author: DAVIDSON, J,

text:
    STINSON v. STATE.
    (No. 3407.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    1. Indictment and Information <&wkey;-159 — Amendments-Power to Authorize Amendment.
    Where a word in an indictment was misspelled, the district judge had no power to authorize the district attorney to 'add the omitted letter; and, if the omission invalidated the indictment, the addition did not cure the defect.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. &wkey;>159.]
    2. Indictment and Information &wkey;>79 — Requisites and Sufficiency — Mistakes in Spelling.
    An indictment charging that accused assaulted S. with “inten” to murder her sufficiently charged an assault with intent to murder, notwithstanding the omission of the “t” from the word “intent.”
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. &wkey;>79.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Uriah Stinson was convicted of assault to murder, and he appeals.
    Affirmed.
    F. B. Martin, of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J,

Appellant was convicted of assault to murder; his punishment being assessed at ten years’ confinement in the penitentiary.

There was a motion made to quash the indictment on the ground that it did not charge “intent” to murder. In this respect the indictment copied in the record reads as follows:

“Did then and there unlawfully with malice aforethought make an assault in and upon Lela Stinson with the intent then and there to murder the said Lela Stinson against the peace and dignity of the State.”

The motion to quash is based upon the-statement in the motion ihat the word “intent,” as copied in the transcript, was writ-teh as follows, “inten,” omitting the “t” from the end of the word. There is a. bill of exceptions which recites that the' word “intent” was written as claimed by appellant in the motion to quash. It is further recited that the court permitted the district attorney to add the letter “t” to the word in the indictment. Of course, the district judge was not authorized to do this, and, if the matter was fatal to the indictment, the mere fact that the court permitted the district attorney to place the letter “t” at the end of the word “intent” would not be cured by such addition. The writer, however, does not believe that the mere fact that the letter “t” was added by authority of the district judge invalidates the indictment or makes it any stronger or better than if such action had not been taken. The indictment will be treated as if the unauthorized letter “t” had not been added to the word “intent.” We are of opinion, however, from this standpoint, that under our authorities this ought not to require a reversal of the judgment. We think this indictment is,sufficient, and sufficiently charges assault with intent to murder, whether the “t” was added or left out. So believing, we believe there is no merit in the contention. A statement of facts does not accompany the record.

In the condition it is presented to us we are of the opinion there is no reversible error ; therefore the judgment is affirmed.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    YOUNGER v. STATE.
    (No. 3460.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    1. Weapons &wkey;>17 — Unlawful Carrying— Instructions.
    In a prosecution for unlawfully carrying a pistol, an instruction that if the jury believed from the testimony that the defendant was, at the time he was arrested, a traveler, “you will acquit him,” sufficiently submitted the issue of his being a traveler.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;>17.]
    2. Weapons <&wkey;ll — Unlawful Carrying— “Traveler.”
    Defendant riding about a neighborhood, working at various places, or riding in search of work, intending, if he found none, to proceed to another county, was not within the definition of “traveler,” as fixed by the statute relating to the unlawful carrying of weapons.
    [Ed. Note. — For other cases; see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. <5&wkey;ll'.
    For other definitions, see Words and Phrases, First and Second Series, Travel.]
    3. Criminal Law <&wkey;639 — Triai^Counsel for Prosecution — Appointment.
    Where all the papers in a prosecution had been filed by -the county attorney, but when the case was called he was absent, it was not error for the court to appoint an attorney to prosecute.
    [Ed. Note! — For other cases, see Criminal Law, Cent. Dig. §§ 1485-1495; Dec. Dig. ‘<&wkey;> 639.]

      Appeal from Henderson County Court; C. D. Owen, Judge.
    C. C. Younger was convicted of carrying a pistol, and appeals.
    Affirmed.
    Ernest A. Landman, of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of unlawfully carrying a pistol. He was a young man, and had been in Henderson county a few months. He had worked for several parties; one of them for about four months, and the others only a short time. He was working wherever he could find something to do, and when he would get out of work at one place he would hunt work at other places. It seems he had nothing except what he wore, and a six-shooter, found upon his person. He testified he had no other goods, not even a trunk or hand grip. It is further in evidence that he was seeking work in I-Ienderson county, not far from the dividing line between that and Navarro county, when he had determined, if he failed to get work that day in Plenderson county, he would cross the river into the other county and seek employment. The testimony indicates that he had been in what he calls the “bottom” to assist some woman whose wagon had been “bogged.” Upon leaving that place seeking work, he passed a house where parties were trying to rope a yearling in a lot. 1-Ie suggested that he could rope the yearling for them like they roped them in West Texas. 1-Ie. secured a rope and made a failure on the first throw at the animal. Upon stooping down to pick up the rope, the constable, whom appellant was assisting in trying to rope the yearling, discovered what he said was the print or impress of a pistol. When appellant threw the second time he succeeded in putting the rope on the yearling, which jerked him around, and the constable then discovered the fact what he had seen as the impress of a pistol was in fact a pistol. He arreáted him and took the weapon from him. So there is no question of the fact that defendant had the pistol. There seems to be no question of the fact that he was seeking work with a view, if he failed that day in Henderson county, that he would cross the river into another county for- that purpose.

1-Iis contention is that he was a traveler. If he was, he ought not to have been convicted; if he was not, the conviction was right.

Charges were requested by appellant submitting this issue to the jury, which were refused by the court. The court, however, in the main charge, thus instructed the jury:

“You are further instructed that if you believe from the testimony that defendant was, at the time he was arrested, a traveler, you will acquit the defendant and say by your verdict not guilty.”

This submitted the issue. The transcript fails to show that appellant excepted to the court’s charge before being read to the jury and a request at that time for the submission of his special charges. His bill of exceptions states that he excepted to the main charge of the court, but does not say at what time he did so. The theory of the defendant was that he was without a home, and was searching for employment, and thereby became a traveler. The evidence shows he had no home, and was just wandering around in the neighborhood seeking work. If appellant had found a place to work, or had obtained employment, then he might carry his pistol to that place of employment, but we are of opinion that he would hardly come within the definition of traveler, as fixed by the statute, under a state of case where he was riding around through the neighborhood and over the country, as shown by this record. The charge given was really favorable to appellant.

Another question is raised by appellant, to wit, that he was prosecuted by an attorney appointed by the court and not by the county attorney. The facts, as set out in his bill, show that appellant was arrested on the 14th day of January, placed in jail, and the case set down for trial on January 30th, and the witnesses were subpcenaed to appear on that date. When the case was called for trial, the county attorney was .absent, in the town of Malakoff, attending justice court. The court appointed Dickerson, an attorney of Athens, to prosecute. Appellant excepted to the appointment of Mr. Dickerson on the ground that he was not assistant county attorney, and neither the county attorney nor any assistant county attorney was present at the trial of the case. In support of this proposition he cites Moore v. State, 56 Tex. Cr. R. 300, 119 S. W. 858, an opinion written by Judge Ramsey. The case is not similar; the questions are widely variant. In the Moore Case the opinion shows that there was no county attorney in Aransas county, and the county judge appointed the attorney in that case to file all the papers, make complaint, and file information. It was held this was without authority; that the judge was not authorized to appoint a county attorney in the manner in which it was done in that case in vacation. The Constitution requires that the county attorney must be elected by the people. In case of a vacancy, the place may be filled by the commissioners’ court, none of which had been done in the Moore Case. The question here is simply in the absence of the state’s counsel the court appointed an attorney to prosecute the case. All the papers had been filed by the county attorney. We are of the opinion there was no error in this.

The judgment is therefore affirmed.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    WICKIZER v. WILLIAMS.
    (No. 5376.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 25, 1915.)
    1. Adverse Possession @=25 — Elements— Possession by Tenant.
    Tlie possession by a tenant is sufficient to support a claim of adverse possession under the 10-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 116-120; Dec. Dig. @=
    2. Adverse Possession @=46 — Elements— Continuous Possession — Interruption-Intent.
    Temporary vacancy of the promises, when there was no intent to abandon them, will not prevent the running of the 10-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. @= 46.]
    3. Trespass to Try Title @=47 — Reliee— Apportionment oe Tract Claimed.
    Where a petition in trespass to try title claimed title by adverse possession to a specific 160 acres, including the plaintiff’s improvements, and asked recovery of that tract, but also asked, if plaintiff be hold not entitled to the particular tract, that , commissioners be appointed to apportion 100 acres to him, including his improvements, out of the survey, and the evidence showed possession and improvements with a claim to 160 acres, but did not show the boundaries of the particular tract, nor that to give to plaintiff the tract claimed in the petition would be a fair apportionment between him and the owner of the balance of the tract, it was proper for the court to appoint commissioners to make the apportionment.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. @=47.]
    4. Trespass to Try Title @=27 — Parties— Interest.
    Where part of the land claimed by plaintiff by adverse possession had been conveyed to his attorneys, those attorneys were not interested adversely to defendant, in trespass to try title, to segregate the particular tract claimed by the plaintiff from the entire tract, and wore not necessary parties to that action.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 33; Dec. Dig. @=27.]
    On motion for rehearing.
    Motion overruled.
    For original opinion, see 173 S. W. 288.
   RICE, J.

Appellant has filed a motion for rehearing, assailing the judgment heretofore rendered by this court herein for many reasons, but chiefly on the following alleged grounds: (1) That appellee’s possession was not continuous for a period of 10 years prior to the institution of this suit; (2) that, ap-pellee having made an acknowledgment of tenancy prior to the running of the statute, he was thereby prevented from setting up title by limitation; (3) that there was a disclaimer on the part of appellee, for which reason he was estopped from setting up such title; (4) that the affidavit and acknowledgment of tenancy made by appellee, Williams, operated as a release and relinquishment of his claim to the land; (5) that the pleadings and evidence did not authorize the verdict and judgment rendered; and (6) that the court erred in holding that Lewellyn and Foster were not necessary parties to the suit.

We have carefully reviewed the entire record, together with the authorities cited by appellant, and have reached the conclusion that the motion for rehearing is not well taken. Without undertaking to detail the evidence as to the continuity of appellee’s possession, we think the testimony shows that he and his wife went into possession in 1896 or 1897 of the part of the survey sued for, erecting a house and clearing a part of the land, which they inelosed and put in cultivation; that they raised crops upon the premises during each year from that time until this suit was filed, which was in December, 1912; that while they were absent from the place during parts of the years 1898 and 1899, yet they had tenants upon it during said period, who cultivated and made crops thereon; that after 1899 the evidence on tlie part of appellee shows that he and his wife were continuously in possession from that time until this suit was filed, adversely claiming 160 acres thereof, including the improvements. It is true that in 1904 the premises were occupied about two months by some tie cutters with his consent; but, within two weeks after they abandoned possession, he, together with his wife, returned to his home, where he continued to live, as above stated. This evidence of himself and wife is corroborated by other testimony; and, while there is a conflict in the evidence with reference to these matters, still the jury have seen fit to return a verdict in favor of ap-pellee, and the trial court has declined to disturb it.

The evidence, if credible, is sufficient upon which to predicate a verdict in their behalf under their plea of 10-year limitation. The possession by a tenant is sufficient to support the plea of limitation under the 10-year statute. See Carlo0ck v. Williard, 149 S. W. 363. And peaceable and adverse possession of only a portion thereof, with claim to 160 acres, gives title by limitation. See Fischer v. Giddings, 74 S. W. 86. The acts constituting adverse possession are not always susceptible of definition; each case must depend upon its own facts. See Dunn v. Taylor, 107 S. W. 952. Temporary vacancy, when it is evident that there was no intent to abandon the premises, will not prevent the running of the statute; and the proof in this case showed that there was no such intention, the parties always claiming it as their home. See Collier v. Couts, 45 S. W. 485.

The issue as to whether or no appellee had made an acknowledgment of tenancy prior to the expiration of the 10-year period of limitation was clearly and distinctly submitted to the jury for their consideration, and their verdict determined that question adversely to appellant; and, there being ample evidence to support their conclusion in this respect, appellant has no just ground of complaint on this score.

It is not asserted that appellee had filed any disclaimer, but it is contended that his written acknowledgment of tenancy, made subsequent to the ripening of his title by limitation of 10 years, would have this effect. We think the authorities in this state amply support the conclusion of this court that a mere acknowledgment of tenancy after the title had ripened under the 10-year statute would not defeat appellee’s title to the land. A written acknowledgment of tenancy is of no greater dignity than a verbal statement to that effect. Such statement, whether written or verbal, may be used as evidence on the question as to whether appellee’s possession was adverse or not. See Barrett v. McKinney et al., 93 S. W. 240; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 511; Williams v. City of Galveston, 58 S. W. 552; Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Thayer v. Clark, 47 Tex. Civ. App. 61, 104 S. W. 196.

Nor does the affidavit in the present case, as contended by appellant, operate as a release to the land in question. It is a mere acknowledgment of tenancy, and the case of Davis v. Moye, 155 S. W. 962, does not support appellant’s contention in this respect, because in that case Moye had released and relinquished all claim to the land by the instrument in question for a valuable consideration, and that suit was brought by him against Mrs. Davis, the record owner of the land, for the purpose of setting aside this release on the ground of fraud, which plea the court held was not sustained by the proof.

It is true that in the amended petition, upon which appellee went to trial, he sought to recover a specific 160 acres described by metes and bounds, including his improvements; but it is also true that he prayed in the alternative that, should he be not entitled to recover and have awarded him said 160 -acres so described, then that he have and recover of the defendant title and possession to 160 acres out of the Hunter survey, to be so segregated as to include his improvements, and asking, in such event, for the appointment of commissioners to partition same in accordance with such decree, requiring said commissioners to report their action to the court, and such commissioners were appointed. The evidence showed that plaintiff’s improvements were situated on the northeastern part of the survey, but only showed that he claimed 160 acres of said land, including his improvements, without designating any specific portion. The verdict of the jury was:

“Wo, the jury, find in favor of plaintiff for the land in controversy upon his plea of limitation of ten years.”

Upon which judgment was rendered in his favor for 160 acres out of the Hunter 640-acre tract, to be so surveyed as to include his improvements, which improvements are located on the northeast portion of said tracts, describing the Hunter survey by metes and bounds, and appointing commissioners to so apportion the land and report their action to the court. This proceeding followed the holding of the Supreme Court in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, and other holdings of the Courts of Civil Appeals, made in accordance therewith. See Louisiana & Texas Lumber Co. v. Kennedy, 142 S. W. 990; Same v. Stewart, 130 S. W. 199; Ball v. Filba, 153 S. W. 685; Bering v. Ashley, 30 S. W. 838. In Louisiana & Texas Lumber Co. v. Stewart, supra, Mr. Justice Pleasants, in discussing the holding in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, says:

“We think this opinion settles the right of a claimant under the 10-year statute of limitation who has been in actual possession of a portion of a large tract of land claiming 160 acres thereof, without any deed or other muniment of title fixing the boundaries of his claim or without having such boundaries otherwise definitely fixed, to acquire title to an undivided 160 acres of such large tract including- his improvements, and have the same designated and set apart to him by the court. If such occupant claims a specific 160 acres, he must sufficiently describe same in his plea to identify it, and must prove his open and notorious adverse possession and claim for 10 years of the identical land so described, or must show by pleading and proof that the setting apart to him of such specific 160 acres will not be an inequitable partition of the large tract between himself and his co-owner. If such occupant fails to show that he has held adverse possession of the specific tract claimed by him for 10 years, and also fails to show that it would be fair and just to his co-owner to have the specific 160 acres claimed by him set apart to him by the court, he would nevertheless bo entitled, under proper pleading, to have the court designate and set apart to him such 160 acres as the equities and justice of the case require. If necessary, the court might appoint commissioners for this purpose, and if there was sufficient evidence to authorize it a judgment could be rendered by the court, without the aid of commissioners of partition, setting apart to the occupant such designated 160 acres as in the judgment of the court would be just and equitable.”

In the instant case, if the proof had designated what particular portion of the Hunter survey appellee claimed, including his im-pirovements, and there had been evidence showing that it would have been fair and equitable to him to set aside to him said portion, then, under the first count of the petition, in view of the authorities above referred to, the court could have awarded said tract to him. Such was not the case, however. The proof failing to show' that he had adverse possession of any specific portion of said tract, outside of his improvements, and also failing to show that to set aside any par-tieular portion thereof would be just and fair to him, it therefore became necessary, under the pleadings, evidence, and verdict, to appoint commissioners to set apart 160 acres of said land to him, as was in fact done. The other cases cited by appellant (except Titel v. Garland, 99 Tex. 201, 206, 87 S. W. 1152, and Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209) do not deny such right; but those two cases were not followed by Mr. Chief Justice Brown in his opinion in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, on this point; but the holding in Giddings v. Fischer was therein limited to the facts of that case, and Titel v. Garland was indirectly overruled thereby, thus following the rule formerly existing in this state prior to the decision in Giddings v. Fischer and Titel v. Garland, supra.

In addition to what was said in the original opinion with reference to the necessity of making Lewellyn and Foster parties, it may be added that this was not a suit to partition the 160-acre tract for which appellee brought suit, and in which Lewellyn and Foster had an interest, but was only -for the purpose of segregating said 160 acres from the 640-acre tract, no part of which appellee claimed, except said 160 acres; hence they were not adversely interested to appellant.

Believing that the motion for rehearing should be overruled, it is so ordered.
      <@zs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    WESTERN UNION TELEGRAPH CO. v. GOODWIN.
    (No. 8065.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Telegraphs and Telephones <&wkey;67 — Delay in Transmitting Message — Contemplated Damages.
    Where a person sending money by a telegram notified the telegraph company’s agent that his wife was dangerously ill and needed the money, and that it was being sent for her benefit, the increased physical and mental suffering occasioned to the wife by negligent delay in delivering the telegram were reasonably within the contemplation of the company as a result of such negligence.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. &wkey;67.]
    2. Telegraphs and Telephones <&wkey;73 — Delay in Transmitting Message — Action por Damages — Evidence—Peremptory Instruction.
    Where, in an action for damages from delay in delivering a telegram, plaintiff’s evidence, though contradicted, materially supported his allegations of damages, the court properly refused defendant’s request for a peremptory instruction.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dee. Dig. &wkey;»73.]
    3. New Trial <&wkey;76 — Excessive Recovery-Jurisdiction — Discretion.
    Where the trial court believed that the verdict in a damage case was excessive, he had jurisdiction to grant a new trial on account thereof.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. &wkey;76.]
    4.Telegraphs and Telephones &wkey;>71 — Delay in Delivering Telegram — Excessive Damages.
    A recovery of $1,250 for physical and mental suffering caused by a negligent delay of seven or eight days in delivering a telegram transmitting money, in consequence of which plaintiff’s wife, who was dangerously ill, suffered additional pain for want of proper medical attention and supplies, which she was unable to procure for want of money, and also suffered mental worry from failure to receive the money, was excessive above $500.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. <&wkey;> 71.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by G. H. Goodwin against the Western Union Telegraph. Company. From judgment for plaintiff, defendant appeals.
    Affirmed conditionally.
    J. M. Wagstaff, of Abilene, and N. L. Lind-sley, of Dallas, for appellant. Scarborough & Hickman, of Abilene, for appellee.
   DUNKLIN, J.

This is the second appeal of this case, the disposition of the former appeal being shown in 160 S. W. 107, and the following is copied from that opinion as a correct statement, tested by the record on this appeal:

“While G. H. Goodwin and wife were residing in Abilene, Tex., Mrs. Goodwin visited her mother, Mrs. M. E. Backus, whose home was in Meridian, Miss. During this visit Mrs. Goodwin became ill, and, being without money, had her mother to wire her husband that she was ill, and requesting; him to send her $25 by telegram at once. This message was received by the plaintiff on September 6, 1911. On September 7th the Farmers’ & Merchants’ National Bank at Abilene, at plaintiff’s instance, wired Mrs. M. E. Backus, as follows: ‘September 7, 1911. Mrs. M. E. Backus, Meridian, Miss.: Will pay your draft for thirty dollars.’ This message was, on the day of its date, delivered to the agent of the Western Union Telegraph Company at its office in Abilene for transmission, and at the same time plaintiff delivered it he told. the agent that his wife was dangerously ill in Meridian, and needed the money, and that the money was being sent to Mrs. M. E. Backus for her benefit, also informing the agent that Mrs. Backus was his wife’s mother. This message was not delivered to the addressee until September 14th or 15th; the delay being caused by the fact that by mistake the agent at Abilene filed it among papers pertaining, to business already disposed of, and on account of this mistake it was overlooked. Between the dates September 7th and 14th two other messages were sent to the plaintiff by his wife, inquiring why he had not sent her the money as requested. Upon receipt of both of these inquiries, plaintiff went to the telegraph office in Abilene, and was there told that the message had been sent. During the same period repeated inquiries were also made at the. telegraph office in Meridian; the response to which inquiries being that no such message had been received there. As soon as the message was received, the money was promptly collected upon a draft drawn by Mrs. Backus upon the sender, and the funds thus realized were turned over to Mrs. Goodwin.
“G. H. Goodwin instituted this suit against the telegraph company, alleging the foregoing facts in substance, basing thereon a charge of negligence on the part of the defendant in delaying the transmission and delivery of the message, and alleging, further, that for lack of funds his wife was deprived of proper medical attention and supplies, and suffered additional physical pain by reason thereof, and that she also suffered mental worry on account of her failure to receive the money, and that in her delicate condition her mental worry further accentuated her physical pain, for all of which suffering plaintiff claimed damages.”

The trial resulted in a judgment for the plaintiff in the sum of $1,250, and the defendant has appealed.

Appellant contends that all the damages claimed in the petition were too remote, and upon that contention predicates an assignment of error to the action of the court in overruling a general demurrer to the plaintiff’s petition, and another assignment that the court erred in refusing a peremptory instruction to the jury, reguested by the defendant, to return a verdict in favor of the defendant. Another contention presented is that damages claimed for the alleged mental suffering of Mrs. Goodwin were too remote and speculative, and that contention is made the predicate for an assignment to the action of the court in overruling a special exception to plaintiff’s petition, presenting it.

Dr. W. J. Anderson, who attended Mrs. Goodwin during her illness in Meridian, testified in part as follows, relative to the condition of his patient:

“Her condition was pretty serious, and I did not know just what her condition might terminate in. The illness of Mrs. Lucile Goodwin was of such a nature as to produce nervousness in a patient to a high degree, and any great mental strain or worry would tend to lessen her chances of recovery. Her condition would produce nervousness, as she was suffering a great deal of pain;' hence any mental strain would, of course, lessen her chances of recovery, or retard her recovery, in the condition she was in.”

Mrs. M. E. Backus, mother of Mrs. Goodwin, testified that her daughter became very sick upon the occasion in question and needed medical attention, and that on account of her own illness she, the mother, was unable to nurse and care for her. She further testified as follows:

“She did not have sufficient funds to secure the proper medical attention in her condition. She certainly worried a whole lot on account of the failure to receive the money. Bly daughter, Mrs. G. H. Goodwin, was quite sick about the 5th of September (the date plaintiff’s wife sent the message requesting him to send her the money) and needed money, so she could go to a sanitarium and have a trained nurse to wait on her, as I not really able to do my household duties and wait on her, too.”

W. G. Backus, father of Mrs. Goodwin, after testifying that his daughter was seriously ill and confined to her bed, said:

“I was not financially able to bear the expenses of physician’s or surgeon’s fees on account of illness in the family of any kind.”

Mrs. Goodwin testified in part as follows:

“I did not have any money at all during the 10 days I was in bed. I needed something during my illness in the way of medical treatment I was not able to secure without means. Dr. Anderson gave me two prescriptions to have filled, and on account of not having the money I didn’t get it. I also needed some one to look after myself and baby, as she was taken sick when I was. The whole time I was sick 1 worried so from not hearing from my husband at such a time that my fever rose several evenings from worry. Dr. Anderson remarked one evening that I would have to stop worrying over anything if I pulled through at all. I had my sister go to the Western Union every day, and they would always remark: ‘If her husband had wired your sister any money, she would have gotten it.’ And therefore I was at a loss to know what to do or think. At the time I received the money I was still sick. I needed the money for different things. I also needed medicine 1 didn’t get the whole time I was sick until I received the money. I was at the house of my mother, but she was not able physically or financially to give me the right attention she could have given me if she had the money.”

In view of the information given to defendant’s agent at Abilene by the plaintiff at the time the message was deposited in that office for transmission relative to the condition of his wife’s health and her necessities, we are of the opinion that the physical and mental suffering indicated by the testimony noted' above were reasonably within the contemplation of the defendant as a result of a negligent failure on its part to transmit the message with reasonable dispatch, and that the trial court did not err in overruling defendant’s general demurrer and special exception. We so ruled on the former appeal, and are convinced that there was no error in that ruling. W. U. Telegraph Co. v. Simpson, 73 Tex. 426, 11 S. W. 385; W. U. Telegraph Co. v. Cooper, 71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Womack v. W. U. Telegraph Co., 22 S. W. 417; W. U. Telegraph Co. v. Odom, 21 Tex. Civ. App. 537, 52 S. W. 632; W. U. Telegraph Co. v. Burgess, 56 S. W. 237; W. U. Telegraph Co. v. Richards, 158 S. W. 1187; W. U. Telegraph Co. v. Mooney, 160 S. W. 318; W. U. Telegraph Co. v. Chilson, 168 S. W. 878.

The testimony quoted above tended in a material respect to support plaintiff’s allegations of damages, and, although it was strongly controverted by evidence offered by the defendant, the trial court did not err in refusing defendant’s request for a peremptory instruction in its favor. And in view of the same testimony there is no merit in the contention presented by another assignment of error that:

“The undisputed evidence shows that plaintiff’s wife was not deprived of any needed medical attention by reason of not receiving' the $3Q wired the plaintiff’s wife’s mother by the Farmers’ & Merchants’ National Bank.”

By another assignment defendant insists that the verdict of the jury was excessive. The order of the trial court overruling defendant’s motion for a new trial reads:

“Now at this time came on to be heard the defendant’s original motion for a new trial herein, and the court, having heard the same and the argument of counsel thereon, is of the opinion that he has no right to go behind the finding of the jury on the measure of damages, and for that reason will have to overrule said motion; but in this connection, if this court did have the right to go behind the verdict of the jury on the facts in this case and the measure of damages, this court would hold that said judgment is excessive over and above the amount of $500, and the court, being of the opinion that ho has no right to invade the province of the jury on the measure of damages in this case, does not require the plaintiff to file a remittitur, and it is therefore ordered that said motion be and the same is hereby in all things overruled.”

We interpret that order as a finding by the trial judge that the amount of the verdict over and above $500 was excessive, but that, as the jury were the exclusive judges of the weight of the evidence, he had no legal authority to set aside the judgment and grant a new trial on account of that excess. If such construction of the order is correct, then the trial court erred in refusing to grant a new trial, for clearly he had legal authority so to do under such circumstances. But if we have incorrectly construed the court’s order, we yet concur with the trial judge in his finding that the verdict was excessive in the amount stated.

Accordingly, we sustain appellant’s assignment of error addressed to the action of the trial court in overruling the motion for new trial, and reverse the judgment and remand the cause, unless appellee shall, within 10 days from the date of this decision, file a remittitur in the sum of $750; but, if such remittitur is filed, then the judgment will be reformed and affirmed for the principal sum of $500.
      jg^For other cases sec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HEIDEMANN et al. v. MARTINEZ et al.
    (No. 5417.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1915.)
    1. Courts «&wkey;12l — Jurisdiction — District Court — Amount in Controversy.
    A district court, acquiring jurisdiction of a garnishment suit, has jurisdiction over all matters connected with the subject-matter thereof, including cross-action below the jurisdictional amount.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 413-426, 428, 437, 450, 452, 458, 459, 466; Dec. Dig. &wkey;121.]
    2. Garnishment <&wkey;251 — Wrongfully Suing Out Garnishment — Damages.
    Attorney’s fees and expenses in attending court to procure relief against a garnishment wrongfully sued out are not recoverable as damages.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 471-475; Dec. Dig. &wkey;>251.]
    3. Garnishment <&wkey;251 — Wrongfully Su- ' ing Out Garnishment — Exemplary Damages.
    Exemplary damages are not recoverable for wrongfully suing out a garnishment, unless sued out without probable cause and maliciously.
    [Ed. Note — For other cases, see Garnishment, Cent. Dig. §§ 471-475; Dec. Dig. &wkey;251.]
    4. Garnishment <&wkey;251 — Wrongfully Suing Out Garnishment — Damages — Petition.
    Where the petition for damages for wrongful suing out of garnishment did not allege the nature of expenses incurred, nor allege any other damages recoverable, the petition did not support any judgment for damages, unless the allowance of interest would follow as a matter of law under the prayer for general relief, on the court finding that the suing out of the garnishment was wrongful.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 471-475; Dec. Dig. &wkey;251.]
    5. Appeal and Error <&wkey;705 — Review — Statement of Facts.
    Where the court heard evidence as to the reasonableness of compensation allowed in garnishment wrongfully sued out, the allowance will not be disturbed, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2943; Dec. Dig. &wkey;>705.].
    Error from District Court, Bexar County; W. F. Ezell, Judge.
    Action by H. Kanner against Santiago Martinez and another, with Solomon Dal-kowitz and another as garnishees, and action by the same plaintiff to restrain garnishees from paying out money, in which Santiago Martinez and another intervened. From a judgment for the garnishees, and for Santiago Martinez and another on their plea of intervention, against plaintiff and the sureties on his garnishment bond, plaintiff and sureties bring error.
    Affirmed in part, and reversed in part.
    Leonard Brown, of San Antonio, for plaintiffs in error. Dou A. Bliss, Dan Lewis, and W. S. Anthony, all of San Antonio, for defendants in error.
   MOURSUND, J.

Plaintiffs in error seek the revision of a judgment rendered in case No. 5545, filed in the district court of the Thirty-Seventh district and transferred to the Seventy-Third district. Said case was docketed upon the suing out of a writ of garnishment in case No. 5544, wherein H. Kan-ner, as plaintiff, sued Santiago Martinez and Anastacia Martinez for damages in the sum ■of $760. The garnishment proceeding was against Solomon Dalkowitz and Samuel Dalkowitz, who by their answer, filed on May 6, 1913, admitted the execution of a promissory note to Santiago Martinez and Anasta-cia Martinez for $600, dated January 20,1913, due March 4, 1913, bearing 8 per cent, interest, which note was given in part payment for a certain parcel of land which was the home of Martinez and wife, and so occupied and used by them, and was conveyed by them to garnishees. They alleged that they were entitled to a credit upon said note of $136.38 on account of state, county, and city taxes paid by them, and the cost of an abstract of title paid for by them; that, for the purpose of preventing garnishees from paying said note to Martinez, the plaintiff, Kanner, represented to garnishees that he had a valid claim against said land and against Martinez and wife, and urged garnishees not to pay said note, and threatened them with suit if they should do so, and finally presented to the judge of the Thirty-Seventh district court a petition for an injunction to restrain garnishees from paying such money, and thereby prevented them from paying the money when due; that thereupon Martinez sued garnishees on said note, and thereby caused attorney’s fees amounting to about $50 to accrue against garnishees, which Martinez is seeking to enforce against garnishees, as well as costs of suit; that the writ of garnishment was secured for the purpose of preventing garnishees from paying said note, and it did prevent them from doing so, which resulted in said suit being brought against garnishees by Martinez and the accrual of said attorney’s fees. Garnishees prayed that Martinez and wife be made parties, and that it be determined to whom the fund should be paid, and averred their readiness to pay it to whomsoever the court should adjudge it to belong; that they recover their costs and reasonable compensation for answering, which they alleged at $120 ; and also prayed for general relief.

On May 23, 1914, Martinez and wife filed a plea of intervention, alleging that the note was given them in part payment for a parcel of*land which was their home; that garnishees were ready, willing, and able to pay the note when due, but, for the purpose of preventing such payment, the plaintiff, Kan-ner, falsely represented to them that he had a valid and subsisting claim against the land and against interveners, and urged garnishees not to pay said note when due, threatening them with suit if they should do so, and finally presented a petition to the judge of the Thirty-Seventh district court for a writ of injunction to restrain them from paying such money, and thereby prevented garnishees from paying over such money when due; that on March 15, 1913, plaintiff, Kanner, sued interveners, alleging that they were indebted to him in the sum of $760 as unliquidated damages for the alleged violation of a certain contract whereby interven-ers had agreed to convey to him the land conveyed by interveners to garnishees; that said cause is still pending; that afterwards plaintiff brought this suit; that both suits were brought by Kanner for the sole purpose of hindering and delaying interveners in the collection of the money due them by the garnishees, and by his conduct he prevented garnishees from paying such note; that said suit against interveners for $760 damages was not and is not a just, valid, or legal claim against interveners, but was and is wholly fictitious, pretended, and colorable only, and on its face shows that garnishment cannot be based thereon; that by reason of the conduct of said Kanner in bringing the said fictitious suit, and preventing interven-ers from obtaining their just dues against garnishees, and compelling them to defend this garnishment suit by retaining attorneys and incurring other expenses, interveners have been damaged in the sum of $250. In-terveners prayed that their suit against garnishees and the suit by Kanner against intei*-veners for $760 damages be consolidated with this suit, that they have judgment against garnishees, that Kanner take nothing by his suit, and that they have judgment against Kanner for $250 for the damages occasioned by him as above set out.

The suits were not consolidated. On May 29, 1914, judgment was entered that Kanner take nothing; that garnishees recover of him all costs, including $100, which the court found from the evidence was a reasonable compensation for answering; that Martinez and wife recover of garnishees the fund sought to be subjected to garnishment, which then amounted to $184.30, having been reduced from $464 to said amount by payments made; that Martinez and wife recover of Kanner and the sureties on his garnishment bond, M. I-Ieidemann and Selig Deutscliman, the sum of $50, it appearing to the court that Martinez and wife sustained that amount of damages by reason of the wrongful suing out 'of the writ of garnishment. Kanner was not cited to answer the cross-action contained in the xilea of intervention, and the judgment recites that he failed to appear.

Our conclusions of law are as follows:

1. The district court had jurisdiction of the cross-action, although it was for 'only $250. The court having jurisdiction of the garnishment suit, such jurisdiction extended to all matters connected with the subject-matter thereof, and it is immaterial that the amount claimed in such cross-action was below the jurisdiction of the court. Sachs v. Goldberg, 159 S. W. 95; Smith v. Wilson, 18 Tex. Civ. App. 24, 44 S. W. 556; Stacy v. Campbell, 45 S. W. 759 ; Watkins v. Citizens’ National Bank of Rockwall, 53 Tex. Civ. App. 437, 115 S. W. 304.

2. The cross-action is for the lump sum of $250 for damages alleged to have been suffered on account of the bringing of the suit for $750 damages, and for wrongfully preventing interveners from obtaining their just dues from garnishees, and for compelling them to defend the garnishment suit by retaining attorneys and incurring other expenses. The trial court only permitted a recovery of $50 for wrongfully suing out the writ of garnishment, and it is only necessary to determine whether the pleadings support that judgment. It is impossible to tell what portion of the $250 was sought to be recovered as damages for wrongfully suing out the writ of garnishment, and the only damages alleged to have been suffered by reason of said act arose from the payment of attorney’s fees and other expenses. Attorney’s fees and expenses in attending court are not recoverable as actual damages. Heimsoth v. Le Suer, 26 S. W. 522. No allegations were made that the garnishment was sued out without probable cause and maliciously; hence no exemplary damages could be recovered. Pegues Mercantile Co. v. Brown, 145 S. W. 280. As the petition fails to allege the nature of the expenses incurred, so that it may be seen that they were recoverable, and fails to allege any other damages which are recoverable, the allegations must be held insufficient to support any judgment for damages, unless the allowance of interest would follow as a matter of law under the prayer for general relief; it being alleged and found by the court that the suing out of the writ of garnishment was wrongful. But if we concede that the court could have entered a judgment for damages measured by interest, then it is apparent that if he did so the judgment is excessive, because interest on the entire amount of $464 for the time intervening between the service of the writ and the date of the judgment would not amount to $50. Nor can the correct amount be determined because the judgment recites that the amount of $464 had been reduced by payments to $184.30, and no finding is made as to the time when such payments were made.

3. The court having heard evidence as to the reasonableness of the compensation allowed the garnishees, and there being no statement of facts, the amount allowed by him cannot be held to be excessive. Maury v. McDonald, 55 Tex. Civ. App. 50, 118 S. W. 812; Webb v. Texas Christian University, 48 Tex. Civ. App. 264, 107 S. W. 89.

4. We deem it unnecessary to decide whether Kanner and the sureties on his bond should have been cited to answer the plea of intervention. We find no case which decides the point; but it has been held that pleas in reconvention for damages for suing out an injunction or sequestration can be determined, and judgment rendered against the sureties on the bond, without citing them. Smith v. Wilson, 18 Tex. Civ. App. 24, 44 S. W. 556; Sharp v. Schmidt, 62 Tex. 264; Wilkinson v. Stanley, 43 S. W. 607. The principal on tlie bond could occupy no better position than the sureties. No good reason appears why the same rule should not be applied in garnishment cases, and as the garnishment proceeding is a mere incident to the original suit, it probably does not matter whether the plea in reconvention is filed in the original case or in the garnishment suit, provided the defendant is required by the garnishee to interplead in such suit. As a matter of course, such holding could only be applied by analogy to pleas in recónvention for damages covered by the provisions of the bond. The question raised regarding the necessity for service could only affect that part of the judgment awarding Martinez and wife a recovery of $50 against Kanner and Heide-mann, which is reversed, and such question will not arise upon another trial.

The judgment in favor of garnishees against Kanner for $100 is affirmed. The judgment in favor of Martinez and wife against Kanner and Heidemann for $50 is reversed, and the cause made by the plea of intervention reversed for another trial as against said parties. The judgment in favor of Martinez and wife against Selig Deutsch-man, the other surety upon the bond, not being appealed from, will be affirmed. The costs of the appeal will be taxed as follows: One-half against Kanner, and one-half against Santiago Martinez and Ánastacia Martinez.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEYX, J.

text:
    WADE v. COHEN.
    (No. 1400.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1915.)
    1. Contracts &wkey;>9 — Validity—Meeting of Minds.
    Where plaintiff proposed that defendant purchase a residence and sell it to him on installments, the contract was not consummated, where the parties had not agreed as to its terms, such as the payments, etc.; consequently defendant, having bought in the property for his own benefit, was not guilty of a breach of contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. <&wkey;9.]
    2. Frauds, Statute of <&wkey;74 — Agreements Relating to Land.
    An agreement to purchase realty, improve it, and thereafter sell it to another on installments, is within the statute of frauds, and cannot be enforced, unless reduced to writing.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 122-131; Dec. Dig. <&wkey;>74.]
    3. Trusts &wkey;>63% — Resulting T!rusts.
    Where plaintiff requested defendant to purchase a residence and sell it to him on installments, and defendant bought the property for himself, no resulting trust arose, as payments were to be made, if at all, by plaintiff, after title vested in defendant.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 91, 92, 98-100; Dec. Dig. &wkey;63%.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by Eppner Colien against M. C. Wade. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    V. H. Biddison and Mahaffey, Thomas & Hughes, all of Texarkana, for appellant. C. A. Wheeler and N. L. Dalby, both of Texar-kana, for appellee.
   LEYX, J.

The action is by appellee against appellant to recover the title to lot 12, block 101, in the city of Texarkana, or, in the alternative, for damages for the alleged breach of a contract respecting the purchase and sale of the lot. Appellant denied the allegations of the petition, pleaded in bar the statute of frauds, and set up valuable improvements in good faith since the purchase. The ease was tried to a jury on special issues, and, upon findings favorable to appellee, a judgment was entered against appellant for damages in the sum of $287.51. The appeal is by appellant. The assignments for error are predicated on the refusal of the court to peremptorily instruct the jury to return a verdict for appellant.

Appellee was desirous of purchasing the lot now in suit, upon which stood a dwelling, for his home; and the owner thereof had consented to sell it to him for $1,350. Ap-pellee was unable at the time to pay the purchase price, but desired to pay for it by means of monthly installments or on terms suitable to him. It was suggested to appel-lee that probably appellant, a real estate dealer, might assist him in carrying out his purpose and plans respecting the purchase and payment for the premises. Acting upon the suggestion, the appellee telephoned the appellant to come to see him at his place of work, and there he disclosed to appellant his intentions respecting the lot. Taking all the testimony as to what passed between the parties at this meeting in a way that would be most favorable to appellee, it would appear that appellee made the proposal to appellant that appellant furnish the money, buy the place from the owner, and make, at his own expense, such needed improvements on the place as might be decided on between the appellant and appellee, and then appellant to sell the property to appellee on terms of monthly payments as might be agreed upon thereafter. Appellant and appellee then briefly discussed, in a general way, the, amount desired to be spent for repairs, and concerning a plan to put the property in a building and loan association in order that appellee could have the benefit of flaying monthly installments. The nature or character of the improvements- desired by the ap-pellee was not disclosed or discussed at the time. Appellee was favorably inclined to the suggestion to enter the building and loan association. Appellant, it appears, then expressed to appellee his willingness to agree to do for appellee the things appellee desired him to do, but stated at the time that, as he was unacquainted with the premises and did not know the extent and cost of the improvements desired by appellee, it would first be necessary for him and appellee to go together to see the place and have some understanding as to the extent and cost of repairs to the house, and there to come to some final agreement. The next afternoon was set as the time to go to see the property and to see what was necessary to be done to the house and the costs of the repairs, and to come to an agreement. At the appointed time appellant and appellee and his wife went to the place, and they utterly failed to agree on the extent and cost of the improvements that appellee desired made on the house, and failed at that time, or at any subsequent time, to agree upon the price which appellant would ultimately charge for the property with the improvements added. Appellant, it appears, on the morning of the visit to the place, purchased the property from the owner, paying therefor .$1,250 cash, and taking the deed in his name, stating that he was buying it to let appellee have it. Appellee furnished no part of the purchase price. After the failure to agree as above stated, and after appellant had purchased the property, the appellee went to see the appellant in respect to purchasing the place, and offered him $1,350 in cash for the property, but appellant refused to take that sum, but offered to take $1,400 cash if the offer was taken up by noon of the next day. The offer was not accepted by the appellee. After failure of agreement, the appellant put valuable improvements on the property, as pleaded. Appellee proved no ownership in himself to the premises.

It is thought that the court erred in not directing a verdict for appellant. The evidence fails, it is concluded, to establish a definite and completed contract between the parties, and as a legal consequence fails to afford ground for the action as to the land or for damages. And an agreement, if there had been a completed one, whereby one person binds himself to purchase realty, to put certain improvements thereon which might thereafter be agreed upon between the parties, and then to sell the realty on credit terms to be thereafter agreed upon between the parties, would be, unless evidenced by a writing, void under the provisions of the statute of frauds, and legally unenforceable. Allen v. Allen, 101 Tex. 362, 107 S. W. 528. As payments were to be made, if at all, by appellee after the title vested in appellant, a resulting trust could not be predicated, as asserted by appellee. Parker v. Coop, 60 Tex. 111. It is further not thought that the evidence, properly construed, even tends to show, as contended by appellee, that it was in the minds of both parties that appellant was merely as a purchasing agent to buy the property from the owner for appellee.

' The judgment is reversed and here rendered in favor of appellant, with all costs.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DELGADO v. CHAPA.
    (No. 5414.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1915.
    Rehearing Denied March 3, 1915.)
    FORCIBLE E-NTÉY AND DETAINEE <®=>43 — APPEAL — Final Judgment.
    A county court judgment dismissing a forcible entry and detainer case appealed to it from a justice’s court, and for judgment for less than $100 against plaintiff and sureties on his appeal bond, is final under Rev. St. 1911, art. 3962, and is not reviewable on writ of error.
    [Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 169-182; Dec. Dig. <@=»43.]
    Error from Cameron County Court; E. I-I. Goodrich, Judge.

      Action by Federico Delgado against Refugio Chapa. There was a judgment of dismissal, and plaintiff brings error.
    Dismissed.
    Webster & Green, of Brownsville, for plaintiff in error. Graham, Jones, West & Dancy and J. C. George, all of Brownsville, for defendant in error.
   MOURSUND, J.

Plaintiff in error seeks the revision of a judgment of the county court of Cameron county dismissing a case of forcible entry and detainer appealed to said court from the justice’s court of precinct No. 2 of said county, and awarding judgment against plaintiff in error and the bondsmen on his appeal bond in favor of the officers of the court for all costs incurred upon the appeal. The judgment of the county court finally disposed of the cause and did not award damages in an amount exceeding $100. No appeal is permitted from such a judgment. Article 3962, R. S. 1911; Yarbrough v. Jenkins, 3 Willson, Civ. Cas. Ct. App. § 464; Allen v. Hall, 25 Tex. Civ. App. 178, 60 S. W. 586; Lane v. Jack, 25 Tex. Civ. App. 496, 61 S. W. 422; Stein v. Stely, 32 S. W. 861; Kerlin v. Bassett, 152 S. W. 526.

As the judgment is final, this court has no jurisdiction of the writ of error proceeding, and the same is dismissed.
      <@x=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    SEIDEL v. WALKER.
    (No. 5418.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1915.
    Rehearing Denied March 3, 1915.)
    1. Brokers <@=64 — Commissions—Right to.
    Plaintiff procured a purchaser for defendant’s land, and defendant accepted the purchaser under a contract providing that defendant might either forfeit a small cash payment or enforce the contract specifically. The purchaser was financially irresponsible. Held that, defendant having accepted the purchaser, he could not escape payment of commissions because the purchaser did not comply with the contract and the cash payment was too small for protection.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. <§=64.]
    -2. Reformation of Instruments <@=16 — When Granted.
    In the absence of fraud, mistake, or some special reason, the courts will not reform a binding contract.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. •<@=16.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Ganahl Walker against Albin Seidel. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Webb & Goeth, of San Antonio, for appellant. Taliaferro, Cunningham & Birkhead and F. R. Williams, all of San Antonio, for appellee.
   CARL, J.

On September 9, 1913, appellant, Albin Seidel, through appellee, his agent, made a contract with Frank Bushick, whereby he agreed to sell Bushick 52 acres of land near the city of San Antonio for the sum of $5,000, to be paid $2,000 in cash and three notes each for $1,000. The contract provided that, if the purchaser failed to comply, the seller had the option of taking a small forfeit which was put up, or of pursuing an action for specific performance. This contract was delivered to appellant at the time, together with the forfeit check. It was an absolute binding contract to- purchase, in so far as Bushick was' concerned; the only means of his escape being failure of title or defective title, etc., and he was given the right of an action for specific performance. Seidel knew the purchaser, accepted the contract and money, and, about two days before the time to close up, the purchaser notified him that he would be unable to complete the purchase. Appellant thereupon forfeited and retained the money put up. Under the terms of the contract, appellant had the right to do either as he did, or to hold Bushick to a specific performance of the contract.

This is not a case involving the question as to whether the agent presented a customer ready, willing, and able to buy, as is ordinarily the duty of an agent before he may be entitled to a commission; but it is a case where the agent produces a customer with whom the seller is satisfied and a contract is made. In this last event, the agent is not concerned as to the ability of the purchaser to buy, for the seller relieves him of any further duty 'in that respect when he accepts the purchaser as satisfactory and a binding contract is made. Conkling v. Krakauer, 70 Tex. 739, 11 S. W. 117, and authorities therein cited; Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847; Ansley Realty Co. v. Pope, 105 Tex. 440, 151 S. W. 525; Albritton v. First Nat. Bank of Mexia, 38 Tex. Civ. App. 614, 86 S. W. 646; Saunders v. Montgomery et al., 134 S. W. 775; J. B. Watkins Land Co. v. Thetford, 43 Tex. Civ. App. 536, 96 S. W. 72; Griffifth v. Bradford, 138 S. W. 1072; Hamburger & Dreyling v. Thomas, 118 S. W. 770; E. R. & D. C. Kolp v. Brazer, 161 S. W. 899; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345; Moore v. Irvin, 89 Ark. 289, 116 S. W. 662, 20 L. R. A. (N. S.) 1168, 131 Am. St. Rep. 97; Francis v. Baker, 45 Minn. 83, 47 N. W. 452; Scully v. Williamson, 26 Okl. 19, 108 Pac. 395, 27 L. R. A. (N. S.) 1089, Ann. Cas. 1912A, 1265; 19 Cyc. 271; Leuschner v. Patrick, 103 S. W. 664; Williams v. Phelps, 171 S. W. 1100.

It may be unfortunate that appellant accepted a contract wherein he was not adequately protected: First, as to his ability to have the same performed by the purchaser; and, second, which did not protect him against the payment of a commission in such case as this happened to be. But he acted for himself in accepting and retaining the contract as written, and no fraud is pleaded or proved on part of the agent in the procurement of his acceptance. This court, however, does not make contracts for parties, but only passes upon them after they are made. In the absence of fraud, mistake, or some special reason which does not here exist, “as parties bind thelnselves, so shall they be bound.” A binding contract was made for the sale of the land which was susceptible of specific performance, and that appellant made a mistake as to the purchaser’s ability to perform is such an error of judgment as any man may make; but for that mistake he, and he alone, is responsible.

The judgment is in all things affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    HANCOCK et al. v. WILSON et al.
    (No. 7258.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 23, 1915.
    Rehearing Denied Feb. 27, 1915.)
    INSURANCE &wkey;>55 — Liability on Member oe Association — Fraudulent Representations.
    • Defendants, who together operated an unincorporated insurance association without any capital, which they knew to be an insolvent concern when they issued its policy to plaintiff, who did not know of its insolvency, but relied upon defendants’ representation that they would insure him in a reliable, solvent company, were personally liable for a loss under the policy.
    [Ed. Note. — For other' cases, see Insurance, Cent. Dig. §§ 67-69; Dec. Dig. &wkey;55.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by W. M. Wilson and C. W. Walker against John R. Hancock and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Wood & Wood, of Dallas, for appellants. Claude Westerfeldt, of Dallas, for appellees.
   RAINEY, C. J.

“This was a suit in the county court at law of Dallas county, Tex., by the appellees, W. M. Wilson and C. W. Walker, against the appellants, John R. Hancock, S. T. Bryant, and E. M. Laughlin, to recover the sum of $-100, alleging, as their cause of action: That appellants were agents of the North America Eire Insurance Association, aud that on or about August S, 1911, caused said association to issue a policy covering two small buildings belonging to ap-pellee Wilson for the sum of $100 in favor of said W. M. Wilson, and to appellee C. W. Walker; who held a mortgage on said buildings, as his interest might appear. That said association was insolvent at the time the policy issued, and then known to be so by Hancock and Laughlin, and that said Hancock and Laughlin conspired together to insure said property in an insolvent company to defraud appellee out of the premium. That appellee Wilson paid the premium, and one of the buildings burned about October 19, 1911, while the policy was in force. Appellee also sought to make the appellants liable under articles 3093 and 3095 'of the Revised Statutes of the state of Texas, alleging that appellants were acting as such agents without first obtaining from the banking and insurance commissioner of Texas a certificate to solicit insurance for such association. It was alleged: That said purported policy, which was purported to be issued by North America Eire Insurance Association of San Antonio, and purported to be signed by S. T. Bryant & Co., as attorney and manager, and by JohnR. Hancock & Co., as agents, for said company. That said Bryant & Co. was nothing more than a name. That the said defendant Bryant was the whole company, and that the North America Fire Insurance Association was nothing but a name. That said Bryant was the whole company, in connection with said Hancock and Laughlin. That said company ivas operated in connection with and in conjunction with said John R. Hancock & Co. and F. M. Laughlin. They, all of said defendants, had combined together for the purpose of running a wild-cat irresponsible concern to prey upon the innocent and unsuspecting public. That said concern was run by said S. T. Bryant, in conjunction with said Hancock and Laughlin. When said plaintiffs asked to be insured in a good company, said Laughlin and Hancock deceitfully, fraudulently, wrongfully, and illegally represented unto the said plaintiffs that said company was a good. company, meaning a solvent one. In truth and in fact the company he insured said plaintiff in was a wildcat concern, insolvent, one-man mutual concern, no permit in Texas, no organization, and no assets to do business or pay a loss, and that Laughlin and Hancock with their experience knew same, or could have known by use of reasonable care. Said Hancock and Laughlin further represented that said company was, or led plaintiff to believe, an incorporated regular old-line insurance company, with plenty of assets behind it, and represented same to be good some time after said fire, whereas in truth and in fact said company was a purported mutual company, and plaintiffs were not notified that said company was a mutual company, and that plaintiffs would be governed by certain by-laws, and that they would be called on in case of loss to pay pro rata loss, and did not notify plaintiffs that said $8 was an assessment to •pay attorney and cost of running said mutual company, but led them to believe it was a premium. The appellants in their answer denied the charges of fraud and conspiracy, and denied that said association was known to them or either of them to be insolvent at the time the policy was issued, and denied that they represented it to be solvent, and alleged that the said association was an unincorporated company and carried on by members thereof solely for the protection of their own property and not for profit, or was a purely co-operative interinsurance and reciprocal exchange, and' that articles 3093 and 3094 of the Revised Statutes have no application. The cause was tried by a jury, and judgment rendered for plaintiffs against the appellants for the sum of $331.65; the two houses having been insured together for $400, and only one having burned.”

The evidence establishes the material allegations of plaintiffs’ cause of action, and the jury were warranted in finding a verdict against the defendants. It was sufficient to show: That Hancock, Bryant, and Laughlin-were acting together in operating the North America Eire Insurance Association, an unincorporated concern, without any capital, which was known to be an insolvent concern by defendants when they issued the policy of insurance to plaintiff. That .plaintiff did not know of said concern being insolvent, but relied upon defendants insuring them in a solvent company, as defendants represented they would do. The defendants were experienced insurance men, and the plaintiffs were inexperienced, and knew nothing about insurance contracts, and thought they were getting good insurance in a reliable concern, and relied upon defendants’ representations that their property would be insured in a reliable company. Laughlin testified that he thought plaintiffs were insured in a different concern. He was the main actor in the transaction, and should have known in what company the insurance was placed.

Taking the whole evidence, we think an equitable judgment was rendered, and it is affirmed.
      ¡S^oFor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    ENGLISH v. ALLEN.
    (No. 1413.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 23, 1915.
    Rehearing Denied March 4, 1915.)
    Appeal and Error &wkey;>1135 — Assignment oe Errors.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, requiring an appeal to the Court of Civil Appeals to be tried on error in law, either assigned or apparent on the face of the record, article 1612, requiring appellant to file assignments of error before taking the transcript of record from the clerk of the court below, and article 2113, requiring the transcript to contain a copy of the final judgment, assignments of error, etc., a transcript not containing a copy of the assignment of errors filed below and not on its face disclosing reversible error required an affirmance. *
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. <i&wkey; 1135.]
    Appeal from Panola County Court; Geo. Harkrider, Judge.
    Action by Mrs. Duckie Allen against Virgil English. Judgment in justice court for plaintiff, and .from a judgment of the county court, overruling defendant’s motion to set aside a judgment dismissing his appeal and to reinstate it, he appeals.
    Affirmed.
    J. R. Duran, of Carthage, for appellant. P. P. Long and W. G. Banks, both of Carthage, for appellee.
   WILLSON, C. J.

In the justice court, where this, suit was commenced, appellee, who was the plaintiff, obtained judgment against appellant for $65 and costs. Appellant perfected an appeal to the county court by a bond filed January 19, 1914. At the August term, 1914, of the county court, the appeal was dismissed because of the failure of the justice to comply with the statute (Vernon’s Statutes, art. 2397) requiring him to transmit the papers in the case and a transcript of his docket to the county clerk on or before the first day of the next (being the May) term of the county court, or on or before the first day of the second (being said August) term of said county court, convening after the appeal was perfected.1 This appeal is from a judgment of the county court overruling a motion made by appellant to set aside the judgment dismissing his appeal and to reinstate same. The transcript sent to this court does not contain a copy of the assignment of errors, if any, filed in the court below, and the face of the record does not disclose error requiring a reversal of the judgment. Therefore it is affirmed. Vernon’s Statutes, arts. 1607, 1612, 2113; Keyser v. Willman, 30 S. W. 504; Peacock v. Moore, 125 S. W. 943.


text:
    PRUITT et al. v. ENGLISH.
    (No. 1412.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 11, 1915.)
    1. Attachment &wkey;>375 — Action for Wrongful AttachmentMeasure of Damages.
    In an action for wrongful attachment of cotton, the measure of actual damages was the value of the cotton when levied upon and interest thereon, less the amount of the judgment in the attachment suit against the attachment debtor.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385,1387, 1393, 1394, 1398, 1399; Dec. Dig. &wkey;375.]
    2. Attachment <&wkey;374 — Action for Wrongful Attachment — Evidence—Damages.
    In such action, the judgment in the attachment suit, if valid, was admissible in evidence on the question of damages.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. &wkey; 374.]
    3. Malicious Prosecution &wkey;>71 — Wrongful Attachment — Question for Jury-Malice.
    In an action for damages for an attachment of cotton, alleged to have been sued out maliciously and without ■ probable cause, the question of defendant’s malice was for the jury, with reference to the claim for exemplary damages, since, while the existence of malice may be inferred from the absence of probable canse, it need not be.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 160-167; Dec. Dig. &wkey;71.]
    Appeal from Panola County Court; Geo. I-Iarkrider, Judge.
    Action by Virgil English against Josh Pruitt and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded for new trial.
    It appears from the record that appellee, acting for his brother Lee English, sold two bales of cotton to appellant Pruitt. The latter testified that at the time of the sale ap-pellee represented to him that there was “nothing against the cotton.” It turned out that Lee English was indebted to one Young-blood, and that the latter had a landlord’s lien on the cotton to secure the indebtedness. Youngblood having recovered a judgment against Pruitt for $35.30 and costs, Pruitt paid samé. On the theory, it is assumed, that appellee was liable to him in damages for falsely representing that the cotton was unincumbered, Pruitt then sued appellee. In that suit a writ of attachment was issued and levied on a bale of lint cotton and a bale of seed cotton belonging to appellee. The suit resulting in the judgment from which this appeal is prosecuted was brought by appellee against Pruitt and the other appellants. to wit, R. W. Turlington and J. L. Turlington, who were the sureties on the attachment bond made by Pruitt. In his petition appellee alleged that Pruitt, to procure the issuance of the writ levied upon the cotton, made an affidavit in which he failed to set out a statutory ground for the writ, and in which he falsely alleged that appellee was indebted to him and falsely alleged that he would probably lose his debt unless a writ of attachment was issued. Appellee charged that the writ, therefore, was wrongfully sued out and levied on his property, entitling him to a recovery against Pruitt and his said sureties of actual damages he had suffered; and he charged, further, that the writ was sued out maliciously and without probable cause, entitling him to a recovery against Pruitt and his sureties of exemplary damages. On the trial special issues were submitted to the jury as follows: “(1) What is the value of the two bales of cotton and the bale of cotton seed attached on the 22d day of December, 1913?” The jury answered: “$94.19.” “(2) What amount of exemplary damages do you find, if any?” The jury answered: “$100.” On these findings and others made by the court, judgment was rendered in appellee’s favor against Pruitt and his said sureties for $94.19, as actual damages, and against Pruitt alone for $100 additional, as exemplary damages, appellee was entitled to recover.
    W. G. Banks and Frank Lawson, both of Carthage, and J. F. O’Brian, of Beckville, for appellants. J. R. Duran and Brooke & Wool worth, all of Carthage, for appellee.
   WILLSON, C. J.

(after stating the facts as above). As against any recovery ap-pellee might show himself to be entitled to, appellants in their answer set up the judgment (for $47.40 and costs) recovered by Pruitt against appellee in the attachment suit, and on the trial offered the judgment as evidence. The court sustained an exception interposed by appellee to the answer in the respect stated, and excluded the judgment as evidence. In so doing the court erred. If the judgment was a valid one (and that it was not is not suggested by anything appearing in the record), it was' conclusive of the fact that appellee was indebted to Pruitt as determined by it. That the judgment, if valid, should have been admitted as evidence appears clear, in view of the fact that the measure of appellee’s recovery for actual damages, on the facts pleaded by him, was the value of the cotton at the time it was levied upon by virtue of the writ of attachment, and interest thereon, less the amount of said judgment. Mayer v. Duke, 72 Tex. 445, 10 S. W. 566; Blum v. Stein, 68 Tex. 608, 5 S. W. 454; McClelland v. Fallon, 74 Tex. 236, 12 S. W. 60.

We think the court also erred when he refused appellants’ reguest in writing to submit to the jury, with reference to appellee’s claim of a right to recover exemplary damages, a question as to whether Pruitt was actuated by malice or not when he had the cotton levied upon. While the existence of malice may be inferred from the absence of probable cause, it need not be. Lister v. Campbell, 46 S. W. 876; Hale v. Barnes, 155 S. W. 358. Whether in this case the existence of malice should have been so inferred or not should have been determined by the jury instead of by the court.

The judgment is reversed, and the cause is remanded for a new trial.
      <@^>lTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WRIGHT et al. v. CHANDLER et al.
    (No. 5361.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1915.)
    1. Appeal aistd Error <&wkey;79 — -Final Judgment-Consolidated Actions.
    The judgment in consolidated causes is not final unless it disposes of the litigation as to all parties to the suit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484r-493 ; Dec. Dig. &wkey;79.]
    2. Pleading &wkey;*286 — Consolidated Causes —Repleading—Necessity.
    Where a suit to cancel vendors’ liens and recover the purchase money paid was consolidated with a suit to foreclose the lien notes, the court should have required the parties to replead under the proper style of the consolidated case.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 851, 852; Dec. Dig. &wkey;>286.]
    3. Cancellation oe Instruments @=358 — Damages — Jueisdiction.
    Where the court acquires jurisdiction in an action to rescind vendors’ lien notes for fraud, it has jurisdiction to give complete relief by awarding damages to plaintiff on it appearing that he is not entitled to cancellation by reason of a transfer of the notes to an innocent holder.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 118, 120; Dec. Dig. <@==>58.]
    4. Cancellation or? Instruments <&wkey;58 — Pleading — -Right to Award Damages.
    Under a prayer for general relief in law and equity in a suit to cancel vendors’ lien notes for fraud, the court may award damages to plaintiff on it appearing that he is not entitled to a cancellation by reason of a transfer of the notes to an innocent holder.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 118, 120; Dec. Dig. <&wkey;5S.]
    5. Election oe Remedies <&wkey;3 — Rescission oe Contract — Damages.
    Where the purchaser, on discovering- that he has been defrauded, sues for damages, he thereby affirms the contract and loses his right to rescind; but, where he sues for rescission, liis right to damages, in case it becomes necessary to change the cause of action, is not lost.
    [Ed. Note. — For other cases, see Election of Remedies, .Cent. Dig. §§ 3, 4; Dec. Dig. @¿=3.]
    6. Trial &wkey;>358 — Findings—Judgment.
    Where the findings of the jury that were made were conflicting and as to certain material issues they were unable to agree, they were insufficient to support a judgment.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 85G; Dec. Dig. <&wkey;358.]
    Appeal from District Court, Cameron County; W. B. Hopldns, Judge.
    Suits by Alice W. Wriglit and husband against Edwards H. Smith and A. B. Chandler, and by A. B. Chandler against Alice W. Wright, her husband, and Edwards I-I. Smith, were consolidated, and from an adverse judgment Alice W. Wright and husband appeal.
    Affirmed in part, and reversed and remanded in part.
    Rich & Searle, of Brownsville, and G-. P. Dougherty, of Houston, for appellants. Spears & Montgomery, of San Benito, and Graham, Jones, West & Dancy, of Brownsville, for appellees.
   CARL, J.

Mrs. Alice W. Wright, who was formerly Mrs. Alice W. Pruitt, a widow, joined by her husband, J. A. Wright, filed suit against Edwards I-I. Smith and A. B. Chandler,. in which she prayed judgment against Smith for $5,738.35 and interest thereon from October 14, 1912, and for cancellation of two vendor’s lien notes aggregating $5,738.34, which she gave Smith in p,art payment for 53.38 acres of land in Cameron county, Tex. The contract price was $215 per acre, and it was charged that fraud was practiced upon her, in that she was unacquainted with lands in that section of the state and relied on said Smith and his agents; that said land was represented to be well drained and as good land as there was in the San Benito country; that it was free from alkali, etc., and was of the proper mixture of sand to be well suited to irrigation. These and other material representations were alleged to be false, and the Wrights tendered a deed back, and prayed; First, for judgment against Smith for $5,738.35 and interest as aforesaid and for a cancellation of the two notes, which it was alleged had been collu-sively and fraudulently conveyed to Chandler, and it was denied that he was an innocent purchaser for value before maturity thereof; second, prayer was made for judgment for $2,334.85 and cancellation of the two notes, the damages alleged to be $8,073.17, or the difference between the contract price, or what was given, and the market value of the land, and for confirmation of title of said land in plaintiffs. This was cause No. 25011 on the docket of the district court of Cameron county.

On October 25, 1913, A. B. Chandler filed suit in cause No. 2513, against the Wrights and Edwards I-I. Smith, in which he alleged that he was the owner of said notes, for value, without notice, etc., and, the first note being due, the option clause therein was exercised maturing both notes, and prayer was made for judgment for the debt and for foreclosure of the lien. Smith filed an answer, in proper person, in this last case, in which he admitted Chandler’s cause of action and prayed for judgment over against Mrs. Wright, in case judgment went against him. The Wrights, having been cited, answered in this last case, and in a cross-action alleged substantially what was set forth in their petition in cause No. 25011, and in addition thereto pleaded other and additional alleged fraudulent actsi on part of Smith. In their cross-action the Wrights prayed, first, for judgment for $11,476.69 and interest on $5,738.35 from October 14, 1912, and that Smith be required to accept a reconveyance of the land tendered. And in the alternative they prayed for $5,738.35 with interest from October 14, 1912, and judgment requiring Smith to accept a deed of reconveyance, and for judgment over against Smith for any money owing Chandler by the Wrights on account of the vendor’s lien notes. As a further alternative prayer, they asked judgment against Smith for $5,738.35, with interest, and for judgment canceling the notes.

The two causes Nos. 2511 and 2513 were consolidated.

On April 15,1914, Chandler and Smith filed supplemental pleadings in which, among other things, they allege since June, 1913, the Wrights have asserted ownership of the land and have been in possession thereof continuously claiming, using, and enjoying the same, including the rents and revenues; and denial is made of a tender of a deed, or that appellants have done those things which would entitle them to a rescission. And on this same day, April 15, 1914, the Wrights filed a pleading in denial of the matters so alleged by Smith and Chandler, and in this pleading they deny that they have asserted ownership of the land since October 10, 1913, again tendered deed to the land, and demanded the return of the purchase money and surrender of the notes, and offered to pay the reasonable rental value of the land from October 10,1913, to that date; and they pray, also, for relief asked for in their other pleadings, and in the alternative for damages against Smith in the sum of $10,170.67, and for general and special relief. Smith and Chandler filed a motion on the same day to strike out this alternative plea for damages, and the court granted the motion, and rendered judgment against appellees upon the pleadings and answers of the jury hereinafter referred to.

In the original petition in cause No. 2511, as well as in the cross-action filed in No. 2513, the Wrights pleaded fully the facts, substantially the same, and in detail showed how they were damaged, and in each instance prayed for general and special relief, both in law and in equity. It developed to the satisfaction of appellants, upon the trial, that Chandler was an innocent purchaser of the notes for value, before maturity, and they thereupon admitted the cause of action in so far as Chandler was concerned and assumed the burden of proof on the matters set out in their cross-action against Edwards H. Smith, and the cause was tried on April 18, 1914, before a jury, on special issues. The jury answered some of the questions, but others they were unable to agree upon and so reported to the court.

The substance of the answers made is as follows: That Alice W. Wright relied on the statements of Smith in regard to the land, and before she bought she told Smith she would have to rely upon him because she was not a judge of land; that Smith told her the land was well drained' and easily tilled and was as good as any land in the San Benito tract. He told her this as an inducement for her to buy the land; but the jury could not agree as to whether the land was well drained, as represented, neither could they answer as to what was meant by “well-drained land.” They do say, however, that Smith represented the soil to be sandy land, and find that 35 per cent, sand is necessary to constitute sandy land. This land, however, they find had “very little, if any,” sand. It was understood between the parties that the land would have enough sand to make it easily tilled and scour. He represented to her that all of the land was tillable, by which the jury says he meant all the land he had been cultivating. Then the next question the jury declined to answer whether the representations as to tillability were true as made. They find that no representations were made as to the land being free from alkalis and salts, and say there were not sufficient alkalis and salts to injure a crop at that time, and they say he made no representations as to whether water stood upon the land; but they refuse to answer whether water, in fact, did stand upon the land so as to injure crops. He represented to her that the land was as good as any in the San Benito tract and was worth $215 per acre, owing to natural advantages and shipping facilities; but they refuse to answer the question as to what the market value of said land really was at the time Mrs. Pruitt (later Mrs. Wright) bought. They say that Mrs. Pruitt discovered the last grounds upon which she bases her action to rescind in November, 1913, and after such discovery she has used and occupied' and asserted ownership over the land.

“We, the jury, have agreed upon such questions as are answei’ed and are unable to reach an agreement on questions unanswered.
“[Signed] E. A. McGary, Foreman.”

On these findings, the court rendered judgment for Chandler against the Wrights as principals and Smith as indorser of the notes, for the amount due thereon and foreclosed the lien, and gave Smith a judgment over against Alice W. Wright and the community estate of her and J. A. Wright for such part thereof as the said Smith should be compelled to pay, and gave judgment against Mrs. Wright on her cross-action against Smith.

In the original petition filed in cause No. 2511, which was consolidated with No. 2513, the Wrights, as plaintiffs, alleged and prayed for damages substantially as in their cross-action which was stricken out by the court upon the trial as having been filed too late. Where causes have been consolidated, the judgment, to be final, must dispose of the litigation as to all the parties in such suit. Mills v. Paul, 1 Tex. Civ. App. 421, 23 S. W. 189. And, when causes of action are so consolidated, the court should require the parties to replead, as a general rule, under the proper style of the consolidated cause. Ralston v. Aultman, Miller & Co., 26 S. W. 746. But that was not done in this case; still, it should have been done. The suit in equity for rescission of the contract gave the court jurisdiction for all purposes, and, under the prayer for general relief in law and equity, such relief as the facts warranted could be granted. The supplemental answer in this case, and specific prayer therein for damages, was nothing more nor less than a trial amendment made necessary by the development of the facts on the trial which showed that as to Chandler a rescission could not be had. The facts pleaded were substantially the same as had theretofore been alleged, and no different or additional testimony was required. Rescissions are not, as a rule, favored by the courts, and, where a suit is first brought for damages, it has been held that same is a waiver of the right to sue for rescission and an election to pursue, instead, the action for damages. A court of equity, as a general rule, declines jurisdiction in a case for mere compensatory damages, when “not given in addition to or as an incident to some other special equitable relief, unless under special circumstances, the exercise of such jurisdiction may be requisite to promote the ends of justice.”

“There are, however, special circumstances in which the principle under discussion is invoked and is extended to the award of mere damages. If a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctively equitable relief, such, for example, as the specific performance of a contract, or the rescission or cancellation of some instrument, and it appears from facts disclosed on the hearing, but not known to the plaintiff when he brought his suit, that the special relief prayed for has become impracticable, and the plaintiff is entitled to the only alternative relief possible of damages, the court then may, and generally will, instead of compelling the plaintiff to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of mere compensatory damages.” Pomeroy’s Equity Jurisprudence, vol. 1 (2d Ed.) p. 309.

The trial court erred in' striking out the prayer for damages, since the same could not have operated as a surprise, because the facts justifying same were pleaded and had been all the while. No proof was necessary to meet same that was not already in the record. The price paid and evidence of market value, etc., had all been shown. For that matter, appellants were entitled to the benefit of the testimony as to damages under their prayer for general and special relief in law and equity. While the Wrights, under the jury’s finding, had lost their right to rescission, it does not necessarily follow that they had lost their right to damages. A party electing to sue for damages affirms the contract, and therefore loses his right to rescind the same; but it does not follow that, by suing for rescission, the right to damages is lost, in case it becomes necessary to change the cause to an action for damages. When a party has a cause for damages, it will last until limitation intervenes; but, when he brings a suit for damages, he thereby puts an impassable barrier between him and the right to rescind the contract.

Since we shall reverse the judgment, it will not be necessary to go into detail on other questions, because they may be avoided on another trial. The trial court should direct a repleading under the consolidated cause, as should have been done before.

The findings of the jury that were made are conflicting, and upon some of the material inquiries they were unable to agree. Taken as a whole, such findings are totally insufficient to support a judgment.

The judgment is reversed and the cause is remanded, as between Edwards H. Smith and appellants; but, since no complaint is made as to the judgment for debt and foreclosure in favor of A. B. Chandler, that part of the judgment is affirmed.

Affirmed in part, and reversed and remanded in part.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes