text:
    SOWELL et al. v. HOFFMAN et al.

    (No. 906.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 19, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. Limitation or Actions <S=»100 — Fraud— Discovery.
    In case of fraud the cause of action accrues when the fraud was, or by the use of reasonable diligence might nave been, discovered, and the limitation begins then, and the right of relief is barred when the statutory period, reckoned therefrom, has expired; and where it appears the defrauded party has the means to readily discover the fraud, which ought to have been used by person of ordinary care and prudence in the transaction of his business, he will be held to have had notice of everything which a proper use of such means would have disclosed.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. <@=^>100J
    2. Limitation of Actions <S=>100 — Diligence in-Discovering Fraud — Question of Law.
    Plaintiff, who was living on the land when he purchased it, afterwards fencing the entire tract, joining fences with adjoining neighbors, and erecting his barn on what he claimed would be a street if the land had been platted as represented, in view of the reference in his deed to a plat of the addition in which the block was situated for a description, the fact that the deed showed the land to be acreage property and did not convey it as lots, his failure to examine his deed or to know its contents for some time after it was delivered to him, the plat showing that the land had not been platted into lots and that there was no such street west of it, and his receipt of the deed more than three years and six months before filing his suit for damages for false representations inducing his purchase of the land, in that it was platted into lots, each with a frontage, etc., was as a matter of law wanting in reasonable diligence, so that his cause of action accrued when he received his deed, and limitation was to be computed from that time, and he was precluded from relying on the exceptions suspending the running of the statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-403; Dec. Dig. <®=>100.]
    3. Limitation ox Actions cg=^21 — Action fob
    Fbaud — Statute Applicable.
    In such case, the cause of action, not founded on a written contract, but based on oral representations made to induce the purchase, was an action of deceit based on such representations, to which the four-year statute of limitations did not apply, but it was governed by the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 90-99; Dec. Dig. <§=n 21.]
    Appeal from District Court, Lubbock County; W. It. Spencer, Judge.
    Suit by L. D. Sowell and others against C. C. Hoffman and others, with cross-petition by defendants. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    R. A. Baldwin, of Slaton, and W. F. Schenck, of Lubbock, for appellants. Benson & Spencer, of Lubbock, for appellees.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

On January 23, 1915, appellants instituted suit for damages against ap-pellees, alleged to have been occasioned by fraudulent representations inducing appellants to purchase a certain parcel of land; that appellees offered to sell to appellants a number of town lots in the south addition to the town of Slaton, “representing to plaintiffs that said lots which he wished to sell were located in block No. 85 in said addition to said town, that he had already sold 7 lots located in said block and that there were 21 lots remaining unsold in said block, and that, if plaintiff would purchase all of said 21 lots, defendants would sell same at a very reasonable price; * * * that said lots, which he wished to sell them, were in three rows, with 7 lots to the row, each lot being 50 feet wide, 140 feet in length, with a good well and windmill and two tanks located on said lots; that each and all of said lots in said block 85 face upon the public street, with an alley 20 feet in width at the rear of said lots, and that all were duly platted, laid out, and dedicated to the use of the public,” etc.; that appellants relied upon these representations and purchased the land; that the representations were false, in that the land was not so platted; that the appellees executed a deed and caused it to be placed of record; and that appellants did not see the deed until about four months after its execution. The deed is alleged to have been executed the 4th day of December, 1911.

Appellees .answered by general and special exceptions, and denied the several matters set up by appellants specifically, and specially excepted to the petition because it showed on its face that the alleged cause of action was barred by the two-year statute of limitation; and they also pleaded the two-year statute of limitation as a bar to the cause of action set up. Appellees also by cross-petition sought to recover on certain vendor’s lien notes given as part of the consideration for the land and to foreclose the vendor’s lien. There is no plea made by appellants of failure of consideration for said notes sued upon.

Upon a trial before a jury, the trial court instructed a verdict for the appellees.

The deed executed by appellees to appellants describes the land as follows:

“All that certain tract or parcel of land in Lubbock county, Texas, being the west seven-ninths (1/9) of block eighty-five (85), according to the originally recorded plat of South Slaton addition to the town of Slaton, in Lubbock county, Texas, now on file in the county clerk’s office of said county and state.”

This deed is dated December 4, 1911, and recites a consideration of $850 paid down and 40 vendor’s liens notes, payable the 4th day of each and every month, consecutively, with interest at 10 per cent, from date; interest payable on all of said notes unpaid each month. Seventeen of these notes were paid, with interest as stipulated on the remaining notes. Foreclosure was sought on the remaining 23 notes, which was granted by the trial court. The plat referred to by the deed was recorded in the county clerk’s office and was introduced in evidence. It shows that block 85 was not platted into lots, with the alley as represented; that on the west there was no street, as represented by appellees, but blocks 91 and 85 join each other, without any street between them; and that on the north of 85 there is no street between block 85. and block 84, north of the block sold, but that the two blocks join, without any intervening street. There were no platted lots 50 by 140 feet, as represented, shown by that plat.

Appellant testified substantially to the representations made by appellees, as pleaded by him; that he did not get his deed until about four months after its date; that he did not examine it when he received it, and did not learn the true condition of the block until about February, 1914. He fenced the land purchased, without refer-' ence to the streets, and placed his barn where he claims the street was represented to be. He had lived on the land some time before the negotiation and purchase of the same. There is no allegation or proof of concealment of the fraud by the appellees, further than a failure to deliver the deed for four months after its execution. This suit for damages was instituted and filed January 23, 1915.

The trial court instructed a verdict against the appellants, doubtless on the ground that his cause of action was barred by the two-year statute of limitation. The briefs of the parties hereto only present that question for consideration.

In cases of fraud the cause of action will be deemed to have accrued when the fraud was, or by the use of reasonable diligence could have been, discovered, and limitation is put in motion from such date; and the right of relief will be barred when the statutory period, reckoned from that time, has expired. Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48; Standford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Bass v. James, 83 Tex. 110, 18 S. W. 336. If from the allegations, or the evidence, it appears that appellant had the means at hand to readily discover the fraud complained of, and that such means would have been used by a person of ordinary care and prudence, in the transaction of his own business, he will be held to have had notice of everything which proper use of such means would have disclosed.

The appellant was living on the land when he traded for it. He afterwards fenced the entire piece of ground, joining fences with adjoining owners, and his barn was erected on what he claims would be the street, if the land had been platted into lots. The deed referred to the plat of the addition in which the block was situated for description, and the land is shown by the deed to be acreage property, and was not conveyed by the deeds as lots. The deed was turned over' to the appellant, and he says he never examined it and did not know its contents for some time after it was delivered to him. The plat referred to by the deed was duly recorded and was introduced in evidence in this case. It shows that block 85 is simply a block of ground, and not to have been platted into lots; and it further shows that there was no street north of it, between it and block 84, or west, between it and block 91. It occurs to us that a man with ordinary prudence would, upon receiving the deed, have read the same, and would have seen that it purported to convey acreage property, and that the plat was part of the description of the land so conveyed. The plat to the addition of the town was of record, and any sort of diligence would have disclosed there was no street on the west and on the north, and there was no alley platted through it, and no lots designated in the block.

It is not contended that the appellant could not read or understand the description given in the deed. If the appellant accepted the statement that it was platted, as alleged, after having lived on the land before he purchased it, in placing his fence on the line and building his barn, he would not have placed them in the streets, which he contended were represented to him as streets, if he had been acting as a reasonably prudent man would have done. He must have known the situation of the block long before the time claimed by him. If he did not, he should have known that it was not platted, by any sort of diligence.

■ He received his deed more than three years and six months before filing his suit for damages. His cause of action then, in our judgment, accrued and limitation should be computed from that time. These undisputed facts made the question of reasonable diligence a question of law for the court. We do not think there was any issue of fact on the question of the statute of limitations to be submitted to the jury. In this case, the deed, the recorded plat, the adjoining blocks, and the appellant’s residence on the land he bought at the time he did buy, abundantly furnished him with notice that the representations were false, and will preclude the appellant from relying on the exceptions suspending the running of the statute. Rowe v. Horton, 65 Tex. 89; Powell v. March, 169 S. W. 936; Mounger v. Daugherty, 138 S. W. 1070; Smith v. Talbot, 18 Tex. 774; Cleveland v. Carr, 40 S. W. 406; Presnall v. McLeary, 50 S. W. 1066.

We do not think the four-year statute applies in this case. The cause of action is not founded on a written contract, but is based on oral representations made to induce the trade, and is therefore an action of deceit, based on such representations. We think this cause is controlled by the two-year statute. Bass v. James, 83 Tex. 110, 18 S. W. 336; Gordon v. Rhodes, 102 Tex. 300, 116 S. W. 40; Bostic v. Heard, 164 S. W. 34.

We find no reversible error. The judgment of the trial court is affirmed.
      ©33For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

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source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    WHITE v. BARROW et al.
    (No. 8284.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 22, 1916.)
    1. COURTS @=>169— COUNTY COURTS — Jurisdiction — Amount in Controversy.
    Under the express provision of Act Thirty-Third Legislature, increasing the civil jurisdiction of the county court of Stonewall county by giving it original concurrent jurisdiction with the justice courts in all civil matters, such court had jurisdiction of an action for $150, alleged to be due upon an oral lease of land with claim of a pasturer’s lien.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dee. Dig. @=>169.]
    2. Trial <@=327 — Verdict—Parties.
    In action, a verdict for one of two defendants, silent as to the other defendant, was sufficient to sustain a judgment for both defendants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 768%-770; Dec. Dig. @=>327.]

      3. Appeal and Error <&wkey;648 — Transcript— Time of Filing — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. art. 1608, providing that in any appeal the appellant shall file the transcript with the clerk of the Court of Civil Appeals within 90 days from the perfection .of the appeal, the court could not consider an exception to the charge, when the part of the transcript containing the purported bill of exceptions was inserted by the clerk of the county court after the transcript had been filed in the Court of Civil Appeals, without authority of the latter court, and more than 90 days after the appeal bond had been perfected.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2803-2806; Dec. Dig. <&wkey; 648.]
    4. Appeal and Error <&wkey;1001 — Review —
    Verdict.
    In a suit for the sum alleged to be due upon an oral lease of pasture land for six months, and for a pasturer’s lien upon defendant’s cattle, where defendant denied the contract pleaded, the verdict for defendant would not be disturbed by reason of his admission that he had put cattle in the pasture, and that he owed pasturage for same head of cattle.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <&=>1001.]
    5. Contracts <&wkey;346 — Pleading—Recovery
    on Quantum Meruit.
    Under a petition based on an alleged oral contract for the lease of pasture land, plaintiff could not recover on a quantum meruit.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1131-1138; Dee. Dig. &wkey;348.]
    Appeal from Stonewall County Court; R. S. Tillotson, Judge.
    Action by George E. White against Will Barrow and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    T. E. Knight and J. M. Carter, both of Aspermont, for appellant. McCart, Curtis & McCart, of Ft. Worth, for appellees.
   BUCK, J.

On December 4, 1915, this appeal wás 'dismissed, on the ground that, inasmuch as the record failed to contain a transcript of any justice court proceedings, and the amount involved did not exceed $200, such record failed to affirmatively show how the trial court had acquired appellate jurisdiction, and it appeared that it did not have original jurisdiction of the amount involved. But the appellant calls our attention to an act of the Thirty-Third Legislature, increasing the civil jurisdiction of the county court of Stonewall county, giving said court original concurrent jurisdiction with the justice courts in all civil matters. This statute being in the nature of a local or special law, and our attention not having been directed thereto in the brief of either appellant or appellee, or in the transcript, we did not take into consideration its enactment. Therefore we hereby withdraw our original opinion, set aside the order of dismissal, grant the motion for rehearing, and proceed to consider the appeal' on its merits. Geo. E. White brought this suit against Will and W. E. Barrow for the sum of $150, alleged to be due upon an oral lease contract covering three sections of land in Stonewall county; it being alleged that the lease was made by and between W. H. Lee, agent of and acting for said White, and W. B. Barrow, who acted for himself and his son Will. Said contract was alleged to have been made on August 31, 1913, and was to begin September 1st, thereafter, and to continue for six months. Plaintiff alleged that, in pursuance of said contract, the defendants did pasture their cattle on the lands described, beginning on September 1, 1913. He further alleged a pasturer’s lien upon some 20 head of cattle. Defendants specially denied the making of the contract pleaded by plaintiff, and denied owing plaintiff any sum of money; they further alleged that if in fact any of their cattle grazed upon the lands of plaintiff, they did so because the fenees were down and insufficient to keep said cattle out. Upon a general charge, the jury returned the following verdict: “We, the jurors, find for the defendant,” whereupon, the court entered judgment for both defendants. Plaintiff appealed.

In his first assignment appellant questions the sufficiency of this verdict to sustain the judgment rendered. We think the assignment must be overruled. In Lawson v. Robinson, 68 Kan. 737, 75 Pac. 1013, it is held that a verdict which is silent as to one defendant is equivalent to a verdict in his favor. To the same effect is the holding in Railway v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743. In Trammell v. Rosen, 157 S. W. 1161, our Supreme Court holds that a final judgment can be based upon a verdict which does not expressly, but only by implication, dispose of all the issues. See Railway v. Gallaher, 79 Tex. 685, 15 S. W. 696; Railway v. Lightfoot (writ denied) 48 Tex. Civ. App. 120, 106 S. W. 395; Tom v. Sayers, 64 Tex. 343.

We cannot consider the exceptions to the charge, to the giving of which the second assignment is urged, because it appears, by reference to the transcript, that the portion of the transcript containing what purports to be the bill of exception, complaining of this charge, was inserted by the clerk of the county court of Stonewall county after the transcript had been filed in this court, and more than 90 days after the appeal bond had been perfected and without authority from this court, and without any motion filed herein. We cannot believe that the clerk or the counsel for appellant intended by this act, committed, evidently, while the transcript was in the custody of appellant’s counsel, any impropriety, and therefore we do not think it necessary to further refer to the matter, except to say that we can give the assignment no consideration. Article 1608, Vernon’s Sayles’ Tex. Civ. Stat.; Davis v. McGehee, 24 Tex. 210; Wells v. Driskell, 105 Tex. 77, 145 S. W. 333.

The fourth assignment attacks the verdict and judgment as contrary to the law and evidence because W. E. Barrow, one of the defendants, “testified that he made the lease contract with plaintiff’s agent, W. H. Lee, under which he the next day put some 60 head of cattle upon the alleged premises,” etc. By reference to the statement of facts, it will be seen that, while Mr. Barrow admitted that about the latter part of August, 1913, having some cattle in the “shinnery,” and having no water for them, he called up Mr. Lee over the phone and asked him about leasing the pasture described, yet he states that Mr. Lee told him he had sold the land to Mr. White, who lived at Ft. Worth, and that he (Lee) would see White about it the next time he came up from Et. Worth, and let Barrow know what he said, but that Lee never said anything more about the lease; that, however, the next morning after this conversation, he did put some 65 head of cattle in this pasture; that the next day, or the second day thereafter, some 35 head got out of the pasture, and he “threw them back in the ‘shinnery.’ ” He admitted owing White pasturage for the remaining 30 head for something like 40 days at 50 cents a head. But since Barrow denied the contract pleaded by plaintiff, we think the verdict and judgment cannot be disturbed by reason of this evidence and admission by defendant. Plaintiff could not recover on quantum meruit under his petition, which was based upon an alleged contract. Walker v. Dickey, 44 Tex. Civ. App. 110, 98 S. W. 659; Thornton v. Moody, 24 S. W. 332.

Finding no error, the judgment of the trial court is affirmed, but by reason of such judgment the plaintiff below is not denied the right to recover, in another suit based upon quantum meruit, any money due him for pasturage by the defendants.

Affirmed.
      <§rmFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

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author: ■HIGGINS, J.

text:
    PHELPS v. PECOS VALLEY SOUTHERN RY. CO.
    (No. 525.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 3, 1916.)
    Adverse Possession &wkey;?82 — “Color of Title” — Unrecorded Deed — “Yoid.”
    Under Rev. St. art. 6824, providing that unrecorded deeds shall be “void” as to subsequent purchasers without notice, but valid between the parties, an unrecorded deed is “color of title” against a good-faith subsequent purchaser within articles 5672, 5673, providing a three-year limitation in case of color of title, and defining it as a deed not regular, but not wanting in intrinsic fairness and honesty; the word “void” in the statute being used in the sense of voidable, and the nonreeording not amounting to a want of fairness, etc.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 468-471; Dec. Dig. <&wkey;> 82.
    For other definitions, see Words and Phrases, First and Second Series, Color of Title; Void.]
    Appeal from District Court, Ward County; S. J. Isaaeks, Judge.
    Trespass to try title by J. C. Phelps against the Pecos Valley Southern Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. A. Hudson, of Pecos, and Short & Field, of Dallas, for appellant. J. W. Parker, Clay Cooke, and Ross & Hubbard, all of Pecos, for appellee.
   ■HIGGINS, J.

This is an action of trespass to try title, brought by Phelps against the appellee. J. W. Parker is the common source of title. On January 4,1909, he conveyed the premises in controversy to M. L. Swinehart. This deed was not recorded. By deed dated May 6, 1910, recorded February 14, 1911, Swinehart conveyed the same to appellee. Appellee went into possession on or about March 1, 1910, and remained in continuous, peaceable, and adverse possession until the filing of this suit on May 21, 1914. By deed dated November 10, 1909, recorded November 10,1909, Parker, for a valuable consideration, conveyed the premises to the Jesse French Piano & Organ Company, who, in turn, conveyed same to Phelps by deed dated October 30, 1914, recorded November 4, 1914. This deed was executed in ratification of a prior ineffective deed of said company to Phelps, dated December 29, 1909, which was filed for record January 5, 1910. On November 10, 1909, and December 29, 1909, the Jesse French Piano & Organ Company and Phelps had no notice, actual or constructive, of the deed from Parker to Swinehart, and the entry upon the land by the appellee on March 1, 1910, was the first notice Phelps had of its claim to the land. The only question presented is whether appellee acquired title under the three-year statute of limitation.

Article 6824, R. 6., provides that all conveyances of land shall be void as to subsequent purchasers for a valuable consideration without notice unless they shall be acknowledged and filed for record as required by law; but the same, as between the parties and their heirs, and as to subsequent purchasers with notice thereof, or without valuable consideration, shall nevertheless be valid and binding. By article 5672 R. S., it is provided that every suit to recover real estate, as against one in peaceable and adverse possession thereof under title or color of title, must be brought within three years next after the cause of action shall have accrued. The point at issue between the parties resolves itself into this: Does an unrecorded deed constitute color of title within the meaning of articles 5672 and 5673, R. S.? If so, judgment was properly rendered for appellee.

Appellant calls to our attention the cases of Cox v. Bray, 28 Tex. 247, Wall v. Lubbock, 52 Tex. Civ. App. 405, 118 S. W. 886, Watson v. Watson, 55 S. W. 183, and Lynn v. Burnett, 34 Tex. Civ. App. 335, 79 S. W. 64, wliere it was held that void deeds were insufficient to support the three-year statute; also to Latimer v. Logwood, 27 S. W. 960, where a like holding was made with respect to a void judgment. Upon the authority of these cases, it is insisted appellee could not acquire a prescriptive right under the statute because the unrecorded deed from Parker to Swinehart was void as to him; he having purchased the premises for value and without notice thereof. The cases cited are distinguishable. In each of them the instrument relied upon as the basis of the prescriptive right was void ab initio and a complete nullity. Such is not the case here. The deed from Parker to Swinehart was valid and binding between the parties, as well as to subsequent purchasers with notice or without a valuable consideration. The word “void” means that which has no force or effect. It is often used as in effect meaning voidable only; and it is seldom, except in a very clear case, to be regarded as implying a complete nullity, but, in a legal sense, is to be taken subject to a large qualification in view of all the circumstances calling for its application and the rights and interests to be affected in a given case. The term “void” can only accurately be applied to those contracts that have no effect whatever; which are mere nullities and incapable of confirmation or ratification. It is rarely that things are wholly void and without force and effect as to all persons and for all purposes and incapable of being made otherwise. Things are voidable which are valid and effectual until they are avoided by some act. The distinction between void and voidable transactions is a fundamental one, though it is often obscured by carelessness of language. As applied to contracts, the distinction between the terms is often one of great practical importance, and, whenever accurately used, the term “void” can only properly be applied to such contracts as are mere nullities and incapable of confirmation or ratification. These rules to which we have just adverted are well settled, and it is apparent that an unrecorded deed is not to be considered a void instrument as against a subsequent purchaser in the sense that it has no force or effect, or as a mere nullity, which is incapable of ratification or confirmation. Upon the contrary, it is plain that the term “void” in article 6824 is used in the sense of “voidable.” It is undoubtedly true that a void deed is lacking in that intrinsic fairness and honesty demanded by article 5673 in order to constitute color of title. The cited cases are referable to this principle. It is equally true, however, that an instrument valid between the parties thereto is intrinsically fair and honest, although it may be voidable at the suit of a third party for proper cause. Hence the soundness of appellant’s contention may be admitted — that a void deed is so lacking in intrinsic fairness and honesty that it does not constitute color of title— but this is beside the question when we consider that the deed from Parker to Swinehart was not void, but voidable merely at the instance of the subsequent vendee of Parker, the Jesse French Piano & Organ Company, and its vendee, Phelps.

In order to determine whether appellee’s unrecorded deed constitutes color of title, it is only necessary to inquire whether it is intrinsically fair and honest. .The deed is clearly valid as between Parker and 'Swine-hart, and therefore neither void in the correct sense of the term, nor lacking in intrinsic fairness and honesty. The fact that it was unrecorded is what constitutes it color of title. Had the instrument been duly recorded, appellee would have had title to the premises notwithstanding appellant’s subsequently acquired and subsequently recorded deed. It- is apparent that Swinehart’s failure to record his deed did not operate to make it void as between him and his grantor, nor did such failure affect the fairness and honesty of the transaction between them. While he undoubtedly would be estopped to assert title as against one holding under a subsequently acquired deed for value without notice, this does not render his deed “void” in the technical sense of that term nor make it lacking in intrinsic fairness and honesty. Article 5673, R. S., not only defines “color of title,” but aptly illustrates it as follows:

“And by ‘color of title’ is meant a consecutive chain of such transfer down to such person in possession, without being regular, as if one or more of the memorials or muniments be not registered, or not duly registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty.”

Chief Justice Stayton, speaking for our Supreme Court in Grigsby et al. v. May et al., 84 Tex. 240, 19 S. W. 343, and discussing the definition of “color of title” as given in article 5673, says:

“This definition doubtless was intended to give instances in which the chain of transfer would not be regular,, within the meaning of the statute ; but want of registration or of due registration in the chain giving color of title could have no operation in the matter of notice, and evidently was not intended to affect the right of a person holding under color of title; for, notwithstanding such irregularities may exist, the same protection is given as would be were the party holding .under ‘title.’ ”

Continuing, and still discussing the definition as illustrated by the words of the statute, Judge Stayton says:

“The other illustration is where one or more of the muniments of title ‘be only in writing,’ which evidently was intended to cover cases in which the evidence of right, though in writing, was not executed in the manner prescribed by law; and, under the statute, these are not defects which make the muniments wanting in ‘intrinsic fairness and honesty.’ The statute, however, in effect, does declare that like defects in regularity will cause the claim to he only ‘col- or of title,’ and does not deprive those of this effect unless they be wanting in intrinsic fairness and honesty.”

In the same case, the court refers to the case of Pearson v. Burditt, 26 Tex. 173, 80 Am. Dec. 649, and quotes and adopts the explanation there given of the words “intrinsic fairness and honesty,” embraced in the definition of “color of title” in the statute, in the following language:

“All the examples of irregularity given have relation to the muniment of right, and for this reason it was decided in Pearson v. Burditt that ‘the term, “intrinsic fairness and honesty,” embraced in the definition of color of title in our statute, relates to the means of proving the right of property in the land, so as to make the title equitably equal to a regular chain.’ By ‘equitably equal to a regular chain’ we understand to have been meant simply thaf, if the muniments in the chain of transfer were in fact freely executed by the persons whose acts they appear to be, then they are sufficient if, upon their faces, they show such right to land as a court of equity would enforce as between the parties to the instrument; and that this is what was intended is evident from the facts of the case then under consideration by this court.”

As between Parker and Swinehart, the deed of January 4, 1909, was in all respects regular and binding upon both, and as a result possessed the intrinsic fairness and honesty which is demanded by the statute of all the links in a regular chain of transfer from and under the sovereignty. This deed, therefore, although unrecorded, is not in any sense void, as contended for by appellant, and proof of its execution, together with proof of three years’ peaceable and adverse possession, was a complete bar to plaintiff’s action. As is indicated above, an examination of the adversely cited authorities will show that in every instance, the instrument attacked was void in the strictest sense as between the parties thereto, and therefore lacking in intrinsic fairness and honesty. It has never been held, so far as we are advised, that a deed which is valid and bindng between the parties is, because unrecorded, void in the strict sense of that term, or that it is so lacking in intrinsic fairness and honesty that it does not constitute color of title. Indeed, such a holding would be manifestly incongruous, in view of article 5673, which expressly defines color of title as a consecutive chain of transfer, down to the person in possession, without being regular, and instances such an irregularity as failure to register, or duly register, one or more of the muniments.

Affirmed.
      <&wkey;>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    FREEMAN et al. v. TEXAS & P. RY. CO.
    (No. 515.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 20, 1916.
    Rehearing Denied Feb. 19, 1916.)
    Appeal and Error @=>760 — Assignments op Error — Brief.
    Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 1612), making the grounds assigned in the motion for new trial to constitute the assignments of error, the assignments of error in the brief must be true copies of the corresponding paragraphs of the motion for new trial, and not rewritten or reconstructed assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. @=>760.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Mrs. M. E. Freeman and others against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    John T. Hill and O. L. Bowen, both of El Paso, for appellants. Geo. Thompson, of Dallas, and Russell & Gillett, of El Paso, for appellee.
   WALTHALL, J.

This suit was brought by appellants to recover of appellee the value of a race horse shipped by W. B. Freeman, from Dallas, Tex., to El Paso, Tex., on ap-pellee’s line of railroad. It is alleged that while en route the horse was taken with shipper’s fever from exposure and want of attention, and died in a few days after reaching its destination. Appellee is charged by appellants with negligence in not properly caring for the horse while in its care and custody, negligence in failure to exercise ordinary care in transporting the horse within a reasonable time. The view we take of the case we need not further state the issues. The case was submitted to a jury. A verdict was returned in favor of appellee under a general charge submitting only the issue of negligence in the alleged failure to exercise ordinary care to transport the horse within a reasonable time. Appellants filed an amended motion for a new trial, which the court heard and overruled. .

Appellants submit two assignments of error, each referring to paragraphs in the motion for new trial, as the basis for the assignments, and each assignment followed by several propositions thereunder, but neither of the assignments conform to the .statute and rules for the preparation and submission of cases to appellate courts. They each fail to correctly copy in the brief as the basis for the errors assigned, the corresponding ground for a new trial as stated in the motion. Article 1612 of the Revised Statutes, as amended by the Thirty-Third Legislature (chapter 136, p. 276), makes the grounds assigned in the motion for a new trial, where such motion is filed, to constitute the assignments of error. The Courts of Civil Appeals have uniformly held that the rules for briefing cases contemplate that the assignments of error in the briefs shall be true copies of the corresponding paragraphs of the motion for new trial, and not rewritten or reconstructed assignments or grounds. Ruth v. Cobe, 165 S. W. 530; Coons v. Lain, 168 S. W. 981; Overton v. Colored Knights of Pythias, 163 S. W. 1053; Hayes v. Groesbeck, 146 S. W. 327; Smith v. Bogle, 165 S. W. 35; Dees v. Thompson, 166 S. W. 56; J. B. Farthing Lumber Co. v. Illig, 179 S. W. 1092. Prior to the amended statute, it was held that the assignments filed with the clerk in the trial court must be correctly copied in the briefs, and that it was not permissible to present assignments as to either form or substance not correctly copied. Stephenville Oil Mill Co. v. McNeill, 57 Tex. Civ. App. 252, 122 S. W. 911; Horseman v. Coleman County, 57 S. W. 304. The above is the construction the courts place upon rule 29 (142 S. W. xii) for the submission of cases. Again, material matter not found in the corresponding paragraph in the motion for new trial is stated in the assignments in the briefs. Chief Justice Key, in Pate v. Vardeman, 141 S. W. 317, strongly criticizes such practice and holds that a ground in the assignment of error incorrectly copied in the brief should not be considered. We expressly disclaim any reflection upon the motives of counsel in the instant ease in this matter. We are quite sure there was no improper motive upon their part in presenting reconstructed assignments, but adhering to a practice which this court has adopted and which is deemed salutary, we decline to consider the assignments.

We deem it unnecessary to copy the grounds stated in the motion for new trial, and the corresponding assignments in the briefs, as the grounds in the motion and the assignments in the briefs are lengthy; but an inspection of the two. discloses that no effort was made to correctly copy in the briefs as assignments of error the grounds stated in the motion. Judge Hendricks, of the Seventh Court of Civil Appeals, in Edwards v. Youngblood, 162 S. W. 1164, gives some most excellent reasons why the assignments should be distinct and correct copies of the corresponding grounds in the motion for new trial, holds as mandatory the statute making the grounds of error in the motion for new trial to constitute the assignments of error, and refused to consider assignments not the same in form or substance as those in the motion. Appellee, in its objections to a consideration by this court of the assignments, points out other objections to the appellants’ two assignments, some of which are well taken, and others are not so clear, but we deem it unnecessary to consider them.

Eor the reasons stated in this opinion, the assignments cannot be considered. The case is affirmed.
      other oases see same topic and KKY-NUMBER in all Key-Numbered Digests and Indexes


author: CABL, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. JENKINS.

    (No. 5552.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. Trial @=>260 — Bequested Instructions— Given Instructions.
    In an action for the death of a railway engineer, killed when his engine left the track, wherein the track was alleged to have been uneven and unsafe, where the jury found that the track was unsafe and that the defendant was negligent in having it in such condition, and that the locomotive by which deceased was billed was not a reasonably safe one for use along the track when handled with ordinary care, defendant’s requested charge as to whether the locomotive operated by deceased at the time of the wreck in which he was killed was dangerous for the character of the work in which it was then used, was properly' refused, as it could have added nothing to the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=>260.]
    2. Trial @=>350 — Special Issues — Submission.
    In such action where the jury found that the track was not safe and that defendant had not used ordinary care to keep it safe for such a locomotive as deceased was using when killed, and that the locomotive was not a reasonably safé one, the submission of a special issue as to whether or not the unsafe track, if it was unsafe, or the unsafe locomotive, if it was unsafe, was the proximate cause of the accident, or whether both were the proximate cause, was not injurious to defendant, as no intelligent jury could have been misled thereby.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. @=>350.]
    3. Trial @=>350 — Special Issues — Submission.
    _ In such action where the court submitted an issue as to whether the engineer at the time of the derailment was using ordinary care in handling the locomotive by which he was killed, and where the rate of speed was found in answer to another issue, the defendant’s requested issue as to whether deceased was exercising ordinary care to run his engine at a safe rate of speed was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig.'§§ 828-833; Dec. Dig. @=>350;]
    4. Trial @=>260 — Action por Death — Be-quested Charges — Given Charges.
    A special charge was properly refused when it was covered by the other charges given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=>260.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by Jesse F. Jenkins against the St. Louis, Brownsville & Mexico Kailway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Claude Pollard and E. H. Crenshaw, Jr., both of Kingsville, and H. B. Sutherland and Bobt. W. Stayton, both of Corpus Christi, for appellant. John C. Scott and W. L. Dawson, both of Corpus Christi, for appellee.

       Application for writ of error pending in Supreme Court.

   CABL, J.

This is the third time this case has been before this court, the first opinion being reported in 163 S. W. 621, and the second in 172 S. W. 984. The first of those opinions is referred to for a statement of the nature of the casé. Such other matters as it may be necessary to mention will appear as we proceed with this opinion.

Appellant complains that the court erred in refusing its requested special issue No. 1, which is:

“State whether or not the locomotive which was being operated by Harvey E. Jenkins at the time of the wreck in which he was killed was dangerous for the character of work in which it was then being used.”

Plaintiff alleged that the locomotive with which his son was supplied was a yard or switch engine, intended for use in the yards and at stations, that it had no pony trucks or pilot, and that on account of its nature and construction it was not safe to use as an ordinary engine on the main line of defendant’s road; that, notwithstanding these facts, defendant carelessly and negligently used said engine on its main line for the purpose of drawing cars long distances, and was causing deceased to use itat the time of his death; and that the track was unsafe for that kind of locomotive and it was dangerous to operate such locomotive on said main line as an ordinary engine used for the usual traffic on the main line. The fact that the roadbed was not in proper condition and that said engine was unsuited to the main line work are the grounds of negligence causing the wreck. The track was alleged to have been uneven and unsafe for locomotives to pass over, because it was not properly ballasted and had sunken joints at and near the place of the wreck.

The jury found that the roadbed was in an unsafe condition for the use and passage of a locomotive thereon such as the one being used by deceased at the time he was killed; and that the railway company had failed to use ordinary care to have its track and roadbed in a safe and proper condition for the use and passage thereon of such a locomotive as the one being used; when handled with ordinary care.

The train crew was stringing telegraph wire on the main line, and, at the time of the wreck, were going to the place where they were working. The engine did not have a pilot or pony trucks, and the evidence is sufficient to show that it was unsuited to main line runs, because it was not protected and balanced by pony trucks. If appellant means by the requested charge that the actual work of stringing wires was not unsafe for such an engine, it is sufficient answer that they were not engaged in that character of work at the time of the wreck, but were pulling a string of cars on the main line going to that place where the work was being done, at the time the accident happened. And we are unable to see that this engine would come under a different rule than would apply to an ordinary engine on the main line. If they had been at the place and doing the work they intended to do, it might be different. ' The jury said in answer to special issue No. 3 that the locomotive by which Harvey E. Jenkins was killed was not a reasonably safe one for use along defendant’s track at and near the place where the engineer was killed, when handled with ordinary care. This was the issue, and not what it would have been if it had been actually engaged in the construction work. The requested charge would have added nothing to the charge actually given, which covered the proper issue to be submitted and there was no error in refusing to give same.

The first and second assignments are overruled.

Special issue No. 6 submitted to the jury and the jury’s answer are as follows:

“Say whether or not unsafe track, if it was unsafe, or unsafe locomotive, if it was unsafe, was the proximate cause of the accident, or whether both of these causes combined were the proximate cause of the accident.
“Answer: Both.”

The objection, as pointed out in the third assignment, is that same is a comment on the weight of the evidence. The jury had been asked and had found in answer to issue No. 1 that the track was not safe, and in response to issue No. 2 that ordinary care had not been used by the appellant to keep its roadbed in a safe condition for the use and passage of such a locomotive as that one deceased was using at the time he was killed. And in response to the third special issue the jury found that the locomotive was not a reasonably safe one. On the whole we cannot see that appellant was injured or could have been injured by the manner in which the issue was framed. No jury of intelligent men would have been misled thereby, and the assignment is overruled, and it follows that the fourth and fifth assignments are without merit and are overruled.

The sixth assignment complains of the refusal by the court to submit special issue No. 16 requested by defendant, which is:

“State whether or not Harvey E. Jenkins, at the time of Ms death, was exercising ordinary care to run his engine at a safe rate of speed.”

The court did submit issue No. 5, which is:

“Say whether or not the engineer, at the time of the derailment, was using ordinary care in handling and operating the locomotive, by which he was killed, in view of the kind of locomotive it was.”

And the rate of speed was found in answer to another issue. There was no error in refusing this charge; nor was there error in refusing to submit special issues Nos. 16 and 17 requested by the defendant. The sixth and seventh assignments are overruled.

The verdict and judgment were for $5,040, and in view of the facts disclosed by the record we do not think it excessive. The eighth assignment is overruled, and the ninth being without merit is also overruled.

The refused special charge complained of in the tenth assignment was covered by other charges given, and it was not necessary to give same.

This is three times this case has been passed upon within two years by this court; the writer having written the opinion on each appeal. The issues were clearly, concisely, and fairly submitted to the jury, and the finding is again against appellant. It is time to put an end to the matter, especially since no substantial error is shown; and we therefore affirm the judgment.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    TEXAS & P. RY. CO. v. FRAZER.

    (No. 513.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 20, 1916.
    Rehearing Denied Feb. 17, 1916.)
    1. Trial <@=>139 — Directing Yerdict.
    There should not be a directed verdict unless the evidence is undisputed, and of that conclusive nature that leaves no room for ordinary minds to differ as to the conclusions to he drawn from it.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dee. Dig. <@=> 139.]
    2. Waters and Water Courses <@=>172 — Diversion and Impounding.
    Defendant to be liable for damages from the breaking of a dam, by which it impounded waters which it diverted, need not have been negligent.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 233-236; Dec. Dig. <@=>172.]
    3. Waters and Water Courses <@=>172 — Diversion and Impounding — Esoape — Liability-Unprecedented Rain.
    The unprecedented character of the rainfall will not relieve defendant from liability, where it diverted waters from their natural channel and impounded them, and then permitted them to escape on plaintiff’s land.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 233-236; Dec. Dig. <@=>172.]
    4. Waters and Water Courses <@=>172 — Diversion and Impounding — Escape—Estop-pel.
    Plaintiff, not having joined or acquiesced in the request of other citizens that defendant build a dam to impound water which it had diverted, is not estopped, because thereof, to claim damages to his land from the escape of water therefrom.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 233-236; Dec. Dig. <@=>172.]
    5. Waters and Wateií Courses <@=>179 — Diversion and Impounding — Escape—Action eor Damages — Evidence.
    The action being only for damages from escape to plaintiff’s land, by the breaking of the dam, of waters which defendant diverted and impounded, and plaintiff not pleading as an element of damages that the dam was a menace to his land, defendant’s offered evidence, that it was a benefit rather than a menace thereto, is inadmissible.
    LEd. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 249; Dec. Dig. <@=> 179.]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by Ella Frazer against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
    John B. Howard, of Pecos, for appellant. Ponder S. Carter and Will P. Brady, both of El Paso, and Ben Palmer, of Pecos, for ap-pellee.

       Application for writ of error pending in Supreme Court.

   HARPER, C. J.

This is an action instituted in the district court of Reeves county, Tex., by the appellee, Ella Frazer, on the 5th day of November, 1914, to recover damages from the appellant, the Texas & Pacific Railway Company, to certain real and personal property, and injury to the person of said appellee, caused by, as alleged by the appellee, the breaking of the reservoir and dam of appellant at Toyah, Tex., on the 29th day of May, 1914. Mrs. L. W. Durrell, joined by her husband, pro forma, under permission of the court, intervened, alleging that she was part owner of the said real property alleged to have been injured. Ap-pellee alleged that, without regard to her rights, appellant wrongfully and improperly constructed a large reservoir or artificial lake about 400 yards from her premises, by erecting a large dirt dam across a ravine, and thereby held the water from flowing down said ravine, as it had theretofore done; that said dam was so negligently and defectively constructed and provided with such insufficient spillways or other means to permit the surplus water to escape as to be wholly insufficient to withstand the pressure of the large body of water impounded thereby; that in addition to the dam, appellant constructed a levee about 1,400 yards long, and that a ditch was dug along said levee which, with the levee, diverted the water from its natural drainage on the north side of the railway track, to the south side of the track into the said reservoir, near to which appellee’s property was situate; that by reason of the faulty construction and the negligent manner in which the dam was maintained the waters impounded overflowed the banks and destroyed her property, etc. Appellant answered by general and special denial, and specially answered that the reservoir is situated upon its own property, was skillfully constructed, with proper outlet for flood waters; that the levee complained of was constructed for the protection of the town of Toyah at the instance and request of the citizens thereof; that the rain which caused the dam to break was unprecedented; that the flow of water over plaintiff’s property would have been as high or higher had there been no dam across the ravine; that the levee or dam is no part of the embankment of the railway right of way, but separate and distinct, used for storing water for use in the shops at Toyah. Appellees denied that the rain was unprecedented, also denied that the dam and levee were a benefit to the town, and alleged it to be a detriment. The cause was submitted to a jury by general charge, and resulted in verdict and judgment for appellee, Frazer, for $1,.433.33, and for intervener, Durrell, for $266.67, from which an appeal is perfected.

The first assignment is that:

“The court erred in refusing to give a requested peremptory instruction for the defendant because the uneontroverted proof was that the water, which caused the alleged damages, would have risen as high and to as great a depth and over as great an area if the dam, levee, and reservoir had not been constructed.”

The evidence conclusively shows that the dam and levee were constructed as alleged; that the waters of the natural drainways, both south and north of the railway tracts, were diverted from their natural flow into the reservoir; that the dam broke and the waters which destroyed appellee’s property came through the break in the dam; and there is evidence in the record that if the levee had not been constructed, which diverted the water across the track from the north to the south side thereof, it would not have reached the property of appellee. Therefore the court did not err in refusing to give the peremptory instruction.

The trial court should not instruct the jury to return a verdict unless the evidence is indisputed, and of that conclusive nature that leaves no room for ordinary minds to differ as to the conclusions to be drawn from it. Choate v. Railway Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Mustain, Ex’r, v. Stokes, 90 Tex. 358, 38 S. W. 758.

The second, third, and tenth assignments charge that it was error to refuse to give special requested charges, submitting whether or not the dam and levee were negligently constructed; the proposition being that, in all actions sounding in tort to enforce a common-law right, the plaintiff must allege and prove some negligent act of the defendant which caused the damage. The proposition contended for has expressly been held to be unsound, in cases such as is here presented. Texas & Pacific Ry. Co. v. O’Mahoney, 50 S. W. 1049; Id., 24 Tex. Civ. App. 631, 60 S. W. 903.

Eourth assignment: The court did not err in refusing to charge upon the defense pleaded of unprecedented rainfall. The waters which caused the damage having been diverted from their natural channel and impounded, and from the reservoir permitted to escape upon plaintiff’s property, defendant is not relieved from liability because of the unprecedented character of the rainfall. G., H. & S. A. Ry. Co. v. Riggs, 107 S. W. 589.

The fifth assignment charges that the court erred in refusing to permit witness to testify that the citizens of the town of Toyah, in which the property of plaintiff is situate, had requested the railway company to construct the dam to protect the town from overflow. There is no pleading nor proof that the plaintiff made or acquiesced in such request, if made; therefore she is in no way estopped from claiming damages which were proximately caused by the diversion of the waters from their natural drainage basins and permitting them to flow upon her property.

The sixth and seventh assignments contend that it was error to exclude the testimony of witnesses to the effect that the dam, levee, and reservoir were a benefit to the property of plaintiff, instead of being a menace to her life and a detriment, and that it had been built at the request of the inhabitants of the town; the proposition being:

“Appellees pleaded that the construction of the 1,400-yard levee on the north side of the track was for the purpose of diverting the water north of Toyah into this appellant's reservoir, and that said levee was a detriment to their property and a menace to the life of the appellee, Miss Erazer, and caused her property to be proclaimed as worthless; this appellant having pleaded in answer to their said allegations that the levee protected their property and was a protection to all property, and was placed there at the request of the property owners. Under these pleadings, the testimony, sought to be introduced, tended to establish that said levee was beneficial and enhanced the value of appellee’s property. The same should have been submitted, and it was error in the court to exclude same.”

We fail to find that the fact that the dam, levee, and reservoir was a menace to the property of appellee was pleaded by appel-lee as an element of damages. The statement of facts does not show any evidence adduced to that effect, and the charge of the court confines the jury to a consideration of the actual damages suffered and the proximate cause thereof. There is no attempt to enjoin the maintenance of the structures, so there is no phase of the case upon which the testimony was admissible.

Besides, it is conceded in this ease that the dam broke; that the waters therefrom washed against and damaged, if not destroyed, plaintiff’s property; so testimony from witnesses that at the time of the trial the structures were a menace or a benefit to the property could not in any way have affected the verdict of the jury.

The eighth assignment reads:

“Because the court erred in permitting the plaintiff to testify over the objection of the defendant that she could have gotten certain sums for rent out of her residence after the overflow or flood because the same was not the proper measure of damage in this cause and was highly prejudicial to the rights of this defendant.”

The questions and answers, as they appear in the bill of exceptions, are as follows:

“Now, since the flood happened, have you been able to use it for that purpose? No, sir.
“Have you collected anything, gotten anything out of it, since that time for roomers? No, sir.
“Could you have gotten anything out of it? (Counsel for defendant object to, ‘Could you have gotten anything out of it?’ Court overruled.) Answer: Could have.”

There seems to have been no reason given for the objection. Besides, the questions and answers appear to have no definite meaning as they appear in the bill of exceptions. It is clear that plaintiff has not received any rentals from the premises since the flood. But the question, “Could you have gotten anything out of it?” has no meaning, without qualifying it with, “if the property had been in the same condition as before the injuries,” or by, “in the condition it was after the injuries.” If the idea is that the property had a rental value before the injury and none after, then the testimony was admissible as a circumstance tending to show the extent of the injuries to it.

The ninth is that the verdict and judgment are excessive. There is ample evidence in the record to sustain the amount found by the jury.

Affirmed.
      <@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    PEOPLE’S ICE & MFG. CO. v. INTERSTATE COTTON OIL REFINING CO.
    (No. 7420.)

    (Court of Civil Appeals of Texas. Dallas.
    Jan. 22, 1916.
    Rehearing Denied Feb. 19, 1916.)
    1. Venue <@=>7 — Contract in Weiting — Beo-keb’s Memoeandum.
    Where a broker negotiates a sale by phone, and reduces to writing and signs a memorandum thereof, sending a copy to each of the parties, which they retain without objection, the contract is in writing, within Rev. St. 1911, art. 1830, subd. 5, as to venue, where a person has contracted in writing to perform an obligation in a certain county.
    [Ed. Note. — Por other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. <@=>7.]
    2. Venue <§==>7— Oonteact in Weiting — Bill oe Lading and Attached Deaet.
    Where oil was shipped by defendant to G. county, for plaintiff, with draft on plaintiff attached to the bill of lading, which obligated plaintiff to deliver possession of the oil in G. county, there was a contract in writing to perform an obligation therein, within Rev. St. 1911, art. 1830, subd. 5, as to venue, so as to permit plaintiff to sue in G. county to recover the price paid, because of the oil not being as agreed.
    [Ed. Note. — Por other cases, see Venue, Cent Dig. §§ 13-16; Dec. Dig. <®=>7.]
    3. Teial <@=>350 — Special Issues — Immate-eial Mattes.
    The proof being that the. oil was not sold by sample, but as “prime crude cotton seed oil cold pressed,” defendant, in an action to recover the price because of the oil not being as sold, was not entitled to submission to the jury of the question of it being like the sample in the broker’s possession.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. <@=>350.]
    4. Sales <@=>358 — Contbact—Quality—Place oe Delivery.
    Where a seller agreed to deliver to the buyer in a certain county oil of a certain grade, which it failed to do, it is immaterial what grade it delivered to the carrier in another county.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. §§ 1049-1055; Dee. Dig. <@=>358.]
    5. Sales <@=>59< — Oonteact—Bboker’s Memorandum.
    The parties to a sale of oil having received and retained the broker’s memorandum of sale, stating that the contract was made subject to the rules of a certain association, are bound thereby; there being no fraud or misrepresentation, though in the negotiation nothing was said of such rules.
    [Ed. Note. — Por pther cases, see Sales, Cent. Dig. § 159'; Dec. Dig. <@=>59.j
    Appeal from District Court, Grayson County; Jas. P. Haven, Judge.
    Action by the Interstate Cotton Oil Refining Company against the People’s Ice & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.
    Jones & Hassell, of Sherman, and Rentfro & Cole, of Brownsville, for appellant. Head, Dillard, Smith, Maxey & Head and J. P. Holt, all of Sherman, for appellee.

       Application for writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellee, a domestic corporation, with its principal place of business at Sherman, in Grayson county, Tex., instituted this suit against appellant, another domestic corporation, with its office and place of business in Brownsville, Cameron county, Tex., to recover as damages the entire purchase price paid by appellee to appellant for the purchase of a tank car of crude cotton seed oil, together with certain charges for freight and demurrage. Appellee alleged that it had purchased two tank ears of prime crude cotton seed oil, cold pressed at 46% cents per gallon, f. o. b. Brownsville, said tank cars to be shipped at specified times in tanks furnished by appellee and to be paid for by sight draft on appellee with bills of lading attached for full amount of invoice. The contract plead by appellee was alleged to be in writing, and was also alleged to have been made subject to the rules of the Texas Cotton Seed Crushers’ Association. The tank car in question was loaded with the oil in Brownsville, and the draft of appellant for the full amount of the purchase price of the oil was paid by appellee. Ap-pellee in its petition alleged that the grade and quality of the oil was not of the character it had purchased, and that it had thereby been damaged in a sum representing the difference in the value of the oil received and the value of the oil it should have received had same been up to the standard in quality. Appellee also alleged that this difference was the entire purchase price paid by it, together with the freight and certain demurrage charges; the tank car not having been unloaded, but remaining in Sherman on the tracks of the railroad. The case was submitted to the jury on special issues and a verdict returned, upon which verdict a judgment was entered by the court for the sum of $4,352.23; said sum being the said entire purchase price paid by appellant for the oil, together with the freight, demur-rage charges, and interest. ■ Appellant appeals to this court.

Appellant’s first assignment of error is:

“The court erred in overruling this defendant’s plea of privilege in this cause on the-day of October, 1914, for the reason that the undisputed evidence in this case, on the hearing of said plea of privilege, showed that this defendant was a domestic corporation with its only office and place of business in Cameron county, Tex., and with no officers or agents residing in any other county than in said Cameron county, Tex., and that plaintiff’s cause of action was controlled by none of the subdivisions of article 1830 of the Revised Statutes of 1911, permitting suit to be maintained against defendant in some county other than its residence, all of which appear from defendant’s bill of exception No. 1, which bill of exception is here referred to.”

The first proposition submitted is:

“A contract of sale conducted by a broker in which the negotiations for same are conducted through telephone communications and telegrams had by the purchaser and seller, respectively, with said broker, and in which, through the medium of said broker, an agreement is finally reached by which the buyer becomes the purchaser from the seller of a tank car of oil, such contract is not a contract in writing within the meaning of subdivision 5 of article 1830 of the Revised Statutes of Texas of 1911, notwithstanding after said contract has been consummated between the principals the broker undertook to make a written memorandum of the terms of sale.”

The facts presented in the petition are, in effect, that appellant’s principal place of business was at Brownsville, Tex., and that it had no agent in Grayson county. The first transaction was initiated between' the parties by John H. Hailey & Co., brokers, of Houston, Tex. (by phone), with whom appellant had placed its samples of oil, whereupon Hailey & Co. wrote in triplicate the following memorandum, sending one copy to each of the parties, and retaining one copy; the one received by appellant being received by it before the oil was shipped. The memorandum reads as follows:

“Houston, Texas, Nov. 3, 1913.
“People’s Ice & Mfg. Co., Brownsville, Texas —Gentlemen: In accordance with exchange of communications, we beg to confirm having this day sold to Interstate Cotton Oil Refining Co., Sherman, Texas, the following for your account: Two (2) tanks 160 brl. capacity, prime crude cotton seed oil cold pressed, at 46%c. per gallon, f. o. b. Brownsville, Texas.
“Shipment: One by fifteenth; one November.
“Tanks: To be furnished by buyer.
“Routing: Buyers.
“Terms: Sight draft on buyer, bills of lading attached, for full amount of invoice.
“Commission: 10c. per bbl. to be paid by sellers.
“This contract is made subject to the rules of the Texas Cotton Seed Crushers’ Association-made in triplicate; one copy being sent to the seller, one to the buyer, and one retained on file in this office. Thanks.
“Yours very truly, John H. Hailey Co.,
“As Brokers Only.”

Appellee’s manager testified:

“We received the broker’s contract and accepted it as the contract and knew no other. Neither defendant nor any one else notified us that it was not the contract.”

Appellant’s manager testified:

“On cross-examination the witness stated that he received the broker’s contract, a copy of which is set out in the petition, in due course of mail, and he made no exceptions to the terms of the contract; that said witness, as agent for defendant, sold through John H. Hailey, as brokers, two tank cars of prime crude cotton seed oil to the Interstate Cotton Oil Refining Company of Sherman, Tex.; that said deal through said broker was consummated by means of telephone communications, telegrams, and letters on or about the 3d day of November, 1913; that all the telegrams, letters, and what the brokers style a memorandum of contract were attached to his deposition and made exhibits thereof.”

Said oil was shipped with sight draft attached to bill of lading, which draft was presented to appellee and paid before the shipment reached Sherman.

Appellee alleged that this contract was made by the said Hailey Company as brokers, and was fully authorized by appellant; that appellant received the copy thereof sent to it by said broker, he executing the same in triplicate, one being sent to appellant, one to appellee, and one retained on file in the broker’s office; that said written contract truly stated the terms of the sale; that appellant accepted said contract as written by said broker, who was, in fact, the agent of appellant, and did not make the slightest objection thereto; that appellant acted on said contract shipping both tanks of oil sold under the terms thereof, and that, acting thereon, it shipped the tank of oil in controversy and collected the purchase price thereof, all this without making any objection to said contract, and that it is now es-topped, and that under certain rules of the Texas Cotton Seed Crushers’ Association, subject to which said contract was made, the weight and quality of the oil was guaranteed at destination, Sherman, in Grayson county; that said oil was shipped under a shipper’s order bill of lading with 'draft for purchase price attached, which draft was paid in Grayson county; that when the ear arrived at Sherman, which it did after the draft reached Sherman, and after it had been paid without any opportunity of inspection of the oil, it was found not to be of the quality sold; that, in fact, it was so contaminated with mineral oil that it was utterly worthless for any purpose; that it could not be unloaded from the car and mixed with cotton seed oil, because so to do would destroy the oil with which it was mixed.

Under the evidence in this case we are of the opinion that the memorandum executed by Hailey Company constituted a written contract between the parties and formed the basis for the right of action. Hailey was acting for both parties, and, as such, he was authorized to reduce the terms of the trade to writing and place his signature to the same, which became the contract of both parties and binding upon both, Both evidently relied on it as the only contract between them. Had they not relied on it it was incumbent on them to disavow it when it was first received, and, not having done so, at that time both are shut off from now doing so, but must abide thereby. Said contract by its terms required the performance thereof partly in Grayson county, which gave appellee a right of action for its breach in said county. Floresville v. Refining Co., 55 Tex. Civ. App. 78, 118 S. W. 194.

Eor another reason we think venue was properly laid in Grayson county; that is, that the oil was shipped by appellant to Sherman in Grayson county for appellee with draft drawn on appellee attacked to the bill of lading, which obligated the appellant to deliver possession of oil in Gras^son county. Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399; Floresville v. Refining Co., supra; Harris v. Salvato, 175 S. W. 802; Callender v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366; Planters’ Co. v. Whitesboro Co., 146 S. W. 225. The plea of privilege was properly overruled.

Appellant complains that the court erred in not submitting to the jury the following requested question, to wit:

“Was the oil in question, when loaded into the tank car and delivered by defendant to the carrier in Brownsville, Tex., of the grade and quality of the sample of same in the possession of the broker, John H. Hailey, when the sale was consummated with the plaintiff?”

The undisputed proof shows that the oil was not sold by sample, and also shows it was sold by appellant as “prime crude cotton seed oil cold pressed.” We think no issue was raised whether the oil when loaded in the car at Brownsville was of the same grade and quality of the sample in the possession of the broker, Hailey, when the sale was consummated?

Error is also assigned for refusing the following:

“Was the oil, when loaded into the tank car at Brownsville, Tex., and delivered in said city by defendant to the carrier, of the grade known as prime crude cotton seed oil?”

The contract obligated the appellant to deliver “prime crude cotton seed oil” at Sherman, Grayson county, and it is immaterial what grade was delivered to the carrier; the evidence showing that the grade delivered at Sherman was not the kind contracted to be delivered.

Error is assigned in the action of the court for refusing to submit to the jury the following:

“Question No. 1: Did defendant or its agent, S. C. Tucker, at the time of the making of the contract of the sale of the said tank car of oil at the time the controversy arose with reference to the grade of said tank car of oil, know the rules of the Texas Cotton Seed Crushers’ Association? Answer.
“Question No. 2: Did defendant or its agent, ■S. C. Tucker, after the receipt from the broker of what purports to be a written memorandum of the contract for the sale of said oil, with a knowledge of the significance of the term. ‘Subject to the rules of the Texas Cotton Seed Crushers’ Association,’ acquiesce with said clause in said contract? Answer.
“Question No. 3: After the receipt by defendant and its agent, S. C. Tucker, of the said memorandum from the broker, John H. Hailey, which memorandum stated that said sale was subject to the rules of the Texas Cotton Seed Crushers’ Association, would an ordinarily prudent man, situated and circumstanced as the said S. C. Tucker was, have been put on inquiry to ascertain what was the significance of such clause in said contract? Answer.

The proposition made by appellant is:

“Where a trade is consummated by a broker between the seller and the purchaser of a commodity, and, where after said trade has been consummated, the said broker undertook to make a written memorandum of the terms of the contract thus entered into between the seller and the purchaser and inserted in said written memorandum a clause making said trade subject to the rules of the Texas Cotton Seed Crushers’ Association, and where the undisputed evidence disclosed that at the time of the consummation of said trade through the medium of said broker no mention was made of said trade being subject to such rules, and where the undisputed evidence ' further showed that, when the seller received such written memorandum, he made no objection by reason of such clause being thus inserted, and where upon the trial of a suit based on said contract of sale in which it is a material inquiry as to whether such contract should be governed by the rules of such association, it was error for the court to refuse to submit to the jury for its findings the issues raised by the requested charge forming the basis of this assignment; said suit being submitted on special issues, and such issues embraced in said charge being raised by the pleading and the evidence.”

In answer to this assignment we adopt the proposition of appellee as follows:

“No fraud or misrepresentation on the part of any one making said contract is claimed by appellant. Appellant, through its manager and authorized officials, accepted said broker’s contract as the contract of sale to appellee in tins case. Said contract expressly and very plainly shows to have been made subject to the rules of the Texas Cotton Seed Crushers’ Association, and after accepting the same it is immaterial whether: (1) At the time of making the contract or at the time the controversy arose with reference to the grade of oil in the tank car appellant knew said rules; or (2) whether S. C. Tucker, with a knowledge of the significance of the term ‘subject to the rules of the Texas Cotton Seed Crushers’ Association,’ acquiesced therein; or (3) whether an ordinarily prudent person situated as he was would ‘have been put on inquiry to ascertain the significance of said clause of the contract.’ The reference to said rules was amply sufficient to make the same a part of the contract.”

Appellant’s president and manager testified as follows:

“I did not make any objection to the clause there that reads: ‘This contract is made subject to the rules of the Texas Cotton Seed Crushers’ Association — made in triplicate; one copy being sent to the seller, one to the buyer, and one retained on file in this office.’ I did not make objection to any living man. I recall that that came to me. That is dated November 3, 1913, and reached me the 4th or 5th. I did not tear it up, but kept it. I attach it to my deposition in this case.”

As the contract specifically referred to the rules of the Texas Cotton Seed Crushers’ Association, appellant is estopped from avoiding the effects of said rule when he had the opportunity of informing himself as to its import; there being no fraud or misrepresentation pleaded or proven. Box Co. v. Spies, 109 S. W. 432.

Appellant’s assignments of error from 5 to 14, inclusive, have all been duly considered by us, and we conclude they present no reversible error.

The court submitted all material issues presented by the pleadings and evidence. These were answered by the jury in favor of the appellee. The evidence supports the findings of the jury, and the judgment is affirmed.

Affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    OPIELA v. MANKA.
    (No. 5587.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26. 1916.
    Denied Feb. 23, 1916.)
    Appeal and Error <@=254 — Error Apparent op Recoed — Objection.
    Where an exception was erroneously sustained to plaintiff’s first amended petition, on the ground that it did not state an action within the jurisdiction of the county court, and all costs accruing up to and including such petition were assessed against plaintiff, the error is one apparent of record which will be corrected, though plaintiff did not then except or except on trial to a similar order, or raise the matter in his motion for new trial; the petition clearly showing that it stated a cause of action within the jurisdiction of the county court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent Dig. §§ 1486, 1487; Dec. Dig. <@= 254.]
    Error from XCarn.es County Court; C. L. Bell, Judge.
    Action by Prank C. Opiela against Prank Manka. There was a judgment for plaintiff, but all costs up to and including the first amended petition to which exceptions were sustained were assessed against plaintiff, and he brings error. Reversed and rendered.
    M. B. Little, of Alto, for plaintiff in error. Williamson & Klingemann, of Karnes City, and A. J. Prichard, of Asherton, for defendant in error.
   PLY, C. J.

Plaintiff in error, who was plaintiff in the court below, has prosecuted this writ of error from a judgment in his favor for $125, but in which all costs accruing up to and including the first amended petition, to which exceptions were sustained, were assessed against plaintiff. In the order sustaining the exceptions to the first amended petition, the costs were assessed as indicated, and, in the final judgment from which the writ of error is prosecuted, the costs accruing prior to the filing of the second amended petition were again assessed against plaintiff. Prom that judgment this writ of error has been perfected.

No exception was taken to the action of the court in assessing the costs against plaintiff, and no motion for a new trial was filed. It is recited in the judgment that the court had no jurisdiction of the amount set out in the first amended petition, and that is given as the reason why the costs up to that time were assessed against plaintiff in error. The first amended petition clearly alleges a cause of action for $205 actual and $500 punitory damages, a sum undoubtedly within the jurisdiction of the county court. A sum in excess of $1,000 could not have been arrived at except by doubling the punitory damages. This was probably done because the punitory damages are mentioned in the body of the petition and again in the prayer, but in the latter only $705 damages actual and exemplary are prayed for. The order was clearly erroneous, but it was not objected to when first done, nor later when the- aftermath of costs was repeated in the final judgment, and the question is presented as to whether this court has the power to pass upon the error.

The record clearly and unequivocally indicates the error and is one that we believe an appellate court should correct even in the absence of any exception being reserved in the lower court. The injustice of it is apparent, especially when the record shows that the costs assessed against plaintiff amount to more than the amount recovered by him. The error is one of law apparent of record, and no notice for new trial was required. Hollywood v. Wellhausen, 28 Tex. Civ. App. 541, 68 S. W. 329. We are unwilling to allow such an injustice as would be sustained by plaintiff, if technical rules were strictly enforced, to prevail, and, exercising that broad power inherent in every court to promote the ends of justice and right, we will reverse the judgment of the lower court and here render judgment that plaintiff recover of defendant the sum of $125, together with interest at 6 per cent, per annum thereon from August 20, 1914, together with all costs in this behalf in the lower court as well as in this court.

Reversed and rendered.


author: BKOOKE, J.

text:
    BEAN v. COOK et ux.
    (No. 62.)
    (Court of Civil Appeals of Texas. Beaumont
    Jan. 27, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. Appeal and Ebrob <@=3931, 934 — Review-Presumption.
    All reasonable intendments will be indulged on appeal to support the judgment and findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cént. Dig. §§ 3728, 3762-3771, 3777-3782; Dec. Dig. <@=931, 934.]
    2. Vendor and Purchaser <@=228 — Improvements by Vendor’s Lessee.
    A purchaser of land with notice that his vendor’s lessee put improvements thereon under oral agreement that he might remove them, preventing him from doing so, is liable to him for their value.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 495-501; Dec. Dig. <@=228.]
    3. Appeal and Error <@=704 — Review — Finding op Fact.
    Without the evidence, a finding of the value of improvements put on land cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. <@=704.]
    Appeal from Jasper County Court; C. C. Brown, Judge.
    Suit by I. S. Bean against G. W. Cook and wife. From an adverse judgment, plaintiff appeals. Affirmed.
    Smith & Lanier, of Jasper, for appellant. J. T. Beaty and Chas. C. Ingram, both of Jasper, and <R. S. Sanders, of Center, for ap-pellees.
   BKOOKE, J.

This suit was instituted by appellant herein by way of an injunction sued out on the 24th day of November, 1914, against appellees, in which application for injunction it was alleged that the appellant was the owner in fee simple of the improvements in controversy and also the premises upon which the same were situated, by reason of having purchased same from J. A. Bohler and wife on the 31st day of October, 1914; that appellees were occupying said premises at the time of said purchase, as tenants at will of the appellant and his vendors; that about the 21st day of November, 1914, appellees began to tear down and remove from off said premises said improvements. Appellees were prevented by the injunction from remaining upon said premises or removing any part of said improvements from off them. Appellees, by answer filed January 5, 1915, set up general demurrer and general denial, and also pleaded specially that about the 13th day of June, they had a verbal contract with the said. Bohler, appellant’s vendor, in which contract it was agreed that any improvements which might be erected by appellees should remain upon the property, and that they should have the right to remove same at any time they should see fit; that appellant had notice of said contract, and thereby was es-topped to set up his claim thereto; that the injunction was knowingly, willfully, and maliciously sued out. Wherefore they claimed actual damages in the sum of $100 as expense, by reason of having to travel from place to place and live in hotels, etc., and the further sum of $500 by reason of appellant holding said improvements, and by way of pain, inconvenience, humiliation, etc., they suffered further damages in the sum of $350. Appellant, by supplemental petition, set up the -suing out of the injunction as having been done without malice and ill will, and that it was done in good faith, and upon the statement of J. A. Bohler that the improvements in controversy were included in said sale to appellant by said Bohler, and they also filed a second supplemental petition, denying the verbal contract pleaded by ap-pellees, and pleading an estoppel against appellees, by reason of certain misrepresentations made by appellees to appellant, to wit, that appellees had an agreement with said Bohler, by the terms of which appellees were to retain the title to any improvements that might be placed upon said premises, and that they should have the right to remove the same from off said premises at any time they saw fit, and that they had said agreement in writing and had it witnessed, and, further, that these representations were made at two different times, and that at each time appellant asked to see the same, but was refused, and that appellees failed to furnish appellant with the name of any witness to said agreement in writing. Ap-pellees filed their first supplemental answer, alleging, in addition to the matters theretofore set out, claim for damages by way of rent in the sum of $10 per month for a period of five months, and, further, that if the court should hold them not entitled to their damages, they be given the privilege of going upon said premises and removing such improvements as they own. The case was tried before the court without a jury, and judgment rendered, dissolving the injunction and awarding appellees judgment against appellant for $150, as the value of the improvements.

There is no statement of facts in this record. Therefore, we are not furnished with the testimony on which the judgment was based. The court, however, filed conclusions of law and fact as follows:

“I find that the improvements in controversy are situated upon a tract of land purchased by plaintiff, I. S. Bean, from one J. A. Bohler, first payment therefor being made on the 31st day of October, 1914, in the sum of $40, and that final payment was made on the date of the delivery of the deed, to wit, 16th day of November, 1914, in the sum of $2,960, .and that said improvements were included in said purchase.
“I find that said improvements were placed thereon by G-. W. Cook and wife, Sallie Cook, and that before said improvements were placed thereon by defendants, they entered into a verbal agreement with plaintiff’s vendor, J. A. Bohler, that said improvements should remain the property of defendants, and that they should have the right to remove same from off said premises at defendants’ pleasure.
“I find that defendants were living upon said land and occupying said improvements as their home at the time of the purchase of said land and improvements, as above stated, but that they were preparing to vacate same, and had declared their intention to so vacate at the time of the institution of this suit, and they were preparing to remove said improvements.
“I find that defendants had never rendered said improvements for taxes, but that the same were rendered by plaintiff’s vendor, J. A. Bohler.
“I find that defendants attempted to tear down said improvements and remove same from off said premises on the 4th day of November, 1914, that plaintiff then inquired of defendants what interest they claimed in said improvements, and was informed that they owned said improvements by reason of having placed same on the premises, and by reason of having an agreement with plaintiff’s vendor, Bohler, that they should have -the right to remove said improvements at their pleasure, and that they had said agreement in black ana white and had it witnessed ; that plaintiff requested defendants that he be allowed to see said agreement, and defendants refused to let him see same, and failed to inform plaintiff of the name of any witness to said agreement.
“I find that the plaintiff understood the defendants to mean by the terms ‘black and white’ that the agreement was in writing.
“I find that plaintiff then inquired of Bohler, concerning said agreement, and was informed by said Bohler that defendant had no such agreement, in writing or otherwise.
“I find that plaintiff again,' before making final payment, accosted the defendants concerning their rights, and were again informed that they had the agreement; that they failed to make known to plaintiff the names of any witnesses, and refused to let plaintiff see said agreement, but stated to plaintiff that if he could not take their word for it they could go.
“I find said defendants did not tell plaintiff that they were claiming said improvements by reason of any verbal agreement.
“I find said improvements to be of the value of $150.”

All reasonable intendments will be indulged to support the judgment of the court and its findings.

The appellant, by his first assignment, assails the judgment as being contrary to the law and the evidence. The said assignment is overruled.

By his second assignment, appellant assails the action of the court in rendering a money judgment against appellees for the sum of $150, as being the value of said improvements. The record is silent, other than the findings of the court, on this proposition, and the same must be held conclusive.

Finding no reversible error, this case is, in all things, affirmed.
      <§=s>For other cases see same topic and KEY-NXJMBBR in all Key-Numbered Digests and Indexes