text:
    JEFFRESS et al. v. WESTERN UNION TELEGRAPH CO.
    (No. 7213.)
    (Court of Civil Appeals of Texas. Galveston.
    May 10, 1916.
    Rehearing Denied June 8, 1916.)
    Limitation of Actions <&wkey;>124 — Amendment of Pleadings — Joinder of New Paiw-ies.
    Where two individuals are jointly interested in a contract, but action for breach thereof was begun by only one of them, an amended petition joining the other as coplaintiff in the same cause ■ of action is not the commencement of a new suit within the statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. 124.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by E. C. Jeffress and Sam Isaacs against the Western Union Telegraph Company. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    A. B. Wilson and Cole & Cole, all of Houston, for appellants. Hume & Hume, of Houston, for appellee.
   LANE, J.

The nature of this case and the result of the tidal in the court below may be stated as follows:

On the 11th day of June, 1910, E. C. Jef-fress, one of the appellants, entered into an oral contract with the appellee, AVestern Union Telegraph Company, whereby it was mutually agreed between the parties thereto that for and in consideration of the sum of $25 paid by said Jeffress to said telegraph company, said company would furnish Jef-fress at the opera house in Amarillo, Tex., with a detailed telegraphic report of the Jef-fries-Johnson fight to be pulled off at Reno, Nev., on the 4th day of July, 1910.

While the contract was made by E. C. Jef-fress alone with the telegraph company, it was in fact made for himself and Sam Isaacs, the other appellant, but this fact was unknown to said telegraph company. After the plaintiff Jeffress had incurred expenses in the sum of $249.70 in preparing to receive said telegraphic reports, including the $25 paid to said telegraph company, rent of opera house, etc., defendant telegraph company notified plaintiff Jeffress that the associated press objected to its giving plaintiff said reports of said prize fight, and declined to furnish plaintiff with such reports, thereby breaching its contract with plaintiff. On the 3d day of April, 1912, about eighteen months after the breach of said contract, E. O. Jeffress, as sole plaintiff, filed his original petition in which he alleged the breach of said contract, and the consequent damages suffered by him by reason of such breach. On the 22d day of July,' 1912, more than two years after the breach of said contract, E, O. Jeffress, the original plaintiff, joined by Sam Isaacs by leave of the trial court, filed a first amended original petition in lieu of their original petition filed on the 3d day of April, 1912. By this amended petition the two plaintiffs, Jeffress and Isaacs, declare upon the same cause of action set up in Jef-fress’ original petition; the practical effect of said amended petition was only to make an additional plaintiff. On the 7th day of October, 1912, the appellee, Western Union Telegraph Company, filed its answer, specially excepting to plaintiffs’ cause of action as follows:

“(1) That the first amended original petition filed herein by the original plaintiff Jeffress joined by a new arid additional plaintiff Isaacs is insufficient in law, and of this it prays judgment of the court.
“(2) That said petition states a new, different, and distinct cause of action in favor of the original plaintiff Jeffress and the new plaintiff Isaacs, as upon a joint contract entered into_ between them and defendant, that the original petition in this cause was fiied by said plaintiff Jeffress, and as in his own exclusive right and as upon a contract entered into between himself and defendant; that said petition of Jeffress and Isaacs asserts a right in them jointly under a joint contract between them and defendant to damages for the breach of said contract and for moneys paid out and expenses jointly incurred; whereas the original petition of plaintiff Jef-fress asserts an exclusive right in himsifif as upon a sole or several contract between himself and defendant and asserts a sole and exclusive right for recovery of all the moneys alleged to have been paid out, and all expenses incurred and to all the damages resulting from the breach of said contract; that the cause of action set up in the second petition is upon a joint contract asserting different rights from those sought to be set up in the original petition of Jeffress, as upon a several contract, and that the two causes of action are distinct and independent; recovery in the very nature of things being permissible under one theory only, and not under both. That suit on said cause of action alleged in said amended original petition filed July 24, 1912, not having been commenced within two_ years after the accrual of the cause of action, is barred by limitation under the statute.
“(3) Defendant further excepts to said original amended petition as being insufficient in law for this; Said petition seeks to set up for the first time a right in one Isaacs as a coplaintiff under the contract with defendant, whereas it appears on the face of the record that no right was asserted by said Isaacs under said contract within two years after the accrual of his cause of action thereunder; said cause of action having accrued prior to July 1, 1910, and said amended petition asserting for the first time a right in plaintiff, having been filed July 24,1912, said cause of action and plaintiff’s right therein are barred by the statute of limitation of two years. Wherefore defendant prays judgment.
“(5) Further answering in this behalf, defendant says that the cause of action in said amended original petition alleged was not sued upon until July 24, 1912, said cause of action having accrued on or about July 1, 1910, and that suit therein was not commenced within two years after the accrual of the cause of action, and is barred by the two-year statute of limitation, and this defendant is ready to verify.
“(6) Further answering defendant says that it is not liable to said Isaacs, plaintiff, under the contract alleged, that cause of action, if any, accrued to plaintiff on or about July 1, 1910; that said Isaacs, plaintiff, did not commence suit upon said cause of action within two years after its accrual, and is not entitled to recover, and is barred by the two-year statute of limitation, and this defendant is ready to verify.”

On tlie lltli day of May, 1915, plaintiffs filed their third amended petition wherein they alleged that in the contract made by Jeffress with said telegraph company it was made by Jeffress for the joint interest of himself and his coplaintiff, Sam Isaacs, under an agreement between said plaintiff that said plaintiff Jeffress should in his own name act for both, in making said contract with the appellee, and with the further agreement that the profits to be earned from such contract was to be equally divided between said plaintiffs, and again sue for the identical items of damages alleged in the original petition.

On July 8, 1915, the cause was called for trial. Whereupon the trial court sustained appellee’s exception to the cause of action set up by plaintiffs on the theory that the plaintiffs’ third amended petition, upon which they went to trial, set up a new cause of action from that set up in the original petition filed by plaintiff Jeffress on the 3d day of April, 1912, and that it appeared upon the face of said third amended petition that the cause of action thereby set up and declared upon was barred by the two-year statute of limitation at the time said petition was filed. Judgment was accordingly rendered that the plaintiffs take nothing by their suit, and that the defendant go hence without day, and that it recover of plaintiffs its costs incurred.

Plaintiffs, Jeffress and Isaacs, have appealed from the judgment of the trial court and assign the action of the court in sustaining appellee’s plea of limitation as error.

We do not think plaintiffs by either of their petitions set up a different or new cause of action from the one first set up in the original petition filed by plaintiff Jeffress on the 3d day of April, 1912; the same being fiied within two years after said cause of action arose. We therefore conclude that the court erred in sustaining appellee’s said special exception, and in consequence thereof rendering judgment for appellee.

The making of Isaacs a party plaintiff by the amended petition was not such change in the suit as to constitute a new cause of action. In the case of Halff Oo. v. Waugh, 183 S. W. 839, this court said:

“The propositions subjoined to the assignments are that, in a suit by an individual for damages, recovery cannot be had where the damages are shown to have been sustained by the firm of which he was a member, and that the burden of proof is upon a party asking damages to prove his right to recover, and that the damages were sustained by him individually. The evidence is sufficient, we think, to show that the truck was used in connection with the Gee-Whiz Auto Transfer & Storage Company, which was a co-partnership composed of defendant and one or more of his sons, and that the profits arising from the use of the truck inured to the benefit of the copartnership.”

And again:

“The negotiations in regard to the truck were between Waugh and the corporation only, and-in their subsequent dealings in reference thereto Waugh, and not the partnership, was recognized by the corporation as the contracting party. The assignments are overruled.”

For cases strongly in point sec Baker v. G., C. & S. F. Ry. Co., 184 S. W. 257, and authorities therein cited; Roberson v. McIlhenny, 59 Tex. 615; Garrett v. Muller & Co., 37 Tex. 589.

In the case last cited it is said:

“M., the managing partner of the firm of M. & Co., instituted suit in his own name on an open account due the firm. Subsequently he amended his petition by merely setting out the names of the other partners of the firm, and alleging that he had entire control of the firm business. More than two years had elapsed between the accrual of tho cause of action and the filing of the amended petition. Defendant, treating the amended petition as setting up a new cause of action, pleaded the statute of limitations. Held not necessary to have joined the dormant partners as plaintiffs in the action, and, as the original petition was filed within two years after the accrual of the cause of action, the plea of limitation was unavailable.”

Wliat we have said disposes of all of appellants’ assignments. For the error pointed out the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <§=soEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNICLIN, J.

license: Public Domain

text:
    PIERCE-FORDYCE OIL ASS’N v. WARNER DRILLING CO.
    (No. 8370.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 6, 1916.)
    1. Damages <&wkey;124(3) — Oil Wells — Construction oe Contract — Damages eor Breach.
    Under a written contract between plaintiff and defendant oil association, whereby defendant was to pay plaintiff $1.75 per foot for tho drilling of five wells to the depth of 1,000 feet, and to furnish casings, water, and fuel, reserving- the right to stop operation on the wells if oil or gas was found in paying quantities at any depth, and, if stopping operations before a depth of 500 feet, to pay for a depth of 500 feet, the plaintiff, after a well drilled to a depth of 1,000 feet had been abandoned and paid for, upon defendant’s refusal to permit the drilling of any of the other four wells, was not limited in its action to recover profits which would have been realized by drilling the other wells to the profits on a drilling- to a depth of 500 feet each, or 2,000 feet in tho aggregate.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 332-334, 337, 33S; Dec. Dig. &wkey; 124(3).]
    2. Contracts <&wkey;147(2) — Object—“Construction.”
    The term “construction” implies uncertainty as to the moaning of a contract, for, when the meaning is clear and unambiguous, there is nothing to -be construed, and, as when the language employed is unequivocal, though the parties may have failed to express their real intention, its legal effect will usually be enforced as written, as no other meaning can be added by implication or intendment.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 730; Dec. Dig. <&wkey;>147(2).
    For other definitions, see Words and Phrases, First and Second Series, Construction.]
    Appeal from District Court, Wichita County ; J. W. Akin, Judge.
    Action by the Warner Drilling Company against the Pierce-Fordyce Oil Association. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Huff, Martin & Bullington, of Wichita Falls, for appellant. W. F. Weeks, of Wichita Falls, for appellee.
   DUNICLIN, J.

The Pierce-Fordyce Oil Association entered into the following contract in writing with the Warner Drilling Company, a partnership:

“This agreement made by and between the Warner Drilling Company, hereinafter called contractor, party of the first part, and the Pierce-Fordyce Oil Association, St. Louis, Mo., hereinafter called the Company, party of the second part, witnesseth:
“I. The Company agrees to pay the party of the first part one and seventy-five one hundredths ($1.75) dollars per foot for the drilling of such wells as designated below to the depth of one thousand feet (1,000), and also agrees to furnish all casings, water and fuel to said wells. Tho five wells to be drilled in a radius of four miles.
“II. Be it further understood that the Company reserves the right to stop operations on said wells if oil or gas be found in paying quantities at any depth, but, if stopped before a depth of five hundred feet (500) is -reached, the Company agrees to pay for a depth of five hundred feet (500).
“III. Well No. 1; Well No. 2; Well No. 3; Well No. 4; Well No. 5.
“IV. It is expressly understood that the foregoing is satisfactory to the party of the first part, and is acknowledged by signature of the same below.
“Wichita Falls, March 18, 1914.”

Pursuant to that agreement the Drilling Company drilled one well to a depth of 1,000 feet, which was abandoned because no oil was found. The Oil Association paid the contract price for that work and refused to permit the drilling of any of the other four wells mentioned in the contract. Thereupon the Drilling Company instituted this suit against the Oil Association to recover alleged profits which they claimed they would have realized by drilling the other four wells to the stipulated depth of 1,000 feet had not the defendant breached its contract therefor, and also for the value of their services rendered in withdrawing the casing from the well that was drilled. From a judgment in favor of the plaintiff for $2,625, lost profits by reason of the breach of said contract, and the further sum of $203 as value of services in withdrawing the casing from the well that had been drilled, the defendant has appealed.

The defendant filed the following special plea:

“Defendant, in answer to paragraphs 12, 13, and 14 of the plaintiff’s amended petition, says that the written contract was, in fact, the only contract made for the drilling of any well, but that it was reasonably within the contemplation of the parties making said contract and within the meaning of said contract that the defendant should have the right at any time to suspend the drilling of any well or wells therein provided for and in that event should not be required to pay more than $1.75 per foot for each 500 feet of undrilled wells, and in that event would not be responsible to the plaintiff for more than his reasonable profits arising from the drilling of 2,000 feet at the rate of $1.75 per foot; and, while the defendant admits that it has not tendered to plaintiffs any particular sum in settlement of this suit, yet it is now and always lias been ready and willing to pay the plaintiffs their reasonable damages in case it should be held by the court that L. S. Kempher liad authority to contract for more than one well which has been paid for by the defendant.”

The contention so made in that plea that appellant had the right to stop the drilling of any well at a depth of 500 feet, even though oil was not found therein, and hence was not liable under the contract for profits in excess of what plaintiff could have realized for drilling an aggregate depth of 2,000 feet in the four undrilled wells, is the only contention presented upon this appeal.

There was no plea of fraud, accident, or mistake in the drafting of the contract. Neither was there any evidence tending to show that the parties to the contract understood its meaning to be different from that which its language imports. The evidence does show that the contract was prepared by O. E. Warner, one of the members of plaintiff’s partnership firm, and appellant invokes that fact as the reason why the contract should be construed most favorably to it.

The contract is plain and unambiguous, and is not, in our opinion, susceptible of the construction urged in the special answer copied above. Appellant has cited numerous authorities giving the rules of construction of written contracts which are obscure or ambiguous, but same have no application to the contract in the present suit, which is perfectly plain and free of any ambiguity whatever. In 2 Elliott on Contracts, § 1506, the following is said:

“The term ‘construction’ implies uncertainty as to the meaning of the contract; for, when the meaning is clear and unambiguous, there is nothing to be construed. Moreover, when the language employed is unequivocal, although the parties . may have failed to express their real intentions the legal effect of the instrument will usually be enforced as written. Where no uncertainty exists, there is no room for construction. When the meaning is plain, another meaning cannot be added by implication or intendment.”

In 6 Ruling Case Law, § 231, p. 841, the following was said:

“Where the language of a contract is ambiguous or susceptible of several significations, conjectures are necessarily resorted to to determine the meaning of the parties; and for this purpose conjectures may be drawn from the subject-matter and from the circumstances of the contract. This rule, however, is applicable only where the language in which the parties have expressed themselves,' either from the terms or their arrangement, leaves their intentions doubtful. For otherwise the most usual and natural import is to be given to the instrument or evidence of contract; and to resort to rules of construction would be to substitute probable conjectures for evidence that is direct and unalterable. Accordingly it is said that the agreement of the parties is to be ascertained from the plain language used by them, and such agreement is to be enforced no matter what the intention may have been, and that, where the meaning of a contract is plain, another meaning cannot be added by implication or intendment.”

The foregoing announcements, of course, have no reference to the right of a party to a contract to avoid the effect of its literal meaning by showing fraud, accident, or mistake in its execution. As said already, the contract in the present suit is too plain to admit of the construction suggested by appellant, and accordingly appellant’s assignment of error to the refusal of the court to peremptorily instruct the jury that plaintiff could not recover profits for drilling in excess of an aggregate of 2,000 feet on the four wells which were undrilled is overruled, and the judgment is affirmed.

Affirmed.
      igc^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    KAKER v. PARRISH.
    (No. 8372.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 6, 1916.
    Rehearing Denied June 3, 1916.)
    1. Bbeach of Maebiage Peomise <&wkey;23 — Sufficiency of Evidence.
    Evidence in a suit for damages for the breach of a promise of marriage held to sustain a finding that there had been a contract of marriage as alleged.
    [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 31, 37; Dec. Dig. <&wkey;>23.]
    2. Bbeach oe Maebiage Peomise ¡&wkey;23 — Sufficiency of Evidence — Rescission ob Abandonment.
    Evidence in a suit for damages for the breach of a promise of marriage held to sustain a finding that the contract had not been mutually rescinded or abandoned.
    [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 31, 37; Dee. Dig. <§=323.]
    3. Beeach of Maebiage Promise <&wkey;34 — Release — Words.
    The' fact that plaintiff in. a suit for the breach of a promise to marry, in answer to the defendant’s statements that he did not know that he would “ever marry,” and “that his affection for the plaintiff was not what it had been formerly,” had replied, “Well, we just as well quit then,” did not, as matter of law, amount to a waiver or surrender of her rights under the promise; as she was not required, in order to preserve such rights, to then insist on its performance and again express her willingness to perform her part of the contract.
    [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. § 50; Dec. Dig. &wkey;>34.]
    4. New Teial- <&wkey;44(3) — Misconduct of Ju-bob — Statement as to Defendant.
    In an action for damages for breach of a promise to marry, where it appeared that defendant had told plaintiff that he wanted to leave the country, that he was afraid to marry her, and that he had been intimate with two other women, the statement of a juror to the jury that he thought that defendant was the man who had ruined a girl and had been forced to marry her was not so prejudicial as to make the refusal of a new trial on that ground an abuse of its discretion, especially when made after the jury had agreed to find for the plaintiff on the issue of the breach, and where the verdict was not attacked as being excessive.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84; Dec. Dig. <&wkey;>44(3).]
    5. New Trial <&wkey;52 — Misconduct of Juey— Verdict by Lot.
    The fact that it was suggested by a juror that they find the amount of damages against defendant by dividing the amount which each juror was in favor of assessing by 12, resulting in a verdict substantially for the amount awarded, where there had been no agreement to abide by such verdict, and the calculation was several hours before the final verdict was agreed upon, was not such misconduct as to make a denial of a new trial on that ground an abuse of discretion.
    [Ed. Note. — For other cases, see New Trial, Oent. Dig. § 101; Dec. Dig. <S=>52.]
    6. New Trial &wkey;>44(3) — Misconduct o» Jury — Damages-—Attorney’s Fees.
    In an action for breach of promise to marry, where defendant’s counsel had stated that the plaintiff’s lawyers would doubtless get a large share of the damages, that the jury discussed how much plaintiff would have to pay as lawyer’s fees and expenses, in the absence of anything to show that such items were included in the damages, and the fact that a juror followed the law of another state in assessing damages, though he was not ultimately controlled by it and did not communicate it to the other jurors, was not such misconduct as made the trial court’s refusal of a new trial an abuse of its discretion.
    [Ed. Note. — For other eases, see New Trial, Oent. Dig. §§ 82-84; Dec. Dig. <&wkey;44(3)J
    7. New Trial <&wkey; 143(2) — Misconduct of Jurors — Statute—Burden of Proof.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2021, which, contrary to the rule of the common law, authorizes a consideration of the testimony of jurors for the purpose of impeaching their verdict, a litigant, seeking to disturb a verdict against him, has the burden of showing, not only that the matters of-which he complains amount to misconduct on the part of the jury, but also that they operated to his prejudice.
    [Ed. Note. — For other cases, see New Trial, Oent. Dig. §§ 292, 293; Dec. Dig. &wkey;143(2).]
    8. Appeal and Error <&wkey;97S(3) — Discretion of Trial Court — Impeachment of Víerdiot.
    Under such statute expressly committing the determination of questions .as to the misconduct of jurors to the discretion of the trial court, its discretion is reviewable on appeal, but its action in overruling the motion for new trial on the ground of the jury’s misconduct will not be disturbed where it seems that it acted fairly in its investigation.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870; Dec. Dig. <i&wkey;978(3).]
    9. Breach of Marriage Promise <&wkey;22 — Evi- • dence — Character.
    In an action for damages for breach of promise, where there was no attack upon the character of the defendant’s present wife, evidence for defendant that her general character was above suspicion was inadmissible.
    [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 31-36; Dec. Dig. <®=»22.J
    Appeal from District Court, Wise County; F. O. MeKinsey, Judge.
    Suit by Miss Lee Parrish, against Lawson Kaker for the breach of a promise of marriage. Judgment for plaintiff, and defendant axipeals.
    Affirmed.
    R. E. Carswell, of Decatur, Sam Shadle, of Weatherford, and L. D. Ratliff, of Decatur, for aiipellant. McMurray & Gettys, of Decatur, and H. E. Lobdell, of Bridgeport, for appellee.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

Miss Lee Parrish instituted this suit against Lawson Kaker to recover damages for the breach of a promise of marriage. The plaintiff alleged that the mutual agreement to marry was made during the year 1912 and was breached about February 15,1915. The defendant denied the allegation of a marriage contract, and specially pleaded that, if any agreement of marriage had ever been entered into, it was by mutual consent rescinded and abandoned on about December 25, 1914. 1-Ie further pleaded that after such agreement of marriage, if one was made, he learned that the plaintiff was a confirmed user of snuff, which habit was very distasteful to him, that he requested plaintiff to abandon the habit, which she had agreed to do, but that, notwithstanding such promise, she persisted in the use of snuff, by reason of which he concluded that marriage with such a person would not be pleasant, and hence on that account that he was justified in refusing to marry her.

The trial was before a jury, with instruction on the part of the court that, in event the jury should fail to find that there had been a contract of marriage, as alleged by plaintiff, they should find for the defendant. The jury were further instructed that, if they believed that such a contract had been entered into, but that thereafter it had been mutually abandoned, their verdict should be for the defendant, and further, that if they should find that the plaintiff and defendant became mutually engaged to marry, but that before said engagement the plaintiff was addicted to the use of snuff, and that the fact was unknown to the defendant, and should further believe that the plaintiff persisted in the habit over the defendant’s objection after it became known to him, and that by reason of such continuance of the use of snuff the defendant broke his engagement, and that in so doing he acted as a person of ordinary temper, prudence, and foresight would have acted under like circumstances, then also they should find for the defendant. The trial resulted in a verdict and judgment in favor of the xilaintiff for the sum of $5,333, and the defendant has axipealed.

Contrary to appellant’s first contention, we think there can be no doubt of the sufficiency of tlie evidence to sustain the verdict and judgment on the issue of an agreement of marriage. The appellee testified, among other things:

“We were engaged to be married. We became engaged about the middle of 1912, I suppose. * * * He and I became engaged to marry about six months after he began going with me. That would be right along I suppose about the middle of 1912. * * * I do not remember just the words he used. I accepted the proposal. I do not know that I can give the substance of the words he used any nearer than I have. He wanted to know if I would marry him, and I said I would.”

The lilaintiff further testified to numerous visits on the part of defendant, and to numerous conversations in which reference was made to their engagement, to the character of house they would occupy, etc. The defendant did not deny these conversations, and, among other things, testified:'

“If I ever agreed to marry Miss Parrish, it was conditionally. Q. She had no condition in the world? A. Tes; if she had quit dipping snuff. * * * Q. Would you have married her if she had quit dipping snuff? A. Well, of course, I don’t know. Q. On the night of the 24th of December, when you went there and found that toothbrush, if you had not found it, and she had been faithful, would you have married her? A. I don’t know about that. I loved her a good deal better when I promised her, if I promised her at all, than I did when I quit. I told her in the fall of 1914 my affections was not for her what they had been. I don’t know why. They just was not.”

The plaintiff also introduced a number of letters written by the defendant and received by her. These letters breathe the spirit of a man making the effort to win the love of a woman. We will quote but a few of them. For instance on February 21, 1912, the defendant wrote to the plaintiff as follows:

“I am here meditating on affairs pertaining to future happiness. I do not feel like I could be altogether pleased unless you should decide to accept my love and fix your determination and surrender your affections to me; if this is done, I will be painstaking and make your life on my part as near as you desire it to be.”

On February 27, 1912, the defendant again wrote:

“I have studied your nature very carefully, and find you to be a lady whom my heart yearns for, and truly believe if you should permit yourself to fall in love with me I shall always treat you in a manner that you will not regret that you surrendered your love to me.”

On March 29, 1912, the defendant wrote, in part, as follows:

“Dear Lee: It is needless for any one but you to apply for my love. The last few remarks you made on last night aroused my feelings for you to such a great extent that I could not sleep for several hours after retiring. I thought delightfully of the many good things that might fall in our pathway if we should be permitted to join the ranks of matrimony.”

After a number of other letters the defendant again wrote on December 7, 1912, in part, as follows:

“I feel very much gratified over the results of my undertaking; it doesn’t seem to me that any one could take you from me although I may be too sure. While I am writing you I have my thoughts concentrated upon you and your future happiness. I can see your image standing in the midst of beautiful surroundings realizing that your strong intellectual power enables you to comprehend the meaning of everything pertaining to love and happiness set apart for every married person who wish to enjoy themselves, and that is what we are looking for.”

On January 11, 1913, the defendant wrote, in part:

“I wish it was possible for me to be with you as much as I am away from you, then this life would be differently spent. However, the condition will not permit such a thing at present. I think when we are united we will enjoy ourselves the better trying to gain what we lost in the past.”

On April 10, 1913, the defendant again wrote, in part: <

“I believe if we are permitted to spend a married life together it will be so remarkable that our friends and relatives will place us in the foremost ranks of kind, true, and permanent lovers, and I assure you that there could be no greater compliment passed on me than to hear that I was true to the one that I had promised to love the remainder of my life.”

On November 19, 1913, the defendant again wrote, in part:

“When I am absent from you it seems ■ as though I cannot find anything that will relieve me of that miserable feeling which I have and often times think that my happiness will be. incomplete until we are married; my love for-you is continuously increasing, and feel positive that you love me equally as well, and for that reason I think our future happiness will be just what we are expecting it to be.”

Appellant’s first assigffrnent of error is accordingly overruled.

Appellant next contends that:

“The evidence by overwhelming preponderance shows that whatever negotiations or arrangements looked to a marriage between appel-lee and appellant were rescinded and abandoned' on December 25, 1914, and that the verdict of the jury upon that issue is clearly against and unsupported by the evidence, and it clearly appears that such verdict was influenced and produced by prejudice and undue and improper influence.”

This contention is predicated mainly upon the testimony of the defendant to the effect:

That some time in January, 1913, he ascertained that Bliss Parrish dipped snuff, which upon inquiry she did not deny, but stated that she used it only occasionally; that he told her if she continued the practice their courtship was at an end, and she finally agreed to quit; that again about the first of the year 1914 “I asked her when she took a dip of snuff, and she said, ‘This morning.’ I said, ‘That is a nice way of quitting — continue keeping it up.’ Well, she agreed again, and says, ‘Well if nothing else will please you, I will quit.’ Then December 25, last year, 1914, last Christmas, that was the third time. We first sat down in the parlor. We didn’t have any stove there, and we went into the room where they had a stove. After we had been in there a little bit I discovered a toothbrush with snuff on it lying on the table. It was thoroughly saturated with snuff. I told her, T have put you to a thorough test, and think it is best for our courtship to end.’ She said, ‘All right; if that pleases you it pleases me.’ I really do not remember everything tnat occurred there that afternoon. I made her a present that Christmas. I gave her — I took a la-valliere and a ruby ring and told her she might select one of them. For some little time she could not decide what she wanted, and later she decided to take the lavalliere. She took this lavalliere prior to the time I rounded her up about dipping snuff. After the incident about the snuff she just handed me back the lavalliere. I asked her to keep it as a friendly gift. She says, ‘No; if our courtship is at an end I don’t want you to be to any more expense,’ and gave it back to me. * * * She told me she had a laundry bag almost finished; she would like me to accept that. I told her I would not do it. I considered my relations with her were at an end, and we agreed that afternoon we would quit and neither of us make any unkind, remarks about the other. We agreed to bo friends, and she had a school about six miles west of Bridgeport, road very rough, and I told her if it suited her she could come in when she wanted to and I would take her back to her school. I did that twice; made two trips. There was no further intercourse between us with reference to matrimony. Up to that time I did not think she and I had reached any definite agreement to marry. I never reached any definite agreement with her to marry. I was still investigating to see whether she would suit me for a wife. * * * I don’t know that the toothbrush was what finally decided it; yes, really it was. It is a fact that right then I was engaged to my present wife. I think I had been engaged to her about three or four months at that time. I- intended to marry my present wife; that is, if we suited each other.”

Miss Parrish testified, among other things, that:

‘‘Mr. Kaker came to see me last on the 15th of February, 1915. At that time he and X did not cancel our engagement. I had not agreed up to that time to release him. I expected up to that time he was going to carry out his agreement. I did not know that he was not going to carry o¿it his agreement to marry me until I knew that he was married. Before that time I had never agreed to release him. I do not remember seeing the defendant on the 24th of December, 1914. I saw him on the 25th. I did not agree at that time nor at any time to release him. He did not ask me to release him at any time. * * ® On Christmas Day, 1914, Mr. Kaker and I had a conversation. * * * He had made me some presents, and I kept them a while. I gave them back to him about an hour after he gave them to me. He gave me a lavalliere; nothing else. I made him a present of a laundry bag. I have the laundry bag. He did not receive it. That occurred on the 25th day of December, Christmas Day. I do not know what was the matter between him and me then. There was not anything {¡articular on my part. He made the remark just after he got there— He brought a ring and a lavalliere both, for me to select the one I preferred, and I took the laval-liere, and so after awhile — I guess about an hour after he had done it — he seemed to be upset about something, I didnt know what. I didn’t know at the time; I suppose X have found out later; and he remarked that, along about the first of the conversation, that a married woman was giving him trouble, crossing his trail, or something like that, I don’t remember just exactly the remark, and then he made the remark, not at that time, but in the conversation, that his affections for me were not what they once were. I says, ‘Well, why didn’t you tell me this?’ ‘Well,’ he says, ‘we ought to have married.’ I says, ‘Why didn’t you do it?’ ‘Well,’ he says, ‘We were afraid we would disappoint — ’ I said that their disappointment would not be as great as ours. So we talked along awhile, and then directly he says, ‘Well I don’t know that I will ever marry; I haven’t come up according to the terms; I have been intimate with two women.’ I says, ‘Well, we just as well quit then,’ and I took off the lavalliere and gave it to him, and he told me, ‘You keep this.’ I says, ‘No; I don’t want you to spend your money on me.’ He says, Well, I rather spend it on you than any one else.’ But he took the lavalliere back, and then it was about 5 o’clock then, that evening, 1 had never presented the laundry bag to him, it was about 5 o’clock that evening when I presented it, and, of course, he refused to take it because I had not taken the laval-liere ; and then on Sunday — he was back again Sunday afternoon, and I made the remark to him if he would accept the laundry bag I would accept the lavalliere. He said he didn’t know whether, he could get it then or not, as they were either selling out fast or nearly all gone, I don’t remember just which remark he made, when he got this one. I told him that did not make any difference to me; I was not tired of my locket, anyway; I did not particularly care about the lavalliere. Mr. Ivaker and I were together that day all the afternoon. * * * I said, We bettor quit.’ He did not say anything to that right then. About the time I said that, I just suggested we just as well quit then, and I took off the lavalliere and gave it to him, and he remarked to me to keep it, and I told him I didn’t want him spending his money on me. He did not say anything about quitting. He remarked something during the afternoon about, ‘Well, we will still be friends.’ I agreed to that. * * * On the 25th of December, 1914, nothing was said between Mr. Kaker and me about my dipping snuff. It is not a fact that he found a toothbrush of mine filled with snuff, and that he taxed me about it. Nothing of that sort occurred. * * * He kept telling me all along not to give up hopes. That was after the lavaliiere matter on the 25th of December. This was the latter part of January. Mr. Lawson Kaker came to see me just as regularly after Christmas as he ever did before. Nothing was said after that about severing our relations. We continued to talk about marrying just the same as before. There was nothing in Mr. Kaker’s conversation or demeanor up to the 15th of February to load me to the suspicion that he had abandoned the idea of marrying me as he had promised. He married on the 25th of February, 1915. * * * Up until about the 15th of February he came to see me quite often. In that conversation the last of January when he spoke about going away and that he had a good notion to go where he would never be heard of, and I says, ‘Won’t I hear from you?’ and he made the remark, ‘Yes,’ but I would not be allowed to tell, and no telling how long he would have to stay. I made the remark I would be willing to wait for him ten years if it was necessary. He did not say anything to that. * * * He told me about being in trouble and wanted me to help him, and then I proposed marrying him. He said that if he married he was afraid he would get his head shot off. That is the time he told me he was thinking about leaving. * * * That was at the January meeting. The next time I met him was the next week, I guess. I am certain that I never came home without seeing him, what time I was there, and, as I said a while ago, I came home every week except one. I lived about 400 or 500 yards, I guess, from where Mr. Lawson Kaker lived in Bridgeport. I never failed to see him when I came home from my school. I gave up my school after the first week in February and stayed at home in Bridgeport. * * * Q. I am trying to get at what passed between you at this February meeting, Friday in the first week in February. What did he say then about his troubles? A. Well, that is a delicate subject to undertake. He told me all about his troubles. He made the remark at three different times about going and in one remark he said I would hear from him again. He still expressed the hope that everything would come out all right; that he and I would marry. * * * We had another meeting before the 15th of February and that was the following Friday night. * * * Then the same subject was principally up for discussion about his troubles. He remarked that night not to give up hopes, everything would come out all right. I still expected to marry him. I knew nothing about his engagement to Mrs. Bailey.”

Mrs. Bailey is the lady whom the evidence shows the defendant married on the 25th of February, 1915. ,

We are unable to say that the testimony as a matter of law required a finding on the part of the jury that the engagement between the plaintiff and the defendant was mutually canceled. The plaintiff herself is specific in her denial that such was the case, and these denials are not necessarily shown to be false merely because, in answer to appellant’s statements on December 25, 1914, that he did not know that he would “ever marry,” and “that his affection for the plaintiff was not what it had been formerly,” plaintiff replied, “Well, we just as well quit then,” and returned the lavalliere. Some such expression and some manifestation of resentment on the plaintiff’s part was under the circumstances not unnatural, and tide defendant’s continued association with the plaintiff and his assurances to her thereafter all seem inconsistent with the theory that there was any mutual agreement to rescind the contract of marriage as established in the testimony of the plaintiff. In the case of Fisher v. Barber, 62 Tes. Civ. App. 34, 130 S. W. 872, in which a writ of error was refused by our Supreme Court, it appears that the defendant relied, in part at least, upon an alleged rescission or abandonment of a contract of marriage theretofore entered into between the parties. The defendant testified that upon a date mentioned he sent the plaintiff word by one Epperson that he, the defendant, would have to withdraw his offer of marriage on account of the opposition of his children, and that in response to the plaintiff’s request communicated to him by Epper-son he went to see her that night and told her of the opposition of his children to their marriage, and that on that account he could not marry her; that when he told her this she replied “that she was sorry, and it was what she expected.” Epperson testified that wheh he delivered defendant’s message to the plaintiff, she replied: “All right; just as I expected.” The court in disposing of the testimony held that the issue of a release by the plaintiff or a cancellation of the contract of marriage by mutual agreement was not raised by the evidence. It was said:

“The defendant did not ask the plaintiff to agree to a cancellation of the contract. He sent Epperson to her, not to obtain a consent to the abandonment of the contract, but to Inform her that he had determined not to marry her, and to tell her why he could not carry out his agreement with her. When she received this information she was not required, in order to preserve her right under the contract, to insist on its performance by the defendant, and again express willingness to perform her part of it. Her statement to Epperson that ‘it is all right’ and that ‘she expected it,’ not having been made in response to any request by defendant for a cancellation of the contract, cannot be treated as an agreement on her part that the contract should be canceled. * * * It cannot be expected that a woman upon the receipt of a,message of this kind would not attempt to hide from the messenger her feelings of regret and humiliation, or that she would insist upon defendant’s carrying out his contract with her, and plaintiff’s statements to Epperson before set out can only be regarded as expressions made for the purpose of hiding her feelings of wounded pride. * * * There is no intimation in any of the testimony that, if she had pleaded with defendant to reconsider his determination to abandon her, he would not have refused to marry her. On the contrary, he had ample opportunity to reconsider and to offer to perform his contract after he knew she was not willing to release him, and yet he made no such offer. It is also clear that nothing said by plaintiff to Epperson or to the defendant could be given the effect of a release by her of the damages caused her by defendant’s breach of his contract. If the statements made by her or her conduct on the occasions mentioned could be construed as evidencing an intention on her part to release her claim for damages, such release could not be held binding, because it was wholly without consideration.”

The latter part of the court’s remarks would seem to have application here; for here, as in the case cited, it cannot be pretended that tlie evidence authorizes the conclusion that the plaintiff waived or surrendered her right to the damages otherwise established in the evidence. In the case of Ortiz v. Navarro, 10 Tex. Civ. App. 195, 30 S. W. 581, a breach of promise case in which a writ of error was denied by our Supreme Court, it was said, among other things, quoting from one of the headnotes:

“Evidence of the return by plaintiff to defendant of his ring and letters does not show, as matter of law, that she had released him from his promise.”

See, also, Folz v. Wagner, 24 Ind. App. 694, 57 N. E. 564; 5 Cyc. p. 1017, par. E.

We accordingly overrule appellant’s second assignment of error.

By several assignments of error appellant attacks the verdict on the ground Of misconduct on the part of the jury. We will attempt to group and briefly present these several complaints together. It appears, in substance, that during the deliberations of the jury, and while discussing a part of Miss Parrish’s testimony to the effect that the defendant on the occasion named told her as a reason why he wanted to leave the country that he was afraid to marry her, etc., that “he was in trouble,” that “he had been intimate with two women,” “that he was afraid he would get his head shot off,” that getting into trouble with that other woman was nothing compared with this, it was just like going into hell this one,” etc., one of the jurors remarked that, “We were in the dark about the former troubles of the defendant,” to which another juryman, Jim Deaton, replied that he thought he (defendant) was the young man “that ruined Mr. X.’s daughter”; that he “probably was the man that was forced to marry X.’s daughter.” The juror Jim Deaton testified, “I never said for sure that he was the man that done that, but that I thought he was the man that done that meanness,” “that he said nothing more about it,” and at the time remarked, “That has nothing to do with the case.” It further appears in this connection that all of the jurors testified that the remarks of the juror Deaton above indicated had no effect on the verdict. It also further appears that at the time of these remarks and of this discussion the jurors had all agreed upon a finding against the defendant on the issue of liability.

A further complaint is that the verdict of the jury was arrived at by lot, but the evidence of the jurors on this subject so plainly shows that there was no agreement to abide by such verdict that we will not set out the testimony. The testimony amounts to no more than that during the deliberations among the high men on the jury and the low men that one or two of them suggested that they ascertain the amount which each juror was in favor of assessing as damages, divide it by 12, and see what tlie result would be. This, it appears, was done, and the result amounted substantially to the sum finally found by the jury. The testimony, however, shows that this calculation was several hours before the final verdict was agreed upon, and, as stated, all of the jurors testified that there was no agreement to be bound by any such computation.

A further complaint is that the supposed amount of attorney’s fees that plaintiff would be required to pay was included in the amount of the verdict returned. While the evidence shows that “something was said in the jury room about how much the plaintiff woiild have to pay as lawyer’s fees and expenses,” we think the evidence as a whole shows that nothing for these items was included in the verdict, and that the remarks were given no substantial effect. Moreover, the trial judge, in qualifying the bill of exception presenting this complaint, states that:

“It is probable that one of the counsel for defendant was to some extent responsible for the jury discussing the matter of attorney’s fees. He stated to the jury in his argument, in substance, that ho did not know what part of the ¡¡150,000 plaintiff was asking for the lawyers would get, but that doubtless they would get a large share of it, and that plaintiff was asking them to give her this enormous sum for ‘heart balm and attorney’s fees.’ ”

Another complaint is predicated upon the affidavit of one of the jurors that in the assessment of damages he “followed the law of Illinois.” It appears that the juror understood that by the law of Illinois upon proof of a breach of promise to marry the damages to be assessed should be one-half of the proven estate of the defendant. In this case it had been proven that the estate of the defendant amounted to some $18,000, and the juror in the beginning was in favor of a verdict for $8,000 damages. It, however, further appears that this conception of the juror was not communicated to the others, and that he was not ultimately controlled by it, as evidenced by the fact that he agreed to a considerably less sum. At most, the matter, as it seems to us, merely indicates a want of sufficient qualification that should have been developed in the voir dire examination.

The testimony relating to the several subjects above mentioned is too voluminous to wholly embody in this opinion, but it has all nevertheless been carefully considered, together with the judge’s qualification of the bill of exceptions which sets out the testimony, and it is to be remembered that our statute (Vernon’s Sayles’ Texas Civil Statutes, art. 2021) which authorizes a consideration of the testimony of jurors for the purpose of impeaching their verdict is contrary to the rule of the common law, and hence that a litigant so asking to disturb a verdict against him- has the burden of showing, not only that the matters of which he complains amount to misconduct on the part of the jury, but also that the same operated to his prejudice. San Antonio Traction Co. v. Cassanova, 154 S. W. 1190, and cases therein cited. It is also to be remembered that the statute expressly commits the determination of such questions to the “discretion” of the trial court, and, while such discretion is reviewable on appeal, his action in overruling the motion for a new trial on the ground of misconduct of the jury will not be disturbed when it seems that the trial judge acted fairly in the investigation. See Railway Co. v. Gray, 105 Tex. 42, 143 S. W. 606.

The remarks of the juror Jim Deaton present, perhaps, the most difficult question in this connection, but no prejudicial inference that could have been drawn from the remarks of the juror Deaton is more forceful than the statements of appellant himself, as testified to by Miss Parrish, and which the jury had the right to consider. As already indicated, Bliss Parrish testified that defendant told her “all about his troubles”; “that he had been intimate with two women;” “that he was afraid he would get his head shot off;” “that getting into trouble with that other woman was nothing compared with this, it was just like going into hell this one.” If the jury believed Bliss Parrish in so testifying, as they had the right to do under the law, then it could not be misconduct on the part of the jury to infer that the defendant on former occasions had wronged some women other than the plaintiff, and that the juror Deaton may have thought it was X.’s daughter is wholly immaterial so far as disclosed in appellant’s brief. If any one or more of the jury knew either X. or his daughter, it has not been made to appear. Bloreover, the remarks of the juror Deaton, as has already been stated, occurred after there had been an agreement on the part of the jury to find for the plaintiff on the issue of a breach of the marriage contract, so that it affirmatively appears that the remarks could not, and did not, operate to appellant’s prejudice on that issue. It may also be stated that appellant has not attacked the verdict on the ground that it is excessive, and nothing in the evidence indicates to us that it is so, or that the amount of damages as found by the jury was in any way augmented by reason of any prejudice or improper motive on the part of the jury. So that, in addition to the denials of the jurymen, it affirmatively appears, as it seems to us, that the several matters complained of occurring in the jury room did not operate to appellant’s prejudice, in the legal sense of that term. We cannot, therefore, say that the trial court abused the discretion vested in him by law in overruling appellant’s motion for a new trial on the several grounds indicated. Appellant’s third, fourth, fifth, and sixth assignments of error are accordingly overruled.

But one other question is raised, and that is presented in appellant’s seventh assignment of error. Therein complaint is made of the exclusión of the testimony of Jchn Slover, by whom appellant offered to show, and could have shown, that the “general character as a lady” of appellant’s present wife, formerly Mrs. Bailey, was “above suspicion.” We find nothing in the evidence which constitutes the exclusion of the testimony of Slover prejudicial. Appellant offered his wife as a witness in his behalf, and she testified, among other things, without objection:

That she had never met Mr. Kaker until in April, 1913; that “he began paying attention to me about the 28th of April, 1913. Mr. Kaker was always perfectly gentlemanly in his conduct with me. He married me voluntarily. There was no circumstance of compulsion on my part which caused him to marry me. Nothing in my association with him that made it necessary for him to marry me if he did not voluntarily want to.”

Nothing in all of the testimony, as we consider it, tends to refute the truth of the statement as so made by Mrs. Kaker. No attack, as we view the evidence, of any kind was made upon her character in any respect, and counsel for appellee so avowed at the time Slover’s testimony was offered. In the absence of some reasonably definite attack, we think the court properly excluded the testimony as immaterial.

All assignments of error are accordingly overruled, and the judgment is affirmed.
      otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: LANE, J.

text:
    HUTH v. HUTH et al.
    (No. 7266.)

    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1916.
    Rehearing Denied June 1, 1916.)
    1. EXECUTORS AND ADMINISTRATORS <S&wkey;22(2) — Temporary Administrator —Will ConTEST.
    Under Rev. St. art. 3301, providing for the appointment of a temporary administrator pending the contest of a will to continue in force until the termination of the contest and until the appointment of a permanent executor or administrator with full powers whenever such appointment is necessary to preserve the estate from waste, it is not only the right but the duty of the county judge to make such appointment when necessary.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 117-122; Dec. Dig. &wkey;322(2).]
    2. Executors and Administrators <&wkey;122(2) — Community Property — Temporary Administrator-Powers.
    Under Rev. St. art. 3556, relating to th’e administration on the estate of a deceased husband or wife leaving common property, a temporary administrator appointed pending the contest of a will has the power, when so given by the court in his order of appointment, to take possession of all the common property of the estate and hold the same in trust for the benefit of those entitled until such contest is determined.
    [Ed. Note. — For other cases, see Executors, and Administrators, Cent. Dig. §§ 495, 495% ; Dec. Dig. <@==>122(2).]
    3. Partition <&wkey;13 — Estate of Decedent-Persons Entitled.
    Under Rev. St. arts. 3557, 3560, relating to partition of property held jointly by a decedent’s estate and a third person, one who has a joint interest with the estate of a decedent in any property, real or personal, may apply to the county court in which administration is pending for the partition of the property belonging to the joint estate, and, when such application is made, it is the duty of the court to make a partition between the applicant and the estate of the deceased.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 36, 81; Dee. Dig. <§=^13.]
    4. Injunction <&wkey;28 — Probate Proceedings —Review.
    Under Rev. St. art. 3631, providing that a person aggrieved by the decision, order, or judgment of the county court shall have the right to appeal therefrom, the remedy by appeal must be resorted to, and one aggrieved cannot restrain the enforcement of such decision of the county court.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 62-65; Dec. Dig. &wkey;28.]
    5. Executors and Administrators &wkey;>30 — Temporary Administrator.
    Under Rev. St. art. 3362, allowing a testator to appoint an executor, and article 3291, providing for the appointment of administrators by the probate court under certain conditions, though an executor named in a will qualified by taking the oath required, he abandoned his office where he gave no bond, failed to take possession of any part of the estate, or to do any act showing his intention to act as such executor, but is contesting the will.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 183-185; Dec. Dig. <&wkey;30.]
    6. Constitutional Law <&wkey;306 — Husband and Wife <&wkey;276(l) — Due Process of Law —Administration of Estates.
    Appointment of a temporary administrator to take charge of all of the community property belonging to the plaintiff and the estate of his deceased wife, made under Rev. St. art. 3559, providing that an executor or administrator shall acquire possession of all common property of .a community estate, is not violative of Const. Tex. Bill of Rights, §§ 9, 13, or Const. U. S. Amend. 14, as to due process of law.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 928, 936, 939, 942-946, 948, 949; Dec. Dig'. <@=>306; Husband and Wife, Cent. Dig. §§ 1032, 1036; Dec. Dig. &wkey;276(l).]
    Appeal from District Court, De Witt County ; W. F. Ezell, Special Judge.
    Suit by John L. Huth for injunction against C. J. Huth and. others. From the action of the court in denying the injunction in part and requiring plaintiff to give bond, plaintiff appeals, and, from the action of the court in granting temporary injunction in part, defendants appeal.
    Judgment refusing the injunction in part affirmed, and judgment granting the injunction in part reversed and rendered.
    Proctor, Yandenberge, Crain & Mitchell, of Victoria, for appellants. Crain & Hartman, Davidson & Bailey, and H. W. Wallace, all of Cuero, for appellee.

       Application for writ of error pending in Supreme Court.

   LANE, J.

For the purposes of this opinion the following statement is sufficient:

John L. Huth, plaintiff herein, and Mrs. Wilhelmine Huth, were husband and wife. Mrs. Huth died in April, 1912. At the time of her death there existed a community es« tate between her and her said husband, John L. Huth, of the estimated value of $75,000. On May 29, 1912, John L. 1-Iuth and W. H. Huth, a son of plaintiff and Mrs. Huth, deceased, filed for probate in the county court of De Witt county an instrument purporting to be the last will and testament of said Mrs. Huth, in which they were named as joint executors. On the 3d day of July, 1912, said will so filed was duly probated as the last will of Mrs. Huth. Plaintiff, John L. Huth, never qualified hs one of the executors, but W. H. Hath, the other party named as executor in the will, qualified by taking the oath as required by law on the 13th day of July, 1912. On the 12th day of July, 1912, the day before W. IX. Huth qualified as said executor, three persons named as appraisers, joined by plaintiff, John L. Huth, prepared what purports to be an inventory and appraisement of the community property of John L. Huth and his deceased wife, Wilhelmine Huth. Said inventory and appraisement was made up, signed, and sworn to by said appraisers and plaintiff, John L. Huth. W. H. Huth, who took the oath as executor on the day after said inventory was made up, never signed or swore to said inventory, nor is there anything to show that he had anything to do with the making or filing of the same.

Among other provisions of said will admitted to probate is the following:

“I give and bequeath to my beloved husband, John U. Huth, all the property of which I shall die seised and possessed, both real and personal, as well as choses in action, of every kind and nature whatsoever and wheresoever situated, to have and to hold, to use and dispose of, absolutely as he may see fit.
“If after the death of my husband there remains any part of my estate, then I desire such remainder to be equally divided among my children, share and share alike.
“I constitute and appoint my son William Huth and my husband, John L. Huth, to be executors of this will and direct that no security be required of them as executors.
“It is my will that no other action shall be had in the court * * * in the administration of
my estate than to prove and record this will and to return an inventory and appraisement of my estate and list of claims. And I authorize and empower my said executors, or the one who shall qualify as such, to sell and dispose of any portion of my estate, real or personal, at public or private sale, in the manner as may seem best to him or them, for the purpose of paying my debts and carrying out the intention of this my last will.”

After the probate of said will, W. H. Huth never at any time took possession or control of any portion of said estate, but plaintiff, John L. Huth, took entire and complete possession and control of all the property of said estate and thereafter proceeded to control, manage, and dispose of the same absolutely and exclusively as he saw fit.

On the 4th day of January, 1916, appellees, including W. H. Huth, executor (except defendants Hagans), filed their petition in the county court of De Witt county contesting the probate of the said will of Mrs. Huth which was probated on the 3d day of July, 1912. They alleged in their petition: That there were no debts against said estate, and. that, some years prior to the pretended execution of said instrument, the plaintiff conceived a violent and unreasonable dislike of' and prejudice against them, his children, and determined that they, and none of them, should have or receive anything from his-estate, or from the estate of their mother, the said Mrs. Wilhelmine I-Iutli, deceased.. That said Mrs. Wilhelmine Huth, deceased, at the time of the pretended execution of the-said will was past 84 years of age and had been suffering for many years prior 'thereto' from physical disease, bedridden a great part of the time, and constantly suffering physical pain. That plaintiff is a man of violent and unreasonable prejudices, moods, and notions, and because of his violent and unreasonable prejudices against them, as aforesaid, and in pursuance of his plan and determination to prevent them, or either of them, from receiving anything from the estate of their-mother in the event of her death, which, on, account of her bodily infirmity and great age, was naturally to be expected at any time, proceeded systematically and constantly to quarrel at, abuse, and threaten the said Mrs. Wilhelmine Huth that, unless she executed the document aforesaid, or some such instrument as would by its terms give and bequeath all of her property and estate unto the plaintiff alone, he would deny her simple desires and comforts; and so constantly worked on the said Mrs. Wilhelmine Huth, influenced her, threatened, and coerced her that finally, in order to secure temporary cessation from the terrible annoyance and cruel overbearing conduct of the plaintiff, she executed the said instrument, if it was ever executed in fact.

“That the said John Huth is now past 93 years of age, feeble in mind and body, and is physically and mentally incapable and incapacitated to handle, care for, and preserve said estate, to wit, the said community estate of himself and the said Mrs. Wilhelmine I-Iuth, deceased, of which these petitioners are entitled to an undivided one-half by reason of being all of the children and heirs at law of the said Mrs. Wilhelmine Huth, deceased. That said estate consists largely of money, notes, securities, chos-es in action, and other personal property, requiring the constant attention of a man of good and‘capable mental and physical ability. That the. said John Huth, by reason of his advanced years and mental and physical debility and senility, is easily a prey to designing persons, who endeavor to and succeed in inducing him to make and enter contracts disadvantageous to said estate, and into venturesome and unwise investments and enterprises. That said John Huth conceived a violent, unreasonable, and almost insane dislike of and prejudice against petitioners, who are his own children, and which prejudice and animosity is wholly unjustified, and he had repeatedly threatened to give away and dispose of during his lifetime all of the said property belonging to said community estate and to the estate of the said Mrs. Wilhelmine Huth, all of which is now in his hands, and petitioners have good reason to believe, and do believe, that, unless their rights are preserved by the immediate appointment of a temporary administrator, he will give away, lose, dissipate, and squander a large part, if not all, of the said community estate and the estate of the said Mrs. Wilhelmine Huth, deceased. That by reason of such facts as hereinbefore stated, a necessity exists for the immediate appointment by this court of a temporary administrator of all the said community estate of the said Mrs. Wilhelmine Huth, deceased, and the said John Huth, under and by virtue of articles 3301 and 3559 of the Revised Statutes of Texas, as well as other laws in such cases made and provided, with full power to take and hold the same subject to the provisions of law in such eases and under the orders of this court, to preserve, control, and manage the same, to pay the necessary taxes, fire insurance, and other fixed charges for the preservation of the said property, to collect the rents, notes, interest, and other claims owing to said estate, to rent the real estate, and in general to preserve, husband, and properly care for all of said community estate, and that such appointment continue in force until the termination of this contest of the said pretended will of the said Mrs. Wilhelmine Huth, deceased.
“Wherefore, petitioners pray that citation issue to the said John L. Huth in the terms of the law, and that the order of the court, made on July 3, 1912, admitting the said pretended will of Mrs. Wilhelmine Huth, deceased, to probate, be vacated, canceled, and forever held for naught, and that said pretended will of Mrs. Wilhelmine Huth, deceased, be by this court denied admission to probate and of record, and same be adjudged and decreed null and void and of no force and effect whatsoever, and for such other relief, both special and general, as these petitioners may show themselves entitled to upon a trial of this cause; and they further pray that the court immediately make and enter its order in this case appointing some proper and qualified person as temporary administrator of all of said community estate of said Mrs. Wilhelmine Huth, deceased, and said John L. Huth, under said bond as to the court may seem proper, with powers as hereinbefore stated, and such additional powers and duties as to the court may seem proper.”

On the 8th day of January, 1916, the judge of the county court granted the prayer of appellees and entered an order duly appointing E. Hagans temporary administrator of the estate of Mrs. Huth, with power to take into his possession the entire community estate of John L. Huth and his said deceased wife, pending said contest of said will. Thereafter, on the said 8th day of January, 1916, said Hagans duly and legally Qualified as such temporary administrator in manner and form as required by law and undertook to perform the duties incumbent upon him as such temporary administrator.

It is also shown that on the 14th day of January, 1916, appellees (except Hagans) filed and offered for probate in said county court a certain instrument alleged to have been executed by Mrs. Wilhelmine Huth, on the 28th day of November, 1910, as her last will, and that citation was duly issued upon such application for such probate as required by law, returnable to the next term of said court.

On the 4th day of February, while said will contests and temporary administration were still pending, plaintiff, John L. Huth, presented his petition to the Honorable John M. Green, judge 'of the district court of De Witt county, praying for a writ of injunction against all of the appellees, to wit, the children of Mrs. Huth, deceased, and said temporary administrator, E. Hagans, to restrain them (1) from longer asserting' any claim or demand whatever against plaintiff, John L. Huth, based upon said order of said county couit of De Witt county in said contest proceedings, and (2) to restrain said E. Hagans from acting as temporary administrator of said estate and from asserting any authority as such, or from asserting any right whatever to any possession, control, or authority over said property constituting the community estate of plaintiff and his said deceased wife. Judge Green refused to act upon plaintiff’s petition for good reason shown, and the same was then presented to W. F. Ezell, judge of the Seventy-Third district court of San Antonio, Tex. On the 9th day of February, 1916, while said contest and temporary administration was still pending, Judge Ezell heard said petition and entered an order restraining E. Hagans from exercising any possession, control, or authority over the interest of plaintiff John L. Huth in the community property of plaintiff and his deceased wife, Wilhelmine 1-Iuth, and from dispossessing the said John Huth of such property upon the giving of a bond by plaintiff as required by law in the sum of $2,000. But the injunction prayed for was refused in so far as it was sought to restrain said temporary administrator, E. Hagans, from asserting authority and right to the possession, control, and management of the interest in said community property owned by the said Wilhelmine Huth, deceased. From the action of the court in denying said injunction in part and in requiring plaintiff to give bond, the said John D. Huth has appealed, and, from the action of the court in granting said temporary injunction in part as against appellees, they have appealed.

Appellant John L. Huth presents his complaint by 17 main, and 9 subsidiary, propositions. To discuss these numerous propositions separately and in detail would necessitate an opinion of unreasonable length. We shall therefore condense said propositions by giving their substance and decide the matters presented in a general discussion.

Appellant contends: First, that as he was in peaceable possession of the- property in question, of the estimated value of $80,000, one-half undivided interest of which belonged to him as the reward of his own thrift, and the other one-half undivided interest of which being the subject-matter of a devise from his wife, under the terms of a duly probated will, he cannot be deprived of the possession of such property, of such value, by an order or decree of the probate court of De Witt county, because the amount in controversy is beyond the jurisdiction of said court; that the probate court cannot dispossess him of such property under probate proceedings, such as a contest, or proceedings to set aside the probate of his wife’s will, and as ancillary thereto the appointment of a temporary administrator; and that the attempt so to do by said probate court is void, and an absolute nullity for any purpose, and therefore the exercise of the powers attempted to be conferred by the orders and decrees of said court in appointing E. Hagans temporary administrator of the estate of his deceased wife, with powers to take from appellant the possession, control, and management of all or any portion of said property, should have been enjoined by the district court as prayed for. Second. That as W. H. Huth, and appellant, John D. Huth, are named in the will of Mrs. Huth, which had been probated on the 3d day of July, 1912, as independent executors, and as W. I-I. Huth, one of the parties so named, had qualified by taking the oath as such executor, an administration of the estate of Mrs. Huth was pending, and the property belonging to said estate was, as a matter of law, in the possession of a permanent independent administrator, and as, at the time the judge of the probate court of De Witt county appointed E. Hagans temporary administrator in said contest proceedings, such permanent administration was pending, such appointment was a nullity and void, and conferred no power upon said Hagans to take or attempt to take possession of said property, and therefore the district court should have granted the injunction prayed for in full.

The appellees’ contention is that the judge of the probate court of De Witt county had the power to appoint E. Hagans temporary administrator with power to take possession, control, and management of the undivided community estate of John L. Huth and his deceased wife, pending said contest of the will of said wife, that the same might be preserved pending said contest under the provisions of article 3301 of our Civil Statutes; that he did so appoint said Hagans; that said Hagans duly qualified as such temporary administrator; that such temporary administration was, at the time the injunction prayed for in this case was asked for, and partly granted, pending, and is still pending in said probate court, and therefore •W. E. Ezell, judge of the district court of the Seventy-Third judicial district, had no authority to grant any part of the injunction prayed for; and that he erred in so doing.

That a discussion of the questions above presented may be better understood, we here quote the following articles of our Civil Statutes.

Chapter 26, arts. 3527 to 3555, makes provision for the partition and distribution of estates of deceased persons by the probate court.

Articles 3556, 3557, 3559, 3560, 3301, and 3631 provide as follows:

“Art. 3556. When any husband or wife shall die leaving any common property, the survivor may: At any time after letters testamentary or of administration have been granted, and an inventory, appraisement and list of the claims of the estate have been returned, make application in writing to the court which granted such letters for a partition of such common property, which application shall be acted upon at-some regular term of the court.
“Art. 3557. If, upon the hearing of such application, there appear to be any such common property, and such surviving husband or wife shall execute and deliver to the county judge an obligation with two or more good and sufficient sureties, payable to and approved by the said county judge, for an amount equal to the value of his or her interest in such common property, conditioned for the payment of one-half of all debts existing against such common property, then the county judge shall proceed to make a partition of said common property into two equal moieties, one to be delivered to the surviv- or and the other to the executor or administrator of the deceased; and all of the provisions of this chapter respecting the partition and distribution of estates shall apply to any partition made under the provisions of this article, so far as the same may be applicable.”
“Art. 3559. Until any such partition of common property is applied for and made as herein provided, the executor or administrator of the deceased shall have the right, and it shall be his duty, to recover possession of all such common property and hold the same in trust for the benefit of the creditors and others entitled thereto under the provisions of this title.
“Art. 3560. Any person having a joint interest with the estate of a decedent in any property, real or personal, may make application to the county court from which letters testamentary or of administration have been granted on said estate, to have a partition thereof; whereupon the court shall proceed to make a partition of said property between the applicant and the estate of the deceased; and all the rules and regulations contained herein in relation to the partition and distribution of estates shall govern partitions under this article so far as the same are applicable.”
“Art. 3301. Pending any contest relative to the probate of a will, or the granting of letters of administration, whether such contest be in the county court or in the district court, it shall be the duty of the county judge, should ho deem it necessary, to appoint a temporary administrator in the manner prescribed in the preceding articles in this chapter, with such limited powers as the circumstances of the case may require; and such appointment may continue in force until the termination of the contest and the appointment of an executor or administrator with full powers.”
“Art. 3631. Any person who may consider himself aggrieved by any decision, order, decree or judgment, of the county court shall have the right to appeal therefrom to the district court of the county, upon complying with the provisions of this chapter.” This article is embraced in chapter 22, Revised Statutes relating to probate matters.

Prom the articles of the statutes above quoted, we conclude:

First. That at any time, pending the contest of a will, whether such contest be pending in the district court on appeal, or in the county court, it is not only the right, but the duty, of the county judge to appoint a temporary administrator with such powers as the circumstances of the case may require, whenever he deems such appointment necessary to preserve such estate from waste, and to continue in force such temporary administration until the termination of such contest, and until the appointment of a permanent executor or administrator with full powers is made. Revised Statutes, art. 3301.

Second. That such temporary administrator has the power, when so given by tbs court in the order of appointment, to take or recover possession of all the common property of the estate, and to hold the same in trust for the benefit of those entitled thereto, until such contest is determined. Revised Statutes, art. 3556.

Third. That if any person has a joint interest with said estate of a decedent in any property, real or personal, he may make application to the county court in which the administration of such estate is pending, to have a partition of the property belonging to said joint estate, and, when such application is made, it is the duty of the court to proceed to make a partition of said property between the applicant and the estate of the deceased. Revised Statutes, arts. 3557, 3560.

Fourth. That if any person may consider himself aggrieved by any decision, order, decree, or judgment of the county court, he has the right to appeal from such decision, order, decree, or judgment to the district court of the county in which such administration is pending, and that he must resort to the remedy thus given for relief, and that he is not entitled to an injunction to restrain the enforcement of such decision, order, decree, or judgment of the county court.

We think from what has already been said it is evident that we think the trial court erred in granting an injunction in any manner restraining said temporary administrator from exercising- the powers conferred upon him by the order of the probate court.

But the appellant contends that, at the time B. Hagans was appointed temporary administrator, the estate in question was in the hands of a permanent administrator, or of appellant as devisee under the will of Mrs. Huth, and therefore no necessity existed for the appointment of a temporary administrator, and that for this reason the order making such appointment was a nullity, and, being a nullity, a court of equity had the right to enjoin such appointee from interfering with Ms possession, control, and management of said estate.

We think we may state the following to be undisputed facts: The will probated on July 3, 1912, purporting to be the last will of Mrs. Huth, named John L. Huth, her husband, plaintiff herein, and W. H. Huth, her son, as independent executors without bond; that plaintiff, John L. Huth, never qualified as executor under said will; that W. H. Huth took the oath required by law of executors, and only to this extent qualified as executor under said will; that W. IT. Huth never at any time took possession, control, or management of any portion of the property belonging to said community estate, or in any wise exercised, or attempted to exercise control or management of the same; that John L. Huth, a man of 90 years of age, took exclusive possession, control, and management of the entire property belonging to said community estate of himself and his deceased wife, in July, 1912, under the claim that he owned a one-half undivided interest thereof as the reward of his own thrift, and that he owned the other one-half thereof under the will now being contested in the probate court of De Witt county; that said John L. Huth has, since the death of his wife, disposed of a large portion of said common property, and that he was, at the time said temporary administrator was appointed, threatening to dispose of the remainder thereof; that W. H. Huth, nor any other person, was under bond as executor or, administrator to said estate or any part thereof; that said W. H. Huth had at all times failed to take possession of any part of said estate after his qualification as executor under said will, or to do any other act showing an intention to act as such executor, but, on the contrary, he joined the other children of Mrs. Huth in contesting the instrument probated as her'will, under which he is said to have qualified as such executor, and thereby abandoned his executorship.

From the facts above recited, we think it clear that there was no qualified executor or administrator of the estate of Mrs. Huth, deceased, and that no one was administering said estate, at the time the probate court of De Witt county resumed jurisdiction over the same and appointed E. Hagans temporary administrator. We think it equally clear from such facts, and from the law hereinbe-fore cited, that the order of said probate court appointing E. Hagans temporary administrator with power to take charge of, hold, and manage said estate until the pending contest of the will of Mrs. Huth is terminated, and until a permanent administrator, if necessary thereafter, is appointed and qualified, was lawfully made and entered, and that such order is not a nullity or void, as contended by appellant. Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367; Langley v. Harris, 23 Tex. 569; Prather v. McClelland, 76 Tex. 584, 13 S. W. 543; In re Estate of George W. Grant, 93 Tex. 68, 53 S. W. 372.

In the ease first cited, our Supreme Court held that the object of article 3362, Revised Statutes, was to enable a testator to commit the management of his estate to such person or persons as he might name, but not to so far withdraw the estate from the jurisdiction of the court that the settlement of it could not be resumed in case the trust should lapse by the failure of the executor to discharge his duties; that, if the person named as independent executor in the will fails to accept or to exercise the trust, it is at an end, and the court must appoint an administrator to administer the estate under the control of the court; that if the estate should cease to be represented by the abandonment of the trust by the executor named in the will, it would fall within the provisions of article 3291, Revised Statutes, which provides for the appointment of administrators of estates by the probate court under certain conditions.

In the case of Estate of George Grant, supra, in speaking of the duties of the probate court when an independent executor, named in a will, abandons his trust, it is said:

“It must treat tlie provision for an independent administration as having failed for the want of an executor, and must proceed under the general law and resume entire control of the administration.”

In the case of Langley v. Harris, supra, it is held that, when the executor named in the will fails to accept and exercise the trust, it is at an end; and the county court must appoint an administrator with the will annexed.

We do not think that in the face of the authorities cited, and the facts of the case, it can longer be seriously contended that the county court of De Witt county did not have the authority to appoint a temporary administrator to take charge of the property belonging to the estate of Mrs. Iluth, deceased, pending the contest of her will.

Appellant, however, makes the further contention that if it be conceded that the county court of De Witt county had the lawful authority to appoint a temporary administrator of the estate of his deceased wife, with power to take possession of the property belonging to said estate, still said court had no lawful authority to empower said temporary administrator to take possession of appellant’s one-half undivided interest of the community property belonging to himself and the estate of his deceased wife; that the order of said court intending to confer such powers is void, because such appointment is an attempt to unlawfully seize and deprive appellant of his property without due process of law, in violation of sections 9 and 13 of the Bill of Rights of the Constitution of the state of Texas, and the Fourteenth Amendment to the Constitution of the United States.

We do not think this contention tenable. The whole of the property in question was the common property of appellant and the estate of his deceased wife, a one-half undivided interest of which was owned by appellant and the other one-half of which belonged to the estate of his deceased wife. Such property consisted of real and personal property, money, notes, choses in action, etc., and is incapable of an equitable partition and division between appellant and the estate of his deceased wife, without the intervention of a court of competent jurisdiction. It is provided by article 8359, Revised Statutes, that, until a partition of common property is applied for and made as therein provided, the executor or administrator of the deceased shall have the right, and it shall be his duty, to recover possession of all such common property and hold the same in trust for the benefit of the creditors and others entitled thereto under the provisions of said article. We think that, in view of what has been said, there can be no serious doubt that the county court had the authority to appoint and empower the temporary administrator to take possession of the whole of said common property and to hold the same until a partition is had, as provided for by article 3560, Revised Statutes, hereinbefore set out, or until said will contest is terminated and a permanent administrator is appointed and qualified. Therefore it follows that the ordeifap-pointing said temporary administrator with such powers was not void, nor was there any attempt to deprive appellant of his property without due process of law, as contended by him.

What has been said disposes of all the contentions made by both parties to this appeal.

Our conclusion is that the trial court should have wholly refused the injunction prayed for by appellant. Therefore so much of the judgment of the trial court as refused the injunction in part is affirmed', and so much of said judgment as enjoins and restrains E. Hagans, as temporary administrator as the estate of Wilhelmine Iluth, deceased, from asserting authority or right as such temporary administrator, to the possession, control, and management of the whole of said community property, is here reversed, and it is here ordered that said prayer of appellant for said injunction be wholly refused.

Affirmed in part. Reversed and rendered in part.
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