author: LEVY, J.

text:
    HOUSTON, E. & W. T. RY. CO. v. SAMFORD.
    (No. 1541.)

    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 9, 1915.)
    1. Master and Servant <@=>276 — Injury to Servant — Proximate Cause — Hand Car Following _ Train .
    _ Evidence, in an action for injury to a member of a section crew in a collision of the hand car, on which he was riding, with a train, which the car was closely following, as it suddenly stopped, while pulling out of a town, to avoid collision, at a street crossing, with a pedestrian, held to authorize a finding that the proximate cause of the injury was the negligent manner of operating the hand car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. <@=>276.]
    2. Master and Servant <@==>180 — Injury—Liability oe Master — Negligence oe Fellow Servants — Bailroads.
    A railroad company would be liable, either under the federal act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-S6G5]) or the state law (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6640), if injury to a member of a section crew from collision of the hand car, on which he was riding, with the rear of a train, was due to negligence of his co-workers.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-301, 363-368; Dec. Dig. <§=180. ]
    3. Appeal and Error <@=>637 — Approval and Filing oe Bill oe Exceptions.
    An assignment of error must be overruled; the bill of exceptions not appealing in the record to have been approved by the trial judge or to having been filed in trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2784, 2829; Dec. Dig. <@= 637.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Action by W. O. Samford against the Houston, East & West Texas Bailway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Appellee, a section hand, was injured while in the performance of his duties on a hand car, by reason of the hand car’s colliding with the rear of a passenger train on the main line. He sues for damages, alleging that appellant was negligent: (1) In permitting the brake on the hand car to be out of repair, defective, and inefficient; and (2), through its foreman and other members of the crew, in causing and permitting the hand car to be run at too great speed and dangerously close to the rear of the passenger train, proximately causing the collision. The case was tried before a jury on special issues. The jury made the finding that appellant was not negligent respecting the alleged brake, but made the finding of fact that the foreman, or other members of the crew besides plaintiff, were guilty of negligence, as pleaded, proximately causing the injury, in causing and permitting the hand car to be run at too great speed and in the immediate nearness to the rear of the passenger train. The jury made the finding that the plaintiff was not injured solely by reason of the risks assumed by him, but that he was guilty of contributory negligence. The jury verdict in awarding damages diminished the amount of plaintiff’s recoverable damages in proportion to the negligence attributed to him. The evidence fully warrants the findings of the jury, and they are sustained and here adopted as the facts of the case. The plaintiff was, with the other members of the section crew, and under the direction of their foreman, working on the company’s track. This crew had in charge a hand car belonging to the company, which they regularly operated in the course of their work. The roadmaster threw from a passing train a note to the foreman of the crew, ordering him to repair a bad place in the track at the first curve east of Timpson, about a half mile from the town. Soon afterward the foreman went to Timpson on an east-bound freight train, having directed that the crew come to Timpson, on the liand car, behind the east-bound passenger train, which was then nearly due, and the crew did so. When the crew reached the station at Timpson this passenger train was standing there, and the said freight train was occupying a siding east of the station. As the passenger train started eastward, the foreman got on the hand car with the crew and ordered them to keep up with or follow close behind the passenger train, so that their passage to the bad place in the track would not be blocked by the freight train pulling on to the main line ahead of the hand car; and, in obedience to this order, the crew started the hand car eastward about 30 feet behind the train. When the train and the hand car had gone about 200 yards from the station the train, because an old woman appeared on the track in front of it, as defendant pleaded, was suddenly slowed down or stopped, and the hand car, going at a speed of 10 or 12 miles an hour, collided violently against the rear of the train. The foreman testified:
    “We were so close to the passenger train that when the train stopped or checked its speed there was nothing that could have been done to prevent a collision.”
    The foreman and all of the crew except plaintiff, having their faces toward the train, observed that it was being stopped, and then at once leaped from the ear. The plaintiff, riding backward, did not know how close to the train the car was running, nor that the train was being stopped, until, when the others jumped from the car, he turned and looked forward to see the cause of their doing so; the car was then 6 or 8 feet from the rear of the train, and going toward it at about the speed stated. Samford could not then leap to the ground so as to avoid injury, and, just before the collision, he leaped to and caught the rear of the train, and as he did so the handle bar of the hand car struck his thigh and broke the femur. The petition alleged, and the answer admitted, that the appellant was a common carrier engaged in interstate commerce, and that the track over which trains were run was used for the purpose of transporting interstate commerce, and that at the time of the injury plaintiff was going on a hand car to a place in the track for the purpose of repairing it. It was proven that the appellant is a Texas corporation, and that its tracks run from Houston to the state line and there connect with and meet end to end with the Shreveport & Houston Railway Company, a Louisiana corporation.
    John T. Garrison, of Houston, Carter & Walker, of Center, and Baker, Botts, Parker & Garwood, of Houston, for appellant. J. M. Edwards, of Tyler, and J. M. Sanders, of Center, for appellee.

      Application for writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above). The following were questions as submitted to and answered by the jury:

“Question 1, Was the foreman of the crew in question, or the members thereof, besides, the plaintiff, guilty of negligence in causing or permitting the hand car to run in such proximity as it did to the passenger train as the same proceeded eastward from the station at Timpson?” Answer of the jury: “Yes.”
“Question 2. In the event you should answer the first question in the affirmative, then was such negligence, if any, a proximate cause of plaintiff’s injury?” Answer of the jury: “Yes.”

Appellant by its first assignment of error assails the finding of the jury respecting the proximate cause of the injury, contending that according to the evidence the efficient cause of the injury was the stopping of the passenger train. It is believed that it may properly be said that the finding of the jury respecting the proximate cause of the injury was not, as a matter of law, erroneous. It appears from the evidence that the regular passenger train started from the station of Timpson, going eastward on the main line. The foreman with the section crew then got on the hand car and followed in the rear of the passenger train on the main line. According to the foreman:

“As the passenger train pulled out from the station, we pulled out about 30 feet behind it; we were just following the train on to our work.”

The foreman, who, according to the evidence, was a vice principal and had sole control and direction of the men, stood upright upon the hand car, facing towards the passenger train, and the six members of his crew, including the plaintiff, propelled the car. The main line track extending eastward from the station was straight and down grade. The foreman ordered the crew pulling the hand car “to follow the passenger train, so that No. 24 would not block us off from our work.” When the passenger train had gone about 200 yards from the station, it suddenly slowed down or stopped. As pleaded by defendant and admitted to be true in fact by the plaintiff, the passenger train stopped as it did “in order to protect the lives of other parties, especially an old lady who ran in front of the train.” When the passenger train stopped, the hand ear was running down the grade under its momentum at the speed, according to the section foreman, of 8 or 10 miles per hour, and according to some of the crew, at the speed of 15 or 16 miles per hour. There is evidence going to show that the hand car was running about 60 yards behind the passenger train when it stopped, and there is evidence, by one of the crew, that “We were closer to it than 90 feet when it began to stop.” The foreman testified:

“We were so close to the passenger train that when the train stopped or checked its speed there was nothing that could have been done to prevent a collision.”

It was proven that east of the station there were four or five public streets of the town of Timpson, which the passenger train had to cross. The approaches to the tracks on some of the streets were hidden to the view of the engineer of the passenger train by a freight train standing on the siding, of which fact the foreman and the section crew knew. The foreman testified:

“I am familiar with the town, the streets and the public places in the town. When our hand car started out after that passenger train, and while it was following the passenger train, I knew that some woman driving a buggy, or some woman walking, or a child driving a buggy or walking, or a man walking or riding, was liable at any minute to cross or try to cross the railroad track- at either one of those four or five streets that the passenger train had to cross after it left the station and before it got out of town. * * * I did not know that the engineer operating the train, should he see a woman or child or man about to go on to the track ahead of the train at any one of those four or five streets, would stop that train as quick as he could. * * * I will not say that the engineer would not stop; I don’t know whether he would or not. I know that I would have stopped.”

Thus, plainly enough, the section foreman, charged with the duty towards plaintiff of directing the prudent operation of the hand car, could reasonably have anticipated the very occurrence of the stopping of the passenger train at or near some of the crossings in the town limits. It is quite immaterial that the section foreman did not know that this particular woman would try to cross the track. He had every right to anticipate that some person was, as he said, “liable at any minute to cross, or try to cross, the railroad track at either one of those four or five streets that the passenger train had to cross.” And the inference is clearly admissible that the foreman could fairly have assumed that the engineer of the passenger train would stop the train rather than continue and run over the person suddenly on the track, for he admits the fact that under such circumstances “I know I would have stopped.” Showing, as the evidence does, that the section foreman had reasonable grounds to anticipate the fact of the probable stopping of the passenger train at or near a street crossing in the town limits, and that he, in directing the operation of the hand ear, might have avoided the collision or lessened its effect through a lower rate of speed and by keeping at a greater distance to the rear of the passenger train, a clear legal reason exists for sustaining the finding of the jury that the real producing cause of the injury which followed the colliding of the hand car with the passenger train was the negligent manner of operating the hand car. Railway Co. v. Stevens, 37 Tex. Civ. App. 80, 83 S. W. 235.

The second assignment of error is to the point that the appellant would not be liable without negligence shown upon the part of the section foreman in charge of the crew. In the light of the evidence it is thought the verdict of the jury may fairly be interpreted as a finding that the section foreman was negligent in respect to causing and permitting the hand car to follow the passenger train too fast and in immediate nearness thereto, and therefore the assignment of error should be overruled.. And, assuming for the moment that the verdict should be interpreted as finding only the plaintiff’s co-workers negligent in operating the hand car in respect mentioned, nevertheless the appellant would be liable to plaintiff for their negligence, even under the federal act or the state law. Pedersen v. Railway Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; article 6640, Vernon’s Sayles’ Stat.; Freeman v. Shaw, 126 S. W. 53.

The third and fourth assignments of error must be overruled, for the purported bill of exception does not appear in the record to have been approved by the trial judge, and does not appear to have been filed in the court below.

The judgment is affirmed.
      á=For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    MERCHANTS’ & BANKERS’ FIRE UNDERWRITERS v. WILLIAMS.
    (No. 1521.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 29, 1915.
    On Rehearing, Jan. 13, 1916.)
    1. Insurance <©=>638 — Fire Insurance — Action — Petition—“Cause oe Action.”
    The petition alleging insurance by defendant in a certain sum of plaintiff’s building, and its total destruction by fire, whereby, under Vernon’s Sayles’ Ann. .Civ. St. 1914, art. 4874, the policy became a liquidated demand to the full amount, does not, in the absence of an averment of nonpayment, state a cause of action; averment of breach being an essential of a statement of a “cause of action” on a contract.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1607; Dec. Dig. <¿=>638.]
    On Rehearing.
    2. Pleading <©=216 — Petition—Demurrer— Supplemental Petition.
    In determining whether demurrer to petition should be sustained, the supplemental petition cannot be considered; its office, under district court rule 10 (142 S. W. xviii), being to make response to defendant’s pleading, and an amendment being necessary for cure of the defect of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 535-539; Dec. Dig. <@=>216.]
    3. Appeal and Error <@=>1170 — Harmless Error — Ruling on Demurrer.
    Under Court of Civil Appeals rule 62a (149 S. W. x), providing' that judgment shall not be reversed for error of law in the trial, unless the appellate court be of opinion that it amounted to a denial of rights reasonably calculated to cause, and probably causing, an improper judgment, erroneous overruling of demurrer to the petition, because of it not alleging nonpayment of the amount of fire insurance sued for, is harmless; the supplemental petition, averring nonpayment, properly pleaded to matters in the answer, forming a proper basis for rendition of judgment for plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. <@=1170.]

      4. Insurance @=>282 — Eire Policy — Condition to Insurance — Title Deed.
    The provision of a fire policy that it shall be void if the insured building be on ground not owned by insured in fee simple and the title be not evidenced by deed is a valid condition precedent to insurance attaching, not satisfied merely by insured being the owner in fee simple.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 601-636; Dec. Dig. @=>282.]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by S. J. Williams against the Merchants’ & Bankers’ Fire Underwriters. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Thompson, Knight, Baker & Harris, of Dallas, for appellant. Cunningham & McMahon, and L. C. Fuller, all of Bonham, for appellee.
   LEVY, J.

The suit is by appellee on a fire insurance policy issued by appellant. The insurance was entirely on appellee’s one-story frame building, occupied by him and tenant as a drug store and doctor’s office, and was in the sum of $750. The building insured was totally destroyed by fire while the policy was' in force. In a trial before the court without a jury, a judgment in favor of appellee was entered.

There was a demurrer to the petition, which was overruled by the court, and the appellant duly excepted to the ruling made. The first assignment of error, complaining of the overruling of the demurrer, presents the point that the petition has failed to state a cause of action, in that it does not allege that the amount of the policy sued for is unpaid. The petition avers to the extent that the appellant executed and delivered its policy in writing to the plaintiff, insuring him from May 1, 1914, to May 1, 1920, against loss or damage by fire to the amount of $750 on his one-story frame building being occupied by him and tenant as a drug store and doctor’s office, and that on November 20, 1914, said building was totally consumed and destroyed by fire, and prays for judgment for the amount of the policy.

Under the statute of this state the policy becomes a liquidated demand to the full amount in case of a total loss by fire of the building insured. Article 4874, Vernon’s Sayles’ Stat. Therefore the legal effect attaching to the facts as pleaded in the petition would affirmatively show, it is quite clear, an obligation on the part of appellant to pay or indemnify the appellee in the sum of money to the amount of $760 upon a contingency of total loss by fire of the building insured, and which did happen. The alleged fact that the loss did occur is in effect a declaration that the sum of money is due and thát the policy would be payable according to its terms. But the fact of the loss by fire and that the money is due does not constitute a breach of the contract, and would not be a fact from which the court could infer that the appellant has not paid or breached the policy. In matters of contract it will be presumed that the parties thereto intend to do what they have contracted to do, until the contrary or breach is shown. Consequently, properly construing the petition, there is no allegation stating or from which it can be implied that the amount of the policy sued for is unpaid by appellant. And the precise question for ruling is whether it was essential, in order to state a cause of action good as against a demurrer, to allege, not only the undertaking or obligation of the parties, but as well the failure of the insurance company to pay the money or perform its obligation. It is the primary requisite of a petition that it state substantially a cause of action. And “a cause of action” was clearly defined by the court in Phillio v. Blythe, 12 Tex. 124, as follows:

“It may be defined to consist as well of the right of the plaintiff in the action, as of the injury to such right. In Chitty on Pleadings, vol. 1. p. 288, the three principal points of a cause of action are said to be: (1) The right, whether founded upon contract or tort; (2) the urging to such right; and (3) the consequent damages. It may be admitted that the term ‘cause of action’ is sometimes used in a more limited sense, and that, where the cause [of action] is founded on a contract, the contract itself is denominated the cause of action; but more frequently, and where the term is used with more precision and accuracy, the term embraces a much wider scope, and includes, not only the contract, but its performance, if executory, and also the breach of such contract. For instance, the statute requires a plaintiff, in his petition, to set forth a full and clear statement [of his cause]. This requisition would not be filled by a bald statement of the terms of the contract, if a contract lay at the foundation of the action. An averment of the performance of the contract by the plaintiff, of its breach by the defendant, and, according to Chitty, of the consequent damages, is equally essential with a statement of the terms of the contract itself, as, together, they contribute the body, or substance, of the cause of action.”

The above definition of cause of action was further approved and adhered to by the court in Railway Co. v. Hill, 63 Tex. 381, 61 Am. Rep. 642. And it has been held that it must appear from the petition—

“by averment that they [defendants] have violated their contract by refusing to make payment of the note agreeable to their undertaking, in order that the petition may show a cause of action.” Whitaker v. Record, 25 Tex. Supp. 383; Brackett v. Devine, 25 Tex. Supp. 195; Holman v. Criswell, 13 Tex. 38; Grant v. Whittlesey, 42 Tex. 320; Gaudalupe Co. v. Johnston, 1 Tex. Civ. App. 713, 20 S. W. 833.

In Holman v. Criswell, supra, the court states that while the plaintiff would not ordinarily be required to prove, in order to sustain his case, the nonpayment, it is nevertheless essential, in order to state a cause of action, for him to aver the fact that the debt sued for is unpaid, as a breach or injury affecting him. In Richards v. Insurance Co., 80 Cal. 505, 22 Pac. 939, a petition in an action on a life insurance policy was held demurrable because it failed to allege that the policy sued on was unpaid.

It is not perceived that the above requisites of pleading -would be inapplicable to an action on an insurance policy, for an insurance policy is a contract of the parties, and actionable, as other contracts, in favor of the insured when the failure to pay the money, which is the breach, occurs. It is believed that the court erred in overruling the demurrer, and that for the error the judgment must be reversed and the cause remanded.

In view of the ground for reversal, it is not thought that the other questions raised can be properly passed on, and we do not do so.

Reversed and remanded.

On Rehearing.

The case of Insurance Co. v. Henry, 79 S. W. 1072, cited by appellee, does not, as reported, give the entire allegations of the petition held not to be demurrable. Reference to the petition itself in that case discloses an averment in these words:

“By reason of said loss, damage, and policy of insurance, the sum of $171, and for the further sum of $25 attorney’s fees, for the willful failure and refusal to pay this claim when due.”

A declaration, as there, that there was on the part of the insurance company “failure and refusal to pay this claim when due,” sufficiently shows that the policy remained unpaid, and breached, at the time of the institution of the suit. That case is therefore not in conflict with the instant ruling. According to the rule laid down in Brackett v. Devine, 25 Tex. Supp. 196:

“The conclusion may be deduced, by argument and inference, from the averments of the petition, that a part of the original indebtedness remains unpaid. But the fact should appear by direct averment. An averment of the breach of the contract is essential to show a cause of action.”

Following the rule, it is believed the demurrer was improperly overruled. And it is not thought the supplemental petition could be considered in connection with the original petition in determining whether or not the demurrer to the original petition should be sustained. The office of the supplemental petition is to make response to the pleading of the defendant. Rule 10, District Court (142 S. W. xviii). The question is sufficiently discussed in Towne’s Texas Pleading (2d Ed.) pp. 401, 447. And in Insurance Co. v. Camp, 64 Tex. 521, the court says:

“Under the rules, the defects in the petition could only be cured by an amendment, whilst the supplement is confined to the avoidance of matters of defense set up in the answer.”

And while we still think there was error in overruling the demurrer, we are now convinced that the error is not, in this record and in view of rule 62a (149 S. W. x), sufficient to cause reversal. The omission in the petition did not in any manner contribute to the judgment rendered. The undisputed facts show that the company did not pay the claim, but that it denied liability on account of the loss. The case of Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, says:

“If the general demurrer to the petition had been well taken, we are of the opinion that no prejudice has accrued to [appellant] from overruling it.”

And as the allegations in plaintiff’s supplemental petition, tantamount to an allegation that payment had not been made, were properly pleaded to matters set up in defendant’s original answer, such allegations form a proper basis for pleadings before the court, as said in the Wheeler Case, supra, for the rendition of judgment.

It is therefore necessary to proceed to a decision of the other assignments. By the third assignment it is urged that the appellant should have judgment on avoidance, as pleaded by it, of the policy sued on. The policy contained the following:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple and the title be not evidenced by deed.”

The trial judge made the finding of fact, and the same is without dispute:

“That at the time of the issuance of said policy, and at all times subsequent thereto up to the trial of the cause, plaintiff's title to the ground on which the building stood was not evidenced by a deed, but plaintiff had bought said ground and contracted for the same from the owner thereof, F. P. Smith, in 1913, under a verbal contract, by the terms of which he was to pay $25 for said ground; that said $25 had not been paid at the time of the fire, but in selling same to plaintiff Smith took the personal obligation of plaintiff for the price and did not rely on the vendor’s lien, and would have made a deed to plaintiff at any time on request by plaintiff, even without plaintiff’s paying the $25; that, immediately after said trade was made with said Smith, said Smith, being in possession of said ground, placed plaintiff in possession thereof, and after plaintiff was so placed in possession of same he, relying on his trade with said Smith, erected on said ground permanent and valuable improvements, consisting of a considerable portion of the house destroyed by fire and covered by the policy of insurance sued on.”

As appears from the evidence, appellee was in a condition to enforce specific performance as to the entire title to the lot; and being in that condition, he may, in legal effect, be regarded as the owner in fee-simple title of the ground on which the building stood. Insurance Co. v. Dyches, 56 Tex. 565 ; Insurance Co. v. May, 35 S. W. 829; Insurance Co. v. Ruddell, 37 Tex. Civ. App. 30, 82 S. W. 826. But the fact is established that the insured’s equitable right to title is not based on a deed. And it is believed that the condition in the policy is not satisfied unless the deed is shown. Considering the condition, the simple and direct intention of the parties is, it is thought, to agree that before any insurance would attach to the building the insured must hold and claim the ground under a written instrument purporting to invest him with an estate absolute or in fee simple. It was in the nature of an exemption, or a condition precedent to insurance. The purpose of this sort of title is, evidently, in order to have the insurance not attach in the first instance to a building on ground of a leaseholder or other person having only some qualified interest in the same, as well as where the person’s claim or interest in the ground rests entirely for proof in parol evidence. The parties may so stipulate as a legal right, and the courts cannot modify or change the same. A want of title of the sort stipulated for renders the policy void. Insurance Co. v. Smith, 29 S. W. 264; Eire Ass’n v. Calhoun, 28 Tex. Civ. App. 409, 67 S. W. 153; Insurance Co. v. Wicker, 93 Tex. 390, 55 S. W. 740.

We have carefully considered appellee’s contention in respect to the construction of this stipulation, but feel constrained to rule as above. This ruling is decisive of the case; and we here reverse the judgment of the court below, and render judgment in favor of appellant, with all costs of appeal and of the court below.
      ig^jEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other oases see same topic and KBY-NTJMBBR in all Key-Numbered Digests and Indexes


author: LEYY, J. HODGES, J. LEVY, J.

text:
    PHELPS v. JOHNSON.
    (No. 1498.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 4, 1915.
    On Rehearing, Dec. 23, 1915.)
    Landlord and Tenant <@=>95 — 'Leases—Construction.
    A lease contract, after providing in detail for the payment of rents, declared that, should the lessors make a sale of the land leased for agricultural purposes, then in that event the lease should immediately become void. The lease was for a term of five years. During the last year of the term the premises were sold and the tenant continued in possession. Beld, that the word “lease,” as used in the expression that “the lease should immediately become void,” meant “contract of lease,” and that, when the tenant entered upon the term of one year, his right to a continuation of possession for that year became vested.
    ..[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 300-304; Dec. Dig. <@=> 95.]
    Levy, J., dissenting.
    Appeal from District Court, Bowie County; H. P. O’Neal, Judge.
    Action by Isom Johnson against W. P. Phelps. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Appellee, the owner of certain farm land, claims by his petition that appellant permissively used and cultivated the land during the year 1913, but without any express agreement as to what amount of rent the appellant would pay, and seeks to recover the reasonable annual rental, averred to be $1,175. Appellant answered, as a defense, that he held over, rented, and farmed the land during the year 1913 in virtue of a written lease to him by J. M. Talbot and Mrs. M. J. Haynie, former owners of the land, which provided that for the period of five years from January 1, 1909, he was to have the use and occupancy of the land at the annual rental of $350, and that amount, for which only he was liable, he has tendered to appellee before suit, and now tenders into court as rent for the year 1913. The jury made the special finding of $825 as reasonable rental value of the farm for 1913, and the judgment was entered accordingly in favor of appellee.
    The evidence showed that on December 1, 1908, J. M. Talbot and Mrs. M. J. Haynie, joint owners of the land, leased the same by written lease to the appellee “for the term or period of five years beginning on the 1st day of January, 1909, and ending on the 31st day of December, 1913,” at the rental price of $350 for each year; payable October 15th each year; the lease containing the provision that:
    “It is, however, further agreed by all parties hereto that, should the parties of the first part make a sale of the land herein leased, then and in that event this lease is to immediately become void.”
    Under this lease appellant entered into possession of the premises and cultivated them and paid the agreed rental each year of 1909, 1910, 1911, and 1912. On August 29, 1912, Mrs. Haynie died, leaving a will by which she devised her interest in the property to J. M. Talbot, and the will was probated in the year 1912. After the will was probated, and in December, 1912, Mr. Talbot was desirous of selling the property leased and other lands. Appellant, according to the evidence, was informed by A. G. Crump about the 1st of January, 1913, that he wished to buy the place from Mr. Talbot if appellant was not going to buy it. Appellant was given the first chance by Mr. Talbot to buy the land, but he was unwilling to pay the price asked. In the latter part of January, 1913, A. G. Crump and O. O. Crump contracted with Mr. Talbot to purchase the Hand, and, according to their evidence, they verbally notified appellant that they had contracted to buy it, and that, if he remained in possession of the place he would have to pay the customary rent for the year, and that appellant at the time insisted that he was entitled to keep and work the place under his lease of $350 per year; Mr. Crump insisting that the lease was terminated by the sale. Appellant, though, denies that the Crumps notified him of the sale at the time, and that anything was said in reference to the lease contract. On February 14, 1913, Mr. Talbot executed and delivered a deed to A. G. and C. C. Crump conveying the premises. After the delivery of the deed, and on February 24, 1913, C. C. Crump wrote to appellant, and he received the same day, the following:
    “Dear Sir: We have finally closed our deal with Judge Talbot for the farm north of Hooks, and in the contract which we got with the place the terms of the contract closes the lease which you had with him. We presume you will want to make some kind of a deal to use the place this year, and would like to have an offer from you on the rent for the year.”
    And on February 27, 1913, C. C. Crump wrote and appellant received the following:

      “Dear Sir: In regard to the rent of the place this year would say we are anxious for yon to keep the place for this year, and will make you a much better deal than we would with any one else or than we would with you if you had not already made arrangements to farm it. In regard to the Bloxham claim will say that I would think his claim will end when the title passed from her and your contract lapsed. One of us will be down soon, and we can close up the matter of rent for this year in some way that will be perfectly fair and satisfactory to us both.”
    It does not appear that appellant answered the letters. Appellant was in possession of the land on January 1, 1913, and had been continuously in such possession since January 1, 1909, and at the date of the letters, and was preparing to farm the land for 1913. And it appears that in February and March, 1913, appellant had commenced farming the land. It appears as a fact that appellant and the Crumps did not come together and make a new rental contract for 1913, and did not have any express agreement 'as to the amount of rent to be paid for 1913. Appellant stated to the Crumps that he was going to stay on the land and work it during the year 1913 under his written lease, insisting that it was valid and not canceled, and the Crumps insisting that the lease was nullified, and that a new contract should be made. It appears as a fact that on April 18, 1913, the Crumps made a bona fide sale of the land by deed to appellee. And it appears as a fact the appellee immediately upon his purchase insisted to appellant that he must pay the usual third and fourth of the crop raised as rent for the year, and that appellant did not agree thereto, insisting that he was to pay only $350, and no more, as provided by his written lease of December 1, 1908. Appellant, however, denies that such insistence was made by appellee, and testifies that nothing was said about third and fourth rents until September. And it was admitted by the parties as a fact that there was no express contract for amount of rent for 1913 between appellant and appellee, but that appellant just stayed on the place and cultivated it after appellee purchased it.
    J. B. Manning and O. B. Pirlcey, both of New Boston, and J. S. Crumpton, of Texarka-na, for appellant. Mahaffey & Keeney, of Texarkana, for appellee.
   LEYY, J.

(after stating the facts as above). The court refused the appellant’s requested peremptory instruction to find for the plaintiff the sum of $350 and for defendant for costs, and peremptorily instructed the jury to find for plaintiff the reasonable cash rental value of the premises for the year 1913. The action of the court is made the basis of complaint by assignments of error numbered 2, 6, and 9, which may be here considered together as presenting the sole controversy, under the pleading and undisputed evidence, of whether appellant was liable to pay appellee for rent for the year 1913 the reasonable rental value of the farm or the fixed sum of $350. The facts are without dispute that appellee is the owner of the land, and that appellant used and cultivated it during the year 1913, and that there was no express contract between the appellant and the appellee or his immediate vendors, the Crumps, as to the amount of rent that appellant should pay for the use and cultivation of the place. And these facts would, it is not doubted, entitle the appellee to recover the reasonable rental value of the premises, as charged by the court, unless it should further be said from the evidence that the lease of December 1, 1908, was a subsisting contract in appellant’s favor, or that there was an implied contract of extension or holding over under the written lease, having the legal effect to make appellant liable only for the fixed sum of $350 as rent. The lease of December 1, 1908, pleaded by appellant and in accordance with the terms of which he claims to be holding the premises for cultivation contains the stipulation that:

“It is, however, further agreed by all parties hereto that should the parties of the first part make a sale of the land herein leased, then and in that event this lease is to immediately become void.”

The language of the parties expresses the assent of each of them that upon the happening of the sale the lease is to “immediately become void.” And by the language of the parties it is thought there is no room to doubt that each party to the lease meant and intended that a sale of the land could be made at any time during the life of the lease, and that such sale of the land when happening was to terminate the lease ipso facto, and it was to expire at once. Therefore it is thought that the stipulation could not properly be given the legal effect of a mere option to declare the lease void and not effective until both parties agreed to exercise the option, as insisted by appellant, but that it is in the nature of a conditional limitation upon the right of appellant to remain, on the premises after a sale had been consummated. Baxter v. City of Providence (R. I.) 40 Atl. 423; Thomason & Son v. Oates, 46 Tex. Civ. App. 383, 103 S. W. 1114. And the fact that the land was farm land, ordinarily used and cultivated by the year, would not legally operate to fix and grant the right of appellant to remain on the premises after the sale up to and until the end of the year, as insisted by appellant, for that the parties by their solemn agreement expressly indicated an intention otherwise to put an end to the tenancy and themselves fixed the time limit that it was to “immediately become void” when the lessors “make a sale of the land herein leased.” The continuance of the right to remain after sale until the end of the year would be entirely inconsistent with the agreement of the parties that the relation of landlord and tenant should cease sooner. The parties to the lease were exercising their legal privilege to contract as they wished, and any hardship in such terms, of contract re-suits solely from the free will and judgment of the parties. The courts -are not at liberty to make a contract for the parties or change the valid agreements of parties when the language and intention do not admit of and forbid a modification. After the date of sale by lessors the legal result is that the appellant was not longer bound to comply with the terms of the lease, and the lessors were not thereafter bound, each party being legally free of the agreement, and it was unenforceable against either of them. And appearing as a fact, as it does, that the lessor, Talbot, made a bona fide sale by deed of the land on February 14, 1913, and to appellants’ knowledge at the time, the appellant’s right, according to his own agreement, to remain and cultivate the land, expired, and he could predicate no right, as a defense to appellee’s suit, on the terms of the lease as such to remain there and pay only $350 for rent. Failing in fact and in law to sustain his defense of a formal enforceable lease in writing, the appellant’s defense must be further determined by whether or not facts pertaining to the conduct of appellant and of appellee and his vendors, the Crumps, towards each other respecting appellant’s occupancy after the termination of the written lease by sale has the legal result of an implied contract of extension or continuance of the tenancy upon the same terms of rent as those by which the parties to the lease had bound themselves in the original instrument. According to the undisputed facts, the Crumps gave notice to appellant in February and the early part of March, 1913, of their ownership of the land, and insisted that the written lease was vacated by the sale. And in their letter written in February to appellant the Crumps insisted that appellant make an offer and agreement of the amount of rent that should be paid for the year. And in March the ap-pellee made statement to appellant that he was insisting upon rent of one-third and one-fourth of the crops raised. And it appears as a fact without dispute that appellant did not agree with the Crumps to make a new rental contract upon their insistence to do so, but met the proposal of the Crumps with the continued occupation of the land under the claim and insistence that the written lease was valid and subsisting and would hold the premises to him under its terms. It appears as a fact that the Crumps insisted to appellant that the lease was vacated by its terms by the sale, and was not to be continued, and the Crumps did not agree nor assent to appellant’s cultivation of the land under the terms of the lease. And it appears as an admitted fact that:

“There was no contract between the plaintiff and the defendant about any rent, he [defendant] just stayed on the place after plaintiff bought it, and cultivated it.”

Insisting, as the Crumps did in February and early in March, at the incipiency and well after the hold-over by appellant, that the old lease had expired, and that new terms of rent should be made, and insisting in March, as appellee did, that he should be paid a different rent, and insisting, as appellant did, in reply to these demands, that the written lease was subsisting and enforceable in his favor, and refusing to make a new agreement, there affirmatively appears from the facts a want of mutuality between the parties respecting the terms of rent that should govern the continued occupation and use of the place by appellant. The situation was, in fact, a contest and disagreement respecting the amount of rent to be paid; each party insisting upon his claim and demand. In these facts there is not laid, it is thought, the foundation for an implied contract to continue the relation of landlord and tenant according to the terms of rent specified in the written lease. The want of assent or acquiescence on the part of appellee and his immediate vendors affirmatively appearing, as it does, to the hold-over or continuance of the occupation by appellant under same terms of rent provided in the written lease, the court could not presume or imply assent on their part and create a term of agreement shown, in fact, not to have been made from the conduct of the parties. Ives v. Williams, 50 Mich. 100, 15 N. W. 33. It is quite elementary that contracts, both express and implied in fact, are based on consent, and that there isi no legal contract without the consent of the parties. The mere fact that a tenant holds over the premises after the lease has expired does not raise a conclusive presumption that he holds under the' terms of the expired contract. This presumption is merely one of fact, and may be rebutted by proof of a contrary situation. Puckett v. Scott, 45 Tex. Civ. App. 392, 100 S. W. 969. And, under the evidence, if appellant in February, upon demand of the Cramps for a new rental contract, had vacated the premises, the Crumps could have predicated no legal right to hold appellant liable on the terms of the lease for his refusing to longer take the premises for the year 1913. It is because there was no contract between the parties. And likewise ap-pellee’s remedy for the occupancy, in the facts, by appellant, was not upon contract, but on a quantum meruit account, as he sues for the beneficial use which appellant had of the land. An entirely different case would be, however, had the facts only shown, for illustration, that the appellant continued the occupancy after expiration of the lease and at the expiration of the lease had offered to continue the occupancy upon the same specified terms of the lease, and the Crumps and appellee without reply permitted appellant to continue to occupy the place. In these facts, had they been the facts, there is laid the foundation for an implied contract, as the conduct of the Crumps and appellee was, in law, a virtual assent to the terms prescribed by appellant. Therefore it is thought that the facts of the instant case have the legal result that appellant was using and cultivating the land independent of any contract fixing the amount of rent he should pay, and appellee could sue, as he did, on a quantum meruit account for the beneficial use which appellant had of the land. 2 Page on Contracts (Ed. 1905) § 846.

By the first assignment appellant complains that the court erred in not sustaining a general demurrer to plaintiff’s petition. It is believed that the petition declares upon a valid cause of action within the jurisdiction of the court to try.

By the third assignment of error complaint is made of the refusal of the court to permit the evidence of the witness Talbot respecting an executory contract for the sale of the land with C. <3. Crump on January 20, 1913, and that after the execution of the contract there was appended thereto a provision to the effect that the sale of the land should be made subject to the lease of appellant. It is concluded that the court committed no error prejudicial to the appellant, and the assignment for that reason should be overruled. It appeared indisputábly that this executory contract was superseded by the deed of Mr. Talbot to A. G. and C. C. Crump on February 14,. 1913. This deed in legal contemplation constituted the final contract for the sale of the land. The deed contained no reference to the lease of the land. And appellant was not a party to the extension of the life of the lease, and does not appear to have known and consented at the time to the change. The original lease providing that it should be inoperative on a sale, appellant was a necessary party to a modification or change thereafter; and, unless he agreed or consented thereto, any change, extension, or modification of the original would not be binding on him or affect his legal rights in the lease.

The fourth assignment complains of the refusal of the court to permit the appellant to prove by the witness Bloxham to the effect, as stated in the brief, that he had bought Mrs. I-Iaynie’s interest in the rents coming to her under the written lease for the full term of five years, and had received the rents for 1911 and 1912, and expected same for the year 1913, and that about May or June, 1913, he sold the lease to A. G. Crump for $175 cash. Appellee objected to the evidence on the ground that it was irrelevant and because Bloxham was making no claim upon appellant at this time for rents. It is not believed the ruling constitutes reversible error. Providing, as the lease did, that it was to become void on a sale of the land, Bloxham would be held to have taken the interest of Mrs. Haynie subject to a termination of the lease on the happening of the sale. His rights in the lease would be no greater than Mrs. Haynie could convey. Consequently Bloxham’s acquisition of Mrs. Haynie’s interest was, as against appellant, in the nature of speculation or chance as to the duration of the lease. The appellant, the lessee, could not be compelled by a new owner to hold the place against his agreement. And the termination of the lease by its own terms on a sale terminated for all purposes the relation of landlord and tenant, and the appellant was not thereafter liable on the lease contract for rent to Blox-ham or his assignee. Bloxham* was entirely dependent on his lease contract for his rights. If Bloxham had a remedy at all after the termination of the lease for the rent of 1913 paid to Mrs. Haynie, it was not against appellant, but against Mrs. Haynie or her estate in the nature of a debt for money had and received.

The further contention of appellant is not thought tenable, that after the transfer of her interest in the lease Mrs. Haynie’s interest in the land ceased to the extent of the life of the lease, and that neither she nor her devisee could forfeit the lease by a sale of the land during the five-year life of the lease.

It is thought that what has been discussed above sufficiently decides that the remaining assignments of error, numbered 5, 7, 8,. 10, 11, and 12, should be overruled, as not affording ground for reversal, and they are accordingly overruled.

Affirmed.

On Rehearing.

HODGES, J.

On further consideration a majority of this court are of the opinion that this case was erroneously disposed of. We fully concur in the facts found and stated in the opinion of Justice Levy affirming the judgment appealed from; we also agree in the main to the general legal propositions which he annpunces in the course of his discussion; but we now think that a different construction should have been given to the contract between the appellant, Phelps, and his lessors. That contract is as follows:

“The State of Texas, County of Dallas.

“This memorandum witnesseth the following contract this day entered into by and between J. M. Talbot and Mrs. M. F. Haynie, herein called parties of the first part, and W. P. Phelps, herein called party of the second part, all of said parties being- residents of Bowie county, Texas, except J. IVI. Talbot, whose residence is Dallas county, Texas:
“First. The parties of the first part, in consideration of the promises and agreements of the party of the second part hereinafter stated, do by these presents lease and let unto the party of the second part, for the term or period of five (5) years, beginning on the 1st day of January, A. D. 1909, and ending on the 31st day of December, A. D. 1913, the following described tract or parcel of land, situated in Bowie county, Texas, and being what is known as the ‘Talbot farm,’ containing about one hundred and. thirty (130) acres of tillable land in lied river-bottom, and about thirty;five (35) acres on the hills; it being intended hereby to lease unto the said party of the second part for the term aforesaid all of the land owned by the parties of the first part in what is known as the Ghas. Lewis H. R. Survey situated in said county, and lying about five (5) miles north of the town of Hooks, in said county.
“Second. In consideration of the aforesaid lease made to him by the parties of the first part, the party of the second part does hereby agree and bind himself to pay as rent for said land the sum of three hundred and fifty ($350.-00) dollars for each and every year of said lease, to be paid as follows: Three hundred and fifty dollars on the 15th day of October, 1909. Three hundred and fifty dollars on the 15th day of October, 1910. Three hundred and fifty dollars on the 15th day of October, 1911. Three hundred and fifty dollars on the 15th day of October, 1912. Three hundred and fifty dollars on the 15th day of October, 1913. One-half of such payments to be paid to Mrs. M. F. Haynie at New Boston, Texas, and the other one-half to be paid to J. M. Talbot at the city of Dallas, Texas. And it is further understood that any default on the part of the party of the second part in making any of such payments shall, at the option of the parties of the first part, forfeit this lease and give unto the parties of the first part the right of re-entry upon said land.
“It is agreed, however, that should an overflow of Red river occur during any year of this lease, and the crops growing on said farm be destroyed or materially damaged thereby, then the said Phelps may satisfy the rent specified for that year by gathering and delivering to the said Talbot and Haynie on said farm one-third of all the corn and one-fourth of all the cotton grown and raised on said farm during that year.
“It is further understood between all parties hereto that the parties of the first part are to expend nothing for improvements or repairs upon said land during the period of this lease, and that all repairs or improvements thereon are to be made by the party of the second part at his own cost. And the party of the second part covenants to put the houses on said farm in good tenantable repair and to keep up the said place — that is to say, all the improvements thereon, including the fences — and to deliver the place to the lessors herein at the expiration of this lease with said houses in good tenantable condition1 and said fences in good repair.
“The party of the second part, in addition to the landlord’s lien, which is not waived by the parties of the first part, hereby acknowledges and gives to the parties of the first part an express lien upon all crops of every kind which he may grow or causo to be grown upon said land during the full period of this lease.
“It is, however, further agreed by all parties hereto that, should the parties of the first part make a sale of the land herein leased, then and in that event this lease is to immediately become void.
“In testimony whereof witness our hands in trijdicate this the 1st day of December, A. D. 1908. J. M. Talbot.
“M. F. Haynie.
“W. P. Phelps.”

The concluding stipulation in this instrument furnishes the grounds of this controversy.

It is conceded by all parties that a sale of the leased premises took place on February 14th, before the lease.by its terms expired, that no other contract was entered into between'the appellant and the purchasers, and that after the sale the appellant claimed the right to continue to hold under the terms of his written lease and to be liable only for what he had therein agreed to pay — the sum of $350 — and which was tendered by him.

The controlling question is: What meaning should be given to the words “should the parties of the first part make a sale of the land herein leased,. then and in that event this lease is to immediately become void?” Does this mean that the right of continued occupancy should eo instanti cease when a sale was consummated, and that the purchasers might eject the appellant from the premises in the event he refused to vacate? The appellant contends that under a proper construction of that contract his right of occupancy did not terminate upon the occurrence of a sale; that, having entered upon a year, he had a vested right to hold till the end of that year and to pay only the agreed rental. Chief Justice Willson and the writer now think that contention should be sustained. Our altered views do not result from giving a different meaning to the word “immediately,” but from the conclusion that it should be differently applied. The language of this lease might, without altering the meaning which the parties clearly intended to convey, be read as follows:

“It is, however, further agreed by all parties hereto that, should the parties of the first part make a sale of the land herein leased, then and in that event this ‘contract’ [lease] is to immediately become void.”

We have substituted -the word “contract” for “lease” because the context clearly shows that it was the lease contract that was to become void.

The next question then is: What are the rights of the parties when the contract is terminated by the happening of the contingency which is provided for? By its terms the contract does immediately cease to be operative;, and it can no longer be relied upon as a basis for the acquisition of any future rights. But the termination of the contract under such circumstances cannot destroy rights which had already been acquired. It operates prospectively, and not retrospectively. In other words, the parties to the agreement evidently intended that, when a.sale was made, the contract should no longer be considered alive for the purpose of conferring upon either party any further rights which had not then become vested, but which might under its terms be subsequently acquired. To illustrate: Let us assume that the sale, instead of occurring during the last year of the term, had taken place during the first and about the close of that year; the effect would have been to terminate the lease for five years, and Phelps could not thereafter claim a leasehold interest in the premises for any of the succeeding years. Neither could the lessors have claimed an obligation on his part to pay the future rentals contracted for. To say that the contract conveying a leasehold interest extending over a number of years shall be void or at an end upon the happening of a contingency does not necessarily mean that the right of occupancy and use of the premises shall also cease at the same instant. It cannot be said that the parties liave expressly so stipulated; and to hold that they have inferentially done so is purely a matter of construction. There certainly would have been no conflict in the terms of the contract if the parties had added a stipulation providing that in the event a sale should be made during any current year the tenant should have the right to continue in possession till the end of that year and should be responsible for the rents stipulated in the contract. This would merely be making the terms more specific. In contracts of this character, unless there is some stipulation to the contrary justice to all parties would seem to demand that there should be implied what may be called units of tenure; that is, a period of time which must be considered indivisible in determining when the right of occupancy should cease or what amount of rent should be paid. This period may be a day, a week, a month, or a year, depending in every instance upon the subject-matter of the contract, the use to be made of the premises, and the payments of the rent. Here we have as the subject-matter of the contract a farm, which the contract itself shows was to be planted in corn and cotton, well-known annual crops, and which required the use of the land for practically the entire year. The rental is also to be paid annually. Evidently the parties did not contemplate that the tenant should have the use of these premises for only a fractional part of a year; for that might operate to cause the tenant serious damage in the event the landlord should exercise his option to sell at an inopportune moment. Let us suppose that the landlord had made a sale in June or July, after the cultivation of the crops had been completed, but before a harvest; in such an event, if the right of use and occupancy instantly ceased upon the occurrence of the sale, and the tenant might be ousted, he would lose the entire results of his labor. The rule for the construction of contracts is thus stated in Cyc.:

“The words of a contract will be given a reasonable construction when that is possible, rather than an unreasonable one. The court will likewise endeavor to give a construction most equitable to the parties and which will not give one of them an unfair or unreasonable advantage over the other. Thus, where the meaning is doubtful, the construction will be avoided which will entail a forfeiture.” 9 Oye. 587.

■ To hold that the parties to this contract meant that the right of possession in the tenant should end with a sale of the premises is to adopt that construction which would give the landlord an inequitable advantage. To illustrate: In this instance the landlord was not required to give the tenant any notice in advance of his intentions to sell;he might without violating his agreement wait quietly till the tenant had expended practically all of the labor and money necessary to mature his crop, and then sell to a purchaser at a price augmented by the value of the tenant’s labor and expenditures up to that period. The tenant would lose all, and the landlord would correspondingly gain. Such a construction would give the landlord an unconscionable advantage. It is no answer' to say that in this case the sale took place before the crop was planted and cultivated, and that it did not, in fact, operate to the detriment of the tenant. We do not construe contracts by what does actually result, but by what that construction would make possible. If the right of possession could be arbitrarily terminated at any time after the beginning of the current year, before the tenant had expended any labor or money in the preparation for his crop, it might with equal liberty be terminated at any time afterward. There is nothing in the terms of the contract which would confer upon the tenant a right of continued occupancy if the sale is made at one time and not at another. Furthermore, it may be said that such a construction of the contract would operate in the nature of a forfeiture. On one day the tenant might be the owner of valuable crops of corn and cotton worth probably hundreds, or even thousands, of dollars, and without any fault of his own lose it all merely by reason of the fact that the landlord had seen fit to exercise his option to sell.

We have concluded that the proper construction of this contract, and that which the parties intended it should have, is that one year was the least time for which the premises should be enjoyed or paid for; that, when the tenant entered upon the term of one year, his right to a continuation for the remainder of the year became vested. The year was an indivisible unit of tenure, and a termination of the contract did not divest the tenant of the right which he had already acquired under its terms. The parties had the right to make such a contract; they might have made it expressly or by implication. In either event, if they intended to make it, their intentions should be given effect. If the tenant lost the right of possession during a current year, certainly it ought to be held that he was absolved from any obligation to pay rent; yet to so hold we must either say that the lessors intended that he should pay no rent if disturbed before the end of that year, or that he should pay rent in proportion to the time that he occupied the premises. To hold that they intended that he should be entirely absolved from the payment of any rent is to put an equally inequitable construction upon the contract. On the other hand, to say that they Intended that he should pay rent apportioned to the time he occupied the premises might require him to pay something for nothing, or even for an actual injury sustained. There is another general rule in construing contracts which shows that the courts are not inclined to permit one party to recover from the other something for nothing. We refer to the rule adopted in refusing to allow recovery of penalties, notwithstanding the parties have stipulated expressly to that effect. There is no reason why the same liberality should not be applied in construing contracts of this character.

The construction which we think should be adopted does no injustice to any of the parties. The tenant gets the benefit of his labor; the landlord, whether it be the original owner or the purchaser, gets what we must assume the parties regarded, when they made the original contract, as a reasonable rental for the premises. The purchaser cannot claim ignorance of what he would be required to take in the event he purchased; he had notice of the contract, and is charged with that construction which the courts in the administration of justice must place upon it.

The substantial facts in this case being undisputed, we conclude the motion for rehearing should be granted, and judgment here rendered in favor of the appellee for the sum of $350, and in favor of the appellant for all costs both of this court and the court below.

LEVY, J.

(dissenting). The question is one purely of construction of the lease contract, affecting its discharge or termination. And it is a well-understood principle of construction, in arriving at the intention of the parties, as embodied in the words used by the parties, that all the terms of the agreement must be considered, and force given to each and every word. The parties stipulate that the lease of the premises is to be for the full period or term of five years, beginning January 1, 1909, and ending December 31, 1913, provided a sale of the land is not effected during that five years. The parties say, in clear expression, that:

“Should the parties of the first part make a sale of the land herein leased, then and in that event this lease is to immediately become void.”

“Lease” may be defined, and is commonly so understood, as a contract transferring the right to the possession and use of the land for a certain term of years, or at will, in consideration of compensation. Devlin on Real Estate, § 13. “Void” is a word commonly undérstood to mean “null”; and so the stipulation without qualification that “this lease” shall “become void” indicates the purpose and intent to annul the lease contract in its entirety, both the yielding up of the future possession and use of the land and the obligation of rent. The force of the words admits of no other idea. Therefore, plainly enough, the parties had in mind and affirmatively intended annulling and making of no further force and effect between themselves of the transferred right to the use and possession of the premises, and ceasing of liability for further rental. And annulling the entire lease contract, as the parties definitely say shall be, operates to and for all purposes, in legal effect, the rights of the contracting parties thereunder. The intention of the parties respecting a termination of the lease contract in its entirety on a sale being unequivocally arrived at, then the single fact only remains of whether or not the parties have in their agreement predetermined the precise time for this discharge or termination. If so, and it being within their legal right to contract in that respect as freely as they may choose to do, the courts cannot modify or change the agreement. The phrase “then and in that event” clearly means and has reference only to the time when the sale of the land is effected. Therefore the sale of land is plainly the event intended by the parties to mark the termination of “this lease” earlier than the five years. It is to be regarded as a vital term of the contract, which the parties had the right to agree upon. And the word “immediately” is without qualification by the parties in respect to any different event or period of time, and from its very connection necessarily imports the exclusion of any interval of time. So in the language “then and in that event this lease is to immediately become void” it is difficult to perceive that the parties intended any other interval of time than the precise time when the sale was made. The parties would not, it is reasonable to say, have expressed themselves so definitely and in such explicit terms, in so important a feature of their agreement, if they had not intended to be so understood. Consequently it would appear that the parties definitely say and clearly express their intention that the lease contract in its entirety shall, upon the happening of the sale, instantly become annulled and of no further force and effect between themselves.

If the parties had not predetermined the precise time that the lease contract was to become void after the sale, it might fairly be construed, as done by a majority of the court, as terminating at the end of the calendar year. But the meaning and force of the words “then and in that event * * * immediately” to “become void,” as they appear in the sentence, forbids, it is believed, the construction that the lease contract was to be terminated at the end of the current year following the date of sale of the property, which was February 14th. The lessee, viewing it from his standpoint, could have fairly understood that planting a crop might effectuate a loss to him if the place were sold and he had to yield up possession; and yet, so knowing, he nevertheless agreed to yield up possession, and thereby to cut off his claim to have further time. The courts cannot make a new contract for the parties.

It is thought the judgment should be affirmed, and I therefore dissent.
      ®=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    GRAND COURT OF TEXAS INDEPENDENT ORDER OF CALANTHE v. JOHNS.
    (No. 1542.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 30, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. INSURANCE <S=>750 — FRATERNAL ASSOCIATION— BENEFIT — FORFEITURE—-TO BE IN “ARREARS.”
    Where the laws of a fraternal benefit association required a member to be in arrears one month in payment of endowment dues in order to forfeit his right in the endowment fund, and insured, who had until January 30th to pay the endowment dues for which it was contended she was in arrears, died on February 29th, her endowment right was not forfeited, since “to be in arrears,” meaning to be behind in the payment of that which is due, deceased would not be in arrears until the expiration of the month after January 30th.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§' 189.5, 1896, 1903; Dee. Dig. <§=> 750.
    For other definitions, see Words and Phrases, First Series, Arrears.]
    2. Insurance <§=>756 — Benefit Association —Summary Suspension — Forfeiture.
    Where such laws further provided procedure for the suspension of a member for nonpayment of dues with notice and a hearing, a summary suspension by her local lodge without conformity to such procedure was invalid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1917, 1918; Dee. Dig. <§=>756.]
    3. Insurance <§=>750 — Benefit Association —Funeral Benefits — Arrears — Forfeiture.
    Where such laws further provided, “if at death a member is in arrears for endowment one quarter, dues, fees, etc., to the amount of three months’ dues, funeral benefits shall not be paid,” and deceased was in arrears for some, but not other, assessments due from her, her beneficiary’s right to the funeral benefits was not forfeited, since such provision of the laws must bo construed as meaning that, before the member is liable to suspension, he must owe all such assessments for the full period of three months.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1895, 1896, 1903; Dec. Dig. <§=> 750.]
    Error from Bowie County Court; Lee Tid-well, Judge.
    Action by Matthew1 Johns .against the Grand Court of Texas Independent Order of Calanthe. Judgment for plaintiff, and defendant brings érror.
    Affirmed.
    Rollin W. Rodgers, of Texarkana, for plaintiff in error. Mahaffey & Keeney and N. L. Dalby, all of Texarkana, for defendant in error.
   HODGES, J.

The plaintiff in error is a fraternal benefit association doing business in tbis state. It consists of a Grand Court, or lodge, for tbe state of Texas, and various subordinate courts or lodges situated in Bowie and other counties of the state. Its business is, among other things, to establish a fund for the relief of sick and distressed •members, and an endowment fund for tbe benefit of the families or those dependent upon its members, as such members might direct. It has a constitution and by-laws for its government, and in which are expressed the conditions which govern its liability to its members. The defendant in error instituted this suit to recover upon a policy of insurance ^issued by tbe plaintiff in error upon the life of his wife, and for certain funeral benefits which it is claimed were due under the rules and regulations of the order. Lulu Johns, the wife of the defendant in error, died on February 29, 1912. Tbe payment of the policy is resisted upon the ground that at the time of her death she was not in good standing in the order, by reason of her failure to pay the various dues and assessments required under the constitution and by-laws, and that for tbis reason she had forfeited all rights under the terms of her policy of insurance. The case was tried before the court without a jury, and a judgment rendered in favor of the defendant in error for $300, the full amount of the insurance, and for $75 as funeral benefits.

In the errors assigned it is contended that the undisputed evidence shows that all rights under the policy had been forfeited on account of the nonpayment of the various dues and assessments required. The following provisions of the constitution and by-laws are referred to:

“Section 2. The endowment fees shall be - a quarter; said dues are obligatory and shall be charged and collected from the membership together with regular monthly dues.
“Section 3. The register of deeds of each subordinate court in the jurisdiction shall send a quarterly report of the entire financial membership to the secretary of endowment board, together with the quarterly dues, on or before the 15th of each quarter; the extreme limit being tbe 30th day of January, April, July and October. Any member’s name failing to appear on tbe financial roll shall be declared unfinancial without further notice. To be made financial said member’s application must be accompanied by all back duos presented to the court at its regular meeting and received by a vote of its members.
“Section 4. A member one month in arrears with endowment dues forfeits all right to benefits from the endowment department.”

In 1910 the Grand Court of the state in its regular session in the city of Waco adopted the following resolution:

“Be it resolved, that the local court is compelled under the order of this resolution to remit the endowment tax of each financial member on or before the 30th day of the first month of each endowment quarter.”

On the same date the following additional resolution was adopted:

“Resolved, that any member failing to pay the endowment tax by the 30th day of the first month of tlio endowment quarter of the endowment year is nonfinaneial in the order of Cal-anthe, Jurisdiction of Texas. The member paying his or her dues after the above-mentioned date to the recorder of accounts, or any other member of the court, shall do so at their own risk; and the member is not reinstated until accepted by a vote of a majority of members present, they having been cluly notified. Notice of reinstatement must be signed by W. O. and R. of Deeds, attested by court seal. If endowment assessment is then sent secretary of endowment board, same must be by registered letter.”

Other provisions of the constitution fix the. quarterly dues for the endowment policy, such as that sued on in this instance, at $1 per quarter, and the monthly dues' at not less than 25 cents per month. There was also a per capita tax of 12 cents per member, to be paid semiannually; a Pythian tax of 10 cents per member, to be paid annually in January; and an emergency tax of 5 cents per member, to be paid annually on November 1st. In addition to these there was a building tax in a small amount, which was to be paid to the local court. It is contended that at the time of her death Lulu Johns was in arrears in the sum of $3.90, as follows:

January and February dues.$0.50
January endowment assessment. 1.00
January per capita tax.25
. November emergency tax.05
Building tax. 2.10
Total .$3.90

It appears that she was notified of her ar-rearages, and requested to make payment in order to retain her good standing in the order. She attended a meeting of her local court on February 15th, when the minutes show that the following proceedings were had:

“Sister Lulu Johns was handed written statement of her indebtedness to P. P. Court No'. 8, and told personally that she now stands suspended and will not be permitted to sit with us until her indebtedness is paid. W. C. declared her suspended. Her indebtedness is :
January and February.$0.50
January endowment and per capita tax . 1.25
Emergency tax.05
Building tax. 2.10
Total .$3.90”

Lulu Payne, who testified for the plaintiff in error and who kept the minutes upon that occasion, stated:

“The minutes of the lodge which I have read here show the action of the lodge on Lulu Johns’ suspension. This occurred on February 15, 1912.”

The only provision of the constitution or by-laws referred to in the statement of facts as authorizing the suspension of members for the nonpayment of dues is the following:

“Section 11. The register of accounts must report to the court the name of any member two months in arrears, reporting same to the W. C., who shall fix a time for action in the matter. Said member must be notified of indebtedness by the register of accounts, according to article 7, section 7, reporting to the court in what manner and when notice was given, whereupon the court shall determine the sufficiency thereof. If member appears he or she shall be heard before a committee appointed in such manner as the court may direct, and after the accounts are brought before the court it shall be determined whether said member was found to be one quarter in arrears. If the vote is in the affirmative the W. O. shall declare the member suspended.”

Another provision is as follows:

“Any member in arrears to the court for three months shall not be entitled to vote and shall be disqualified from any office until such arrears are paid.”

Section 4 of article 16 of the constitution and by-laws is as follows:

“The funeral benefits, in case of death of a member, shall not be less than twenty-five ($25.-00) dollars nor more than seventy-five ($75.00) dollars.
“Section 5. Members Not in Good Standing at Death. — If at death a member is in arrears for endowment one quarter, dues, fees, etc., to the amount of three months’ dues, funeral benefits shall not be paid.”

Taking up the assignments in their order, we shall consider first whether at the time of the death of the insured she has forfeited the right to what is termed the endowment fund. It will be observed that the only provision of the constitution which provides for a forfeiture of that benefit requires the member to be one month in arrears. It will also be observed that according to the laws of the order the insured had until the 30th day of January to pay her endowment dues and assessments; her arrearage began when that day ended without the making of those payments. It is undisputed that her endowment dues and assessments had been paid up to January 1, 1912. The benefits under the policy were not forfeited till she had remained in arrearage for one entire month after the 30th day of January. To be in arrears means to be behind in the payment of that which is due. It implies a default, a failure to pay according to some existing obligation. 29 Cyc. 174; Bacon on Benefit Societies, § 389; Hollingsworth v. Willis, 64 Miss. 152, 8 South. 170. The period of arrearage which was to terminate in a forfeiture had not expired at the time of her death on the 29th of the following February. Hence we conclude that her rights to the endowment fund had not been forfeited.

It is contended, however, that even if the policy of insurance had not been forfeited, the insured was not in good standing in the local court by reason of her failure to pay the local dues and assessments, and therefore her beneficiary was not entitled to collect any of the funeral benefits. The extract which we have quoted from the record of the proceedings of the local court, and which is relied upon as proving a suspension, does not show a compliance with the requirements of the laws of the order. It rather evidences an informal and summary procedure which could not operate to deprive the insured of the benefits accruing under her policy. Section 5, quoted above, which provides that if at death a member is in arrears for endowment one quarter, dues, fines, fees, etc., to the amount of three months’ dues, funeral benefits shall not be paid, must be construed as meaning that before the member is liable to suspension he or she must owe all of these fees, fines, and dues for the full period of three months. That does not appear to have been the case in this instance; for, according to the evidence, Lulu Johns was not three months in arrears for all of her dues to the Grand Lodge, or to the local lodge. We therefore conclude that the court properly awarded judgment for the funeral benefits.

The judgment is affirmed.
      <S=3B'or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes