text:
    CAPPS et al. v. CITY OF LONGVIEW.
    (No. 1494.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 21, 1915.
    Rehearing Denied July 1, 1915.)
    Appeax and Error <S=»1033 — Persons Entitled to Complain.
    That the judgment awarded to the plaintiff city, as a part of one street, less land than the jury found to be a part of it, was not a reason why it should be set aside at the instance of defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052^-4062; Dec. Dig. 1033.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Action by tbe City of Longview against Mrs. Margie Capps and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    See, also, 122 S. W. 427.
    F. B. Martin, of Longview, for appellants. M. L. Cunningham, of Longview, for appellee.
   WILLSON, C. J.

Appellants owned land south of and abutting on Marshall street and west of and abutting on another street in the city of Longview. Appellee claimed that appellants in fencing said land had encroached upon and inclosed with it a part of said Marshall street and all of tbe street abutting on same on tbe east. Appellee was tbe plaintiff below and by its suit sought to compel appellants to remove their fence from said streets, to restrain them from interfering with its officers and agents if they undertook to remove same, and further restrain appellants, after tbe fence was removed, from ever again so reconstructing same as to obstruct any part of said streets. This appeal is from a judgment in favor of appel-lee. There is no statement of facts with tbe record.

There is only one assignment. It is as follows:

“The judgment is contrary to the law, in this: That it gives property of the defendants, appellants, that the plaintiff, appellee, did not sue for nor plead any right, title, or interest in same, in this: That plaintiffs plead that the true north line, in their pleadings most favorable to them as to Marshall avenue, begins two feet south of the northeast corner, or where the fence is located at the northeast corner; thence S. 75° W. 400 feet; thence continues on to the northwest comer to a point 10 feet south of the present location of the fence. First, the judgment gTants to the plaintiff (as a part of Marshall street) a strip of land 28 feet by 400 feet more than they claimed in their petition, and for 267 feet by 28 feet to a point west 20 feet more than the plaintiff claimed in their petition, and off the east end of defendants’ property a street of the width of 25 feet not prayed for nor pleaded for by the plaintiff, and by reason of such the property of the defendants has been unlawfully appropriated by said judgment for public use and without compensation and is a confiscation of property without due process of law of the land for public use.”

It appears from appellee’s pleading that its complaint as to Marshall street was that the north line of the fence inclosing appellants’ tract of land had been so constructed as to include a part thereof two feet wide and 400 feet long, and another part thereof 257 feet long, 2 feet wide at one end, and broadening until it was 20 feet wide at the other end; and that its complaint as to the other street was that the east line of said fence had been so constructed as to include a part thereof 30 feet wide where it abutted on appellants’ land. We are unable to say from an inspection of the judgment that it does not conform, in the particulars complained of, to the pleadings referred to. Therefore the ■contention is overruled.

The case was submitted to the jury on special issues. Their findings, had there been pleadings to support same, would have authorized a judgment determining that appellants had a part 28 by 667 feet of Marshall ■street inclosed. Appellants’ complaint indicates that they have confused the findings of the jury with the judgment of the court. That the judgment awarded to appellee as a part of Marshall street less land than the jury found was a part of it is not a reason why same should be set aside at the instance •of appellants.

No error in the judgment having been pointed out, it is affirmed.
      igu^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    TEXAS SEED & FLORAL CO. v. CHICAGO SET & SEED CO.
    (No. 1457.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1915.
    Rehearing Denied May 27, 1915.)
    Appeal and Error <@=>387 — -Filing Bonds-Time — Dismissal.
    Where judgment was rendered February 18, 1914, by a district court, at a term thereof, which, as authorized by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 30, subd. 68, continued more than eight weeks until May 2, 1914, and notice of appeal was given April 28, 1914, but no appeal bond was filed with the clerk of the court below within 20 days thereafter, as required by article 2084, the appeal will be dismissed for want of jurisdiction to hear and determine it.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. <@=> 387.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action between the Texas Seed & Floral Company against the Chicago Set & Seed Company. Judgment for the latter, and the former appeals.
    Dismissed.
    Short & Feild, of Dallas, for appellant. Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   WILLSON, C. J.

The appeal is from a judgment rendered February 18, 1914, by a district (the sixty-eighth) court of Dallas county, at a term thereof which, as authorized by law (article 30, subd. 68, Vernon’s Statutes), continued more than eight weeks, to wit, from the first Monday in February to May 2, 1914. Notice of the appeal was given April 28, 1914, when appellant’s motion for a new trial was overruled. As appellants principal office was in Dallas county, it must, to confer jurisdiction of the appeal on this court, have filed an appeal bond with the clerk of the court below within 20 days after it gave the notice. Article 2084, Vernon’s Statutes. This it did not do. The bond was not filed until May 19, 1914. Therefore the appeal must be dismissed because this court is without jurisdiction to hear and determine it. Dilworth v. Steves, 174 S. W. 279; Bank v. Carper, 28 Tex. Civ. App. 334, 67 S. W. 188; Hillman v. Galligher, 52 Tex. Civ. App. 41, 113 S. W. 321; Mara v. Branch (Civ. App.) 127 S. W. 1076; Block v. Largent (Civ. App.) 127 S. W. 1076; Railway Co. v. Leach (Civ. App.) 129 S. W. 399.


text:
    FIDELITY-PHŒNIX FIRE INS. CO. v. O’BANNON.
    (No. 1468.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 25, 1915.
    On Motion of Plaintiff in Error, for a Rehearing, June 10, 1915.
    Further Rehearing Denied July 1, 1915.)
    1. Appeal and Error <@=>511 — Bills of Exceptions — Record.
    Assignments of error to rulings on testimony, shown, as recited therein, by certain bills of exceptions, cannot be considered; such bills of exceptions not being in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2319 — 232Í; Dec. Dig. <©=> 511.]
    On Motion of Plaintiff in Error for a Rehearing.
    2. Appeal and Error <@=>2 — Questions Reviewable — Rulings on Instructions — Exceptions.
    Noncompliance of a party with Rev. St. 1911, arts. 1971, 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 19Í4, arts. 1971, 2061), as to exceptions, does not affect his right to review of rulings on re-' quested instructions; the trial having been before the act went into effect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dec. Dig. <@=>2.]
    3. Insurance <@=>282 — Forfeiture—Title or Interest of Insured.
    Provision of’ a policy on a dwelling that it shall be void if the interest of insured be other than unconditional and sole ownership, or if the building be on ground not owned by insured in foe simple, refers to the date of its issuance, and not to subsequent changes.
    TEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 601-635; Dec. Dig. <@=3282.]
    4. Insurance <@=3328 — Forfeiture—Change in Interest or Title.
    The provision of a policy on a dwelling that it shall be void if any change takes place in the interest or title of the dwelling applies to a change of interest, giving insured a greater temptation to destroy the building, and so not where he sells the land, retaining title_ to _ the building, with right to remove in a certain time, half of the purchase price not to be paid till the removal.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 794-822, 825; Dec. Dig. <@=3328.]
    5. Insurance <@=3500 — Yalued Policy — “Personal Property.”
    “Personal property,” in the proviso to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874, declaring a fire policy, in case of total loss, a liquidated demand for its full amount, provided, this shall not apply to personal property, is used in its general sense of that which may be carried about with the person, having reference to the real character of the property, and not in its tech-' nical legal sense, having reference to the title by which it is held, and so does not apply to a dwelling which one owns on the land of another, with right of removal.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1275, 1276; Dec. Dig. <@=3500.
    For other definitions, see Words and Phrases, First and Second Series, Personal Property.]
    Error to Grayson County Court; J. Q. Adamson, Judge.
    Action by R. A. O’Bannon against the Fidelity-Phoenix Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Wm. Thompson, of ’Dallas, and John S. Patterson, of Austin, for plaintiff in error. Jones & Hassell, of Sherman, for defendant in error.
   WILLSON, C. J.

Defendant in error owned certain land in the city of Sherman. He also owned a frame dwelling house situated on the land. December 21, 1912, he 'sold and conveyed the land to the trustees of a school district. He did not sell the house, but, retaining ownership thereof, agreed to move it from the land before February 1, 1913. The house was destroyed by fire January 17, 1913, before it had been moved. At the time it was so destroyed it was insured in the sum of $700 against loss by fire, by a policy issued by plaintiff in error February 24, 1912. By the suit resulting in the judgment from which this appeal is prosecuted, defendant in error sought and was awarded a recovery on the policy of the sum stated.

In its first assignment plaintiff in error complains of the refusal by the court of its request in writing to instruct the jury to find in its favor ;• and in its second assignment it complains of the action of the court in peremptorily instructing the jury to find for defendant in error. Because of the failure of plaintiff in error to comply with the requirements of articles 1971 and 2061, Vernon’s Statutes, the assignments cannot be considered. Railway Co. v. Wilson, 176 S. W. 619, decided by this court April 15, 1915, not yet officially reported; Railway Co. v. Skeen, 174 S. W. 655; James v. Golson, 174 S. W. 688.

In the third and fourth assignments complaint is made of the action of the court in sustaining objections to and excluding certain testimony, as shown, it is recited in the assignments, “in defendant’s bill of exceptions No. 1” and its “bill of exceptions No. 2.” The bills of exceptions referred to are not in the record sent to this court. Therefore we cannot undertake to determine whether the trial court erred as charged or not.

The judgment is affirmed.

On Motion of Plaintiff in Error for a Rehearing.

The error of this court, now confessed, in refusing, .because of plaintiff in error’s failure to comply with the requirements of articles 1971 and 2061, Revised Statutes, as amended by the act March 29, 1913 (General Laws, p. 113 [Vernon’s Sayles’ Ann. Civ. St 1914, arts. 1971 and 2061]], to consider the assignments in which complaint was made of the action of the court below in peremptorily instructing the jury to find for defendant in error, and in refusing to instruct them to find for plaintiff in error, was due to the failure of the writer to notice that the cause was tried June 11, 1913, whereas the act referred to did not take effect until July 1, 1913. On the examination then made of the record, however, we were of opinion the assignments, if considered, should be overruled, and we are yet of that opinion.

The contract covering the sale of the land, made in December, 1912, was between the trustees of the school district and defend-in error and his wife. The latter had “the right,” it was recited, “to retain all buildings on. the premises.” The trustees were to pay $9,000 for the land — $4,500 when a deed conveying same was delivered to them, and $4,-500 “upon the removal,” it was further re-' cited, “of said buildings from said premises, to do which they (defendant in error and his wife) shall have a reasonable time, but in no event to be longer than the 1st day of February, 1913.”

It is insisted in propositions under the assignments referred to that because defendant in error did not own the land at the time the house thereon was destroyed by fire, and because the effect, as plaintiff in error asserts is true, of the limitation as to time in which the house was to be removed was to make defendant in error’s ownership thereof conditional instead of unconditional, the policy “ceased as a contract” by force of stipulations in it as follows:

“This entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; * * * or if any change, other than by the death of an insured, takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

The contentions are like those made in Insurance Co. of North America v. O’Bannon, 170 S. W. 1055, where defendant in error recovered judgment on another policy covering the same property and containing similar stipulations. The Court of Civil Appeals for the Fifth District held that the stipulation that the policy should be void “if the interest of the insured be other than unconditional and sole' ownership,” and the stipulation that it should be void “if the subject of insurance be a building on ground not owned by the insured in fee simple,” referred “to the ownership of the property at the date of the issuance of the policy, and not to subsequent changes in the title or ownership.” On facts which appear to have been identically the same as those in this ease that court further held, with reference to the other stipulation set out above, that while the title of defendant in error to the dwelling house may have been conditional on his removing it within the time fixed, and he may have had no title thereto after such time,

“yet,” quoting from the syllabps, “on the facts, there was no forfeiture, since the object of such provision was to avoid the policy upon any change of interest giving insured a greater temptation to destroy it or less interest and watchfulness in protecting it, and the change, if any, in his interest or title was not of such a character, and since the provision as to the payment of the balance on removal left him the owner whether it was removed by him or by the grantee, and merely guaranteed removal within the time fixed or reimbursement to the grantee for any expense of delay in removal.”

We think the rulings made in the case referred to are correct. Therefore, the facts here being the same as they were there, the contentions of plaintiff in error, specified above, are overruled.

In support of another proposition under the assignments, plaintiff in error insists that the house ceased to be real and became personal property when defendant in error, reserving in himself the title thereto, sold the land, notwithstanding the fact that defendant in error and his family then, and when the fire occurred, occupied it as their home, and further insists (although the house was totally destroyed by fire) that the policy therefore was not a liquidated demand for the full amount thereof, within the meaning .of article 4874, Vernon’s Statutes, and that the judgment was unauthorized because the value of the house was not shown by any of the testimony admitted by the court.

The article of the statutes referred to is as follows:

“A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy: Provided, the provisions of this article shall not apply to personal property.”

The Court of Civil Appeals had occasion to construe the statute in Orient Insurance Co. v. Parlin & Orendorff Co., 14 Tex. Civ. App. 512, 38 S. W. 60. The property covered by the policy sued upon in that case was a house constructed by the plaintiffs on land they had leased from the owner thereof for a term of five years. It was understood between the lessor and the lessees before and at the time the house was constructed that same should be and remain the property of the latter, and that they might remove it from the land. The insurance company insisted that the house was personal property, and therefore was within the proviso in the statute. The trial court overruled the contention. The Court of Civil Appeals in affirming the judgment, after discussing the purpose of the statute at some length, said:

“It is insisted here that the house was personal property, and is excluded by the terms of the statute. ‘Personal’, in its general sense, means simply ‘movable,’ ‘transitory’; ‘personal property’ that which may be carried about with the person. It has reference to the real character of the property, and not to the title by which it is held. In this sense, a dwelling house is not embraced within the meaning of the term ‘personal property.’ To give the statutory term its general signification, the object of the statute will be accomplished; to give its technical legal sense, the evil intended to be remedied will in part still prevail, and without any good reason to support it. We are of opinion that the statute should be construed to embrace houses, without reference to the question of the fee-simple title to the land.”

We are of the same opinion, and overrule plaintiff in error’s contention. As we view the record, the judgment is. not erroneous. Therefore the motion is denied.
      <@=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered’ Digests and Indexes

      <g=»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    C. E. HARRIS & CO. v. C. B. COZART GRAIN CO.
    (No. 797.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 29, 1915.
    Rehearing Denied June 19, 1915.)
    Garnishment <§=>88 — Application — Sufficiency-Statute — ‘ ‘Bocal Agent. ’ ’
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 273, requiring that an application for garnishment shall state the residence of the garnishee, an application and affidavit for garnishment, alleging “that plaintiff has reason to believe, and does believe] that the C. B. Co-zart Grain Company, a corporation, with a local agent in Miami, Roberts county, by the name of W. H. Rhodes, upon whom service can be had herein, is indebted to defendant,” was sufficient, “local agent” meaning- an agent at & given place, while to establish venue and obtain service of a writ under the statute, the residence of the local agent is deemed the residence of the corporation.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 160-166; Dec. Dig. <§=>88.
    For other definitions, see Words and Phrases, First and Second Series, Local Agent.]

      Appeal from Roberts County Court; J. E. Kinney, Judge.
    Action by C. E. Harris & Co. against tbe C. B. Cozart Grain Company. From a judgment sustaining a motion to quash plaintiffs garnishment proceedings, it appeals.
    Reversed, and cause remanded.
    C. Coffee, of Miami, and J. C. Eial, of Canadian, for appellant J. A. Holmes, of Miami, for appellee.
   HALL, J.

This appeal is from a judgment of tbe county court, sustaining a motion to quasb appellant’s garnishment proceedings. The application and affidavit for garnishment alleged:

“That plaintiff has reason to believe, and does believe, that the C. B. Cozart Grain Company, a corporation, with a local agent in Miami, Roberts county, by the name of W. H. Rhodes, upon whom service can be had herein, is indebted to defendant,” etc.

The court held that this was not in compliance with Vernon’s Civil Statutes, art. 273, requiring that the application for garnishment shall state the residence of the garnishee. In this we think the court erred. The allegation is specific that Rhodes is the local agent at Miami. “Local” signifies belonging to or confined to a particular place. People v. Wilcox, 237 Ill. 421, 86 N. E. 672. “Local agent” means an agent at a given place. Western C. P. & O. Co. v. Anderson, 97 Tex. 432, 79 S. W. 516; Bay City Iron Works v. Reeves, 43 Tex. Civ. App. 254, 95 S. W. 739.

For the purposes of establishing venue and obtaining service of writs under the statute, the residence of the local agent is deemed the residence of the corporation. Lash v. Morris County Bank, 54 S. W. 806. It is not. alleged specifically that Rhodes resides in Miami, Roberts county, but we think the company could not have a local agent at that place who resided elsewhere, and that the allegation is in effect that Rhodes is the local agent of the company, residing at Miami.

In a similar case, Talbot, Justice, said:

“The application for the writ of garnishment, among other things, alleged: ‘That affiant has reason to believe, and does believe, that the Niagara Fire Insurance Company of New York, a corporation duly and legally incorporated, and who 'has as its local agent at Athens, Henderson county, Tex., Carroll & Ferrell, a firm composed of W. T. Carroll and A. S. Ferrell, is indebted to defendant,’ etc. It is not alleged in terms in the application that the agents of the garnishee named therein reside in Henderson county, but we think the language used is equivalent to such an allegation, and substantially meets the requirements of the statute.” Dickerson v. Central Texas Grocery Co., 147 S. W. 695.

It is not necessary to consider the remaining assignment relating to the right of appellant to amend the application. We think the application is, in all things, sufficient, and the judgment is reversed, and the cause remanded.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FARMERS’ & MERCHANTS’ BANK v. OWENS.
    (No. 734.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 19, 1915.)
    1. Trial <@=>251 — Instructions—Conformity to Pleadings.
    A stockholder in an insolvent state bank executed a note secured by a mortgage, pursuant to an agreement between the stockholders and a contract between representatives of the stockholders and the president of plaintiff bank, the purpose of which was to make the plaintiff bank a liquidating agent for the bank in which the defendant owned stock. The contract provided that the note and mortgage should not be used unless the assets of the defunct bank were insufficient to meet its liabilities, which were assumed by plaintiff bank. It subsequently appeared that such liabilities would not be sufficient, and the defendant’s note and moi’tgage were transferred absolutely to plaintiff, which thereupon brought suit to foreclose as absolute owner. Plaintiff requested an instruction that if the transfer whereby it became the absolute owner of the note and mortgage was void by reason of duress, plaintiff would still be entitled to recover if the assets of the defunct bank were insufficient to pay its liabilities. Held, that having sued in the capacity of absolute owner of the note to recover the full amount thereof, the bank was not entitled to a charge under which it might recover as the holder of the note delivered as a guaranty.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. <@=>251.]
    2. Appeal and Ebeob <@=>1033 — Review — Who mat Complain.
    An appellant cannot complain of errors in his favor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052 — 4062; Dec. Dig. <@=> 1033.]
    Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.
    Action by tbe Farmers’ & Merchants’ Bank against Mrs. Lona Owens. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Percy Spencer and W. H. Bledsoe, both of Lubbock, for appellant. W. D. Benson, of Lubbock, for appellee.
   HALL, J.

Appellee, Mrs. Owens, owned five shares of the capital stock of the Duke State Bank, of Duke, OM. On June 7, 1911, at a meeting of the stockholders, it was ascertained that said bank was insolvent. An assessment was levied by the state authorities upon the stockholders, including appel-lee, of an amount equal to the par value of the stock held by the respective shareholders. Appellee executed her note on that date for $500, in compliance with the law and the assessment made by the State Bank authorities. This note was due January 1, 1912, stipulated for interest at the rate of 10 per cent, from maturity until paid, and by agreement of all parties was made payable to the order of J. H. Burnett, and secured by a mortgage ’on a half section of land in Terry county, Tex. J. H. Burnett was the president of appellant bank, and the notes of the stockholders were made payable to Mm as a matter of convenience, for tbe reason that at said meeting appellant bank was appointed tbe liquidating agent for tbe defunct bank. Tbe mortgage given to secure tbe note contained tbe following provision:

“Provided always that these presents are upon the express condition that whereas said party [Mrs. Lona Owens] has this day executed and delivered one certain promissory note in writing to said party of the second part, described as follows: Por $500.00 dated June 7, 1911, and due January 1st, 1912, in case the. assets of the Duke State Bank will not pay its liabilities.”

It was agreed at tbe meeting on June 7tb that tbe Farmers’ & Merchants’ Bank should assume and pay all tbe liabilities of tbe Duke State Bank, and tbe stockholders of tbe last-named bank on that day appointed M. O. Owens and A. L. Perry a committee to settle and wind up tbe affairs of tbe insolvent bank. It is alleged by plaintiff that Owens and Perry were named agents for that purpose, and that all tbe stockholders agreed to abide by any and all settlements made by said committee, and that tMs agreement was approved by tbe banking department for tbe state of Oklahoma; that in accordance with said agreement certain assets of tbe insolvent bank were delivered to tbe Farmers’ & Merchants’ Bank. It was alleged and shown by tbe evidence that appellant bad paid off and discharged practically all tbe liabilities of the insolvent bank, aggregating approximately $20,600; that it bad used due diligence in realizing from tbe assets turned over to it, and on the 17th day of January, 1912, made a full report of its transaction to Perry and Owens. There is a conflict in tbe evidence as to tbe amount of money realized by appellant' bank from tbe assets of tbe insolvent concern. On June 7th, at tbe meeting of tbe stockholders mentioned above, a written contract was executed by J. H. Burnett, representing tbe Farmers’ & Merchants’ Bank, and Perry and Owens, representing tbe insolvent bank, setting out tbe terms and conditions under which appellant should assume tbe liabilities of tbe insolvent bank. Paragraph second of tbe contract is as follows:

“Parties of tbe first part [Perry & Owens] for and in consideration of J. H. Burnett, party of the second part, duly appointed representative of the Farmers’ & Merchants’ Bank of Duke asstuning the liabilities above mentioned, agree and do hereby assign and deliver to the said party of the second part, the assets of the Duke State Bank at Duke, a list of which is hereto attached; and the parties of the first part do further agree to protect said party of the second part against any loss by reason of depreciation of the assets of the Duke State Bank that are delivered to the party of the second part by certain securities that are now held by the party of the second part and also a deed to the banking building owned by the Duke State Bank, said deed to be held in escrow until date of final settlement.”

Tbe third paragraph is:

“It is mutually agreed by parties of the first part and the party of the second part, that on or before January 2, 1912, a final settlement be made; that if the assets that are assigned and delivered to the party of the second part, a list of which is attached, are not sufficient to reimburse said party of the second part that the securities or a part thereof, of sufficient to cover any loss sustained by reason of assuming the liabilities of the Duke State Bank now held by party of the second part, and the deed held in escrow, become the property of the second party; however, if at the time of final settlement there has been sufficient fund realized from the assets of the Duke State Bank or from the securities held by the party of the second part, then party of the second part shall return to parties of the first part, the securities or any part of them, that remain in hand at the time of final settlement and the deed held in escrow shall be returned to parties of the first part.”

Matters remained in this condition until January 17, 1912, at wbicb time Perry and Owens, joined by two stockholders of tbe defunct bank, viz., Pbelps and Witcher, transferred to J. H. Burnett, as tbe representative of appellant bank, all of tbe notes, including tbe $500 note executed by appellee, Mrs. Owens. Tbe written agreement effecting this transfer recites that tbe balance due appellant bank, to be settled under tbe terms of tbe contract of June 7,1911, is $16,157.34, and that in full satisfaction and settlement of said sum, and in full settlement of tbe individual liability of tbe stockholders of tbe defunct bank, all of tbe assets of tbe Duke State Bank of whatsoever kind and character, consisting of tbe bank building, furniture, fixtures, notes, accounts, real estate, personal property, including notes theretofore given to tbe said Burnett, by tbe stockholders as security, should become the property of appellant bank, and that said stockholders’ notes should become an absolute liability, and were declared to be immediately due and payable. Thereafter this suit was filed to recover of Mrs. Owens tbe amount evidenced by her note and to foreclose tbe mortgage given to secure it. At tbe time of the execution of tbe note she was a feme sole and in tbe interim married M. O. Owens, one of tbe agents appointed at tbe stockholders’ meeting mentioned above. Joined by her husband, she alleged as a defense that tbe transfer of tbe note in question, together with tbe notes of other stockholders, and tbe assets of tbe defunct bank, bad been made by Owens and Perry under duress, that Owens and Perry were officials of the defunct bank prior to its insolvency, and that J. H. Burnett threatened to prosecute them for alleged criminal mismanagement of tbe affairs of tbe bank. Tbe jury returned a verdict in favor of defendant, Mrs. Owens.

Two assignments of error are urged here: The first is predicated upon tbe failure of tbe court to give a special charge requested by appellant; and tbe second, raising practically tbe same question, complains of tbe general charge. Tbe fifth paragraph of tbe court’s charge, and of wbicb complaint is made, is in part as follows:

‘‘You will find for the plaintiff, unless you believe from a preponderance of the evidence that the said contract of January 17, 1912, was executed and signed by said M. O. Owens under duress, or that the assets of the Duke State Bank'had been sufficient to satisfy the liabilities thereof under the contract of June 7, 1911, as you are instructed in special charge No. 3 of defendants.”

Special charge No. 3 is as follows:

“At request of counsel for the defendant, you are instructed in connection with the court’s main charge, that if you; believe from the evidence that the plaintiff herein entered into a ■contract or contracts with the defendant, Dona Owens, for the purpose of guaranteeing the plaintiff herein against loss on account of the affair's of the Duke State Bank, and the said Dona Owens executed the note and deed of trust introduced before you, sued on herein, and if you: believe that the assets of the Duke State Bank have been sufficient to satisfy the liabilities thereof under the terms of the contract of June 7, 1911, then you are instructed that the ■defendant Dona Owens would not be compelled to pay the note sued on unless you further find that subsequent agreements have been,made by said Dona Owens, which might require her to pay said note; and upon this issue, you are authorized to consider all the evidence before youi.”

Appellant contends that the court erred in charging disjunctively in paragraph 5, which authorized the jury to return a verdict in favor of defendant if they believed either that Owens had acted under duress, or if the Duke State Bank’s assets had been insufficient to pay its liabilities; and it insists that the court-should have given the following special charge, which was requested by it:

“You are charged that, although you find, if you do so find, that the contract of January 17, 1912, signed by A. D. Perry and M. O. Owens, and the stockholders committee, is void by reason of duress or threats, the plaintiff would still be entitled to recover if you find from a preponderance of the evidence that the assets of the Duke State Bank had, at the time of the institution of this suit, failed to pay its liabilities.”

Under the express terms of the mortgage and paragraphs 2 and 3 of the contract of June 6, 1911, plaintiff was entitled to recover from this appellee ratably with the other stockholders only so much as would pay off any deficit which remained after applying all of the assets of the defunct bank to the payment of its liabilities. Plaintiff’s pleadings utterly ignored this phase of the case. The plaintiff sought to recover as the absolute owner of the note and mortgage in question, evidently basing its suit upon the contract of January 17, 1912. The petition contains no allegations of fact or prayer in the alternative that it be allowed to recover under the terms of the contract of June 7, 1911, in the event it should be held not to be the absolute owner of the note and mortgage under the contract of January 17, 1912. This being the state of the pleadings, the general charge was more favorable to appellant than it had the right to ask. Having sued in the capacity of absolute owner of the -note to recover the full amount thereof, it was clearly not entitled to a charge under which it might recover as the holder of a note executed and delivered as a guaranty, and under a contract which might reduce the amount of its recovery to considerably less than the face of the note. The error, if any, is in appellant’s favor, and it has no right to complain.

The judgment is affirmed.
      <§=>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    WATERHOUSE et al. v. GALLUP et al.

    (No. 6715.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 4, 1915.
    On Motion for Rehearing, June 30, 1915.)
    1. Deeds <&wkey;139 — Exceptions—'Uncertainty.
    The only uncertainty in the description in a deed being in an attempted exception, the exception fails, and not the grant.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 458, 459; Dec. Dig. &wkey;>139.]
    2. Deeds <&wkey;38 — Judicial Sales <&wkey;61 — Sux-xioiency ox Description.
    A deed is not void for insufficiency of description, unless, from an inspection of the deed, it appears the description is so indefinite and uncertain that it cannot by extrinsic evidence be made to apply to any definite land; and this whether the sale be judicial or voluntary.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. <&wkey;>38; Judicial Sales, Cent. Dig. §§ 119-122; Dec. Dig. &wkey;61.]
    3. Tenancy in Common <@=»3 — Creation.
    A deed of a stated number of acres, not described, out of a certain survey, in which the grantor owns several tracts, containing a greater number of acres, conveys an undivided interest, represented by a fraction, whose denominator is the number of acres owned by the grantor, and whose numerator is the number of acres stated in the deed.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. &wkey;j3.]
    4. Appeal and Error &wkey;>1050 — Harmless Error — Admission ox Evidence.
    Admission of evidence immaterial to the only issue, and which could not have affected the result, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <®=»1050.]
    On Motion for Rehearing.
    5. Tenancy in Common <§=»3 — Creation— Administrator’s Deed.
    The rule that a deed of a stated number of acres, not described, in a survey in which the grantor owns several tracts, embracing more, conveys an undivided interest, applies to an administrator’s deed, where the estate owns more therein.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. <®=j3.]
    6. Executors and Administrators &wkey;3397— Sale ox Acres — Interest Conveyed.
    An administrator’s deed of a certain number of acres, not described, in a survey in which the estate owns more, in several tracts, does not convey all it owns, but only an undivided interest, though the administrator thought the estate owned therein only the number of acres advertised, sold, and named in the deed.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1598-1604; Dec. Dig. <&wkey;397.]
    7. Executors and Administrators <&wkey;397— Sale ox Land — Number ox Acres — Clerical Mistake.
    ’The application and order for sale by an administrator being for 2,081 acres in a certain survey, the figures “2,031” in the order of confirmation and the deed will be considered a clerical error; this being more probable than a sale of less than ordered.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1598-1604; Dec. Dig. &wkey;397.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Two suits consolidated, one by W. W. Wa-terhouse and another against David L. Gallup and another, S. H. Worden and another intervening, the other by said Gallup and another against said Worden and others. From portions of the judgment said Water-house and another and said Gallup and another appeal.
    Reformed and affirmed in part; and reversed and rendered in part.
    T. L. Foster, of Beaumont, W. B. O’Quinn, of Lufkin, King & King, of Nacogdoches, and G. P. Dougherty, of Houston, for appellants. Terry, Cavin & Mills, of Galveston, and Sam R. Sayers and T. W. Jordan, both of Lufkin, for appellees.

       writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This appeal is prosecuted from a judgment rendered in two suits of trespass to try title brought in the district court of Angelina county, which were consolidated and tried as one suit. The first suit was brought by appellants W. W. Water-. house and Richard Waterhouse against the appellees David L. Gallup and the East Texas Oil Company to recover two tracts of land on the B. X. Mudd league in Angelina county, which are fully described in plaintiffs’ petition; one of said tracts containing 1,731 acres and the other 350 acres. In this suit the defendants answered by general demurrer, general denial, and plea of not guilty. S. H. Worden and G. A. Wor'den, heirs of Joseph Worden, deceased, intervened in this suit, claiming title to 100 acres of land alleged to have been reserved in the deed to Richard Waterhouse, Jr., the ancestor of plaintiffs under whom they claim. To this petition in intervention plaintiffs answered by plea of not guilty. Thereafter the appellees David L. Gallup and the East Texas Oil Company brought suit in said court against T. J. Worden, S. H. Worden, G. A. Worden, Jack Mott, and John Mott for the recovery of three tracts of land on the B. X. Mudd league; two tracts being the same described in the petition in the suit first mentioned, and the third being a tract of 100 acres, said three tracts being fully described in the petition of plaintiffs Gallup and the East Texas Oil Company. In this second suit the defendants Worden answered by plea of not guilty, and specially pleaded that the three tracts of land sued for by plaintiffs were community property of John Worden and Letha Worden and were conveyed to Richard Waterhouse, Jr., under whom plaintiffs claim, by John Worden after the death of said Letha Worden, and her title did not pass by said deed, and that said defendants, who are the heirs of said Letha Worden, are the owners and entitled to recover an undivided one-half of said lands. The defendants Mott failed to appear. These’suits were consolidated by agreement of all parties. The trial in the court below without a jury resulted in a judgment that plaintiffs, W. W. Waterhouse and Richard Waterhouse, take nothing by their suit; that David L. Gallup and the East Texas Oil Company recover of and from all the other parties to said suits the two tracts of land of 1,731 and 350 acres, respectively ; and that the interveners Worden recover of all of the other parties to the suits the tract of 100 acres of land described in the pleadings. Plaintiffs Waterhouse have appealed from this judgment, and defendants Gallup and East Texas Oil Company have also appealed from that portion of the judgment awarding interveners Worden 100 acres of the land in controversy.

The record discloses the following facts: John Worden is the common source of the title under which all the parties claim. In 1867 he conveyed to Richard Waterhouse, Jr., the three tracts of land involved in this suit. This deed is as follows;

“The State of Texas, County of San Augustine.
“Know all men by these presents: That I, John Worden of the county and state aforesaid for and in consideration of the sum of one thousand dollars ($1,000) to me in hand paid by R. Waterhouse, Jr., the receipt whereof is hereby acknowledged and acquittance is fully granted, have bargained and sold and by these presents do grant, bargain, and sell unto the said R. Waterhouse, Jr., three several tracts of land situated in Angelina county, Texas, and a part of the headright of the B. X. Mudd and better known as the league on which the town of Calhoun is situated, viz., seventeen hundred and thirty-one acres of land off of said headright and bounded on the northwest by L. Swift line; thence north by the Angelina river; thence on Calhoun; thence on Stanley’s line so as to include 1,731 acres; ,also three hundred and fifty acres of land off of said league, to wit: Running with the south and west lines of said league survey so as to include three hundred and fifty acres of land; and one hundred acres of land immediately below and adjoining the town of Calhoun off of said league and beginning at the town comer of the ten acre tract of land off of said headright league conveyed to said Worden by J. A. Lawhon, containing one hundred acres and also one-half of the following described tract or parcel of land (the upper half) to include the ferry known as Worden ferry and the fixtures, to wit: Part of the headright survey of B. W. Harvey in San Augustine county on the east side of the Angelina river, commencing at the mouth of the creek near the ferry and running up the creek forty rods and to be run in a square form so as to include all the improvements of said Worden, the said Worden reserves the town half containing a cotton factory, and together with all and singular the rights, members, hereditaments and appurtenances. To have and to hold all and singular the premises above mentioned (save and except one hundred acres heretofore sold to Joseph Worden) unto the said Richard Waterhouse, his heirs and assigns forever, and I do hereby bind myself and my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said R. Waterhouse, Jr., his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“In testimony whereof, I hereto set my hand and scroll for seal this the 24th day of June, A. D. 1867. John Worden. [Seal.]
“Signed, sealed, and delivered in the presence of
“E. H. Dixon.
“B. F. Price.”

The foregoing deed was filed for record in San Augustine county, Tex., June 24, 1867, and recorded in Book J, p. 686, of the deed records of said county.

Richard Waterhouse, Jr., died prior to July, 1876, and on July 29, 1876, B. R. Wallace and H. H. Johnson were appointed administrators of his estate by the probate court of San Augustine county and duly qualified as such. The inventory of the estate filed by the administrators on August 25, 1876, shows among other lands listed as the property of the estate the following:

“B. X. Mudd headright, Angelina county, 1,-800 acres, value $450.”

The estate was indebted to various persons ; the aggregate amount of the claims allowed by the administrators and approved by the court being about $25,000. On December 6, 1878, the administrators applied for an order authorizing them to sell lands of the estate for the purpose of paying its debts. With other lands which they asked to be authorized to sell, the application describes 2,081 acres on the' Mudd survey as follows:

“2,081 acres B. X. Mudd survey, Angelina county.”

The notice issued upon this application, the order of sale made on January 20, 1879, and the advertisement or notice of sale contains the same description of the land. The report of sale made by the administrators in March, 1879, shows, among other lands of the estate sold in accordance with said order of sale:

“That 2,031 acres B. X. Mudd original grantee in Angelina county was sold to T. W. Blount and W. C. Ray for $33.”

The order of the probate court confirming the sale gives the same description of the land. The deed from the administrators to Ray and Blount, executed on April 1, 1879, after referring to the order of sale authorizing the sale of “2,031 acres of the B. X. Mudd headright in Angelina county,” ancb the report of sale and order of confirmation before mentioned, describes the land conveyed as follows:

“The aforesaid two thousand and thirty acres of land lying and being situated in Angelina county, Texas, it being a, part of the B. X. Mudd survey and to be taken from the three tracts of land on said survey, which said three tracts of land were conveyed by B. X. Mudd to John Worden on the 20th day of January, A. D. 1840, and by said Worden conveyed by Richard Waterhouse, Jr., on the 24th day of June, A. D. 1867, the said three tracts of land are described in the deeds referred to as follows: All on the B. X. Mudd survey in Angelina county, Texas, the first containing seventeen hundred and thirty-one acres bounded on the N. W. by L. Swift’s land; thence N. by the Angelina river; thence to Calhoun; thence on Stanley’s so as to include (1,731) acres; the second containing three hundred and fifty acres running with the south and west lines of said league surveyed so as to include three hundred and fifty acres of land, and one hundred acres of land immediately below and adjoining the town of Calhoun, beginning at the lower corner of the ten acre tract of land of said league conveyed to John Worden by J. C. Bawhon.”

No question is made as to the sufficiency of the description in the deed from John Worden to Richard Waterhouse, Jr., to identify the several tracts of land thereby conveyed, and the three tracts on the B. X. Mudd league described in the administrator’s deed above set out can be identified and located on the ground from the description contained in said deed.

Appellants Waterhouse contend that the conveyance from the estate of Richard Wa-terhouse to Blount and Ray, under whom ap-pellees Gallup and East Texas Oil Company claim, did not pass title to any land, because the application, order of sale, report of sale, order of confirmation, and deed of the administrators are each and all void because the description contained in each is insufficient to identify the land attempted to be conveyed.

Each of these orders and documents, when offered in evidence in the court below, was objected to by appellants upon the ground above stated. The administrator’s deed was objected to on the further ground that it was not supported by a valid order of sale or order of confirmation. In their appeal from that portion of the judgment awarding appellees Worden 100 acres of the land in controversy, appellees Gallup and East Texas Oil Company contend that the attempted reservation in the deed from John Worden to Richard Waterhouse of 100 acres of land was ineffectual because the description of said 100 acres intended to be reserved is insufficient in itself to identify said 100 acres, and no evidence was offered tending to identify any land conveyed by John Worden to Joseph Worden, and further because an attempted exception in the habendum clause of a deed from the estate conveyed by the granting clause is void, and all of the estate described in the granting clause passes by the deed.

Since the decision of the question presented by the appeal of Gallup and East Texas Oil Company is of some importance in determining the questions presented by the appellants Waterhouse, we will first state our conclusions as to the sufficiency of the reservation in the deed from John Worden to Richard Waterhouse, Jr. It goes without saying that the exception contained in the habendum clause of the deed before set out does not in itself show any title in Joseph Worden to any 'of the land described in said deed, and, in the absence of any other evidence tending to show that a conveyance of 100 acres of said land had been made to Joseph Worden and identifying the land so conveyed, the attempted exception must fail. Mr. Devlin in his work on Deeds (3d Ed.) § 1013 (c), states the rule as follows:

“If the land conveyed described as an entire tract, excepting a parcel described, and the description of the parcel in the exception, is vague and uncertain, the uncertainty will affect the exception only, and that will fail and not the grant. Thus, where the land was described as: ‘All that certain piece and parcel of land lying and being in the county of Mobile, and state of Alabama, in township No. 7 south, of rang'e No. 3 west, and part of the southeast quarter of the northwest quarter of section No. 26, in said township and range, and containing thirty-nine ■acres and 33% hundredths. The above piece or parcel of land includes the whole of the southeast quarter of the northwest quarter of section No. 26, in said township, less 60% hundredths of an acre’ — the grant is valid, as the uncertainty is in the exception only. The same is true, where the deed describes a tract of land, ‘less 80 acres,’ previously sold. The uncertainty affects the exception only.”

It was the clearly expressed intention of the grantor in this deed to pass title to the whole of the three definitely described tracts described therein, less the uncertain and indefinite exception. The only uncertainty in the description in the deed is in the attempted exception, and it is well settled that in such case the exception will fail and not the grant. De Roach v. Clardy, 52 Tex. Civ. App. 233, 113 S. W. 22. The attempted exception being ineffectual because it is not shown to apply to any definite or ascertainable portion of the land conveyed by the deed, it is unnecessary to decide whether a definite description of property attempted to be excepted from a conveyance contained only in the ha-bendum clause of a deed would be effectual. If the deed, construed as a whole, clearly evidences the intention of the grantor to except from the conveyance a certain and definite part of the land described in the granting clause, we do not think such intention should be defeated because of the position it occupies in the instrument. We think the deed from John Worden to Richard Waterhouse passed the title to all of the land therein described to said Waterhouse.

We come now to a consideration of the question of whether the proceedings in the probate court and the deed of the administrators of the estate of Richard Waterhouse, Jr.; were sufficient to pass the title of said estate to any portion of the land owned by the estate on the B. X. Mudd league and described in the deed from the administrators to Blount and Ray.

In determining the question of whether the description of land contained in a conveyance is void for uncertainty, the test is whether the land can, by the aid of extrinsic evidence, be identified from the description given in the conveyance. A very brief description is often sufficient to identify an object. If one owns only one farm or one tract of land of 100 acres, a deed by such person describing the land sold as “my farm or my tract of 100 acres,” and giving the county in which it is situated, sufficiently describes the land. The application of the description to the land conveyed by a deed must always be shown by extrinsic evidence. In the case supposed, when it is shown that the grantor in the deed owns only one farm or one tract of 100 acres in the county named, and the boundaries 'of tbe farm or tract of land are known and established, the description in the deed identifies the land sold with absolute certainty, and this would be true if the conveyance was of any named undivided interest in the farm or tract of land. Unless, j from an inspection of the deed, it appears j that the description is so indefinite and I uncertain that it cannot by extrinsic evidenee be made to apply to any definite land, ; the deed is not void for insufficiency of description. Wilson v. Smith, 50 Tex. 365; IIermann v. Likens, 90 Tex. 448, 39 S. W. 282; Pierson v. Sanger, 93 Tex. 163, 53 S. W. 1012. This rule is applicable to judicial as well as to voluntary sales. In sales of the former character, a description, though sufficient to identify the land, may be so meager or misleading as to affect the price brought at the sale, and in a direct proceeding brought for that purpose would be ground for setting the sale aside. Sanger v. Roberts, 92 Tex. 317, 48 S. W. 1; Gallup v. Flood, 46 Tex. Civ. App. 644, 103 S. W. 426.

In the instant case the application, order of sale, advertisement, report, and order of confirmation of sale all describe the land as so many acres belonging to the Richard Waterhouse estate on the B. X. Mudd league, i, in Angelina county. If there was no discrepancy between the number of acres named in the order of sale and the number stated in the report and confirmation of sale, and the extrinsic evidence showed that the Water-house estate owned only one tract on said league of the number of acres stated, there could be no question of the sufficiency of the description. McBee v. Johnson, 45 Tex. 641; Davis v. Touchstone, 45 Tex. 497.

In so far as the difference in the acreage stated in the two orders are concerned, we do not think it material in determining the sufficiency of the description. We can see no reason for holding an administrator’s 'sale void because the administrator sold and the court confirmed the sale of only a portion of the land ordered sold and advertised for sale.

Under our construction of the deed from John Worden to Richard Waterhouse, Jr., as we have before stated, the estate of said Waterhouse owned at the time of the sale under the orders of the probate court the three tracts of land described in said deed, aggregating 2,181 acres. The evidence shows that this was all of the land owned by the estate on said league. It will be observed that the sale was not of a tract of land containing a certain number of acres, but of a stated number of acres on the Mudd league. If a person owning a large tract of land, the location and boundaries of which are known and defined, conveys to another a certain number of acres on or out of such larger tract without further describing or identifying the land sold, we think the deed should be held to convey an undivided interest in the larger tract proportionate to the acreage , conveyed and that contained in the larger j tract. If not so construed, nothing would j pass by such a deed, and, when a deed or con- < tract is reasonably susceptible of a construe- < tion which would make it valid and binding, j that construction should be given it rather | than one which would render it void.

We think the. conveyance in this case is distinguishable from that construed in the cases of Dull v. Blum, 68 Tex. 299, 4 S. W. 489, and Hanrick v. Gurley, 93 Tex. 470, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330. The deed in each of these cases, when construed j as a whole, clearly shows that it was not the ; intention of the grantor to convey an undivid- j ed interest in the tract of land described in the deed, but a specific tract to be selected j by the grantee out of said larger tract de- / scribed in the deed. The holding in those cases that the deeds, though in form a present conveyance of title were in fact only contracts to convey when a selection in accordance with the terms of the deed should be made by the grantee, should not be applied to the conveyance in this case. The rule announced in the case of Dohoney v. Womack, 1 Tex. Civ. App. 362, 20 S. W. 951, is, we think, the correct rule to follow in this I case. The rule is thus stated in the Dohoney s Case: |

“We are of opinion that the courts of Massachusetts and California, and doubtless of other !' states, have announced the correct rule, which may be stated thus: When a deed conveys a cer- ‘ tain number of acres, without describing the land conveyed, to be taken out of a larger tract described, the grantee becomes, by his deed, a tenant in common, having a fractional interest, represented by a fraction whose denominator is a number equal to the number of acres in the larger tract described, -and whose numerator is a number equal to the number of acres conveyed. The grantee acquires such fractional interest in every acre of the larger tract. Wallace v. Miller, 52 Cal. 655; Lawrence v. Ballou, 37 Cal. 518; Schenk v. Evoy, 24 Cal. 104; Gibbs v. Swift, 12 Cush. [Mass.] 397, 398; Brown v. Bailey, 1 Metc. (Mass.) 254.’’

If a conveyance of an undescribed stated number of acres out of a large tract is a conveyance of an undivided interest in such tract proportionate to the acreage conveyed and that contained in the large tract, we think the same construction should be given to a conveyance of a stated number of acres out of two or more tracts owned by the grantor.

The remaining assignments of error, which complain of the ruling of the court in admitting in evidence an application for order of sale filed in the probate court of San Augustine county in the estate of Richard Waterhouse by J. H. Bemis, trustee for Erastus Jones, and a deed of trust executed by Richard Waterhouse, Jr., to said Bemis, trustee for said Jones, need not be discussed. If it be conceded that the objections to said evidence 'should have been sustained, the error of the court in admitting it was harmless, because the evidence was not material to the only issue in tlie case and could not have af- j fected tlie result of the trial. |

From the views above expressed, it follows that the judgment of the court awarding appellees Gallup and the East Texas Oil Company the two tracts of land of 1,731 and 350 acres, respectively, should be reformed and said appellees be adjudged the owners of an undivided 2031/2181 interest in each of the three tracts of land described in their petition, and, as so reformed, the judgment in favor of said appellees is affirmed; that the judgment that appellants Waterhouse take nothing by their suit should be reversed and judgment here rendered in their favor for 150/2181 of the two tracts of land described in their petition, and the judgment in favor of appellees Worden for the 100 acre tract should be reversed and judgment here rendered that they take nothing by their suit in intervention. It is ordered that the judgment of this court be entered as above indicated.

Reformed and affirmed in part; and re- ' versed and rendered in part.

On Motion for Rehearing.

Appellants have filed a motion for rehearing in which they very earnestly contend that we erred in our former opinion in holding that the probate proceeding through which appellees Gallup and the East Texas Oil Company claim title are not void for want of sufficient description of the land sold thereunder. It seems to be conceded in the motion that if the sale had been voluntary the description would be sufficient, but the contention is made that such description cannot be held sufficient in an involuntary sale. In our former opinion we held that the rule applicable to the description in question was that:

“When a deed conveys a certain number of acres, without describing the land conveyed, to be taken out of a larger tract described, the grantee becomes by his deed a tenant in common, having a fractional interest, represented by a fraction whose denominator is a number equal to the number of acres in the larger tract described, and whose numerator is a number equal to the number of acres conveyed. The grantee acquires such fractional interest in every acre of the larger tract.”

We agree with learned counsel for appellants that this rule cannot be applied to involuntary sales consistent with the decisions in a number of our earlier cases, but we understand it to be now settled law in this state that a description that would be sufficient in a voluntary conveyance is sufficient'in an administrator’s or sheriff’s deed. If the description contained in the written instrument, considered in the light of surrounding facts shown by extrinsic evidence, is sufficient to identify the property intended to be sold, the'conveyance" is sufficient, it matters not whether the sale be voluntary or involuntary.

In Hermann v. Likens it is expressly held (and this holding is not questioned by appellant’s counsel) that a description which would be sufficient in a voluntary conveyance to identify the property intended to be conveyed would necessarily be sufficient in a sheriff’s or administrator’s deed, and that there are intimations of a contrary doctrine in some of the former opinions of our Supreme Court. Norris v. Hunt, 51 Tex. 609; Brown v. Chambers, 63 Tex. 131. The point was probably not definitely decided in those cases. The court in the Hermann Case also quotes with approval the following paragraph from the opinion of the Supreme Court of the United States in the case of White v. Luning, 93 U. S. 514, 23 L. Ed. 938:

“In regard, however, to the description of the property conveyed, the rules are the same, whether the deed be made by a party in his own right or by an officer of the court. The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish.”

When we consider the description in the probate proceedings under which the land in controversy in this suit was sold in connection with the deed to the decedent, which was then on record, conveying to him three definitely described tracts of land in the Mudd survey, containing in the aggregate 2,181 acres, less an undefined 100 acres attempted to be reserved in said deed, and the evidence showing that this was all the land owned by the estate of the deceased on said survey, we think there can be no doubt as to the identity of the land intended to be sold.

The administrator applied for an order to sell 2,081 acres on the Mudd survey. The court directed him to sell 2,081 acres on the Mudd survey, and the administrator advertised that he would sell 2,081 acres on said survey. A deed to the deceased was on record in the county conveying to him 2,181 acres on said survey, less 100 acres, and this was all of the land owned by the estate on that survey. Gan there be any doubt upon these facts that the administrator and the court intended by the application, order of sale, and advertisement to sell 2,081 acres of the land described in the deed under which the-estate held, and is it not equally clear that all persons interested in the estate and all bidders at the sale must have known from the description the identical land that was intended to be sold? Why, then, should the description be held insufficient? The fact that the reservation of the 100 acres in the deed to the deceased was void for uncertainty, and the estate in fact owned all of the 2,181 acres, should not affect the question of the sufficiency of the description in the probate proceedings. It is manifest that the administrator thought the estate owned only 2,081 acres, and therefore only asked to sell that number of acres. If the application and order of sale liad in express words described the land as an undivided 2,081 acres of the 2,181 acres described in the deed to the deceased, we think it clear the description would have been sufficient, and we think the description given in the order of sale, considered in connection with the deed to deceased Waterhouse, shows that it was the intention to sell an undivided 2,081 acres of the 2,181 described in the deed.

In the case of Boyce v. Hornberger, 29 Tex. Civ. App. 337, 68 S. W. 701, cited by appellants, the land levied upon and sold was described as “all the right, title and interest of Robert P. Boyce in 2,300 acres of land, a part of the Benjamin, Page headright.” The evidence showed that, at the time this levy and sale were made, Boyce only owned an undivided one-half interest in an undivided 2,800 acres on the Page survey. Manifestly the description in the sheriff’s deed above set out could not be made to apply to any land owned by Boyce on the Page survey, and this court held the deed void because the description was insufficient. We think that case is easily distinguished from this one.

Appellees Gallup and the Texas Oil Company also present a motion for rehearing in which they contend that we erred in not holding that the administrator’s sale passed title to the 2,181 acres described in the deed to the deceased Waterhouse. This contention cannot be sustained. It is, we think, manifest that the administrator supposed that the estate only owned 2,081 acres of land and thought, when he sold the 2,081 acres, he was selling all the land on the Mudd survey owned by the estate, but his mistake in this regard could not have the effect of divesting the estate of the title to the 100 acres which was not included in the application or order of sale.

Appellees further contend that we erred in holding that, because the order of confirmation and the administrator’s deed described the land as 2,031 acres, title passed by said sale to only 2,031 acres. We think this contention should be sustained. The application and order of sale having described the land as 2,081 acres, we think the discrepancy in the acreage stated in the order of confirmation and the administrator’s deed should be regarded as a clerical error. The number of acres is stated in figures, and it is much more probable that in recording these orders and the deed the figures “81” should have been written “31,” than that the court and the administrator after having ordered and advertised the sale of 2,081 acres should have only sold 2,031 acres. McBee v. Johnson, 45 Tex. 641.

It follows from what has been said that the motion of appellants for rehearing should be overruled, and the motion of appellees granted to the extent of changing our judgment in their favor from 2031/2181 to 2081/2181 of the land in controversy; and it has been so ordered.
      <S=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STATE MUT. LIFE INS. CO. OF ROME, GA., v. LONG et al.
    (No. 1454.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 6, 1915.)
    1. Insttbance &wkey;>6G5 — Lies Insurance — Suicide — Sufficiency of Evidence.
    In an action on a life insurance policy with a suicide clause, evidence held sufficient to show that insured killed himself.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1555, 1797-1728; Dee. Dig. &wkey; 665.]
    2. Appeal and Error <&wkey;999 — Review-Finding — Testimony by Deposition.
    Where the testimony of a witness was by deposition, the finding of the jury on the issue, as to which his was the only evidence, was not entitled to the conclusive force it otherwise might have been, since the jury were not in a position to draw inferences as to the witness’ credibility from his demeanor.
    [Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. &wkey;>999.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Virginia F. Long and others against the State Mutual Life Insurance Company of Rome, Ga. Judgment for plaintiffs, and defendant brings error.
    Reversed, and cause remanded, with a suggestion.
    Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for plaintiff in error. Capps, Cantey, Hanger & Short, of Ft. Worth, for defendants in error.
   WILLSON, C. J.

Virginia F. Long, one of the defendants in error, wife of George Long, the other defendant in error, and mother of H. L.' Long, deceased, was the beneficiary named in a policy, dated September 9, 1908, for $3,000, issued by plaintiff in error on the life of said H. L. Long. Forming a part of the policy was said H. L. Long’s application therefor, containing a stipulation as follows:

“I agree on behalf of myself and of any person who shall have or claim any interest in any policy issued on this application as follows: That in case the insured commits suicide, while sane or insane, within one year from the date of the policy, the limit of the recovery thereunder shall be the amount of the premium paid.”

Said H. L. Long died within one year from the date of the policy, to wit, on January 17, 19(19. Plaintiff in error claimed that he committed suicide, and therefore that it was liable only for the amount of premium paid on the policy, to wit, the sum of $94.68. The suit was by Mrs. Long, joined by her husband, to recover of plaintiff in error said sum of $3,000, interest thereon, and damages and attorney’s fees provided for in article 4746, Vernon’s Statutes. The only question pro-pounded to the jury was one as follows: “Did Henry L. Long commit suicide?” The answer being in tbe negative, tbe court, on motion of defendants in error, rendered judgment in Mrs. Long’s favor for $4,527.60, being tbe aggregate of tbe sum mentioned in tbe policy and of sums representing interest tbereon and statutory damages and attorney’s fees.

Careful consideration of tbe testimony in tbe record bas convinced us that tbe contention made that tbe judgment is wrong, because “tbe undisputed evidence showed that I-I. L. Long committed suicide,” should be sustained.

At tbe date of bis death said H. L. Long was about 24 years of age. Between 8 and 9 o’clock of tbe evening of Sunday, January 17, 1909, tbe witnesses Fullingham and Woodey, then in tbe latter’s office in tbe town of Emma, beard tbe report of several pistol shots fired in W. F. Montgomery’s store, situated 75 feet west of said office. Said Fulling-ham and Woodey at once went to tbe porch of tbe office, and within three or four minutes after they beard tbe shots beard a sound as of glass breaking, and Woodey saw tbe witness Marvin C. Walls, a boy then about 19 years of age, come out of tbe Montgomery store through a window from which be bad broken tbe glass. Walls ran to where Full-ingham and Woodey were and told them “that Long bad shot Montgomery and then shot himself.]’ Fullingham and Woodey, Bay, tbe sheriff, who also beard tbe shots, and others who joined them, at once went into tbe Montgomery store through tbe broken window, where they found Brub Montgomery dead from tbe effect of a gunshot wound in •bis bead, and H. L. Long unconscious and dying from a gunshot wound in bis forehead. Said H. L. Long died within SO or 40 minutes after tbe parties mentioned found him wounded as stated. Marvin C. Walls and H. L. Long and Brub Montgomery were tbe only persons in tbe store at the time the shooting occurred. Walls’ account of tbe shooting and incidents accompanying and preceding same, testifying by deposition, was as follows:

“The facts surrounding the death of H. L. Long are as follows: About 15 minutes before tbe shooting which caused the death of Long, I was looking for Lewis Chance, and had occasion to pass Montgomery’s store where the shooting took place, and I was— as I was passing Montgomery’s store I beard Mr. Long talking to some one over tbe telephone. I recognized Mr. Long’s voice, and requested him to open the door, which he did. When I went into the store I found H. L. Long and Mr. Brub Montgomery inside. As soon as I went in Mr. Long locked the door. Brub Montgomery was lying down on one of the counters near the door, about 15 or 18 feet from the front door. Mr. Long and I walked back to where Mr. Montgomery was lying on the counter. Mr. Long and I remained standing near the counter. We had been in the store then something about 10 minutes, when Mr. Long said to Mr. Montgomery, ‘Brub, ain’t you tired of living?’ and Mr. Montgomery replied that he was tired of living and to blow his lights out. Long then moved his revolver out of his pocket and asked me if I was tired of living, and pointed tbe revolver right into my face. When he did this, I took hold of the revolver with my left hand and his arm with my right hand and held them. I asked Long to let down the hammer of his gun and put it up, and he laughed some and put down the hammer and put the revolver back in his pocket. There was some further conversation, but I do not remember just what was said, for about five minutes, when Long again asked Montgomery if he was tired of living, and Montgomery said, ‘Yes, blow my lights out.’ Long said, ‘Out they go,’ and suddenly pulled his revolver out of his pocket and cocked it. I jumped and grabbed at the revolver, which was pointed directly at Montgomery. As I grabbed at the revolver, Long suddenly jerked it aside, and I missed it. Before I could get bold of it he threw the revolver across my arm, or right over my arm, and fired at Montgomery. Montgomery was lying on his back on the counter, and there was a light burning near his head. When the revolver was discharged at Montgomery, the light went out. After Long fired the shot at Montgomery, I heard him take a step or two forward and then a step or two backwards. I was close to him and to his body. He then fired another shot. Within a second or two he fired another shot, and immediately fell to the floor. He was standing in the store near the counter where Montgomery was lying, when I last saw him alive. There was no one present at the time Mr. Long shot himself and Mr. Montgomery, except Mr. Long, Mr. Montgomery, and I. Mr. Long fired the shot that killed him, and killed himself. * * * While I was waiting for Mr. Long to open the door before I went into the store, I heard him talking with some one over the phone. Mr. Long said:' ‘You can have all I own, every damn thing I have got.’ I have since heard that he was talking to Lewis Chance, but I do not know that of my own knowledge. * * * I did not see them drink any liquor while I was in the store, but Mr. Long remarked to me a short time after I went into the store that he had been drank all evening. * * * Neither of them had been drinking any liquor or whisky while I was in the store. Neither one acted like he was drunk. Long did not stagger. * * * I do not remember just* what was said while we were in the store, except what I have heretofore stated. We were talking and joking some, just like men will. * * * On the evening of the killing, Long seemed more excited because he feared the officers were going to arrest him. He said everybody in town could not take him alive. * * * 1 remember two or three weeks before he (Long) killed himself, one night, when Mr. Montgomery and I were in Chance’s barber shop. Mr. Montgomery was seated in a barber chair in the barber shop. Mr. Long pulled his revolver out of his pocket, and said, ‘Let’s kill that fellow.’ I, of course, caught hold of Long and persuaded him not to shoot.”

Unless tbe jury bad a right to ignore tbe testimony of Walls set out above, their finding that H. L. Long did not commit suicide is, of course manifestly wrong. Tbe contention of defendants in error is that tbe jury bad that right, and, as supporting their contention, they insist:

(1) That there was testimony showing said H. L. Long to have been of a cheerful disposition. Whatever probative force tbe testimony referred to ordinarily would be entitled to we think was destroyed by other testimony showing that, at tbe time the shooting occurred, said H. L. Long was under tbe influence of liquor, and testimony showing that, when in that condition, “be was,” as tbe witness Woodey said, “a different person,” and “did unreasonable tilings.”

(2)That there was no testimony showing a reason why said H. L. Long should commit suicide. Certainly there was no testimony showing a valid reason for the act. But if he “did unreasonable things while drinking,” as the witness Woodey said he did, and as many men do when in a like condition, the absence of a reason of any kind for the act, we think, would not tend to discredit the witness Walls. However, a reason which may have then appeared to-the unfortunate young man to be sufficient, is disclosed by the testimony of the witness Fullingham, as follows :

“I was in. the store of W. E. Montgomery, where E. J. (Brub) Montgomery worked about one hour prior to the time I heard the gunshots and found the dead body of E. J. Montgomery and H. L. Long dying. * * * Saw-Long and Montgomery take a drink. * * * I entered the store at the * * * at the extreme back door of the building, which is the door of an addition to the main store building, and just as H. L. Long opened the door, or at practically the same time, I hoard a pistol shot up toward the front of the store, and Long and I went into the main store building. E. J. Montgomery was standing at a side door with a pistol in his hand and he stated that he had accidentally discharged the pistol. I took the pistol and laid it on a dry goods shelf near the side door. * * * Montgomery explained to us that he discharged the pistol accidentally, and X told him that he should be more careful; that people were going to church and some one might be hurt. * * * Montgomery did not ■want to give me the pistol at first, and I argued and joked with him, and finally wrenched the pistol out of his hand and put it up. * * * After the shot, and while X was still in the store, C. E. Ray, sheriff of Crosby county, knocked on the door, advising who it was, and all parties in the store remained quiet until after he departed.”

The testimony of the witness Ray, then sheriff, as follows:

“On the night of the death of H. L. Long, A. D. Meyer, the hotel man in Emma, phoned me to come up to his hotel. I went, and he told that he had seen a jug of whisky unloaded at the rear of Montgomery’s store, and that he thought he would put me on to it. * * * About one hour prior to the time I first saw him (H. L. 'Long) after he -was shot, I was at the rear of Montgomery’s store and looking through a window I saw E. J. (Brub) Montgomery holding a lamp in his hands and H. L. Long had a jug up to his mouth.”

And the testimony of the witness Chance as follows:

“I was in the phone office in the Meyer Hotel. I had a conversation with H. L. Long over the telephone a short time before he met his death on January 17, 1909. I called H. L. Long to the telephone and told him that a carriage was waiting on the outside to arrest him and Brub Montgomery, and when they came outside they had better leave their pistols in the store, if they had any, and they would not have to pay fines for carrying pistols. About 10 minutes after that H. L. Long called me up over the telephone and asked me to come down and knock on the door three times when the sheriff left; that he wanted to go home; and he would know by the knocks on the door that the sheriff had gone. I told him I would be down in about 15 minutes. I had a talk with H. -L. Long over the telephone about 10 minutes before he killed himself. He did not say anything about taking his life.”

(3) That there was testimony showing there were no powder burns on the face of the deceased (Long), and testimony of experts showing that it would not have been possible for him to have shot himself, as Walls said he did, without being burned by powder. The testimony referred to, considered alone, was entitled to little, if any, weight as discrediting Wails, and particularly so in view of the testimony of Dr. Crow, which accords, with common knowledge, that:

“There are unusual things that happen in gunshot wounds. If the pistol was pressed close to the body at the forehead, the powder marks would probably follow through the hole the bullet made.”

(4) There was testimony showing that said H. L. Long had a bruise about two inches long and a half inch wide on the back of his head, about two inches above and hack of his right ear. After the shooting Long was found lying on his back on the floor of the store. That the bruise referred to was due to anything else than his fall to the floor was not even remotely suggested by any of the testimony heard.

(5) That in his testimony Walls made contradictory statements, and was shown to have made statements to the witness Campbell inconsistent with statements he made as a witness. Fairly construed, it is doubtful, we think, if any of the statements made by Walls as a witness, or to Campbell when not a witness, contradicted each other, hut, if they did, they were about immaterial matters and fell short of discrediting him.

As we view it, the testimony of Walls was not only not impeached by any other testimony, bnt, on the contrary, it was consistent with and corroborated by practically all the other testimony given at the trial. Shortly after the killing, Walls secured a horse and went after the justice of the peace and acting county attorney, who at once, it seems, when they arrived at the scene of the killing, held an inquest to determine the cause of the death of the two men. Walls was one of a number of witnesses who testified at the inquest. The finding was that H. L. Long “came to his death by a gunshot wound which was self-inflicted while he was temporarily insane.” Walls continued to reside in the town of Emma, where Long and Montgomery died, until October, 1909. So far as the record shows to the contrary, he was never either suspected or in any way accused of having himself killed Long and Montgomery. The witness Bonine testified as follows:

“Within three months prior to the time of his death, I had a conversation with H. L. Long in which he made a statement with reference to the taking of his own life. I thought he was joking, as he was laughing at the time that he said it. I was sitting at the desk working on the books, when H. L. Long said to me, ‘ICid are you about ready to pass in your checks?’ And I said to him: ‘No, let’s wait a while.’ At the time H. L. Long had a pistol and was whirling it on his finger. When I told him to wait a while, H. L. Long put his pistol on the desk, and I picked the pistol up and put it in my pocket. I think I-I. L. I/png was under the influence of liquor at that time. H. L. Long asked me if I was ready to pass in my checks, and said, ‘X am if you are.’ He had a pistol. I think it was a 38 caliber on a 45 frame. I think he had borrowed the pistol from Brub Montgomery. H. L. Long whirled the pistol on his finger. We were laughing and talking, and 1 do not remember all that we said. This conversation occurred in the First National Bank at Emma, Tex., about 8 or 10 days before he killed himself, about 12 o’clock at night. The statement X have testified about was made at the time in a jocular manner. H. L. Long and myself worked together in the bank. H. L. Long only drank once in a while, and I do not suppose that any one knew he drank. I could hardly tell it on him myself, and I was with him constantly. With regard to the occurrence in the bank, I do not know of any pistol behind the grate. In fact, there was no grate in the bank, H. L. Long was whirling a pistol on his finger. He got the pistol out of a drawer in the desk. And, when he asked me if I was ready to pass in my checks, he said it in a joking way, and I didn’t want him to think that he meant it. I told him not to shoot up the bank and to be careful with that pistol. He said, ‘All right;’ and also said that I could have it. At the same time threw the pistol at me on the desk.”

The testimony of the witness Walls having been given by deposition, the jury were not in a position to draw inferences as to his credibility from his demeanor as a witness, and their finding, therefore, is not entitled to the conclusive force it otherwise might be. Thorn’s Heirs v. Frazer’s Heirs, 60 Tex. 263; King v. Worthem (Civ. App.) 37 S. W. 1133.

The judgment will be reversed, and the cause will be remanded for a new trial, with the suggestion to the court below that, if the testimony on another trial is the same as it was on the last, the jury should be instructed to find in favor of plaintiff in error.
      (g^Kor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MEADS v. MEADS.
    (No. 792.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 15, 1915.
    Rehearing Denied June 19, 1915.)
    1. Trial &wkey;>365 — Verdict as Finding.
    In an action for breach of contract, where there was a general verdict for the plaintiff, the defendant could not defeat recovery on the ground of plaintiff’s admitted nonperformance, since the general verdict was tantamount to a finding that the defendant himself had prevented entire performance of the contract.
    [Ed. Note. — For other cases, see Trial, Cent.Dig. §§ S71-874; Dec. Dig. &wkey;365.]
    2. Crops &wkey;>3 — Contract to Share — Material Breach — Sharing Crops.
    In an action by defendant’s son for breach of defendant’s contract to give him one-fourth of the crops raised on defendant’s farms, where it was never Urged by defendant as a reason for repudiating the contract until after plaintiff had been denied a settlement and had left the farm, that plaintiff was obligated by his contract to act as foreman and manager of the crop, it being admitted by defendant that plaintiff was a good worker and faithful in the performance of his duties up to the time of the breach between the parties, and it not being shown that any damage resulted from plaintiff’s failure to act as foreman, such failure did not preclude the son’s recovery under the contract; it being clear that the term of the contract in question was considered by the parties as immaterial, and was such in fact.
    [Ed. Note. — For other cases, see Crops, Dec. Dig. &wkey;j3.]
    3.Damages &wkey;?62 — Breach of Contract— Mitigation.
    Where a son, who had a contract with his father, whereby, in consideration of his services, the latter agreed to give him one-fourth of the crops raised on his two farms, continued work thereunder until after the crops were fully matured, and until his father refused to perform the contract, thereupon quitting and suing for .the value of his share, his recovery could not be reduced by what he might have earned in other employment, since the rule requiring plaintiff, in a suit for breach of contract of hire, to show that he has not been able to obtain other employment, has no application to'an action under a sharing contract for conversion of matured crops.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. &wkey;62J
    Appeal from District Court, Wheeler County; F. P. Greever, Judge.
    Action by J. M. Meads, Jr., against J. M. Meads, Sr. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. D. Russell, of Plainview, for appellant. J. B. Reynolds, of Wheeler, for appellee.
   HALL, J.

Appellee sued for one-fourth, the value of the crops grown on two certain farms belonging to appellant in 1912. At the October term, 1914, of the district court of Wheeler county, there "was a verdict in favor of appellee for $000. Appellee alleged that, at the beginning of the year 1912, he entered into a contract with his father to assist him in the cultivation and harvesting of the crops to be grown on both of said places during that season; that plaintiff was to furnish for use a certain team of mules owned by him >and was to act as foreman or manager in the work; that the defendant, on his part, was to board plaintiff and furnish, without cost, feed for plaintiff’s team; that as compensation for his services, and for the use of his time, plaintiff should receive one-fourth of all the crops that might he harvested from both places, all additional expenses, if any, for work in making and gathering the crops to be paid by defendant; that plaintiff faithfully performed and fulfilled his part of said contract, and as a result thereof crops were gathered on both places of the reasonable value of $3,545. Plaintiff further alleged that he assisted in gathering nearly all of said crops, but that during the gathering season defendant refused to permit plaintiff to assist further, and, although he was at all times ready and willing to do so, he was not permitted by defendant to work until the end of the harvest; that defendant took charge of all crops and sold the same and converted the proceeds to his use.

1The substance of defendant’s'answer is, in addition to general and special denials, an allegation to the effect that plaintiff breached the contract and, upon the day he reached his majority, left the defendant’s place, notwithstanding defendant earnestly solicited plaintiff to remain and offered to pay him for his services in the future.

Appellant insists that the court erred in not directing a verdict in his favor:

First, because plaintiff failed to show performance upon his part of the obligations resting upon him under the contract, in that he did not remain until the end of the harvest and assist in gathering the crops which had been raised. The general verdict in plaintiff’s favor being tantamount to a finding by the jury that Meads, Sr., had prevented entire performance of the contract by his son, he, of course, cannot defeat the son’s recovery upon the ground of nonperformance. Hearne v. Garrett, 49 Tex. 619; Bost v. McCrea, 172 S. W. 561.

Second, because it was not shown that plaintiff acted as foreman and manager of the crop during the year 1912. This matter was never at any time urged by appellant as a reason’for repudiating the contract until after plaintiff had been denied a settlement and had left the farm. The-evidence shows that appellant was the eldest of several children on the place, and it is admitted by both appellant and a younger son, who testified for him, that plaintiff was a good worker and was faithful in the performance of his duties up to the time of the breach between the parties. It is not shown that any damage resulted because appellee failed to act as foreman during the year. It is clear from the record that the parties did not consider this a material term of the contract, and such is our construction of it.

Appellant insists that an incorrect measure of damages has been applied by the court. The uncontroverted facts are that appellee did not quit work and leave the farm until about the 3d of December. The crops had at that time fully matured, and about 22 bales of cotton had been picked and sold. The rule applied by this court in Bost v. McCrea, supra, following Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753, and Crews v. Cortez, 102 Tex. 111, 113 S. W. 523, 38 L. R. A. (N. S.) 713, is not applicable to such a state of facts. As said by the Supreme Court in the last-mentioned ease, the measure of damages adopted in Fagan v. Voght, 35 Tex. Civ. App. 528, 80 S. W. 664, and in Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881, applies, where it is shown that the crops have matured and the tenant is evicted by the landlord who converts them to his own use. The- rule which requires the plaintiff, in a suit for the breach of a contract of hire, to endeavor to obtain other employment, and to allow as an offset against his claim such sums as he has been able to earn or might, by the use of reasonable diligence, have earned, during the remainder of the period of employment under his contract, has no application to this character of suit. We think, under the facts of this case, the son was entitled to recover one-fourth of the value of all the crops raised upon the two farms during 1912. Believing that a proper judgment has been rendered, and finding, no reversible error, the judgment is affirmed.
      <g=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes