text:
    SCARBROUGH et al. v. WHEELER.

    (No. 5399.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Conteacts (§ 335) — Performance — Actions — Pleading—Sufficiency.
    A petition, in an action for compensation for. plans for fixtures for a part of a business building, which alleges that defendant accepted the plans drawn by plaintiff, that the plans were satisfactory and complied with the contract, and that defendant found no fault therewith nor made any objection thereto, but failed to install the improvements, states a cause of action as against a demurrer, though the contract required that the services should be to the entire satisfaction of defendant before he should be required to pay therefor.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. '§§ 1664-1676; Dec. Dig. § 335.]
    2. Work and Labor (§ 9)~Contract — Performance.
    One who furnishes plans for fixtures and furniture for a part of a business building in compliance with the contract therefor may recover on a quantum meruit for the services rendered on an arbitrary refusal to accept and pay for the plans.
    [Ed. Note. — Por other cases, see Work and Labor, Cent. Dig. §§ 23-24; Dec. Dig. § 9.]
    3. Appeal and Error (§ 263) — Questions Reviewable — Assignments of Error — Instructions.
    Under Rev. St. 1911, art. 1974, as amended by Acts 33d Leg. c. 59, providing that objections to instructions not made before they are read shall be considered waived, and article 2061, as amended by the same act, providing that the rulings of the court on instructions shall be deemed approved unless excepted to, errors predicated on the refusal of special charges requested will not be considered, where the record fails to show that any exceptions were reserved to the refusal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dee. Dig. § 263.]
    4. Trial (§ 349) — Instructions — Special Issues — Disceetion of Court.
    Where the evidence authorizes the submission of the case to the jury, the court may submit it either in a general charge or by special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.]
    5. Trial (§ 256) — Instructions — Requests —Necessity.
    Errors of omission in a charge must be cured by special requested instructions, or a party cannot complain.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    6. Appeal and Error (§ 1033) — Harmless Error — Instructions.
    A party cannot complain of an explanation made by the court of a charge where the explanation is to his advantage.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    7. Appeal and Error (§ 1001) — Verdict— Conclusiveness.
    A verdict sustained by evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. Í 1001.]
    8. Contracts (§ 305) — Settlement—Fraud —Mistake.
    A party who pays for services rendered may not, without proving that the settlement was induced by fraud, accident, or mistake, recover damages for defective services.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1398, 1399, 1400, 1463, 1464, 1467-1475; Dec. Dig. § 305.]
    Appeal from District Court, Travis County; Charles A. Wilcox, Judge.
    Action by C. A. Wheeler against E. M. Scarbrough and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    S. W. Fisher, of Austin, for appellants. White, Cartledge & Graves, of Austin, for ap-pellee.

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

       writ o£ error pending in Supreme Court.

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

   RICE, J.

Appellants, Scarbrough & Hicks, having in process of construction an office building on the corner of Sixth street and Congress avenue adjoining their mercantile establishment then occupied by them in the city of Austin, between Fifth and Sixth streets, fronting on said avenue, the first and second floors of which they intended to devote to a dress goods department, on the 16th of April, 1910, entered into a contract with appellee, a professional designer, to furnish necessary plans of store arrangements, detail drawings and specifications covering all i contemplated store furniture and fixtures therefor, and also to take for them estimates [from such contractors as they might direct, to prepare contracts to be signed by them' and such contractors, and to faithfully superintend the construction of the work in the factory, as well as the installation of such fixtures and furniture in said building. In consideration of the faithful performance of such services by appellee to “their full and complete satisfaction," they bound themselves to pay him 5 per cent, of the contract price for such fixtures and furniture built under such plans and specifications, 3 per cent, of which was to become due and payable when the contracts were signed by them and such contractors, and 2 per cent, when the work was completed. There were other provisions not necessary to notice. These plans and designs were intended for both the old and new buildings. Appellee furnished certain plans for the new building, which were accepted by appellants and the furniture and fixtures called for therein were manufactured and installed and the work accepted and paid for by appellants, and there is no controversy respecting same, except as ■ claimed in appellants’ plea in reconvention. Appellee thereafter prepared and submitted to appellants plans and specifications under said contract for fixtures and furniture for the first and second floors of the old building, and procured bids for the manufacture and installation of said furniture, which were submitted to appellants, and, they having failed to install same, appellee brought this suit against them to recover on a quantum meruit the value of his services therefor, alleging that he had always been ready, able, and willing to award contracts for the construction and installation of said work, and to superintend the same, and had so advised the appellants, but they failed and refused to have said furniture installed, on account of which it was impossible for him to superintend said work of installation; he further alleged that appellants accepted the designs, plans, and specifications which he had drawn and prepared for said old building and that his work was entirely satisfactory to. them, and that the same complied in every particluar with the terms of said contract, and that appellants had failed to find any fault or make any objection thereto; but, for some reason unknown to him, had failed to install said improvements. Appellants filed general and special exceptions to the petition, and specially denied that said plans and specifications so furnished were satisfactory to them, and further alleged that appellee voluntarily and without their authority procured bids thereon, and that such bids were excessive, exorbitant, and wholly disproportionate to the benefits to be derived therefrom, and specially denied that they ever accepted said bids or plans for the manufacture and installation of said fixtures. Appellants also filed a plea in reeonvention, in which it was claimed that the fixtures and furniture for the new building for which they had theretofore paid were unsatisfactory and defective, causing them, at considerable expense, to procure other furniture and fixtures, to their damage in the sum of $4,000. The case was submitted upon special issues upon the answers to which judgment in behalf of appellee for the sum of $800 was entered, from which judgment this appeal is taken.

There was no error, we think, in overruling appellants’ demurrer to plaintiff’s petition. While it is true that the contract required that the services performed should he to the entire and full satisfaction of appellants before they were required to pay therefor, still the petition affirmatively alleges that appellants had accepted the designs, plans, and specifications which were drawn and prepared by appellee, and that the plans and work were entirely satisfactory to said firm, and that the same complied in every particular with the terms of the contract, and that appellants had found no fault therewith, nor made any objection thereto, hut for some reason unknown to plaintiff, had failed to install said improvements. If these allegations were true, there could be no question but what liability resulted therefrom. Hence we overrule the first assignment.

The second assignment insists that the court erred in overruling defendants’ special exceptions to the fourth paragraph of plaintiff’s petition, wherein recovery was sought on a quantum meruit for the actual value of the service performed by him, because, as they contend, under the averments of said petition plaintiff’s right to compensation was alone fixed and determined by the provisions of the written contract, and it nowhere appeared in said paragraph of-the petition or elsewhere that the plaintiff was called upon to perform, or did perform, any service other than that contemplated by the provisions of the contract. We overrule this assignment, because the petition alleges a compliance with the contract on the part of appellee, and an arbitrary refusal to comply therewith on the part of appellants, for which reason he was entitled to recover on a quantum meruit for the services actually rendered. See Cann v. Rector, 111 Mo. App. 164, 85 S. W. 994; Putman v. Wheeler & Rhodes, 65 Tex. 525.

The third, fourth, fifth, sixth, seventh, and eighth assignments are predicated upon the refusal of the court to give a number of special charges requested by appellant. The record fails to show, however, that any bills of exception were reserved by appellants to the refusal of the court to give either of said charges, for which reason we are not permitted, under the law, to review the errors assigned. See article 1974, R. S. 1911, as amended by Acts 33d Leg. p. 113, also article 2061, as amended by acts of same Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1974, 2061). See, also, Crow v. Childress, 169 S. W. 927, and authorities there cited; also Gunter v. Merchant et al., 172 S. W. 191, decided by this court November 11, 1914, and Floegge v. Meyer et al., 172 S. W. 194, and Gulf, Colorado & Santa Fé Ry. Co. v. Texas Packing Co., 172 S. W. 195, this day decided by us. Said article 2061 expressly provides that the ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to as provided in the foregoing articles. A failure, therefore, to, except is equivalent to a waiver of all objections on the part of appellants' to the refusal to give such charges.

We overrule the ninth assignment, because we think the evidence authorized the submission of the case to the jury, and the court had the right to submit it, either in a general charge or by special issues.

If the charge of the court was defective in the particulars indicated in the tenth and thirteenth assignments, it was an error of omission, and should have been cured by special instructions asked by appellants, which was not done; therefore said assignments are overruled.

The explanation to the court’s charge, as complained of in the eleventh assignment was to the advantage, we think, of appellants ; they therefore have no right to complain of same, for which reason this assignment is overruled. '

What we have said under the third assignment is a sufficient answer to the question raised by the twelfth assignment, for which reason it is unnecessary to further consider it.

Appellants challenge the verdict as being excessive. There is evidence to support it, and as this matter was purely within the province of the jury, we are not disposed to disturb their finding, and therefore overrule the fourteenth assignment.

Appellants’ plea in reconvention cannot be maintained, because it appears therefrom that appellee’s services in connection with the new building had been accepted and paid for by appellants long prior to the filing of’ said plea; and there was no allegation that such settlement was induced by fraud, accident, or mistake; hence the court did not err in sustaining appellee’s demurrer thereto.

Finding no reversible error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    RATLIFF v. WAKEFIELD IRON & COAL LAND IMPROVEMENT CO.
    (No. 5392.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 2, 1914.)
    1. LANDLORD AND TENANT (§ 24) — LEASE— Description of Property.
    A lease of premises, described as a strip out of a designated survey lying west of and adjoining a survey named containing 115 acres, does not sufficiently describe the land.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 61-65; Dec. Dig. § 24.]
    2. Appeal and Error (§ 1050) — Harmless Ebroe — Erroneous Admission op Evidence.
    Where, in trespass to try title, parol evidence, received without objection, showed that plaintiff’s lessees occupied and used the land sued for by virtue of a lease for more than 10 years prior to defendant’s claim, the error, if any, in admitting the lease in evidence, based on the fact that it did not sufficiently describe the land, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Trial (§ 85) — Objections—Sueeiciency.
    An objection to the entire answer of a witness on the ground that it is hearsay is properly overruled, where a part is admissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    4. Appeal and Error (§ 216) — Instructions —Requests—Necessity.
    Error, in an instruction in trespass to try title, that if plaintiff has had peaceable and adverse possession for 10 years the verdict must be for him, arising from the failure to define peaceable and adverse possession, is one of omission ; and defendant, failing to ask a special charge supplementing it, cannot complain.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.]
    5. Appeal and Error (§ 499) — Assignments oe Error — Instructions—Statutes.
    Under Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1984a, 1954, 1970, 1971, 1973, 1974, 2061), providing for the submission of requested charges before argument, a bill of exceptions to the refusal of a requested charge, which does not show that it was presented in time, presents no question for review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    Appeal from District Court, Llano County; Clarence Martin, Judge.
    Action by the Wakefield Iron & Coal Land Improvement Company against James Ratliff. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Flack & Dalrymple, of Llano, and Joe P. Flack, of Menard, for appellant, j. H. McLean, of Llano, for appellee.

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

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

   RICE, J.

This suit was instituted by ap-pellee against appellant in the ordinary form of trespass to try title, to recover 115 acres of land in Llano county out of the Samuel Craft league and labor survey, and for $50 per annum rent therefor since the 1st of January, 1904. Appellee also relied upon the several statutes of limitation, which were specifically pleaded. Appellant pleaded not guilty, as well as the three and five year statutes of limitation, which last defenses, however, were abandoned. Both appellee and appellant proved a complete chain of title from the sovereignty of the soil down to themselves, appellant’s emanating from the patentee anterior to that of appellee. The evidence raised the following issues, which were submitted to the jury: (i) That there was no conflict, but that plaintiff’s west line and appellant’s east line were identical, as shown by the plats in evidence; (2) that the appellant acquiesced in said line as the true division line between the lands- of himself and appellee; (3) that the former owners of appellant’s tracts recognized said line as being the true east boundary of their lands, and acquiesced in same, during which time appellee purchased and paid for the land in controversy, whereby appellant is estopped from denying same; (4) that plaintiff had title by virtue of the three, five, and ten years statutes of limitation — and there, was evh dence supporting these issues, especially the last. A jury trial resulted in a verdict and judgment in behalf of appellee for the title and possession of the land sued for, together with $148.75, as rent therefor, from which this appeal is prosecuted.

Appellee offered in evidence several leases, to which appellant objected on the ground that they did not sufficiently describe the land sued for. The same is described therein as follows, to wit:

“A strip out of the Samuel Craft league survey No. 216, lying west of and adjoining the Hardy King survey, containing 115 acres.”

These leases were offered in connection with and as tending to support appellee’s plea of limitation. This description, we think, was insufficient, and the objection should have been sustained; but, in our opinion, there was no reversible error in failing to do so for the reason that there was parol evidence offered, without objection, showing that plaintiff’s lessees occupied and used the identical land sued for under and by virtue of these leases for more than 10 years prior to appellant’s claim thereto, so that, irrespective of the leases, there was competent evidence upon which the jury could have predicated their verdict in appellee’s favor. This being true, he was not injured by the failure of the court to exclude said instruments, and the error was harmless. See Sockwell v. Sockwell, 166 S. W. 1188, 1190; Whtson v. Rice, 166 S. W. 106, 107; Corrigan et al. v. Heubler, 167 S. W. 159; Scott v. Townsend, 159 S. W. 342; rule 62a, Courts of Civil Appeals (149 S. W. x).

It is urged on behalf of appellant in the second assignment that the testimony of Lyman relative to appellee’s possession of the land in controversy was hearsay, and should have been excluded upon his objection; but appellee insists, which we think is true, that a part of the answers of the witness complained of was clearly admissible, and, the objections being urged against the entire answer as a whole, the overruling of the objection was not error, since it was not incumbent upon the court to cull from the entire answer such specific portions thereof as may have.been incompetent if same had been specifically objected to.

By the third assignment it is urged that the court erred in its main charge, wherein it attempted to instruct the jury as to the 10-year period of limitation, in that the charge reads:

“If you find that plaintiff has had peacable and adverse possession of the land described in his petition for 10 years next before the defendant’s entry thereon, then if you so find, you will find for the plaintiff”

—without instructing the jury further that the peaceable and adverse possession thereof meant that the plaintiff must have'been cultivating, using, or enjoying said land. This being an error of omission merely, it was incumbent upon appellant to ask a special charge supplementing it, and his failure to do so renders the error harmless. We, therefore, overrule this assignment.

The fourth assignment complains of the failure of the court to give appellant’s special charge No. 1. It is urged by appellee, however, that this charge should not have been given, because it was on the weight of evidence. Besides, it does not appear from the bill of exceptions taken to its refusal when the charge was presented to the court. For aught that appears in the bill it may have been presented after the argument had been concluded, and for this reason the court may have refused it. Special charges must be prepared and submitted to the court before the beginning of the argument, and where refused, the bill of exception should show this fact in order to properly present the question for review. See Acts 38d Leg. pp. 113, 114; also Eldridge v. Ry. Co., 169 S. W. 375, and Floegge v. Meyer et al., 172 S. W. 194, recently decided by this court, and authorities there cited. For which reason, the fourth assignment is overruled.

Finding no reversible error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.


author: JENKINS, J.

text:
    DARDEN v. SOUTHERN TRACTION CO.
    (No. 5425.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1914.
    On Motion for Rehearing, Jan. 6, 1915.)
    1.Carriers (§ 349) — Injubies to Passengers — Negligence — Discovered Peril — Contributory Negligence.
    Where, in an action for injuries to a street car passenger while alighting, the jury on special issues found, as justified by the evidence that there was no discovered peril, and that the passenger was guilty of contributory negligence^ there could be no recovery.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1408; Dec. Dig. § 349.)
    2. Appeal and Error (§ 263) — Questions Reviewable — Instructions — Assignments oe Error.
    Error in an instruction not excepted to is waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.]
    3. Appeal and Error (§ 1068) — Harmless Error — Erroneous Instructions.
    Where, in an action for injury to a street car passenger while alighting, the jury found on proper evidence that there was no discovered peril, and that the passenger was guilty of contributory negligence, the error in a charge which referred the jury to a paragraph defining ordinary negligence, instead of referring to another paragraph requiring the highest degree of care, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    4. Carriers (§ 347) — Street Car Passengers — Contributory Negligence.
    The jury may find that a passenger stepping from a moving street ear before it has reached the stopping place is guilty of contributory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397. 1402; Dec. Dig. § 347.]
    5. Carriers (§ 346) — Street Car Passengers —Discovered Peril.
    Where, at the time a passenger left her seat and start»d towards the rear door and stepped from a car while in motion, the conductor was busy taking up fares with his back to her and did not see her and his attention was first called to the fact that she had stepped from the car by another passenger, a finding that there was no discovered peril was justified.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dec. Dig. § 346.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by A. B. Darden against the Southern Traction Company. From a judgment for defendant, plaintiff appeals.
    Affirmed and motion for rehearing overruled.
    Davis & Cocke, of Waco, for appellant. Spell & Sanford, of Waco, for appellee.

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

   JENKINS, J.

Appellant brought this suit against appellee to recover damages for personal injuries sustained by his wife while attempting to alight from one of appellee’s street cars in- the city of Waco. The negligence alleged consisted in appellee’s failure to stop its car a sufficient length of time for ■her to disembark therefrom, and that by reason of a sudden jerk in starting she was thrown violently to the ground and injured, and in failing to prevent her injury after discovering her peril. Appellee answered, demurring generally and specially, and denied seriatim all the allegations of appellant’s petition, and specially pleaded contributory negligence. The case was submitted to the jury on special issues, the answers to which were received by the court and judgment rendered thereon in favor of appellee, to which appellant excepted, and from which this appeal is prosecuted.

The jury fouucl that there was'no discovered peril, and likewise found that appellant’s wife was guilty of contributory negligence. This being true, the judgment, we think, was correct, as the evidence warrants such findings; and it is not necessary, in our opinion, to discuss seriatim the other assignments questioning the sufficiency of the evidence to support the verdict.

The fourth assignment complains that the court in charging the jury by mistake referred them to a paragraph of the charge defining ordinary negligence, whereas the reference should have been to another paragraph which required the highest degree of care on the part of appellee. This charge was not excepted to, for which reason alone we think the error complained of was waived. See Eldridge v. Ry. Co., 169 S. W. 375 ; Insurance Co. v. Rhoderick, 164 S. W. 1069; Quanah A. & P. Ry. Co. v. Galloway, 165 S. W. 546; Crow v. Childress et al., 169 S. W. 927; Gunter v. Merchant et al., 172 S. W. 191; and Floegge v. Meyer et al., 172 S. W. 194, recently decided by this court.

Besides this, since the jury found that there was no discovered peril, and that appellant’s wife was guilty of contributory negligence, the error, if any, was immaterial and harmless.

We think the facts amply sustain the finding of the jury that Mrs. Darden was guilty of contributory negligence in stepping from the car while the same was in motion, and before it had reached the station at which she expected to alight.

The evidence further shows that at the time she left her seat and started towards the rear door, as well as when she stepped from the car, the conductor was busy taking up fares, with his back to her, and did not in fact see her; that his attention was first called to the fact that she had stepped from the car by a passenger thereon; and, even if he had seen her going towards the door, no reason is shown why he should have anticipated that she would step from the car while the same was in motion.

Under the circumstances disclosed by this record, the judgment, we think, is in every respect warranted by the evidence; and, finding no error in the proceedings of the trial court, the same is in all things affirmed.

Affirmed.

On Motion for Rehearing.

It is apparent that the trial court inadvertently referred the jury to the wrong number of a paragraph of the charge or definitions, by reason of which the jury were told that negligence on the part of the conductor would consist of the failure to exercise ordinary care, instead of a failure to exercise that high degree of care that a railroad owes to its passengers; and appellant argues that but for this error the jury might have found that the conductor was guilty of negligence. He also contends that article 2061, R. S., does not apply where a case is submitted on sper cial issues. For the present we express no opinion on this point, but if this be conceded, and it be further conceded that the jury not only might, but would, have found that the conductor was guilty of negligence, the error of the court cannot work a reversal herein, for the reason that, the jury having found that the appellant’s wife was guilty of negligence which proximately contributed to her injury, and that her peril was not discovered by the conductor, and the evidence being sufficient to support these findings, no other judgment could properly have been rendered except that which was rendered, viz., for the defendant.

Motion overruled.


author: KEY, C. J.

text:
    SCHRADER et al. v. INTERNATIONAL & G. N. RY. CO.
    (No. 5416.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1914.)
    Appeal and Error (§ 501) — Questions Reviewable — Instructions.
    Under Acts 33d Leg: c. 59, requiring a party complaining to except to the action of the trial court in giving and refusing instructions or the objections are waived, the court on appeal will not determine the correctness of instructions given, where the record does not show that the party complaining filed any objection in the court below to the instructions given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. S 501.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Action by Alvina Schrader and others against the International & Great Northern Railway Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    E. W. Bounds and Page Collier, both of Marlin, for appellants. Wilson, Dabney & King, of Houston, and Neff & Taylor, of Waco, for appellee.

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

   KEY, C. J.

This is a personal injury suit, in which the plaintiffs sought to recover damages for the alleged wrongful killing of Henry H. 'Schrader. When the plaintiffs closed their testimony, the trial court instructed a verdict for defendant, which was returned and judgment rendered thereon, and the plaintiffs have appealed, and assign as error the actior of the trial court in so charging the jury.

The record does not show that the plaintiffs filed any objection in the court below to the charge given by the court, and for that reason we are not called upon to determine whether or not error was committed in the matter complained of. In 1913 the Legislature amended our procedure statute so as to require a complaining litigant to except to tlie action of tlie trial court in giving and refusing instructions, and declaring that a failure to do so should be held to constitute a waiver of objections and an aproval of the action of the trial court. Floegge v. Meyer et al., 172 S. W. 194, recently decided by this court, and cases there cited.

Judgment affirmed.


author: CARL, J.

text:
    WHITAKER et al. v. SHENAULT et al.
    (No. 5367.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1914.
    On Motion for Rehearing, Jan. 13, 1915.)
    1. Appeal and Erroe (§ 856) — Questions Reviewable — Pbestjmptions.
    Where the court filed no findings of fact and conclusions of law, the judgment for a party relying on two grounds would not be disturbed unless unsupported on either ground.
    [Ed. Note. — For other cases, see Appeal and Eri-or, Cent. Dig. §§ 3406-3424, 3429-3434; Dec. Dig. § 856.]
    2. Husband and Wipe (§ 264) — Sepaeate Property oe Husband — Evidence.
    Evidence held to show that real estate was the separate property of a husband, so that his children on his death would inherit it.
    TEd. Note. — Eor other cases, see Husband and Wife, Cent. Dig. § 558; Dec. Dig. § 264.]
    On Motion for Rehearing.
    8. MaReiage (§ 13) — “Common-Law Mab-ríase” — Evidence.
    To constitute a “common-law marriage,” the parties must unconditionally agree to live together as husband and wife during their lives, and live together and cohabit as such and so hold themselves out to the public, and the mere fact that they had a child born before a ceremonial marriage does not establish a prior common-law marriage.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 4; Dec. Dig. § 13.

    For other definitions, see Words and Phrases, First and Second Series, Common-Law Marriage.]
    Appeal from District Court, Bexar County ; W. F. Ezell, Judge.
    Action by Emily Whitaker and others against Amanda Shenault and another. From a judgment for defendants, plaintiffs appeal.
    Affirmed, and motion for rehearing and for additional findings overruled.
    James Raley, of San Antonio,' for* appellants. Joel A. Lipscomb, of San Antonio, for appellees.

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

   CARL, J.

This suit was brought by Emily Whitaker, John Chapman and Levina Chapman, and Louisa Marshall, appellants, against Amanda Shenault and Adeline She-nault, appellees, to establish the interest of plaintiffs in the north one-half of lot 5 in block 3, New City block 331, on Concho street in San Antonio, Bexar county, Tex., and to partition same. It is alleged that appellants and appellees are heirs at law of Sidney Shenault and are equal owners of the lot; the share of each being one-sixth. They claim as heirs of Sidney and Adeline She-nault. Appellees answered denying that appellants are heirs of Sidney Shenault or that parties hereto had a common ancestry, and further denying that Adeline Shenault, mother of plaintiffs, ever had any interest in or title to the property in question. Appellees also pleaded ten years’ limitation, improvements made in good faith and payment of taxes for a period of about 30 years, and prayed, not only that the plaintiffs take nothing, but that they be quieted in their title to the lot. The trial was before the court, without a jury, and no findings of fact and conclusions of law are filed.

Before her marriage to Shenault, Adeline Shenault had four children — two boys and two girls — and they went by the name of “Ch.apman.” They are the appellants in this cause, except Levina, who is the daughter of Charlie Chapman, the son who died. Appel-lees are the fruits of the marriage of Sidney Shenault and Adeline Shenault. Sidney She-nault survived his wife, Adeline, some six or eight years, and the property in question was conveyed to him by deed from F. Gilbeau, dated March 26, 1874. The case was tried May 26, 1914, 40 years and 2 months after the deed was made to Shenault. According to Louisa Marshall’s testimony, Shenault married her mother about 38 years prior to the trial, or 2 ’ years after the execution of the deed to Shenault. Emily Whitaker testified that Shenault and her mother married between the births of Amanda and Adeline; that Amanda was born prior to the marriage. The testimony of these witnesses agrees fairly well with that of Amanda to the effect that at the time of the trial she thought she was 38 years of age and Adeline 36. It is clear that the court could well have found that the property was acquired by Shenault about 2 years prior to his marriage to appellants’ mother. The mother, Adeline She-nault, died about October 23, 1888. Amanda Shenault was 16 or 17 years of age at the time her father died, and Adeline is 2 years younger than she is. At the time of Sidney’s death, appellees were living on the property, and they have continued to either live on it or rent it out ever since, and no claim was ever made by appellants to any interest in it until this suit was filed. During that time, appellees have paid taxes thereon,, have asserted ownership thereto, and have made valuable improvements thereon. The taxes were not paid as they accrued, because the children were too young, but about three years before the trial they began paying up the taxes, and Amanda says that when she got the taxes paid up the suit was then filed.

There is evidence tending to show that when Sidney Sbenault 'bought the lot he gave a note of $300, which was not paid, however, until some years after Adeline died. She, it seems, did not think it necessary to pay the note for 'two very good reasons: First, because it would just leave something for the children to fuss over; and, second, she said she had nursed Callahan, the man who held the note, and he would not put her off. She would therefore have a home as long as she lived. After she died, Sidney got some barns, etc., to build (he was a carpenter), and thereby made some money and paid the place out.

We have set out the evidence as fully as is done because there is more than one theory of the defense. One is that the Jot was the separate property of Sidney She-nault, and another is that they (appellees) had held the property long enough to mature title by ten years’ limitation. The court has filed no findings of fact and conclusions of law, and, if the evidence is sufficient to justify the holding of the court ■ upon any theory of the defense, the judgment should stand. And there was evidence on limitation, title, etc. Walker v. Cole, 89 Tex. 323, 327, 34 S. W. 713; Munson v. Nolan, 45 S. W. 38, 39. In Walker v. Cole, supra, Justice Den-man says:

“There is a statement of facts in the record showing, as above stated, that plaintiff introduced evidence in'support of each ground of recovery set up in his petition, but there is no finding of law or fact by the trial court in the record. Therefore it cannot be determined upon which ground of recovery set up in the plaintiffs’ petition the trial court rendered judgment. The only assignment of error presented * * * is as follows: (Quoting assignment, which is lengthy, and which it is unnecessary to set out.) Neither subdivision of this assignment attempts to question the correctness of the judgment of the trial court if based upon the second ground of recovery set up in the petition, but they all attack it upon the supposition that it was based upon the first ground of recovery set up therein. The Court of Civil Appeals were of the opinion that the judgment of the trial court was justified by the evidence adduced in support of the second ground, and therefore held that it was unnecessary to consider said assignment.”

The Supreme Court concludes:

“This conclusion of the Court of Civil Appeals, that they could not consider said assignment, was clearly correct, for if in their opinion there were two grounds upon either of which the court below might have rested its judgment, and the record did not show upon which it was really placed by the trial judge, they could not properly have disturbed same, when it was not shown by proper assignments of error that the judgment could not be supported on either ground.”

Our examination of the evidence convinces us that the court would have been amply justified in concluding that this lot was Sidney Shenault’s separate property; and, that being true, his children, appellees herein, would inherit it at his death.

So viewing the case, the judgment is in all things affirmed.

On Motion for Rehearing.

There is absolutely no showing made that there was ever a common-law or slave marriage between Sidney Shenault and the mother of appellants. True, there is some testimony that they were living together at the time and before they married, but this would be totally insufficient to show a common-law marriage. They must not only unconditionally agree to live together as husband and wife the remainder of their lives, but must live together and cohabit as such and so hold themselves out to the public. The circumstance that they had a child born before they married does not establish the fact that they were married. But this case was tried before the court. This circumstance, as well as the further fact that these people were living together at the time they married, we assume, was duly considered by the court on the question of a slave or common-law marriage and determined against appellants. That is an end of the matter so far as this court is concerned.

' The motion for rehearing and for additional findings of fact are both overruled.


text:
    ROBEY v. CRAIG.
    (No. 5417.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1914.)
    1. LANDLORD AND TENANT (§ 231)—MISREP-RESENTATION or Lessor—Evidence.
    In an action on a rent note, evidence held to warrant a finding that the lessee was induced by the lessor’s misrepresentations to lease the property.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.]
    2. Landlord and .Tenant (§ 34)—Leases— Rescission.
    Where a lessor fraudulently misrepresented the character of the land leased, the lessee may rescind, though he did not rely wholly on the lessor’s statements.
    [Ed. Note.—For other cases; see Landlord and Tenant, Cent. Dig. § 97; Dec. Dig. § 34.]
    3. Landlord and Tenant (§ 28)—Leases— Rescission.
    One leasing real property is entitled to rely upon the representations of the lessor as to the character of the land.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 82-84; Dec. Dig. § 28.]
    4. Landlord and Tenant (§ 31)—Leases— Rescission.
    Where a lessor fraudulently misrepresented the character of the land, the lessee, who relied upon his statements, is not estopped to rescind because the lease recited that he had inspected and was satisfied with the land.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 88-91; Dec. Dig. § 31.]
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    Action by B. F. Robey against J. C. Craig. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      Snodgrass, Dibrell & Snodgrass, oí Coleman, for appellant. W. Marcus Weatlierred, of Coleman, for appellee.

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

   RICE, J.

This suit was brought by appellant against appellee to enforce collection of a note for $474.20, of date December 9, 190S, due October 1, 1909, bearing interest at 10 per cent., and providing for reasonable attorney’s fees, in the event of suit. Ap-pellee answered by general denial and by special plea of failure of consideration and set-oft in the amount of $90, alleging that the note sued on was given to cover rent at $3 per acre for the year 1908 on a block of 158 acres of land owned by appellant; that he was induced to execute the note sued on, as well as the rental contract, by the fraudulent representations of appellant to the effect that the land was all tillable and in cultivation, whereas, in fact, 30 acres thereof was untillable and not in cultivation; and that appellant, knowing the condition of the land, concealed from appellee that fact, by reason of which appellee repudiated the contract and abandoned the premises, and that appellant subsequently rented 30 acres thereof to one party at $1 per acre, and the remainder to another for $382.65.

Appellant replied by supplemental petition, urging exceptions, and setting up a written rental contract in bar of appellee’s claim, denied allegations of fraudulent representations and concealment, and specially pleaded that he told appellee to inspect the land and satisfy himself, and that appellee did make such inspection before signing the note and rental contract. The foregoing statement, taken substantially from appellant’s brief, is concurred in by appellee.

The case was submitted to the jury on special issues, upon the responses to which the court rendered judgment in favor of ap-pellee, from which this appeal is prosecuted.

The first assignment insists that the court erred in refusing to give in charge to the jury a peremptory instruction to the effect that they should find for appellant an amount equal to the difference between the note sued on, with interest thereon from due date, and $411.65, the amount received by him from the parties to whom he had rented it after it was abandoned by appellee, together with 10 per cent, additional on said difference as attorney’s fees. This contention is based on the theory that there were no false representations or conceal-ments made by appellant, as alleged by ap-pellee; and, as the note sued on was only entitled to the credits above named, appellant should have had an instructed verdict for the balance of principal, interest, and attorney’s fees on said note.

The jury found in response to special issues Nos. 4 and 7 that appellant, before the execution of the note and contract, represented to appellee that all of said land was tillable, and in cultivation, and further found, in response to special issue No. 6, that 39 acres thereof were not in a state of cultivation. The evidence, we think, supports these findings. When appellee applied to appellant to rent 150 acres of good farming land, appellant told him he had such a tract, and that the same was as good land as his McDaniel place, which was in cultivation. It is true that he told appellee to go and see the land, and appellee in fact made two visits for this purpose, but only made a partial inspection of the premises about the house, and did not go over the tract, because on the first occasion it was too late to do so, and on the second he was prevented by a wet norther, which suddenly blew up. He testified, and the jury found, that he relied upon appellant’s statement with reference to the land, and was thereby induced to sign the note and execute the contract. It is the contention of appellant that appellee, haying made an investigation, was not permitted to rely upon the faith of appellant’s statement in this respect. The evidence shows that 30 acres of this land was rocky sod land, and had never been in cultivation, for which reason appellee abandoned it.

Notwithstanding appellee’s investigation and statement when he signed the note and contract, to the effect that he had inspected the land and was satisfied with it, it is apparent from the record that he did not wholly rely upon such investigation, but, on the contrary, depended, partly at least, upon the truth of appellant’s representations with reference to said land. In 20 Oye. p. 41, subd. B, on the subject of fraudulent representations, it is said:

“It is not necessary that plaintiff should have relied exclusively upon defendant’s statements—that they should have been the sole or even principal inducement to plaintiff’s change of situation—but if they exerted a material influence upon his mind, although they constituted only one of several motives which acting together, produced the result, it is sufficient, as where plaintiff, to some extent, relied upon the statements of third persons, and the same principle applies to a concealment.”

As appellant was the owner of the land, he was peculiarly cognizant of the quantity and quality of it. The appellee, applying to him to lease the same, naturally and properly looked to him for information, and had the right to rely upon his representations. See Mitchell v. Zimmerman, 4 Tex. 78, 51 Am. Dec. 717; Pendarvis v. Gray, 41 Tex. 326; 18 Am. & Eng. Ency. Daw, 318; Benton v. Kuykendall, 160 S. W. 438. We conclude, therefore, that said assignment should be overruled.

Appellee, notwithstanding the stipulation of the contract to the contrary, had the right to set up and rely upon the fraudulent representations of appellant, and we hold that he was not estopped from so doing, for which reason we overrule appellant’s assignment insisting upon this feature of the case.

We have examined the remaining assignments, and, after due consideration, believe they should be overruled; and it is so ordered. Finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.


text:
    TYLER v. SOWDERS et al.
    (No. 5437.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 23, 1914.)
    1. Appeal and Ekbor (§ 621) — Statement of Facts — Time fob Filing.
    Under Acts 32d Leg. c. 119, § 7 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 2073), providing that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as filed within the time allowed by law, and irrespective of Courts of Civil Appeals rule 8 (142 S. W. xi), relating to motions as to informalities in bringing a case into court, a statement of facts 6n appeal from a final judgment rendered April 23d, not filed within the 60 days granted for the filing of a statement of facts and bills of exception, but before expiration of the time for filing the transcript in the Court of Civil Appeals, was duly filed; but the bills of exception did not fall within such rule.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2724-2731; Dec. Dig. § 621.]
    2. Appeal aínd Eeeob (§ 655) — Bills of Exceptions — Time fob Filing.
    Under Courts of Civil Appeals rule 8 (142 S. W. xi), providing that motions as to infor-malities in bringing a case into court shall be filed and entered within 30 days after the filing of the transcript,' or else waived, if they can be waived, a motion to strike out bills of exceptions, not filed within 30 days after the filing of the transcript containing the exceptions in the Court of Civil Appeals, was waived; the question not being jurisdictional.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § 655.].
    Appeal from Milam County Court; John Watson, Judge.
    Action between John Tyler and J. T. Sow-ders and others. Judgment for Sowders and others, and Tyler appeals. On motion to strike out statement of facts and bills of exceptions.
    Motion denied.
    E. A. Camp, of Rockdale, for the motion. W. A. Barlow, of Taylor, opposed.

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

   RICE, J.

