text:
    BRADFIELD v. STATE.
    (No. 2926.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Threats (§ 1) — Elements of Offense— Statutory Provisions.
    Pen. Code 1911, art. 1182, providing that if any person shall send, or cause to be sent, deliver, or cause to be delivered, to any other person any anonymous letter reflecting upon the integrity, chastity, virtue, etc., of such person or any other person, the person so “sending” the letter shall be guilty of a misdemeanor, is violated where the writer of the letter himself delivers it to the person to whom it is addressed, ,in view of Code Or. Proc. 1911, art. 25, requiring its provisions to ,be liberally construed to attain the object intended; Rev. St. 1911, art. 5502, subd. 6, requiring the court to look to the intention of the Legislature; Pen. Code 1911, art. 9, requiring that Code and all other criminal laws to be construed according to the plain import of the language without regard to the usual distinction between penal and other laws; and article 10, providing that words specially defined shall be understood in that sense, and other words in the sense in which they are understood in common language.
    [Ed. Note. — Eor other cases, see Threats, Cent. Dig. §§ 1-6; Dee. Dig. § 1.]
    2. Statutes (§ 178) — Construction—Statutory Rules of Construction.
    Rev. St. 1911, art. 5502, prescribing rules for the construction of civil statutory enactments, applies and is of binding force in criminal prosecutions.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 257; Dec. Dig. § 178.]

      3. Threats (§ 5) — Complaint—Letters.
    Under Pen. Code 1911, art. 1182, making it a misdemeanor to send an anonymous letter “reflecting” on the integrity, chastity, etc., of any person, a complaint and information charging the sending of a letter which “reflects” upon a person named was not defective.
    [Ed. Note. — For other cases, see Threats, Cent. Dig. §§ 9, 10; Dec. Dig. § 5.]
    4. Threats (§ 5) — Complaint — Sending Anonymous Letter.
    A complaint and information for sending an anonymous letter reflecting upon a person’s integrity, chastity, etc., need not contain the letter, in view of Code Cr. Proc. 1911, art. 453, requiring only such certainty as will enable accused to plead the judgment in bar of another prosecution; article 460, providing that it shall be sufficient to charge the offense in ordinary and concise language and with such certainty as will give defendant notice of the offense charged and enable the court to pronounce judgment; and article 474, providing that it is sufficient to use other words conveying the same meaning as the words used in a statute or including the sense of the statutory words.
    [Ed. Note. — For other eases, see Threats, Cent. Dig. §§ 9, 10; Dec. Dig. § 5.]
    5. Witnesses (§ 352) — -Impeachment—Character and Conduct oe Witness.
    On a trial for delivering to a 15 year old girl an anonymous letter reflecting on her integrity, chastity, etc., evidence that on the night before the delivery of the letter accused was seen hugging and kissing such girl was properly excluded, in the absence of any showing that this was with her consent or permission, as otherwise such conduct would not have reflected on her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1152; Dec. Dig. § 352.]
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    E. D. Bradfield was convicted of an offense, and he appeals.
    Affirmed.
    Walker & Burleson, of San Saba, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted for delivering to Miss Alma Walker, a young 15 year old girl, an anonymous letter, and his punishment assessed at the lowest prescribed by law.

The statute is: “Article 1182. If any person shall send, or cause to be sent, deliver, or cause to be delivered, to any other person any anonymous letter or written instrument of any character whatsoever, reflecting upon the integrity, chastity, virtue, good character or reputation of the person to whom such letter or written instrument is sent or addressed, or of any other person, or wherein the life of such person is threatened, said person so sending such letter or written instrument shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than two hundred and fifty dollars nor more than one thousand dollars, and .by imprisonment in the county jail for not less than one month nor more than twelve months.” The complaint and information allege: That on August 1, 1913, appellant “did then and there unlawfully send and deliver to Miss Alma Walker, an anonymous letter, typewritten in the Spanish or Mexican language, which said letter, according to its words and tenor reflects upon the chastity, virtue, good character and reputation of the said Miss Alma Walker, to whom said letter was sent and delivered and intended for.”

The uncontradicted evidence shows that, at the time and place alleged, appellant himself wrote and delivered to Miss Walker a typewritten letter in the Spanish or Mexican language, which reflected upon her in the particulars specified. No name was signed or written thereto, except this: “From 5, 4, 2, in the alphabet.” The figures 5, 4, 2 in the alphabet are the initials of appellant. The letter was produced, identified, and introduced in evidence. It was shown to be in the Spanish or Mexican language. It was translated by two competent witnesses and without question reflected upon Miss Walker, as stated above.

Appellant contends ¿that the indictment was invalid, because, under the terms of the statute, as he contends, no punishment was fixed where the writer himself delivered such letter, contending that because the article of the Code above quoted says said person so sending such letter shall be punished, and that the statute does not prescribe any punishment for one who himself delivers such letter.

In our opinion appellant’s contention cannot be sustained. We think that the true construction of said article, and the undoubted intention of the Legislature, was, not only to make it unlawful for any person to deliver or cause to be delivered any such letter, as well as to send or. cause it to be sent, and that where said act says, said person so sending such letter; does not exclude but embraces one who delivers it or causes it to be delivered as well as one who sends or causes it to be sent.

The undoubted rule of construction applicable to this question is well established, as laid down by 2 Lewis’ Sutherland, Statutory Construction, §§ 589 and 590, as follows:

"“The modern doctrine is that to construe a statute liberally, or according to its equity, is nothing more than to give effect to it according to the intention of the lawmaker, as indicated by its terms and purposes. This construction may be carried beyond the natural import of the words when essential to answer the evident purpose of the act; so it may restrain the general words to exclude a case not within that purpose.
“There is no arbitrary form of words to express any particular intention; the intent is not identical with any phraseology employed to express it. Any language is but a sign, and many signs may be used to signify the same thing. In statutes, the sense signified is the law; the letter is but its servant or its vehicle. Language is so copious and flexible that when general words are used there is an absence of precision, and all words and collocations of words admit of more than one interpretation. In the- construction of remedial statutes, while the meaning of the words is not ignored, it will be subordinated to their general effect in combination in a whole act or series of acts, read in the light of all the pertinent facts of every nature of which the •courts take judicial notice. Liberal construction of any statute consists in giving the words a meaning which renders it more effectual to accomplish the purpose or fulfill the intent which it plainly discloses. For this purpose, the words may be taken in their fullest and most comprehensive sense. Where the intent of the act is manifest, particular words may have an effect quite beyond their natural signification in aid of that intent.”

But, in addition to this common-law rule of construction, our own statutes and decisions especially are applicable. Article 25, C. O. P., is: “The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression, and punishment of crime.”

Article 5502 (8268) of our Revised Civil Statutes is: “The following rules shall govern in the construction of all civil statutory enactments: * * * (6) In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times, the old law, the evil and the remedy.” As frequently held by this court, said article of the Revised Statutes, “though embraced in the Civil Statutes, is, in our opinion,, equally as applicable,' and of binding force in criminal prosecutions.” Murray v. State, 21 Tex. App. 630, 2 S. W. 760, 57 Am. Rep. 623. To the same effect are articles 9 and 10 of the Penal Code. Taking all these together, it is clear, as has frequently been held by this and our Supreme Court, that all penal statutes shall be liberally construed, and that the old or common-law rule that they will be strictly construed has been abrogated. The Road Cases, 30 Tex. 503; Ex parte Gregory, 20 Tex. Cr. App. 210, 54 Am. Rep. 516; Ex parte Garza, 28 Tex. App. 381, 13 S. W. 779, 19 Am. St. Rep. 845.

In Chapman v. State, 16 Tex. App. 78, this court said: “When the intention of a statute is plainly discernible from its provisions, that intention is as obligatory as the letter of the statute, and will even prevail over the strict letter. Brooks v. Hicks, 20 Tex. 666; Forshey v. Railroad Co., 16 Tex. 516. A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter is not within the statute unless it be within the intention of the makers. Holmes v. Carley, 31 N. Y. 290; Chase v. Railroad Co., 26 N. Y. 523. In ■construing a statute the principal object should be to arrive at the intention of the Legislature. Such construction ought to be given the statute as will best answer the intention which its makers had in view. Whenever the intention can be discovered, it ought to be followed, although it may seem to be contrary to the letter of the statute. People v. Utica Ins. Co., 15 Johns. (N. Y.) 358, 380, 8 Am. Dec. 243; Sedg. on Con. & Stat. Law, p. 225 et seq.; Potter’s Dwarris on Stat. p. 174 et seq.”

In Sartain v. State, 10 Tex. App. 653, 38 Am. Rep. 649, this court said: ‘“Courts are not confined to the literal meaning of the words employed, in the construction of statutes, but, as was said in Burgett v. Burgett, 10 Rep. 221, the intention of the lawmakers may be collected from the cause or necessity of the act; and statutes are sometimes contrary to the literal meaning of the words. It has been decided that a thing within the letter was not within the statute unless within its intention. The letter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. 4. Bac. tit. Statute, 1, §§ 38, 45, 50. Every statute should be construed with reference to its object, and the will of the lawmakers is best promoted by such a construction as secures that object and excludes every other.’ Castner v. Walrod, 83 Ill. 171 [25 Am. Rep. 369]; Walker v. State, 7 Tex. App. 245 [32 Am. Rep. 595].”

In Whisenhunt v. State, 18 Tex. App. 496, this court said: “It is a well-settled rule of statutory construction ‘that the intent and meaning should be followed although it may seem to be contrary to the letter of the statute.’ Sedgwick on Statutory 'Construction, 256. ‘Statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute.’ Id. p. 313; [Staniels v. Raymond] 4 Cush. (Mass.) 314; Wilson v. Ireland, 4 Md. 444.”

In Albrecht v. State, 8 Tex. App. 314, this court said: “If a reasonable construction of the language would tend to effectuate this purpose (the legislative intent), and another construction equally as reasonable would have a contrary tendency, under well-established canons of construction courts should not hesitate in choosing the former to the exclusion of the latter. Intention frequently controls express language in the construction of a statute. Walker v. State, 7 Tex. App. 245 [32 Am. Rep. 595].” “The intention of the Legislature in enacting a law is the law itself.” Edwards v. Morton, 92 Tex. 153, 46 S. W. 793.

It is needless to cite the many other decisions from this court and our Supreme Court to the same effect.

Appellant’s other objection to. the complaint and information is, because they allege said letter “reflects” upon the chastity, virtue, good character and reputation of the said Miss Alma Walker, whereas, the statute says “reflecting.” This is very hypercritical and, of course, presents no cause to hold the pleading bad.

Another contention of appellant is that the complaint and information are fatally defective in that they do not contain the said letter. In our opinion it was unnecessary to copy the letter in either the complaint or information. Article 470, P. C., prescribes that if any person shall go into or near any public place, etc., and shall use loud and vociferous or obscene, vulgar, or indecent language, swear or curse, or yell or shriek, etc., in a manner calculated to disturb the inhabitants, shall be fined, etc. This court expressly held, in Foreman v. State, 31 Tex. Cr. R. 479, 20 S. W. 1109, that it was unnecessary to allege what the language was; that following the statute was sufficient. In Jones v. State, 35 Tex. Cr. R. 565, 34 S. W. 631, Glass v. State, 23 Tex. App. 425, 5 S. W. 131, and Satchell v. State, 1 Tex. App. 43S, this court held that in prosecutions for the fraudulent disposition of mortgaged property it was not necessary- that the indictment set out the mortgage by its tenor, or by an exhibited copy.

Article 453, C. C. P., is: “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.”

Article 460, O. C. P., is: “An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as- to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.”

Article 474, O. C. P., is: “Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient .to use other words conveying the same meaning, or which include the sense of the statutory words.”

It has many times been held by this court that, when an indictment charges the offense substantially in the language of the statute, this is all that is necessary. Judge White says: “It will generally be sufficient if the indictment follows the exact words of the statute, and it is rarely ever safe to depart from them.” Section 344, subd. 2, of his C. O. P. Ann.

In his motion for new trial, appellant has some complaints to the court’s charge, and he also requested one charge which was refused. These matters are not raised in such a way that this court is authorized to review them, under a uniform and large number of decisions. Giles v. State, 148 S. W. 320; Mealer v. State, 145 S. W. 354; Cabiness v. State, 146 S. W. 934; Gowans v. State, 64 Tex. Cr. R. 401, 145 S. W. 614; Smith v. State, 145 S. W. 918; Lutrall v. State, 64 Tex. Cr. R. 411, 142 S. W. 589; Perkins v. State, 144 S. W. 244; Golden v. State, 146 S. W. 946; Yarborough v. State, 147 S. W. 270; Milan v. State, 146 S. W. 185; Gamble v. State, 146 S. W. 551; Staten v. State, 63 Tex. Cr. R. 592, 141 S. W. 526; section 813, subd. 6, Wh. C. C. P.

Appellant. complains that the court would not permit his witness Miss Viola Mat-lock to testify that, on the night before appellant delivered to Miss Walker said letter, she (the witness) was returning from church in company with Rick Woods and that about a mile and a half from the church she saw defendant hugging and kissing Miss Walker. We think there was no error in excluding this testimony. It was not sought to show by this witness that appellant hugged and kissed Miss Walker with her consent or permission. If he did so without her permission or by force, such conduct, in no event, would have reflected on Miss Walker. On i.cross-examination, by appellant, Miss Walker | testified that she did not let the defendant so treat her the night before, or any other time, and his letter to her would indicate that if he attempted to so mistreat her she resented it and he bore marks of her resentment on his person, for he said to her in the letter, “Dog gone, but I have a blue spot where you hit me to-night.”

We have not taken up, in the order presented by appellant, his contentions, or each of them, separately; but we have considered them all, and they are embraced and passed upon by what we have said in this opinion.

There is no reversible error shown, and the judgment will be affirmed.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    CAPSHAW v. STATE.
    (No. 3077.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Witnesses (§ 337) — Impeachment — Character of Witness.
    The court should not have permitted the district attorney to ask defendant, in a prosecution for seduction, if he had not left another county because indicted for rape on a certain girl, when the attorney at the time was aware that no such indictment had ever been presented, or arrest made.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142,' 1146-1148; Dec. Dig. § 337.]
    2. Witnesses (§ 344) — Impeachmenit Character of Witness.
    Proof that a witness had left another county because he had carried a pistol was not admissible for the purpose of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.]
    3. Witnesses (§ 340)--Impeachment — Character oe Witness. •
    Where, in a prosecution for seduction, the district attorney asked one of defendant’s witnesses if he had not left another county her cause he carried a pistol, and if he had not so stated to a third party, it was error to permit the attorney to call such third party to contradict the witness; such evidence not being admissible for impeachment.
    [Ed. Note. — Por other eases, see Witnesses, Cent. Dig. §§ 1ÍÍ6, 1117, Í119, 1121; Dec. Dig. § 340.]
    4. Ceiminal Daw (§ 780) — Teiax-Unstbuc-tions — Testimony ojp Accomplice.
    In a prosecution for seduction, a charge upon the testimony of an accomplice, “that the -corroborating evidence need not be direct and positive, independent of the testimony of [the accomplice], but proof of such facts and circumstances as tend to support her testimony, and which satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense,” etc., was not erroneous.
    [Ed. Note. — Por other cases, see Criminal Daw,-Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Angelina County; D. D. Guinn, Judge.
    Robert Capshaw was convicted of seduction, and hie appeals.
    Reversed and remanded.
    Mantooth & Collins, of Dufkin, and W. P. Ramsey and C. D. Black, both of Austin, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, J.

This conviction was for seduction; the punishment being eight years in the penitentiary.

The court, at the request of the district attorney, gave the following charge: “You are further, charged in connection with the main charge as to Eula Scroggins being an accomplice, and that her testimony must be corroborated by other testimony tending to connect the defendant with the offense charged: That the corroborating evidence need not be direct and positive, independent of the testimony of the said Eula Scroggins, but proof of such facts and circumstances as tend to support her testimony, and which satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction as hereinbefore defined to you (and which tend to connect the defendant with the commission of the offense charged), will fulfill the requirements of the law.” Several objections were urged to this charge. Among others, that it was on the weight of the evidence as well as its tendency to emphasize and give undue importance to the issue of corroboration, and had the effect to lead the jury to believe that in the opinion of the court the witness was sufficiently corroborated. We are of opinion the exceptions to this charge are well taken. Pirst, that it is on the weight of the evidence, and, second, that it emphasizes and gives undue importance to the issue of corroboration, and had the effect to lead the jury to believe, as.contended by appellant, that the witness was sufficiently corroborated. The rule laid down as to corroboration in the case is not the correct one. Quoting from the charge, we find this language: “The. corroborating evidence need not be direct and positive, independent of the testimony of said .Eula Scroggins, but proof of such facts and circumstances as tend to support her testimony.” Under the authorities this rule has been condemned, and in recent eases. The usual criterion by which the testimony of an accomplice is to be weighed, valued, or corroborated is that, in order to be sufficient, the facts and circumstances must corroborate the accomplice, independent of her testimony; that is, discarding the testimony of the accomplice, if there are no facts and circumstances which tend to show the commission of the offense, or to sustain her testimony which is independent of her testimony, the corroboration is not sufficient. But the court here tells the jury that it is not necessary that it be independent of her testimony. In other words, it may be dependent upon her testimony. In a certain sense this may b® true; that is, her testimony must be corroborated by the facts, and they must so adjust themselves as to in fact corroborate the accomplice as required by the statute, but her testimony, or the testimony dependent upon her testimony, cannot be used as corroboration. It must come from an undefiled and outside source, and not from the accomplice’s testimony. If testimony that was dependent upon her testimony could be used as corroboration, then the statutory rule that her testimony must be corroborated would be set at naught. Without following up this matter we cite Curry v. State, 151 S. W. 319; Bishop v. State, 151 S. W. 821; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; James v. State, 167 S. W. 727, decided at the present term of the court. Also as bearing upon these suggestions of the error in the charge, see Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583; Lemmons v. State, 58 Tex. Cr. R. 269, 125 S. W. 400; Garlas v. State, 48 Tex. Cr. R. 451, 88 S. W. 345. These seem to be a sufficient number of cases to sustain the proposition that the court’s charge was error without going further into the case.

Another bill of exceptions recites that the district attorney propounded to the defendant while he was upon the witness stand the following question: “Is it not a fact that you left Rains county because you were indicted for rape or assault to rape on. Zoe Wells, and did you not so state or tell Ed Shofner?” Various objections were urged to this question. The witness, answered: “I was not indicted in Rains county for rape or assault to rape on Zoe Wells, nor did I ever tell Ed Shofner that I was indicted for rape or assault to rape on this girl.” The grounds of objection were renewed, and the bill of exception reserved. This bill of exception is well taken, and the court should have sustained the objections. It is stated in' the bill of exception that the district attorney was. aware at the time he ashed the I question that no such indictments had ever been presented, and no arrest had ever been made, or charge against the appellant, and under those circumstances the court should not have permitted the district attorney to ask such, questions. The authorities, we think, upon this question are ample. See Ballard v. State, 160 S. W. 716; Branch’s Crim. Law, § 867; Clements v. State, 153 S. W. 1137. Judge Harper, writing the opinion in the Clements Case, says: “In another bill it is claimed that the state asked certain questions to prejudice the jury against witnesses for defendant; the state’s attorney knowing at the time that no grounds existed upon which to base such questions.” In the ease at hand the bill recites the district attorney knew there was nothing upon which to base the question, inasmuch as no such things had occurred in Bains county. This was the defendant testifying in the case, and if, as a matter of fact, appellant had been indicted for rape or assault to rape, it might have been used as a means of impeaching him, or attacking his credibility; but, as no such thing occurred, and the district attorney had knowledge of the fact, the court should not have permitted this question, as it was calculated, to injure the rights of the defendant before the jury. This sort of testimony should never be permitted to go to the jury when it is known that it did not occur, and proof could not be made of the charges for the supposed felonious conduct.

Another bill of exception recites that, when the witness C. G. Capshaw was testifying for the defendant, on his cross-examination, he was asked whether or not he had left Bains county because he had carried a pistol, and whether or not said witness had told John Hubbard that he (said witness) had left Bains county because he had to carry a pistol, and whether or not he had shown him signs of rust on his clothing where he had carried a pistol in Bains county. Various objections were urged to this manner of cross-examination of the witness, and the witness could not be attacked by showing that he had carried a pistol, even if he had carried one; that it would tend to prejudice the jury against the weight and credibility of the testimony of said witness given in behalf of his son, defendant. The court overruled these objections and permitted him to testify denying that he had made any such statement The court signs this with the statement that, by referring to the statement of facts on this subject, and further, the witness said that Hubbard would not testify to any such thing. The qualification does not seem to assist in clearing the matter. The fact that Hubbard would not testify to any such thing would have been an urgent reason why the question should not have been permitted, or the answer given. ■ The question was based upon the- idea that the witness had stated to John Hubbard that he had carried the pistol. Now, if John Hubbard would deny, as stated by the judge in his qualification that he would do, that he had made such statements, it would have presented to the court a very strong reason why the question should not have been asked,' or the answer given. In the first place the witness could not be attacked by proof that he carried a pistol, and in the next place the question shows that the impeachment was to be drawn from Hubbard, and the court qualified the bill by stating Hubbard would not so testify. In view of this, the' court should have sustained the objection and excluded the testimony.

Another bill which might be considered in the same connection was that Hubbard was permitted to testify that the same witness, O. C. Capshaw, had told him that he had left Bains county because he had to carry a pistol, or words to that effect, and that he (Capshaw) had shown him (John Hubbard) his clothing which had rust on them, and the rust was the result of carrying a pistol when he was in Bains county. Objection was made to this for various reasons set out in the bill, and the court overruled the objections, and the witness was permitted to testify that the witness Capshaw had told him (Hubbard) that- he (Capshaw) “had to tote a pistol” while he was in Bains county on account of some threats or something of that kind, and he showed him his clothing too, etc. The court qualifies this by referring to the statement of facts and C. C. Capshaw’s and Hubbard’s evidence on the subject. The statement of facts shows, in substance, what the bill of exception shows— that Capshaw was a witness for the defendant, who was his son, and the predicate was laid and the question was asked with reference to carrying the pistol, under the circumstances detailed, while in Bains county, and it was denied, and Hubbard was placed on the stand to and did contradict him. Under all the authorities this evidence was inadmissible. Carrying a pistol involved neither legal nor moral turpitude, and it was wholly immaterial in this case, and could only go to the prejudice of appellant in attacking his witness, who was his father and one of his important witnesses. We deem it unnecessary to cite cases in support of this.

For the reasons indicated, the judgment is reversed, and the cause is remanded.

PER CURIAM.

The majority of this court does not believe the quoted charge is erroneous, but comes within the rule laid down in the case of Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006.


author: RAINEY, C. J.

text:
    TEXAS TRACTION CO. v. SHERRON.
    (No. 7146.)
    (Court of Civil Appeals of Texas. Dallas.
    May 2, 1914.
    Rehearing Denied May 23, 1914.)
    1. CARRIERS (§ 318) — Injury to Passenger— Unsaite Flag Station — Negligence—Evidence.
    Evidence in an action for injury to one about to lake passage on defendant’s car at a flag station, at a highway crossing, through falling, because of the rough condition of the crossing, in front of the car, held suflicient to authorize a finding of negligence in not using proper care to keep the station premises in proper condition.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dee. Dig. § 318.]
    2. Carriers (§ 318) — Injury to Passenger-Proximate Cause — Evidence.
    As respects the question whether such an accident should have been reasonably anticipated, evidence as to condition of the highway crossing. where a railroad had a flag station, held to authorize a finding that its negligence, in not having it in proper condition, was the proximate cause of injury to one waiting to take passage, who fell before an approaching car.
    [Ed. Note. — For other cases, see Carriers, Cent? Dig. §§ 1270, 1307-1314; Dee. Dig. § 318.]
    3. Carriers (§ 346) — Injury to Passenger-Contributory Negligence — Evidence.
    Evidence in an action for, injury to one about to take passage at a railroad’s flag station, at a highway crossing, by being hit by the car, having, when crossing in front of it, fallen, owing to the rough surface, held to authorize a finding of freedom from contributory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dec. Dig. § 346.]
    4. Negligence (§ Í36) — Contributory Negligence-Question for Jury.
    The evidence not being such that reasonable minds would necessarily reach but one conclusion, the question of contributory negligence is for the jury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by Nellie Sherron against the Texas Traction Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Templeton, Beall & Williams, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Randell & Randell, of Sherman, for appellee.

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

   RAINEY, C. J.

Appellee was struck and injured by one of appellant’s passenger cars at a station called Holt. Appellee sued appellant. Thé cause was submitted to the jury upon special issues, and, upon the return of the verdict, judgment was rendered for ap-pellee for -54,000, from which this appeal is taken.

Appellee alleged in effect: That she went to the station to take passage on appellant’s car. That she crossed the track before the arrival of a ear, and, thinking it necessary to return, she started back, and, while using due care, she stumbled and fell on the track in front of said ear, and, before she could get out of the way, the car struck her hip, side, and thigh and threw her some 25 feet. She charges negligence in that the premises at said station were out of repair, improperly constructed, rough, and dangerous, etc., which condition caused her to stumble and fall. That in approaching said station said car was negligently operated. That the signal to stop had been given, and it was the duty to slow down said ear and have it under full control. That the operatives saw appellee fall on the track and realized her danger and failed to use the means necessary to prevent hurting her.

The jury by its verdict found that the appellant was negligent in failing to use ordinary care to keep and maintain the premises known as Holt Stop in a reasonably safe condition for the use of passengers, etc. Appellant complains that said finding is not based on any evidence, and insists that “negligence cannot be predicated on the isolated fact that an interurban railway permitted the rails of its track to extend two inches above the surface of the road crossing on a country road where it sometimes received and discharged passengers.”

The evidence shows that Holt Stop was a place where the railway crossed a public highway. The dirt was thrown up to the track, two guard rails inside of the two track rails, and the track rails extended up about two inches above the dirt. There was no plank up next to the rails to assist in the crossing. There were no approaches to the crossing, except the end of the ties and loose dirt — the common dirt thrown up there. The guard rails extended across the crossing on each side of the track. There were no planks or anything of the kind or any ballast approaching the guard rails. There was no ballast except ordinary dirt, and the approach to the rails was of white rock dug up there, and the slack just like dirt. It is a general mixture, some gravel and some dirt that has been brought there by wagon wheels, all kinds of dirt.

The foregoing evidence shows the condition of said stop, and we think it warranted the jury in finding that the appellant was guilty of negligence in not keeping the premises in proper repair. The place was a public highway crossing, which the law requires to be kept in reasonable repair. While railroads are not required to furnish depots or platforms at flag stations, yet they must use some care to keep them safe for passengers desiring to board and disembark from the train. The care imposed on appellant to keep its station at this place in proper condition was such at least as the law imposes for keeping a public road crossing in repair. Under the evidence, we cannot say the jury were not justified in finding the appellant negligent on this issue. Railway Co. v. Byas, 12 Tex. Civ. App. 657, 35 S. W. 22; Railway Co. v. Neill, 30 S. W. 369; Eichorn v. Railway Co., 130 Mo. 575, 32 S. W. 993.

Complaint is made of the jury’s answer to question No. 15, which was in effect that the negligence of appellant in not having its station in proper condition was the proximate cause of plaintiff’s injuries.

The proposition submitted is that “the railway could not reasonably anticipate that, on account of its rails extending two inches above the surface of the ground at a country crossing where it received passengers, a person intending to board its train would attempt to cross its tracks in front of a rapidly moving car and stumble over said rail and be injured, in con sequence thereof, by such car.”

The general rough, uneven condition, the loose dirt and crushed rock on the ground at the station being such as shown by the evidence, we are not prepared to say the falling of a passenger, as was done by appellee, should not have been reasonably anticipated by appellant.

The jury in effect found that appellee was not guilty of contributory negligence at the time she was struck by the car in attempting to cross the track. This finding is criticised by appellant as not being supported by the evidence.

The evidence shows that appellee and her companion were traveling in a buggy toward the station from the west, intending to take passage on a north-bound car. When they were within 150 feet of the station, the headlight of the car coming from the south was seen. When they were within 50 feet they alighted from the buggy; her companion went hurriedly to the center of the track, struck a match, and signaled the car, and the motorman answered it. Appellee followed her companion on the track, and, after signaling, her companion went back to the west side, and she went to the east side. Seeing that her companion had returned to the west side, she immediately started back to cross the track, but stumbled over the east rail and fell across the track. When she started across the car was about 150 feet away.

We would not be justified in overturning the jury’s finding, unless the evidence shows conclusively that the appellee failed to exercise proper care for her safety. The evidence, we think, does not show such a condition. When we consider the circumstances surrounding the occasion (that is, the rough and uneven condition of the ground, the distance of the car at the time, and it being in the nighttime), had she not fallen she would not have been struck by the ear and injured. At least the evidence is not such as reasonable minds would necessarily reach but one conclusion. This being the nature of the evidence, it was an issue for the jury’s determination, and their verdict will not be disturbed. On the issue of discovered peril the findings were favorable to appellant, and the judgment against it was evidently not based thereon.

There are other assignments of error, all based on the want of sufficient evidence to support the jury’s findings. We have carefully considered each one, but find no reversible error, and conclude the evidence is sufficient to support the findings.

The judgment is affirmed.


author: HODGES; J.

text:
    HESSE ENVELOPE CO. OF TEXAS v. ADDISON.
    (No. 1306.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 27, 1914.
    Rehearing Denied May 21, 1914.)
    CORPORATIONS (§ 82) — STOCK—PURCHASE OP Own Stock.
    Under an agency contract whereby plaintiff was to purchase 20 shares of the stock of defendant company at a valuation of $100 per share and to pay $1,500 cash, the agreement that, on termination of the agency, the company would repurchase the stock at the price paid for it, in the absence of any evidence that .the stock was part of the original unsubscribed stock or shares once purchased and subsequently acquired by the company, or that the company had any creditors beside himself, was valid, so that, on termination, the agent could recover the purchase money.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§i 285-295; Dec. Dig. § 82.]
    Appeal from District Court, Dallas County ; J. C. Roberts, Judge.
    Action by G. C. Addison against the Hesse Envelope Company of Texas. Judgment for plaintiff, and defendant appeals:
    Affirmed.
    Burgess, Burgess & Chrestman, of Dallas, for appellant. Ross & Muse, of Dallas, for appellee.

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

   HODGES; J.

In August, 1906, the appellant was chartered as a private corporation under the laws of Texas, with an authorized capital stock of $30,000. The purpose for which it was incorporated was that of manufacturing and selling envelopes. On the 15th day of September, 1911, appellant entered into a contract in writing with the appellee, by the terms of which it employed the .latter as an agent to conduct a branch of its business at Houston and Galveston. The compensation which appellee was to receive was fixed at $35 per week and $10 per month for office expenses. The written contract also provided for the purchase by the appellee of 20 shares of stock in the appellant company. That portion of the contract is as follows: “The party of the second part (G. O. Addison) further agrees as a part consideration of this contract to purchase twenty shares of the stock of the aforesaid Hesse Envelope Company of Texas, Incorporated, at the valuation of one hundred dollars per share, for which he shall pay fifteen hundred dollars cash; and the balance of said contract price shall be paid for at the rate of one hundred dollars per month. With reference to the purchase of the stock provided for in section 7, it is hereby mutually agreed by the parties hereto that the party of the second part shall, to the exclusion of any other purchaser, sell to the said party of the first part the stock provided for, at the price paid therefor by the party of the seeon'd part; and the said party of the first part hereby agrees and binds itself to purchase from said party of the second part, at the price paid therefor by said party of the second part, said stock, upon notice by either party to the other of such intention within a period of six days prior to said sale or purchase.”

Appellee continued in the service of the appellant till the 25th day of December, 1911, when he withdrew and demanded payment of the sum of $180.54 as the balance due for wages and expenses, and the further sum of $1,500 as the par value of the stock he had purchased and paid for, and which appellant had obligated itself to repurchase, on giving of the notice provided for in the written contract. Upon the refusal of the appellant to pay the sums demanded, the appellee instituted this suit.

The evidence shows without dispute that the claim presented for $180.54, as the balance due on salary and expenses, is correct. It is also conceded that appellee had bought and paid for 17' shares of stock at $100 per share. At the conclusion of the evidence, the court instructed a verdict for the appellee for the amount claimed.

The only defense presented on this appeal is the contention that the portion of the contract which stipulated for the repurchase of the stock by the appellant was void. The following proposition specifies the grounds upon which this contention is based: “The corporation had no legal authority or capacity to release Addison, as a subscriber to its capital stock, from payment of it in whole or in any part; and any contract made by said company with him by which the company, its creditors or stockholders, shall lose any part of the subscription is ultra vires and a fraud upon the creditors and the cosubseribers to the stock of said company.” There is nothing in the evidence to show whether the shares which the appellee purchased from the appellant was a part of the original stock which had never been subscribed for, or shares which had once been purchased and subsequently acquired' by the appellant. There was evidence to show that,' at the time the charter was filed with the Secretary of State, only 240 of the 300 shares of stock authorized had been taken. But it does not necessarily follow from this that in the course of five years this unsubscribed balance remained unsold. Neither is there any evidence tending to show that appellant had any creditors besides the appellee. For aught that appears to the contrary, the appellant owed no other monetary obligation, and its affairs were in a flourishing condition. At the time this suit was filed, its shares of stock may have been worth a premium in the market. That a corporation may purchase its own shares of stock, except when prohibited by statute, is well settled by numerous authorities. San Antonio Hardware Co. v. Sanger, 151 S. W. 1104, and cases there cited. We do not think the provision of the contract referred to in the assignment is subject to the objection urged.

'We are not called upon, however, to determine whether or not the appellee can escape liability for the three remaining shares which he did not pay for. That question is not before us.

The judgment is affirmed.


author: McMEANS, J.

text:
    PICKERING MFG. CO. v. GORDON et al.
    (No. 6516.)
    (Court of Civil Appeals of Texas. Galveston.
    April 21, 1914.)
    GARNISHMENT (§ 196) — PARTIES—DISCHARGE.
    Where the original suit in which a writ of garnishment was sued out was brought against an alleged corporation, and after the issuance and service of the writ of garnishment the petition was so amended as to make the action one against an individual, instead of a corporation, the garnishment proceedings were thereby discharged, and judgment cannot be rendered against the corporation in the garnishment proceeding.
    [Ed. Note. — Eor other eases, see Garnishment, Cent. Dig. §§ 386-389; Dec. Dig. § 196.)
    'Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by W. D. Gordon against the Pickering Manufacturing Company, in which a writ of garnishment was sued out against the Gulf National Bank of Beaumont, Tex. from a judgment for plaintiff in the garnishment proceedings, defendant appealed.
    Reversed and rendered.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. Thos. J. Baten and W. D. Gordon, both of Beaumont, for appellee.

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

   McMEANS, J.

W. D. Gordon, on September 10, 1908, brought suit against the Pickering Manufacturing Company, alleging that the defendant was a private corporation doing business in the state of Pennsylvania, and sought the recovery of the sum of $292 as damages for the breach of a contract. He alleged that this amount of money was then deposited in the Gulf National Bank of Beaumont, Tex., to the credit of the defendant, and at the time he filed the suit he sued out a writ of garnishment against said bank to subject said sum to the payment of his demand. On October 6, 1908, the Gulf National Bank answered, setting forth that it was indebted to the Pickering Manufacturing Company in said sum of $292. It appears that no further proceedings were had in the case until January 16, 1913, more than five years after the filing of the suit, when plaintiff filed an amended petition, in which he stated that he filed his original petition upon the theory that the Pickering Manufacturing Company was a corporation, but that it had since developed that the Pickering Manufacturing Company was only a name under which Emeline A. Pickering, an individual, was doing business, and sought, in the amended petition, to recover against Emeline A. Pickering, an individual, instead of the Pickering Manufacturing Company, a corporation. On the date of the filing of the amended petition the defendant filed a motion to quash the garnishment; one of the grounds of the motion being that the suit as originally filed, and in which the garnishment was sued but and served, was against the Pickering Manufacturing Company, a private corporation incorporated under the laws of the state of Pennsylvania, and by the amended petition plaintiff sought judgment against Mrs. Emeline A. Pickering, an individual, and not against the corporation, and that the garnishee could not be held liable upon a judgment rendered against Emeline A. Pickering. The motion to quash was overruled, and upon a trial before a jury, on January 17, 1913, judgment was rendered against the “defendant Pickering Manufacturing Company and Emeline Pickering, established in this case to be one and the same person,” and judgment was thereupon entered by the court in favor' of the plaintiff, against the garnishee, upon its answer, for the sum of $292, and from this last-mentioned judgment the defendant Mrs. Emeline A. Pickering has appealed, and has assigned as error the action of the court in overruling her motion to quash.

Under this assignment appellant contends by her propositions, first, that the plaintiff having sued the Pickering Manufacturing Company, a private corporation, and having sought to subject its funds in the hands of the garnishee, it was necessary, before a valid judgment could be rendered against the garnishee, to secure a judgment in the main case against the corporation; and, second, that the plaintiff, by his amended petition, wherein he sought judgment against Emeline Pickering, an individual doing business as the Pickering Manufacturing Company, and not against the corporation, as alleged in his original petition, set up an entirely new cause of action, and this had the effect of discharging the garnishment proceedings. , We think the assignment must be sustained. A writ of garnishment sued out to subject funds belonging to an alleged corporation to pay a debt alleged to be owing by it will not support a- judgment against a garnishee rendered in an ancillary proceeding, where the original suit after the issuance and service of the writ of garnishment has been changed to one against an individual, and the judgment rendered in such proceeding is against an individual. We think it is clear that under the original petition, which sought judgment against an alleged corporation, no judgment could have been legally rendered against Mrs. Pickering, an individual, and a realization of this fact caused plaintiff to amend in order to show that he was suing the individual. If, then, under the allegations of the original petition, no judgment could have been rendered against Mrs. Pickering, it necessarily follows that in the ancillary proceedings instituted under the original petition no judgment could have been legally rendered against the garnishee. The judgment in the garnishment proceedings in the court below is therefore reversed, and judgment here rendered for appellant.

Reversed and rendered.


author: FLY, C. J.

text:
    LANGE v. INTERSTATE SALES CO.
    (No. 5272.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 29, 1914.
    Rehearing Denied May 20, 1914.)
    1. Sales (§ 168) — Delivery — Executory Sale.
    One who ordered an automobile of a certain make and color, with certain equipment, and with the buyer’s initials thereon, has the right to inspect the car before accepting it, and delivery thereof could not be made until after the buyer or her authorized agent had had reasonable opportunity to make such inspection, and a charge that an unconditional tender of delivery at defendant’s residence woud be sufficient, whether she or anyone authorized by her were present to receive the car or not, was erroneous.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 403-408; Dec. Dig. § 168.]
    2. Evidence (§ 237) — Declarations of Agent — Pboof.
    Declarations by the children of the buyer of an automobile showing a delivery of the cai-to them as their mother’s agents are inadmissible in an action against the buyer for the purchase price, in the absence of proof of the agency aside from the relationship and the declarations of the children.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 883-886; Dec. Dig. § 237.]
    3. Tbial (§ 244) — Instructions—Comment on Evidence — Unjjue Prominence of Particular Matters.
    In An action for*the purchase price of an automobile, which defendant denied had been delivered, it was improper for the court to single out and weaken or destroy testimony as to the furnishing of a demonstrator to run the car and as to the housing of the car, by explaining to the jury the effect-of such testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    4. Sales (§ 358) — Actions by Seller — Admissibility of Evidence — Materiality.
    In an action for the purchase price of an, automobile, where the plaintiff claimed delivery to the children of defendant as her agents, tes-ti.mony as to the anxiety of the children to obtain possession of the car had no probative value and was improperly admitted.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §■§ 1049-1055; Dec. Dig. § 358.)
    Appeal from District Court, Galveston County; Robert G. Street, Judge.
    Action by the Interstate Sales Company against Augusta L. Lange. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellant. D. D. McDonald, of Galveston, for appellee.

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

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

   FLY, C. J.

This is a suit instituted by ap-pellee to recover the value of an automobile sold by it to appellant, a feme sole. The defense to the suit was that the automobile was never delivered to appellant. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $3,420.

The facts showed that appellant had, in the autumn of 1912, placed an order with ap-pellee for a National, seven-passenger, touring automobile. Appellee did not have the automobile in stock, but it was to be ordered from the factory and was to be fully equipped as stated in the catalogue, besides additional equipment, to be a certain color, and to be guaranteed for a year, at the price of $3,520 in Galveston. Appellant went to New York, and while she was gone the automobile arrived in Galveston, and, according to the testimony of Toebelman, the general manager of appellee, Willie Lange, a minor son of appellant, assisted in unloading the car and went in it to the garage of appellee. The car was driven by an employe of ap-pellee, and Willie requested that it be sent out to his mother’s house on the next day. On the next day, which was Friday, the daughters of appellant telephoned that they wanted the automobile and it was sent out by appellee. Toebelman testified that he telephoned to Alvin Lange, an adult son of appellant, about delivering the car, and that he told the witness to deliver the car to the other children of appellant, as he had been informed that his mother had written to his sisters that they could use the car during her absence. Alvin Lange also promised to give a cheek for the car as soon as his mother arrived from New York. Toebelman stated that after this conversation he ordered Billié Mather, a chauffeur, to take the ear out and deliver it to the children of appellant. The children rode in the car, the chauffeur driving, or sitting by instructing a member of the family to drive. At night the car was carried back to the garage of appellee. On Saturday the automobile was again taken out by Billie Mather. There were three Lange young ladies and two minor boys living with their mother. The youngest boy was 14 years old. Mather, under instructions from appellee, on Saturday afternoon took the car out, and Oscar, the youngest boy, was permitted to drive the ear, and while on the boulevard he lost control and the machine went over the seawall and was wrecked. Appellant and the young ladies denied that appellant had written a letter to them such as Toebelman swore that Alvin told him about, and the latter swore that he never told Toebelman that such a letter had been written, or that he had authorized a delivery of the car to his sisters and brothers. The young ladies *and Willie Lange denied the delivery of the car to them.

The facts raised a sharp and direct issue as to the agency of appellant’s children, as well as the delivery of the car to them. If they were the real or apparent agents of appellant and a delivery of the car was made to them, appellant is liable for the purchase price of the car. These were the crucial points in the case, and yet the question of agency was not submitted by the court to the jury; but, on the other hand, the question of agency of the children was eliminated by an instruction “that tender of delivery at the residence of Mrs. Lange, if made unconditionally, would be sufficient, whether she or any one authorized by her was there to receive it or not.” Under that instruction, if appellee had sent the automobile to the residence of appellant in her absence, no one else being authorized to receive it, and left it standing at the curbing of her sidewalk, there was a delivery of the car. This is not the law as applied to the facts of this case at least.

Appellant had ordered a certain kind of automobile, of a certain color, with certain equipment, and initials inscribed on it, and she had the undoubted right, the contract being executory, to inspect the car and see if it met the contract specifications. She could not be compelled to accept the car without the right of inspection being given her, or her duly constituted agent. The right of inspection carried with it a reasonable time in which to make such inspection, but under the charge of the court,.the car could have been left at the residence of appellant, without notice to her, within an hour after its arrival in Galveston, and she would become absolutely responsible for its purchase price. The facts of this case create an ex-ecutory sale, and it was so treated by ap-pellee. It did not consider the car the property of appellant, as soon as it reached Galveston, but treated it as its property until, as it claims, it had been satisfied by Alvin Lange as to the purchase price and the agency of the members of the family. “Where, under a contract of salé, the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but, where the transfer of the property in the goods is to take effect at a future time or .subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. An agreement to sell, becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.” Mechem, Sales, § 6. The title of the car did not pass to appellant until she had inspected it. Railway v. Ogburn, 26 Tex. Civ. App. 217, 63 S. W. 1072. “When the contract is executory, as it always is when a particular article is ordered, without being seen, from one who undertakes it shall be of a given quality or description, and the thing sent as such is never completely accepted, the buyer is not bound to keep it, or pay for the article on any terms, though no fraud was intended by the vendor.” Fogel v. Brubaker, 122 Pa. 7, 15 Atl. 692.

Appellee did not consider that the title to the ear had passed to appellant, because he refused to allow the sons and daughters of appellant to have possession of the car until another brother had agreed to pay for it. This refusal was made although appellee attempts to show that the children were the agents of appellant.

Appellant swore that under the terms of the contract she was to have the machine demonstrated to her and exhibited for approval before she was under any obligation to accept or pay for it, and yet in the face of that testimpny the jury was informed that appellee could have delivered the car at her house, without her knowledge and she would be liable. The charge was clearly erroneous.

The declarations of Alvin Lange, or of any of the other children of appellant, could not bind appellant unless it had been shown that they were the agents of appellant. Agency could not be established by their declarations or admissions, nor could it be inferred from their relationship to appellant. To render such admissions or declarations-admissible, the agency must be established, the admission must have been made in regard to something within the scope of the agency, and must constitute a part of the res gesta; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13.

We fail to see the appropriateness of the charge explaining to the jury the effect of the testimony as to a demonstrator being furnished to run the car and as to the housing of the car. These were facts to be passed upon, as any other, by the jury, and the trial court had no right to single them out and weaken or destroy their effect.

The anxiety of the children to obtain possession of the car before the return of their mother had no legal bearing on the case and it was error to admit such testimony. Such testimony had no probative force on the subject of agency. The acts and declarations of the young ladies and boys in connection with the automobile could not be used to prove agency.

The judgment is reversed and the caues remanded.


author: PLEASANTS, O. J.

text:
    HOUSTON OIL CO. OF TEXAS v. GRIFFIN.
    (No. 6542.)
    (Court of Civil Appeals of Texas. Galveston.
    April 9, 1914.
    Rehearing Denied April 23, 1914.)
    1. Adverse Possession (§ 115) — Question for Jury — Notice to Former Owner.
    The inclosure and cultivation of a small field of 1 acre on a tract of 160 acres made the question .whether such possession and use of the. land was sufficient to put the owner upon notice that the person in possession was claiming the 160-acre tract upon which it was actually situated, or any larger portion than that actually inclosed, one for the jury.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 69Í-701; Dec. Dig. § 115.]
    2. Infants (§ 24) — Emancipated Minor — Adverse Possession.
    A minor, who, with the consent of his father( claimed and occupied, as his own, land adjoining that of his father, the father at no time asserting any claim thereto, could not be regarded as holding under his father, and hence his minority did not prevent him from acquiring title by limitation, the consent of the father having the effect of emancipating him in so far as the right to acquire the land was concerned.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 25; Dec. Dig. § 24.]
    3. Adverse Possession (§ 46) — Continuity of Possession — Disability of Owner.
    Under Rev. St. 1911, art. 5711, providing that, when the law of limitation shall begin to run, it shall continue to run notwithstanding any supervening disability of the party entitled to sue, the appointment of a receiver of the owner of land did not stop the running of limitations in favor of an adverse claimant.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. § 46.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by the Houston Oil Company of Texas against T. J. Griffin. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    See, also, 149 S. W. 567.
    Hightower, Orgain & Butler and J. D. Campbell, all of Beaumont, and H. O. Head, of Sherman, for appellant. Singleton & Nall, of Kountze, for appellee.

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

   PLEASANTS, O. J.

This is an action of trespass to try title, brought by the appellant against the appellee to recover title and possession of a tract of 220 acres of land, a part of a survey of 1,280 acres of school land patented to Hardin county by the state of Texas by patent No. 541, vol. 41. The defendant disclaimed title to all of said land except a tract of 160 acres described in his answer, as to which he claimed title under the 10-year-statute of limitation. By supplemental petition plaintiff alleged that from February 1,1904, to May 5, 1909, the plaintiff corporation was in the hands of receivers appointed by the United States Circuit Court for the Southern District of Tesas, and during said time all of the property of plaintiff, including the land in controversy, was in cus-todia legis and defendant’s possession during said time could not avail to perfect title in him by limitation. The trial in the court below with a jury resulted in a verdict and judgment in favor of defendant for the 160 acres claimed by him. This is the second appeal of the case. The opinion of this court on the former appeal is reported in 149 S. W. pages 567-569.

The evidence shows that plaintiff has a regular chain of title to the 220 acres of land from the sovereignty of the soil. In 1894 and 1895, respectively, Ivy M. Griffin, appellee’s father, and J. M. Griffin, appellee’s uncle, made settlements in the northwest corner of the 1,280-acre tract. The land at that time belonged to the Village Mills Company, and when said company found the Griffins in possession of its land they procured from them the following acknowledgment of tenancy:

“The State of Texas, County of-:
“Know all men by these presents, that I, Ivy M. Griffin, of the county of Hardin, do hereby acknowledge that I now live on a certain tract of land, situated in said county of Hardin, namely, a survey No. 266 of land originally granted to Hardin county, and which land is situated on the south side of Village creek, and which said tract of land now belongs to the Village Mill Company, and I do hereby acknowledge the ownership of said land to be in said company, and that I hold possession of said land by and with the consent of said Village Mills Company and its tenant at will.
“Witness my hand this 9th day of June, A. D. 1894. Ws
“Ivy M. X Griffin, marls
“State of Texas, County of -:
“Know all men by these presents, that I, J. M. Griffin, of the county of Hardin, do hereby acknowledge that I now live on a certain tract of land, situated in Hardin county, namely, survey No. 266, originally granted to Hardin county, and which land is situated on the south side of Village creek, and which tract of land now belongs to the Village Mills Company, and I do hereby acknowledge the ownership of said land to be in the Village Mills Company, and that I hold possession of said land by and with the permission of the said Village Mills Company, as their tenant at will.
“Witness my hand this 19th day of June, A. D. 1895. J. M. Griffin.
“Witness: Ivy M. Griffin.”

In 1896 Ivy M. Griffin inclosed and put in cultivation about 1 acre of land on the 160-acre tract now claimed by appellee. In December, 1896, the Village Mills Company sold the 1,280-acre survey to Olive Sternenberg & Co. Ivy and J. M. Griffin continued to reside on the tract, and in 1899 Olive Sternenberg & Co., conveyed to Ivy Griffin 100 acres out of the northwest comer of the 1,280-acre survey. This 100 acres included the improvements and all of the land on the tract theretofore occupied by Ivy and J. M. Griffin, except the 1-acre field, before mentioned, which was situated about 150 yards east of the east line of the 100-acre tract. Appellee was then about 19 years old, was living with his father, and continued to live with him until after this suit was brought. After Ivy Griffin bought the 100-acre tract, he ceased to cultivate the 1-acre field; but appellee, with the consent of his father, took possession of said field, continued to cultivate it, and began to claim 160 acres of land lying east and south of his father’s 100-acre tract. His claim to said 160 acres was continuous and notorious for more than 10 years before this suit was filed. He cultivated the 1-acre field every year for five years, and then opened another field of 2% acres on said 160-acre tract, which he continued to cultivate up to the time of the trial. When he opened the 2%-acre field he abandoned the 1-acre field and used the fence thereon in inclosing the new field. His occupancy and use of the land by the cultivation of the two small fields, above mentioned, continued for more than 10 years before the institution of this suit. The 2%-acre field was some distance south and west of the 1-aere field, and its northwest comer was within 20 or 80 feet of his father’s fence on the south line of the 100-acre tract; but it was inclosed separate and apart from the inclosure on his father’s land. After Ivy Griffin purchased the 100-acre tract, his brother, J. M. Griffin, who was unmarried, moved into the same house with him, and has lived with him ever since.

It is not shown that either Ivy or J. M. Griffin have ever used, occupied, or made any claim to any part of the land, except the 100-acre tract, since the purchase of said tract hy Ivy. Appellee testified that he knew the location of the north and east lines of the 1,280-acre survey, and the east and south lines of his father’s 100-acre tract, and that the 160 acres claimed by him was in an L shape and lay south and east of his father’s tract. The land described in appellee’s answer, and designated on the plat contained in the statement of facts as the 160 acres claimed by appellee, begins at the northeast corner of the Ivy Griffin 100-aere tract on the north line of the 1,280-acre survey; thence with said north line to the northeast comer of said survey; thence with the east line of said survey to a point thereon, from which a line runs.west to the west line of the survey.; and thence north with said west line to the southwest corner of the 100-acre tract, east with the south line of said tract to its southeast corner, and north with the east line of said tract to the place of beginning, containing 160 acres.

On March 17, 1904, receivers were appointed for the appellant Houston Oil Company' by the United States Circuit Court for the Southern District of Texas, and all of the property of said company was, by the order of said court appointing the receivers, divested out of appellant company and vested in the receivers appointed by the court. This receivership continued and the property of the company remained vested in the receivers until April 15, 1909, when the court in which said proceedings were pending directed the receivers to deliver to the appellant company the property of the company theretofore placed in their hands by the order of court before mentioned. This suit was filed August 20, 1910. Most of the questions presented by this appeal were raised on the former appeal and decided adversely to appellant’s contention.

Appellant, under appropriate assignments of error, contends, as it did upon the former appeal, that the trial court should have instructed the jury to return a verdict in its favor on the ground that the evidence is insufficient to raise the issue of the adverse possession of appellee of the 160 acres of land claimed by him for 10 years prior to the institution of this suit. This contention is based upon the proposition that the cultivation and use by appellee of the small field of one acre on the land in controversy during his minority and while he was living with his father was not a sufficient actual and visible appropriation of the land to put the owner upon notice of appellee’s claim to said 160 acres. As said in our former opinion, it cannot be held as a matter of law that the inclosure and cultivation of a field of one acre on a large tract of land is not sufficient possession and use to put the owner of the .land upon notice that the person so using and occupying his land is claiming some right or title thereto. The case is not one of encroachment. From the distance the 1-acre field was located from the land owned by appellee’s father wheré appellee lived with his father, the owner of the land on which the field was situated could not reasonably have supposed that said field was placed on his land by mistake on the part of his neighbor as to the location of his lines, and the rule announced in Bracken v. Jones, 63 Tex. 184, Titel v. Garland, 99 Tex. 201, 87 S. W. 1152, and Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann Cas. 1913a, 559, does not apply.

On the question of the effect of the minority of appellee upon his right’to acquire the land for himself by his adverse claim, occupancy, use, and cultivation thereof for the] time prescribed by the statute, we adhere to our holding on the former appeal. The evidence shows that appellee’s claim and occupancy of the land as his own was with the consent of his father, who at no time asserted any claim to the land. In these circumstances appellee - cannot be regarded as holding possession for or under his father, and we cannot believe that his minority affects the adverse character of his claim and possession. The consent of the father to the acquisition by appellee of the land for himself by occupying and cultivating it had the effect of emancipating appellee in so far as his right to acquire the land was concerned. The fact that the father, Ivy Griffin, prior to the sale of the land by the Village Mills Company, held possession as tenant at will of shid company would not, after the abandonment of the field by him, he having in the meantime purchased a portion of the survey from the ven-dees of the Village Mills Company, affect the subsequent adverse possession of appel-lee. There in nothing in the evidence tending to show that Ivy Griffin ever agreed to hold the land for the vendees of the Village Mills Company, or that they ever supposed that he was occupying any portion of the land as their tenant.

The appointment of receivers for appellant company did not have the effect of stopping the running of the statute of limitation in appellee’s favor. Appellee’s adverse possession and claim began prior to the appointment of the receivers, and the inability or disability of appellant to bring suit for the recovery of the land pending the receivership would not stop the running of the statute. Revised Statutes, art. 5711. The receivers were expressly authorized by the order of the court by which they were appointed to sue and recover “all of the moneys, property, and assets of the company, and to that end are authorized to institute and prosecute all suits that may be necessary for the protection and preservation of, or in reducing to possession, the property rights and assets of said company.” We know of no rule which would protect the appellant from the result of the failure of the receivers of the company to exercise the power conferred upon them to bring suit to recover possession of this property.

We have not deemed it necessary to discuss each of appellant’s assignments of error in detail. What has been said disposes of all the material questions presented by the appeal. We have considered all of the assignments presented, and none of them, in our opinion, should be sustained. It follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.


author: MOURSUND, J.

text:
    SAVAGE v. MOWERY.
    (No. 5264.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 22, 1914.
    Rehearing Denied May 20, 1914.)
    1. Appeal and Error (§ 500) — Rulings on Pleadings — Record.
    Where the appeal record fails to show any ruling on any of the pleadings, assignments of error with reference to alleged rulings on the pleadings will not be considered, except that' an objection that the petition is fatally defective may be urged for the 'first time on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.]
    2. Frauds, Statute of (§ 144) — Waiver — Pleading.
    Where an answer is subject to general demurrer because showing on its face that the defense pleaded is within the statute of frauds, such defect may be waived so that, if the general demurrer is waived, the answer will be as effective as though no demurrer had ever been filed.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 351; Dec. Dig. § 144.]
    3. Appeal and Eeroe (§ 173) — Defenses— Questions Not Raised at Trial — Statute of Frauds.
    Where the statute of frauds was not urged below until in the motion for new trial, it could not be relied on, on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.]
    4. Trial (§ 420) — Motion foe Instructed Verdict — Denial—Waivee of Error.
    Where a motion for an instructed verdict is overruled and the moving pdrty thereafter introduced evidence in his own behalf, he waives his right to assign error on denial of the motion.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.]
    5. Trial (§§ 251, 252) — Instructions—Request to Charge — Issues.
    Where, in a suit on certain notes given for the rent of land, a pumping plant and canal, defendant pleaded that an agreement had been made in consideration of his foregoing his right to rescind on discovery of the falsity of plaintiff’s representations concerning the saline character of the water, by which plaintiff bound himself to forego his rent and cancel the notes if salt water appeared in the river at the pumping plant in sufficient quantity to injure defendant’s crops, and defendant testified that salt water appeared in the river in 190>9, but not in sufficient quantity to injure the crops for that yeax-, and in 1910 the water again became salty and badly damaged the crop, while plaintiff denied making such agreement, a request to charge that if plaintiff promised to forego his rents if salt water appeared in the x-iver, and the jury found that salt water did appear, and defendant continued to use and cultivate the premises without electing to rescind, then he ratified the conti'aet, was propei'ly refused as not within -the issues or testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 587-612; Dec. Dig. §§ 251, 252.]
    6. Landlord and Tenant (§ 233) — Action foe Rent — Modification of Contract — Instructions.
    Where, in an action on notes given for the rent of land, a pumping plant, and canal, defendant pleaded and proved an agreement subsequent to the lease that, in consideration of defendant’s foregoing his l'ight to rescind on discovery of the falsity of plaintiff’s representations concerning the saline character of the water, he agreed to forego his rent and cancel the notes if salt water appeared in the river at the plant in sufficient quantity to injure defendant’s crops, and it appeared that during the third year of the lease the water became so salty as to cause defendant a heavy loss for that year, defendant was entitled to cancel the notes on that ground, and hence an instruction to award plaintiff a verdict at the rate of 8500 a year for three years, during which it was claimed that defendant used the property without complaint, was erroneous and properly i*efused.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 49, 940-944; Dec. Dig. § 233.]
    7. Landlord and Tenant (§ 34) — Lease-Modification — Rescission.
    Where, after a contract for the renting of land,'a pumping plant, and canal for a term of years had been modified by parol, so that plaintiff agreed to forego his x-ight to rent and cancel his rent notes if salt water appeared at the pumping plant in sufficient quantity to injure defendant’s crops, defendant expended considerable money, and had contracted to deliver water to persons who had rented land' on the strength of such contracts, defendant was under no obligation to accept plaintiff’s subsequent offer to rescind, and hence defendant’s declining to accept such offer did not constitute a ratification of the contract so as to. preclude his demanding a cancellation of the-notes on salt water subsequently appearing in quantity sufficient to endanger the crops.
    [Ed. Note. — For other cases, see .Landlord and Tenant, Cent. Dig. § 97; Dec. Dig. § 34.]
    8. Appeal and Eeroe (§ 742) —Assignments-of Error — Instructions—Propositions.
    A proposition, under an assignment of error to the giving of a charge, that it was on-the weight of the evidence, failing however to-point out in what respect, would not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and-Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    9. Landlord and Tenant (§ 193) — Lease-Rescission — Effect.
    Where, after a lease of land, a pumping plant and a canal for five years, and the execution of notes for the rent, defendant objected' because of the saline condition of, the water, whereupon plaintiff bound himself to forego his rent and cancel the notes if salt water appeared in the river at the pumping plant in sufficient quantity to injure defendant’s crops, and such condition occurred in June, 1910, the court properly held that defendant’s election to tei-minate the conti'aet for that reason released him from payment of the rent remaining unpaid for 1909 as well as the notes not due at the time the salt water appeared in 1910.
    [Ed. Note. — For other cases, see Landlord, and Tenant, Cent. Dig. § 787; Dec. Dig. §• 193.]
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Action by E. J. Savage against C. W. Mowery. Judgment for defendant, and plaintiff-appeals.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellant. L. M. Williamson, of Houston, for appellee.

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

   MOURSUND, J.

On October 2, 1907, E. J. Savage and C. W. Mowery entered into a written contract whereby Savage leased Mow-ery certain land, and pumping plant, and canal for five years beginning November 1, 1907, with the privilege of extending the lease for two years, and Mowery agreed to pay an annual rental of $500, payable as follows: $250 on November 1, 1907; $500 on the 1st day of November of each of the years 1908, 1909, and 1910; and $250 on November 1, 1912 — for which sums promissory notes were executed bearing 8 per cent, interest from maturity and providing for attorney’s fees. The first two notes were paid. On December 15, 1911, Savage sued Mowery for principal, interest, and attorney’s fees upon the remaining notes and for the establishment and foreclosure of a lien upon certain property situated upon the leased premises. Defendant pleaded payment of note 3, alleging that $463.50 was paid to the Bank of Matagorda which held the note for collection, and was accepted by said bank, and the remaining $36.50 was paid by reason of plaintiff charging defendant with and collecting 10 cents per sack for 365 sacks which under the lease contract were to be furnished by plaintiff for the purpose of containing rice agreed to be delivered by plaintiff to defendant for watering certain lands of plaintiff. Defendant further pleaded that the consideration for the notes sued upon had failed because the lease contract had terminated; that he had been induced to enter into said contract by reason of false and fraudulent representations by Savage to the effect that there never had been any salt water in the Colorado river at the point where the pumping plant leased by defendant was located; that defendant knew nothing concerning such matter and believed and relied upon such representations ; that in fact salt water had theretofore been in the river at said place, thereby rendering the water totally unfit for irrigating purpose^, and about October 15, 1907, defendant learned such fact and thereupon accosted plaintiff and demanded the cancellation and surrender of his notes, whereupon plaintiff agreed that defendant should proceed under the lease contract, and, if at any time there should be such quantity of salt water at said place as to injure the rice crop, the contract should be canceled and defendant relieved from the obligation to pay rent; that pursuant to such agreement defendant proceeded with the contract during 1908 and 1909 and up to June, 1910; that about June 15, 1910, the water in the river at the point where the pumping plant was located became salty and unfit for irrigating purposes, and defendant was required to desist from further pumping, thus causing the rice crop on 400 acres to dry up and fail to mature, so that instead of producing 6,000 bushels it only produced about one-third of such amount; that by reason of such fact and of said agreement defendant abandoned' the contract and became absolved from the payment of said notes, wherefore he prayed that the notes be canceled and that he recover his costs. The trial resulted in a verdict and judgment for defendant.

The first assignment complains of the overruling of a general demurrer, the second and third of the overruling of special exceptions, and the fourth the overruling of a motion for an instructed verdict. The record fails to show any ruling by the court upon 'any of said pleadings, and it is well settled that under such circumstances they will be considered as waived. City of San Antonio v. Bodeman, 163 S. W. 1044, and cases therein cited. But an exception is recognized where a petition is fatally defective, in which case it may be attacked upon appeal, though such error was not urged below. In this ease the only matter called to our attention under any of these assignments which presents a serious question is a contention made in the motion for an instructed verdict that the verbal agreement modifying the written contract was within the statute of frauds and therefore not enforceable. The third amended original answer does not expressly state that the agreement modifying the written contract was verbally made, yet it is apparent from' the answer that such is the ease. But the statute of frauds can be waived, and in the absence of an attack upon the answer the agreement pleaded constitutes a good defense. If an answer is subject to a general demurrer because showing on its face that the defense is within the statute of frauds, such defect in the answer is one which can be waived, and it is evident that,' when the general demurrer is waived, the answer is as effective as if no demurrer had ever been filed. It does not appear that objection was made to the evidence of the verbal agreement on the ground that the same was within the statute of frauds, and in fact such defense to the answer is nowhere suggested except in the motion for an instructed verdict. As the record does not show that said motion was ever called to the trial court’s attention, no ruling thereon appearing in the record, we cannot hold that the statute of frauds was ever urged until in the motion for new trial. It therefore appears that appellant is not entitled to rely upon the statute of frauds upon this appeal. International Harvester Company v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93. It has also been held that if a motion for an instructed verdict is presented and overruled, and thereafter the party- making such motion introduces evidence, he waives his right to assign error upon such ruling of the court. Goggan v. Goggan, 146 S. W. 972; Knights & Daughters of Tabor v. Johnson, 156 S. W. 533; Railway v. Hall, 156 S. W. 356.

The four assignments are overruled.

The fifth and sixth assignments complain of the refusal to give special charges Nos. 1 and 2. Special charge No. 1 was to the effect that if the jury found that plaintiff promised to forego his rents if salt water appeared in the river, and find that salt water did appear in the river, and defendant continued to use and cultivate the premises without electing to rescind, then that he ratified the contract, and do find for plaintiff. The issue sought to be submitted was not raised by the pleadings or testimony. Defendant pleaded that an agreement had been made in consideration of his foregoing his right to rescind upon discovery of the falsity of plaintiff’s representations, by which agreement plaintiff bound himself to forego his rent and cancel the notes if salt water appeared in the river at the pumping plant in sufficient quantity to injure his crops. His testimony was to the effect that salt water appeared in 1909, but did not injure the crop, and in June, 1910, the water again became salty and stayed that way for a long time, so that the crop was very badly damaged. Plaintiff denied making any such agreement. Special charge No. 2 is somewhat similar to special charge No. 1. It entitled plaintiff to recover if salt water appeared and rendered the use' of the canal hazardous, and defendant continued to use same. This issue was also not made by the pleadings or evidence. We conclude that the court did not err in refusing to give these charges, and therefore overrule the assignments.

The seventh assignment complains of the failure of the court to give a special charge instructing the jury to allow plaintiff at any rate the sum of $500 per year for three years; the contention being that defendant used the property of plaintiff for three years without complaint and therefore should pay for such time. The evidence shows that before the third year expired the water became so salty as to cause a very heavy loss of crop for that year, and under the verbal contract as pleaded and testified to by defendant he had the right to cancel the notes. The charge therefore was erroneous, and the assignment is overruled.

By the eighth assignment complaint is made of the charge of the court; various objections being urged in the assignment, which is sought to be submitted as a proposition in itself. It cannot be treated as a proposition because multifarious. The first proposition thereunder is as follows: “It having been shown that the defendant did not rely upon the statements alleged to have been made by the plaintiff, the court should have instructed the jury to disregard the same.” There is sufficient evidence to sustain a finding that defendant relied upon plaintiff’s statement that no salt water had ever come up to his pumping plant, and therefore such proposition cannot be sustained.

The second proposition reads: “An offer to rescind having been made by the plaintiff and declined by the defendant, there was ratification of the contract, and the charge of the court was faulty.” Defendant testified that plaintiff’s offer to rescind came several months after the verbal contract was made, and at a time when he had expended considerable money, and had contracted to deliver water to persons who had rented land upon the strength of such contracts. Certainly, if the contract as modified suited defendant, he could adhere to same. No obligation rested upon him to accept an offer to rescind after the contract was modified to suit him.

The third proposition submitted is that the charge is upon the weight of the evidence, but it is not pointed out in what respect,, and therefore the objection will not be entertained. The assignment is overruled.

The ninth and tenth assignments relate to the sufficiency of the evidence to sustain the judgment. It is contended that defendant used plaintiff’s property for three years without complaint, and paid only $963.-50, and should at least pay the difference between said sum and $1,500. The evidence shows that about four or five months before the third year expired salt water became so abundant in the river and remained so long that the rice crop was damaged to the extent of about two-thirds. It appears that $250 of the rent for the third year became due November 1, 1909, and $213.50 thereof was paid. This statement does not agree with appellant’s contention (which is acquiesced in by appellee), but we are at a loss to understand how appellant arrived at the figures upon which he bases his contentions. He contends that only $963.50 was paid by appellee. True, appellant testified that $463.50 had been paid on note No. 2, and only $963.50 in all. To' arrive at such amount we would have to decide that the first $500 note was paid and $463.50 on the second note for $500. In fact, the first note to become due was one for $250 due November 1, 1907, and it is admitted in the petition that said note was paid, and-also that the note for $500 due November 1,1908, was paid. Plaintiff alleged that nothing had been paid on the note for $500 due November 1, 1909, but the note when offered in evidence bore a credit of $463.50. This note is described in plaintiff’s petition and defendant’s answer as note No. 3, but in the statement of facts is referred to by plaintiff as note No. 2. We think it is clear that $1,213.50 was paid in all, which amount covers the rent for the first two years and leaves $213.50 as a part payment of rent for the third year. The only question then left to be decided is whether appellee should pay the $36.50 because of the fact that such amount became due November 1, 1909, and was not paid, and the contract had not at that time been canceled. Appellee pleaded payment of $36.50 by delivery of rice sacks of that value, but offered no proof. The court, however, took the view that the agreement pleaded, whereby plaintiff was to release defendant from the payment of rent and cancel all notes if salt water in sufficient quantity to injure the crops appeared, was sufficient, if established, to release defendant from payment of tlie $36.-50 as well as the notes not due at the time the salt water appeared in 1910. Therefore the charge was so drawn as to permit an absolute finding for defendant if the jury found that the allegation of the answer as to the creation and breach of the verbal contract was established by the evidence. We conclude that the court did not err in so construing the verbal contract pleaded. After alleging payment of $36.50 in rice sacks furnished, defendant pleaded that the consideration for all notes sued upon had failed, and alleged that the verbal agreement was that no rent would he charged if salt water appeared in sufficient quantity to injure the crops. Defendant’s testimony justifies a finding that such was the agreement. As the crop for 1910 was badly damaged because of the existence of salt water in the river for such a long time, the rent for that year cannot be collected under the contract, and plaintiff is not entitled to judgment for the $36.50. The assignments are overruled.

The judgment is affirmed.