractor, and that the lien of $1,400 was for the completion of the house contracted for; that in fact all of the labor done, material furnished, and improvements made by the contractor, Berry, under the mechanic’s lien contract was made in repairing and enlarging ..the old house, which was in fact the agreement between Berry and A. H. Harrop and acquiesced' in by Mrs. Harrop, and which Berry agreed to do for the sum of $1,400 specified in the contract, but the plaintiff nor S. M. Bradley had no knowledge of such actual agreement in fact, and their knowledge was restricted to the terms of the mechanic’s lien contract itself as disclosed on the face of such instrument. No new house was built under the contract. The thing done was the repair and enlargement of the old house, and Bradley and the plaintiff relied upon the terms of the written contract and were led to believe that the house constructed was a new house under said contract.
“The plan and specifications referred to in the mechanic’s lien contract were not Introduced in evidence. The evidence showed that the specifications were never in writing, but were verbal. There was, however, a plan of the house shown to S. 3VL Bradley prepared by the contractor, K. O. Berry. The verbal specifications for the improvements -were agreed to by A. H. Harrop and the contractor, Berry, and acquiesced in by Mrs. Harrop, no written plan or specifications were ever shown or agreed to by Mrs. A. H. Harrop, except a floor plan of the house to be completed, to which she consented and agreed.
“The improvements constructed by K. C. Berry under said mechanic’s contract were never completed in accordance with the contract and agreement between Berry and the said defendants, as actually made between them, and the contract lacked $263 of its completion, which was the reasonable sum and reasonable cost necessary to the completion of Berry’s contract aforesaid.
“The things contracted to be done in the construction of the improvements were substantially as alleged in the answer of tne defendants Harrop and wife, and the breach of contract by K. O. Berry is also substantially as alleged in said defendants’ answer, except as to the amount necessary to complete it, which was the sum of $263.
“The contractor executed a bond to said defendants, which was indorsed by the defendants to the plaintiff, and Berry assigned to the plaintiff the mechanic’s lien note and contract, as shown in the statement of facts, and the plaintiff became the holder and assignee of the mechanic’s lien note prior to its maturity.
“The transaction between the plaintiff and defendants was one to borrow money by said defendants, and it was the intentions of the plaintiff and the said defendants that the money borrowed was to be used in taking up the mechanic’s lien aforesaid, the ownership of which lien was to vest in the. plaintiff as security for the $1,400 loaned, and the plaintiff became the owner and holder of all the lien alleged in the pleadings and under and by virtue of the said mechánie’s'lien. And it is eoncéded 6y ’defendants’ counsel that such is the fact, to the extent that any lien existed.
“It is admitted by the plaintiff and said defendants, as shown in the statement of facts, and here adopted, that said $1,400 loan was to draw 6 per cent, interest, to be paid in 94 monthly installments of $21.42, which monthly' payments would discharge the $1,400 loan with 6 per cent, interest thereon from -the date of the bond to plaintiff heroin sued on; that on April 8, 1915, the draft of the plaintiff for $1,390 payable to Doretta and A. H. Harrop and the Exchange National Bank of Denton was cashed, with the indorsement of the defendants and K. O. Berry thereon,-and by agreement between S. M. Bradley .the contractor, Berry, and A. H. Harrop., acquiesced in by Mrs. Harrop, said $1,390 was placed on said date to the joint credit of A. H. Harrop and S. M. Bradley in the Exchange National Bank of Denton, 'and was to be paid out to K. C. Berry upon his said contract on the joint check of S. M. Bradley and A. H. Harrop. This was done upon the representation that the house was practically completed, except in minor details, stated by A. H. Harrop and by the contractor, Berry, to S. M. Bradley, and that the checks offered in evidence aggregating 511,-390 were jointly signed by A. H. Harrop and S. M. Bradley, except as to thr$e, which were signed by & M. Bradley himself, and signing the name of A. H. Harrop under Harrop?s authority so to do, said checks made payable to Berry and to such parties as 'he directed or to whom money was due for labor and material upon said house, exhausting the $1,390 deposit.
“Said defendants having acquiesced in such deposit of the money and to its payment upon such joint checks as aforesaid, and Mrs. Harrop having acquiesced therein, and the representations of A. H. Harrop and the contractor, Berry, being that the house was practically completed, and the defendants in the latter part of April, 1915, moved into the house, and the plaintiff having acquired the mechanic’s lien note prior to its maturity, notwithstanding Mrs.’ Doretta Harrop did not accept the house or the improvements as completed, the defendants are estop-ped.”

From the above found facts and the further fact, which the court found, that the plaintiff was an innocent holder for value and the assignee of the mechanic’s lien, the court concluded as a matter of law that defendants were estopped to deny the debt or the lien, and that plaintiff was entitled to judgment.

The first question raised by appellants’ first assignment is whether the failure to include in the contract between appellants and the contractor the specifications and plans of the building to be erected or repaired destroys the lien which said contract purports to grant. The note given and signed by both appellants recites:

“This note is given in payment of the erection of one-story frame house of seven rooms, on certain real estate,” describing the land.

The mechanic’s lien contract, duly acknowledged by both appellants, provides that:

“The said K. O. Berry, contractor, hereby agrees and binds himself to build, erect, construct, and complete in a good, workmanlike manner, according to the plans and specifications therefor furnished by K. O. Berry and made a part of this contract, a one-story frame house of seven rooms upon” the land described.

This instrument then proceeds to give and grant the lien' and to provide that a failure to complete the house shall not defeat the lien, but such lien shall exist in favor of the contractor for the full amount specified less the amount of money necessary to complete the house.

Article 5631, Vernon’s Sayles’ Tex. Oiv. Stats., provides in part that:

“When material is furnished, labor performed, erections or repairs made upon a homestead, if the owner thereof is a married man, then to fix and to secure the lien upon the same it shall be necessary for the person or persons who furnished the material or performed the labor, before such material is furnished or labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged- by her, as is required in making sale of a hoAestead.”

The expression used in the above statute, to-wit, “setting forth the terms thereof,” referring to the contract in writing, evidently should be construed to mean that the essential conditions or statement of the contract should be included in the written instrument, not the minute details involved'in the labor to be performed and the material to be furnished. In the case of Phelps v. Sheldon, 13 Pick. (Mass.) 50, 23 Am. Dec. 659, it was held that a contract was not void for uncertainty where the builder agreed to construct a feeder for a canal therein described for the amount specified, and the contract itself stated what was meant to be included, viz. “every kind of work connected with fetching the water into the canal.” In Myer v. Fruin (Sup.) 16 S. W. 868, it is held that, where a contract for the construction of a house stipulated that the work should be done according to the attached plans and specifications, and a dispute arose as to how a part of the work should be done; the builder might put in evidence a plan not attached to the contract, but which was exhibited to him at the time he made the contract, as explaining how the work should be done about which the dispute subsequently arose. These cases are cited, and. many others to the same effect might be mentioned, as supporting the proposition that a valid contract may be entered into between the owner and the contractor where the plans and specifications are not in writing, although the contract is evidenced by a written instrument which refers to said plans and specifications, and also that, where plans and specifications are in writing and attached to and made "a part of the written contract, evidence aliunde the written contract is admissible to explain and shed light upon what under the contract, including the plans and specifications, was intended by the parties should be done. It will be noted that, while the mechanic’s lien contract refers to the plans and specifications furnished by the contractor and makes them a part of the contract, yet it does not provide that such plans and specifications shall be in writing. Certainly, were not a homestead involved, the owners and the contractor could have formulated and executed a written contract, binding upon each, providing that the house Should be built according to plans and specifications agreed upon by and between the parties; and under such contract it would be permissible to show what the verbal understanding was in order to determine whether or not the terms of such contract, including such verbal agreement, had been complied with. Upon a breach by either party the other could sustain a suit on the written contract, and would be permitted to show what the verbal agreement was in order to establish the claimed breach. Hence we are of the opinion, though we have been cited to no cases directly in point, and after considerable investigation have found none, that it was not essential to the validity of the contract between the Har-rops and the contractor, or to the vitality of the lien, as provided for by article 5631, supra, that the plans and specifications should be included in and made a part of the written contract. We have examined every authority cited by appellants and appellee upon this assignment, and many others, and have failed to find a single decision which, in our opinion, is contrary to the conclusion by us reached. Hence we overrule appellants’ first assignment, and also the second, which involves the same question.

Under appellants’ third assignment it is urged that the epurt erred in foreclosing the lien alleged and sued on upon the admitted homestead, because the alleged mechanic’s lien on its face by its terms contracted for the construction of a house to cost $2,-000, $600 of which was to be paid in cash, and $1,400 secured to be paid by the mechanic’s lien. It is insisted under this assignment that the undisputed evidence shows that the actual contract made between the contractor and the appellants was to repair and improve the old house, which had been partially burned, and that in fact no new house was built or constructed. The evidence shows that the appellants offered and the contractor agreed to accept the lumber and material in the standing walls, the foundation, etc., in lieu of the payment of the $600, and that such material was used by the contractor. In Churchill v. Bielstein, 9 Tex. Civ. App. 445, 29 S. W. 392, it was held that no impairment of the lien created in the original agreement resulted where a husband and wife entered into a contract with a third person, by which the latter was to erect for them a dwelling on their homestead property, and they were to pay him a certain amount therefor, in monthly payments, by executing to him their promissory notes, one clause of the contract Stating that such notes were to be delivered so that he could “negotiate them for labor and material for construction of said dwelling house,” and the husband sub-sequenty agreed orally with the contractor that certain of the notes were to be deposited in trust for said husband, and that he was to furnish the contractor with material of a value equal thereto to be used in the building. There is no contention made that the salvage from the old house was not used in the repaired or new building; that it was not of the value at which the contractor took it; that the owners did not get the full benefit thereof; or that they were injured in any way by this agreement which they made with the contractor. The court found that Mrs. Harrop acquiesced in this agreement, but that neither plaintiff nor its representatives had any actual knowledge thereof, and that their knowledge was restricted to the terms of the mechanic’s lien contract itself. “We cannot understand how it can be reasonably contended that any injury to appellants is here shown, or any right denied or any ground for relief evidenced. If the salvage was worth what they sold it for to the contractor, and was available for the uses to which the latter put it, the appellants have no ground of complaint. If it was not worth the price they received, in the way of credit on the contract, certainly they cannot complain, and only the plaintiff, whom it is shown had no knowledge of this private agreement, has reason to claim injury. The assignment is overruled.

Under the fourth assignment appellants urge that, irrespective of other alleged errors, the judgment is erroneous because, ns found by the court, the improvements contracted for lacked $263 of being completed, and that the plaintiff, as the assignee of the contract and lien, was entitled to recover upon a quantum meruit upon said contract, which was destructive of any alleged lien thereunder; hence that no lien existed upon the homestead by virtue of the mechanic’s lien sued on. The mechanic’s lien contract executed by appellants provided:

“That a failure to complete the improvements herein contracted for shall not defeat such indebtedness and lien, but in such event the indebtedness and lien upon, said premises and improvements shall exist in favor of said contractor, his heirs and assigns, for said contract price, less such amount as would be reasonably necessary to completo said improvements according to said plans and specifications.”

We know of no statutory or constitutional inhibition against this sort of provision, and believe that such a provision is valid. Under it a contractor, or his assignee, would not be required to bring his action in the form of quantum meruit, but he could bring suit on the contract, in which event the owner would have the election, by way of cross-action, to require a specific performance, or to plead a deduction in the amount of fhe contract price to the extent of the sum necessary to complete the contract according to its terms. Doubtless, were it not for the finding' that the appellants were estopped from denying that the contract was completed according to its terms, and had the pleadings of the defendants below been so drawn as to provide for this relief, the court would have excluded the $263 from the judgment. The cases of Murphy v. Williams, 103 Tex. 155, 124 S. W. 900, Paschall v. Pioneer Ass’n & L. Co., 19 Tex. Civ. App. 102, 47 S. W. 98, and Walker v. Woody, 40 Tex. Civ. App. 346, 89 S. W. 790, are cited by appellants as sustaining the contention made in the assignment. These cases do lay down the rule that the contractor or his assignee cannot sue on quantum meruit, where there has been a failure and refusal to complete the contract according to its terms, and the owner has been compelled to complete it himself. In Murphy v. Williams, supra, it is said:

“No such lien can exist on the homestead without compliance with the constitutional provision. The debts of this kind to which that provision allows the homestead to be subjected are ‘for work and material used in constructing improvements thereon¡’ and for them only when ‘contracted for in writing with the consent of the wife,’ etc. And the lien to secure such debt is declared to be for * * * ‘improvements thereon as hereinbefore provided,’ which plainly means improvements actually made by the use of the work and material. Both the contract and the employment of the work and material upon the homestead in compliance with' it are thus made essential to the lien. It is evident, therefore,, that an assignment of notes given for the price to be paid for an improvement yet to be made and of the rights of the contractor under his contract therefore passes no existing lien, but only the right to such as may be perfected by the subsequent performance of the contract. The coming into existence of the lien still depends upon the doing of that which the contractor is to do under the contract. No agreement can change this, because the lien thus provided for is the only one which the parties are allowed to impose upon the homestead, and it can be imposed in no other way. than by the concurrence of the prescribed conditions.”

The statement, in the quotation above, to the effect “No agreement can change this,” etc., refers, not to the original agreement between the contractor and the owners of the property, but to the alleged agreement made subsequently by the owners with'the purchaser of the note given by the owners to the contractor. We think under the statute (article 5631, supra) a lien will be fixed upon a homestead only to the extent of the labor performed or material furnished, but we are of the opinion that a valid contract could be entered into by the owners and the contractor by the terms of which the com tractor was to complete the house, except as to the painting or the papering or the plastering, etc., and that there would be a valid, lien against the completed premises to th«. extent of the labor performed or the ma terial furnished. We construe this contract as in effect providing that, in case the contractor should not perform some of the labor or furnish some of the material provided for by the terms of the contract, he would have a lien for the labor performed and material actually furnished, subject to the right of protection to the owner against a payment exceeding the contract price. The question of whether or not a credit should have been allowed in the sum of $263, is not raised under this assignment, but is, pe? • haps, raised under the sixth assignment, which we will not consider. The' evidence shows that the appellee sent a check in the sum of $1,390, covering the loan of $1,400, ($10 having been retained by the appellee to take care of some alleged expenses) to S. M. Bradley, whom the court finds was the agent of appellants in the transactions leading up to the making of the loan; that upon receipt of the check it was, upon agreement of Bradley and appellant A. H. Harrop,. placed in the bank, to be drawn out upon ¿hecks signed by both Harrop and Bradley, and for the purpose of paying the contractor as the work progressed. The court finds that appellants acquiesced in this action and to the payment of the amounts upon the joint checks. It is further found by the court that A. H. Harrop stated to Bradley before the final payment was made to the contractor that the house was practically completed, and that the appellants moved into the house shortly thereafter. No complaint was made by either appellant at that time that tile contract had not been fulfilled according to its terms. A. H. Harrop expressed himself to Bradley as being well pleased, and Mr. and Mrs. Harrop made no complaint or contention that the contractor had failed to perform his contract in any particular until some time in September or October, perhaps five months after they had moved into the house, and after they had gotten behind in the monthly installments to the appellee company. The contractor was required to give a bond for the fulfillment of his contract. At the time of this complaint to Bradley by Harrop Bradley mentioned to Harrop the fact that the contractor was under bond, and stated to him that, if the house had not been finished according to specifications, he (Bradley) would have a Mr.- Davis go out and look at the house and see what was needed to complete the contract, and would have the contractor’s bondsmen pay for it, and that it would not cost the Harrops a cent. Harrop replied to this offer that he did not want Bradley “messing around” his house. While Harrop denied Bradley’s testimony as to the matters referred to, yet the court was authorized to find that Bradley’s statement was the truth, and we think perhaps he would have been justified in finding that both appellants accepted the house in its then condition as a fulfillment of the contract on the part of the contractor. But the court in effect found that Mrs. Harrop did not accept the house or improvements as completed. While a wife may be estopped, when she is silent in a case whore not to speak would amount to a positive fraud, yet her mere silence in the premises will not be chargeable to her except where such silence or suppression deceives an innocent person contracting with reference to her property, and she intends that it shall do so. Speer’s Law of Marital Rights (19113) p. 307. The court finds that she acquiesced in the placing of the money in the bank to be drawn out upon the joint check of her husband and Bradley, for the purpose of paying it out to Berry upon the contract. But we have been cited to no evidence tending to show that Mrs. Harrop knew of the statement claimed by Bradley to have been made to him by Harrop to the effect that the house was completed, upon which Bradley drew a check covering the balance due, or that Mrs. Harrop knew that Berry had been paid the balance of the contract price. In fact, Harrop himself denied that he knew until long after that one check for $450, had been drawn in favor of Berry. Though the court’s findings upon this point may conclude the husband, they do not conclude the wife. A wife by occupying with her husband a house not constructed according to a contract for its erection, made by them jointly with a third person, is not estopped to deny performance of the contract. Paschall et ux. v. Pioneer Savings & Loan Co., 19 Tex. Civ. App. 102, 47 S. W. 98, writ denied. Nor would Mrs. I-Iarrop, in the absence of her knowledge and acquiescence, be estopped because her husband declined to permit Judge Bradley to have some one to examine the premises with a view of calling on the bondsmen to finish the contract in the particulars of which complaint was made. In the Pasehall Case, supra, it was held that, in the absence of a substantial compliance with the building contract, no lien could be fixed on the homestead, and with this holding we concur. But we think there was a substantial performance of the contract, though in certain particulars the contractor failed to comply with the plans and specifications. Substantial performance of, or substantial compliance with, a contract is performance, except as to unsubstantial omissions, with compensation therefor, and when the omissions are slight and unintentional compensation is substituted pro tan-to for performance, to prevent the hardship of a failure to recover for that which is well done. Linch v. Lumber Co., 80 Tex. 23, 15 S. W. 208; Johnson v. White, 27 S. W. 174, writ denied; Dickinson v. Sheldon, 146 App. Div. 144, 130 N. Y. Supp. 889, 892. Such relief is permissible in a case where the deviations are inadvertent or unintentional, and are not due to bad faith, and do not impair the structure as a whole, but are remediable without doing damage to other parts of the structure, and may without injustice be compensated for by deductions from the contract price. Littell v. Webster County, 152 Iowa, 206, 131 N. W. 691, 132 N. W. 426; Smith v. Russell, 140 App. Div. 102, 125 N. Y. Supp. 954; Mitchell v. Caplinger, 97 Ark. 278, 133 S. W. 1032; Pippy v. Winslow, 62 Or. 219, 125 Pac. 298; 4 Elliott on Contracts, § 3603 et seq.

As shown by the cases, and many others which might be cited, a contractor who unintentionally and without bad-faith fails in certain minor respects to complete the building according to the esact terms of the contract is not denied a right of recovery, nor in such case is he confined to an action on quantum meruit, but he may sue on the contract, leaving it to the defendant to plead the claimed variance or deficiencies, and to the court to make proper reduction therefor. Here we conclude that, while plaintiff in the instant case would not be denied any recovery by reason of the finding of the court that the sum of $263, would be required to complete the building according to the contract, and while the husband might be estopped by the facts shown, as found by the court, from denying such completion, yet the estoppel would not operate against the wife, and that $263, with interest at 10 per cent, from the date of the note, must be deducted from the amount for which a lien was fixed against the wife jointly with her husband. The judgment must also be reformed as to the 10 per cent, attorney’s fees, as affecting the wife and the homestead, upon $263, and interest thereon.

What we have said above, we think, disposes of the question presented in the seventh assignment. We do not consider the contract as usurious. Interstate B. & L. Ass’n v. Goforth, 94 Tex. 259, 59 S. W. 871. It was agreed that the loan of $1,400 extended by the appellee would be repaid at 6 per cent, interest in 94 monthly installments of $21.42 each, beginning March 1, 1915. The court did not include the $10 retained out of the $1,400 by the appellee to pay appellant’s attorney’s fee, but excluded that amount, also $14 paid by appellants in the way of a membership fee in the association. Rabb v. Texas, L. & Inv. Co., 96 S. W. 77; Martin v. Land Mortg. Bank, 5 Tex. Civ. App. 167, 23 S. W. 1032.

The judgment will be reformed in the respects indicated, and as reformed will be affirmed, with costs of appeal taxed against appellee.

Reformed and affirmed.

On Rehearing.

Both appellee and appellants have filed motions for rehearing. Appellee calls our attention to one expression in our original opinion which was so worded by inadvertence, to wit:

“The judgment must also he reformed as to the 10 per cent, attorney’s fees, as affecting the wife and the homestead upon $263, and interest thereon.”

It is true that the trial court did not adjudge any lien on, or grant a foreclosure against, the homestead for attorney’s fees. In this we think he was correct. Harn v. Am. Mut. B. & L. Association, 95 Tex. 79, 65 S. W. 176; Am. B. & S. Association v. Daugherty, 27 Tex. Civ. App. 430, 66 S. W. 131, writ of error refused, 95 Tex. 673; Summerville v. King, 98 Tex. 332, 84 S. W. 643, 83 S. W. 680. The above-quoted expression in the original opinion was intended to read and should have read:

“The judgment must also be reformed as to the 10 per cent, attorney’s fees, as affecting the personal judgment against the wife, upon $263, and interest thereon.”

And the correction is here made, and the judgment will be so entered. We have carefully examined both motions, but have concluded that the same should be overruled, except in respect to the correction already noted, and it is so ordered.

Motion overruled.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes