author: CONNER, G. J.

text:
    SLIGH et al. v. STANLEY et al.
    (No. 8844.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 6, 1918.
    Rehearing Denied May 11, 1918.)
    1. Receivers <@=o71 — Rights—Property.
    A receiver appointed in partition proceedings becomes invested with the full right to the possession and control of the property.
    2. Brokers <§=3'54 — Compensation—Ability and Willingness oe Procured Purchaser.
    A real estate broker is not entitled to commissions until he has procured purchaser ready, able, and willing to purchase upon the terms given by the owner of the land.
    3. Receivers <®=o135 — Rights oe Owners — Sale oe Land — Terms.
    Where a receiver is appointed to take possession of and sell certain real estate, the owners of the property have no rights to fix the terms upon which the land is to be sold.
    4. Brokers <S=>58 — Commissions—Authority —Receivers.
    Broker cannot recover on contract with owners of property, whereby he was to produce buyer at stipulated price, where he knew that a receiver had'been appointed to sell the land at the time broker’s contract had been entered into; such appointment having terminated owner’s right to stipulate terms of sale;
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Action by E. N. Stanley and others against J. M. Sligh and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Walker & Baker, of Cleburne, for appellants. Moore & Myres, of Cleburne, for ap-pellees.
   CONNER, G. J.

This appeal is from a judgment in appellees’ favor for $485.85. The recovery was for commissions alleged to be due appellees for effecting a sale of land in which appellants had a joint interest.

Omitting the description of the land in question and other averments not deemed necessary to state, the following quotation from appellees’ amended original petition will sufficiently show; the basis of their suit:

“That on or about October 30, 1916, ■ the defendants J. M. Sly, Martha Sly, and William Maxwell were owners of said land and were anxious and desirous to make sale of same, and prior to said date had had said land upon the market and listed with plaintiffs to make sale for them; and, on said last-mentioned date, the said J. M. Sly, acting for himself and his code-fendants, Martha Sly and William Maxwell, made and entered into an agreement or contract with plaintiffs, by which plaintiffs’ right and authority to make sale of such land was renewed and confirmed; and the said J. M. ,Sly, acting for himself and his codefendants, the said Martha Sly and William Maxwell, agreed and contracted with the plaintiffs that, if they would make sale of such land at and for the sum of $40 per acre cash, the said defendants would pay to plaintiffs the usual and customary commission of 5 per cent, upon the proceeds of such sale, at and for the sum of $40 per acre cash.”

It was further alleged that, “in pursuance of said agreement and contract,” the plaintiffs undertook to find a purchaser and within a short time did find one for the sum of $40 per acre in cash, “and upon the terms and conditions prescribed by defendants for the sale of such land.” It was further alleged that the name of. the purchaser, one R. C. Boyd, was reported to the defendants; that Boyd was willing, ready, and able to buy said land upon the terms provided; and that the defendants agreed to sell to the said Boyd upon the terms stipulated and provided for by them; but that for some reason unknown to the plaintiffs the defendants declined to close the deal, but “did make and enter into another agreement with said R. C. Boyd by which the said R. C. Boyd agreed to and did give to the defendants the sum of $41 per acre for such land.” The prayer was for 5 per cent, commissions on the total amount of the sale at $41 per acre ($9,717), amounting to the said sum of $485.85, for which they sued and recovered judgment.

We have concluded that the evidence will not support the judgment. It is true there was evidence in behalf of appellees substantially supporting the allegations presented in their petition, but it further appears without controversy that appellants were but part owners of the 237 acres of land in question; that prior to the dates involved in this controversy a suit between the joint owners had been instituted in the district court for partition; and that it had been determined by the court that the land was incapable of division in hind and a receiver had been appointed with directions to take possession and control of the land and sell the same with orders to report the same to the court for confirmation. It seems undisputed in the evidence that appellees knew of the pendency of the receivership proceedings at the very time at which they testified that the contract with appellants for the sale of the land was made, and that, upon the report of the receiver of the sale or attempted sale made by appellees to R. C. Boyd, the court then declined to approve the sale at the price of $40 per acre, but later did approve a sale to R. C. Boyd at the price of $41 per acre. It further appears in the evidence that appellees applied to the receiver and sought allowance for commissions and also made like request of the court. The receiver refused to allow commissions, as did also the court, although it appears no formal minute entry to that effect was made.

An essential element of,a real estate broker’s right to recover commissions is that he shall find a purchaser ready, able, and willing to purchase upon the terms given by the owner of the land. This implies that the owner has the right, or may secure the right, to fix the terms of sale. But here the owners undoubtedly had neither of such rights. By virtue of an order of appointment a receiver becomes invested with full right to the possession and control of the property. It is in the custody of the law, and the control of the owner ends for all purposes necessary to the accomplishment Of the objects of the suit. See Mrs. S. S. Turner v. Cross and Eddy, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262; Texas Trunk Ry. Co. v. W. H. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; U. S. Mex. Trust Co. v. Young, 46 Tex. Civ. App. 117, 101 S. W. 1045; John C. Brown & L. A. Sheldon v. Charles Warner, 78 Tex. 543, 14 S. W. 1032, 11 L. R. A. 394, 22 Am. St. Rep. 67.

When therefore the court appointed a receiver in the case referred to and directed the receiver to make sale of the land, the power of the owners to fix the terms upon which the land should be sold ended. No person other than the receiver and the court which appointed him was authorized to fix terms or authorize a sale, so that appellee must be held to have known that the receiver and the court only could do so. Doubtless the receiver might have authorized appellees to find a purchaser and agree to reasonable compensation for their services which would have been approved by the court; but the receiver, as we have seen, refused to so agree, and no allowance for such services was made by the court. Moreover, the sale as actually ■ attempted by .appellees was not approved by the court. On the contrary, the sale was consummated upon different terms.

We conclude that, with knowledge of the facts that we have stated, appellees are not in position to enforce an agreement with an owner that they knew at the time the owner had no power to make. We do not wish to be understood as holding, however, that one or more of the joint owners might not have lawfully agreed to pay commissions for finding a purchaser who was ready, able, and willing to comply with the terms fixed by the receiver and court. The interest of the joint owner to secure a ready disposition of the receivership proceedings would doubtless form a sufficient consideration to bind him in an agreement of the kind indicated, but no such case is made by the pleadings here. In other words, the suit is not based upon an agreement on the part of appellants to pay appellees for procuring a purchaser acceptable to the court, nor is it based upon allegations that .appellants requested appel-lees to find a purchaser and seeking to recover what the services were reasonably worth. On the contrary, as we have seen, the sole basis of the suit in the pleadings is a contract that within the knowledge of ap-pellees appellants had no power to make.

We conclude that the judgment must be reversed and remanded, and it is so ordered.
      <gs»Por other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    SWEETMAN v. LAREDO ELECTRIC & RY. CO.
    (No. 6056.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 15, 1918.
    Rehearing Denied July 1, 1918.)
    1. Master and Seevant <®=^192(1) — Relation.
    Where soldiers, not under the control of defendant, were placed on guard around his power plant in the interest of the general public by the United States military authorities during a warlike situation, to suppress a hostile invasion, which was imminent, and not at defendant’s request, defendant- was not liable to a servant, shot through the negligence of a soldier, al-ihough,- if he were master of the soldiers, he would be liable, .
    2. Appeal and Eeeoe 1050(2) — Harmless Error — Evidence, .
    In action against master for injuries occasioned by a soldier guarding defendant’s plant, where it clearly appeared that the soldier was not a servant, testimony relevant only to the question of whether the soldier was negligent, if improperly admitted, was not reversible error.
    Appeal from District Court, Webb County; J. F. Blullally, Judge.
    Suit by W. H. Sweetman against the Laredo Electric & Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Paul W. Evans, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.
   SWEARINGEN, J.

This is a suit by W. H. Sweetman, the appellant, brought against the Laredo 'Electric & Railway Company, appellee, to recover damages alleged to have been inflicted upon appellant by being shot, while performing the duties of an employe of appellee, by a United States soldier, who was guarding appellant’s power plant. The cause was submitted to the jury in a general charge. A general verdict was returned in favor of appellee, in accordance with which judgment was rendered.

Appellant alleged that appellee had requested and obtained, and was employing, certain soldiers to act as guards of appellee’s power plant, and contiguous yard, land, and ground; that the soldiers were thus employed in the business of appellee, and were under its instructions, or if the soldiers were not employes of appellee, yet appellee knew that they were guarding its property, and knew the danger incident thereto to its employe, the appellant, yet failed to warn appellant of their presence and of the danger thereof, allowing appellant to remain in ignorance of the presence of such dangerous instrumentality as the said guard. It is also alleged that appellee was negligent in its duty to its employs, the appellant, because it failed to notify the soldiers on guard not to injure appellant when he should enter the premises to pursue his usual employment in the usual manner. It was alleged that appellant was in the employ of appellee, and while in the performance of the duties of his employment was negligently injured by being shot by the soldiers on guard. The injuries and damages were alleged.

A general demurrer and denial were pre- ' sented in the answer, which also specially alleged:

“That at the time of the injury to plaintiff there was a general alarm among the people of Laredo, and a feeling and common belief that the city was going to be attacked by Mexicans from across the river, and the United States army officers stationed at Et. McIntosh, on the western edge of the city, especially believed and thought that the city was going to be so attacked ; and to guard against' the same and prevent calamitous results to the citizens of Laredo, as well as to the troops and soldiers so stationed in Laredo, said army officers placed guards at the bridges reaching across the river, at the waterworks plant, at all bridges of importance between Laredo and San Antonio on the International & Great Northern Railway, the United States posit office building, the local telephone exchange, and around the plant and grounds of this defendant, as well as guards at various places up and down the Rio Grande from Laredo, all of which was done by said army officers as a military precaution, for the protection of the inhabitants of the city of Laredo, as well as the United States soldiers and army stores at Laredo. That said guards at defendant’s plant were placed there as an act of military necessity, and not as the agents or employes of defendant. That defendant paid them nothing, and had no control over them. That they were not under its orders, nor stationed at any particular place in or around defendant’s plant by defendant’s direction or suggestion. That said guard was entirely independent of all control or suggestion by this defendant. It further alleges that, to ameliorate the dangers incident to and for the convenience of its employes, and for' their protection, as well as for the protection of its own property, defendant had a designated place near the northwest corner, and in the opposite direction from the point of the expected attack, from which employes and others having legitimate business with the plant were to enter and leave, and all employes were notified thereof, and that the same was a rule of the company. But plaintiff, in utter disregard of such precaution and rule, and in violation thereof, carelessly and negligently attempted to enter said premises from the direction from which an attack was expected, and not from the place so designated by this defendant; and, when so approaching, the guard so placed at said point or place, twice commanded the plaintiff to halt, but, instead of obeying said command, the plaintiff continued to advance toward said premises, when the soldier so on guard fired his gun, -and the plaintiff was wounded.”

Appellant specially excepted to the above-quoted portion of the answer, the overruling of which exception is the basis of the first assignment. The facts are that appellant was shot by United States soldiers, while in the performance of the duties for which he was employed by appellee, about midnight, in the city of Laredo-. The United States of America and the governing power of the republic of Mexico were in an “imperfect” state of war at the time. It was believed that hostile raids would be attempted by Mexican soldiers, and the regular army officials, in the performance of their duty, undertook to guard the public against the destruction of light plants, waterworks, transportation, and public buildings. The soldiers put on guard at appellee’s plant were there by order of the commanding general of the United States Army for the protection of the public interests, and were not there in the private interest of appellee, and were not under his instructions or control, nor at his request. The relation of master and servant did not exist between appellee and the soldiers. Appellant was mistaken by the soldiers for a raider and shot.

The following facts are relevant to the allegation that appellee, the master, was negligent'in the fulfillment of his duty to warn appellant, his servant, of the danger created by the presence of the armed guard, which danger was unknown to- appellant: That the soldiers were guarding the power plant was known to both appellee and appellant. The necessity, purpose, and manner of guarding was known to both. The plant was inclosed by a wall or fence, with two gates for ingress. Entrance through the gates was free of danger from the soldiers. There was a hole broken into the brick wall in the rear of the plant, and it was by way of this hole that appellant entered the night he was shot. There was positive testimony that one of the soldiers called twice to appellant to halt, loud enough to be heard by appellant above the noise of the machinery in operation. Appellant did not heed the command, which caused the shooting. On the other hand, appellant testified that it was the custom of the employés to enter tlie plant through this hole in the wall as he did, and that he was not challenged, hut was shot without warning. The injuries and loss were of course proven.

The first assignment complains of the order of the court overruling appellant’s special exception to that portion of appellee’s answer containing the defense of “military necessity.” The assailed defense is quoted above in our description of appellee’s answer. The overruled exception thereto is as follows:

“Again comes the plaintiff and specially excepts to said first amended original answer, and particularly specially excepting to the first section of the third paragraph of said first amended original answer, and says that the same is wholly insufficient in law and sets np no defense to the plaintiff’s cause of action herein, for this: That in, the absence of a proclamation, and the establishment of martial law, there is no such thing known to the law as ‘military necessity’; and rumors and the acts and beliefs of the United States army officers stationed at Ft. McIntosh, on the western edge of the city of Laredo, did not authorize such army officers to take forcible possession and control of the defendant’s plant and grounds; and defendant’s permission or invitation to such- army officers to take possession and control or its said plant and grounds in no sense and to no extent relieved defendant of its duty and responsibility to furnish its servants, plaintiff among-them, with a safe place to work and with safe means of ingress and "egress to and from such plant and grounds.”

The exception was properly overruled. There are two counts against appellee, in the petition. The first charges that appel-lee is liable for the negligence of the soldiers, because they were its servants; the second charges that appellee is liable for its own negligence in failing to warn appellant of the danger of the patrol. Appellant alleged facts tending to show that the soldiers were the servants of appellee for the purpose of holding the master liable for the negligence of the soldiers and that the shooting was negligence. If the act of shooting was negligence on the part of the soldiers, then appellee would he liable for this negligence, if he were the master of the soldiers. This is expressly held in the case of T., N. & O. Ry. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857, where the master was held liable for the negligent shooting by his employé of a trespasser. In that ease the defense was that the negligent act was by a deputy sheriff, and not by an employé. The Supreme Court held that the officer was in the performance of a duty devolved upon him by his employment as a servant, and did not do the act in his capacity of an officer. Lipscomb v. Railway, 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804; Bas v. Tingy, 4 Dall. 36,1 L. Ed. 732; Montoya v. United States, 180 U. S. 261, 21 Sup. Ct. 358, 45 L. Ed. 521; Arce v. State, 202 S. W. 951 (opinion by Court of Criminal Appeals April 17, 1918).

The allegation of appellee, assailed by the special exception, specifically denies that ap-pellee, was the master, and denies the soldiers were its servants. To the better deny this, the answer alleged that the soldiers were not under the control of appellee, were not requested by it to be placed on guard, and were not engaged for its private interest, but were placed there in the interest of the general public, by the United States military authorities, during a warlike situation between tbis nation with an enemy nation, to suppress a hostile invasion, which was imminent. If this allegation were proven, and we find, in deference to the verdict of the jury, supported by the overwhelming weight of the evidence, if not the uncontra-dicted evidence, that it was proven, appel-lee would not be liable for the negligence, if any, of the soldiers in erroneously mistaking an employé for a marauder, and because of this error of judgment wounding the em-ployé. If appellee was not liable as a master for the negligence of the soldiers, then the only issue of negligence pleaded by appellant was that appellee was himself negligent, because he failed to warn the appellant, who was his employé, of the danger incident to the presence of armed soldiers stationed at the plant to prevent Mexican depredations, or failed to caution the soldiers that appellant would enter the plant through a hole in the wall, instead of the gate, and warn them not to shoot him. Because the answer was a complete defense against ap-pellee’s liability as master of the soldiers, it should not have been stricken out, even though appellee may have been liable because of the other allegations, viz. that ap-pellee was himslf negligent, because he failed to warn appellant of the danger from the soldiers, or failed to caution the soldiers not to shoot appellant. The first assignment is overruled.

The seventh paragraph of the court’s general charge, assailed by the second assignment, correctly presented appellee’s defense to appellant’s allegation that appellee was negligent, in that he failed to warn appellant of the danger. The allegation is that it was the master’s duty to warn his servant of the danger, and that he was negligent in the performance of this legal duty. The pleadings unquestionably present this issue. There was evidence that the gates were the provided places of ingress and were made safe by appellee. There was evidence that the master posted notices of the danger and that this was sufficient warning. There is at least sufficient evidence that the master used diligence to' warn appellant to justify the jury to so find, and their conclusion will bind us. The second assignment is overruled.

The third assignment complains of the admission of testimony, by one of the soldier's who composed the guard, that they expected an attack would be made by Mexican soldiers on the power plant that night, and expected it to be made from the direction of the hole in the wall. This testimony is only relevant to the question of whether the soldier was guilty of negligence in shooting the appellant under all the circumstances. We have determined that appellee was not the master of the soldiers, hence, would not be liable for their acts as master, even if the .soldiers were negligent; and we have stated that the only thing for which appellee could be charged with negligence would be his failure to exercise ordinary care to warn appellant of the danger. It therefore follows that the admission of this testimony could not change the judgment in this case, and is not reversible error. Rule 62a (149 S. W. x). We overrule the third assignment.

The fourth assignment is too general to authorize us to consider it.

The judgment is affirmed.
      <S=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    JONES v. CHRONISTER LUMBER CO.
    (No. 1997.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1918.
    Rehearing Denied June 29, 1918.)
    1. Guardian and Ward <©=>127 — Actions— Next Friend — Right oe Guardian.
    While a minor’s guardian may, under Rev. Civ. St. art. 2168, represent the ward in all suits filed after his appointment, he has no absolute right to displace the next friend in a case originating prior thereto.
    2.' Guardian and Ward <©=>127 — Action— Next Friend — Substitution oe Guardia^.
    Guardian’s allegations that ward was injured while employed in violation of law, and that his father, as next friend, made insufficient and inadequate settlement through ignorance, but that no final judgment was entered, made in an unsworn petition, were insufficient to require the court to substitute the guardian for the father as next friend.
    3. Evidence <©=>43(2) — Judicial Notice — Judgments.
    On petition in pending suit under allegation that no final judgment had been entered, the court may take judicial notice of the character of the judgment previously made.
    4. Ineants <©=>110 — Judgment—Vacating.
    A final judgment, in an action by a guardian ad litem, can be attacked by the infant’s guardian, only for fraud, accident, or mistake in an independent proceeding instituted for that purpose.
    5. Appeal and Error <®=»708 — Scope oe Review— SUEFICIENCY OE RECORD.
    Assignments of error, questioning court’s ruling as to whether a judgment was final, cannot be considered, when the original judgment or the pleadings on which it is based are not in the record.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by Joe Wilson Jones, by his guardian, Lona Ella Mullins, against the Chronis-ter Lumber Company. Judgment dismissing the petition, and plaintiff appeals.
    Affirmed, with qualification that dismissal be without prejudice.
    David E. O’Fiel, of Beaumont, and Jno. B. Guinn and A. T. Watts, both of Rusk, for appellant. Norman, Shook & Gibson, of •Rusk, and Blount & Strong, of Nacogdoches, for appellee.
   HODGES, J.

This appeal is from a judgment sustaining a motion to dismiss what is called an amended original petition by Lona Ella Mullins, guardian of Joe Wilson Jones, Jr., a minor. It was filed July 30, 1917, in a case styled Joe Wilson Jones, by His Next Friend, Joe Jones, v. Chronister Lumber Company, No. 6750 on the docket of the district court of Cherokee county. The petition begins as follows:

“Now comes Joe Wilson Jones, minor, suing herein by his guardian, Lona Ella Mullins, complaining of and against the Chronister Lumber Company, hereinafter styled defendant, and, leave of the court being first obtained, files this his first amended original petition in lieu of and as a substitute for all other pleadings filed by him herein; and for cause of action the plaintiff with respect thereto represents unto the court as follows, to wit,” etc.

The petition then recites the appointment of Lona Ella Mullins as the guardian of the minor in October, 1916, and alleges that this proceeding is for the purpose of setting aside a judgment previously rendered against the minor in this cause. Then follow at considerable length averments showing that in„ February, 1916, the minor plaintiff, when between 12 and 13 years of age, was injured while in the service of the Chronister Lumber Company, under circumstances which would support a claim for damages. It is averred that he was employed in violation of the law to work in close proximity to dangerous machinery, and the accident of which he complains resulted in the loss of one leg and one arm. The petition further alleges that at the February term, 1916, of tbe district court of Cherokee county a judgment was rendered, based upon a compromise and settlement, in which the minor plaintiff was awarded the sum of $1,000 as damages for his injuries; that this settlement was “insufficient and inadequate,” considering the nature of the plaintiff’s injuries; that .Joe Jones, the father of the plaintiff, who instituted the suit a short time before as the next friend of the plaintiff, was an ignorant, uneducated negro, and was prevailed upon by the representatives of the Chronister Lumber Company, who were well-educated white men, to make this inadequate settlement. It further appears from the petition that the suit by Joe Jones was instituted witbin a few days after the injuries were received; that the agreement was entered into and a judgment rendered without any contested trial. It is alleged, however, that this judgment was not final, in that it did not dispose of all the issues involved in the ease. The Chronister Lumber Company, defendant in the original suit, appeared and filed a motion to dismiss tbe petition for the following reasons: (1) If the petition be considered an attempt to file a motion for a new trial, it came too late; (2) if it was an attempt to set aside a judgment, then it was improperly filed in a cause disposed of, and such relief can be obtained only in a separate and independent suit; (3) because the petition was not sworn to; (4) because it shows upon its face that it was filed in the suit long after final judgment was rendered, and without authority of law. Defendant also filed exceptions, general and special, a general denial, and special answers not necessary to notice. The court sustained the motion and dismissed the amended original petition, and this appeal followed.

The assignments of error urged in this court attack the ruling of the court as holding that there was no final judgment rendered in the original suit. The record does not advise us as to the ground upon which the court based its order of dismissal. We have had some difficulty in determining just how this petition should be regarded. If it is to be treated as an application in a pending suit by the duly appointed guardian of the minor appellant, to be substituted for Joe Jones, the father, who was suing as next friend, for the purpose of prosecuting that suit to a final judgment, we cannot say that the court erred in sustaining the motion to dismiss. If, as alleged in the petition and insisted upon in the argument of the appellant, there had been no final judgment entered upon the compromise agreement, the controversy is still pending, and the court has the right to still inquire into the terms of the settlement, and, if found to be against the interest of the minor, to reject the compromise and to remove Joe Jones as a party to the suit and appoint a guardian or some suitable person to represent the minor. Article 2168, Rev. Civ. Stat.; Martin v. Weyman, 26 Tex. 466. While the guardian of a minor has the right, under the statute, to represent his ward in all suits filed after appointment, he has no absolute right to displace one who is suing as next friend in a case that originated prior to such appointment. The propriety of appointing a new representative of the minor in a pending controversy rests within the discretion of the court, and we cannot say that the averments of the alleged guardian in an unsworn petition like this were sufficient to require the court to make the change. It may be that the court heard evidence upon the motion to strike out the petition, and acted upon it, or he may have concluded that the judgment rendered in the cause was final, and that a pleading of this character could not be entertained. He had a right to take judicial notice in this instance of the character of the judgment or order that had previously been made in the case. Avocato v. Dell’Ara, 84 S. W. 444; Mixon v. State, 35 Tex. Cr. R. 458, 34 S. W. 290; Parker v. Panhandle National Bank, 35 S. W. 31; 7 Ency. of Ev. p. 1004 and notes.

If the judgment was final, it could be attacked only for fraud, accident, or mistake in an independent proceeding instituted for that purpose. The record filed in this court does not contain the original judgment or the pleadings upon which it was based, and we are unable to pass upon the questions presented in the assignments of error. It may be true that facts existed which would authorize the trial court to set aside the judgment, if final, upon some appropriate ground; but that is not the case presented in this petition.

While we feel it our duty to affirm the judgment, we do so with the proviso that it shall not prejudice the right of the minor plaintiff through his guardian to institute a suit attacking the former judgment in proper form. With that qualification the judgment is affirmed.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    GRAWUNDER v. GOTOSKEY.
    (No. 7583.)
    (Court of Civil Appeals of Texas. Galveston
    May 24, 1918.)
    1. Frauds, Statute of <§=>70 — Paboi Agreement — Change in Known Boundary.
    A parol agreement between owners of adjacent lands to fix their boundary line at a place other than its known and established location. is in contravention of the statute of frauds, and therefore ineffectual to cliang'e the true location of the line.
    2. Frauds, Statute of <§=>70 — Parol Agreement-Boundaries.
    Where adjacent landowners, the boundary between them never having been marked or fixed on the ground by a surveyor, and there being nothing in their deeds whereby the location could be fixed, other than the calls for courses and distances, employed a surveyor to locate the line, and, having no reason to doubt the line a's fixed by him was the true line, accepted it as such, and erected their fences accordingly, their parol agreement establishing boundary was valid, and not within the statute of frauds.
    3. Frauds, Statute of <§=>70 — Parol Agreement — Boundaries — Discovery of Mistake.
    A parol agreement fixing boundary line will not be set aside merely because it is subsequently discovered that the agreed line is not the true line.
    4. Boundaries <§=>42 — Action to Establish —Verdict.
    In trespass to try title to establish boundary, where the line claimed by plaintiff was definitely described in his petition, general verdict for plaintiff established the line as dcscrib-,ed, and was sufficiently definite to ¡support a judgment establishing the line as claimed.
    5. Judgment <§=>256(1) — Conformity to Verdict — Action to Establish Boundary.
    The fact that, in addition to the description of the line given in the petition, the judgment gives the variation at which the line is run, and other data shown by the undisputed evidence identifying the line- described in the peti- . tion, does not make it obnoxious to the rule which requires the' judgment to follow the verdict.
    Appeal from District Court, Austin County; Norman G. Kittrell, Special Judge.
    Suit by Joe Gotoskey against H. Grawun-der. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. G. Krueger, of Bellville, and Mathis & Teague, of Brenham, for appellant. Johnson, Matthaei & Thompson, of Bellville, and Sear-cy & Botts, of Brenham, for appellee.
   PLEASANTS, C. J.

This suit, brought in the form of an action of trespass to try title, involves only a question of boundary. The suit was brought by appellee against appellant. After a general description of plaintiff’s land, the petition describes and locates the east boundary line thereof, which is the line in dispute, as follows:

“The third above described line begins in the center of a lane in the prairie, which lane is located between the tracts of land of H. Gra-wunder, defendant, and Joe Gotoskey, plain tiff, between the north corner of Grawunder and the east corner of Gotoskey, and runs thence south 25 west (in fact south 23 degrees, 37 west) with a marked line marked by hdcks on trees and through the center of an ash tree about 15 inches in diameter, marked fore and aft by old hacks, which tree is located about 700 or 750 varas from the league line, to a corner near the center of said lane and in a straight line, the same being the south or southeast corner of said 25-acre tract owned and claimed by plaintiff.”

The petition further alleges:

“Plaintiff shows to the court that the east line of plaintiff is the west line of the land owned by defendant, and runs through the middle of an old line inclosed by the fence of plaintiff on one, side and by the fence of defendant on the other side, the location of said division line and lane having been fixed, established, and agreed upon by A. C. Jackson and J. H. Jackson, the former owners and vendors of plaintiff and defendant, which division line was agreed upon by said vendors and lane established and fence constructed on each side of said lane more than 25 years ago.”

The defendant answered by general denial, plea of not guilty, and by special plea, averring that the line in question was not located as claimed by plaintiff, and describing its location as claimed by defendant. The evidence shows that in December, 1886, A. O. Jackson conveyed to his brother, J. H. Jackson, the 25 acres of land on the W\. O. White league claimed by plaintiff in this suit. The two Jacksons at the date of the execution of this deed owned .adjoining tracts of land on the league, and the. 25 acres sold by A. O. to J. H. Jackson was a strip of land along the west side of the tract owned by A. O. Jackson. The deed conveying this strip of 25 acres describes it as follows:

“Beginning at a stake in the lake from which a I'oeust marked ‘X’ bears S. 87½ deg. E. 4 vrs. and another locust marked ‘X’ bears N. 51½ W. 10 vrs., both of which bearing trees are gone, being also the southwest corner of a 240 acre survey out of a 392 acre tract for A. G. Jackson; thence north 25 E. 2590 vrs. to a stake, said Jackson’s North corner; thence south 45 E. 57 vrs. to an imaginary stake; thence south 25 W. about 2590 vrs. to the south line of said A. O. Jackson’s 242 acre survey; thence north 65 W. 56 vrs. to the place of beginning, containing 25 acres of land.”

About 2 years after this deed was executed the Jacksons, desiring to fence their respective tracts of land, employed a surveyor named Francis to locate the dividing line between their tracts, which was the third or east line called for by the field notes in the deed to the 25-acre strip above set out. This line was located and marked -by the surveyor as now claimed by appellant, and the Jacksons constructed their division fence along said line. They afterwards made a lane between them, the line being in the center of the lane. A. O. Jackson testified:

“I do not remember the date of the establishment of the lane, but said lane was agreed upon and recognized by myself and J. H. Jackson as the dividing fine. Said lane was recognized by us as the dividing line between our lands for about 15 years, or as long as we owned the property in question. Said lane was about 16 feet wide. -The said lane began at the upper or* north line of our respective tracts, and extended to the league line on the south. My entire tract of land was under fence. My entire tract of land was under fence from the time X built a fence along or near the west line of said tract or lane fence. Said fence was in good condition along the land during the entire time I owned it. X sold said land in question to John Ziewert above five years ago.”

J. H. Jackson testified:

“My brother’s land was in Austin county on the White league just east of mine. W® had the line between us surveyed and divided by fence, and afterwards we made a lane there * that went clear through about 16 feet wide, the center of the lane being the line. The lane went through the old lake. The lane was always agreeable to us, and was recognized by myself and A. C. Jackson as the dividing line between our land from the time it was built until we sold the land, and the lane is the dividing line. The lane extended from the northeast to the southeast corner of my land. It was between my land and the land of A. O. Jackson. We built the fence down to the lake. First that was our dividing line, and later on I fenced my whole tract of land.”

John Ziewert sold to appellant the land conveyed to him by A. O. Jackson. Appellee, Joe Gotoskey, bought the J. H. Jackson tract about a year prior to the time Ziewert bought from A. O. Jackson. Ziewert testified:

“I once owned some land in Austin county. I bought it about 6 years ago from Ab Jackson. Joe Gotoskey owned the land adjoining it. Joe Gotoskey bought the land from John Jackson about 1 year before I bought from Ab Jackson. The boundary line on the west between my land and Joe Gotoskey is in the middle of a little lane between Joe Gotoskey and myself. I sold the land to H. Grawunder, and told him while in Bellville what Ab Jackson told me about the line being in the middle of the lane. This was the line between myself and Joe Gotoskey. Ab Jackson told me that he and his brother John Jackson had agreed on the line in the middle of the lane.”

E. B. Wilson testified he knew John and Ab Jackson, owned land adjoining the lands of the Jacksons; remembered when the lane between Ab and John Jackson’s land was made.- The Jacksons told Mm it was the dividing line between their lands. The lane was kept up 20 to 25 years. The Jacksons were honorable men.

Joe Gotoskey, the plaintiff, testified he had lived on the place he purchased from John Jackson. The fences around the place that he purchased from John Jackson are in the same place they were in when he purchased the place.

There is testimony .that the line in the center of the lane which was established by the Jacksons does not run in accordance with the course called for in the deed from A. C. to J. H. Jackson; and, if it be located in accordance with the calls in the deed, it will leave the old lane after about half its distance is run, and will give appellant 4 or 5 acres of land more than he has with the line located where it wq,s fixed by Francis and agreed upon by the Jacksons.

Ludwig, the surveyor who made the survey establishing the line .as claimed by appellant, testified:

“I could not tell you what variations Mr. Francis used when he ran those lines. He might have used the same variations. Variations get lower every year a few minutes. If the variations used by me in making that survey and the one used by Mr. Francis were different, we would not come out at the same point; but we would run different. In running those lines I got my variations on the north line, which is the recognized line. I did not survey the 25 acres of land that Ab Jackson sold to John Jackson. I do not know anything about that 25 acres.”

H. Grawunder, the defendant, testified:

“I bought 217 acres of land from John Zie-wert in 1910'; paid $29 per acre for it. At the time I bought it I did not know, and never heard, that the Jacksons among themselves had ever agreed about any boundary line between them.”

After the plaintiff had introduced his testimony as to the location and establishment oí the line by the Jacksons above set out, the defendant moved to strike out said testimony on the following grounds:

“First. Because there is not any fact or facts alleged by plaintiff in his fourth amended original petition which charges that there was a dispute between the said Jacksons as to where the boundary line between them ever was, or that the boundary line between their respective tracts of land was ever in dispute or in doubt.
“Second. Because it is absolutely essential in pleading an agreed boundary line to set forth every essential fact which would make an agreed boundary line valid, and legally binding on the parties to such an agreed boundary line.
“Third. Because the plaintiff’s testimony fails to show that, if the said Jacksons agreed upon a boundary line, such an agreement was in writing, that it was duly acknowledged and recorded, or that the defendant had any notice of such an agreement when he purchased.
“Fourth. Because the testimony of an agreed boundary line is insufficient to establish an agreed boundary line between said Jacksons, because if such an agreement was had it was oral, and because said testimony does not show that the boundary line between the lands of the said Jacksons was ever in doubt or in dispute, and that, in order to settle a doubtful or disputed boundary line, they agreed upon a line.
“Fifth. Because there is no pleading by the plaintiff upon which to base the admission of said testimony of agreed boundary line or to justify the admission of such testimony.”

TMs motion was overruled by the court. Defendant then moved to instruct the jury to return a verdict in his favor on the grounds that the pleading and evidence were insufficient to establish an agreed line, and there was no sufficient evidence to sustain plaintiff’s plea of limitation. The court refused this motion, and on its own motion instructed the jury to return a verdict for the plaintiff on the grounds that the undisputed evidence established an agreed boundary line as claimed by plaintiff, and also showed title in plaintiff under the statute of limitation of 10 years. In accordance with this instruction the 'jury returned the following verdict: “We, the jury, find for plaintiff.” Upon this verdict the court rendered judgment for plaintiff, fully describing the land claimed by-plaintiff, and establisMng and describing ‘the line as claimed and described by plaintiff in his pleading and identified by the evidence. Under appropriate assignments of error appellant complains of the several rulings of the court above set out. We do not think the court, in refusing defendant’s motions to strike out the testimony and instruct a verdict in his favor, nor in instructing a verdict in -favor of plaintiff, committed any error.

The contention that a parol agreement between owners of adjacent lands to fix their boundary line at a place other than its known and established location is in contravention of tbe statute of frauds, and therefore ineffectual to change the true location of the line, is perfectly sound, hut we do not think the principle is applicable to tbe facts in this case. The location of the line in dispute had not been established, and could not have been known, to the Jacksons at the time they had the survey made and the line established as now claimed by plaintiff, and which was accepted and recognized as tbe boundary line by tbe owners of the land for more than 25 years. It seems to us that every essential of a valid parol agreement establishing a boundary line is shown by tbe undisputed evidence. The line had never been marked and fixed on the ground by a -surveyor. There was nothing in the deed by which its location could be fixed other than the calls for course and distance. In this situation the parties, being desirous of fencing their lands, employed a surveyor to locate the line for them, and, having no reason to doubt that the line as fixed by the surveyor was the true line, accepted it as such, and erected their fences in accordance therewith. To hold that, after more than 25 years’ recognition by tbe owners of tbe land of this agreed line as tbe true line, a remote vendee of one of tbe owners wbo agreed to tbe line as originally surveyed and established can, upon discovering from a resurvey that tbe first survey was inaccurate, change tbe line as originally established would destroy the doctrine that a boundary line can be fixed by parol agreement. There is no hile of decision' more" firmly established than that a parol agreement fixing a boundary line will not be set aside merely because it is subsequently discovered that the agreed line is not the true line. Cooper v. Austin, 58 Tex. 501; Lecomte v. Toudouze, 82 Tex. 214, 17 S. W. 1047, 27 Am. St. Rep. 870; Coleman v. Smith, 55 Tex. 259.

The cases of Voigt v. Hunt, 167 S. W. 745, and Ware v. Perkins, 178 S. W. 846, are cited by appellant in support of his contention. In the Voigt Case the parties knew that the line agreed upon by them was not the true line, and the court correctly held that to uphold a parol agreement of this kind would in effect sanction the passing of title to land contrary to the statute of frauds. In the Ware Case there was no agreement fixing a boundary. The owner of a large tract of land executed a lease to a portion thereof described as follows:

“Beginning at a point 1500 varas from its N. E. corner on the E. line of said [named] survey. Thence W. to the W. line of said survey. Thence south a number of varas sufficient to make 200 acres of land.”

Some time after this lease was executed the grantor had an office plat of his land made up in which the 200 acres covered by the lease was designated, and the balance of his land platted in blocks of varying sizes. He subsequently, without any agreement or consulta" tion with the lessee of the 200 acres, took a surveyor out to the land and had the corners of the different blocks, as shown on this plat, marked with stakes. As shown on this plat and marked by the stakes set by the surveyor there was a slight excess in the 200-acre block. In a suit between a subsequent vendee of the owner and an assignee of the lessee it was held that the platting of the survey into blocks by the owner and the subsequent marking of the corners by him was not sufficient to show the establishment of a boundary line by agreement. We think the facts of these cases easily distinguish them from the instant case.

We think the allegations of plaintiff’s petition in regard to thef establishment of the agreed boundary line were sufficient to let in the evidence showing the fixing of the line by agreement. No exceptions were made to the sufficiency of the petition in this respect.

There is no merit in appellant’s contention that the verdict was. insufficient to support the judgment, in that it does not definitely define or describe the boundary line. The line is definitely described in plaintiff’s petition, and a general verdict in favor of plaintiff is a finding establishing the line as described in the petition, and is suffi'eiently definite to support a judgment establishing the line as claimed by plaintiff.

The fact that in addition to the description of the line given in th'e petition the judgment gives the variation at which the line is run and other data shown by the undisputed ■ evidence identifying the line described in the i petition does not make it obnoxious to the rule, which requires the judgment to follow the verdict.

We think the judgment of the court below should be affirmed; and it bas been so ordered.

Affirmed.
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author: MOURSUND, J.

text:
    COFFIN et al. v. GREEN et al.
    (No. 6069.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 15, 1918.)
    1. COMPROMISE AND SETTLEMENT <⅜=>23(3) — Evidence — Sufficiency.
    Evidence held insufficient to establish an oral contract of settlement between the parties .by which a pending suit was to be dismissed' and attached cotton taken by defendant at a specified price.
    2. Appeal and Error ®=»843^^Review-Unnecessary Questions.
    . It is unnecessary to determine the effect given to the jury’s answer to a special issue concerning agreement by defendant to hold goods in warehouse, where neither such agreement nor claim for breach thereof were pleaded, and the cause must be reversed on other grounds.
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    Suit by Mrs. Eilleen Green. and another against William Coffin and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Beasley & Beasley and L. D. Stroud, all of Beeville, for appellants. R. P. Coon, of San Antonio, and M. A. Childers, of Slnton, for appellees.
   MOURSUND, J.

This is a suit filed September 23, 1916, by Mrs. Eilleen Green, joined by her husband, against the copartner-ships, Coffin & Son and John S. Wagnon & Co., and the individuals composing said firms, in which plaintiffs alleged that defendants caused a levy to be made upon 30 bales of cotton, the separate property of Mrs. Green, weighing in the aggregate 15,000 pounds, and worth 10 cents a pound, and that said defendants took possession of the cotton, and in October, 1914, informed plaintiffs of sncb possession ; that during said month an agreement was made between plaintiffs and defendants, whereby defendants were to take said cotton and sell or use same, and to deliver to plaintiffs the proceeds thereof, less such obligations, if any, as were due defendants by plaintiffs, and guaranteed that they would pay plaintiffs 10 cents per pound for such cotton. They also alleged that during the month of November defendants came to plaintiffs’ home and informed them that they were going to sell said cotton at public sale during said month, but failed and refused to disclose to plaintiffs when and where such sale would be made, but told plaintiffs they would be personally liable for said cotton, and promised plaintiffs they would see that said cotton was disposed of at the reasonable market value of same; that said cotton was in their possession, and that plaintiffs need not pay any attention to the matter, but that they would handle the same and see that it sold at its market value, to wit, $1,600, and the proceeds of said sale delivered to plaintiffs; that they relied upon such representations, and did not thereafter undertake to look after the cotton and protect their interests. A comparison of the allegation as to the conversation during the month of November, 1914, with paragraphs 4 and 7 of the original petition and paragraphs 4 and 7 of the first amended petition discloses that in said first two petitions the transaction alleged to have taken place in November was relied upon, and no such contract as is alleged in the petition on which the case was tried, as having been made in October, was pleaded in either of said first petitions. They alleged, further, that about December 12, 1914, defendants converted said cotton and the proceeds thereof to their own use and benefit. It was alleged on information and belief that defendants had sold the cotton for 10 cents per pound. Plaintiffs prayed for judgment for $1,600, with interest. In the alternative they prayed that if the agreement could not be enforced, then that they have-judgment for the reasonable market value of the cotton, which was alleged to have been the same as the price alleged to have been guaranteed by defendants.

Coffin & -Son, and the individuals composing the firm, answered by general and special exceptions, a general denial, a special answer to the effect that if they took possession of the cotton under any process it was by virtue of a writ of attachment issued in cause No. 1674, wherein the defendants (presumably Coffin & Sons) were plaintiffs and plaintiffs herein were defendants, which writ was levied on the cotton on August 28, 1914; that plaintiffs defended said suit and set up a cross-action for damages for wrongful attachment, which was decided adversely to them in the judgment rendered in said cause on October 22, 1914; that the judgment thus rendered has not been appealed from; and that all matters involved in this suit were adjudicated in said former suit. Said defendants invoked the statute of two-years limitation on the theory that the cause of action pleaded by plaintiffs arose on August 28, 1914, more than two years from the filing of the suit; also on the theory that,, the contract relied on was not pleaded until October 5, 1917, more than two years after the cause of action arose which was attempted to be based on such ágreement. Said defendants also pleaded that the former suit was prosecuted and defended after such agreement was made, if any was made, and thereby the agreement was repudiated, and therefore the cause of action based thereon was barred by limitation of two years. They prayed that, if any judgment should be rendered against them, the same be credited with the judgment rendered in their favor, in cause No. 1674.

By supplemental petition plaintiffs alleged that the agreement pleaded in their original petition was made “about the 28th, 29th, or 30th of October, 1914,” after the filing of suit No. 1674, and after plaintiffs had answered , therein, and that the agreement included a provision that the suit would be dismissed, or, if judgment had been taken, the same would be released; that if the cotton was sold by any officer, it was in violation of the agreement, and if any such sale was made it was void for the reason that notice thereof was not given for the time prescribed by law; that the 30 bales of cotton were left' in the possession of defendants for adjusting the indebtedness of plaintiffs to Coffin & 'Son in the sum of about $88 and Wagnon & Co. in the sum of about $300; that the matter involved in this suit has never been adjudicated; that if there was- any trial of the former suit it was in violation of the agreement and without notice to plaintiffs.

Defendants Coffin & -Son, by supplemental answer, again urged the two-year statute of limitation on the theory that by adding the allegations with regard to the agreement providing for dismissal of the former suit, a new cause of action was pleaded.

The suit was dismissed as to Wagnon & Co., and the individuals composing said firm, and as between plaintiffs and the other defendants was submitted upon special issues, those contained in the general charge, and the answers thereto, being as follows:

“(1) At the time the plaintiffs and the defendants were undertaking to settle the matters of difference between them and which resulted in the alleged contract sued upon:
“(a) Were the suits brought by Coffin & Son and Wagnon & Co. then pending against plaintiffs to be dismissed? Answer: Yes.
“(b) Did Coffin & Son insist that Mrs. Green pay the debts due by the Mexican tenants? Answer: Yes.
“(c) Did Mrs. Green agree to pay the debts of the Mexican tenants? Answer: No.
“(d) Was Mrs. Green to execute notes payable to Coffin & Son and Wagnon & Co. in full or part payment of the debts due them? Answer: Yes, in part payment.
“(e) If you have answered the foregoing question in the affirmative, then answer: Were such notes ever executed and tendered to Coffin & Son and Wagnon & Co.? Answer: No.
“(f) Were Coffin & Son to place the cotton in the warehouse and sell the same only when instructed to do so by Mrs. Green? Answer: Yes.
“(g) Were Coffin & Son to see that the cotton was not sold for less than 10 cents per pound? Answer: Yes.
“(h) If Coffin & Son agreed to place the cotton in the warehouse and not to sell same until instructed to do so by Mrs. Green, or not to sell the cotton for less than 10 cents per pound, was it upon the condition that the accounts of the Mexican tenants be paid? Answer: Yes.
“(i) Was it understood between the parties that their agreement, if any, to settle the matters of difference, between them was to be reduced to writing and signed before it should become binding upon them? Answer: No.
“(j) Did Coffin & Son understand that the agreement, if any, to settle the matters of difference between them and the plaintiffs was to be reduced to writing.and signed before it should become binding upon the parties? Answer: No.
“(k) Was the agreement, if any, ever reduced to writing and signed by the parties? Answer: No.
“(2) Were the negotiations between the par'ties plaintiff and defendant, looking to the settlement of the matters of difference between them, had before, or were they had after, the judgment was rendered in cause No. 1674 on October 22, 1914? Answer: After October 22, 1914.
“(3) In whose control and possession was the cotton prior to the time of its sale under foreclosure on December 12, 1914? Answer: Coffin & Son.
“(4) What do you find to be thé gross weight of the thirty (30) hales of cotton the subject-matter of this suit? Answer: 14,550 pounds.”
The following issues were given at the request of plaintiffs:
“(1) Did plaintiffs ever agree or consent for the sale of said thirty bales of cotton in controversy herein? Answer: No.
“(2) What was the market price'of cotton, in Mathis, San Patricio county, Tex., on the date same was taken over by the defendants, in December, 1914? Answer: 6% cents per pound, or total of $963.94.”

Upon such verdict judgment was rendered in favor of plaintiffs against Coffin & Son, and the members of said firm for $1,702.35, being the value of the cotton, 14,550 pounds, at 10 cents per pound, and interest on said value from December 12, 1914, to date of trial.

It is contended that the evidence fails to support a finding that such a contract as was pleaded by plaintiffs and made the ha-sis of the judgment was in fact made, and that the verdict itself discloses that the minds of the parties did not meet. There was no proof of any such contract as was pleaded, namely, a contract to pay 10 cents per pound for the cotton in consideration that the amounts of the obligations, if any, as were actually due by plaintiffs to defendants should be retained by defendants out of the purchase price of the cotton. Such a contract would imply that the amount of the obligations justly due would be determined by the courts, otherwise it would not be a contract, as it would require a further agreement as to such amounts. As a matter of fact, as disclosed by the testimony of all the parties, it was never even proposed that a contract be made by which the amounts due by Mrs. Green were to be judicially ascertained. The efforts of the parties were directed towards effecting an agreement as to the amounts which were to be charged against her, provided the defendants would take the cotton ,at 10 cents per pound.

The principal facts are as follows: Mr. Green had placed 9 bales of cotton on the station platform to ship to Houston, and Coffin & Son brought a suit in the justice’s court on certain items, and attached such cotton. Thereupon he and Mr. Miller, a brother of Mrs. Green, went to see Mrs. Green, and Miller, being of the opinion that Green was trying to dispose of his wife’s cotton, urged her to protect Coffin & ■ Son, one of the Coffins being her brother-in-law, and Wagnon i& Co. It was decided that attachments should be levied on the entire crop, and in order to do this suits were filed in the district court, the one by Coffin & Son being numbered 1674, and that by Wag-non & Co., 1675. Attachments were issued and levied on the crop, and the expenses of picking and ginning paid by Coffin & Son. One of the Coffins testified he had been out in handling the cotton $940.40, and $75 for ginning and weighing. This was not disputed. It appears that a few days after the attachment was issued out of the district court, which was about August 28, 1914, defendants had a conversation with Mrs. Green, in which, according to Coffin’s testimony, they told her they would hold the cotton until she saw if the market justified them in selling, and she was to come in and have a written agreement as to how it would be settled.” Mrs. Green said they told her they would store the cotton in a warehouse until she said they might sell it. Again she said they stated they would put it in a warehouse and sell it when it went up. Negotiations looking to a settlement were entered into, and a meeting had at AVagnon’s store for the purpose of entering into a written contract of settlement. It appears that Mrs. Green contended she only owed $88 to Coffin & Son, while they claimed she was indebted in a considerable additional sum for goods delivered to tenants. She did not testify that Coffin ever agreed that he would only deduct $S8, nor did she say that she ever agreed that he might deduct the full amount claimed by him. She did not recollect that she had' ever agreed to pay the claims other than the $88. At the meeting at Wagnon’s store, an agreement was written out by Paden, in the presence and with the assistance of Mrs. Green as to the terms to be embraced therein. This instrument was delivered to her to he taken home and signed by her and her husband. It appears that this written agreement provided for a note to be given by Mrs. Green in part payment of her obligation to Coffin & Son and Wagnon & Co. She did not state, nor did any one else state, how much she was to he charged jvith in favor of Coffin & Son, under the terms of said agreement, but it may reasonably be inferred that it was not merely $88, as it is not probable that Coffin & Son would go to so much trouble to collect $88 and then take a note for part of it, or that she would demand a settlement involving >the giving of a note. The agreement was never signed, or at least never returned to the other parties for their signatures. There is no contention, and can he no contention, that up to this time any agreement was ever consummated. The jury’s findings In answer to subdivisions (i) and (j) of issue No. 1 are not supported by the evidence. There is no evidence of any subsequent meeting or contract, unless it be presumed there was because the parties do not agree as to the date of the meeting at Wagnon’s. Each side testified only to one meeting for the purpose of drawing an agreement or reaching an agreement, and Mrs. Green’s testimony throughout shows that at such meeting the agreement was reduced to writing. Her final summary is as follows:

“After making tripst to town in an effort to settle these accounts, I went in to see my brother-in-law, and took bills of sale and released so many bales of cotton, and he was to return the rest of it, and we made the agreement for 10 cents,' and for me to pay so much and for them to return the rest of it and to give a note, with interest, for the rest of it. All these agreements were in writing.”

She does not deny that she and her husband refused to sign the written agreement; and, while she speaks of bills of sale, it does not appear that any bill of sale was ever delivered. In ber brief the contention is made that there was a subsequent meeting at Wagnon’s store in which a verbal agree-' ment was consummated. This is urged in order to avoid the proposition that the attempt to make the agreement in writing fell through. As stated, there is no evidence of any subsequent meeting or verbal contract made after her failure to return the written agreement. Coffin stated that when she failed and refused to sign the agreement he told her the suit would have to go, on, and she did not deny such testimony. She makes the further contention in her brief that the minds of the parties met, in that Mrs. Green told Coffin she would only deduct $88, and that he took possession of the cotton and had it sold, and thereby accepted her proposition. No such contract is pleaded, and besides the theory rests upon the erroneous assumption that possession was taken by Coffin of tbe cotton pursuant to such a proposition by Mrs. Green. The cotton was attached before the parties ever had any dispute as to the amount, so far as the record discloses. It was taken possession of by the constable under writs of attachment, and was kept by him in a warehouse until he sold it under order of court issued in said cause No. 1674, under a judgment rendered on October 22, 1914, and entered on October 28, 1914. That case was defended in behalf of Mr. and Mrs. Green by an attorney employed by Mr. Green, who pleaded a general denial, and especially denied the allegations regarding sale of merchan-' dise to Mrs. Green for her tenants, and who also interposed a plea of limitation, and pleaded in reconvention for 'damages for1 alleged wrongful issuance of attaehmtent. He succeeded in reducing Coffin & Son’s demand considerably, but judgment was rendered for plaintiffs for $62.67 against Green and for $489.45 against Mrs. Green and her husband, and for foreclosure of the attachment lien. He filed a motion for new trial on October 81, 1914, which was overruled the same day. An effort to effect a settlement was made by Coffin & Son, through their attorney, but no agreement could be reached, - so the cotton was sold under order of sale, and bought in for Coffin & Son for $346.01 on December 12, 1914. Althougn notice of appeal was given, no appeal was perfected, and the judgment has not been set aside by direct attack, and cannot be held for naught in a collateral suit.

As the testimony, even of Mrs. Green, shows that no agreement such as was pleaded was ever made, it is unnecessary to discuss whether the transactions testified to by ber, and relied on by her, took place before or after the trial of cause No. 1674, or to discuss the merits of defendants’ plea of res adjudicata.

No testimony was .adduced in support of the plea that in November, 1914, statements were made which induced Mrs. Green to take no interest in the sale of the cotton, and enabled Coffin & Son to buy it at an inadequate price.

The question designated as subdivision (f) of the first issue does not relate to the contract sued upon by plaintiffs, but to a preliminary agreement, which was made in contemplation of arriving at an agreement settling all matters in dispute. It is unnecessary to determine What effect is to be given to the jury’s reply thereto, for ho such agreement is pleaded, and no claim of conversion for breach of such an agreement is contained in the pleadings.

We conclude that the judgment should be reversed, and judgment rendered that plaintiffs take nothing by tbeir suit.

Reversed and rendered.
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author: PHEASANTS, C. J.

text:
    FIRST NAT. BANK OF CROCKETT v. HARDTT et al.
    (No. 7560.)
    (Court of Civil Appeals of Texas. Galveston.
    May 9, 1918.
    Rehearing Denied May 29, 1918.)
    1. Appeal * and Error <§=>882(12) — Right to Allege Error— Invited Error.
    Where the cause was submitted substantially upon the special issues requested by appellant, any error in the charge was invited and acquiesced in by appellant, and its complaint of error could not be heard, in view of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, relating to the submission of charges.
    2. Appeal and Error <§=>882(15) — Invited Error — Instructions.
    Where the court, with appellant’s acquiescence, instructed that appellees’ knowledge and good faith in purchasing from appellant’s debtor need not be considered if the jury found that the debtor was not insolvent, and the jury found that he was not then insolvent, there was no error in refusing appellant’s special charges submitting the issue of appellees’ good faith.
    3. Appeal and Error <§=742(5) — Assignments — Statements.
    An assignment of error to the refusal of charges as to appellees’ good faith could not be sustained where the statement did not contain any facts showing that appellees when they purchased the land from appellant’s debtor knew or had any reason to believe that he was conveying to delay or defraud his creditors or any fact impeaching their good faith.
    4. Appeal and Error <§=>742(1) — Assignments oe Error — Statement.
    An assignment of error in not granting a motion for a new trial because the verdict was contrary to the preponderance of the evidence as to the debtor’s insolvency, followed by a statement referring to testimony on certain pages of statement of facts, would not be considered because pointing out no matter authorizing reversal, and because not followed by a sufficient statement.
    5. Appeal and Error <§=>1091(1) — Verdict-Evidence — Reversal.
    Appellate courts can only reverse a judgment rendered upon a verdict when there is no evidence to support the verdict or when it is so manifestly against the groat weight and preponderance of the evidence as to be clearly wrong and to justify the conclusion that it resulted from passion, prejudice, or other improper motive.
    6. Appeal and Error <§=>837(8) — Review — Matters Considered.
    In determining an assignment of error in the overruling of a motion for a now trial, the appellate court will not consider insufficient reasons for its action recited by the lower court in its order denying the new trial, where the fac'ts justifying the denial are properly shown by the record.
    Appeal from District Court, Houston. County; John S’. Prince, Judge.
    Consolidated actions between the First National Bank of Crockett and J. F. I-Iardtt and others. From a judgment denying foreclosure of an attachment lien, the Bank appeals.
    Affirmed.
    Adams & Young and Nunn & Nunn, all of Crockett, for appellant. Aldrich & Crook, of Crockett, and G. B. Fenley, of Uvalde, for appellees.
   PHEASANTS, C. J.

This appeal is from a judgment rendered in two suits between appellant and appellees! which were consolidated and tried as one. A statement of the names of all the parties and the issues presented in the twoi suits is unnecessary, since the only portion of the judgment complained of is that denying appellant a foreclosure of an attachment lien upon 2,800 acres of land in Zavalla county, Tex., owned by the defendants, R. R. Simpson, Otis D. Simpson, Evelyn Simpson, Skelton J.- Simpson, and James A. Simpson.

The facts alleged by appellant upon which the attachment was sued out and a lien claimed upon the 2,800 acres of land to secure the payment of an indebtedness due appellant by G. T. Simpson are in substance:

That the land was on July 17, 1914, the property of G. T. Simpson, who was then wholly insolvent and indebted to appellant and to other named persons in various amounts, the amount due appellant being $2,000; that on said date G. T. Simpson sold the land to R. R. Simpson for the purpose and with the intent to hinder, delay and defraud appellant and the other creditors of said G. T. Simpson; that R. R. Simpson knew of such fraudulent intent when he took the deed to the land; and that the considerations named in the deeds were simulated and no consideration was in fact given for the land. Similar allegations as to notice of fraud of G. T. Simpson and the want of consideration are made in regard to the conveyances under which the other appellees acquired title. It was further alleged that G. T. Simpson was in truth and in fact the real owner of the land, and that it was subject to the lien created by the attachment which appellant had procured to be regularly issued and levied upon the land. These allegations were all denied by the pleadings of appellees. The cause was submitted to a jury in the court below upon special issues. The charge of the court submitting the case, in so far as it relates to the issues presented by this appeal, is as follows:

“By ‘insolvency’ is meant one who is unable to pay his debts, and whose estate is insufficient to pay his debts.
“First. Was G. T Simpson insolvent on the 17th day of July, 1914? Answer ‘Yes' or ‘No.’
“If you have answered the foregoing question in the negative, you need not answer any other issue. But, if you have answered said question in the affirmative, then I submit to you the following issues:
“Second. Did R. R. Simpson know of the insolvency of G. T. Simpson, or have knowledge of such fgets and circumstances as would have put a reasonably prudent person on inquiry as to his. solvency or insolvency? Answer ‘Yes’ or ‘No!’
“Third. Did G. T. Simpson convey to R. R. Simpson the Zavalla county lands with intent to hinder, delay, or defraud his creditors, and did R. R. Simpson know of such intention? Answer ‘Yes’ or ‘No.’
“In connection with the third issue, you are instructed that the burden of proof is upon the defendant bank to sbow by a preponderance of I the evidence that G. T. Simpson conveyed to R. | R. Simpson the Zavalla county lands with intent to hinder, delay, or defraud his creditors, and that R. R. Simpson knew of such intention, or had knowledge of such facts as would put a reasonably prudent person upon inquiry, and that such inquiry, if pursued, would have acquainted R. R. Simpson with such intent. And if you so find, you will answer said issue ‘Yes.’ And, unless vou do so find, you will answer said issue ‘No.’ ”

In response to this charge the jury answered the first question “No,” and made no answer to the remaining questions. Upon the return of the verdict judgment was rendered in favor of appellees that appellant take nothing against them.

The first assignment of error presented by appellant is as follows:

“The court erred after submitting- the issue as to whether G. T. Simpson was insolvent on the 17th day of July, 1914, in instructing the jury as follows: ‘If you have answered the foregoing question (meaning was G. T. Simpson insolvent on July 17, 1914) in the negative, you need not answer any other issue, but if you have answered said question in the affirmative, then I submit to you the following issue: Did R. R. Simpson know of the insolvency of G. T. Simpson, or have any knowledge of such facts and circumstances as would have put a reasonably prudent person on inquiry as to the solvency or insolvency?’ ‘Did G. T. Simpson convey to R. R. Simpson the Zavalla county lands with the intent to hinder, delay, or defraud his creditors, and did R. R. Simpson know of such intention?’
“Because the court in presenting to the jury the issues in this form limited the inquiry to the question of insolvency of the defendant G. T. Simpson, and upon their finding that the defendant G. T. Simpson was not insolvent on the 17th day of July, 1914, they could not pursue the inquiry any further. The jury answered this question in the negative, and governed by the instructions of the court, did not consider the case further but returned their verdict accordingly.”

Without regard to the question of whether this charge was an erroneous application of the law to the case made by the pleadings and evidence the assignment cannot be sustained. The record shows that the cause was submitted upon special issues at the request of appellant, and that the issues prepared and presented to the court by appellant for submission to the jury, before the court prepared the charge given the jury, contain the following:

“No. 1. Was G. T. Simpson insolvent on the 4th day of July, 1914? Answer ‘Yes’ or ‘No.’
“No. 2. If your answer to the above question ⅛ ‘Yes,’ then I submit to you the following question: At the time they made the trade with G. T. Simpson did the Burditts know of his insolvency, or could they have known of it by the exercise of reasonable diligence?
“No. 3. Was G. T. Simpson insolvent on the 17th day of July, 1914, the date of his deed •to R. R. Simpson conveying the Zavalla county lands ?
“No. 4. By insolvency is meant one’s estate is insufficient to pay his debts.
“No. 5. Did G. T. Simpson convey to R. R. Simpson the Zavalla county lands with intent to hinder, delay, or defraud his creditors, and did R. R. Simpson know of such intention?”

The court refused to give this charge because it included the question of the good faith of other parties concerning another transaction which was a part of plaintiff’s case as made by the pleadings, but is not involved on this appeal, but wrote the charge which is first above set out submitting the issue in regard to appellant and the Simpsons in the same manner in which appellant had requested its submission as between it. and the other parties to the suit. In the charge prepared by appellant the jury were told that, if they found that G. T. Simpson was insolvent on July 4, 1914 (the day he made a deed to the defendants Burditts for property not involved in this appeal), then they should answer the other questions in regard to knowledge and good faith of the purchasers in that transaction. There was no material difference in requiring an answer to a question in event a previous question had been answered in the affirmative and in directing the jury that unless the previous question had been answered in the affirmative the latter question need not be answered. The use of a conditional affirmative in the one case and a conditional negative in the other means the same thing, and gives the same instruction to the jury. No objection was made by appellant to the charge given by the court until the motion for new trial was filed. We think it clear upon this state of the record that, if the charge was erroneous in the respect complained of, such error was invited and acquiesced in by the appellant, and its complaint of the error cannot now be heard. Vernon’s Sayles’ Civil Statutes, art. 1971; Railway Co. v. Dickey (Sup.) 187 S. W. 184; Loeb v. Railway Co., 186 S. W. 378; Roberts v. Houston Motor Co., 188 S. W. 257; McGraw v. Railway Co., 182 S. W. 417.

The court having instructed the jury with appellant’s acquiescence, if not by its suggestion, that the knowledge and good faith of appellees in purchasing the property need not be considered if the jury should find that G. T. Simpson was hot insolvent at the time the conveyance was made, and the jury having so found, there was no error in refusing special charges requested by appellant submitting the issue of good faith on the part of appellees, the refusal of which is complained of by the second and fourth assignments. Neither of these assignments can be sustained, for the further reason that the statements submitted thereunder do not contain any facts tending to show that ap-pellees at the time they purchased the land knew or had any reason to believe that G. T. Simpson was making the sale to hinder, delay or defraud his creditors, nor any facts tending to impeach the good faith of appel-lees in the transaction.

The third assignment and the statement thereunder are as follows:

“The court erred in not granting defendant First National Bank of Crockett’s motion for new trial for the following reason: The verdict of the jury is contrary to the preponderance and the best evidence of the case; it being shown by the admissions of the defendant G. T. Simpson and other members of his family that he could not pay his debts, and his estate was not sufficient to pay same.”
“Statement. See testimony of G. T. Simpson, statement of facts, pages 16 to 69; testimony of R. R. Simpson, statement of facts, 108-120; testimony of Gordon D. Simpson, statement of facts, pages 130-135; statement of Mrs. E. 0. Simpson, statement of facts, pages 135-139.”

This assignment is not entitled to consideration, because it points out no error which would authorize a reversal of the judgment, and is not followed by a sufficient statement. Appellate courts are only authorized to reverse a judgment rendered upon a verdict of a jury when there is no evidence to support the verdict, or when the verdict is so manifestly against the great weight and preponderance of the evidence as to be clearly wrong and justify the conclusion that it was the result of passion, prejudice, sympathy, or some other improper motive. It would be a clear invasion of the province of the jury for this court to set aside a verdict on the ground that in the opinion of the court the verdict is against “the preponderance of the best evidence.” The statement does not contain any facts upon the issue presented by the assignment, and we are not required to go to the record to find what the evidence is upon the issue.

There is no merit in the fifth assignment, and it is overruled without discussion. The sixth and last assignment complains of the order of the court overruling appellant’s motion for a new trial because the court incorporated in the order his reason for refusing to grant the new trial. The order is as follows:

“On this day came on to be heard the First National Bank’s motion for new trial, and the same is in all things overruled for the following' reasons: When the testimony had concluded in this case the bank presented a written request that the case be submitted on special issues, and at the same time presented their issues, giving the court one copy and plaintiffs’ attorneys the other copy. The court submitted the identical issues, as asked by the bank, except that he made them fuller and more elaborate. I had the stenographer prepare them in duplicate, giving a copy to both plaintiffs’ and defendants’ attorneys. Both attorneys verbally expressed their satisfaction with the submission. There was positively no objection to the issues as submitted. The court being then of the opinion that the bank was entitled to have issue No. 3 of the court’s charge (and No. 5 of defendants’1 issue) submitted, regardless of how the first issue was answered but believing that both parties wanted it submitted in the form that he had prepared, it was done. The court then indorsed on the bank’s first requested issues, ‘Presented and refused before the reading of the charge,’ and ordered same filed as a part of tho record, for the purpose of showing such request. ■
“When the court’s charge was prepared, had the bank’s attorneys or defendants’ attorneys requested that the remaining issues be submitted, regardless of how the first issue was answered, it would have been done. Therefore the motion is in all things overruled. To which action of the court in overruling said motion the defendants except, and in open court give notice of appeal to the Court of Givil Appeals at Galveston, Tex., and 60 days is allowed for and after adjournment of this term of court in which to file bills of exception and statement of facts.”

Appellant does not question the truth of the facts stated in the order, but contends that they furnish no sufficient reason for refusing the new trial.

We have already held that it appears from the record that, if there was error in the charge given by the court, it was invited and acquiesced in by the appellant, and it cannot now be heard to complain of such error, and that in view of the finding of the jury upon the issue submitted the court did not err in refusing the special instructions requested by appellant. . This holding disposes of appellant’s contention under this assignment. The facts upon which this holding is based are shown by other portions of the record, and are not based upon the recitals contained in the order overruling the motion for new trial, and we do not think such recitals could be properly considered in determining the question raised by appellant’s assignments.

We are of opinion that the record discloses no error in the trial which would authorize a reversal of the judgment, and it is therefore affirmed.

Affirmed.
      ^3Por other oases see same topic and KEV -NUMBER in all Key-Numbered Digests and Indexes