Appellee Sowders has filed a motion to strike out the statement of facts and bills of exceptions in this case, on the ground that the same were not filed in the trial court within the time prescribed by law. Final judgment in this ease was rendered in the trial court on the 23d day of April, 1914. Motion for new trial was overruled on the 25th of April thereafter, on which last date the court adjourned for the term. Super-sedeas bond was filed and approved on May 11, 1914. An order was entered on the day of adjournment granting 60 days within which to prepare and file statement of facts and bills of exceptions herein; but the statement of facts and bills of exceptions were not approved and ordered filed by the court until the 15th of July and not actually filed herein until the 16th of July, 1914. The transcript of the record, however, which contained the bills of exception, was taken out on the 30th of July, 1914, and it, together with the statement of facts, was filed in this court on the 4th of August, 1914. Appellant contends, however, that notwithstanding the statement of facts and bills of exceptions were filed after the expiration of the 60 days granted by the court in which to file the same, yet, having been filed in this court within 90 days from the perfecting of the appeal herein, and no motion having been made to strike them out for such failure until the 30th of November, 1914, they should be considered by this court for all purposes of this appeal.

So far as the statement of facts is concerned we think, irrespective of rule No. 8 (142 S. W. xi), relied on by counsel for appellant, that the same was duly filed, because by the last sentence in section 7 of the Acts of the 32d Legislature, chapter 119, p. 266 (Vernon’s Sayles’ Civil Stats, art. 2073), it is provided that:

“Any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within time allowed by law for filing same.”

And this has been sustained by the case of Louisiana Rio Grande Canal Co. v. Quinn, 160 S. W. 151, as well as by the eases of Criswell v. Robbins, 152 S. W. 210, and Witherspoon v. Crawford, 153 S. W. 633. But the above eases hold, however, that so far as the bills of exceptions are concerned they do not fall within the rule applicable to statements of facts. If it be conceded that such statute does not apply to bills of exceptions, yet we are inclined to think that appellant's contention is correct under rule 8, which prescribes that:

“All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within 30 days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party.”

The question involved is not jurisdictional, hence one that could be waived by appellee. 1-Iis failure to file the motion to strike out within 30 days after the case was filed and docketed here by the clerk is regarded by us as a waiver of his right to insist upon a motion to strike out at this time.

For the reasons above stated, the motion to strike out the statement of facts and bills of exceptions is refused.

Motion overruled.


author: MOURSUND, J.

text:
    YORK MFG. CO. v. COLLEY et al.
    (No. 5363.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1914.
    Rehearing Denied Jan. 13, 1915.)
    1. Corporations (§ 642) — Foreign Corporations — “Doing Business.”
    In an action on a contract to install an ice manufacturing plant and enforce a lien thereon, defended on the ground that plaintiff, a foreign corporation, had not complied with the statute as to filing articles and obtaining a permit to do business, evidence showing in substance that plaintiff was engaged in selling and installing machinery for such plants, an engineer being furnished to supervise the installation who would no_t turn over the plant until acceptance and payment of the purchase money, held sufficient to show the doing of business in the state, within the meaning of Rev. St. 1911, art. 1314.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.

    For other definitions, see Words and Phrases, First and Second Series, Doing Business.]
    2. Commerce (§ 69) — Interstate Commerce —Foreign Corporations — Right to Sue.
    Though a foreign corporation violates Rev. St. 1911, art. 1314, prohibiting such a corporation from doing business unless it obtain a permit, etc., it may still sue on a contract, if the execution of the contract and the performance thereof constitute interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113-119; Dec. Dig. § 69.]
    3. Commerce (§ 40) — Foreign Corporations —Installation op Ice Plant.
    Where a foreign corporation contracts to install an ice manufacturing plant in the state, the labor to be furnished by the purchaser, but under supervision of an engineer furnished by the corporation, the engineer having orders not to turn over the completed plant until written acceptance, the - corporation is engaging in a strictly local business, whether it be considered that it installed the ice plant or that it merely contracted to supérvise the erection of machinery sold by it, and the contract is not interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.]
    Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
    Action by the York Manufacturing Company against V. B. Colley and J. E. Billings-ley. From a judgment dismissing the cause, plaintiff appeals.
    Affirmed.
    N. C. Abbott, of Houston, for appellant.

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

   MOURSUND, J.

Appellant sued appellees, Y. B. Colley and J. E: Billingsley, for a balance due upon a certain written contract and to foreclose a lien upon certain ice manufacturing machinery. The defense was made that appellant was a foreign corporation organized for pecuniary profit; that it maintained an office and was doing business in Texas, and had not obtained a permit therefor, and for such reasons was not authorized' to maintain a suit on said contract in any of the courts of the state. By supplemental petition appellant admitted that it was a foreign corporation without a permit to do business in Texas, but denied that it maintained an office or was doing business in the state, within the meaning of the statute, or that its act in making the contract sued on, or the performance of the provisions thereof, was doing business in Texas, and alleged that the making of the contract and doing what was called for therein and actually done was in strict performance of an interstate transaction. The trial court found that the acts of appellant were in violation of the statutes of the state, and that it was therefore not entitled to maintain the suit, and entered judgment dismissing the ease. Findings of fact and conclusions of law were filed as follows;

“Conclusions of Fact.
“(1) It is admitted by the plaintiff that it is a corporation, organized for pecuniary profit, under the laws of the state of Pennsylvania, and that at the time of making the contract with the defendants, sued upon in this cause, it had not filed with the Secretary of State, or the state of Texas, a duly certified copy of its articles of incorporation, and that it had no permit to transact business as a foreign corporation in this state, as provided by articles 1314 and 1318 of the Revised Civil Statutes of Texas, and that it has not now nor has it ever had such permit to do business in Texas.
“(2) I find, as a matter of fact, that said plaintiff maintained a special or branch office in the state of Texas from the year 1901 to 1912, and so maintained same wh^n plaintiff contracted to erect the ice plant with defendants, and that it had its agent in Texas, and warehouses, in which it kept material for carrying on its business, and sold and delivered same to customers in different portions of the state.
“(3) I find, as a matter of fact, that the plaintiff furnished the material and part of the labor to erect, and that it did erect and construct, the ice plant in the town of Stockdale for the defendants, which is the ice plant for which this plaintiff is suing the defendants for the purchase money and to foreclose a lien thereon; and I find that said plant was to be erected and constructed for a lump sum of money, and that plaintiff had the exclusive possession and control of said plant and the erection thereof, which said construction consumed from 25 to 30 days’ time to complete.
“(4) I find that plaintiff, through its servants and employes, drew the plans for the construction of said plant, and that it was constructed by their employes according to said plans.
“(5) I find that some of the plans used in constructing the ice plant were made in Texas.
“Conclusions of Law.
“(1) I find that, as a matter of law, the furnishing of said material, labor, and the construction of said ice plant for a lump sum of money was not interstate commerce.
“(2) I find, by'the making of said contract, the furnishing of materia], the labor performed in the construction of said ice plant, together with the exclusive possession and control of said .construction by the plaintiff, the York Manufacturing Company was transacting business in this state and in violation of law.
“(3) I find, by the establishing of said special or branch office in the state of Texas, and having agents in charge thereof, same was in violation of law.
“(4) Therefore, by reason of the foregoing, I find that plaintiff cannot maintain action.”

Appellant’s first and second assignments of error read as follows:

“(1) The trial court erred in finding on the evidence produced that the plaintiff, at the time of making the contract sued on, was doing business in the state of Texas, within the meaning of the statutes thereof.
“(2) The court erred in his second conclusion of law that the making of said contract, the furnishing of material, the labor performed in the construction of said ice plant, together with the exclusive possession and control of said construction by the plaintiff, was transacting business in the state and in violation of law.”

Under these assignments, appellant contends that the making of the contract sued upon and its performance constituted the transaction of interstate commerce.

We will set out the most important portions of the contract, and make a brief statement of the most important facts proven. As a part of the “proposal and specifications” attached to the contract, we find the following provisions:

“The York Manufacturing 'Company to furnish one erecting engineer at $6 per day and expenses to superintend the erection of the machinery, apparatus, or plant furnished by it; the purchaser to furnish one engineer to assist in erecting and putting machinery, apparatus, and plant together and to receive and carry out instructions from the York Manufacturing Company in the handling of the “same. ijhe York Manufacturing Company to have entire charge of the plant during the erection of same, and, when ready for operation, it shall be operated in accordance with the directions given by the representatives or engineer of the York Manufacturing Company, or its representatives will furnish a written notice to purchaser of the time when the plant is ready for charging. The limit of time which the York Manufacturing Company’s engineer is to remain with the plant for the purpose of instructing the purchaser’s men and making needed adjustments to the machinery and apparatus or plant shall be -days from the date when the plant is ready for charging, and, if detained beyond that period through no fault of the York Manufacturing Company, the purchaser shall pay for his services and the services of his assistants, after the expiration of said period, at the rate of $7 per day.and all expenses for each man.”
“The York Manufacturing Company reserves the right to change the construction or design of the machinery, apparatus, or plant, if in its judgment such change is to the interest of all parties and does not vary the results.”

The contract, to which the “proposal and specifications” are attached, contains the following clause:

“The party of the first part agrees to construct for and deliver to the party of the second part on the railroad depot of Stockdale, Tex., with freight allowed, the machinery, apparatus, or plant mentioned and described in the specifications hereto attached, which specifications, together with the agreements and guarantees therein contained on the part of each of the parties hereto to be kept and performed, are hereby expressly made a part of this agreement. The premises of the party of the second part, in which the said machinery, apparatus, or plant is to be placed, are situated in the town of Stockdale, county of Wilson, state of Texas.”

The contract also provides that title to the property is reserved by appellant until all purchase money is paid, and that, upon default, appellant shall have the right to take and remove the same, in which event appel-lees shall pay appellant “all expenses incurred in installing and removing same.” This contract was signed in Texas in behalf of appellant, by O. J. Bauderer, its agent, on April 24, 1912, but provided that it should not become operative until approved in wilting by the officers of the company under its corporate seal. Such approval was indorsed thereon at appellant’s home office at York, Pa., on May 28, 1912. All machinery and material furnished under this contract was shipped from outside the state of Texas. Appellant sent Mr. Campbell, the erecting engineer, pursuant to the contract, and he began the work of installing the machinery on July 13, 1912, and surrendered possession thereof to appellees on August 9, 1912. Appellant, in accordance with the provisions of the contract, charged $144 for Campbell’s services, as well as $23.70 for his expenses. Campbell did most of the work incident to the erection and installation of the machinery. He had charge of the plant while it was being erected; and declined to deliver possession thereof until appellees signed an acceptance of the same. The acceptance was signed after the plant had been erected and in operation for about a week. Campbell had been operating it. He told appellees that he was not allowed to leave a job until he got his papers for it, meaning a written acceptance. Campbell made one change in erecting the plant, stating: .

“I am instructed to comply with the requests as long as I can, but, if there is any kick, to put it according to the blue prints.”

Appellee Billingsley, spedking of Campbell, testified:

“It was necessary for us to have somebody to do the work he did; but it wasn’t necessary for the York people. I told Bauderer, T can hire an engineer for $3 a day and cut out that six;’ and he said, ‘You had better let him come on; they erect them plants and know how.’ ”

There was evidence to the effect that Campbell was authorized in all eases to request the purchasers to give a written acceptance in order to show their satisfaction. There was also evidence to the effect that he was not authorized from appellant’s main office to do anything in connection with the contract, except as provided therein, and was not authorized to assume control over the machinery after it was installed. However, the record discloses that Campbell was under the direction of F. W. Pilsbury, who was, in charge of appellant’s Chicago office, and there is no testimony to show what authority or instructions he was given by Pilsbury. Appellant furnished from its home office about 10 blueprints and drawings showing how the various portions of the machinery were to be erected and installed; also a blueprint made by Bauderer in Texas showing the floor plan and side elevation of the building in which the machinery was tQ be placed. Appellant maintained a branch office at Houston, Tex., from August 1, 1901, until August 16, 1912. It carried no stock at suck office, but bad a depot in Houston, at wkick it carried, at tkat time, a stock of fittings amounting to about $5,562. Since tke last-named date its stock kas been carried on consignment witk two Texas corporations. About July 18, 1912', appellant supplied ap-pellees from its stock at Houston witk goods of tke value of $5.22, but suck goods were not furnished under tke contract sued upon. Prior to making tke contract sued upon, appellant bad erected 11 ice plants in Texas.

Tke evidence sustains a finding to tke effect tkat appellant, at tke time it made tke contract sued upon, was engaged in tke transaction of business in Texas and maintained an office in Texas, within tke meaning of article 1314 of Revised Statutes of 1911. Marconi Wireless Telegraph Co. of America v. Commonwealth (Mass.) 106 N. E. 316; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15, 58 L. Ed. 127. But it appears tkat, if tke execution of tke particular contract sued upon and its performance constituted interstate commerce, then appellant is entitled to sue upon suck contract, regardless of tke violation of tke statute in respect to other transactions or by maintaining an office within the state. T. & P. Co. v. Davis, 54 S. W. 381, 93 Tex. 378. It therefore becomes necessary to decide whether the contract sued upon involves only an interstate commerce transaction.

Appellant contends that it did not agree to install and did not in fact install the machinery, but merely furnished an engineer to superintend tlie installation by appellees of the machinery. But we think it is evident, from a reading of the contract, that appellant retained the possession of the property until it should be installed, and virtually bound itself to deliver a finished plant, with the exception that appellee should furnish the labor necessary to carry out the engineer’s instructions. The contract was one to install machinery, provided appellees furnish labor to assist appellant’s engineer, and tke fact tkat all tke work was not done by appellant’s engineer does not alter the fact that the contract was for the delivery of a completed plant to be installed in this state. Appellant furnished the services of its engineer to be performed in this state, contracting in a manner making it compulsory upon appellees to accept and pay for such services. The evidence discloses the construction placed upon the contract by appellant’s engineer, and there is no testimony to the effect that he in any way violated tke instructions or exceeded the authority given him by Pilsbury. There are a number of cases in which it has been held that contracts for the sale of machinery in one state to be installed in another by the seller are protected by the commerce clause of the federal Constitution. See Flint & Walling Mfg. Co. v. McDonald, 21 S. D. 526, 114 N. W. 684, 14 L. R. A. (N. S.) 673, 130 Am. St. Rep. 735; Milan Mill v. Gorten, 93 Tenn. 590, 27 S. W. 971, 26 L. R. A. 135; Gates Iron Works v. Cohen, 7 Colo. App. 341, 43 Pac. 667. But our Supreme Court, in the case of Smytke Co. v. Ft. Worth Glass & Sand Co., 105 Tex. 8, 142 S. W. 1157, declined to express an opinion upon the question. This court, in the case of Leschen & Sons Rope Co. v. Moser, 159 S. W. 1018, held that an agreement to furnish a supervising engineer at a certain price, provided the purchasers wanted him, would not alter the character of the transaction. It appeared to us that the erection of the tramway was such an exceptional, as well as gigantic and complicated, enterprise that purchasers might well decline to buy, unless an engineer familiar with 'such work was furnished to superintend the erection thereof. In addition the facts showed an immediate delivery of all material, and no requirement that the purchasers should accept and pay for tke services of the engineer. With the light before us at tkat time, we felt confident our decision was correct. The trend of practically all the decisions appeared to be toward holding that any attempt to tax or prohibit without, a permit tke installation by a nonresident corporation of machinery sold and skipped from without tke state was an attempt to regulate interstate commerce and not permissible. Since rendering tkat decision, we have had occasion, in this casé and in other cases, to investigate the question further, and have come to the conclusion that our statement of what we regarded to be the law was broader than was required by the facts of that case, and broader than is justified by the decisions of the United States Supreme Court. In the case of Browning v. City of Waycross, 233 U. S. 16, 34 Sup. Ct. 578, 58 L. Ed. 828, decided by the Supreme Court of the United States on April 6, 1914, it was held tkat an agent for a foreign corporation, who solicited orders for the sale of lightning rods in another state, received the rods, and erected them for suck corporation, the price paid for the rods to the corporation including the duty to erect them without further charge, may be subjected to a municipal tax without violating the commerce clause of the federal Constitution. The court discussed the cases of Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed. 336; Rearick v. Pennsylvania, 203 U. S. 507, 27 Sup. Ct. 159, 51 L. Ed. 295, and Dozier v. Alabama, 218 U. S. 124, 30 Sup. Ct. 649, 54 L. Ed. 965, 28 L. R. A. (N. S.) 264, saying in part:

