author: RASBURY, J.

text:
    CHAPMAN v. WITHERSPOON.
    (No. 7670.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1917.)
    1. Evidence &wkey;o441(l) — Parol Evidence to Vary Terms of Wbitten Instrument.
    A written contract may not be varied by proof of oral contemporaneous or other agreements.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1756.]
    2. Pleading &wkey;>205(l) — Demurrer—Effect.
    The effect of a general demurrer is to declare that the facts stated in the petition, though true, do not entitle plaintiff to any relief on any theory.
    [Ed. Note. — For other cases, see Pleading, Cent Dig. § 491.]
    3. Pleading <&wkey;34(3) — Sufficiency — Presumptions on Demurrer!.
    On a general demurrer, if upon a fair, reasonable construction of the complaint, giving to all ambiguities that reasonable interpretation most favorable to the complaint, there appear in it sufficient facts to show a legal right in plaintiff, demurrer should be overruled.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69.]
    4. Pleading &wkey;>205(2) — Demurrer.
    Where complaint in action on oral agreement to refund portion of commission on payment of purchase-money notes did not disclose consideration of defendant’s promise to pay, a general demurrer could not be sustained on the ground that the only cause of action was one tending to vary terms of a written contract, since under the pleading the consideration might be based upon some matter independent or collateral to the payment of notes involved in the purchase of the land.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 492.]
    5. Evidence <&wkey;441(l) — Parol Evidence to Vary Written Instrument — Admissibility.
    Evidence of a prior or contemporaneous parol agreement or understanding is frequently admissible where it is consistent with the writ-mg in question and it is apparent that the instrument was not intended as a complete embodiment of the undertaking.
    [Ed. Note — Eor other cases, see Evidence, Cent. Big. §§ 1756, 1757.]
    6. Evidence @=55141(11) — Pabol Evidence to Vary Written Instrument.
    Where plaintiff executed notes for balance of purchase price of land, a parol agreement that, if he should pay notes in reasonable time, he should receive rebate of $350 from $500 commission, held not inconsistent with written instruments or notes, and therefore not inadmissible as tending to vary their terms; it being apparent that notes were not intended as complete embodiment of transaction.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1799-1812, 2043, 2044.]
    7. Appeal and Error <@=51002 — Review — Sufficiency of Evidence to Sustain Verdict.
    In an action to recover money on oral contract, where the testimony of the parties is in direct conflict, and neither is corroborated by other witnesses or circumstances, a verdict of the jury will not be set aside as contrary to the weight and preponderance of the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]
    8. Appeal and Error &wkey;5l002 — Review — Sufficiency of Evidence to Sustain Verdict. ,
    In an action on an oral contract to refund $350 out of $500 commission for sale of lands if plaintiff paid unpaid purchase-money notes within reasonable time, a verdict for plaintiff on conflicting evidence will not be set aside on the ground that the evidence shows defendant entitled to a greater sum for commissions than would be left after refunding $350, where it appears that the commission agreed upon was a compromise sum arrived at without reference to value of lands.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Action by W. A. Witherspoon against O. H. Chapman. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Supple & Harding, of Waxahachie, for appellant. Farrar & McRae, of Waxahachie, for appellee.
   RASBURY, J.

Appellee sued appellant upon an oral contract to pay $350, and recovered verdict and judgment, from which this appeal is prosecuted.

At the inception of the trial the sufficiency of appellee’s pleading was drawn in question by general demurrer, which the court overruled, and which on this appeal is assigned as error. As a consequence it is necessary to recite the substance of the facts alleged in appellee’s petition. Omitting formalities, they are these: At the time of making the oral agreement sued on appellee was employed by appellant, a real estate broker, at an agreed monthly salary, on condition that appellee, who was personally also buying and selling lands, should on all lands bought or sold on his personal account pay appellant a brokerage or commission of 2% per cent. While said agreement was in force ap-pellee agreed with one S. B. Witherspoon to exchange 147 acres of land in Coleman county owned by appellee for about 131 acres of land in Ellis county owned by said S. B. Witherspoon; appellee in the exchange to assume an outstanding debt against the Ellis county lands of about $7,000, secured by the vendor’s lien and owned by appellant. When about to consummate the exchange appellant demanded a commission of $500 on the land to be conveyed to appellee and a commission of 2% per cent, on that to be conveyed by him. Appellee conceded appellant’s right to a commission on the sale contemplated by appellee to Witherspoon, but denied it on the sale contemplated by Witherspoon to appellee. Appellant then declared he would prevent consummation of the exchange unless he received the sums claimed; whereupon, the exchange being advantageous to ap-pellee, and after considerable negotiations, it was mutually agreed between appellee and appellant that the exchange should be consummated ; appellee to execute his notes in lieu of those existing against the S. B. With-erspoon land, including therein the additional sum of $500, on condition appellant would pay appellee $350 when said notes were paid. New notes were so executed. Appellant, before maturity of the notes, sold same to another, and appellee paid to such purchaser the amount thereof. After payment suit was brought to recover the $350. Such are the facts alleged in appellee’s petition as constituting his cause of action and against which the general demurrer was leveled.

While it is not necessary to a disposition of the issue arising on the court’s action in overruling the demurrer to state the facts alleged in appellant’s answer, we do so in order that appellant’s theory of the controversy may in other respects be intelligently comprehended. They are in substance these: Appellee was employed by appellant in his brokerage business at a stipulated salary on condition that appellee would pay appellant a commission of 2% per cent, on all land sold personally by appellee while so employed as well as a similar commission on all lands purchased by appellee and listed with appellant for sale if the owner did not pay same. S. B. Witherspoon’s lands which he exchanged for appellee’s lands were listed with appellant for sale on a commission of 5 per cent. When the exchange was about to be consummated S. B. Witherspoon refused to make the exchange if he was expected to pay a commission. Based on the value placed on their lands by appellee and Witherspoon, appellant was entitled to receive from appellee $238.87, and from Witherspoon $654.06, or a total commission of $892.93. In such connection it was necessary to advance $5,000 in cash and carry about $7,772 in long-term notes, in order to consummate said exchange, which appellee was wholly unable to do. Appellant was able and willing to advance the money and carry the notes, hut was unwilling to waive his commissions. Appellee considering the exchange profitable continued negotiations with appellant, who finally agreed to waive all commissions, save $500, and to advance the money and carry the notes, in consideration of which appellee agreed to pay appellant said commission of $500. Thereupon the exchange was consummated, and said $500 included in the notes given by appellee in payment of Witherspoon’s lands. Subsequent to all the foregoing appellee quit appellant’s service when a complete settlement of their affairs was had, no claim being made by appellee in reference to the $350 sued for. Before appellant sold appellee’s notes he discussed the sale with appellee, who then made no claim for the $350, only requesting appellant to arrange with the purchaser for appellee to take up the notes before maturity, which was done. Such were the facts alleged by appellee as constituting the arrangement finally made.

The first contention is that the court erred in overruling appellant’s general demurrer directed against appellee’s petition. The proposition asserted is that, the contract alleged being oral, and the effect of it being to vary the terms of a written contract (the notes described in the petition), no cause of action was disclosed by the petition in the absence of any allegations of fraud, accident, or mistake. Many cases are cited by appellant which sustain the well-settled general rule that the terms.and provisions of a written contract which will include promissory notes may not be varied by proof of oral contemporaneous or other agreements, of which Lanius v. Shuber, 77 Tex. 25, 13 S. W. 614, is typical. The rule invoked is so elementary that we refrain from a discussion of it, since to do so would be but to reiterate it. But it does not follow, in our opinion, from the allegations of appellee’s petition that proof of the oral contract under which he sought to recover $350 would in every legal sense vary the terms of the notes given in payment of the land and appellant’s commission. The demurrer is a general one, the effect of which is to declare that the facts stated in the petition, though true, do not entitle plaintiff to any relief on any theory from the court. If upon a fair, reasonable construction, giving to all ambiguities the reasonable interpretation most favorable to the pleading, there appear in it sufficient facts to show a legal right in the plaintiff, the demurrer should be overruled. Townes’ Pleading, 530. By such rule it is our duty to determine, not that the pleading may not be construed to contemplate proof of an oral contract which would vary the notes, but that it does on other grounds show a legal right in appellee to recover. The substance of the facts shown to constitute the oral contract is that there was a difference between appellee and appellant concerning the payment of a commission. It was finally agreed that $500 should be paid, to be included in the notes given in payment of the land. It was agreed at the same time that appellant would pay appellee $350 when he paid the land notes aggregating $7,772. What the consideration of appellant’s promise to pay the $350 was, is not disclosed by the petition. A special exception would have produced a more specific or sufficient allegation in that respect and would have disclosed upon the pleading whether or not it was a consideration which in law constituted a variance of the notes, or whether the consideration was based upon some independent or collateral matter the payment of the notes merely marking the time when the right to performance was due. Such being a reasonable deduction from the pleading, it cannot be said that the general demurrer should have been sustained on the ground that the only cause of action disclosed by the petition was necessarily one tending to vary the terms of the written contract. Accordingly the first assignment is overruled.

The second assignment of error challenges the action of the court in admitting certain testimony over the objection of appellant. Appellee testified to his employment by appellant and .to the fact that he reached an agreement with S. B. Witherspoon for an exchange of their lands. Following such testimony he related his version of the dispute with reference to commissions, which, in substance, is as follows: When appellee informed appellant that he had traded with S. B. Wither-spoon, appellant inquired whether appellee had arranged for S. B. Witherspoon to pay him a commission, and appellee informed him he had not. Appellant then told appellee to get Witherspoon to his (appellant’s) office, as he thought he could talk him out of a commission. After inducing Witherspoon to visit appellant’s office, appellee went to the courthouse, where he was serving as a juror, and in a few minutes appellant came to the courthouse and informed appellee that Wither-spoon would not pay a commission. Appel-lee replied he (Witherspoon) “was not entitled to pay any.” Appellant then said: “If you take that stand against me, I will make you pay it. I am going to have $500 out of the trade.” Appellant returned to his office. In a few minutes appellee was excused from jury service at the courthouse, going thence to appellant’s office, where considerable discussion about the matter was had, and some feeling engendered. Appellant, however, stood firm in his demand for $500. Appellee then consulted with S. B.' Witherspoon, who declined to pay any commission. He then returned to appellant’s office and said to appellant: “There is nothing right about what you are doing, but I am going to allow you the $500, added to the indebtedness, with the understanding that if I take up those notes that you hold in a reasonable length of time that you will pay me bach $350.” He said: “X will do it.” There is testimony tending to show that the notes were paid by appellee in a reasonable time. It was to the testimony relating to appellant’s promise to pay the $350 if the notes were taken up in a reasonable time that appellant objected, and which it is asserted was inadmissible, because its effect was to vary by parol the provisions of the written contract (the notes), without pleading fraud, accident, or mistake in its execution. That parol evidence is inadmissible to vary, alter, control, or contradict the terms of a written instrument in an action founded upon such writing between the parties or privies is also so elementary and well settled that we will not attempt a discussion of the rule or a review of the cases cited as sustaining the rule, save to say that the reason underlying the rule is, of course, thaf all previous negotiations are merged in the writing which presumably in terms embodies the final agreement.

However, it is an equally well-settled exception to the rule that:

“Evidence of a prior or contemporaneous pa-rol agreement or understanding is frequently received, where it is consistent with the writing in question, and it is apparent that the instrument was not intended as a complete embodiment of the undertaking.” 5 Chamberlayne, Mod. Law Ev. 4930, § 3553.

The rule is approved in this jurisdiction by early and late adjudications. Thomas v. Hammond, 47 Tex. 51; Henry v. McCardell, 15 Tex. Civ. App. 497, 40 S. W. 172; Downey v. Hatter, 48 S. W. 32; Hansen v. Yturria, 48 S. W. 797; Peel v. Giesen, 21 Tex. Civ. App. 334, 51 S. W. 44; Kelley Plow Co. v. London, 59 Tex. Civ. App. 208, 125 S. W. 974.

The question then is: Is the agreement claimed by appellee inconsistent with the writing (the notes), and is it apparent that the writing (the notes) was not intended as a complete embodiment of the undertaking? We believe the parol agreement to be entirely consistent with the written agreement. Appellant testified that the charge of $500 made for commissions or for financing the trade between appellee and Witherspoon was based largely on the fact that the notes which he had agreed to carry would be hard to negotiate, due to the fact that they covered a period of eight or ten years, and as a consequence a one way commission would not be satisfactory. He also- testified that he would refund $100 of the $500 if appellee would “cash” the notes. It thus appears practically without dispute that the sum to be paid was based largely upon the fact that appellant would be compelled to carry the notes for so long a period and appellant’s funds would accordingly be beyond his control for other purposes. Such being true, it was, it occurs to us, entirely consistent for the parties to agree collaterally and independently that in the event appellee paid off the notes in a reasonable time a portion of the charge for¡ commissions and financing the trade should be refunded. We also conclude that it is apparent from the writing that it is not a complete embodiment of the agreement, or, stated in another way, that it does not presuppose an exclusion of the collateral or .independent agreement. The writing is .but a formal promissory note, and because of its character and brevity essentially fails to import that all stipulations between the parties with reference to the subject-matter were intended to be expressed by the note, and because, further, the omission to express in the note the other agreement does not indicate that the agreement was not made, particularly so in view of the fact that the right to receive the $350 was dependent upon the payment of the note in a reasonable time.

What we have just said disposes adversely of appellant’s third and fourth assignments of error, which, in effect, assert that appellant was entitled to a peremptory instruction.

The fifth assignment' of error asserts that new trial should have been awarded on the ground that the verdict was so against the weight and preponderance of the evidence as to be manifestly wrong. We are not authorized to so hold as matter of law. Appellant testified to one state of facts, the appellee to another. There is in the testimony no witness or circumstance that can be said to corroborate either. To reconcile or adopt as-true one of the theories of the contract was peculiarly the duty of the jury, who saw the witnesses and heard their testimony, and for us to interfere and set aside the verdict would be an unwarranted invasion of the jury’s prerogative.

The sixth and seventh assignments of error assert, in effect, that the verdict was unwarranted and against the weight and preponderance of the evidence, because under the terms of appellee’s employment appellant would have been entitled to a greater sum as commissions than is left him after deducting the $350. Waiving whether there is in the record any evidence which would definitely disclose how much appellant was entitled to under his contract with appellee, we think it appears without dispute from the evidence of both appellee and appellant that the sum agreed upon as commissions for selling the land ■ and financing the transaction was a compromise sum agreed upon without reference to the value of the lands and the sum to which appellant was entitled as commissions, and that as a consequence it cannot be said that the verdict is in any sense against the weight and preponderance of the evidence.

Due to the fact that the jury adopted appel-lee’s theory of the facts, we have not set out appellant’s testimony, since to do so would conserve no useful purpose. It may be said, however, that it was in fiat contradiction of appellee’s testimony on controlling points, and was sufficient to have sustained a verdict of the jury based tbereon.

The judgment is affirmed.
      <®u»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <^»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    McINTOSH v. ATCHISON, T. & S. F. RY. CO.
    (No. 652.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1917.)
    1. Jury <&wkey;>85 — Challenges—Discretion or Cornu.
    The trial court may allow a challenge for cause on other grounds than those which render a juror disqualified in the particular case, and when this discretionary power is exercised, it ought not to be reversed, unless it clearly appear that the party complaining has been deprived of a trial by a fair and impartial jury.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 405.]
    2. Appeal and Error <&wkey;1001(3) — Review-Issues — Scope.
    An assignment of error that the court erred in rendering judgment for defendant by reason of a jury finding of violation of the federal Safety Appliance Act cannot be sustained where there is neither pleading nor evidence of such violation by the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3934.]
    3. Appeal and Error <&wkey;1170(10) — Review— HARMLESS ERROR.
    In action for personal injuries, where the jury in answer to special issues found that the accident was unavoidable, and that the defendant was not negligent, special instructions given at defendant’s request which in effect charged that it was plaintiff’s duty to inspect the appliance causing the injury could not affect the result, and, under rule 62a (149 S. W. x), did not justify a reversal of judgment for defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4544.]
    4. Trial <&wkey;260(l) — Requests—Instructions Covered by General Charge.
    The refusal of requested instructions is not error where the instructions are sufficiently ■given in the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    5. New Trial <&wkey; 143(4) — Impeachment op Verdict — Aefidavits op Jurors.
    Under the rule that verdicts in civil cases cannot he impeached by affidavits or testimony of the jurors, a motion for new trial based on the affidavits of jurors that if they had known the effect of their answers to certain questions they would have answered differently was properly refused.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 295.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by R. H. Mclntosb against the Atchi-son, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Geo. E. Wallace, of El Paso, for appellant. Turney & Burges, of El Paso, and A. H. Cul-well, Terry, Cavin & Mills, and Juo. G. Gregg, all of Galveston, for appellee.
   HARPER, C. J.

R. H. Mclntosb instituted this suit against the Atchison, Topeka & Santa Fé Railway Company for damages for personal injuries under substantially the following allegations: That in May, 1915, while employed by defendant as a brakeman, in the operation of interstate trains, as the train upon which he was working entered San Bernardino, Cal., and as he was passing along a running hoard, his foot struck a nail or spike which protruded from the said running hoard, and he was caused to fall from the top of the car and injured.

Defendant filed general denial and pleas of assumed risk and contributory negligence Tried with jury. Submitted upon special issues, and upon the answers thereto, the court entered judgment for defendant, from which this appeal is prosecuted.

The first assignment charges that it was error to overrule peremptory challenges to certain jurymen, because their answers to question on their voir dire showed that they had such bias and prejudice against the plaintiff and the cause of action as to render them unfit and partial jurors.

The record shown by the bill of exception discloses that the challenge overruled or refused by the court was one for cause, and not a peremptory challenge as asserted in the assignment. Each of the three jurymen in answer to questions stated that in a case where plaintiff resided in California, and, the accident having occurred there, the suit was brought here, it would take more evidence for them to return a verdict for plaintiff than if he resided here and the accident had occurred here, and one of them testified that he had a prejudice against all suits for damages for personal injuries. Upon being interrogated by the court and defendant’s counsel, they stated that they would take that state of mind into the jury box, but that they would render a fair and impartial verdict according to the law and the evidence. The court overruled the challenge for cause, and the jurymen were challenged peremptorily, and three others (naming them) were taken in their place, which would have been challenged peremptorily. The bill further recites that when, after verdict, the jurymen were summoned before the court, at the request of plaintiff, to inquire into the verdict rendered, the three jurymen taken testified that they intended to so answer the special issues submitted as to give plaintiff a judgment for $7,500.

The rule applicable to such state of facts is that:

“The court, trying a cause, may allow a challenge for cause on other grounds than those which are declared to render a juror disqualified in the particular case, and when this power, which must necessarily be discretionary in character, is exercised, it ought not to be reversed in any case unless it be made clearly to appear that thereby the party complaining has been deprived of a trial by a fair and impartial jury.” Couts v. Neer, 70 Tex. 468, 9 S. W. 40.

The only showing attempted in this respect (the latter) is that plaintiff was compelled to accept three jurymen that he would not otherwise have accepted but for the fact that his peremptory challenges were exhausted, and as to these therq is no indication that they were not fair and impartial jurymen, but upon the contrary, the bill of exceptions filed by appellant discloses that each of them upon oath stated that they thought they were finding the facts in response to special issues which authorized him (appellant) to recover, which, it seems to us, is conclusive proof that they were in fact impartial. Overruled.

The second assignment reads:

“Because the court erred in rendering judgment in favor of the defendant and against the plaintiff on the answers of the jury to the special issues, for the reason that it was shown that the car from which plaintiff fell was engaged in being moved as an interstate shipment, and was being operated in an interstate shipment by plaintiff and defendant in violation of what is known as the federal Employers’ Liability Act and the federal Safety Appliance Act, and the rules and regulations made thereby by the Interstate Commerce Commission by authority of what is known as the federal Safety Appliance Act in that the running board was fastened and maintained to said car in violation of law, by reason of the fact that nails were used to fasten said running board on said car instead of screws and bolts, as provided by the Interstate Commerce Commission by virtue of the Safety Appliance Act, and by reason of the fact that the jury found that plaintiff’s fall was due to striking a nail, the defendant was guilty of negligence per se, and plaintiff, under said law, could not be guilty of contributory negligence, or assume the risk, and the court should have rendered a judgment for plaintiff for the sum of $10,000.”

The proposition is:

“The evidence being undisputed that plaintiff was engaged in interstate commerce, and the jury having found that he was injured by striking his foot against a nail used to fasten the running board on an interstate car in vior lation of the rules of the Interstate Commerce Commission, the court should have rendered a verdict for plaintiff, even though the jury also found that plaintiff was guilty of contributory negligence or assumed tbe risk.”

The answer is that there is neither 'pleading nor evidence that the nail claimed to have been the cause of the accident was used to fasten the running boards; so, even if it be true that a rule of the Interstate Commerce Commission requires running boards to be fastened on with screws and bolts, there being no evidence that the railway company had not complied with the rule, and none that the nail in question was used for that purpose, the assignment is without foundation in fact. Overruled.

' By his third and fourth assignments he urges that it was error to give the following special issues and defendant’s special charge because they charged that it was the duty of plaintiff to inspect the car and its appliances.

Six and 7 of the general charge read:

“No. 6: Did the plaintiff know, or by the use of ordinary care could he have known, of the existence of such a nail?
“No. 7: If you have answered the former question in the affirmative, then did plaintiff know, or by the exercise of ordinary care could he have known, of the risks and dangers incident to passing over such car?”

Special charge No. 1, as complained of, given for defendant, reads:

“You are instructed that a railway company is not an insurer of the safety of their employés, and that an employs of a railroad company assumes all the risk and dangers which are ordinarily incident to his employment; and he also assumes all risks and dangers incident to the employment in which he is engaged as such business is actually conducted, whether naturally inherent in the conduct of said business, or not, and of which risk and dangers the employe knew, or must have known in the exercise of ordinary care for his own safety, in the performance of the duties of his employment.
“Now, bearing in mind the foregoing instrument, you will answer this question:
“Special issue No. 1 requested by defendant: Do you find from the evidence that plaintiff was caused to fall by one of the risks incident to his employment? Answer ‘Yes’ or ‘No.’
“Special issue No. 1A requested by defendant: If you have found that plaintiff tripped over a nail on the running board of said car, then state if the risk or danger of tripping over said nail was one of the risks ordinarily incident to his employment.”

In view of the fact that the jury found that the accident was unavoidable, and that the defendant was not guilty of negligence, we cannot see how such charge affected the final result. Rule 62a (149 S. W. x). Overruled.

The seventh complains of the failure of the court to give special charges requested by plaintiff upon assumed risk. In this there was no error, for the reason that the general charge contained a sufficient definition.

The fifth and sixth urge that the court should have granted the motion for a new trial because upon inquiry of the jurymen after their verdict was rendered and after they had been discharged they testified that, if they had known of' the effect of their answers as made to certain questions, they would have answered differently; that they were misled by the foreman, etc. It is well settled that verdicts of juries iu civil cases cannot be impeached by affidavits or testimony of the jurors themselves. Railway Co. v. Ricketts, 96 Tex. 71, 70 S. W. 315; Crosby v. Stevens, 184 S. W. 705.

Finding no error in the record, the cause is affirmed.
      &wkey;5Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE.
    (No. 107.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 14, 1916.
    Rehearing Denied Feb. 14, 1917.)
    1. Vendor and Purchaser <&wkey;266(l)~—Ven-dor’s Lien—Merger.
    There was no merger of a vendor’s lien retained in deed of M. to S. and in notes taken in payment, when the lands were reconveyed to M. by deeds by which he assumed payment of the notes; evidence of the indebtedness not being canceled or surrendered, or the lien released, and M. afterwards assigning the notes as collateral.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Gent. Dig. § 717.]
    2. VENDOR AND PURCHASER <&wkey;265(2) — NOTICE of Lien — Recitals in Recorded Deeds.
    One who purchased land of M. after he had conveyed it to S. by deed retaining vendor’s lien, and after it had been reconveyed to M. by' deeds by which M. assumed payment of the vendor’s lien, notes, was put on inquiry, by the recitals of the recorded deeds, as to the notes being in the hands of another as collateral security for a debt of M.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 702-708.]
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Suit by the First State Bank of Conroe against Fred Henningsmeyer and others. Judgment for plaintiff, and the named defendant and another appeal.
    Affirmed.
    W. N. Foster and Howard Bennette, both of Conroe, for appellants. A. L. Kayser, of Conroe, for appellee.
   BROOKE, J.

This suit was instituted by the appellee, First State Bank of Conroe, against C. Julian Smith, Hale M. Houston, Chas. B. Poponoe, M. E. Stevens, Mrs. Lena Montgomery, individually and as independent executrix of the estate of Jack Montgomery, deceased, and appellants, Fred and Mary Henningsmeyer, by petition filed February 25, 1915. Plaintiff declared upon a note for $1,-372.80, made by defendant M. E. Stevens and Jack Montgomery to plaintiff on December 28, 1911, which note was alleged to be a renewal of a note for $1,320 made by the same parties to the plaintiff bank on the 3d day of June, 1911. It was further alleged that on the 3d day of June, 1911, at the time the original note was made to plaintiff by said defendant Stevens and Jack Montgomery, they delivered to plaintiff, as collateral to secure said note, two certain vendor’s lien notes, each for the sum of $450.67, dated March 2, 1910, executed and delivered by the defendants C. Julian Smith and Hale M. Houston to said Jack Montgomery, payable in one and two years afterward, respectively; and it was further alleged in plaintiff’s petition that said notes of said Smith and Houston were given as a part of the purchase price to said Jack Montgomery for two tracts of land described in said petition, which it is alleged were conveyed by the said Jack Montgomery to the said Smith and Houston on March 2, 1910, and that in said deed and notes a vendor’s lien was reserved and retained against said land, to secure the payment of said notes. Plaintiff further specifically alleged that on the 9th day of May, 1910, the said Smith and Houston, by a deed of that date, conveyed said land to Chas, B. Poponoe and Jack Montgomery, for a cash consideration then paid and the further consideration recited in said deed of the assumption by said grantees of the payment of said two notes, meaning the two vendor’s lien notes which Smith and Houston had theretofore made to Jack Montgomery; and it is further alleged that on February 23, 1911, the said Chas. B. Poponoe by deed of that date conveyed his half interest in said land to Jack Montgomery, a part of the consideration for which said conveyance being the assumption by said Jack Montgomery of the payment of half of the two promissory notes hereinbefore mentioned. Plaintiff further alleges that after the defendants Stevens and Jack Montgomery had on June 3, 1911, executed the original note to plaintiff bank, and delivered to it the two vendor’s lien notes, as collateral, the said Jack Montgomery, on the 10th day of June, 1911, sold to the defendants Fred and Mary Hennings-meyer the north half of said two tracts of land, and on the 29th day of July, 1911, sold to them the south half thereof, and it was alleged that at the time of such purchase the defendants Henningsmeyer, appellants here, had actual and constructive notice of all the facts regarding said notes. Plaintiff, among other things, prayed for foreclosure of the vendor’s lien asserted by virtue of the two said notes on the land described in said petition, as against all of the defendants.

The defendants Fred and Mary Hennings-meyer answered by general and special exceptions, and pleaded a general denial; that the vendor’s lien retained by Jack Montgomery at the time he sold and conveyed to the defendants1 Smith and Houston, and the title conveyed to said Smith and Houston by deed of May 2, 1910, and all title and claim of every kind and character became vested in the said Jack Montgomery, on February 23„ 1911, when defendant Poponoe conveyed his interest in said land to said Montgomery, and that thereupon all such rights, title, and interest in said land and the notes and liens referred to became merged, and thereafter so remained solely‘in the said Jack Montgomery until he conveyed said land to the defendants Fred and Mary Henningsmeyer; and it was further alleged that in the purchase of said land from the said Jack Montgomery, said defendants Fred and Mary Hennings-meyer had no notice or knowledge that plaintiff held the two vendor’s1 lien notes described, and in so purchasing that they paid a valuable consideration, and were bona fide purchasers for value without notice of any outstanding rights, equities, or claims in behalf of plaintiff, or any other person.

The defendants O. Julian Smith and Hale M. Houston answered by general and special demurrers, and for special answer, a general denial, merger of the notes executed by them, and their extinguishment by reason of the recitations of title by Jack Montgomery by and through deeds by which, payment of said notes was assumed by him.

The defendant Mrs. Lena Montgomery, as independent executrix of the estate of Jack Montgomery, and individually, answered by exceptions' and denial. Defendant M. E. Stevens answered by general denial and special pleas. He also set up a cross-action against Mrs. Lena Montgomery as independent executrix of Jack Montgomery. The defendant Ohas. B. Poponoe failed to answer.

When the case was called for trial, plaintiff dismissed as to the defendants C. Julian Smith and Hale M. Houston, and prior to judgment plaintiff likewise dismissed as against the defendant Chas. B. Poponoe. Trial was had before the court, without a jury, and on the 14th day of October, 1915, judgment was rendered in favor of plaintiff against the defendants M. E. Stevens and Mrs. Lena Montgomery, executrix of the last will of Jack Montgomery, deceased, for the amount of the note sued on, dated December 28, 1911. Judgment was likewise awarded plaintiff against Mrs. Lena Montgomery as independent executrix of the last will of Jack Montgomery for the sum of the two vendor’s lien notes aforesaid, and for foreclosure of the vendor’s lien retained in said notes on the land described against the defendants Mrs. Lena Montgomery, executrix, M. E. Stevens, and appellants, Fred and Mary Hen-ningsmeyer, with order of sale in accordance therewith, the proceeds to be applied to the payment of the judgment awarded on the notes of said Jack Montgomery and defendant M. E. Stevens.

No judgment was awarded against Mrs. Lena Montgomery in her individual capacity, and defendant M. E. Stevens was denied any recovery on his cross-action.

On the second day after said judgment, to wit, October 16, 1915, the defendants Fred and Mary Henningsmeyer filed their motion for a new trial, which motion was by the court on the same day overruled, and thereupon said defendants duly excepted and gave notice of appeal to this court. And thereafter appeal bond (and supersedeas) was filed November 4, 1915. The statement of facts' and bills of exceptions were filed by appellants within the time prescribed by law and the orders of the trial court. On- request of appellants the court filed findings of fact and conclusions of law, all of which were objected and excepted to by appellants. This case is therefore regularly before this court for review.

The court filed his findings of fact and conclusions of law, as follows:

“Findings of Fact.
“(1) I find that on the 2d day of March, 1910, Jack Montgomery by deed of that date, conveyed to C. Julian Smith and Hale M. Houston the two tracts of land described in plaintiffs petition, as the consideration therefor, said deed reciting $45.67 in cash and the two certain promissory notes, of even date with said deed, in the sum of $450.67 each, one due and payable 12 months from date, the other due and payable 24 months after date, drawing 7 per cent, interest, payable to Jack Montgomery or order. Said deed expressly retaining in its face the vendor’s lien to secure said two notes, and being properly acknowledged and recorded in volume 27, p. 366, of the Deed Records of Montgomery county, Tex., having been filed for record on March 8, 1910.
“(2) I find that on May 9, 1910, O. Julian Smith and Hale M. Houston by their deed conveyed to Jack Montgomery and Chas. B. Poponoe said two tracts of land described in plaintiff’s petition, the consideration for said conveyance being, as recited in said deed, as follows: ‘$451.00 in cash, the receipt of which is hereby acknowledged and confessed, and the assumption by the grantees hereof of the payment of two certain promissory vendor lien notes, dated March 2, 1910, one in the sum of $450.6J, and the other in the sum of $450.68; one due and payable 12 months after date, the other due and payable 24 months after date, each drawing 7% interest and each carrying a vendor’s lien on the land as described below, have granted,’ etc. * * * Said two notes, payment of which was assumed by the grantees Jack Montgomery and Ohas. B. Poponoe, were the same two notes given by Smith and Houston and recited in the deed from Jack Montgomery to them, and are the same two vendor lien notes mentioned and described in plaintiff’s petition. The deed from O. Julian Smith and Hale M. Houston back to Jack Montgomery and Chas. B. Poponoe, in addition to the recitations above set out in this paragraph, also expressly retains the vendor’s lien to secure said two notes aforesaid. This deed was filed for record on May 20, 1910, and is recorded in volume 58, page 293, of the Deed Records of Montgomery County, Tex.
“(3) I find that on February 23, 1911, Chas. B. Poponoe conveyed to Jack Montgomery his one-half undivided interest in and to the lands in question, for a consideration recited in said deed of $100 in cash and the assumption of the payment by the said Jack Montgomery of said Poponoe’s half of the said two vendor’s lien notes, mentioned in the preceding paragraph, which said deed was filed for record March 10, 1911, and recorded in volume 62, page 459 of the Deed Records of Montgomery County, Tex.
“(4) X find that on the 3d day of June, 1911, the plaintiff, the First State Bank of Conroe, Tex., in the due course of business, loaned to Jack Montgomery and the defendant M. E. Stevens the sum of $1,320, the said Montgomery and Stevens executing their joint promissory note to said hank for the same, to which note the said Jack Montgomery attached, as collateral security for the same, said two vendor’s lien notes, mentioned and described in the preceding paragraphs hereof, and delivered the whole to said bank, stating and representing to its cashier that said two vendor’s lien notes, so attached as collateral security, were good, and out of which, together with some other notes, the whole of said debt could he made, and the bank made said loan and paid out said money in good faith and upon said representations, and believing said collateral security to be good, and relying upon the same; that said note of Jack Montgomery and M. E. Stevens, aforesaid, of date June 3, 1911, was renewed by their renewal note of date December 28, 1911, due July 2, 1912, covering said indebtedness and to which was attached and continued said collateral security and agreements in reference thereto, said renewal note being the note sued on herein.
“(5) I find that it was not the intention of Jack Montgomery to extinguish the debt represented by said two vendor’s lien notes described above, when said property was reeonveyed to him as set out aforesaid, nor to extinguish the lien securing the same, nor merge said lien with the superior legal estate, and I find that there was no merger of said lien with said superior estate, and that the intention not to merge the same, but to hold said indebtedness, represented by two said vendor’s lien notes and the lien securing the same intact and separate from said superior legal title was disclosed of record by the recitations in said deeds bacls to Jack Montgomery; and I further find that the recitations in said deed from Smith and Houston and Po-ponoe aforesaid, that Jack Montgomery assumed the payment of said two vendor’s lien notes, constituted notice to all persons subsequently dealing with said property that said notes were outstanding, and constituted a valid lien against the property. I further find that Jack Montgomery assumed the payment of said two vendor’s Hen notes, and became primarily liable to the holder thereof for the payment of same.
“(6) I further find that said two vendor’s lien notes aforesaid retain in their face the vendor’s lien against the property described in plaintiff’s petition to secure the same; that the same was and is a valid, subsisting and unsatisfied lien against said property and premises to secure the indebtedness evidenced by said notes.
“(7) I find that Jack Montgomery died about the-day of March, 1914, leaving a will in which Mrs. Lena Montgomery was made independent executrix and sole devisee, and that said will was duly probated by the probate court of Montgomery county, Tex., and that: the said Mrs. Lena Montgomery, is the independent executrix of the last will of Jack Montgomery, deceased.
“(S) I find that there is due and unpaid on the renewal note executed by Jack Montgomery and M. E. Stevens, of date December 28, 1911, the sum of $1,451.74 principal, interest, and attorney’s fees; this being the note mentioned and described in plaintiff’s petition, upon which suit is brought.
“(9) I find that there is due and unpaid upon said two vendor’s lien notes, mentioned and described in paragraphs 1, 2, and 3 herein in these findings the sum of $1,352.71, principal, interest, and attorney’s fees, these being the notes attached to the note of Montgomery and Stevens described in preceding paragraph as collateral security therefor, and in this connection I find that said notes have been in possession of the bank as such collateral security, continuously since the 3d day of June, 1911, and while said notes are payable to Jack Montgomery or order and are not indorsed by him, yet I find there was an equitable assignment of the same from Jack Montgomery, authorizing their collection and application to the principal indebtedness which they secured.
“(10) I find that on the 10th day of June, 1911, and after said notes were acquired by the hank, that Jack Montgomery conveyed by general warranty deed to the defendants Fred Hen-ningsmeyer and wife the north half of the two tracts of land described in the plaintiff’s petition, for a consideration of $780 then paid by the said Henningsmeyer; that said sum was a fair and reasonable value for said land; and that on July 29, 1911, the said Jack Montgomery conveyed to the defendant Fred Hennings-meyer the south half of said two tracts of land described in plaintiff’s petition, for a consideration of $780, paid, and to be paid as follows: $180 in cash and four vendor’s lien notes of $150 each; that said consideration was in fact paid, and the same was a fair and reasonable value for said land.
“(11) I find that at the time of the purchase of said land by the said Henningsmeyer the plaintiff bank held the two vendor’s lien notes given by Smith & Houston, payment of which Montgomery had assumed, and that at the time of said purchase by said Henningsmeyer, he, the said Henningsmeyer, had notice that said two vendor’s lien notes were outstanding against said land, said notice being conveyed by the recitations in the deed from Smith and Houston back to Montgomery and Poponoe and from Poponoe to Montgomery, to the effect that the said Montgomery assumed the payment of said two vendor’s lien notes, said two deeds being in Henningsmeyer’s chain of title.
“(12) I further find that the said recitations in said deeds conveying said land back to Montgomery were sufficient to put an ordinarily prudent person upon inquiry regarding said notes and the lien securing the same, and that said inquiry properly prosecuted would have disclosed the existence of said debt and the lien securing the same. I find that the said Hennings-meyer did not examine the Records of Deeds of Montgomery County, Tex., affecting the title to said land, before purchasing the same, nor did he use the diligence which an ordinarily prudent person should have used in prosecuting such inquiry.
“(13) I find that defendants Fred Hennings-meyer and wife were not innocent purchasers of the land in question without notice of said two outstanding vendor’s lien notes, which Jack Montgomery had assumed to pay, and which were held by the bank as collateral at the time of Henningsmeyer’s purchase of the land.
“(14) I find that the holding and keeping of said lien securing said two vendor’s lien notes separate and distinct from the superior title upon the reacquisition of said land by Jack Montgomery, and the said Montgomery’s subsequent dealing with and handling of said notes and using of same as collateral security for the purpose of borrowing money was entirely consistent with an honest purpose; the intention so to do being clearly reflected by the recitals in the reconveyance deeds to him.
“(15) I find as a fact that at the time of the reacquisition by Jack Montgomery of the Smith and Houston and Poponoe claims, in reality the said Smith and Houston two vendor’s lien notes were outstanding and held by parties other than Jack Montgomery. This finding is based upon the recitations contained in the deed from Smith and Houston back to Montgomery and from Po-ponoe back to Montgomery, to the effect that, in consideration of such reconveyance, the' said Montgomery assumed the payment of said two notes; and the further fact that M. E. Stevens, who was a partner of the said Jack Montgomery at the date of the making of said original loan from the bank, testified on the trial of this cause that the said Jack Montgomery told him when said loan was being negotiated that he, the said Montgomery, had some collateral up at the other bank, to wit, Bank of Griffith & Son, and that he would with.draw some of the same and use it to secure the íoan; there being no evidence whatever to the contrary.
“Conclusions of Law.
“1. I conclude that the plaintiff is entitled to recover against the defendants Mrs. Lena Montgomery, as independent executrix of the last will of Jack Montgomery, deceased, and M. E. Stevens the sums set out in the judgment, being the amount due and unpaid upon the renewal note executed by Jack Montgomery and M. E. Stevens on the 28th day of December, 1911.
“2. I conclude as a matter of law that the assumption of the payment by Jack Montgomery of the two Smith and Houston vendor’s lien notes inured to the benefit of the holder of said notes, and rendered the said Jack Montgomery liable thereon, and therefore the plaintiff is entitled to recover- against Mrs. Lena Montgomery, independent executrix of the last will of Jack Montgomery, deceased, in the amount due on said two vendor’s lien notes, and that the lien securing said notes followed said indebted-'ñess, and therefore plaintiff is entitled to" a foreclosure of said lien.
“3. X hold as a matter of law that there was no merger of the lien securing said two Smith and Houston notes, with the superior legal estate, and that the same were in the hands of the bank secured by a valid and subsisting vendor’s lien against the land described in plaintiff’s petition.
“4. I hold as a matter of law that the defendants Ered and Mary Henningsmeyer, at the time of their purchase of the land in question, had notice that said two vendor’s lien notes aforesaid were outstanding in the hands of some person other than Jack Montgomery, the said Jack Montgomery by reason of his assumption of the payment of said notes, as recited in said reconveyance from Smith and Houston and Po-ponoe to him, became primarily liable to the holder of said notes, and in legal effect became the payor of the same, and, said recitations and agreements appearing in the chain of title of the said Henningsmeyer, he was charged with knowledge of the same under the law as though he had in fact inspected said instrument. I hold that said recitation in said deeds back to Jack Montgomery that he, the said Jack Montgomery, assumed the payment of said two vendor’s lien notes was notice in law to the said Hennings-meyer and wife at the time of their purchase that said notes and the lien securing the same were outstanding and unsatisfied.
“5. I conclude that the facts set out in the foregoing findings constituted an equitable assignment of said vendor’s lien notes from Jack Montgomery to the bank, and conveyed to plaintiff a sufficient interest therein to authorize it to collect said collateral and apply the same to the principal indebtedness; said notes having been placed with the bank for the express purpose of securing said indebtedness.
“6. I conclude that the plaintiff is entitled to a foreclosure of said vendor’s lien securing said two collateral notes against the property described in plaintiff’s petition, as against all the defendants, and that it is entitled to have said property sold and the proceeds applied to the payment of said notes to the extent of the principal indebtedness against Montgomery and Stevens, and the remainder, if any, delivered to the independent executrix of the last will of Jack Montgomery, deceased.
“7. I conclude that it is immaterial, as a matter of law, whether or not the two Smith & Houston vendor’s lien notes were in reality outstanding at the time of the reconveyance of the land to Montgomery by Smith & Houston and Poponoe, since it is clear -that there was no intention to merge said lien securing said notes with the legal title, and in fact no merger therewith took place, and the intention not so to do being clearly apparent from said recitations, contained in said deeds of reconveyance aforesaid.”

The contentions of appellants, as evidenced by their several assignments, are: (a) At the time Jack Montgomery placed the two vendor’s lien notes with the plaintiff bank, and for some time prior thereto, all title to the land upon which foreclosure was decreed by the trial court, including the vendor’s lien evidenced by said notes and the equitable title which Montgomery had parted with at the time he acquired said notes, .had become vested in said Montgomery, and that all title, and liens had become merged, and the ■ ■lien thereby extinguished, an'd that Montgomery had all the title at the time he executed the deed to appellants, and that they thereby ■acquired '.good title, ,free .from any liens, (b) That all title, legal and equitable, was vested in Jack Montgomery when Poponoe conveyed to him by deed dated February 23, 1911, and that if the act of Jack Montgomery in thereafter placing the vendor’s lien notes with the plaintiff bank was effective to create a lien on the land in favor of the bank for the security of said notes, appellants had no notice, actual or constructive, of such fact, when they purchased from Montgomery the land, and paid therefor a valuable consideration, and that they were therefore innocent purchasers for value, without notice.

We cannot agree with either of the contentions of appellants. A merger has been defined to be when a greater and lesser estate meet in the same person, with no intermediate estate. Kilgore v. Graves’ Heirs, 2 Will-son, Civ. Cas. Ct. App. § 409. It has also been held that in equity the question as to whether .estates merged depends on the intention of the parties, and the circumstances, and whether justice requires that they should be kept separate. Cole v. Grigsby, 35 S. W. 689, affirmed in 89 Tex. 223, 35 S. W. 792.

Mergers are not favored in equity. It has also been held that while it is the general rule that, where the title to the land and the mortgage becomes vested in the same person, the mortgage is merged in the title, and becomes extinguished, yet the mortgage may be kept alive for the protection of the purchaser of the title, and there will be no merger contrary to the intention of the parties. 15 Am. & Eng. Enc. of Law, 319 et seq.; Hapgood Shoe Co. v. First Nat. Bk, 23 Tex. Civ. App. 506, 56 S. W. 995.

It seems that the identical question has been decided in the case of Pike v. Gleason et al., reported in 60 Iowa, 150, 14 N. W. 210. In that case it is held that when land subject to a mortgage is conveyed to a mortgagee, and such conveyance is not intended by either party to be in satisfaction of such mortgage, the law will regard the mortgage as a subsisting lien, which in the hands of the mortgagee or his assigns may be enforced against the land, that when the interests of the mortgagor in such a mortgage have been transferred as collateral security to a bank, whatever remained, after satisfying the claim of the bank, could be assigned to another party, and it would be" proper for the court to direct that such balance be paid to him, but that it is not necessary for the court to find an amount due such party and render judgment therefor.

The evidence is conclusive that the intention of Montgomery as expressed to the bank was that the lien should be kept alive. The fact that it appears in the deed that Montgomery assumed the payment of notes and the further fact that the evidence of the indebtedness was not Canceled or surrendered, or the lien released, but on the contrary, the bank obtained them, and the further fact .that Montgomery assigned the mortgage to the bank as collateral security for the debt, and represented that it was a good and valid security, is conclusive along this line. Mathews et al. v. Jones, 47 Neb. 616, 66 N. W. 622; Smith v. Loan Co.. 21 Tex. Civ. App. 170, 51 S. W. 515; Am. & Eng. Enc. of Law (2d Ed.) vol. 20, p. 1064, par. “g”; Jones on Mortgages, §§ 872, 848, and 853; Aiken v. Milwaukee Ry. Co., 37 Wis. 469; Pomeroy on Equity, vol. 2, §§ 786, 791; 16 Cyc. 665b; Ætna Life Ins. Co. v. Corn et al., 89 Ill. 173; Brown v. Lapham, 57 Mass. (3 Cush.) 551; Strong v. Converse, 90 Mass. (8 Allen) 557, 85 Am. Dec. 732; 27 Cyc. p. 1329, par. 2, page 1377, par. 2, and page 1380.

It follows, there being no merger in the instant case, that if the appellants had actual notice, or were charged with notice, of the existence of the said notes, they could not recover. It has been held in cases too numerous to mention that if a fact is recited in a deed through which a party claims title to land, he is held to have notice of that fact. It has also been held'that if the facts recited are sufficient to put a man upon inquiry, he is charged with notice of those facts which might have been obtained by prosecution of inquiry with reasonable diligence. This is for the reason that the purchaser is entitled to see all the muniments of his title, and therefore is presumed to have seen them.

The converse of this proposition follows, that if the recitals therein are not sufficient to put a prudent man upon this inquiry, then they of themselves do not constitute constructive notice, and notice by recitals extend only tso facts recited or reasonably pointed to. It has been also held that not only is a party charged with constructive notice of everything material in the deeds through which his title is adduced, but if any of these conveyances should contain a recital or refer to another deed or instrument likewise collateral and not a part of the direct series, he would, by means of such recital or reference, have notice of this collateral instrument, or its contents, and all the facts indicated, by which it might be ascertained, through inquiry prosecuted with reasonable diligence, and such notice extends to all deeds and other instruments falling properly within the preceding rules, whether recorded or unrecorded. Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584.

The court found that there was a sufficient recital in the deeds through which appellants claim to put them upon notice of the fact that these notes were outstanding. We have examined the record carefully, and we are of opinion that there was ample testimony to not only sustain this finding of the court, but sustain the other and remaining findings of the court.

We have given careful attention to the assignments in appellants’ brief, but cannot agree with the contentions therein. We find no error in the action of the trial court. Therefore the assignments are all overruled, and this cause is in all things affirmed. It is so ordered.
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