author: FLY, C. J.

text:
    ST. LOUIS, I. M. & S. RY. CO. v. WEST BROS. et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    On Motion for Rehearing June 28, 1913.)
    1. Removal of Causes (§ 94) — Application fob Removal — Effect.
    _ Where the original petition, in an action, against several defendants, was abandoned, and amended pleadings were filed, after the filing: by one defendant of an application for removal to the federal court on the ground that the controversy was separable, and he filed a secondapplication for removal on the filing of the-amended petition, the application for removal, must be considered in the light of the amended, petition.
    [Ed. Note. — For other cases, see Removal of' Causes, Cent. Dig. §§ 178, 203; Dec. Dig. § 94.]
    2. Couets (§ 97) — Controlling Decisions— Decisions of Federal Supreme Court.
    The decisions of the federal Supreme-Court on the questions of the construction and. validity of contracts for interstate shipments are controlling on the state courts.
    [Ed. Note. — For other cases, see Courts,. Cent. Dig. §§ 329-333; Dec. Dig. § 97.]
    3. Carriers (§ 35) — Transportation o-f Live Stock — Contracts—Validity—‘ ‘Discrimination.”
    A contract binding carriers of an interstate shipment of cattle to so handle them as to. get them into market by a specified time and to feed and water them only once en route, so that they will take a heavy fill and weigh more at destination than if fed and watered more than once en route, is invalid as discriminatory, in violation of the Elkins Act (Act-Feb. 19, 3903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1911, p. 1309]), prohibiting “discrimination” between shippers.
    TEd. Note. — For other cases, see Carriers. Cent. Dig. § 94; Dec. Dig. § 35.

    For other definitions, see Words and Phrases, vol. 3, p. 2099.]
    4. Removal of Causes (§ 50) — Diversity of Citizenship — Separable Controversy.
    Where the petition, in an action against several carriers, alleged a breach by one carrier, a nonresident, of a parol contract, and averred facts showing a violation by the carriers of their common-law liability, the nonresident carrier was not entitled to a removal of the action to the federal court, on the ground that the controversy was separable.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 100; Dec. Dig. § 50.]
    5. Contracts (§ 113) — Validity—Inducing Fraud — Carriage of Live Stock.
    A contract binding a carrier of cattle transported for sale at destination to transport them with such speed as to require but one feeding and watering en route, so as to make the cattle in such condition at destination that they will inflate themselves with water and increase their weight when offered for sale, is void as fraudulent on the rights of buyers, and cannot be made the basis for damages because breached.
    [Ed. Note. — For other cases, see Contracts,. Cent. Dig. §§ 521-541; Dec. Dig. § 113.]
    On Motion for Rehearing.
    6. Appeal and Error (§ 1173) — Disposition of Case on Appeaiv-Affirmance of Judgment.
    Where plaintiff, suing a defendant and several codefendants, desired that the judgment for the eodefendants should not be disturbed, the court on the appeal of defendant will affirm the judgment for codefendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.]
    7. Appeal and Error (§ 758) — Questions Reviewable — Brief of Appellant — Assignments of Error.
    Under Courts of Civil Appeals Rule 29 (142 S. W. xii), requiring appellant to file a brief of the points relied on, but not requiring the assignments of error to be presented in the order in which they appear in the original assignment, appellant may in his brief disregard the numbers of the assignments of error in the record, and give the assignments new numbers, numbered from the first to the last in their consecutive order.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §, 3093; Dee. Dig. § 758.)
    8. Courts (§ 79) — Rules of Court — Validity.
    The Supreme Court may not, by a rule of court, set aside statutes.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 275; Dec. Dig. § 79.]
    9. Appeal and Error (§ 1140) — Disposition of Case on Appeal — Remittitur.
    Where the verdict is wholly based on a void oral contract, a remittitur of a part will not cure the error therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 44624.476; Dee. Dig. § 1140.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Action by West Bros, against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for plaintiff against defendant named, it appeals.
    Reversed and remanded.
    See, also, 152 S. W. 181.
    Guinn & McNeill, of San Antonio, Baker, Botts, Parker & Garwood, of Houston, G. B. Fenley, of Uvalde, and W. B. Teagarden, of San Antonio, for appellant. Martin & Martin and L. Old, all of Uvalde, Wilson, Dab-ney & King, of Houston, and W. L. Hall, of Dallas, for appellees.

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

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

   FLY, C. J.

This cause was instituted by West Bros, to recover damages arising from delay in the shipment of certain cattle from Uvalde, Tex., to the National Stock Yards, Ill.,the defendants in the trial court being the Galveston, Harrisburg & San Antonio Railway Company, International & Great Northern Railroad Company, Texas & Pacific Railway Company, St. Louis, Iron Mountain & Southern Railway Company, and T. J. Freeman, receiver of the International & Great Northern Railroad Company. It was alleged in the second amended petition, upon which the cause was tried, that, West Bros, desiring that their 277 cattle be shipped' from Uvalde, Tex., to National Stock Yards, Ill.,the Galveston, Harrisburg & San Antonio Railway Company, being the initial carrier, made a verbal contract with an agent of appellant, by which he agreed, in consideration of the routing of the cattle so that they would pass over the Galveston, Harrisburg & San Antonio Railway Company’s line to San Antonio; thence over the International & Great Northern Railroad line to Longview; thence over the line of the Texas & Pacific Railway Company to Texarkana; thence over the lines of appellant to the National Stock Yards, Ill. — that appellant would transport the cattle in such time that they would be unloaded and fed once in transit, and with such dispatch that they would be delivered at point of destination in time to-be sold on Tuesday, June 6, 1911. The following allegation is also found in the petition: “Plaintiff says that at the time that they made the said contract, as aforesaid, he informed the said agent of the defendant St. Louis, Iron Mountain & Southern Railroad' Company, D. C. Smith, that plaintiff desired the said cattle transported to destination on one feed, for the reason that cattle shipped from Uvalde, Tex., to National Stock Yards, Ill.,and fed only once en route would take a heavy fill, and would weigh more than if fed and watered more than once en route, that said cattle if fed and watered more than once would not take any fill at destination, and would weigh much less than if fed only once, and would weigh in the neighborhood of 50 pounds less per head, if they were fed and watered twice in transit, than if watered once, and that Tuesday of each we'ek was the best market day at destination; and that if plaintiffs’ cattle did not arrive at said market on Tuesday in time for market that they would bring plaintiff much less than if they had to be sold on any other day, and that he wished them to go through by said day, Tuesday, June 6th, in time to be sold, so that they might be on said market on-said day, and also that they would not be delayed en route, and thereby lose in flesh and become of poor appearance; and plaintiff says that the said contract was so made between plaintiff and the said defendant St. Louis, Iron Mountain & Southern Railroad Company by and through its live stock agent, as aforesaid, was made with full knowledge of all the facts, and of the damage that plaintiff would suffer, as aforesaid, by reason of a failure to perform said contract to-place said cattle on market on said day, Tuesday, June 6, 1911, and feeding them more-than once en route.” Appellant sought to remove the cause to the “District Court of the-United States for the Western District of Texas, at Del Rio,” alleging diverse citizenship, and that the matter in controversy exceeded the sum of $3,000, and also filed its-bond for removal. The petition for removal was overruled, and upon a trial of the cause by a jury a verdict was returned against appellant for $1,740.74, and in favor of the other railway companies, and from the judgment thereon rendered this appeal has been perfected.

While the original petition was in effect, and had not been set aside by amendments, appellant sought a removal to the .federal court, and after the second amended petition had been filed a second motion to remove was made. The first and second assignments of error, respectively, complain of the refusal to remove under each motion. The first application for removal was on the ground of diverse citizenship and severableness of the claim against appellant from those against the other railways, and the claim ’against the initial carrier under the Carmack amendment. In the second motion there is no distinct allegation that the claim against appellant is severable from that of the other defendants. The only mention made of that matter is that the second amended original petition stated “more distinctly a separable cause of action or controversy than was set out in their pleadings when said first application for removal was refused by this court.” The merit, if any, in the application for removal must stand or fall on the allegations of the second application for removal, under the allegations of the second amended original petition. When the original petition was abandoned and amended, pleadings were filed, and appellant made a second application thereunder, it must be considered in the light of the second amended pleading. The action of the court under the original petition cannot avail appellant after a second application was filed by it under other pleadings. It may be said, however, that under the allegations of the original petition the cause against appellant was not severable from that against the other defendants. Nor do we think the legal part of the action against appellant, as set forth in the second amended petition,- was separable from that against the other railway companies.

The oral contract alleged in the amended petition was one made for the regular joint rates, but one which gave the shippers an advantage over other shippers. It was an agreement to handle the cattle so as to get them into the market by a certain time, in a way that was not used in regard to other cattle, and the action was one for a breach of that oral contract, which was one, not to carry the cattle within a reasonable time and deliver them at the point of destination, but it was a contract to carry them within a particular time, and to feed in a particular way, for' a particular purpose. This is an interstate shipment, and in regard to such shipments the decisions of the Supreme Court of the United States must have a potent, if not controlling, influence.

In a case decided by the Supreme Court, in 1911 (Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 164, 32 Sup. Ct. 648, 650 [56 L. Ed. 1033]), in which the facts are quite similar to those in this case, the statute, as to discrimination, of February 19, 1903, known as the Elkins Act (U. S. Comp. St. Supp. 1911, p. 1309), was copied, and it was held: “The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when the action is for a breach of a contract to carry within a particular time, or to make a particular connection, or to carry by a particular train. The railroad company, by its contract, became liable for the consequence of a failure to transport according to its terms. Evidence of diligence would not excuse. If the action had been for the common-law carrier liability, evidence that there had been no unreasonable delay would be an answer. But the company, by entering into an agreement for expediting the shipment, came under a liability different and more burdensome than would exist to a shipper who made no such special contract. * * * The shipper, it is also plain, was contracting for an advantage which was not extended to all others, both in the undertaking to carry so as to give him a particular expedited service, a remedy for delay not due to negligence. An advantage accorded by special agreement which affects the value of the service to the shipper and its cost to the carrier should be published in the tariffs, and for a breach of such a contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage in that it is not one open to all others in the same situation.”

In this case a larger portion of the petition, upon which the cause was tried, is devoted to the oral contract of appellees West Bros, with appellant, which bound the carrier, not only to transport certain cattle from Uvalde, Tex., to National Stock Yards, Ill., and deliver them in good condition, and to deliver the cattle at a certain time, on a certain date, but also bound appellant not to water and feed the cattle but once en route, in order that they might be very thirsty and hungry, so that they would imbibe large quantities of water just before being sold, and each beef thereby gain 50 pounds, and the “Watered Stock” be unloaded on the market of the National Stock Yards. Under the authority herein cited the oral contract, in so far as it contemplated service not extended to every one, was discriminatory and in violation of the Elkins Act, which condemns any discrimination in respect of the transportation of any interstate or foreign commerce by any common carrier “whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amenda-tory thereto, or whereby any other advantage is given or discrimination is practiced.” Undoubtedly the oral contract relied on in this case gave an advantage not usually extended to shippers, and a discrimination was thereby practiced.

The court placed the right to recover in the general charge on the oral contract, and only on that particular part of it relating to the agreement to deliver the cattle at a certain time and to feed and water them only once on the way, and it was made a ground for damages if the cattle were fed twice, so that they would not readily “fill” with water when they reached destination. No grounds of negligence were submitted, the sole grounds of recovery being a breach of the oral contract, and, there being no oral contract with the other carriers at the instance and request of West Bros., a verdict in their behalf was instructed by the court. West Bros, sought to present several items of negligence, but the cause was tried by the court on the theory of a breach of the oral contract. Special charges' were asked by West Bros, as to a breach of the oral contract, and were given by the court.

If the theory upon which this cause was tried in the lower court be the true one, then the cause as to appellant was separable from that as to the other carriers, and the cause should have been removed to the federal court, but there were charges of negligence against appellant, and its common-law liability might be invoked, and that was so intermingled and mixed with that of the other carriers that the causes of action were not separable. The pleadings stripped of that portion in regard to the oral contract still left a case as against appellant for negligence, and the cause for the purposes of removal to the federal court should be viewed as though the oral contract had not been pleaded.

The oral contract might be utilized in this case, perhaps, for one purpose alone, which would be to show notice to appellant that it was desired that the cattle should reach the market at a certain time for a certain purpose, and thereby lay the basis for special damages, if the cattle were negligently transported, and thereby prevented from reaching the point: of destination in time for the market desired. If the cattle were sold at a certain price on condition that they were to be delivered on a certain date, and appellant negligently failed to deliver them on that date, and appellees West Bros, thereby sustained damages, they might recover such damages. Or if there were circumstances indicating that the market would be higher on a certain day than on the succeeding days, and the carrier was notified of the necessity of reaching the market on that certain day, and by negligence failed to transport the cattle so as to have them reach the market on that day, damages might be recovered.

There is no allegation tending to show either of these matters, however; the only complaint seeming to be that the cattle were not transported fast enough to avoid a second stop for feeding and watering, which second feeding and watering prevented the cattle from carrying to their destination a thirst that would cause them to inflate themselves with water so as to increase their weight and consequent value. Whatever may have been the custom as to filling the cattle with water just before a sale, it is a fraud upon the rights of the buyers that cannot be tolerated as a basis for damages in a court of justice. The railroad company cannot be condemned to pay damages because it acted in such a way, whether designedly or not, as to prevent a fraud upon the rights of others, and a failure to carry out a contract to perpetrate such fraud will not be allowed to be made a basis for damages.

The first, second, and third special exceptions to the second amended petition should have been sustained. The petition was not only complicated and unnecessarily verbose, but it based a recovery largely upon the terms of the oral contract, and largely upon that part of it relating to “filling” the cattle with water. The third, fourth, and fifth assignments of error are therefore sustained. The petition should be drawn in the ordinary manner, setting forth the negligence of the railway companies in transporting the cattle to the place of destination and the damages resulting to the shippers therefrom.

The sixth assignment of error is overruled. The seventh, eighth, and ninth assignments, containing matters which will not probably arise on another trial, need not be considered. The tenth and eleventh assignments are overruled.

The twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth assignments are based on bills of exception that were not filed in time, and they cannot be considered.

The points sought to be raised in the remaining assignments of error either have been fully considered in connection with other assignments, or are such as will not arise on another trial, except those setting up error as to the other carriers, which are sustained. There was some evidence as to the negligence of the other carriers that should have gone to the jury, but everything was abandoned for the oral contract with appellant.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellees say, “The court erred in its opinion, in holding that the peremptory instructions in favor of the Galveston, Harrisburg & San Antonio, T. J. Freeman, and International & Great Northern should not have been givenand, as appellees desire that the judgment in their favor should not be disturbed, the motion for rehearing of the Galveston, Harrisburg & San Antonio Railway-Company, the International & Great Northern Railroad Company, and T. J. Freeman, receiver, is granted, and the judgment will be affirmed as to them.

In the brief of appellant the numbers of the assignments of error in the record are discarded and new numbers given, and they are “numbered from the first to the last in their consecutive order.” Rule 29 for Courts of Civil Appeals (142 S. W. xii). By that rule in regard to assignments of error “it is not required that they shall be presented in the order in which they appear in the original assignment of errors filed in the office of the clerk of the trial court, and the numbers of such original assignments may be discarded.” The provisions of that rule were strictly followed by appellant in briefing its case; and, if we had ever felt disposed to disregard assignments of error because not numbered consecutively, which we have not, we could not have justified such a course under the provisions of that rule. This is said in deference to a request that we give our views on the subject

The new rule requiring reference to the motion for a new trial in assignments of error had been in effect only a few weeks when this cause was tried, and this court did not feel called upon to enforce it until such time that the rules were published and became generally known. The rules were not published in any authoritative form, that was generally known among attorneys, until about April 16, 1912, when they were published in 142 Southwestern Reporter. That was just a few days before this cause was tried. The Supreme Court cannot set aside statutes by rules, and that court has decided that objections to charges shall not be included in motions for new trials. Railway v. Beasley (Sup.) 156 S. W. 183. The assignments in appellant’s brief, based on charges given, were sufficient to raise the question discussed in our original opinion.

We adhere to the opinion that the court in the general charge presented the cause on the verbal contract alone, and the special charges given were made applicable only in case the jury found there was no verbal contract. It is an admission that the jury found there was an oral contract, when appellees offer to remit that part of the verdict relating to damages sustained by a failure to have the cattle in condition to fill with water prior to sale. The verdict was necessarily based on damages arising from a breach of the oral contract, which kind of contract has been declared illegal by the Supreme Court of the United States, as is indicated in our former opinion. The whole of the verdict being based on the oral contract, a remittitur of the part found for the “fill,” which was not given the cattle, would not cure the verdict.

There was no charge made in our former opinion of conscious fraud upon the part of appellees in entering into the oral contract with appellant as to the water “fill” of the cattle. The evidence fails to show any attempt or desire upon the part of appellees to defraud any one, and the court merely declared that it would not enforce a contract which would have a tendency to perpetrate a- fraud. Independent of any intention or desire to defraud any one, the terms of the contract would in law amount to a fraud. If it be a custom to keep cattle from water or food for a certain time, and then have them to “fill” themselves just before a sale, it is a “custom better kept in the breach than in the performance”; and while it might be that, being done with the knowledge of the buyer, he would have no cause of complaint, yet a contract with a railroad company to assist in the watering process could not be enforced.

The motion of appellees is overruled.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. COLE.
    (Court of Civil Appeals of Texas. Texarkana.
    June 12, 1913.
    On Motion for Rehearing, July 3, 1913.)
    1. Trial (§ 140) — Questions for Jury — Credibility oe Witnesses — Impeachment —Effect.
    It cannot be said, as a matter of law, that the testimony of a witness who has been impeached should be entirely disregarded, even though it be shown that he is utterly unworthy of belief.
    (Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.]
    2. Appeal and Error (§ 1001) — Review-Verdict— Sufficiency of Evidence.
    As a general rule appellate courts will not disturb verdicts, when there is any credible evidence on which they might be based.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    3. Appeal and Error (§¡ 1175) — Reversal-Rendering Final Judgment — Necessity for New Trial — 'Verdict Against Weight of Evidence.
    Appellate courts cannot reverse and render judgment because the verdict is against the great preponderance of the evidence, but they may reverse and remand the case for a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    4. Trial (§ 252) — Instructions—Applicability to Evidence.
    An instruction, that submits to the jury facts not presented by the evidence is improper.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]

      On Rehearing.
    5. Damages (§ 185) — Personal Injuries— Sufficiency of Evidence — Disease Resulting from Injury.
    In an action by a brakeman for personal injuries, evidence held insufficient to show that a disease of the kidneys from which the brake- ■ man was suffering was the result of his fall from the train.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. § 185.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Action by Charles G. Cole against the St. Louis Southwestern Railway Company of Texas. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    Glass, Estes, King & Burford, of Texar-kana, for appellant. Graham & Smitha, of Texarkana, for appellee.

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

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

   HODGES, J.

In December, 1912, Charles G. Cole, the appellee, recovered a judgment in the district court of Bowie county for $12,000 against the appellant, as damages for personal injuries. It is alleged in the plaintiff’s original petition that on the 27th of October, 1911, he was in the appellant’s service as a freight brakeman, and that, while walking on the running board of the train with which he was connected, he fell and sustained the injuries for which he sued. The negligence relied on is thus stated in the petition: “That the defendant, its agents, and employes had permitted, placed, and caused to be placed a car in said train, the running board of which was loose, decayed, split, and broken; said car also had upon its top certain loose planks, scantling, and poles, which obstructed the running board of said car; that the running board was on the top of said car, and it is customary and required to be placed on all cars entering into trains; the same being placed there for the purpose of being used as a walkway by the plaintiff and others in walking on such train.” It is further alleged that, while the plaintiff was passing from the rear of the train to the front, walking along this running board, some portion of the loose material lying on the ear “or of the running board” caught his pants at his foot, and he was thereby caused to fall from the top of the ear to the ground; that the fall resulted in serious bodily injuries, which are set out in detail in the petition. He asked for a judgment for $25,000.

The testimony shows that Oole entered the service of the appellant railway company as a brakeman in August, 1911; that on the night of October 27th the freight train with which he was connected left Waco for Tyler between 8 and 9 o’clock. The train consisted of about 38 cars, among which were several called “camping outfit cars.” These were placed in the train near the engine. Besides the engineer and fireman, the train crew consisted of C. E. Murphy, the conductor, E. S. Plasterer, the rear brakeman, and the appel-lee, Cole, who was the head brakeman. There was lying on the top of one of these “outfit cars” some 2x4 lumber 16 or 18 feet long, and probably some other material, designed for use in handling hand cars. These “outfit cars” were to be set out of the train at Axtell, the next station, which was about 10 or 12 miles from Waco.

Cole testified that soon after the train left the Waco station he was directed by the conductor to go to the front of the train and notify the engineer that the “outfit cars” were to be left at Axtell; that in obedience to this order he climbed on the top of the train and started to the front, walking along on the running board in the usual way. The train was at the time traveling at the rate of about 10 or 12 miles per hour. When he reached these “outfit cars,” and while passing over one of them, the cuff of his pants was caught by some obstruction, which caused him to fall from the car to the ground. He testified: “After I had got pretty close to the engine — that is, three or four cars from the engine — something caught my pant leg, or foot, and kinder threw me forward like, and I went to regain by balance, and I fell backward, and fell off the car on the right side of the track — that is, the engineer’s side. * * * I could not describe the obstruction on the running board that caught me, but it was either a plank or stick caught my leg and caused me to lose my balance. It happened in an instant, and I couldn’t give an accurate description of it. I had not seen the obstruction before I was caught. I had no occasion to go on the train before that. * * * Just as my pants caught on something I observed some obstruction on the running board; it was either planks or poles, but, as I said a while ago, I am unable to give an accurate description because I was just going, over the train as I always do.”

On cross-examination his attention was called to answers made by him when his deposition was taken on a previous occasion, and the following is shown by the record: “Q. But you said you went to step over the obstructions. A. Yes, sir; I say so now. Q. Well, if you went to step over them, you saw them, didn’t you? A. I said before this thing caught my pant leg when I went to step over the obstruction. Q. You state here that you went to step over the obstruction, and while stepping over your pants legs caught? A. I swore that, yes, sir; but I didn’t explain as fully there as I intended to explain now.” He further stated that he was rendered unconscious for a time by the fall; that he received injuries on his head, shoulders, body, legs, arms, and back; that he lay upon the ground some time before he regained consciousness. The place where he fell was about a mile from the East Waco Depot. When he regained consciousness he discovered by the lights the direction of the depot, and walked back to the tower house. He there called upon the operator for assistance, and was assisted to go up into the latter’s room, which was upon an elevated platform, and remained there for something like a half hour. He was then taken to a hotel, where he was examined by one of appellant’s surgeons. On the next morning he was sent to Tyler, and there examined again by another railway surgeon. Prom Tyler he was sent to the railway hospital at Texarkana, where he was under treatment about 20 days. After leaving the hospital he remained in Texarkana five or six weeks, and during a part of that time was under the treatment of Drs. J. K. Smith and W. E. Womack, physicians of his own selection, and who testified in his behalf in the trial below. He afterwards went to his old home in Allensville, Ky., where he remained ,about three months, and while there was examined by Dr. J. L. Parmer.

At the time of the trial in the court below Cole claimed that he was still suffering from an injury to his kidneys. He testified as follows: “As far as I could see the effect that injury had on me was that there was pus and blood in my urine, when I would urinate. I first began to pass pus and blood while in the Cotton Belt Hospital; I only noticed the blood at first. I could not tell just what proportion of the urine was pus or blood. It was in' sufficient quantities so that I could see it with my eyes. That condition and the flow of that description is continuing now. I think I noticed it this morning. My condition all this time has been such that I suffer a great deal, especially at night.” Cole further testified that he was unable to perform any heavy manual labor, and that riding on trains would cause him pain.

Conceding that the appellant was guilty of the negligence charged, and that Cole has since that time been suffering from pyelitis or some form of kidney disease as claimed by him, the further question arises, Is the evidence sufficient to justify a finding that the negligence attributed to appellant was the real cause of that disorder? In other words, did Cole in fact fall from the train as stated by him? Or, if he did, are the injuries from which he has since suffered the result of that fall? The burden rested upon Cole to produce evidence sufficient to warrant an affirmative answer to all of these questions, and unless he has done so the verdict should not be permitted to stand.

The only evidence adduced to prove that Cole did fall from the train, as alleged, is his own testimony. No other person witnessed the occurrence, or discovered him in a situation which could be considered as corroborative of his statements concerning such a fall. It is true a broken lantern was found by another brakeman some time afterward near the place where Cole says he fell, but the conclusion that this was the lantern carried by Cole on that occasion, and that it was broken as the result of the fall, and not intentionally for the purpose of deception, must depend upon Cole’s own testimony. There was much evidence introduced tending to impeach Cole’s veracity. It was shown by his own admissions that in 1910, while treasurer of a local railway organization in Tennessee, Cole was found short in his accounts to the amount of over $900 ; that a criminal charge was thereafter preferred against him, upon which he was arrested and lodged in jail; that he afterwards procured the money necessary and made the shortage good, and he was then discharged. In explaining how the shortage occurred he testified that after drawing the money from the bank in which it had been deposited he was passing a saloon and was invited in by some acquaintances, with whom he took a drink of liquor. He then walked to the fear end of the building and sat down and soon lost consciousness. When he awoke he was in his own room, and the money was gone. He admits that he had been drunk, and endeavors to leave the impression that he was robbed while in that condition.

Of course, such an occurrence as that detailed here is possible, but it has so often been used as a subterfuge by those who really intend to perpetrate a fraud that it is now of doubtful utility in accounting for the .disappearance of trust funds. 1-Ie also admitted that in February, 1911, a few months prior to his entry into the service of the appellant, he was in the employ of the Missouri, Kansas & Texas Railway Company in Oklahoma, and while attempting to mount a car fell and sustained painful injuries to his head and back and over the region of his kidneys. He aft-erwards compromised a claim against that railway company for damages resulting from those injuries for the sum of $1,000. On cross-examination in the trial below he denied that while in the hospital at Sedalia, Mo., suffering from those injuries, he had written a letter to an attorney in Denison instructing him to file a suit against the Missouri, Kansas & Texas Railway Company for damages, in which letter he referred to his then existing injuries, and claimed that they were serious and painful. The evidence contradicting him upon that issue is very strong indeed. Cole also admitted that in August, 1911, a few months after settling with the Missouri, Kansas & Texas Railway Company, he made a written application for employment in the appellant’s service, and that in that application he intentionally suppressed the fact that he had been injured while in the service of the Missouri, Kansas & Texas Railway Company; that he did this because he had been informed that if it was known to the appellant’s officers that he had ever been in the service of that company he would be rejected. He claims that when he made this application he had entirely recovered from Ms Oklahoma injury; that he underwent at the hands of a surgeon employed by the appellant a thorough physical examination, including an examination of his kidneys and a test of his urine. As to this latter fact he is contradicted by the examining physician himself, and circumstantially by the blank application filled out at the time, and which does not indicate that such an examination was made or required.

It cannot be said, as a matter of law, that the testimony of a witness whose veracity has been impeached should be entirely disregarded, even though it be shown that he is utterly unworthy of belief. Impeaching evidence is to be considered by the jury or the court only in determining what weight should be given to the testimony of the witness upon the particular occasion. If the grounds for discrediting Cole’s testimony concerning his fall and the injuries claimed were limited to this impeaching evidence alone, there would not be sufficient reason for disturbing a finding of fact based exclusively upon his testimony. But there are other facts wMch tend strongly to negative the truth of his statements. The railway surgeon who examined Cole within a few hours after the time he says he was injured testified that he found no external .evidences of a fall. Dr. J. K. Smith, who examined him about 20 days later, testified to the same effect. In fact, there seems to be no pretense that any such external evidences ever existed upon Cole’s body. It may be possible that he could fall from the top of a freight ear wMle moving at the rate of 10 or 12 miles an hour, strike the ground with such force as to render him unconscious for several hours thereafter, and yet receive no wounds or bruises on the surface of the body visible to the eye of an experienced surgeon. But in our opinion such an occurrence is so improbable that the absence of such external indications of a fall should be regarded as strong evidence that none did in fact occur. When we consider the fact that Cole did not scruple to suppress the truth when seeking employment at a time when he thought it to his interest to do so, it is taxing credulity to believe he would be more truthful when he had thousands of dollars at stake, and was testifying to facts concerning which he could not be contradicted by others, and under circumstances where the falsehood could not be exposed. In this state of the record it is difficult to understand why so much credence was given by the jury to Cole’s testimony, and so little to the facts and circumstances which tended to contradict him.

But assuming that a finding by the jury that Cole fell from the car, in the manner described by him, should not be disturbed because of a mere conflict in the evidence, there is another important fact which must also have been determined in his favor. Before a verdict could have been rendered for him it was necessary to find that the disease from which Cole was suffering resulted from that fall. If that disorder could not be legally attributed to the fall the other injuries are too slight to warrant a verdict for $12,000. In passing upon this particular issue it may be accepted as true that Cole was a sick; man from the time he left the hospital at Texar-kana till he withdrew from the treatment of his physicians, and that he had traces of the disease at the time of the trial. Still, we do not think the evidence is sufficient to support the finding that his injuries resulted from the alleged fall. Dr. Smith, who testified for him upon the trial below, states that when he examined Cole he seemed at the time to have been suffering from renal colic — stones in the kidneys. He gave it as his opinion that his disease was pyelitis, or inflammation of the pelvis of the kidneys; that this condition might result from a traumatic injury or from the accumulation of stones in the kidneys. When given a history of the injury received by Cole in Oklahoma in February, 1911, and that of which he complains in this suit, Dr. Smith stated that his condition might be attributed to either injury. He said; “The symptoms that he (Cole) had indicated stones or foreign substaaice in the kidney as much as anything else — m fact, more than anything else.” (Italics ours.) Dr. Smith also testified that he told Cole of two or three tests by which it could be definitely ascertained whether or not he had stones in the kidneys, one of which was by the use of the X-ray — a simple and speedy method — but that Cole did not agree to submit to any of them. Dr. Farmer of Allensville, Ky., under whose treatment Cole placed himself after his return to that state, testified that he made a close examination of Cole, and discovered pus and blood in his urine, but that he did not know what caused the trouble. On cross-examination he said: “It is a fact that when I was treating Cole I could not be positive whether he was suffering from hemorrhage from the kidneys or bladder. I was not able from the examination I made of him to determine positively the diagnosis of the case, and I insisted on Cole going with me to Nashville, Tenn., and have a shadowgraph made of the parts affected, and I told Cole that with an examination of that kind I could determine positively as to the diagnosis. The symptoms that Cole had were such as often indicate the existence of renal colic, and were such as would usually indicate that he had some foreign substance in one or both of his kidneys. A foreign substance in the kidneys will produce renal colic. Renal colic, or foreign substance in the kidneys, will produce hemorrhage of the kidneys.” It is conceded that Cole also declined to accompany Dr. Farmer to Nashville for the purpose of having the examination referred to made. The evidence presents this situation: The appellee has a local disorder, designated by the term “pye-litis,” or inflammation of the pelvis of the kidneys. Dr. Farmer states that it might be an affection of the bladder only. Pyelitis, according to tbe experts, may be attributed to either of two possible causes — a fall from the car, or the presence of some foreign substance in the kidneys. Taking the testimony of the appellee’s own witnesses, the physicians whom he had selected to treat him, two of them, Drs. Smith and Farmer, are more inclined to attribute his disorder to a cause other than the fall — the presence of some foreign substance — while the other, Dr. Womack, merely says that it might be attributed to a fall such as that which Cole describes. The fact that Cole declined to avail himself of an opportunity to have an examination made that would disclose the true cause of his trouble is not without significance in the determination of a question about which he probably knows much more than others. While the jury are the judges of the facts, they have no right to arbitrarily decide such issues without a proper regard to legal evidence upon which they should rely in forming their conclusions. In concluding that Cole’s injuries were attributable to the fall from appellant’s train, and not to the presence of stones or some foreign substance in the kidneys, the jury, we think, decided against the great weight of the evidence.

It is the general rule in appellate courts to leave the verdicts of juries undisturbed, where there is any credible evidence upon which they may be based. Such courts have not the right to reverse and render a judgment because the verdict is against the great preponderance of the evidence, but they can reverse and remand for a new trial. Irving v. Freeman, 155 S. W. 931. After carefully reading the statement of facts contained in this record, we are so thoroughly impressed with the belief that the verdict rendered in this ease is wrong that we feel that an affirmance of the judgment would be a dereliction of duty. To dismiss this question with the mechanical dictum that there was some evidence to sustain the finding of the jury would probably be in line with some precedents, but in this instance would, we feel, be the evasion of a primary obligation resting upon all appellate courts — to reverse a judgment for errors which affect the substantial rights of the parties.

Complaint is made of the following portions of the court’s charge: “If you believe from the evidence that the running board on one of the cars in the train on which plaintiff was brakeman was broken or out of repair, etc., * * * that such running board was, by reason thereof, not in a reasonably safe condition for use, and that its condition was due to failure of the defendant to use ordinary care to put said running board in a reasonably safe condition for use and to keep it in such condition, and if you further believe from the evidence that the plaintiff, while in the discharge of his duty as brakeman, was walking on said running board, and the leg of his pants caught in said running board or some obstruction on it or near it, and that his pants leg caught because of the defective condition of the same, and that he was thereby thrown down and fell off said car and was hurt, then you will find for the plaintiff; unless you find'for the defendant on the ground of assumed risk under subsequent paragraphs of this charge. However, if you believe from the evidence that the running board of the car was broken or out of repair so it was not reasonably safe for use * * * still, if you believe from the evidence that plaintiff knew the condition of said running board, or could and would have known of its condition if he had used that ordinary circumspection which an ordinarily prudent man would have used in the particular employment of a freight 'brakeman, and with said knowledge he undertook to use and did use said running board and was hurt, then he assumed the risk and can’t recover, and you will find for the defendant.” The specific objection to this charge is that it submits facts not presented in the evidence. A fair construction of the appellee’s testimony as to how he happened to fall makes it clear that the bottom of his pants leg was caught by some obstruction lying on the running board, and was not the result of its broken condition or of its being out of repair. While this error might be technical, and one which should not ordinarily be considered sufficient to justify the reversal of a judgment, otherwise unassailable, it is difficult to say it did not in this instance have some influence in causing a verdict which we consider at variance with the great weight of the evidence.

The assignments not discussed are overruled.

The judgment is reversed, and the cause remanded for another trial. '

On Motion for Rehearing.

In view of another trial, and in order to prevent any misapprehension from what was said in the original disposition of this case, we expressly disclaim any purpose of passing upon the admissibility of what is referred to as testimony tending to impeach the credibility of the appellee .as a witness. All of that testimony appears in the record as having been admitted without objection. It is adverted to merely as a part of the history of the case, and as indicating the great leniency extended by the jury to the appellee in passing upon evidence introduced in his behalf. Whatever may be said as to the admissibility of specific acts tending to show dishonesty and moral depravity, as a method of impeaching a witness, when met by some appropriate objection, it is difficult to understand why such conduct, when confessed by the witness himself on cross-examination, and admitted in evidence without objection, may not be considered in passing upon bis credibility. But in reaching the conclusion that the verdict rendered in this case was without proper support we are not required to pass upon the effect of impeaching evidence, or to settle a conflict in the testimony. A careful analysis of the evidence elicited from the appellee’s own witnesses convinced us that he had failed to discharge the burden which the law placed upon him to make out a case for the liberal sum recovered.

Under the pleadings the appellee assumed the burden of proving at least three essential facts in order to justify the damages awarded: (1) Negligence on the part of the railway company in failing to keep the running board of the train in proper condition; (2) that this failure caused the appellee to fall from the train; (3) that the injuries to his kidneys resulted from that fall. We are frank to concede that whatever may be said of what is offered in the record as impeaching evidence, or of the conflicts between Oole and other witnesses upon issues of fact, we should not feel justified in disturbing the findings of the jury in his -favor as to the negligence charged and the fall from the train. Proof of the remaining fact — that his kidney disease was due to that fall — is just as important as either of the others. Upon this issue Cole could only say that his symptoms developed after his fall. He was not an expert, and could not be expected to distinguish a mere sequence from a physical consequence. For proof that the fall did cause the injury we must look to the testimony of the attending physicians. One of these, Dr. Parmer, who testified by deposition, expressed no opinion favorable to the appellee upon that issue. Another, Dr. Wo-mack, also testified by deposition. What he said is sufficiently set forth in the original opinion, and need not be here repeated. Dr. J. K. Smith, another of Cole’s physicians, treated him longer and observed him more closely than either of the others. He testified orally for Cole upon the trial, and at considerable length. We here give extracts from his testimony which we think sufficiently disclose his opinion as to the cause of Cole’s injury: “If the plaintiff here had permitted me to make any of the tests that I suggested to him, by which I could really tell what was the matter or what caused his trouble, and I had found that it was stone or some other foreign substance, then I would not have attributed the trouble to cither of those injuries any more than they might have irritated it. It would not have taken any history at all. By the X-ray test you could tell whether it was stones or not, and I suggested that test, but he did not agree to that. If there is foreign substance in the kidneys such as I have been operating on and taking out of the kidneys recently, it is not produced from an injury, but from a diseased condition of the mucous membrane, something started in the process of crystallization. In severe cases of renal colie I always attribute it to stones until I negative it by other examinations. I always do until I can find out. Of course, it is not always so, so far as that is concerned. It is not as severe when it is produced by blood as when it is produced by stones. The symptoms that he had indicated stones or foreign substance in the kidney as much as anything else, in fact more than anything else. The reason I suggested it was because he had had no previous attacks, you know. Stones are a long time in forming; they are of slow growth. The symptoms I discovered might be caused by tuberculosis. That is a disease of the kidneys that causes blood and pus to come out. * * * The symptoms of the plaintiff indicated more than anything else stones or foreign substance in the kidney.”

How a jury, uninfluenced by prejudice or sympathy, could under such evidence find in favor of the appellee upon that particular issue is not easily understood. We fully appreciate the deference with which our courts are accustomed to treat the findings of fact embraced in the verdicts of juries, and we have no inclination to depart from the well-established rule. In the case of Irving v. Freeman, cited in the original opinion, the Supreme Court said: “It is settled in this court that a court of civil appeals can reverse a judgment of the district court when against the preponderance of the evidence, and remand the case.” The law does not lodge such power for nothing, but it is contemplated that in a proper case it will be exercised. A failure to set aside a verdict, when the facts justify the conclusion on the part of an appellate court that an injustice has been done the defendant, would be as gross a dereliction of duty as to inconsiderately disturb a verdict for the plaintiff.

We have again, in response to the arguments presented in the motion for a rehearing, carefully gone over the evidence, and are still of the opinion that the ends of justice demand the reversal of the judgment rendered in this case. The evidence before us warrants the conclusion that not only was there a great preponderance against the appellee, but it is difficult to find sufficient for even the most partial mind to justify the findings of the jury upon the last and important issue involved. The record also justifies the conclusions that there were some facts material to be considered about which the jury upon the first trial were left to conjecture, but which it is possible to reduce to greater certainty upon another trial.

The motion, for a rehearing is overruled.


author: DUNKLIN, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. TRUE BROS.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 29, 1913.
    Rehearing Denied May 10, 1913.)
    1. Appeal and Error (§ 1099) — Subsequent Appeals — Questions Concluded by Former Decision— Sufficiency oe Evidence.
    Where the Court of Appeals held that the evidence was not sufficient to show that the railroad agent had misrouted a shipment of live stock, that decision is the law of the case on a subsequent appeal, where the evidence at the . second trial was substantially the same.
    [Ed. Note. — For other eases, see Appeal and Error, Cent Dig. §§ 4370-4379; Dec. Dig. § 1099.]
    2. Carriers (§ 228) — Carriage oe Live Stock — Sufficiency oe Evidence — Mis-routing.
    In an action for damages caused by delay in shipping cattle due to an alleged misrouting of the shipment, evidence held insufficient to warrant a recovery based upon that claim.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    3. Carriers (§ 228) — Carriage oe Live Stock — Evidence—Admissibility.
    Where the evidence was not sufficient to show that the railroad company had misrouted a shipment of cattle, evidence as to damages occasioned thereby was inadmissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    4. Carriers (§ 228) — Carriage oe Live Stock! — Evidence — Judgment Against Connecting Carrier.
    Where the plaintiff had brought an action against three connecting carriers for delay in the shipment of live stock, and the court • ruled in the second trial against one of them, after final judgment had been entered as to the other two, that the plaintiff could not recover for any delay resulting from the negligence of the connecting carriers, there was no error in refusing to admit the judgments as to them in evidence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from District Court, Wise County; J. W. Patterson, Judge.
    Action by True Bros, against the St. Louis, Brownsville & Mexico Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also, 140 S. W. 837.
    McMurray & Gettys, of Decatur, Claude Pollard, of Kingsville, C. M. Robards, of San Benito, and Kleberg & Stayton, of Kingsville, for appellant. J. A. Templeton, of Ft. Worth, and R. E. Carswell, of Decatur, for appellee.

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

   DUNKLIN, J.

True Bros, shipped a train.load of cattle from Norias, Tex., to Ringgold, Tex., and this suit was instituted to recover damages for injuries sustained by the cattle as a result of delay and rough handling en route. The cattle were transported from Norias to Houston over the St. Louis, Brownsville & Mexico Railway, from Houston to Ft. Worth over the Trinity & Brazos Valley Railway and from Ft Worth to their destination, Ringgold, over the Chicago Rock Island & Gulf Railway. The suit was instituted against all three of said railway companies, and has been twice tried. Upon the first trial judgment was rendered in favor of the Trinity & Brazos Valley Railway Company, but against the two other companies. No appeal was prosecuted by the Chicago, Rock Island & Gulf Railway Company from that judgment, but the St. Louis, Brownsville & Mexico Railway Company appealed. That appeal was determined by the Court of Civil Appeals for the Sixth Supreme Judicial District at Texarkana, who reversed the judgment rendered against that company, leaving the judgment in favor of the Trinity & Brazos Valley Railway Company, and against the Chicago, Rock Island & Gulf Railway Company, undisturbed. The case then went to trial against the St. Louis, Brownsville & Mexico Railway Company, resulting in a judgment in favor of the plaintiff against that company, and from that judgment the defendant has appealed.

The decision upon the former appeal appears in 140 S. W. 837. The two issues submitted upon the last trial as a basis for a recovery by plaintiff were the alleged negligence of that company in failing to transport the cattle from Norias to Houston with reasonable care and dispatch, and the delay in transporting the cattle to destination caused by a wrongful misrouting of the shipment by appellant. The jury were instructed to allow damages upon an affirmative finding upon either or both of those issues. The evidence shows that the cattle were purchased by plaintiffs' from the King ranch, and at the time of the purchase they were located on the range near the station of Norias, which is about 50 miles from Kingsville. On the 5th or 6th of April, 1909, E. C. True stopped at Kingsville en route to Norias for the purpose of shipping the cattle. While in Kings-ville he, in company with Caesar Kleberg, manager of the King ranch from whom the cattle had been bought, went to see William Dougherty, appellant’s agent, for the purpose of making arrangements to ship the cattle. In that conversation True informed Dougherty that he desired to ship about 2,000 head of cattle to Ringgold via the appellant’s road to Sinton, there to be delivered to the San Antonio & Aransas Pass Railway to be carried to Waco, and there delivered to the Missouri, Kansas & Texas Railway Company to be carried to Ringgold. At that time the cattle were on the range, had not been selected nor rounded up, and were not ready for shipment. In that conversation Mr. Dougherty informed E. G. True that he did not have the cars to route the cattle as True desired, and would have to ship them over the route that they were afterwards shipped. E. C. True testified that he requested Dougherty to make an effort to get them, that witness would go on to the ranch and proceed to round up the cat-tie, and that Dougherty promised to try to get the cars and to let him know later, if he could get them.

Kleberg, who was introduced as a witness for plaintiff, testified that Dougherty told True in that conversation that if he desired the shipment to be routed as requested, it would be necessary for him to place an order for cars for that routing, and that it would require at least ten days to get the cars, that quick time had been made with Mr. Johnson’s cattle, who had just shipped- three trains shortly before, via Houston, and that thereupon Mr. True said it would be all right if they would give him the same kind of a run. There was no evidence that any order was ever placed with Mr. Dougherty at that time, other than the request by True already mentioned. True and Kleberg then proceeded to the ranch, and, after selecting and rounding up the cattle, placed them in appellant’s shipping pens at Norias on the night of April 15th, and they were loaded in the cars early on the following morning. There was no station agent at Norias, and after the cattle were placed in the shipping pens, Kleberg, acting for True, called up Dougherty over the telephone at Kingsville, and asked if the cattle could be routed by way of Sinton. Mr. Kleberg, testified that Mr. Dougherty replied that if Mr. True wanted the cattle routed that way, he would have to place an order for ears for that routing; that the cars that appellant was able to furnish for handling the cattle had been received from the Trinity & Brazos Yalley Railway Company and the Santa Fé Railway Company, and that by reason of that fact the cattle would have to be routed by way of Houston, and that it would require at least 10 days before the cars could be received for the routing requested.

On the former appeal it was held that the evidence failed to show a refusal of appellant’s agent to route the cattle over the roads chosen by True, and therefore there was no sufficient showing to entitle plaintiffs to recover damages resulting from the alleged misrouting. That decision is the law of the case, and must be given controlling effect now. Moore v. Chamberlain, 152 S. W. 195; Harcourt v. Redmon, 149 Ky. 612, 149 S. W. 938; H. &. T. C. Ry. v. Buchannan, 42 Tex. Civ. App. 620, 94 S. W. 199.

So far as we are able to determine the evidence upon which the claim of misrouting is based substantially the same on the last trial as upon the former trial, but whether that is true or not we are of the opinion that there is no evidence in the record before us sufficient to support such a claim. Hence we are of the opinion that the court erred in submitting that issue to the jury, as insisted by appellant in its eighty-eighth assignment of error.

From that conclusion it follows that the court also erred in admitting evidence to show damage resulting from such misrouting as insisted by several assignments of error not necessary to be enumerated, and also in submitting the issue whether or not E. C. True'withdrew his demand for the routing of the cattle, and if so, whether or not he was induced to do so by the alleged statements on the part of William Dougherty.

As the court expressly instructed the jury that no damages could be allowed for injuries to the cattle resulting from the negligence of the Trinity & Brazos Yalley Railway Company and the Chicago, Rock Island & Gulf Railway Company while being shipped over those two roads, there was no error in refusing to admit in evidence the former judgment in favor of the Trinity & Brazos Yalley Railway Company and against the Chicago, Rock Island & Gulf Railway Company, and evidence of the payment of the latter judgment.

For the errors indicated, the judgment is reversed, and the cause remanded for another trial.


author: McMEANS, J.

text:
    OSWALD REALTY CO. et al. v. BROUSSARD et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 24, 1913.
    Rehearing Denied June 5, 1913.)
    1. Brokers (§ 49)—Contract bob the Sale of Land — Performance of Commission — Execution of Contract.
    Where a contract for the sale, of land procured by plaintiffs as brokers provided that the purchasers should deposit $10,000 as a forfeit on failure to perform, and also that in such event the deposit should be complete satisfaction of all claims for damages by the sellers, the contract was not one which the sellers could enforce against the buyers, and, they having elected not to perform, plaintiffs could not recover commissions on the theory that they had earned their commissions because they had secured a binding and legally enforceable contract.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.]
    2. Brokers (§ 60)—Commissions—Contract of Sale—Performance.
    Where a contract for the sale of land procured by plaintiffs as brokers contained a condition that the buyers should first deposit $10,-000 in a bank as earnest money to be forfeited on failure to complete the purchase, and the buyers not having deposited the earnest money, and having refused to do so until fhe owners had cleared the title, they entered into a written contract with the owners by which each party released the other from liability under the contract, such release without plaintiffs’ consent thereto did not adversely affect plaintiffs’ rights so as to. entitle them to recover.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. §¡60.]
    3. Brokers (§ 64)—Action for Commissions — Performance of Services — Procuring Purchasers.
    Where a contract for the sale of land procured by plaintiffs as brokers required the purchasers to deposit earnest money to be forfeited in case of their failure to perform, and this they failed and refused to do, they were not willing and ready to purchase the land.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. § 64.]
    Appeal from District Court, Jefferson County; D. B. Hightower, Judge.
    Action by the Oswald Realty Company and others against J. E. Broussard and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    W. G. Reeves and Oliver J. Todd, both of Beaumont, for appellants. Taliaferro & Armstrong, of Bryan, and Barry & Burges, of Beaumont, for appellees.

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

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

   McMEANS, J.

A. Oswald and E. T. But-lin, real estate brokers, doing business under the firm name of Oswald Realty Company, plaintiffs, brought this suit against J. E. Broussard an“d Ben Hebert, defendants, to recover $32,820 as the alleged agreed compensation to be paid! to them by defendants for finding purchasers and making sale of about 12.860 acres of land.

Plaintiffs, in substance, alleged that the defendants listed with them, as real estate brokers, the lands in question for sale with the understanding and agreement that defendants were to have $13 per acre net for the land, and that plaintiffs should have for their services in making sale all above $13 per acre that they could get for it; and the sum sued for is the difference between $13 per acre and the price for which plaintiffs allege they sold the land. They alleged that they secured purchasers in the persons of A. Gregory and E. M. Prindle, who were ready, willing, and able to buy the land, and with whom they, as defendants’ agents, entered into a contract for the purchase and sale, but that said contract was not agreeable in all its terms to defendants, whereupon defendants took said purchasers off the hands of plaintiffs as such agents and personally contracted with them, and that said purchasers and defendants personally entered into a binding contract of purchase and sale. The contract is attached as an exhibit to plaintiffs’ petition and will hereinafter be more particularly referred to. It was further alleged that said contract was a valid and binding contract of purchase and sale and was capable of specific performance in the courts, and was so agreed and acted upon by the parties thereto, and that the acceptance of said purchasers- and entering into said contract with them' amounted in law to a sale, wherefore the agreed compensation was earned. It was further alleged that independently of the binding force and effect of the written contract, and independently of whether the same was capable of specific enforcement, by the procurement by plaintiffs of purchasers who were willing, ready, and able to buy and to pay the agreed consideration' specified in the contract, plaintiffs, had earned the agreed compensation and become entitled thereto. It was further averred that while said contract of sale was in full force a new contract was entered into by and between the defendants and the purchasers, Gregory and Prindle, without plaintiffs’ knowledge or consent, by the terms of which the contract of sale was canceled and annulled, and that the failure to consummate the sale was through the wrongful action of defendants in releasing the purchasers, and that defendants were thereby estopped from calling in question either the validity of the contract of purchase or the readiness, willingness, or ability of the purchasers to buy.

Defendants answered, denying that the contract entered into by themselves and Gregory and Prindle was an absolutely binding contract of purchase and sale, and denied that Gregory and Prindle were accepted by them as purchasers by a binding and legally enforceable contract. They alleged: That defendants in December, 1908, or January,-1909, made an agreement with plaintiffs to the effect that if the latter would sell their land within 60 days to allow them as compensation all over $13 per acre that they sold the land for, that some time after said agreement, and on February 1, 1909, defendants were informed by plaintiffs by letter that they had negotiated a sale of the land with Gregory and Prindle, and that they had signed a contract with them, stating terms, etc., of such sale. That on February 3, 1909, Broussard repudiated said contract mainly because Gregory and Prindle had not paid as earnest money 10 per cent.'of the purchase price as agreed between plaintiffs and defendants. That on February 26, 1909, the condition as to payment of the 10 per cent, not having been complied with, defendant Broussard wrote to plaintiffs that if the 10 per cent, was not paid in ten days the trade would not be further considered. That on March 13, 1909, Gregory and Prindle came to Beaumont and were introduced to defendant by plaintiffs, who represented them to be reliable and trustworthy and financially able to buy the land and pay therefor. That relying upon such representations, which, they charge, were false and fraudulently made, defendants were induced by plaintiffs to enter into an agreement with Gregory and Prindle to sell them the land, but that it was expressly agreed that the latter should deposit in some bank to be designated by defendants the sum of $10,000 as earnest money or in escrow, which was to be paid by such bank to defendants should said Gregory and Prindle fail or refuse to buy said land after approval of title, which said sum was to be received and accepted by defendants in full satisfaction of all claims for damages against Gregory and Prindle in case they failed or refused to comply with such contract, or to be applied on the first payment of purchase money if they should comply with their agreement. That said Gregory and Prindle, in the presence and with the knowledge of plaintiffs, represented that they would have said sum of money in the People’s Bank of White Hall, Ill., within ten days from the date of said agreement, and it was agreed and understood that said Prindle should draw a draft, to be indorsed by said Gregory, on said People’s Bank, payable ten days after date to the First National Bank of Beaumont. In consideration of which agreement and said representations aforesaid, defendants were induced to and did sign a contract in which they agreed to sell said Gregory and Prindle their land, but said contract was conditioned upon the payment of said sum of $10,000 cash into the bank to be held as escrow or as earnest money for the purpose and upon the condition above stated. That in accordance with said contract said draft was drawn by Prindle (and indorsed by Gregory) on the said People’s Bank payable to the First National Bank of Beaumont for the sum of $10,000. That the same was duly presented for payment at maturity and payment was refused by said People’s Bank. That defendants notified plaintiffs that said check had been dishonored as soon as it was returned, and, as it was represented to defendants that said Prindle would place the money in said People’s Bank within a short time, defendants caused said draft to be sent to said People’s Bank and there held to await the payment of the money for more than two months. That neither of said parties during all that time ever deposited the money in said bank to pay said draft, and defendants, finally being convinced that said draft never would be paid, ordered it returned, and they again notified plaintiffs of their inability to collect said draft, and they had full knowledge of the fact that said Gregory and Prindle and that defendants would make no further effort to consummate said sale. That said $10,000 was to be paid as aforesaid within ten days after the execution of said contract, and time was of the essence of the contract, and when said Gregory and Prindle failed to pay said sum within the time stipulated defendants were no longer bound by said contract and had a right then and there to cancel same, or at any time thereafter. That the payment of said sum of money was a condition precedent which had to be performed by said Gregory and Prindle before they had any right under said contract, and defendants had a right to demand the payment of said sum in accordance with the terms of said contract,. and said Gregory and Prindle had no right that they could assert or maintain under said contract until said $10,000 was paid as agreed upon. That their failure so to pay said sum was a breach of said contract; wherefore, defendants say that said contract was not a sale nor an enforceable contract of sale, but merely an executory contract to sell, based upon a condition precedent which was never performed, and that, as plaintiffs’ right to compensation depended entirely upon the performance of their part of the contract by Gregory and Prindle, they are not entitled to recover in this suit.'

The pleadings of the parties are of great length, and the substance of only so much of the same is here stated as is necessary to an understanding of the points upon which we base this decision. The case was tried by the court without the assistance of a jury and resulted in a judgment for defendants. Plaintiffs have appealed.

The evidence in the record justifies the following fact findings: Plaintiffs were real estate brokers, doing business in Beaumont. Defendants, who resided.in Beaumont, owned something over 12,000 acres of land in Jefferson county and desired to sell. In December, 1908, or January, 1909, defendants listed their land with plaintiffs for sale, agreeing to take $13 per acre for the same, and further agreeing that plaintiffs could have as their compensation for effecting a sale all they might get for the land over and above $13 per acre. Plaintiffs diligently sought to find a purchaser, and in a short time interested A. B. Gregory of Missouri and B. M. Prindle of Illinois in the land, and finally made a proposition to sell them the land for $200,000, and this offer was accepted. A contract in writing was entered into by and between plaintiffs and Gregory and Prindle, but the same was not introduced in evidence, nor are the terms stated further than that to bind the contract Gregory and Prindle delivered to plaintiffs their check for $500. On February 1, 1909, plaintiffs by letter informed defendants of the execution of the contract and further said: “On depositing their cheek and with the understanding with you while in our office, we have given them 60 days from the 24th day of January to make their arrangements and close the trade. We are expecting Mr. Gregory here again next week when we will take up the matter with you of furnishing abstracts, which we understand you have practically up to date. We have no doubt about the trade going through, as the purchasers practically had their arrangements made for the money before they came down, and if their present plans do not fail we will be able to close with them in the next 20 or 30 days on a cash basis.” In reply defendant Broussard on February 3, 1909, wrote plaintiffs, saying: “* * * jn order to make the matter regular, it will be necessary for the contract of sale to be signed by myself and the earnest money put up in escrow in a bank, with the understanding that these people will take the land and pay for the same according to the stipulated terms before the expiration of 60 days from the 24th of January. I simply write this to you that we may get the matter shaped up in good form, and I do not consider that any deal has been closed until they have put up the earnest money, and until I have signed the contract of sale. X wish also to notify you that, in the event the trade is not closed up by depositing the earnest money by the time your contract with me for the sale of the land expires, I will not renew the same at the price X am now asking for the land.” On February 26, 1909, defendant Broussard, who throughout the entire negotiations was acting for his codefendant Hebert, as well as for himself, again wrote plaintiffs, and after referring to his letter of February 3d said: “ * * * Beg to say I do not consider .that any sale has been made as .they did not put up 10 per cent, of the purchase price, as earnest money, in accordance with my request; and as your contract expired on the 24th inst., I wish to notify you that unless they come in within th,e next ten days and put up this ten per cent, of the purchase price you need not consider the trade any further, as I do not care to tie up my lands any longer. I give this notice and margin of ten days in order to give them ample time to put up the ten per cent, of the purchase money preparatory to examination of title .to the property, and if they do not put up this earnest money within the specified ten days from date hereof, you will ifiease consider all negotiations for the land off, and suggest you wire them to that effect.”

After the date of this letter Gregory and Prindle went to Beaumont and were introduced by plaintiffs to defendants, and negotiations for the purchase of the land were resumed, resulting in a contract between Gregory and Prindle on the one part and defendants on the other, made on March 12, 1909. This contract is quite lengthy and will not be set out in full, but we will state so much of the terms thereof as we think essential upon the questions here involved. The first section is merely descriptive of the various tracts of land, the subject of the contract, which aggregated 12,860 acres.

The second section contains the stipulation that defendants agreed and bound themselves to. sell and Gregory and Prindle to buy said lands at the price of $200,000 for cash, if the purchasers should so elect, or one-fourth in cash and the remaining three-fourths in eight equal yearly payments, providing for the giving of notes therefor, the reservation of the vendor’s lien, etc.

The third section is as follows: “It is mutually agreed and specified that the parties of the second part have this day deposited in the bank a draft payable to said bank in the sum of ten thousand dollars ($10,000.00) ten days after date, which sum of ten thousand dollars is to be held in escrow by said bank, and in event the parties of the second part comply with the terms of this contract, and pay or cause to be paid either the full purchase price of said land, or one-fourth thereof, with notes for balance as herein provided for, or for such proportion thereof as represents the amount of good titles as hereinafter provided, if all of said titles are not perfected at said time, then the said ten thousand dollars is to be applied as a part of said purchase price; but if said parties of the second part should fail or refuse to comply with their .part of this contract, then the said ten thousand dollars shall be paid to the said parties of the first part as a forfeit from said parties of the second part, resulting from their failure to faithfully comply with the terms and conditions of this contract.”

The fourth section provides for the delivery by defendants of abstracts of title, and the fifth provides the time in which examination thereof shall be made, with the stipulation that defendants shall cure all defects pointed out before the purchasers shall be required to accept the title, and concluding with the stipulation that: “Upon curing of said titles parties of the second part shall accept and pay for same upon notice to them that said titles have been perfected.”

The provisions of the sixth, seventh, and eighth sections are not thought to have any material bearing upon the questions hereinafter discussed.

The ninth and tenth sections are as follows:

“Ninth. It is further agreed and understood that in default on the part of the parties of the second part in the terms of this-contract, or any of said terms, that the ten thousand dollars deposited as above provided for shall be full and complete satisfaction of any and all claims for damages which the parties of the first part might have against the parties of the second part by reason of any such default.

“Tenth. It is further agreed and understood that this contract is in lieu of and is a substitute for contract entered into by parties of the second part on the 23d day of January, 1909, with A. Oswald and E. T. Butlin acting as agents for the parties of the first part, and is in lieu of and is substituted for any and all other contracts and agreements, whether verbal or written, which, are executed by or made by the said parties of the first part, or said A. Oswald or E. T. Butlin, their agents.”

The eleventh and twelfth sections relate to the payment for, and delivery of, the property of the purchasers.

Simultaneously with the execution of the contract above referred to, the plaintiffs and defendants entered into a contract in writing in which all former agreements between them were merged, wherein, after referring to the negotiations then pending.for the sale of the land to Gregory and Prindle, it was provided that in the event Gregory and Prindle should taire the land the defendants were to receive $13 per acre net for the same, and the plaintiffs should receive the remaining portion of the purchase price. The other stipulations in this contract have no material hearing upon the questions here involved.

Immediately after the execution of the contract between Gregory and Prindle and defendants, Prindle drew his draft on the People’s Bank of White Hall, Ill., in favor of the First National Bank of Beaumont, which last-named bank was agreed upon by the parties as stakeholder, and deposited same with said First National Bank. This draft was indorsed by Gregory and was made and deposited in pursuance of the agreement between the parties as shown by the third section of their contract, which has here-inbefore been copied. The First National Bank at once forwarded the draft for collection, but payment was refused by the People’s Bank, the drawee, and the draft was returned. It was afterwards again sent for collection and payment again refused, and the draft was never paid but remained several months in the custody of the First National Bank.

Very soon after the execution of the contract between defendants and Gregory and Prindle and the deposit of the draft in the bank, defendants delivered to the attorney of Gregory and Prindle abstracts of title to nearly all of the tracts of land for examination. Defendant Broussard testified in this connection that, at the time of the execution of said contract, he gave Gregory and Prindle’s attorney part of the abstracts; that he did not have all the abstracts completed to date, but that some of them would be completed in a few days; that he did deliver other abstracts as they were completed by the abstractor; that when he learned, after the expiration of ten days, that the draft had not been paid he immediately notified the plaintiffs, Oswald and .Butlin, to this effect, and Butlin said he would telegraph them and try to get them to hurry up and pay; that the draft was forwarded a second time at plaintiffs’ request, but was not paid, and when he learned it was not he told plaintiffs he could not go any further with the transaction if Gregory and Prindle were not going to pay the $10,000 to be put in the bank as a forfeit; that he also spoke to Gregory and Prindle’s attorney about it and told the attorney he would go no further with curing the defects in the title pointed out by the attorney unless his clients put up the money; that after he found out that the earnest money would not be put up he procúred from Gregory and Prindle a cancellation of the contract of purchase. The cancellation is in the form of a contract, dated June 18, 1909, and after referring to the contract theretofore executed by them on March 13, 1909, and after reciting that “since that date, for good and sufficient reasons, the parties of the first part and the said parties of the second part have mutually agreed to absolutely cancel the said agreement to the end that (each) be forever hereafter absolved and relieved from said agreement,” proceeds to cancel the contract and to provide for the return to Gregory and Prindle of the draft theretofore deposited by them in the First National Bank. Broussard testified that he procured this cancellation contract after he found that Gregory and Prindle were not going to put up the money to bind the trade. However, in a letter to plaintiffs, dated July 8, 1909, in answer to one from them inquiring how negotiations for the land were progressing, Broussard wrote that after Gregory and Prindle “refused to accept the land on the ground that the title was not satisfactory I investigated their financial standing and consulted attorneys to see whether or not there would be any chance of making them pay the draft which was put up as a forfeit, and came to the- conclusion that I could not hold them to the deal on account of defective title to some of the property, and I therefore released them from the trade and returned the, draft, so the trade is off so far as I am concerned.” On July 26, 1909, Broussard again wrote to plaintiffs, saying: “Beg to say you are mistaken when you say I called the sale off with Gregory and Prindle. The facts of the matter are that I was as lenient as any seller could possibly be, as you well know, and accepted a draft on a bank as, forfeit, which was never paid. I still gave those people some 30 or 60 days in which to take the land, but they positively refused to do so, claiming that the titles were not satisfactory, and inasmuch as their attorney found several defects or clouds on the title which would in all give these people a loophole to get out of the trade, as suit would have to be instituted at their home, I did not feel justified in bringing suit to try to collect the forfeit. Therefore I feel that I have done only as any other business man would have done when I agreed to let them out of the trade,” etc.

Gregory and Prindle testified that at the time the draft was drawn on the People’s Bank of White Hall they had no funds in said bank, nor did they thereafter deposit any money in that bank to meet it. Prindle testified in this connection that: “When I drew that draft I expected to pay it whenever the title to this land, or at least a sufficient part of it, was made perfect. I did expect Brous-sard and Hebert to perfect the title before I paid this draft or any money whatever. If they would have perfected the title, or at least to a proper part of it, I could have raised the money to pay this draft. I did not pay it for the reason above stated, because the title to the land had not been perfected.” Gregory testified in the same connection: “I expected Broussard and Hebert to go to the expense of curing the numerous technical and other objections raised by me and my attorney to their title, before I paid, in compliance with the contract, to the First National Bank of Beaumont, the sum of $10,000.” It would thus seem that Broussard and Hebert refused to proceed further in the matter of the curing of defects in their title pointed out by Gregory and Prindle’s lawyer because Gregory and Prindle failed to put in the bank the $10,000 as earnest money after ten days from the date of the contract, and that Gregory and Prindle refused to pay the draft or otherwise cause said sum to be put in the bank at the time agreed upon because the defects suggested by their attorney had not been cured. The contract does not place any limit upon the time in which the appellees should cure the defects in their titles pointed out by Gregory and Prindle’s attorney.

There was much testimony pro and con on the question of whether Gregory and Prindle was able to buy and pay for the land upon the terms agreed upon and. was probably sufficient to sustain a judgment based on a finding either way, but in the view we take of the legal principles that must control under the facts stated it is immaterial whether they were able or not.

We will not discuss appellants’ assignments of error in detail. Their principal contention is that they were entitled to a recovery because they secured the execution of a binding and legally enforceable contract, amounting in law to a sale, and thereby earned the compensation for which they sued. We cannot agree to this contention. While the contract contained the expression that Broussard and Hebert agreed and bound themselves to sell and Gregory and Prindle agreed to purchase, it is manifest by the intention expressed throughout the contract that Gregory and Prindle reserved the right not to take the land, even if the title was found to be good, but instead could refuse to take it and let the $10,000 which they agreed to deposit in the Beaumont Bank, but which they never deposited, go to appellees as a forfeit or liquidated damages. Had the money been deposited as agreed, Broussard and Hebert could not under that contract have enforced specific performance, because they had agreed that, in the event Gregory and Prindle should not comply with any of the terms of the contract, then the sum they agreed to deposit should be full and complete satisfaction of any and all claims for damages which Broussard and Hebert might have against them by reason of any such default. We think this provision bound Broussard and Hebert to accept the money so agreed to be deposited in 'full satisfaction of all claims, demands, and causes of action arising out of Gregory and Prindle’s default in complying with the terms of the contract, and that this defense could have been successfully interposed by them in a suit by the owners to compel them to take and pay for the land. This being true, the contract of sale was not enforceable as against Gregory and Prindle. Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847; Simpson v. Eardley, 137 S. W. 379; Rankin v. Grist, 129 S. W. 1148; Webb v. Durrett, 136 S. W. 1190; Roberts v. Clark, 103 S. W. 417; Hamburger v. Thomas, 103 Tex. 280, 126 S. W. 561.

Appellants contend further that, if the contract did not amount in law to a sale in itself, the appellees defeated the consummation of the sale by negotiating the release contract. We do not think that under the facts stated the mere execution by the parties of a contract relieving each other from the obligations of the contract of sale put them on a different footing from that they occupied before. The condition precedent to the validity and binding force of the contract upon the owners of the land was the payment of $10,000 into the bank as earnest money to be forfeited to the owners upon the failure of the purchasers to comply with all the terms of the purchase. Not having deposited this sum as they, under the contract, were required to do, the owners had the right to declare and treat the contract at an end. This did not require any formal declaration in writing, neither was the assent thereto of the purchasers necessary; and the mere fact that they did assent in writing, and that the assent was given on the request of the owners, did not give to appellants a right of recovery unless such right existed independently of the execution of the formal release. Appellants contend further that under the evidence the sale failed of consummation on account of appellees’ defective title, and that therefore they were entitled to recover under the principles laid down in Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S. W. 561.

There was testimony from which a finding could have been made that the trade failed because of defective titles. But there was also testimony which would sustain a finding that the sole cause of the consummation was due to the failure of Gregory and Prindle to comply with the contract requiring them to deposit the earnest money. The court did not find its findings of fact, and in the absence of such findings we must assume, in support of the judgment, that the court found every essential fact in favor of the winning party that the evidence justified. Hence we find and conclude that the sale was not consummated, not because of defective titles, but because of the failure of Gregory and Prindle to deposit the earnest money as they agreed to do. This being true, the doctrine stated in the Hamburger Case cannot be successfully invoked. Again, it is clearly evident that to entitle appellants to compensation for their services there must have been a sale, not necessarily a consummated sale, but a binding contract that would amount in law to a sale. Had the purchasers put up the earnest money, which under the contract the owners of the land must have received in full acquittance and discharge of all of the purchasers’ obligations in case they failed to complete the purchase, this would have been only an option (Moss v. Wren, and Hamburger v. Thomas, supra), and having failed to deposit the earnest money, which was necessary to make the contract binding as an option, the written agreement was not only not a binding! contract of sale but not even binding as an option.

Lastly appellants contend that independently of all other considerations they produced purchasers who were willing, ready, and able to buy the land, and thereby earned the agreed compensation. It may be conceded, for the purpose of disposing of this contention, that the appellants were able. But were they willing and ready? If so, it seems to us that they would have deposited the earnest money in conformity with their agreement. This they did not do, and from this fact alone the court below was justified in concluding that they were neither willing nor ready. If, then, the purchasers were able, but not willing or ready, to comply with the contract of purchase, the appellants signally failed to prove facts that would entitle them to recover under the contention stated. Clark v. Asbury, 134 S. W. 286; Moss & Raley v. Wren, 102 Tex. 569, 113 S. W. 739, 120 S. W. 847.

We find no reversible error in the record and the judgment of the court below is affirmed.

Affirhied.