text:
    TEMPLE LUMBER CO. et al. v. BROOCKS.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 26, 1914.
    Rehearing Denied March 19, 1914.)
    1. Vendor and Purchaser (§ 231) — Bona Fide Purchasers — Nature and Grounds of Protection.
    The owner of a land certificate conveyed the land located thereunder and transferred the certificate, and thereafter devised his estate, both real and personal, without describing any particular, land to N., who died intestate. Plaintiff purchased the interest of one of N.’s heirs. The records of the county had been destroyed by fire and disclosed nothing regarding the title, and plaintiff did not know of the transfers of the certificate, but believed that his grantor owned the land, .though no one had been in possession. Held, that he was not entitled to protection as an innocent purchaser without notice, as such protection under the registration laws is extended only to a purchaser of a real or apparent title and not to a purchaser from one out of possession having no title and not shown by any record to have an apparent title.
    [Ed. Note.' — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. § 231.]
    2. Vendor and Purchaser (§ 231) — Bona Fide Purchasers — Constructive Notice..
    Where a purchaser of land from the heir of the original certificate holder’s devisee was a lawyer and knew that no patent had been issued, that' the only evidence of title in such certificate holder was the certificate, which was or should be on file in the general land office, and that the records of the county had been destroyed by fire, he was put upon inquiry and charged with notice of the transfer of the certificate, which certificate with the transfer indorsed thereon was on file in the land office.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. § 231.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Action by John H. Broocks against the Temple Lumber Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    Goodrich & Lewis, of Hemphill, Tom C. Davis, of Center, and George C. Greer and Minor & Minor, all of Beaumont, for appellants. D. M. Short & Sons, of Center, and J. F. Lanier, of Beaumont (Oliver J. Todd, of Beaumont, on motion for rehearing), for appellee.

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

   PLEASANTS, C. J.

This is an action of trespass to' try title brought by John H. Broocks against the Temple Lumber Company. The land involved is a tract of 284 acres, a part of the Hugh Milligan 560-acre survey in Sabine county. The defendant vouched in on their warranty of title W. F. Goodrich, J. H. Synnott, and Ola Wrinkle, who had conveyed the land to defendant by deed of general warranty. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the land and in favor of the defendant against Goodrich, Synnott, and Wrinkle on their warranty of title.

The record discloses the following facts:

The tract of 560 acres, of which the land in controversy is a part, was located on August 30, 1840, by virtue of a land certificate for 640 acres issued to Hugh Milligan. On December 10, 1840, Hugh Milligan conveyed the 560 acres to Charles Peck by deed of said date duly executed and acknowledged. Peck by deed not dated but acknowledged on September 10,1841, conveyed said land to Walter Plinckley, and on November 27, 1847, Hugh Milligan, by a deed which recites the former conveyance from himself to Peck and the conveyance by Peck to Hinckley, conveyed the 560 acres to Walter Hinckley in order, as stated in said conveyance, “the more fully and effectually to vest the title and interest of, in and to said 560 acres of land in the said Walter Hinckley.” This deed was duly acknowledged on the day of its date. It is not shown that their deeds were recorded in the deed records of Sabine county prior to 1905, when a certified copy of each procured from the General Hand Office was recorded in said county. The land was located under a conditional certificate issued to Hugh Mil-ligan in 1838. The unconditional certificate was issued on September 6, 1841, by the board of land commissioners of Sabine county, and was registered and approved .on March 16, 1859, by the commissioner of claims. On the face of this unconditional certificate there is an unsigned written transfer of the certificate and all rights and benefits thereunder from Hugh Milligan to Charles Peck. This transfer is dated September 7, 1841. The following indorsement also appears on said certificate: “Pile 9, Sabine Co. 2nd Class, Unconditional Certificate Hugh Milligan, Walter Hinckley, assignee, August 17, 1858. Registered and approved March 16, 1859. Edward Clark, Commr. of Claims.” The following indorsement appears upon the original field notes on file in the General Land Office: “Pile 9, Sabine Co., 2nd Class Field Notes 560 acres Hugh Mil-ligan, cannot identify this with any survey on map, appears to be entirely incorrect, Nov. 1, 1847,- — Creusbaur; does not close. Otherwise correct on maps of Sabine County; November 8, 1881; E. Schultz, Relocated Hugh Mil-ligan. Canceled by cor. P. N.; error in Southing 43 varas; error in Eastings 89 va-ras, March 4, 1875. C. W. P.” A corrected survey was made on December 11, 1903, and corrected field notes returned to and filed in the General Land Office December 16, 1903. The land was patented on January 5', 1904, to “the heirs of Walter Hinckley, assignee of Hugh Milligan, their heirs or assigns.” Through mesne conveyances appellant has acquired the title of Walter Hinckley.

Hugh Milligan died in 1848. By his will, which was duly probated in Sabine county on July 31, 1848, he devised his estate, both real and personal, to Gideon A. Norford. This will does not describe or mention this land or any land belonging to said estate, and no inventory is shown to have been filed of the property of said estate. Gideon A. Norford died prior to 1882 intestate, leaving two heirs at law, a son, J. W- Norford, and a daughter, Mrs. Nannie Edwards. On June 29, 1891, Mrs. Edwards, for a valuable consideration paid to her by the plaintiff, John I-I. Broocks, conveyed to him an undivided one-half of the Hugh Milligan 560-acre survey. In a partition between plaintiff Broocks and the purchasers from J. W. Norforcl, the 284 acres in controversy were set aside to plaintiff.

All of the records of Sabine county except the surveyor’s records were destroyed by fire in 1875. It is not shown what the surveyor’s records disclose as to the location of the Hugh Milligan survey, and the only record in regard to said survey of which plaintiff had any knowledge at the time he purchased the land was a county map upon which said survey was shown as the Hugh Milligan survey.

There was no possession of the land by any one prior to plaintiff’s purchase, and no assertion of ownership by the heirs of Gideon A. Norford is shown prior to their sale of same. Plaintiff testified that he was told by Mr. Arnold, who was county clerk of Sabine county, that Mrs. Edwards owned the land, and Mr. Arnold, as agent for Mrs. Edwards, sold him the land. He did not know Mrs. Edwards and did not see her prior to his purchase. He knew that a patent to the land had not been issued, and if he had thought about it he would have known that the certificate under which it was located was on file in the General Land Office. He made no investigation or inquiries of the General Land Office as to the certificate or the title and ownership of the land. At that time the certificate with the indorsements thereon before set out and the transfers before mentioned were on file in the General Land Office. The only examination made by him was of the records of Sabine county, which, as before stated, showed absolutely nothing in regard to the title. He had no actual notice of the transfers from Milligan and believed when he purchased that Mrs. Edwards owned the land. Plaintiff was a lawyer at the time he purchased the land. He knew at the time he purchased that the records of Sabine county had been destroyed by fire in 1875.

The facts above stated show that the defendant has a regular chain of title to the land in controversy from the sovereignty of the soil and plaintiff has no right of recovery unless the facts show that he purchased the apparent title for a valuable consideration in good faith and without any notice of defendant’s title.

We think the facts are wholly insufficient to establish his claim of title as an innocent purchaser without notice of defendant’s title. In the first place, as said by our Supreme Court in the case of Waggoner v. Dodson, 96 Tex. 422, 73 S. W. 518, “The very essence of the claim of an innocent purchaser, protected by the registration laws, that he must have bought from one apparently invested with title.” At the time of appellee’s purchase from Mrs. Edwards, she had no title, legal or equitable. She was not, and had never been, in possession of the land, and there was no record in existence in Sabine county or elsewhere showing an apparent title in her. How then can it be said that appellee bought the apparent title and is therefore entitled to protection as an innocent purchaser? It seems to us that to hold that a purchaser of land from one not in possession and who has neither legal nor equitable title, and when there is no record or deed in existence apparently investing the vendor with title, can be protected as an innocent purchaser under our registration laws, is to pervert the purpose of these laws, and to hold in effect that, if one fails to place his title upon record, any one who may assert claim to his land may sell it and invest the purchaser with title, provided the purchaser has no notice of the owner’s title. Our registration laws are intended to protect those only who purchase a title or an apparent title, and appellee having purchased neither cannot claim protection thereunder.

We are further of opinion that appellee cannot be heard to say that at the time he purchased he had no notice of appellant’s title. He knew that no patent had been issued to the land and that the only evidence of title in Hugh Milligan, if he had any, was shown by the certificate by virtue of which the land was located, and this certificate was or should he on file in the General Land Office. lie also knew that all the’ records of Sabine county had been destroyed by fire prior to his purchase. Knowing these facts, we do not think reasonable minds can differ in the conclusion that ordinary prudence on his part required that before he purchased the land he should ascertain what the certificate under which it was located showed as to the title; that being the only muniment of title known to exist, at the time of his purchase. If he had made the least investigation or inquiry at the General Land Office, he would have necessarily discovered that Hugh Milligan had no title to the land at the time of his death, and therefore no title passed to Mrs. Edwards through the will of Milligan. We have no doubt that appellee honestly supposed or believed that Mrs. Edwards had title, but this honest belief cannot protect him if the circumstances did not -warrant a man of ordinary prudence to act in reliance on such belief. The fact that appellee never saw the certificate with the indorsements thereon or the transfers on file therewith does not make him an innocent purchaser if, under the circumstances, by the exercise of ordinary prudence on his part he would have seen them. The law requires reasonable diligence on the part of a purchaser to ascertain defects in his title, and he is charged with notice of all that appears upon the face of the instrument under which he claims title.

In the ease of Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup.. Ct. 239, 35 L. Ed. 1063, the Supreme Court of the United States quotes from the Supreme Court of Virginia as follows: “The rule is thus stated by the Virginia Court of Appeals in Burwell v. Fauber, 21 Grat. [Va.] 446, 463: ‘Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may not be a bona fide purchaser. He is bound, not only by actual, but also by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without notice.’ ” And again: “Whatever is sufficient to put a person on inquiry is considered as conveying notice; for the law imputes a personal knowledge of a fact, of which the exercise of common prudence might have apprised him.”

We think upon the undisputed evidence and the principles of law above stated, the trial court should have instructed the jury to return a verdict in favor of the defendant. It follows that the judgment of the court below should be reversed, and judgment here rendered in favor of the appellants, and it has been so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    KELLNER v. RANDLE et al.

    (Court of Civil Appeals of Texas. Galveston.
    Feb. 18, 1914.
    Rehearing Denied April 9, 1914.)
    1. Moktg-ages (§ 38) — Deed or Mortgage— Evidence.
    Where the parties to an instrument purporting to be a deed agree that the land was grantor’s homestead, and that the transaction was really intended as a mortgage, evidence that others understood that the instrument was intended as an absolute conveyance will not overcome the admission of the grantee that it was intended as a mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.]
    2. Evidence (§ 263*) — Admissions—Effect.
    An admission by a party in an ex parte deposition is not as binding as an admission against interest in a pleading, but may be explained away as by showing that the -witness was insane when his answers were taken, without raising the issue of insanity by any pleading, or first moving to suppress the deposition or requesting the appointment of a guardian ad litem for such party, or notifying the other party that the issue of insanity would be raised.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1022-1027; Dee. Dig. § 263.]
    3. Mortgages (§ 39) — Deed or Mortgage-Evidence.
    In an action to set aside an instrument in the form of an absolute deed on the ground that it was intended as a mortgage, evidence held to make it a jury question as to whether the instrument was merely intended as a mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 112, 113; Dec. Dig. § 39.]
    4. Mortgages (§ 37) — Pleading.
    While insanity must be raised by a proper pleading if relied on to avoid liability or defeat the action, it may be shown in an action to set aside an absolute deed, on the ground that it was intended as a mortgage, that defendant, when he made depositions stating that the instrument was intended as a mortgage, was mentally incompetent, though mental incapacity be not pleaded.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. § 37.]
    Appeal from District Court, Waller County; S. J. Styles, Judge.
    . Action by Isabella Randle and others against J. G. Kellner. Prom a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    J. D. Harvey and Keet McDade, both of Hempstead, for appellant. J. E. Edmundson, C. G. Krueger, and Duncan & Duncan, all of Bellville, for appellees.

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

       writ of error dismissed May 20, 1914.

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

   McMEANS, J.

On December 24, 1912, ap-pellees filed this suit against appellant, seeking to set aside and annul a certain instrument in the form of an absolute deed, executed December 12, 1907, by Isabella Randle and Ben Randle, deceased, who, on the date last stated and prior and subsequent thereto were husband and wife. The grounds set out in appellees’ petition upon which said deed is sought to be annulled are: (1) That said deed, although in form an absolute deed, is in truth a mortgage; (2) that the property therein affected was, at the time of the execution thereof, a part of the grantors’ rural homestead; (3) that the acknowledgment thereto by Isabella Randle, the wife, was taken in the presence of her husband; (4) that the notary who took the acknowledgment of the grantors to said deed was not at the time a legally qualified notary public of Waller county, in which county the acknowledgments were taken, because not a resident of such county; and (5) that said notary was acting in such transaction as agent for both grantor and grantees. . After all the evidence had been introduced the court peremptorily instructed the jury to return a verdict for the appellees, and, this having been done, judgment was accordingly entered for them, annulling the deed. From this judgment J. G. Kellner, the defendant, has appealed, and assigns as error the action of the court in instructing a verdict against him.

By his first proposition under this assignment appellant contends that a deed, absolute upon its face, duly acknowledged, is presumed to be what it purports to be; that when such an instrument is assailed as being a mortgage, the circumstances creating such presumption, together with other supporting testimony in the case, must be weighed by the jury, along with the opposing testimony, to determine the true nature and effect of the instrument, and that the court had no authority to prevent the jury by peremptory instruction, from exercising such function and duty.

The evidence in the record justifies the following findings of fact:

Ben Randle, now deceased, and Isabella Randle were husband and wife on and prior to the date of the execution of the deed in question, and then and for a long time prior thereto resided upon, used, and occupied as their homestead 62 acres of land, owned by them, composed of two adjoining tracts of 31 acres each. Prior to the execution of said deed Ben Randle was indebted to various parties in sums aggregating $808.45, besides owing the appellant, who was then a merchant, a store account amounting to approximately $121. His creditors were pressing him for payment of their respective debts, and some of them were threatening him with criminal prosecution for mortgaging the same stock to two different banks. Being thus pressed he endeavored to borrow money from different persons, and offered as security a mortgage upon a portion of his homestead. These parties refused to loan the money on such security, but offered to buy the property, but he and his wife refused to sell. One party offered them $35 per acre for the 31 acres but they declined his offer, another offered $40 per acre, and this offer was likewise declined, and on the day they executed the instrument sought to be canceled,' another offer to buy the land at the price of $40 per acre was also declined. Ben Randle then applied to appellant, and this resulted in the execution of deed in controversy. This deed is in form a general warranty deed, duly acknowledged, and purports to convey the fee-simple title, to 31 acres of the land to appellant for the sum of $930, which is $30 per acre. Ben Randle died before the suit was filed. On the trial Isabella Randle testified positively that she and her husband borrowed the $930 from appellant, and it was agreed that the 31 acres should be security therefor, and that it should be reconveyed by appellant to them whenever they paid the sum so borrowed, with interest. In this she was corroborated by the direct evidence of other witnesses, and by other facts and circumstances. When the suit was filed ex parte interrogatories were propounded to appellant, and in answer to some of them he answered: “Certainly it is a fact that this plaintiff and her deceased husband requested from me a loan of $930, giving as security therefor 31 acres of the 62 acres of land hereinbefore mentioned. Xes, if they paid it back at the agreed time, it is a fact that I agreed to give this plaintiff and her deceased husband $930 ‘ in consideration of the fact that they would make me a deed to the said 31 acres of land, such deed being understood and agreed to be conditioned that if said $930 should be paid back by this piaintiff and her deceased husband, with interest, that I, J. G. Kellner, would reconvey this plaintiff and her deceased husband the 31 acres of land thus endeavored to be conveyed to me by them. It is a fact that such deed was to operate and hold said land as security for the said $930, with interest, and that upon the payment thereof I would reconvey the land, the said 31 acres, to this plaintiff and her deceased husband, if they come in the right time. It is a fact that said deed, as aforesaid, was merely to incumber the property and hold the same as security, and all parties to said instrument understood that such was the purpose and effect of said instrument, but they would not come up and pay, and now it is too late.”

On the other hand Max Kellner, a son of the appellant, and who was a subscribing witness to the deed, testified that he was present when Ben and Isabella approached appellant to borrow $930 on the security of the 31 acres; that appellant demurred on the ground that the land offered was Ben’s homestead, and said he would have to consult Mr. P. M. Cuny about the matter; that Mr. Cuny was sent for, and upon his arrival advised all the parties that no mortgage could be taken on the property because of its being a homestead, whereupon Randle offered to sell the land outright and appellant agreed to buy at $30 per acre; that thereupon Mr. Cuny prepared the deed and took Ben and Isabella’s acknowledgment thereto, the latter acknowledging it separate and apart from her husband, the notary having first explained to Isabella that the conveyance was an outright sale of the 31 acres to appellant; and that she did not then intimate that she or any of the parties understood or had agreed that such was executed as a deed of trust or as -security, or' that such land was to be conveyed by appellant upon repayment to him of the consideration with interest. P. M. Cuny corroborated the testimony of Max Kellner, but added that he, of course, did not know what agreement was made between the parties before he was sent for. There was testimony to the effect that at the time of the execution and delivery of the instrument in question Ben Randle turned over to appellant all the title papers in his possession relating to the 31 acres conveyed, and that thereafter he and Isabella remained upon and cultivated the land and' paid rents therefor to appellant for some , two years, when Ben died, and after his death Isabella and her children continued to live on the land and pay rent to appellant for a year or two, and until they were ejected therefrom by appellant; that after Ben’s death Jay Gould Randle, a son of Ben and Isabella, and one of the appellees, applied to appellant for material to be used in repairing fences, and it was furnished, but no charge therefor was made against appellees, the appellant treating the land as his own.

Several' witnesses testified that after the execution of the deed, and at the time of and before the taking of appellant’s ex parte depositions, appellant’s mind had become greatly impaired. On this subject the witness P. L. Clapp testified: “I have known Mr. Kell-ner even since he came to the county; I have known him 20 years or more, and I am intimately acquainted with him, and see him frequently and talk with him. As to his mental condition and what it was in December of last year, I will say that I do not think he was entirely in his right mind, though he was not flighty at all, but he was very forgetful. In his conversations he would talk first on one subject and then jump off on something else entirely different, and his memory was very bad; he cannot remember anything. In his general talk — talking for any extended length of time — he talks at random and does not talk like a sound mind at all; he does not talk like an entirely sane man. From my knowledge of Mr. Kellner and the condition of his memory and recollection, in my judgment, he could not, last December, detail and tell about some transaction that occurred some four or five years before that; I don’t know, but I don’t think he could. My best judgment is that I don’t think he could. My idea about it is that if he undertook to tell what, occurred there, it would just as likely be wrong as right. That is my judgment about it; that it is just as likely to be the opposite of the truth as the right. * * * If a direct question was asked him, jf a certain statement was made, or a certain agreement was made, some four or five years before, in my judgment, he could not answer correctly, and I would not think his answer could be relied upon as being correct. [S. E. p. 38]. * * * In my judgment, if he was asked a question that could be answered ‘Yes’ or ‘No,’ and he answered it, you could not depend on it that his answer was correct, it would just as liable be wrong as right, you could not depend upon it being right except from outside evidence. That is my judgment from my knowledge of his mental capacity.”

The testimony of P. M. Cuny, W. G. Clemons, and Henry Wilpitz was substantially to the same effect; appellant was present at the trial, but did not testify.

In a case like the present, where a grantor in a deed which conveys a portion of a homestead claims by her pleadings and testimony that the amount recited as a consideration was merely a loan, and that the deed, although purporting to be an absolute conveyance, was intended by the parties as security for the debt only, and a grantee, whose mental condition is normal, admits in his testimoy that the facts alleged and testified to by the grantor, in that regard, are true, the court should instruct a verdict for the grantor, notwithstanding other persons, not having any interest in the subject-matter of the suit, might testify that they understood, or that it was a fact, that the parties intended that the deed should have the effect purported by its terms, and that a fee-simple title was intended by both parties to be conveyed. Certainly no one better knowns the very terms of the agreement upon which the conveyance was executed than the parties who make the agreement; and, when they are in accord, and both agree that the land was the homestead oí the grant- or, and that the transaction, while purporting on its face to be a purchase and sale for a consideration agreed upon and paid, was only a loan of money and a conveyance of the homestead for its security, he ought not to be heard to claim that as other parties did not so understand the agreement, and had testified that the instrument was intended to evidence an absolute sale and conveyance, their understanding should prevail against his own testimony as to the facts, and that therefore he should have judgment against his own admissions.

But what we have said has reference to a grantee whose mental condition is normal. The transaction about which appellant was called to testify occurred on December 12, 1907. His depositions were taken on December 28, 1912, a little more than five years later. As shown by the testimony of the witness Clapp, above set out, appellant’s mind had become seriously impaired, and was so impaired at the time the deposition was taken, according to the opinion of this witness, appellant at the time of answering the interrogatories could not intelligently relate a transaction that occurred four or five years before; ‘‘it would just as likely be wrong as right.” In the judgment of this witness, if a direct question was asked appellant, whether a certain statement or agreement was made four or five years before, he could not answer correctly, and, the witness thinks, his answer could not be relied upon as being correct; that his answer could not be depended upon as being correct except from outside evidence. Cuny testified: “From my knowledge of the man [appellant] and his mental condition, in my judgment I do not think he could tell the transaction and what occurred at the time of the execution of a deed even 30 days before that.” Clemons testified: “If he [appellant] was asked a direct question that could be answered ‘Yes’ or ‘No,’ or any other way, and he should answer that question, you could not depend on it as being correct, I don’t think, that is, if the question was about something that .occurred two or three years before the question was asked, I don’t think you could depend on it being correct if he attempted to answer it. * * * No, sir; you could not depend on it if he made the answer.” Henry Wil-pitz testified: “* * * His mind is weak now, and has been in that condition for about three years. * * * In my judgment, from my knowledge of Mr. Kellner, if he undertook to tell about a transaction that occurred three or four years ago, what was said and done then, you could not rely on his answer as correct.”

If appellant in his testimony had denied that the transaction between himself and Ben and Isabella Randle was a loan of money and the deed was taken as security, certainly an issue would have been raised that would have required the court to submit the case to the jury; or if he had not testified at all, we are sure that the testimony of P. M. Cuny and Max Kellner on that issue, together with the circumstances introduced in evidence tending to show recognition by Ben and Isabella of appellant’s title to the land, would have been sufficient to raise the issue and require its submission to the jury. The admission made by appellant in the ex parte depositions do not stand on the same footing as the solemn admission against interest made in pleadings, but may be explained. Smith v. Olson, 92 Tex. 181, 46 S. W. 631; Goodbar Shoe Co. v. Sims, 43 S. W. 1066. The explanation might be such as was allowed to be made in the cases cited, or the explanation might be that the witness at the time of giving his testimony was mentally incapable of giving correct answers, or that at least his answers “would just as likely be wrong as right.” This testimony having been admitted in explanation of the answers made by the appellant, we think the ease should have gone to the jury, and that the court erred in withdrawing the case from them, and for this error the judgment must be reversed.

On the other grounds alleged for annulling the deed the evidence was conflicting. The testimony was not such as to compel a finding that Ben Randle was present when his wife’s acknowledgment to the deed was taken, nor that the notary was not a legally qualified notary of the county in which the acknowledgment was taken because of being a nonresident of that county, nor that he was acting in such transaction as agent of both parties in a sense that disqualified him to so act and therefore those' grounds could not properly be the basis of the instructed verdict.

Appellees have presented a cross-assignment of error, under which they present the proposition that it was error for the court to permit the defendant, over the objection of the plaintiffs, to introduce evidence tending to show the defendant’s unsoundness of mind at the time when his ex parte depositions were taken without having filed any pleadings raising the issue of insanity or unsoundness of mind, or without having first filed a motion to suppress such ex parte depositions, but permitting the same to be introduced without objection, and without having requested the court to appoint a guardian ad litem to represent defendant’s interest, or without giving notice to the plaintiffs that such issue would be raised upon the trial.

No authorities are cited by appellees in support of this contention. We are of the opinion that the testimony, the introduction of which is complained of, was admissible as . against the objections offered. In Smith v. Olson, supra, our Supreme Court held in effect that the provisions of the statute authorizing the taking of the ex parte depositions of a party to a suit do not give any extraordinary effect to the deposition when answered, and that to make his answers conclusive against him and to deny him the right to explain them might be to make the procedure a means of injustice, which would probably in the long run counteract the benefits which might be expected to follow from it. It cannot be gainsaid that where the mental condition of a party is relied upon to avoid liability or to defeat the suit, the issue must be raised by proper pleading ; but no such issue was sought to be injected here, but the question here presented is one purely of evidence, which does not go to the foundation of the action or defense, but relates only to the weight and credibility of the evidence relied upon by the plaintiffs. Wren v. Howland, 33 Tex. Civ. App. 87, 75 S. W. 900 ; 40 Cyc. 2573. The assignment is overruled.

For the error indicated, the judgment of the court below is reversed, and the cause remanded.


text:
    WHARTON COUNTY DRAINAGE DIST. NO. 1 v. BOWEN, County Judge, et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 2, 1914.)
    Drains (§ 2) — Abolition op District — Statutes — Validity.
    Acts 33d Leg. 1st Called Sess., c. 28, authorizing an election to determine whether a drainage district once established may be abolished, is not void or unconstitutional.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 17; Dec. Dig. § 2.]
    Appeal from District Court, Wharton County; Samuel J. Styles,' Judge.
    Bill by the Wharton County Drainage District No. 1 against J. R. Bowen, as County Judge, and others. From order denying a temporary _ injunction, complainant appeals.
    Affirmed.

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

   McMEANS, J.

This is an appeal from an order of Hon. Samuel J. Styles, judge of the district court of Wharton county, refusing to grant a temporary injunction.

The bill for injunction presented to the judge alleged the due organization of Wharton county drainage district No. 1, the issuance of bonds upon the order of the commissioners’ court of Wharton county in the sum of $350,000 for the purpose of construct'ing drainage improvements; that the bonds had never been approved by the Attorney General of the state of Texas, nor registered by the comptroller, and that said bonds had .never been sold; that the said commissioners’ court had levied taxes for the years 1911 and 1912 to pay the interest on said bonds and to create a sinking fund for their redemption at maturity, but had refused to levy a tax for such purposes for the year 1913, and that none of the improvements contemplated by the establishment of the drainage district had ever been made, because of lack of funds; that, out of the tax levy for the years 1911 and 1912, there had been collected the sum of $29,458.78 exclusive of commissions for collecting same, and that said sum is now in the custody of the county treasurer. The petition further alleged that on December 15, 1913, R. H. Hancock and 124 others, all of whom are landowning and taxpaying citizens of the drainage district, presented a petition to the commissioners’ court praying that an election be ordered to determine whether the drainage district should be abolished, and accompanied the petition with $200 in cash, to be deposited with the clerk, to be by him held until after the result of the election should be declared, and thereafter to be disposed of as is provided by law; that, acting on this petition, the commissioners’ court made an order, duly entered on the minutes, ordering an election to be held in the drainage district on February 7,1914, to determine whether the drainage district should be abolished, appointing managers of election, designating polling places, and ordering notices to be given. The petition, further alleging that chapter 28, Gen. Laws Tex. 1st Called Sess., adopted by the Thirty-Third Legislature at its first called session, which authorizes elections to determine whether drainage districts, once established, may be abolished, is unconstitutional and void, prayed for the issuance of a temporary injunction restraining the commissioners’ court of Wharton county and the individual members of said court from canvassing the returns of said election, and from making any order declaring the result of such election, and from making any order for the abolition of the drainage district. The prayer for injunction was refused.

No briefs for either party to the controversy have been filed, and the case comes to us solely upon the verified petition for injunction. We have examined the petition carefully in connection with chapter 28, p. 41, Gen. Laws, authorizing the holding of elections to determine whether drainage districts shall be abolished, and our conclusion is that the act is not unconstitutional in any of the respects in which it is attacked by plaintiff.

As no other ground for injunction except the invalidity of the act is alleged, we think the court correctly refused to grant the injunction, and therefore the judgment appealed from is affirmed.

Affirmed.


author: CARL, J.

text:
    ROSS v. JACKSON.
    (Court of Civil Appeals of Texas. San Antonio.
    April 1, 1914.
    Rehearing Denied April 15, 1914.)
    1. Set-Off and Counterclaim (§ 28) — Claim Arising out of Same Transaction.
    In an action on a note representing money advanced to defendant to pay the expense of drilling a well and to foreclose a lien for a drilling outfit, given to secure payment of the note, a claim for damages from plaintiff’s re-fur-al for a time to point out where the well was to be drilled, resulting in defendant being kept idle, and for a certain amount for drilling the well, was a part of the same transaction as the note so as to be properly asserted in a cross-action, under Rev. St. art. 1330, permitting an uncertain claim to be asserted against a certain demand, where they grow, out of and form a part of the same transaction.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 47, 48; Dec. Dig. § 28.]
    2. Estoppel (§ 111) — Pleading.
    Estoppel must be specially pleaded.
    [Ed. Note. — For other eases, see Estoppel, Cent. Dig. § 301; Dec. Dig. § 111.]
    3. Pleading (§ 228) — Exception to Exception.
    The sustaining of defendant’s exception to plaintiff’s exceptions to a pleading is in effect merely the overruling of plaintiff’s exceptions.
    [Ed. Note. — For other cases, see Pleading; Cent. Dig. §§ 584-590'; Dec. Dig. § 228.]
    4. Estoppel (§ 90) — Estoppel by Conduct.
    The fact that defendant executed the note sued on to plaintiff for money advanced to pay for drilling a well for plaintiff^ without mentioning his claim against plaintiff for damages for delay by plaintiff’s refusal to point out where the well was to be drilled, would not estop defendant from claiming such damages, especially where they were not considered in the settlement made between the parties.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 242-244, 248-256; Dec. Dig. § 90]
    5. Trial (§ 255) — Instructions—Request.
    In an action on a note given for money advanced to defendant to pay expense of drilling a well, .in which defendant counterclaimed for damages from plaintiff’s delay in pointing out a place for drilling the well, plaintiff should have requested a charge as to estoppel from claiming such damages by not mentioning them when the note was made, and as to an uncertain claim being sought to be offset against a certain claim, if she desired to submit those questions.
    [Ed. Note. — For other cases, see Trial, Cent: Dig. §§ 627-641; Dec. Dig. § 255.]
    6. Appeal and Error (§ 882) — Estoppel to Allege Error.
    _ A party who prepares and submits a full charge cannot complain that it is not the law or does not cover the case in view of Acts 33d Deg. c. 59, providing that all objections to instructions not made as provided shall be deemed waived, etc.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    7. Appeal and Error (§§ 263, 292') — Presentation Below.
    Plaintiff cannot complain on appeal of a special charge given for defendant, where it was not excepted to or assigned as error in the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532, 1697-1699; Dec. Dig. §§ 263, 292.]
    8. Appeal and Error (§ 1068) — Harmless Error — Instructions.
    ■ An instruction that an injured party may recover for future 'consequences, though he does not show that-it is reasonably, certain that he will suffer, was not applicable and 'was harmless, where neither party sought damages for future consequences, and the jury evidently did not consider the instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Appeal from Kinney County Court; Joseph Yeltmann, Judge,
    Action by Virginia Ross against W. R. Jackson, in which defendant filed a cross-action. From a judgment for defendant on his cross-action, plaintiff appeals.
    Affirmed.
    W. D. Clamp, of Brackettville, and Martin & Martin, of Uvalde, for appellant. Frank Lane, of Brackettville, for appellee.

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

   CARL, J.

Appellant, Virginia Ross, brought suit against appellee, W. R. Jackson; on a certain note, dated April 26, 1913, for the sum of $335, interest and attorney’s fees, and for a foreclosure of a mortgage Ren on a certain well-drilling outfit, given ‘ to secure the payment of said note.

Defendant Jackson answered by general demurrer, special exceptions, general denial, and on cross-action and offset that he had a verbal contract of date about November 15, 1912, whereby he was to drill a well for plaintiff in the northeastern part of Kinney county, at a place to be designated by plaintiff, which said well was to be drilled to a sufficient depth to procure a sufficient amount of water for practical purposes. For such well, it is alleged, she promised to pay him-$1 per foot for the first 200 feet, and $1.50 per foot for the third 100 feet, if defendant succeeded in procuring a sufficient amount of water for practicable purposes; that in compliance with such agreement defendant moved his drilling outfit on the land and made all preparations for boring said well, but plaintiff negligently failed and refused to point out the place where said well was to be drilled for 35 days, during which time he was kept idle, because of the fact that he was compelled to hold himself in readiness to carry out such contract, and claim is made for $12 per day during said 35 days he was kept idle. Claim is made for $420 for the time he was kept idle, and for $402.50 for the drilling of said well, the note sued on being admitted, except that it is alleged that plaintiff knew the sum represented by same was for the purpose of obtaining money to pay the expense of drilling said well, buying materials therefore, etc., and .was given be-" fore the well was finished, and that it was understood between plaintiff and defendant that said note- was to be paid off and discharged with money derived from plaintiff by defendant in boring the well. Prayer is/ on the cross-action, that defendant offset plaintiff’s debt due on the note by the cost price of drilling the well, and that he have judgment for $62-50. In addition thereto he prays for $420 for the 35 days he alleges he was idle and at great expense because plain? tiff failed and refused to point out where the well was to be bored, because be says be would have earned $12 per day during said time.

The plaintiff excepted to the matters set out in the fourth paragraph of defendant’s answer, which is with regard to the 35 days he says he was idle, because the same is an attempt to offset a liquidated demand by an unliqui-dated claim; and that if he had such a claim he was estopped to plead same, because he had waived the same by settling and merging same • into the note and mortgage given April 26, 1913. Plaintiff also denied that he drilled a merchantable well or one that could be used, or that it would supply a sufficient amount of water for practicable purposes.

Defendant excepted to the sufficiency of the plea of estoppel, which plea was by the court sustained, and plaintiff’s exception was overruled.

The cause was tried by a jury and resulted in a verdict in favor of Jackson for $370 for drilling the well and in favor of plaintiff for $378 on the note, which was offset by the cost of the well, leaving $8.60 in favor of plaintiff, and further found $3 per day for the 35 days defendant was kept idle on account of plaintiff failing to point out where the well was to be drilled, and from this the $8.60 was deducted, leaving a net balance of $96.40, for which judgment was rendered against the plaintiff and in favor of defendant. Plaintiff has appealed.

The first assignment of error complains that the court erred in sustaining defendant’s demurrer, to plaintiff’s exception, wherein the point was made that defendant’s counterclaim accrued long before the note and mortgage were executed, and was fictitious and trumped up for the purpose of defeating plaintiff’s just liquidated demand; and the second assignment asserts that the court erred in not sustaining plaintiff’s exception to defendant’s cross-action for 35 days lost, because the suit was on a note dated April 26, 1913, and his cross-action accrued long prior thereto and was waived and merged into the settlement represented by the note. The assignment states that Jackson got $71 mo're at the time he executed the note and then closed the account. But the exception filed does not set forth these matters. The first exception is to the effect that defendant’s claim is unliquidated and cannot be offset against a liquidated demand, and is too remote and speculative. The second exception is to the fourth paragraph of defendant’s answer, wherein he prays for damages at $12 per day for the 35 days lost, and that exception is he is estopped from interposing same for the reason said claim, if any he had, was by him waived, settled, and merged in the settlement of their differences on April 26, 1913, the date he acknowledges that he made, signed, executed, and delivered to plaintiff his promissory note for the sum of $335, etc. The defendant’s pleadings were not subject to the criticism urged in these exceptions. Other than the exceptions filed, the plaintiff did not plead waiver and estoppel nor that the defendant sought to offset a liquidated by an unliquidated demand. When her exceptions were overruled as to these matters, there was no pleading before the court upon which to base a charge on these matters. They were not pleaded as defense to the cross-action; nor did the plaintiff seek to plead same in her trial amendment or otherwise than by the exceptions which the court did not sustain. The cross-action was not subject to the exceptions, because it did not appear therefrom that defendant had waived his claim.

And the claim sued on in the cross-action grew out of the alleged contractual relations and was a part of the same transaction as the note. It is therefore not apparent from the cross-petition that it was subject to either of said exceptions.

Estoppel, to be relied upon, must be specially pleaded. Ross v. Moskowitz (Civ. App.) 95 S. W. 86, affirmed in 100 Tex. 434, 100 S. W. 768; Tres Palacios Rice, etc., Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698, application for writ of error dismissed 101 Tex. 664, 93 S. W. 698; Scarbrough v. Alcorn, 74 Tex. 360, 12 S. W. 72; Banking Co. v. Hutchins, 53 Tex. 68, 37 Am. Rep. 750.

Article 1330 of the Revised Statutes of Texas specially provides that an uncertain claim may be asserted against a. certain demand where they grow out of and form part of the same transaction. According to the defendant’s allegations, this all grew out of the same contractual relations, and the cross-action, as alleged, does not show that prior claims were waived or merged in the note; but, on the contrary, the pleadings show that the note represented an advance to help carry on the work.

Sustaining the defendant’s exception to plaintiff’s exceptions is in substance merely overruling the exceptions of the plaintiff, in which there was no error because the pleadings of defendant were not subject to the criticism. But why all these exceptions to exceptions? A demurrer is either good or bad, and stands or falls according to its own soundness.

The fact that Jackson executed the note to plaintiff, sued upon, without mentioning his claim for damages, would not of itself- operate as an estoppel of his claim for damages, and this is especially true where same was not considered in the settlement. Llano County v. Moore, 77 Tex. 515, 14 S. W. 152.

Plaintiff prepared, and the court submitted as the law of the case, a charge which did not embody either estoppel or the fact that an uncertain claim was sought to be offset against a certain one. In any event, it would be an omission, and it would be her duty to ask the charge she desired.

But, where she prepares and submits a full charge, she cannot complain that it is not the law or that it does not cover the case. Railway Co. v. Kurtz (Civ. App.) 147 S. W. 661; Guerra y. S. A. Sewer Pipe Co. (Civ. App.) 163 S. W. 672; Acts 33d Leg., pp. 113, 114.

Complaint is made as to a special charge given at the instance of defendant; but it was not excepted to by plaintiff, nor was it assigned as error in the motion for new trial.

If the testimony of the defendant is true, then plaintiff was grossly negligent in refusing to point out where the well was to be bored. She did finally point it out, and, if she had done this at first, there would have been no occasion for damages.

The clause in this special charge, reading as follows, is that about which complaint is made: “An injured party may recover for future consequences, though he does not show that it is ‘reasonably certain’ that he will suffer.” We do not see how this could have any. bearing on the case, because there was no effort made to collect for future consequences by either party, and the jury evidently took no notice of that clause. The verdict was for the 35 days Jackson was kept idle, and for the cost price of the well. So there was no injury done by the giving of this inapplicable clause in the special charge.

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


author: CARD, J.

text:
    VACAREZZA v. REALTY INV. CO. et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 18, 1914.
    On Motion for Rehearing, April 15, 1914.)
    1. Sfecifio Performance (§ '25) — Right of Action.
    Plaintiff cannot sue for specific performance, where he knew, when the contract was executed by the secretary of defendant company, that the company did not own the property, and that a firm was the real owner’s .agent.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 56-58, 60; Dec. Dig. § 25. ]
    2. Corporations (§ 404) — Authority op Officers — Secretary.
    Under the by-laws of a corporation, providing that the president shall sign all contracts, deeds, etc., executed by it, and that no sale of realty shall be consummated without the consent of the board of directors, the secretary did not have authority to bind the corporation by a contract to sell realty.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1626-1628, 1633-1639; Dec. Dig. § 404.]
    3. Corporations (§ 429) — Power op Offi- ■ cers — Constructive Knowledge.
    Persons dealing with a corporation are charged with knowledge that the corporation can only act as provided by law, so that, where corporate by-laws provided that the coi'poration could only convey realty with the consent of its board of directors, persons purchasing realty from it were charged with knowledge that the only power of the acting agent of the corporation was derived from the board of directors.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1720-1723, 1725; Dec. Dig. § 429.]
    4. Corporations (§ 404) — Authority oe Agent.
    If the secretary of a corporation had no power to sign a contract for it to convey land, it is immaterial what he thought when he signed the contract in the name of the corporation, or as to whether he signed by mistake, etc.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1626-1628, 1633-1639; Dec, Dig. § 404.]
    5. New Trial (§ 103) — Newly Discovered Evidence — Materiality.
    Alleged newly discovered evidence, which was immaterial, would not authorize a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. § 103.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Steve Vacarezza against the Realty Investment Company and others. From a judgment for part of defendants, plaintiff appeals.
    Affirmed.
    Henry E. Vernor and Joseph Ryan, both of San Antonio, for appellant. Cobbs, Eskridge & Cobbs, of San Antonio, for appellees.

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

   CARD, J.

Appellant, Steve Vacarezza, sued the Realty Investment Company, a corporation, R. I-I. Wester Company, a firm which is alleged to be composed of R. H. Wester and C. F. Ketter, and said parties individually, for specific performance of a contract to convey to him a lot of land and improvements thereon at Nos. 312-314 on South Concho street in San* Antonio, Bexar county, Tex., and, in the alternative, $5,000 damages, in addition to the recovery of $100 paid as earnest money.

R. H. Wester Company, R. H. Wester, and C. F. Ketter answered by general demurrer, general denial, and specially that R. H. Wes-ter Company had the $100, but did not know bow it should be applied, and asked the court to direct its application. They claimed that plaintiff had agreed that same might be applied as rent on the premises.

The Realty Investment Company answered by the same attorneys, demurring generally, and entering a general denial. This defendant further made special answer that the contract signed in the name of Realty Investment Company by O. F. Ketter, secretary, was made without authority; that Ketter knew the corporation did not own the property, and that it was not the purpose of this defendant to become personally bound by the contract; that Ketter knew that R. H. Wester Company was acting as the rental agent for said property, and that Realty Investment Company had no interest therein, and that R. H. Wester Company had no interest therein, except as rental agent therefor. It was further alleged that they believed that one J. E. Barnell had power to bind tbe true owner, be claiming to be attorney in fact for tbe true owner, and that it was only intended to bind tbe true owner, tbe corporation acting for tbe purpose of making a commission solely, and that Ketter was not authorized to bind tbe corporation. Tbe answer further sets out that, after tbe contract was made, plaintiff paid the rent to Blanche Roy, who was using and occupying tbe premises, and that, when Ketter found they could not comply with tbe contract of sale, be called upon plaintiff within ten days and told him tbe contract could not be complied with because of tbe condition of tbe title, and offered to return tbe earnest money or to apply it to rents, to which latter application plaintiff made no objection, and be did so apply it and same was credited to Mrs. A. Bonnin, tbe owner, in tbe R. H. Wes-ter Company ledger, but that no part of it was bandied by or credited to Realty Investment Company, and that tbe corporation bad naught to do with the property or tbe earnest money; that thereafter one Candido Miorelli bought the property, and plaintiff attorned to him as tenant, and paid the rent for Blanche Roy. It is alleged that plaintiff knew defendant did not own tbe property, and acquiesced in tbe sale to Miorelli by at-torning to him; and, further, that tbe acts of Ketter in seeking to bind the corporation were without authority and ultra vires, and that Vacarezza bad never pretended to recognize tbe contract as binding on tbe corporation. By reason of all this, estoppel was pleaded.

To this answer, by supplemental petition, plaintiff urged a general demurrer and a number of special exceptions, and pleaded that R. H. Wester Company is but another name under which Wester and Ketter do business, as partners, and that tbe acts of tbe Wester Company are binding on Realty Investment Company, and, by trial amendment, alleged that Wester and Ketter owned the stock of Realty Investment Company, except one share, and that they received and retained tbe earnest money, and bad acquiesced in and ratified tbe contract, and that same is binding on tbe corporation whose officers and directors bad not repudiated.

The court instructed the jury to find in favor of Vacarezza against R. H. Wester, doing business under the name of R. H. Wester Company, in the sum of $100, with interest at 6 per cent, from October 28, 1911, and in favor of tbe other defendants, which was accordingly done. “Hence this appeal.”

Tbe contract dated October 28, 1911, is signed by Vacarezza and Realty Investment Company, by C. F. Ketter, secretary, and provides for the sale of tbe property to Vaca-rezza by tbe Investment Company upon terms specified, abstract to be furnished in ten days, and, on completion of tbe sale, the balance of tbe cash payment to be made and note to be executed for tbe remainder.

Appellant gave his check to R. H. Wester Company for tbe $100 earnest money; and Ketter testified be was acting for R. H. Wes-ter Company as agent, and tbe money was passed to tbe credit of Mrs. Bonnin in Wes-ter Company ledger, and be says be signed Realty Investment Company by mistake or ignorance, and that be had no authority so to do. The by-laws of .the corporation show that sales and purchases are only to be made by order of tbe directors, and no such authority was given. Vacarezza says that; “Four years ago, when Mrs. Bonnin went to France, be made a lease to Miss Roy for $52.50, payable to Mr. Albert Bitter, on Commerce street. He got sick; then Miss Blanche Roy told me she was paying Mr. Wester, and Mr. Bitter said to turn all collections over to Mr. Wester, and Mr. Wester has been collecting ever since. I knew Mrs. Bonnin and that she owned the property Miss Roy leased.” “Mr. Ketter signed it for tbe R. H. Wester Company. . Tbe lease is dated March 31, 1911. Blanche Roy signed it, and then I and Mr. Ketter witnessed it. This $52.50 was paid for this property under this lease to R. H. Wester Company up to and for October, 1911. Rent was paid for September and for August and every month up to tbe time tbe property was sold to Miorelli.” He repeatedly says he was dealing with R. H. Wester Company, and says-that Ketter told him at the time, “We own it,” and that he was talking for R. H. Wester Company, the same parties who were collecting the rent. “He knew and I knew that Wester was collecting tbe rent from the property as agent. When I made that paper, I knew be represented R. H. Wester Company.”

There are two reasons why the Realty Investment Company cannot be held:

1. Because Vacarezza knew at tbe time that the company did not own the property, and that R. H. Wester Company were acting as agents.

2. Because Ketter was not authorized to bind the corporation in a contract of sale.

Article II, section III, of the by-laws of the corporation provide that tbe president shall sign all papers and contracts, deeds, etc., and article IV provides that no purchase or sale of realty shall be consummated without tbe consent of the board of directors. The evidence clearly shows that the consent of the board of directors was never given in this matter. Furthermore, tbe undisputed testimony shows that the contract was really made for tbe benefit and on behalf of R. H. Wester Company, and that Vacarezza thought be was dealing with that company.

A corporation, being a creature of tbe law, must act and be bound as tbe law provides. Parties dealing with it are charged with the duty of knowing this. They must know that whatever power tbe agent has is derived from tbe board of directors. Fitzhugh v. Frango-Texas Land Co., 81 Tex. 306, 16 S. W. 1078; Green v. Hugo, 81 Tex. 456, 17 S. W. 79, 26 Am. St. Rep. 824; Franco-Texan Land Co. v. McCormick, 85 Tex. 416, 23 S. W. 123, 34 Am. St. Rep. 815; Tres Palacios Rice & Irrigation Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698; Standard Underground Cable Co. v. So. Ind. Telephone Co., 134 S. W. 429; Hermitage Hotel Co. v. Dyer, 125 Tenn. 302, 142 S. W. 1117; Elk Valley Coal Co. v. Thompson, 150 Ky. 614, 150 S. W. 817.

We therefore conclude that the trial court was correct in directing a verdict against R. H. Wester Company and denying relief against the Realty Investment Company, and the judgment is affirmed.

On Motion for Rehearing.

The undisputed evidence shows that the R. H. Wester Company was composed of R. H. Wester, and that C. F. Ketter, Chadwick, and Crouch were working for Wester as employes. Ketter says: “I was not interested in the Wester Company, only as an employe; and it was not a Realty Investment Company transaction, but an R. H. Wester Company, as agent, transaction, regardless of how the papers were signed.” It was further shown that Wester not only composed the firm of R. H. Wester Company, but the commission would be payable to him. Neither Crouch, Chadwick, or Ketter shared in the profits. Vaearezza knew that the Wester Company was acting as agent, and knew that Bonnin owned the property. No authority was given Ketter to make a contract in the name of Realty Investment Company to sell property, and he says he signed that name by mistake or ignorance. Appellant did not think he was dealing with the corporation, but says he was dealing with R, I-I. Wester Company, the agents. The evidence is undisputed that R. H. Wester is the sole member of that company. In view of these facts, we think the court correctly instructed the jury to render the verdict against R. H. Wester, doing business under the coinpany name.

It matters not what O. F. Ketter thought he was doing when the contract was signed, in so far as Realty Investment Company is concerned, because he was not authorized to make the contract. Appellant does not contend that he was dealing with that corporation, but says repeatedly that he was dealing with R. H. Wester Company. And Ketter says he was acting for that company. Vaearezza made his check to the Wester Company. The result is that appellant had no contract for the purchase of the property that was enforceable. Having no valid contract, he had no right to recover damages on account of a breach of same.

This being true the alleged newly discovered evidence about Wester’s dealings with Barnell is immaterial, and would not authorize the granting of ,a new trial. It was our purpose to overrule all assignments, and, if the original opinion is not clear on that matter, we here state that all assignments were thus dealt with.

The motion for rehearing is overruled.


author: HENDRICKS, J.

text:
    TRAMMELL et ux. v. ROSEN.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.
    Rehearing Denied April 11, 1914.)
    Appeal and Ebkob (§ 14) — Ekrob Pending Appeal.
    A cause in error being but another mode of appeal, the petition in error, by which, pending appeal, the same cause is brought up, will, there having been a reversal and remand on the appeal, be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 48-57; Dec. Dig. § 14.]
    Error to District Court, Tarrant County; W. T. Simmons, Judge.
    Action by Sam Rosen against W. M. Tram-mell and wife. Judgment for. plaintiff, and defendants bring error.
    Dismissed.
    See, also, 163 S. W. 145.
    Harris & Young, of Ft. Worth, for plaintiffs in error. Slay & Simon, of Ft. Worth, for defendant in error.

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

   HENDRICKS, J.

The record in this case presents an anomalous condition. The same cause was appealed from the district court of Tarrant county to the Court of Civil Appeals of the-Second Supreme Judicial district, and that court dismissed the appeal, on the ground of a lack of final judgment. The Supreme Court, upon application for writ of error, held that the record disclosed final judgment, and the Court of Civil Appeals of that district thereafter reversed and remanded the cause to 'the district court of Tarrant county, and a motion for rehearing was overruled. During the pendency of that appeal, the same cause was brought into the same Court of Qivil Appeals at Ft. Worth, by petition in error, and the Supreme Court of the state transferred that cause, which is the record here, to this court, in the exercise of its authority, in equalizing the dockets of the different courts of civil appeals. A motion was made in the Supreme Court of the state for the purpose of obtaining a retrans-fer of this cause to the Court of Civil Appeal's for the Second district, and previously, January 31, 1914,' we refused to proceed any further with this particular record until the Supreme Court had acted upon that motion and suspended our hearing upon a motion filed by the defendant in error, Rosen, for the purpose of dismissing the petition in error on a jurisdictional ground. While the motion to retransfer this particular cause to the Ft. Worth court, in so far as we are advised, has never been acted upon by the Supreme Court of the state, however, on account of a showing, by additions to this record, of the action of the Supreme Court in other matters of a similar nature, we are convinced that the Supreme Court will not return the cause to the Ft.'Worth court. Upon consideration of the motion and the record, we think it should be sustained, and the cause dismissed.

During the pendency of the appeal of this cause to the Court of Civil Appeals for the Second district, the remedy by petition in error for a review of the same cause placed the same case and the same record in that court in two different forms. The petition in error is but a cumulative method of invoking the appellate jurisdiction, and of seeking a revision of the same cause and the same questions as were thereafter adjudged by the Court of Civil Appeals of that district by means of the forrngr appeal. It has been repeatedly held by our Supreme Court that a cause in error is but another mode of appeal. Magee v. Chadoin, 44 Tex. 488; Green v. Martin, 43 Tex. 653; Ry. Co. v. Lacy, 7 Tex. Civ. App. 63, 26 S. W. 413. The latter case, decided by Chief Justice Tarleton, discloses a condition of a subsequent application of the appellate jurisdiction of that court by petition in error having previously sought a revision of the same cause by appeal. In the case on appeal the Supreme Court, upon application for writ of error, had granted the writ, but affirmed the judgment of the intermediate appellate court. The plaintiffs in error having failed to file in the Court of Civil Appeals a transcript with the writ of error proceedings, for some reason not disclosed, that court was asked to affirm the judgment on certificate, and which that court concluded it was without jurisdiction to entertain or sustain. The court said: “The cause which we are now asked to consider is the same case as that heretofore determined by us which has passed from our jurisdiction by the granting of the writ of error by our Supreme Court. It involves the same issues, and concerns the same parties. It in no way lost its identity on account of the fact that a writ of error was sued out. If we have jurisdiction to affirm this case on certificate, we would have jurisdiction to affirm it were it presented upon a transcript of all the proceedings had in the trial court,” etc. While it is true in that cause the Supreme Court had finally disposed of the case, and divested the Court of Civil Appeals of jurisdiction of that particular appeal, however, the Court of Civil Appeals, being advised by the record in error, that it was the same cause previously disposed of by another jurisdiction, concluded it had no jurisdiction to act with reference to the record brought up on error. Analogously, to some extent, we are in the same condition, having been advised by this record that another court has adjudicated and finally disposed of the same record in the form of an appeal; and, while it may not be necessary for us to decide explicitly that this court has no jurisdiction, we at least think that the more expedient and practicable course to pursue is tp dismiss this appeal, which we are sure the Court of Civil Appeals of the Second district would do if this record were before it upon the same motion. The contest here is really more on a question of costs. The plaintiff in error has the moral justification for suing out his petition in error to the Court of Civil Appeals of the Second district, apprehensive that his' cause on appeal did not embody final judgment, and that he would lose without a disposition upon the merits. That condition, however, does not afford the plaintiff in error legal justification why this cause should be considered by us upon its merits, and as suggested, reverse and remand the case, as was done by the court in the other appeal.

It is ordered that this cause be dismissed.


text:
    GROCE et al. v. WEST LUMBER CO.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 9, 1913.
    Rehearing Denied March 19, 1914.)
    1. Frauds, Statute of (§ 72) — Contracts Relating to Sale of Land.
    Growing trees are a part of the realty, and a verbal sale thereof which does not contemplate their immediate separation from the soil is within the statute of frauds (Rev. Civ. St. 1911, art. 3965, subd. 4).
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 116-118; Dec. Dig. § 72.]
    2. Frauds, Statute of (§ 49) — Contracts
    Not to be Performed Within a Year.
    A verbal contract for the sale of growing timber which allowed the buyers four years within which to remove the timber is not void, under the statute of frauds (Rev. Civ. St. 1911, art. 3965, subd. 5), as an agreement 'not to be performed within a year, for the contract only fixed a maximum time in which it must be performed.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 74; Dec. Dig. § 49.]
    ■ Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Action by the West Lumber Company against J. W. Groce and R. B. Eglin, composing the firm of Groce & Eglin. From a judgment for plaintiff which denied defendant’s cross-action, defendants appeal.
    Affirmed.
    See, also, 163 S. W. 581.
    Marsene Johnson, of Galveston, Barkley. & Green, of Houston, and Holshdusen & German and J. L. Manry, all of Livingston, for appellants. Baker, Botts, Parker & Garwood, of Houston, and Hill & Hill and J. C. Feagin, all of Livingston, for appellee.

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

   McMEANS, J.

The West Lumber Company brought this suit against J. W. Groce and R. B. Eglin, partners, composing the firm of Groce & Eglin, alleging that on the 10th day of June, 1910, plaintiff and defendants entered into a verbal agreement by the terms of which the defendants were to purchase certain timber standing and growing on plaintiff’s land in Polk county out of which defendants desired to manufacture stave bolts, and that it was then agreed that the verbal agreement should later be reduced to writing and executed by the parties as under the date the verbal agreement was entered into; that thereafter plaintiff had the agreement reduced to writing, and, after signing the same, submitted it to defendants, but that defendants refused to execute the contract as drawn, and repudiated the material portions thereof. Plaintiff then set out in its petition the agreement as prepared by it, alleging that it embodied the terms of the verbal agreement, which in part was that, in consideration of $1.25 per cord for the stave bolts, cash, to be paid by Groce & Eglin to the West Lumber Company, and subject to the stipulations in the contract, the West Lumber Company bargained, sold, and conveyed to Groce & Eglin all of the oak timber measuring 12 inches or more in diameter 12 inches above the ground, situated on the land specifically described, the same to be paid for monthly as taken off the land. It was further pleaded by plaintiff that under the verbal agreement, and in the contract drawn by it, the defendants were to have four years from the date the verbal agreement was made within which to remove the timber contracted to be sold. Plaintiff further alleged that, after submitting to defendants the contract set out in its petition and -their refusal to execute the same, it notified them to vacate its land, but that defendants refused to do so, but, acting under the verbal agreement, continued to cut the timber until enjoined by the court; that by reason of these facts defendants were trespassers after plaintiff’s notice to them to quit cutting and to get off the land. Plaintiff prayed for damages by reason of defendants’ trespass, and obtained a temporary injunction restraining defendants from further taking timber from the land during the pen-dency of the suit.

The defendants answered, admitting that they did enter into a verbal contract with plaintiff on June 10, 1910, and alleged that the substance of said contract was that defendants bought from the West Lumber Company all the oak timber of designated size on certain tracts of land belonging to plaintiff; that by the terms of the contract they were to take all of the oak timber from which merchantable stave bolts could be manufactured, and agreed to pay $1.25 per cord therefor. They concede that by the terms of the verbal agreement they had four years in which to remove the timber. They denied that they ever refused to sign any written contract which embodied the terms of the verbal agreement. By cross-action they sought damages against plaintiff by reason of the violation of said contract; but, in the view we take of a proper disposition of this appeal, the substance of the defendants’ allegations need not be set out.

A general demurrer was sustained to defendants’ cross-action, and on a trial before a jury a verdict and judgment was rendered for plaintiff for $1 as damages, and the perpetuation of the temporary injunction theretofore granted; and, from this judgment, the defendants have appealed.

The' only question necessary for us to decide on this appeal is this: Is a verbal contract for the sale of growing timber, not to be severed and removed immediately, but which gives the purchaser four years within which to cut and remove the same, in contravention of the statute of frauds and void? If this question be answered in the affirmative, the judgment appealed from must be affirmed.

However the parties may differ as to all the terms of the verbal contract entered into by them on June 10) 1910, they agree on the following: That plaintiff contracted to sell and defendants to purchase oak timber growing on plaintiff’s land, to be used in making stave bolts, and that defendants were to pay $1.25 per cord therefor in monthly payments, and that they should have four years from the date of the contract within which to cut and take the timber. The trial court held that the contract, being for a greater time than one year, and concerning real estate, and not signed by the parties, or any memorandum thereof signed by the parties, was contrary to the statute of frauds and void, and so instructed the jury. It is this ruling that is attacked by appellants’ first and second assignments of error.

There is a conflict of authority on the question of whether the sale of growing timber is a sale of realty. In Maryland, Massachusetts, Gonnecticut, Maine, and Kentucky the courts seem to have held that a parol contract for the sale of growing timber is not within the statute of frauds. Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449; Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Claflin v. Carpenter, 4 Metc. (Mass.) 580, 38 Am. Dec. 381; Nettleton v. Sikes, 8 Mete. (Mass.) 34;- Bostwick v. Leach, 3 Day (Conn.) 476; Erskine v. Plummer, 7 Me. (7 Greenl.) 447, 22 Am. Dec. 216; Cutler v. Pope, 13 Me. 337; Cain v. McGuire, 13 B. Mon. (Ky.) 340; Byassee v. Reese, 4 Mete. (Ky.) 372, 83 Am. Dec. 481.

In the case first cited the court quotes with approval from 1 Greenleaf, 55, as follows: “In contracts for the sale of things annexed to and growing upon the freehold, if the vendee is to have a right to the soil for a time, for the purpose of a farther growth and profit of that which is the subject of sale, it is an interest in land, within the meaning of the fourth section of the statute of frauds, and must be proved by writing; but, where the thing is sold in prospect of separation from tlie soil immediately, or within a reasonable and convenient time, without any stipulation for the beneficial use of the soil, but with a mere license to enter and take it away, it is to be regarded as substantially a sale of goods only, and so not within that section of the statute, although an incidental benefit may be derived to the vendee from the circumstance that the thing may remain for a time upon the land.”

The facts in that case were that the owner of the land verbally sold all the growing trees thereon which measured 18 inches and upward across the stump, and the price and dates when payments of the purchase money were to be made were specified. It does not appear that any time was fixed within which the timber was to be removed. The court, while holding that the contract was not within the statute of frauds, says: “That decision [Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104], delivered in 1853, established the law in Maryland to be that a parol sale of growing timber is not within the fourth section of the statute of frauds, and though many, perhaps most, of the courts of last resort in other states of the Union have taken the opposite view, we have no disposition to unsettle a doctrine that has been accepted, and not questioned, in Maryland for more than forty years.”

In Gain v. McGuire, 13 B. Mdn. (Ky.) 340, and Byassee v. Reese, 4 Mete. (Ky.) 372, 83 Am. Dec. 481, it was held by the Supreme Court of Kentucky that the sale of trees growing upon land, made in prospect of immediate separation from it, is not a sale of land or any interest in it, and is not within the statute of frauds. The first of these decisions was made in 1852, and the latter in 1863. However, in a case decided as late as 1903 the Kentucky Supreme Court, in Wiggins v. Jackson, 73 S. W. 779, ruled that standing timber is a part of the realty, and that a verbal sale thereof, not being in contemplation of immediate separation, the purchaser being allowed two years within which to remove the same, was within the statute and void. This question has been decided in Texas in only two cases; both decisions being rendered by this court, and writs of error denied. One is the case of Burkitt v. Wynne, 132 S. W. 816, decided in 1910. The question was solely one of venue; but, as the contract sued upon was for the sale of growing timber, it was necessary for the court to decide whether such a contract was one for the sale of land. The opinion on this point is as follows: “The sale of growing timber, with the right of ingress and egress for ten years for the purpose of cutting and removing the timber, is a sale of an interest in land that can pass only by deed or grant.”

In 1911 the same conclusion was reached in Adams v. Hughes, 140 S. W. 1163; writ of error denied. The contract in that case was as follows: “We hereby agree to sell and deliver to said B. S. Hughes all of the timber on our lands situated in the southern part of Jasper county, Texas, at the cash price of $10.00 per acre, and to give fifteen years from that date in which to cut and remove said timber.” This court, in construing this contract, held: . “We think there can be no doubt about the contract in question, for the sale of the timber, allowing fifteen years to remove the same, was a ‘contract for the sale of real estate,’ within the meaning of subdivision 4, art. 2543, R. S., and required to be in writing. This question was left undecided in our opinion upon the former appeal (55 Tex. Civ. App. 197, 119 S. W. 135), but had since been decided by this court in Burkitt v. Wynne, 132 S. W. 816. This appears to us to be the practically unanimous holding of the - authorities.” The rule announced in Burkitt v. Wynne, Adams v. Hughes, and the Kentucky case of Wiggins v. Jackson seems to us to be in accord with the decisions.of a great majority of the courts of last resort in the United States. Owens v. Lewis, 46 Ind. 489, 15 Am. Rep. 295; Armstrong v. Lawson, 73 Ind. 498; Cool v. Peters, 87 Ind. 531; Terrell v. Frazier, 79 Ind. 473; Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19; Richbourg v. Rose, 53 Fla. 173, 44 South. 69, 125 Am. St. Rep. 1061, 12 Ann. Cas. 274; High v. Jasper, 57 Fla. 437, 49 South. 156; Elsberry v. Sexton, 61 Fla. 162, 54 South. 592; Garner v. Mahoney, 115 Iowa, 356, 88 N. W. 828; Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; Walton v. Lowrey, 74 Miss. 484, 21 South. 243; McKenzie v. Shows, 70 Miss. 388, 12 South. 336, 35 Am. St. Rep. 654; Kileen v. Kennedy, 90 Minn. 414, 97 N. W. 126; Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173; Howe v. Batchelder, 49 N. H. 204; Slocum v.Seymour, 36 N. J. Law, 138, 13 Am. Rep. 432; Green v. Armstrong, 1 Denio (N. Y.) 556; McGregor v. Brown, 10 N. Y. 114; Warren v. Leland, 2 Barb. (N. Y.) 613; Pierrepont v. Barnard, 5 Barb. (N. Y.) 371; Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90, 19 L. R. A. 721, 40 Am. St. Rep. 641; Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Pattison’s Appeal, 61 Pa. 294, 100 Am. Dec. 637; Buck v. Pickwell, 27 Vt. 158; Daniels v. Bailey, 43 Wis. 566; Seymour v. Cush way, 100 Wis. 580, 76 N. W. 769, 69 Am. St. Rep. 957; Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521; Brown v. Gray, 68 W. Ya. 555, 70 S. E. 276.

In accordance with the previous decisions of this court, and with the authorities above cited, we hold that growing trees are a part of the realty, and that a verbal sale thereof which does not contemplate their immediate separation from the soil is within the fourth subdivision of article 3965, Revised Statutes 1911 (old article 2543), and that the contract of sale under discussion was void. The court, therefore, did not err in so instructing the jury. But we are not prepared to assent to the conclusion of the learned trial judge that the contract was void because it was not to be performed within the space of one year from the date it was made. By the terms of the contract the defendants were allowed four years within which to remove the timber. There was no provision that the contract was not to be performed within a year. A maximum time was fixed in which the contract should run; but no minimum time was prescribed requiring the contract to run for a space exceeding one year. To bring the contract within the statute, it must appear from the contract itself that it was not to be performed within a year. Thouvenin v. Lea, 26 Tex. 614; Lennard v. Texarkana Lumber Company, 46 Tex. Civ. App. 402, 94 S. W. 383; Clark v. Reese, 26 Tex. Civ. App. 622, 64 S. W. 783; Railway Co. v. Wood, 88 Tex. 191, 30 S. W. 859, 28 L. R. A. 526; Warner v. T. & P. Ry. Co., 164 U. S. 418, 17 Sup. Ct. 147, 41 L. Ed. 495.

Our conclusion that standing timber is realty, and that a verbal sale thereof which does not contemplate its immediate removal is in contravention of the statute of frauds, settles this appeal adversely to the appellants; and the judgment of the court below must therefore be affirmed, and it has been so ordered.

Affirmed.


author: HARPER, C. J.

text:
    JACKSON et al. v. BLAIR.
    (Court of Civil Appeals of Texas. El Paso.
    March 26, 1914.
    Rehearing Denied April 16, 1914.)
    1. Pleading- (§ 248) —- Trial Amendment — ' New Cause of Action.
    Where a broker sued for commissions for selling a ranch on an express contract to pay him the balance of the price above $20,000, alleging that he sold the ranch for $25,000, a trial amendment setting up a claim on a quantum meruit stated a new cause of action, and was not authorized under Rev. St. 1911, art. 1824, providing that amendments to pleadings must be filed under leave of court before the parties announce ready for trial.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 686, 687, 689-7Ó6, 708%, 709; Dec. Dig. § 248.]
    2. Brokers (§ 82) — Action for Commissions —Pleading and Proof — Variance:
    Plaintiff, a broker, sued for commissions on the sale of a ranch, alleging an express contract to pay him the balance of the price over $25,000, and that he procured an enforceable contract for the sale of the ranch for $25,000; that he was the procuring cause of the sale, and was entitled to his commissions, whether the title to certain sections of the ranch failed or not. At the trial he testified that he knew before he undertook to sell the land that he must sell the entire ranch, including the sections to which the title was defective, and that, unless the title to those sections could be cleared, the ranch could not be sold for the price. Held, that plaintiff did not prove the case alleged, and was therefore not entitled to recover anything for his services.
    [Ed. Note. — Eor other eases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.]
    Appeal from District Court, Pecos County; W. G. Douglas, Judge.
    Action by defendant W. S. Blair against H. M. and O. B. Jackson. ' Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    J. E. Woodson, of El Paso, and Howell Johnson and John R. Storms, both of Et. Stockton, for appellants. J. D. Martin and W. Van Sickle, both of Alpine, and Geo. Thurmond, of Del Rio, for appellee.

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

   HARPER, C. J.

This suit was brought by W. S. Blair against H. M. and O. B. Jackson, in which the appellee sought to recover the sum of $5,000 upon an express contract that he was to receive from the sale of the INK ranch all over the sum of $20,000 for which the ranch might be sold; said Blair being a real estate broker, and the appellants, H. M. and O. B. Jackson, being the owners of the ranch.

The appellants entered into an enforceable contract for the sale of the ranch to one Dr. J. P. Sparks about the 8th day of December, 1909, for the sum of $25,000. At the time of the signing of the contract, about 6% sections of the land were in controversy in reference to the title. Simultaneously, and in the same contracts made between the Jacksons and Sparks, it was agreed that the sum of $7,000 of the consideration of $25,-000 should not be paid, unless the title to the 6% sections of land was cleared by the Jacksons.

Appellee sued for the sum of $5,000, basing his recovery upon a contract that he was to receive all over the sum of $20,000 for which the ranch should be sold. The appellants answered in substance that, if any contract was made by and between plaintiff and defendants, at the time of making the contract for commissions on the ranch, that the plaintiff was informed by defendants that the title to 6% sections of the land was in controversy, and that they would only make contract with the plaintiff on the consideration that he should receive all over $20,000 which he might be able to sell the ranch for, and no consideration, unless it brought over this sum.

After the evidence was all in, the court permitted appellee to file, over the objections of appellants, a trial amendment in which he alleged that any defect in title to any of the lands was not caused by plaintiff ; that the defects were known to defendants, and, notwithstanding the defects, plaintiff was employed by defendant to find a purchaser, which he did, and the lands were sold for $25,000; that it was not his fault title failed; that a contract of sale was executed to purchaser found by him, who was ready and able to take the property; therefore he was entitled to the $5,000 agreed upon; and in second count set up a recovery upon the plea of quantum meruit, 5 per cent, being reasonable value of services. The jury returned a verdict for the sum of $980, $80 of which was afterwards remitted by the appellee. Defendants in due time filed motion for new trial, which was overruled, and in open court gave notice of appeal.

Appellee, W. S. Blair, testified to the following facts, upon which he relies for a recovery in this cause: “H. M. Jackson was at my house, and X asked him with regard to the price that we should fix for it, and he priced it to me at $25,000, and agreed that I should have a commission of whatever the ranch brought over $20,000. I asked him to designate the sections and their numbers, and he told me that he had 16% sections of land. I got the map, and he pointed them out to me. I accepted the proposition. In November, 1909, 1 met Dr. Sparks, who told me that he wished to buy a ranch. I showed him Mr. Jackson’s ranch, and I got Jackson over the telephone and told him that I had buyers with me. We met Mr. Jackson at Monahans, and I introduced them. * * * [Other matters leading up to the sale.] The price of the INK. ranch made to Dr. Sparks was $25,000, and he was willing to give it, and afterwards entered into a written contract in March, 1910. X knew that lie Fever was claiming 6% sections of the ranch, and that they were a part of what I was selling. I told Dr. Sparks that there was some trouble about these sections. I told him that the Jacksons thought they could recover them, and that I did too. Yes; I knew before I undertook to sell the land that I must sell the entire ranch, including the 6% sections in dispute, for more than $20,000 before I was entitled to any .commission. I understood that unless these 6% sections could be cleared up in title that the ranch could not be sold for $25,000. There was nothing said by Mr. Jackson in regard to reduction of price in ease of failure of title to any part of the land.”

Briefly stated, appellant’s four assignments of error charge that the court erred (a) in permitting appellee to file trial amendment after all the evidence was in, under the original pleadings, setting up a claim of quantum meruit; (b) in permitting appellee to testify to the reasonable value of the services performed when the evidence showed that, if he had a contract as real estate agent to sell the lands, it was an express contract that he should sell the entire ranch for more than $20,000, and that his compensation for services was to be all over that amount which the ranch in its entirety should bring.

In the matter of allowing amendments to pleadings, pending a trial, to meet the proof, the courts of the state have established the rule (interpreting that portion of article 1824, Rev. Civil Stat. 1911, which reads: “All amendments to pleadings * * * must ■* * * be filed under leave of court * * * before the parties announce ready for trial”) that the trial judge should allow the amendment, if it appears that the new matter to be pleaded was not known to the party when he filed his pleadings, and that it raises no new issue in the ease, and that, to meet the ends of justice, the amendment is necessary. Gwinn v. O’Daniel et al., 5 Tex. Civ. App. 112, 23 S. W. 850. It cannot be said that plaintiff did not know about the new matter pleaded, and that it raises a new issue there can be no question, so it was error for the trial court to permit the trial amendment to be filed.

It matters not whether it was error to permit the amendment to be filed, for a proper construction of the contract as testified to by the appellee quoted above would not permit him to recover under either of his pleadings.

While he pleads that, if he was the procuring cause of the sale, he was entitled to his compensation, whether the title to the 6% sections failed or not, he testified that he knew before he undertook to sell the land that he must sell the entire ranch, including the 6% sections, for more than $20,000 before he was entitled to any commissions, and that, unless the 6% sections could be cleared up, the ranch could not be sold for the price. He therefore did not prove his case as he alleged it; therefore he is not entitled to recover anything for his services.

The cause is therefore reversed and rendered for appellant.

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


author: RAINEY, C. J.

text:
    JONES v. MYERS et al.
    (Court of Civil Appeals of Texas. Dallas.
    April 4, 1914.)
    Damages (§ 228) — Harmless Eekob — Admission oe Evidence.
    Any error in admitting testimony and refusing charges as to an item of $21.50 were harmless, where such item was remitted by ap-pellee.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 576-579; Dec. Dig. § 228.]
    Appeal from Yan Zandt County Court; C. L. Stanford, Judge.
    Action by Fletcher Jones against Elijah and Sam Myers. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    T. R. Yantis, of Canton, for appellant. L. Davidson and M. G. Sanders, both of Canton, for appeilees.

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

   RAINEY, C. J.

Suit by appellant against appellees to recover on a promissory note ¿nd to foreclose a mortgage. Appellees plead payment of the note, and, in addition, $21.50 over and above the amount of the note. A trial resulted in a judgment in favor of ap-pellees for $21.50), which was remitted, and appellant prosecutes this appeal.

Two of appellant’s assignments relate to the court’s action in admitting testimony and refusing a special charge, which pertains to the item of $21.50. As that amount ivas remitted by appellant, the assignments are without merit. The other assignments complain of the sufficiency of the evidence to support the judgment.

The evidence shows that the note was paid off and discharged.

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