author: HUFF, J.

text:
    BOST v. McCREA.
    (No. 674.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1914.
    Rehearing Denied Jan. 9, 1915.)
    1. Landlord and Tenant (§ 331) — :Renting on Shakes — Re-entky by Landlord.
    Where a landlord orders a tenant of premises rented on shares to vacate before the end of his term, and the tenant does so, the lease is terminated; but the tenant’s right to recover for the wrongful breach by the landlord is not thereby defeated.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.]
    2. Landlord and Tenant (§ 329) — Renting on Shares — Re-entry by Landlord.
    The fact that a tenant on shares vacated the premises upon receiving a written notice from the landlord, stating that he considered that the tenant had violated his contract and notifying him to leave the farm, was not an admission by the tenant that he had violated the lease.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 1364-1366; Dec. Dig. § 329.]
    3. Landlord and Tenant (§ 331) — Renting on Shares — Breach by Landlord — Sufficiency oe Evidence — Damages.
    In an action by a tenant, who rented on shares as much of a tract of 500 acres of land as he could use, to recover damages for his eviction from the premises three years before the expiration of his term, evidence held sufficient to support a verdict for.$1,500.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.]
    4. Trial (§ 252) — Requested Instructions —Applicability to Evidence.
    In an action by a tenant on shares for damages caused by his eviction from the premises, a requested charge, that if the jury found that the tenant couid by ordinary diligence on his part have procured a similar lease, which would have produced equal crops, he could not recover for those years, was properly refused, where there was no evidence that the tenant could have procured another lease for as much, land, or one giving him the use of a team and tools equal to those he had the use of under his lease.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Landlord and Tenant (§ 331) — Renting on Shares — Re-entry by Landlord — Burden oe Prooi^-Minimizing Damages.
    The burden was on the landlord to show that the tenant could have procured such a lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.]
    6. Trial (§ 260) — Requested Instructions —Repetition oe Charge Given.
    Even if a requested charge that a tenant on shares, evicted by the landlord during the term, could not recover for the eviction if, by reasonable diligence, he could have found a similar lease, was proper under the evidence, it was covered by the charge of the court that it was the duty of the tenant to exercise ordinary care to lease other premises or seek other employment to minimize the damages, and that the jury should deduct from the amount the tenant would have received under the lease any amount that he had earned, or by the use of ordinary care could have earned, during that time.
    [Ed. Note. — For other cases, see Trial. Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    7. Landlord and Tenant (§ 331) — Renting on Shares — Re-entry by Landlord — Damages.
    Where a landlord wrongfully evicted a tenant from land which he had rented on shares, the measure of damages was the market value of the crops which the tenant in reasonable probability would have grown on the premises during the remainder of .the term, less the expenses, other than the labor of the tenant, incurred in raising the crops, and less such sums as the tenant did earn, or by the exercise of ordinary care could have earned, during the time after the eviction.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.]
    Appeal from District Court, Carson County; F. P. Greever, Judge.
    Action by J. A. MeCrea against John Q. Bost. Judgment for plaintiff, and defendant appeals,
    Affirmed.
    Cooper & Merrill, of Houston, and Lump-kin & Harrington, of Amarillo, for appellant. Lloyd Fletcher, Jno. W. Veale, and W. A. Davidson, all of Amarillo, for appellee.

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

       Writ of error pending in Supreme Court.

   HUFF, J.

The appellee, MeCrea, brought suit against the appellant, Bost, on a rental contract, and alleged a breach of the contract by the appellant. He alleged substantially that the terms of the contract were that appellant would lease to appellee certain lands for three years, with an option of a five-year term, and was to furnish teams, tools, implements, and feed, and that appel-lee was to do the work on the land and receive one-half of the crop.

The appellant denied the allegation, and alleged a breach of the contract by the appellee, and that appellee left the place without any fault on the part of appellant. This we think will be a sufficient statement of the pleadings at this time. Appellant’s first assignment is to the effect that the court erred in refusing to instruct a verdict for appellant. The proposition under this assignment is:

“Where a tenant for years under a written contract was ordered to vacate by the landlord, and chose to do so, it amounted to a termination of the lease contract.”

The appellant requested the following special instruction:

“You are instructed in this case, to return a verdict for the defendant, for the reason that the evidence shows, if any contract was ever made and entered into between the plaintiff and the defendant, then the same was mutually terminated and abandoned by each of the parties thereto.”

The suit is based upon an original and supplemental contract. The original contract was executed between J. Q. Bost, appellant, and J. A. MeCrea, November 17, 1910. The original contract is to the effect that Bost leased to MeCrea for a period of three years — or five years, in case he (Me-Crea) wanted it at the expiration of three years — any number of acres of land from 160 to 500, if MeCrea cared to break it. The tenant was to pay one-half of all grain raised on the land leased, and to place the grain belonging to Bost in his crib or stack. On the 11th day of April, 1911, a supplemental contract was executed. It recited that Bost by the original contract had agreed to furnish land and four horses or mules, feed for the horses, and plows, to MeCrea during the term of said contract; that a dispute arose between the parties in regard to the manner and character of handling the horses. Me-Crea, therefore, agreed to take care of the horses furnished by Bost in a good and reasonable manner, and not overwork and not use the horses for any other work, except work upon the place and in going after and bringing to the place things necessary to be used thereon. MeCrea further agreed to cultivate the land in a good and “workmanlike” manner and in due season, and that he would not in any way interfere with Bost in the possession of the remaining portion of the place. Bost agreed not to interfere with the possession of the land leased to MeCrea under the terms of the original contract, and would not interfere with the horses and other personal property in possession of Me-Crea so long as MeCrea held and used the property as above set out. The recited consideration for the supplemental contract was to settle a dispute between the parties. It appears from the evidence that previous to executing the supplemental contract the appellant and appellee had a difficulty, but settled it by the supplemental contract, and that appellee went back to work on the land. The appellee testified:

“After Mr. Bost and I had entered into this supplemental contract that has been read here, I went back there and went to work. I broke about 18 or 20 acres of grass meadow. I stayed on the place until he ordered me off. It was probably about 10 days after the contract was made that he ordered me off. There was not anything that took place between Mr. Bost and I at that time. He just came up and handed me a letter. He refused to furnish me feed, and 1 went down and bought feed, and he forbid me feeding that. I fed it, and he came down the next day and said, T forbid you feeding any more of that feed to the mulesand I said, ‘Give me a reason; the mules cannot live on the grassand I said, ‘What will you do, if I don’t stop?’ And he said, ‘God damn you, I will kill you.’ ”

About a week after that appellant handed appellee the following letter:

“At Home, April 27, 1911.
“Mr. A. J. MeCrea, At Home — Dear Sir: This is notice to you that I consider that you have violated your contract with me, and is notice for you to quit working my teams and to leave the farm.
“Yours truly, John Q. Bost.”

The appellee further testified:

“After I had had the conversation with him about the feed, and he delivered this notice to me, I walked off. I left. Up to this time I ihad been working on the farm there under my contract.”

The appellant testified that appellee did not properly take care of the mules furnished him, and that he improperly fed them, and a day or so before the notice appellee left the mules for one or two days without water in the lot, or without any one to look after them, and, further, that the land was not properly broken, and that he considered the appellee himself had broken the contract by not taking proper care of the teams and not plowing in a farmerlike manner. He introduced other evidence to show that the land had not been properly plowed. The appellee denied these statements of appellant with reference to improperly breaking the land and improper care of the teams. From the briefs of the parties hereto this appears to be the substance of the evidence upon the breach alleged.

“Where one party assumes to renounce the contract — that is, by anticipation, refuses to perform it — he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not, of course, amount to a rescission of the contract, because one party to a contract cannot by himself rescind it; but by wrongfully making such a renunciation of the contract he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect to such wrongful rescission. The other party may adopt such renunciation of the contract by so acting upon it as, in effect, to declare that he, too, treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation.” Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302; Cornelius v. Harris, 163 S. W. 349.
“The intention to abandon the contract at some future date, is not a breach of it; but, when that intention is declared in positive terms and unconditionally, it has the effect, in so far as the promisor is able to do so, to repudiate the contract itself, and to terminate the contractual relations between the parties. This affords to the other party the opportunity to accept the declarations, if he chooses to do so, and thus make effective the declarations of intention not to perform, rendering the contract' thereby one that is broken on the part of the promisor himself.” Kilgore v. North Texas Baptist, etc., 90 Tex. 139, 37 S. W. 598 ; 9 Cyc. 635 (3a), 724.

The appellant cites the case of Davidson v. Harris, 154 S. W. 689, and tafees the following excerpt from the opinion, where Judge Reese says:

“If appellee was, in fact, ordered to vacate the leased premises, and chose to do so, this amounted to a termination of the lease.”

But the sentence is not completed in the quotation. It continues:

“And entitled appellee to a cancellation of his notes. Whatever rights either party would have would have been by way of damages for breach of the lease contract.”

That was a suit for the cancellation of separate notes for each month’s rent during the term of the lease. We thinfe that case, when properly understood, is in consonance with the rule by the Supreme Court above quoted by us. In the Greenwall Case, supra, it is further said:

“The necessary consequence qf both parties treating the contract as terminated by the renunciation of September 10th, as averred in the petition, was to prevent the accrual of any specific interest plaintiff might, by a different course, have acquired and preserved in the lease, the business to be conducted under it, and the proceeds of the sale of the same. *' * * Upon such a repudiation of an executory agreement by one party, the other may make Ms choice between the two courses open to him, but can neither confuse them together nor take both. It would seem to follow necessarily that the cause of action which plaintiff set up in his pleading entitled him, if sustained by the evidence, to recover * * * for the loss which he sustained from the breach alleged, which was the profit he would have made from the business.”

In this case the contention of appellant is that, because McOrea left the place, it terminated the lease. This may be admitted. In Preston v. Smallwood, 20 N. Y. Supp. 504,i cited by appellant, the court there held the tenant, because he abandoned the premises, could not recover his interest in the crop. So in the Greenwall Case, supra, our Supreme Court held that the necessary consequence in accepting the renunciation precluded the plaintiff from recovering any specific interest he might have acquired in the lease and would have had a different course, etc., but that did not preclude him from suing for damages for a breach of the contract alleged and a recovery therefor, which was held to be the profits he would have made from the business.

It was argued before us that when appellant gave appellee the notice, and when appellee acted upon it, he thereby admitted he had broken the contract and abandoned it. The notice was: “I consider that you have violated your contract.” It is not a charge direct that appellee had broken the contract, but it was only a notice of what the appellant “considered.” The preceding acts and words of appellant doubtless had theretofore raised a suspicion in the mind of appellee that appellant so considered. When he left he did not do so because he had violated the contract, but because appellant considered he had, and had so absolutely convinced himself that he further stated in the letter: “And is notice for you to quit working my teams and leave the farm.” Without the team to work, and without being permitted to stay on the farm, it would occur to us it would have been difficult to farm the place; at least, he could not do so under the agreement. We thinfe it is clear that a breach was proven by appellee, and if the jury accepted his testimony he established that part of his allegation. If the jury had accepted the appellant’s evidence, they would have found that he was correct in reaching the conclusion that appellee broke the contract. This issue the trial court very clearly presented to the jury for their determination. This assignment is overruled.

The second assignment is to the effect that the verdict and judgment is excessive and has no basis in the testimony; that as shown therefrom the plaintiff suffered no damages, except for the year 1911, which could not have exceeded $500; that for the year 1912 plaintiff produced a crop greater and of more value than he could have produced under the leased premises; that for the year 1913 he could have procured the premises occupied by him for the year 1912. The jury had testimony before them from which they could find that the land leased was of a better quality than any appellee leased thereafter, or could have leased in that neighborhood; that, owing to its peculiar nature, it was considered as being better drouth-resisting than the other land obtained by the appellee. The contract entitled him to as much land as he desired, from 160 to 500 acres. The jury had testimony from which they could have found that for the year 1911, the year appellee left the place, he would have put in cultivation 265 acres; that he would have produced for that year the average crop, which would have been one ton per acre, and that its market value was $10 per ton, Or $2,650, and that his costs in the making, harvesting, marketing, etc., for that year, would not have exceeded $50, and that he used diligence to procure employment elsewhere, after having left the place, and succeeded in making during the year only $75; and that the net amount which he would have obtained for his one-half of the crop would have been $1,250. For the year 1912 appellee rented from a Mr. Weatherly 185 acres, and made that year on that place $1,000. The contract with Weatherly was to furnish terms, implements, etc. He could not get any more land from Weatherly that year. There is testimony, if the contract had not been breached, he would have planted and cultivated the 500 acres on appellee’s land under the lease, and there is some evidence that his profits over what he made on the Weatherly land would have been $1,400. For the year 1913 he got all the land he could break from another party, of which he was only able to break 50 acres of sod. The crop that year on sod was a total failure in that neighborhood, but on old land some crops were made, and its market value was $18 per ton. There is evidence from which the jury could have found that the appellee would have made $1,800 or $2,000’on appellant’s land for that year under the lease. The evidence is conflicting as to whether or not he could have obtained the land from Weatherly he had worked during the year 1912, hut it is certain that he could not have obtained as much as he would have had under the terms of the lease with appellant.

The jury found a verdict for appellee for the sum of $1,500. While the testimony is not clear and certain, as in the nature of things it would not be, and while there is also contradiction and conflict, and facts from which an inference could be drawn that ap-pellee was not damaged as much as found by the jury, yet we do not think we would he justified in disturbing the verdict upon the insufficiency of the evidence.

The third assignment of error is to the effect that the court erred in refusing to give specially requested instruction No. 2. This charge in part is that if the jury should find that appellee was entitled to recover upon the alleged breach—

“and you further find that plaintiff could, by the use of ordinary diligence and effort on his part, 'have procured a similar and like contract with other persons, or as much land as lie could cultivate with a like team and tools and implements, that were agreed to be furnished by the defendant, and that he could have and would have produced like crops thereon, then you will find for the defendant for any and all years that xilaintiff could have procured like contracts therefor and so say by your verdict.”

We fail to find any evidence that appellee could have obtained a lease contract, like the one he had with appellant, with other persons for as much land, with like teams, tools, etc. The contract was a lease for the cultivation by appellee for 500 acres, or as much thereof as he desired. The appellee testifies that he could and would have cultivated that much of appellant’s land. The evidence that he could procure but 185 acres, and the facts, we do not think show that the tools, implements, etc., furnished were the same as those contracted to be furnished by appellant.

The appellant did not allege negligence on the part of the appellee in such a failure. We believe the burden was upon appellant to so allege and prove. Porter v. Burkett, 65 Tex. 383; Weber, etc., v. Bradford, 34 Tex. Civ. App. 543, 79 S. W. 46; Miller v. Sealy Oil Mill, etc., 166 S. W. 1182.

If, however, the charge was a proper one under the pleadings and evidence, we think the court’s charge sufficiently covered the issue. The charge of the court on this point is:

“5. You are further instructed that in the event you shall find that the contract was breached by defendant, as charged, then it was the duty of plaintiff, under the law, during the remainder of the term of said contract or lease, to exercise ordinary care and diligence to find and lease other premises or seek other employment, to prevent or diminish any damages that might result to him by reason of the breach of the lease contract complained of, if you find same was breached, and the defendant could not be held for any damages that may have resulted to plaintiff by reason of plaintiff’s failure, if any, to exercise such ordinary care and diligence.”
“7. You are further charged that, if you find for the plaintiff damages under the foregoing instructions, you will assess his damages as follows: You will allow Him such sum if any, as you shall find from the evidence to be the rea-, sonable market value on the said leased premises of one-half of the grain which you may find from the evidence plaintiff would in reasonable probability have grown on said premises for the years 1911, 1912, and 1913, deducting therefrom the following items,, to wit: Such expenses other than plaintiff^ own labor that plaintiff would have necessarily expended in cultivating, harvesting, and marketing said crops, and also such sums of money as he has earned since April 27, 1911, during the period of time and including the year 1913; or such sums of money as he could, by the use of ordinary care and diligence, have earned or made during such period of time, at the same or other employment—and the difference, if any, remaining after such deduction, would be the amount of your verdict.”

It will be observed that in paragraph. 5 of the court’s charge the jury were told that it was the “duty” of appellee during the remainder of the term of said contract of lease to exercise ordinary care and diligence to find and lease other premises” to prevent or diminish the damages, and in the seventh paragraph they were charged to deduct such sums as he could have made by the use of ordinary diligence “at the same or other employment.” This charge we think substantially submitted the issue requested by appellant, and that there was no error in refusing the charge of appellant.

The fourth assignment claims error in the fifth paragraph of the court’s charge, in that it ignored the fact that appellee occupied the premises for the year 1912 under a similar contract, and that, if said premises produced a like quantity as would probably have been produced on the leased premises, then appellant would be relieved from liability therefor. We think what has been said under the third assignment disposes of the fourth assignment. We think the court’s charge on the measure of damages is in substantial conformity to the rule announced by the Supreme Court, in the cases of Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753, and Crews v. Cortez, 102 Tex. 111, 113 S. W. 523, 38 L. R. A. (N. S.) 713.

We overrule the fifth, sixth, and seventh assignments. The disposition made by us of the preceding assignments, we think, dis? poses of the latter.

We find no such error as will require a reversal of the cause, and it is therefore affirmed.

       Reported in full in the New York Supplement: reported as a memorandum decision without opinion in 65 Hun, 624.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    CITIZENS’ STATE BANK v. McSHAN et al.
    (No. 5385.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dee. 23, 1914.
    Rehearing Denied Jan. 20, 1915.)
    1. Appeal and Error (§ 1002) — Review— Verdicts.
    A verdict based on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.].
    2. Estoppel (§ 83) — Equitable Estoppel.
    Where plaintiff paid a note given by his father to defendant bank, and the bank led plaintiff to believe that he. would receive a note payable to the father and in the bank’s possession, the bank is estopped to deny plaintiff’s right to the note on the ground that it was not actually deposited as collateral to secure that debt.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 218, 227-229; Dec. Dig. § 83.]
    3.Fraudulent Conveyances (§ 225) — Persons Entitled to Attack Conveyance.
    Where a bank held a note as collateral, and plaintiff paid off the obligation, receiving the collateral, the absolute title to the collateral did not pass to plaintiff, and, the debtor having-conveyed to plaintiff property in excess of the debt paid, the bank, if still a creditor of the debtor, may attack the transfer of the collateral note as in fraud of creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 653-657; Dec. Dig. § 225.]
    4.Fraudulent Conveyances (§ 308) — Evidence— Sufficiency.
    Whether the transfer of a note by a debtor was in fraud of creditors held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 923-940; Dec. Dig. § 308.]
    5.Fraudulent Conveyances (§ 19) — Defenses.
    A debtor’s wife voluntarily incumbered her property to pay the husband’s debts. Thereafter the son of the debtor discharged some of the obligations and received a note payable to the debtor, which had been put up as collateral. Held that, where property in excess of the sums advanced by the son was transferred to him, a creditor of the debtor might attack, as fraudulent, the transfer of the collateral note, though some of the property conveyed to the son was the separate property of the debtor’s wife.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 24, 25; Dee. Dig. § 19.]
    Appeal from District Court, Jim Wells County; W. B. Hopkins, Judge.
    Action by W. H. McShan against the Citizens’ State Bank and others. From a judgment for plaintiff, the named defendant appeals.
    Reversed and remanded.
    V. W. Taylor, of Alice, and Jas. M. Taylor, of Corpus Christi, for appellant. G. R. Scott and Boone & Pope, all of Corpus Christi, for appellees.

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

   CARL, J.

W. H. McShan, appellee, brought this suit against J. C. Adkins, Charles Walker, and J. R. Scott, the last two composing the firm of Scott & Walker or Scott & Walker Mercantile Company, and the Citizens’ State Bank of Alice, appellant. The controversy is over a note for $850.45, executed by J. C. Adkins about July 8, 1912, payable to Scott-Walker Mercantile Company six months after its date, bearing 10 per cent, interest per annum, and having the usual 10 per cent, attorney’s fee clause. This note was indorsed by Scott & Walker, by C. C.' Walker, to H. F. McGill, and by the latter, without recourse, indorsed to C. H. McShan, and by McShan indorsed in blank.

It is alleged that before the maturity of thiA note C. H. McShan indorsed same in blank and deposited it with appellant bank as collateral security for the payment of a certain note for $2,000, executed by Addie W. McShan and C. H. McShan, payable to the Citizens’ State Bank of Alice, and that, before maturity, appellant bank, for a valuable consideration, assigned the $2,000 note to the plaintiff, together with all property and securities appellant had held of C. H. and Addie McShan to secure said note, and that thereby appellee became the owner and was entitled to the possession of the $850.45 note sued on. But it is alleged:

“That either through error or oversight on the part of the Citizens’ State Bank, and on the part of the plaintiff, the note herein sued on was not delivered to plaintiffs with said above-described note, but was left in the possession of or retained by the defendant Citizens’ State Bank of Alice, Tex., without the knowledge or consent of plaintiff.”

The bank answered and substantially pleaded the facts as to the execution and different transfers of the $850 note, except that it is shown to have been dated about August 8, 1912; and that, by the transfer of said note in blank by C. H. McShan and delivery to the bank, it became the owner thereof in due course of trade, before maturity, and without notice of any infirmity therein, and without notice of any claim of W. H. McShan thereto; and that, after appellant bank acquired said note, C. H. McShan and Ms son, W. H. McShan, entered into a fraudulent and collusive agreement for the purpose of causing the makers and indorsers of the note to refuse payment of the said $850.-45 note, and notified such parties not to pay-same. Judgment is sought as to title to the note and also against the makers and in-dorsers.

In a first supplemental answer, filed June 25, 1914, appellant pleaded:

“That if any such agreement, for the purpose of transferring the note herein sued for by this defendant to plaintiff, was ever made, which this defendant especially denies, to the effect that this defendant would assign and transfer and deliver the note herein sued for to plaintiff when plaintiff should pay or have paid the $2,000 note described in plaintiff’s pleadings, said agreement is no longer binding upon this defendant, rbecause this plaintiff, with full knowledge of the fact that this note herein sued for was not delivered at the time of the transfer of said $2,000 note and the payment of the same, and that said $2,000 note and the security that this defendant held for payment of same were accepted by plaintiff, and plaintiff, with full knowledge of all these facts, made payment of said $2,000 note to this defendant; that no question or objection was raised or made by plaintiff at the time of said transaction when he accepted the transfer of said $2,000 note, and the securities of same, paying this defendant for same; that this note was part of said transaction, or that this plaintiff had become the owner and entitled to the possession of the same; and that it was after the closing of said transaction that plaintiff ever made demand for this note.”

To this appellee replied that when he purchased the $2,000 note, the note sued on was attached thereto as collateral security, and it was understood and agreed between appellee and the bank that he should acquire all the securities to said $2,000 note, including the note sued on, and that it was well known to appellant that appellee purchased said note with such understanding and agreement, and denied that the note in controversy was up for any other purpose than to secure the $2,-000 note. He further pleaded that, if said note was up for any other purpose, he purchased the $2,000 note without the knowledge of any claim on the part of appellant to said note as collateral to secure the payment of any such indebtedness, and that, at the time he purchased said note, it was understood and agreed that he should receive and be entitled to all the security held by appellant to secure said note, including particularly the note sued on; that, when appellee paid-appellant the amount of the purchase price of the $2,000 note, it was intended that the note in controversy and all other securities with said $2,000 should be assigned to appel-lee. It is further alleged that appellee paid the purchase money of said $2,000 through his agent, the Alice State Bank, and, at the time the purchase was made and the $2,000 note delivered to the Alice State Bank, it did not know that the note in controversy was not attached and delivered, and did not discover same until after said delivery, and, immediately upon discovering that it was not attached, demanded it of appellant and met with a refusal to deliver same.

Appellee alleged that the failure of appellant to deliver said $850.45 note was due to an error, oversight, or fraud on the part of appellant, and alleges also that he acted on the agreement made as to securities and was thereby deceived. ,

Appellant also pleaded that it held O. H. McShan’s note for $200, due 90 days after August 28, 1912, and McShan desired a further credit of $1,341.96, and, for the purpose of partially securing this debt, the $850.45 note was left with it, and in addition ’thereto McShan was to execute a trust deed on about $20,000 worth of property which he claimed to own in Jim Wells county; that pursuant to said agreement the appellant extended to him credit to the amount of $1,341.96, as aforesaid, in addition to the $200 note, but that McShan refused to give a trust deed on any of the vast estate he had in Jim Wells county, and conveyed his property to appel-lee, as is alleged, for the purpose of defrauding appellant and other creditors.

Upon the trial, the causes of action against J. R. Scott were dismissed, and the case was submitted on special issues, and in response thereto the jury found:

(1) That C. H. McShan did not put up the $850.45 note with the Citizens’ State Bank as collateral security for the $2,000 note.

(2) That there was an understanding and agreeement between W. H. McShan and H. R. Kimbler, representing the bank, before maturity of the $2,000 note, to the effect that said W. H. McShan would pay off said $2,-000 note and have same transferred to him, at maturity thereof, and that all securities belonging to said $2,000 note would be transferred to said W. H. McShan.

(3) That the note in controversy was attached to the mortgage or deed of trust given by Addie W. and C. H. McShan to secure said $2,000 note at the time such agreement and understanding was had.

(4) That, at the time of the agreement, H. R. Kimbler led W. H. McShan to believe that he was to. get the note in controversy as a part of the security for the $2,000 note.

(5) And that the appellant held two notes of C. H. McShan, one for $200 and the other for $1,341.96, both past due, and C. H. McShan had failed to pay same, and that the bank held the note for $850.45 as security for said two notes, under an agreement with C. H. McShan.

Upon these findings by the jury, the court entered judgment for appellee W. H. McShan for title and possession of the note as against the bank, and judgment against the maker and indorsers of the note in favor of appellee, except that Scott was dismissed, and judgment was that appellant take nothing by its prayer for judgment on the note. From that judgment this appeal is prosecuted by the appellant bank.

It will be noted that from the findings of the jury it is established that the $850.45 note was not put up by C. H. McShan as collateral security for the $2,000 note, but by the second, third, and fourth findings the jury said that the agreement between W. H. McShan and H. R. Kimbler, representing and acting for the bank,, was that appellee was to get all the securities belonging thereto, ■ and that at the time the note in question was .attached to the mortgage to secure the $2,000 note W. H. McShan was purchasing. Both W. H. and O. H. McShan testified that he was to get this note; and T. H. Clark, cashier of the Alice State Bank, the agent of ap-pellee in the transaction, who took up the note, testified that his instructions were to have the $2,000 note and all securities transferred to .appellee,,but that nothing was said about any particular security, and be took wbat appellant gave bim and did not know any better until some time after, when be was requested to collect it. H. B. Kimbler, vice president of appellant bank, said:

“I refused to accept the note as collateral for a loan, and be then substituted a piece of property in Alice, and made a note for $2,000, giving a deed of trust as security. When this occurred, McShan'said, ‘Everything I have in this world is up for my debts; put this in your note case’ — which I did.”

In fact, without going further into detail, the evidence was sufficient to sustain the findings of the jury that the note was left with the bank with the deed of trust security. It was ample to show an assignment of whatever interest the bank may have had in the note. When there is as much testimony touching the agreement between the bank and W. H. McShan as there is in this record, this court will not disturb a finding of the jury to the effect that, when McShan agreed to take up the $2,000 note, he was to get all the collateral attached, and that the note in controversy was attached to the mortgage securing the note. Beer v. Landman, 88 Tex. 450, 81 S. W. 805.

The facts pleaded by appellee in the court below, and proof sustaining same, show that appellant is estopped.to deny the assignment of the note in controversy along with the $2,000 note. When the jury found these facts, the appellee was entitled to a judgment as against the bank for ■ the note; and it •matters not whether the note was originally placed there as collateral for the large note, if appellant, through its agent, led W. H. McShan to believe that he was getting the note in controversy as collateral when he took up the other. This is what the jury found the bank did; and, having so represented that the $850.45 note was a part of the collateral to the large note, equity will estop appellant from now asserting that said note was not a part of the collateral.

The first, second, eleventh, twelfth, thirteenth and fourteenth assignments are overruled. Texas Banking Co. v. Hutchins, 53 Tex. 61, 37 Am. Rep. 750; White v. Downs, 40 Tex. 226; M., K. & T. Ry. v. Yale, 27 Tex. Civ. App. 10, 65 S. W. 57; Weinstein v. Bank, 69 Tex. 38, 6 S. W. 171, 5 Am. St. Rep. 23; Burleson v. Burleson, 28 Tex. 383; Leon County v. Vann, 86 Tex. 707, 27 S. W. 258; Risien v. Brown, 73. Tex. 135, 10 S. W. 661; Echols v. McKie, 60 Tex. 41; Whiteselle v. Texas Loom Agency (Civ. App.) 27 S. W. 309; Lucas v. Johnson (Civ. App.) 64 S. W. 823; Edwards v. Dickson, 66 Tex. 613, 2 S. W. 718; Schwarz v. National Bank, 67 Tex. 217, 2 S. W. 865; Walker v. Erwin, 47 Tex. Civ. App. 637, 106 S. W. 164. The jury said he was to get it, and that is the end of the matter, when the evidence is sufficient to ■sustain the finding, as it is in this case.

The third, fourth, fifth, sixth, ninth, ■and tenth assignments raise the issue of fraud and the refusal of the court to submit special issues to the jury touching the disposition of C. H. McShan’s other property and his alleged collusion with W. H.. Mc-Shan to prevent the payment of the note in controversy by the maker and indorsers thereof.

It will be noted that the transfer of the $2,000 note and collateral from the bank to W. H. McShan was dated December 30, 1912, and filed for record January 4, 1913, while the sale of their property by C. H. and Addie W. McShan to W. H. McShan was dated February 13, 1913, and filed for record the same day. So, while we have held that appellant would be estopped to deny that it sold the note in controversy as collateral security for the $2,000'note, it is not held that the legal title to the note passed to W. H. McShan by the purchase of the $2,000 note. He thereby acquired the $850.45 solely as collateral security; and while the bank could not assert, as against W. H. McShan, that it had a right to hold the note as security for the other two notes of C. H. McShan held by it, still the legal ownership or title to this note is not thereby affected. The sale of the note and the other property was not consummated until February, 1913, whereby the title to the note in controversy and the other property of O. H. McShan and wife purported to be conveyed to their son, W. H. McShan. And while the bank will not be heard to deny that it assigned the note, for collateral purposes, free from any claim it had by reason of holding the same, as found by the jury, to secure the $1,341.96 and $200 notes, when we come to the passing of-the legal title to said note, along with other property, another and quite a different turn is given the ease.

As to the other two notes still held by the bank, it was a creditor of C. H. McShan, and would certainly be in a position to attack any fraudulent conveyance or sale of his property made for the purpose of hindering, delaying, or ‘defeating his creditors, and this could be done by attacking it either in whole or In part. If W. H. McShan received more than enough property to satisfy his claim, aside from the $850.45 note, we see no reason why the sale outright of said note may not be attacked, as was done in this case. For it has been held that a creditor may in the same suit recover judgment on his demand and have a fraudulent conveyance set aside. Ward v. McKenzie, 33 Tex. 316, 7 Am. Rep. 261; Cassaday v. Anderson, 53 Tex. 535; Shirley v. Railway, 78 Tex. 148, 10 S. W. 543; Washington County v. Schulz, 63 Tex. 33; Hart v. Rust, 46 Tex. 573; Farrar v. Bates, 55 Tex. 199.

There is evidence in the record tending to show that C. H. McShan and wife conveyed to appellee, their son, about $8,000 worth of property and expressed a cash consideration of $2,500, which was not paid, and appellee assumed the payment of about $5,-500 in debts; that all of the property was worth about $2,000 more than was paid for it, and W. H. MeShan took the property to keep it from being sold under the hammer and being sacrificed. There is also evidence that O. H. MeShan told Ed Stevens and A. S. Price, just prior to making the conveyance of the property, that he was going to convey all of his property to Will (W. H. MeShan), file the Alice Ice & Light Company in bankruptcy, in which he owned 98 per cent, of the stock, furnish Will the money with which to buy it in, and they (his creditors) would not get a cent. The testimony further showed that a petition in bankruptcy was filed for the Alice Ice & Light Company, its property sold, and Will bought it in.

Under these circumstances, we think there was certainly sufficient evidencé on the question of a fraudulent sale to have that issue submitted to the jury; and, if the sale was fraudulent, it was as though no sale had been made. It is immaterial' that a large part of the property put up to secure the debts may have been the separate property of Mrs. Addie W. MeShan. It is enough that she had voluntarily incumbered it to pay these debts; and when she and her husband conveyed it to their son, if it more than paid him, we see no reason why the Citizens’ State Bank of Alice, or any other creditor, could not plead and prove those facts and, to the extent of the note in controversy, defeat the sale. The assignments mentioned are sustained, except the fourth, which we do not sustain on account of the form of the special issue requested.

The errors complained of in the seventh and eighth assignments, if error, were harmless, in view of the jury’s finding.

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


author: TALBOT,' J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MOORE.
    (No. 7192.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 2, 1915.)
    1. Death (§ 13) — Action fob Death of Child — Right to Recover.
    A parent cannot recover for the death of a child -unless defendant was guilty of a breach of duty.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 48; Dec. Dig. § 13.]
    2. Negligence (§ 39) — Care of Premises— Invitation to Children.
    An owner of premises ,who invites or allures a child into a place of danger and negligently injures it while there may be liable therefor, in the absence of contributory negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.]
    3. Negligence (§ 32) — Care of Premises— Invitation to Enter.
    Where a person enters on the private property of another by invitation of the latter, a lawful relation is established, and the law imposes on the latter a duty to exercise reasonable care for the safety of the former.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.]
    4. Negligence (§ 39) — Care of Premises— Invitation to Children.
    A railroad company which maintains a reservoir occupying a block and located' on ground higher than the surrounding ground and filled with water pumped into it through a pipe, and which permits grass to grow on a strip between the fence surrounding the reservoir and the reservoir, which grass is greener than the grass outside the fence, does not maintain an unusually attractive place for children, and is not liable for the death of a child drowned in the reservoir after passing through a defect in the fence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.]
    5. Negligence (§ 39) — Care of Premises— Invitation to Children.
    Where a child passed through a defective fence surrounding a reservoir maintained by a railroad company, to get grass between the fence and the reservoir, and fell into the reservoir, there could be no recovery for the death of the child by drowning, on the theory that the reservoir was unusually attractive to children, and that the company failed to exercise reasonable care for the safety of children.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.]
    6. Appeal and Error (§ 1175) — Disposition of Case on Appeal.
    Where a ease was fully developed on the trial, the court, on appeal from an erroneous judgment, will render a proper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    Appeal from District Court, Grayson County; W. M. Peek, Judge.
    Action by F. S. Moore against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    C. C. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.

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

   TALBOT,' J.

This is an action by appel-lee, F. S. Moore, to recover of appellant, Missouri, Kansas & Texas Railway Company of Texas, damages on account of the death of his son, Richard Moore, who was 6% years of age, which is alleged to have occurred at Denison, Tex., July 29, 1912, by reason of the said Richard falling into a reservoir belonging to appellant and drowning. Plaintiff alleged and proved, in substance, that on the date mentioned and for a number of years prior thereto, the appellant owned and maintained, just outside the corporate limits of the city of Denison, Tex., a reservoir constructed for the purpose of impounding water to be used in connection with the railway business in which it was engaged. The reservoir occupied all of block 1600 between Main and Woodard streets, near the west portion of said city, and there were a good many residences near it. It was built of cement or concrete, which sloped inwardly from the margin around the outer surface thereof toward the center at an angle of SO or 40 degrees. There was a 10-inch pipe extending from the bank into the reservoir, through which water was pumped into the reservoir when needed. On the day appellee’s son was drowned the water in the reservoir was about 12 or 15 feet deep in the center and gradually lessened in depth, according to the angle of the walls of the reservoir, to its surface around the margin of the reservoir. The reservoir was inclosed with a fence made of cedar posts, pine planks, and barbed wire, and was of the following dimensions: On the north side 307 feet, on the south side 304 feet, on the east side 231 feet, and on the west side 192 feet. The cedar posts were 8 feet apart, and there were 7 planks in each panel of the fence, placed horizontally 4 or 5 inches apart. There were two strands of barbed wire in the fence, the first strand was 5 inches above the top plank and the second strand 10 inches above, making the fence, from the top of the wire to the ground 6 feet and 5 inches. The reservoir was upon ground higher than that around it, and its embankment was higher than the surface of the ground and of irregular height. On the northeast corner it was 3 or 4 feet above the ground, and on the west side it was 35 or 40 feet high. The distance from the inside of the fence to where the slope of the reservoir began was 2 or 3 feet, and on this space of ground there was growing, at the time of the accident resulting in Biehard Moore’s death, grass which was greener than the grass on the outside of the fence. About two months prior to the accident the fence around the reservoir was repaired by appellant’s servants, and placed in apparently good condition, but for several days, and probably for a period of two or three weeks immediately preceding the death of Biehard Moore, there were two or three planks off the fence in one or two different places making openings through which children or even grown persons could pass into the inelosure and to the reservoir. These planks were rotten at the end, and, according to the testimony of one witness on his direct examination, “they had the appearance of having dropped off or of having been blown off by the wind, or something.” On cross-examination of this witness, he said that he did not notice close enough to tell whether they fell off or whether somebody had pulled them off. The appellant, by three signs posted near the reservoir, one at the southeast corner, one at the. southwest corner, and one at the northwest corner thereof, warned persons not to enter the inelosure and trespass upon its property. The reservoir was attractive to people generally, and especially to children. A great many persons when water was being pumped into the reservoir, and especially on Sunday afternoons, would go near the reservoir to view it, but none of them, so far as the proof shows, ever on such occasions went on the inside of the fence inclosing it. A good many children, however, prior to the death of Biehard Moore, and on several different occasions, were seen on the inside of the fence, playing near the edge of .the water, and one or more times on the pipe through which water was pumped into the reservoir. There is also evidence to justify the finding that appellant knew they had been seen on the inside of the fence, but not at the time of the accident. Biehard Moore, the deceased, was in the habit of visiting and playing with the children of Mr. and Mrs. G. T. Howard, who resided about 215 feet from the reservoir. On the day of the accident he went, to their home and, after playing ball with the Howard children awhile, he and James Howard, a boy about 12 years old, went to the reservoir to get grass for guinea pigs, the grass on the reservoir inelosure being greener than that on the outside of the fence. The boys entered the inelosure through a hole in the fence made by two of the planks being off on the north side of the reservoir. James Howard, the little boy who was with Biehard Moore when he lost his life, testified:

“I am 13 years old. I knew Biehard Moore in his lifetime. I know James Moore; he is here now. When we lived on Woodard street they lived east of us about two or three blocks. I and the Moore boys were friendly and played together. We lived right near this reservoir. I have seen other children inside the reservoir and about there. They would be running around the place and walking around it. In the winter time I seen them in there skating. I do not know how they got in there; I would be tying the cow out and notice them in there. I never seen them up there but one day, when they were on the ice. Just once and awhile I seen them up there when there wasn’t any ice. I remember about the little Moore boy getting drowned up there, I was with him at the time. That was about 5 o’clock in the afternoon. We went from my house to go there. We went there for some grass for guinea pigs; they were my guinea pigs. The Moore boys had been up to my house the most of the day, had been there with me and my brother during the day. The grass on the inside of the fence was greener than that on the outside. On this occasion we went on the inside of the reservoir. We went through a hole where the planks were off. There were two planks off on the north side of the reservoir. We went up there and went inside and was getting grass, and I think as we were getting up to leave Biehard slipped on the cement around the reservoir, and we went in. When he slipped I was between him and the water. I was standing right bj the edge of it, just a little bit from it below him. When he slipped he hit my foot, and I was not expecting it and I went in the water, and Biehard, too. Biehard was further out from the bank than I was. I went under; they said I went down the second time. I do not remember myself. I had my clothes and shoes on. I saw Biehard after he came up, I never seen him afterwards. When he slipped in he went under and came up away out. He was smaller than I was. I do not think that Biehard could swim. I know how to swim a little bit. As to how I got out, Mamma pulled me out with a rope.”

This witness further testified:

“There wasn’t anything that attracted, my attention to the reservoir that I know of. We just went in there to get some grass”

■—and that the people going to look at the reservoir generally stayed on the outside of the inclosure, and that he never saw any grown people on the inside of the fence. There seems to be no contention that appel-lee or his wife were guilty of negligence. Upon the conclusion of the evidence appellant requested the giving of a special charge directing the jury to return a verdict in its favor. This charge was refused and the case submitted to a jury on special issues. The jury’s findings of fact were favorable to appellee, and upon them judgment was rendered for him in the sum of $3,000. Erom this judgment the appellant appealed.

The first assignment of error complains of the court’s action in overruling its general demurrer to the appellee’s petition, and the second assignment is to the effect that the trial court erred in refusing to instruct the jury to return a verdict in favor of appellant, as requested by appellant, because the evidence is insufficient to entitle the appel-lee to recover. The proposition under the latter assignment is as follows:

“In a suit by a parent for damages on account of the death of his child alleged to be due to the negligence of the railway, and the evidence fails to show a duty owing to the child by the railway, and that a breach of same caused the child’s death, a verdict should be instructed for the railway.”

There is doubtless force in the contention of appellant that, under the decisions of this state, appellee’s petition fails to state a cause of action, but we are not so sure of that fact and prefer to dispose of the appeal on the conclusion reached upon a consideration of the second assignment of error and the proposition asserted thereunder, about the correctness of which we have practically no doubt.

The doctrine is fundamental that, in action to recover damages for injuries to or the death of children, as in eases where damages are sought to be recovered for the death or injuries to adults, there can be no recovery unless the defendant has been guilty of a breach of duty; but, as suggested in the case otf City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155, 58 Am. Rep. 65, this fundamental fact is sometimes lost sight of, and “in dealing with cases which involve injuries to children, courts and juries have sometimes strangely confounded legal obligation with sentiments that are independent of law.” Among the authorities, however, there is quite a conflict as to what the duty of a railway company is to children who come upon its premises as trespassers or mere licensees. But Mr. Elliott in his work on Railroads, says that he believes—

“the true rule to be that, although the age of the child may be important in determining the question of contributory negligence or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees not invited or enticed by it, than it is to keep them safe for adults.”

Clearly the correct conclusion to be drawn from the adjudicated cases and elementary works on the subject is that the owner who has neither expressly nor impliedly invited the public to come upon his premises is under no legal obligation to keep them free from pitfalls or in a condition of safety for these persons, whether adults or infants, who in the pursuit of his own pleasure or convenience go upon or pass over such premises, even though it be with the acquiescence of the owner.

“The licensee takes his license subject to its concomitant perils, and the licensor, as a general rule, owes him no duty except to refrain from willfully or wantonly injuring him, or to exercise ordinary and reasonable care after discovering him to be in peril.” Elliott on Railroads (2d Ed.) § 1250.

There is a difference, however, between a license and an invitation, and the general rule seems to be that if the owner of premises invites or allures a child into a place of danger, and negligently injures such child while there, it may be held liable, in the absence .of contributory negligence for such injury. Instances of this character are found most frequently in cases where children were allured upon the premises of railway companies by attractive machinery, such as turntables. Indeed, it seems that the rule as to liability for injuries to children from attractive machinery had its development largely from injuries on railroad turntables as an attractive thing to play with, the danger of which they could not appreciate, and in many cases, the first of which was Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, where it is held that leaving a turntable unlocked and unguarded in an exposed place where children are likely to be attracted by it may be considered as a constructive invitation to them and negligence rendering the railway company liable for such injuries as they may receive thereby. 29 Cyc. page 463. The tendency of the decisions of our Supreme Court and of the courts of last resort in many other jurisdictions is to limit the rule to cases involving injuries received by children while playing on turntables so exposed and accessible, while some of the ablest courts of the country refuse to recognize and apply the rule, even in that class of cases. The view taken by some of the latter decisions seems to be that children who are attracted to railroad premises and injured by unlocked and unguarded turntables are trespassers and cannot ■ recover, for the reason that railway companies are under no obligation to mere trespassers, even though they are infants, to keep their premises in a safe condition.

It is held, however, by our Supreme Court, that if a person enters upon the private property of another by invitation of tlie owner, a lawful relation is thereby established, and the law imposes upon the owner in such case a duty of care for his safety the degree of which is ordinarily reasonable care. It is also held that such invitation may be express or implied, but the court does not subscribe to the broad proposition that if the owner places or permits anything upon his property which is attractive to others and one is thereby induced to go thereon, an invitation to do so may be -inferred as a fact by the court or jury. Railway Co. v. Morgan, 92 Tex. 98, 46 S. W. 28. In denying the soundness of such a contention in the case just cited, the court said:

“Now, since it is manifest that to some classes of persons, such as infants, the things ordinarily in existence and use throughout the country, such as rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, etc., are both attractive and dangerous, it is clear that the adoption of such a broad contention would be contrary to reason, lead to vexatious and oppressive litigation, and impose upon owners such a burden of vigilance and care as to materially impair the value of property and seriously cripple the business interests of the country. Therefore it has been generally held that the invitation cannot be inferred in such cases. These cases rest upon the sound principle that where the owner makes such use of his property as others ordinarily do throughout the country there is not, in legal contemplation, any evidence from which a court or jury may find that he had invited the party injured thereon, though it be conceded that his property or something thereon was calculated to and did attract him.”

It is held that to warrant such an inference of fact, the object or thing which induced the person to go upon the premises must, on account of its nature and surroundings, be especially and unusually calculated to attract, and does attract, him to do so. That ponds or reservoirs, however, are not to be classed with turntables, and that the doctrine of the “turntable cases” should not be extended, is clearly manifested by the remarks of our Supreme Court in Railway Co. v. Morgan, supra, and other cases decided by that court, and that this view is supported by the weight of authority can hardly be denied. In Railway Co. v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825, the negligence was alleged to consist in keeping a yard in which children were accustomed to play, and in piling a number of railroad bridge ties in such manner that they fell upon the plaintiff, a minor, while playing upon them and injured her. The facts were, in substance, that the railway company—

“owned a lumber yard, which was used for the purpose of storing bridge material and other like lumber. It was fenced, except upon one side along the company’s railroad tracks. The plaintiff at the time of the accident was about eight years old, and lived with her mother just across an alley from the yard. Not being fenced along the track, the yard was easily accessible. It was shown that the plaintiff and other children were accustomed to resort there for the purpose of playing, but it was also shown that they were uniformly ordered out by the servants of the company. The parents of some of them were also warned to keep them away. It appeared, however, that, notwithstanding the persistent efforts of the servants of the company, the children would return. Just before the accident happened the plaintiff was sent home by the watchman, and went out, but as soon as he was called away by other duties, she returned. In attempting to climb upon the pile of bridge ties one of them fell down and crushed her toes. There was evidence tending to show that the ties were insecurely stacked. The mother of the plaintiff testified, in effect, that she knew of the plaintiff’s having visited the yard on former occasions, and had punished her several times for it.”

In passing upon this case, the Supreme Court, after stating that there are a class of cases which hold that the owner of land may not place upon it dangerous machinery, which is alluring to children, without securing it so as to protect them against injury while tampering with it, and after referring to the eases of Evansich v. Railway Co., 57 Tex. 123, and Railway Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, said:

“This line of decision has not been uniformly followed, and has met with much adverse criticism, and it seems to us that, with respect to the care which the owner of land is required to exercise, in order to secure from injury children who may trespass upon it, they go to the limit of the law. They proceed upon the ground that turntables are attractive to children. In both of the cases cited stress was laid upon this fact, and also upon the fact that the use of the turntables by children was known to the servants of the defendants. The ruling in these cases must be justified, we think, upon one of two grounds: Either that the turntables possess such peculiar attractiveness as playthings for children that to leave them exposed should be deemed equivalent to an invitation to use them, or that, when unsecured, they are so obviously dangerous to children that, when it is discovered that they are using them, it is negligent on the part of the owner not to take some steps to guard them against the danger. But when it is said that it is enough that the object or place is attractive or alluring to children, and when it is said, as has been intimated, that the fact that they resort to a particular locality is evidence of its attractiveness, the question suggests itself, What object or place is not attractive to very young persons who are left free to pursue their innate propensity to wander in quest of amusement? What object at all unusual is exempt from infantile curiosity? What place, conveniently accessible for their congregation, is free from the restless feet of adventurous truants? Here the language of an eminent judge in disposing of a similar case is appropriate : ‘There are streams and pools of water where, children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to inclose it or fill up their ponds and level the surface so that trespassers may not be injured would be an oppressive rule. The law does not require us to enforce any such principle, even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim, and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is a part of a boy’s nature to trespass, especially where there is tempting fruit; yet I never heard that it was the duty of the owner of a fruit tree to cut it down because a boy trespasser may possibly fall from its branches. Yet the principle contended for by the plaintiff would bring us to this absurdity if carried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents.’ ”

The court concluded that there was no ground for claiming an implied or constructive invitation to children to come upon the railway company’s yard, and that, applying the principles of law announced to the facts of the case the plaintiff was not entitled to recover.

In the subsequent case of Dobbins v. Railway Co., 91 Tex. 62, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, the piaintiff’s child, less than three years old, was drowned in a pool of- water several feet deep, situated on the defendant’s right of way near its station, Letot. There were several houses near the pool, one of which was the defendant’s section house about 200 feet therefrom, in which the plaintiff, Dobbins, lived with his family. The plaintiff had been, up to within two weeks' of the accident, the section foreman of the defendant and as such foreman cleaned out the pool of water under orders of his superior, the roadmaster, whenever it became necessary. There was evidence from which the jury could have found that the pool was attractive and dangerous to little children of the age of the plaintiff’s child; that such children, including the deceased, had, before the accident, often played around same, throwing pebbles into it, catching crawfish, etc.; that no precautions were taken by the company to prevent such children from getting into the pool; that the defendant company was, some time before the accident, informed of such facts, and requested by plaintiff to remove the pool, which was not done. Plaintiff’s child escaped alone from the section house, under circumstances warranting a finding that neither he nor his wife was guilty of negligence, and a short time thereafter was found drowned in the pool. In disposing of this case, on writ of error, the Supreme Court said:

“The common law imposes no duty upon the owner to use care to keep his property in such condition that persons going thereon without his invitation may not be injured. In considering the question as to whether a duty exists there is no distinction between a case where an infant is injured and one where the injury is to an adult, though where the duty is imposed the law may exact more vigilance in its discharge as to the former. If there be no duty the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby. Since the common law imposes no duty on the railroad to use care to keep its right of way in such condition that persons going thereon without its invitation may not be injured, and since there is no evidence in the record from which the jury could have found such an invitation to the child, it was no more liable in law for its death than would have been a neighbor had it wandered into his unin-closed lands and been drowned in his tank or creek or been killed by falling down his precipice. * * * The difficulty about these cases is that they either impose upon owners of property a duty_ not before imposed by law, or they leave to a jury to find legal negligence in cases where there is no legal duty to exercise care. In these cases the courts, yielding to the hardships of individual instances where owners have been guilty of moral, though not legal, wrongs in permitting attractive and dangerous turntables and water holes to remain unguarded on their premises in populous cities to the destruction of little children, have passed beyond the safe and ancient landmarks of the common law and assumed legislative functions in imposing a duty where none existed. As a police measure the lawmaking power may, and doubtless should, without unduly interfering with or burdening private ownership of land, compel the inclosure of pools, etc., situated on private property in such close proximity to thickly settled places as to be unusually attractive and dangerous, and impose criminal and civil liability, or both, for failure to comply with the requirements of such law. When such a duty is imposed the courts may properly enforce it or allow damages for its breach; but not before.”

We have thus liberally quoted from the cases mentioned because we believe the case at bar is not distinguishable from them in principle and is therefore ruled by them.

It is true the jury found that the appellant’s reservoir was unusually attractive to children and reasonably calculated to cause children of the age and discretion of the deceased to enter thereon through the openings in the fence surrounding same at the time of the accident, that the appellant was guilty of negligence in maintaining its reservoir and the said fence in the condition they were in at and prior to the death of Richard Moore, and that the appellant by fencing its reservoir and by permitting said fence to be in the condition it was in at the time of and just prior to the accident indirectly extended an invitation to children of the age of Richard Moore to enter said inclosure, but we are of opinion that these findings were not authorized by the evidence, or do not furnish a sufficient basis, under the decisions of our Supreme Court, for the judgment rendered. There is evidence that the reservoir was attractive to children, and that on several occasions children were seen on the inside of the fence inclosing it, and evidently it was upon this testimony that the jury concluded that it was unusually attractive to them, but we fail to see that the reservoir, as constructed and maintained, possessed any materially greater attraction for children than any other large pond ox-reservoir of water would have for them. That all lakes, ponds, creeks, or reservoirs of water have an attraction for boys cannot well, nor need it for the purposes of this case, be denied. But, unless the reservoir in question was especially and unusually attractive to children, no' invitation to go near it or to use it could be implied, and hence appellant could not, under the decisions of this state' and of many others, be charged with a violation of duty in failing to securely fence or guai-d it against their intrusion. The suggestion that the reservoir was peculiarly and unusually attractive because located on ground higher than that around it, and because of its size and the pipe through which water was occasionally pumped into it, is, we think, of little force. Such features, which in a measure distinguish appellant’s reservoir from the ordinary and usual lake or pond of water to be found, are, we think, insufficient to establish the existence of that attractiveness contemplated by our decisions. The only basis for the claim that the reservoir was unusually attractive is the fact that it was supplied with water pumped through a 10-inch pipe, extending several feet out into it. There was clearly nothing peculiarly attractive about the pipe itself, and it was only when water was being pumped into the reservoir that the attractiveness claimed existed. This was infrequent, and the water flowing from the pipe when being pumped could easily be seen from the outside of the inclosure. Besides, there is no pretense that water was being pumped into the reservoir at the time the deceased went upon appellant’s premises and was drowned. But, judging from the expressions found in the cases to which we have referred, it may be doubted whether the Supreme Court of this state would class á reservoir possessing even the attractiveness claimed for the one in question with turntables and apply the doctrine of the turntable cases. In Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571, 92 N. W. 38, the Supreme Court of the state of Michigan, following the case of Ryan v. Towar, 128 Mich. 463, 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481, in which there was an exhaustive review of the authorities upon the subject, held that:

“Though a city water reservoir was so constructed that its top was 25 feet above the street with a sloping surrounding surface, with a slope on the inside of about 45 degrees, and there was a hole under the fence so that children could and did enter, there could be no recovery for the death of a child drowned therein.”

It does not appear that water was pumped into this reservoir through a pipe extending out into it, but it was claimed that, by reason of its construction, location, and appearance:

“It had a great tendency to attract and did excite the curiosity of and was an attractive place for children to play, many of whom frequented the same as a matter of childish curiosity.”

In that case the child for its pleasure and amusement was, unlike the little boy in the instant ease, making use of the reservoir itself. She left home in the morning and went away to play. One of her playmates told her that there were flowers “up here,” and with a companion 10 years of age, she left the traveled portion of the street, went through under the fence, removed her shoes and stockings, and in attempting to wade in the water of the reservoir was drowned. Under these circumstances the court held a recovery could not be had. So in the case before us, applying the principles announced in the eases cited, we are of opinion that the appellee was not entitled to recover. The evidence shows, we think, that the deceased went upon appellant’s premises without its invitation and lost his life while there through the violation of no duty imposed upon it by law. Having gone upon appellant’s premises without its invitation, the law imposed no duty upon it to use ordinary care to keep its fence surrounding the reservoir in good repair; and, appellant not being aware of the deceased’s presence and danger, no duty of care for his protection while there was imposed. There being no duty resting upon appellant to guard its reservoir or to exercise care for Richard Moore’s safety—

“appellant was not guilty of such negligence as created liability for his death, for actionable negligence can, in law, only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby.”

It appearing that no duty arose upon the part of appellant, a violation of which caused the death of the deceased, appellee was not entitled to recover.

But, if we are mistaken in our conclusion that the evidence shows that appellant’s reservoir was not unusually attractive to children, or not to be classed with turntables, and that therefore appellant was under no legal obligation to guard it against the intrusion of persons who might go near it or use it for their own convenience, pleasure, or purposes, or to maintain it in a suitable condition for them, still appellee was not entitled to recover. For whatever may have been the attractions of the reservoir, the deceased was not at the place of the accident because of such attraction. He was not there to see the water flow from the pipe extending out into the reservoir, for water was not then being pumped, nor was he there to play on the pipe or to fish, bathe, or skate. The undisputed evidence shows that he was there with his playmate and companion, James Howard, to get some grass for guinea pigs, the grass in the inclosure being greener and supposedly better than the grass on the outside. This, and not any allurement of the reservoir, induced him to go upon appellant’s premises and into the danger that resulted in his death. It was 'essential to appellee’s right of recovery, not only that appellant’s reservoir was unusually attractive to children, but that the deceased was allured to the place pf the accident thereby. The seeming contention of appellee that if the grass growing near the reservoir attracted the deceased and induced him to enter the inclosure, appellant would be liable in damages for his death, is, we think, without merit. To sustain such a contention would be, in effect, to hold that, if the owner constructs a pond or reservoir upon his premises for his own use, and permits grass to grow dangerously near such pond or reservoir, without exercising care to so fence the same as to prevent the intrusion of children, and a child seeking grass near the reservoir falls in and drowns, he can be held liable for such death. To such a doctrine we are unwilling to subscribe. It certainly cannot be sustained on the theory that “green grass” is unusually attractive to children. Such a rule would render it necessary for a man to exercise care to so fence his meadow, in order to escape the charge of negligence and liability for the death or injury of a venturous boy resulting from the gore of a cow or kick of a horse grazing thereon, and certainly the law does not devolve any such duty upon the owner of land. The untimely death of the little boy is deeply to be regretted, but we have reached the conclusion that, in no aspect of the case, was appellee entitled to recover, and appellant’s requested charge, instructing the jury to return a verdict in its favor, should have been given. This disposes of the appeal, and the other assignments need not be considered.

The case seems to have been fully developed, and that it would be useless to remand it for another trial. It, therefore, becomes our duty, under the statute, to render in this court such judgment as should have been rendered in the court below. It is therefore ordered that the judgment of the district court be reversed, and that judgment be here rendered for the appellant.

Reversed and rendered.