“It is evident that these cases, when rightly considered, instead of sustaining, serve to refute, the claim of protection under the interstate commerce clause which is here relied upon, since the cases were concerned only with merchandise which had moved in interstate commerce, and where the transactions, which it was asserted amounted to the doing of local business, consisted only of acts concerning interstate commerce goods, dissociated from any attempt to connect them with or mate them a' part in the state of property which had not and eoulcl not have been the subject of interstate comr%rce. Thus in Oaldwell v. North Carolina the court laid emphasis upon the fact that the shipment of the pictures in interstate commerce in one package and the frames in another was not essential but accidental, for the two could have been united at the point of shipment before interstate commerce began as well as be brought together after delivery at the point of destination. And this was also the condition in the Rearick Case. Indeed, it is apparent in all three cases that there was not the slightest purpose to enlarge the scope of interstate commerce so as to cause it to embrace acts and transactions theretofore confessedly local, but simply to prevent the recognized local limita-, tions from being used to put the conceded interstate commerce power in a straight-jacket, so as to destroy the possibilities of its being adapted to meet changes in the form by which business of an inherently interstate commerce character could be carried on.”

The court gave its reasons for the holding above announced in the following language:

“We are of the opinion that the court below was right in holding that the business of erecting lightning rods, under the circumstances disclosed, was within the regulating power of the state, and not the subject of interstate commerce, for the following reasons: (a) Because the affixing of lightning rods to houses was the carrying on of a business of a strictly local character, peculiarly within the exclusive control of state authority, (b) Because, besides, such business was wholly separate from interstate commerce, involved no question of the delivery of property shipped in interstate commerce, or of the right to complete an interstate commerce transaction, but concerned merely the doing of a local act after interstate commerce had completely terminated. It is true that it was shown that the contract under which the rods were shipped bound the seller, at his own expense, to attach the rods to the houses of the persons who ordered rods, but it was not within the power of the parties, by the form of their contract, to convert what was exclusively a local business, subject to state control, into an interstate commerce business, protected by the commerce clause. It is manifest that if the right here asserted were recognized, or the power to accomplish by contract what is here claimed were to be upheld, all lines of demarcation between national and state authority would become obliterated, since it would necessarily follow that every kind or form of material shipped from one state to the other, and intended to be used after delivery in the construction of buildings or in the making of improvements in any form, would or could be made interstate commerce.”

This case being the latest expression of the Supreme Court of the United States which has come to our notice, we shall attempt to apply the rules therein enunciated to the facts of this case. Such facts, we think, show clearly that appellant contracted to engage in and did engage in the strictly local business of installing an ice manufacturing plant; but, were it conceded that it merely contracted to engage in and did engage in the business of supervising and superintending the erection of an ice plant, such business was a strictly local business. In either event, the contract calls for the transaction of business in this state without having obtained a permit. Appellant bound itself to connect or superintend the connection of, the machinery with property in this state which had not been the subject of interstate commerce. Does the state have to permit such local business to be conducted without a permit because the material to be erected into a finished plant and then delivered to the buyer was ordered from the foreign corporation and shipped from, its domicile in another state? The court, in the Browning Case above quoted from, declined to express an opinion concerning “how far interstate commerce might be held to continue to apply to an article shipped from one state to another, after delivery and up to and including the time when the article was put together or made operative in the place of destination in a case where, because of some intrinsic and peculiar quality or inherent complexity of the article, the making of such agreement was essential to the accomplishment of the interstate transaction.” This language suggests that the court may recognize exceptions in oases in which the facts show agreements to supervise the erection or to erect machinery of such a complex character that the sale thereof is impossible, unless such agreement is made. But if such exceptions are recognized by that high court, and must therefore be permitted by the state courts, the facts creating same ought to be alleged and proven. When a foreign corporation is not content with the privilege of having its agents come into this state and take orders for its goods, ship same to our citizens, and collect therefor in our courts, but contends that it has the further right to transact the business of installing machinery sold by it, so as to connect it with, and make it a part of, the property in this state which was not the subject of interstate commerce, the burden certainly rests upon it of showing that, if it be prohibited from transacting such local business, such prohibition will, on account of the complex character of its machinery, affect the sale thereof to such an extent as to be a restriction or regulation of its right to sell such machinery. In this case appellant has not pleaded or proved that the contract to install or to furnish an engineer was necessary to enable it to make the sale to appellees. A contract relating solely to interstate commerce can be sued upon in our state courts; but, as this one related partially to a strictly local business not shown to be essential to the conducting of the interstate business, the rule announced in the case of Railway v. Davis, supra, does not apply, and appellant has no right to maintain this suit in our courts.

We therefore affirm the judgment of the trial court.


text:
    RIGGINS v. POST.
    (No. 5348.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1914.
    On Motion for Rehearing, Jan. 6, 1915.)
    1. Vendor and Purchases (§ 49) — Construction of Contract — Ambiguity — “Good Record Title” — “Title.”
    A paragraph of a contract requiring each party to furnish to the other a complete abstract of title to each tract of land, each abstract to show a good record title thereto, was not of itself ambiguous; a “good record title,” without words of limitation, meaning that the proper records shall show an unincumbered, fee-simple title, the legal estate in fee, free and clear of all valid claims, liens, and incumbrances, and the word “title” meaning ownership, absolute ownership, the unincumbered fee.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. § 80; Dec. Dig. § 49.

    For other definitions, see Words and Phrases, First and Second Series, Title.]
    2. Vendor and Purchaser (§ 46) — Construction of Contract as a Whole.
    A contract to convey, like other instruments, must be construed as a whole.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Dec. Dig. § 46.]
    3. Evidence (§ 65) — Presumption—Knowledge of Daw.
    A person is presumed to know the law.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 85; Dec. Dig. § 65.]
    4. Vendor and Purchaser (§ 251) — Vendor’s Lien — Purchase-Money Note.
    A purchase-money note for four leagues of county school land, dated October 9, 1902, payable 40 years after date, could not be legally paid off on July 1, 1912, but constituted a valid blanket lien on all the four leagues.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 624-635; Dec. Dig. § 251.]
    5. Vendor and .Purchaser (§ 134) — Contract to Remove Lien — Breach.
    Notwithstanding a vendor could not legally free part of the land from the lien of a purchase-money note, yet, if he specifically and in unambiguous language agreed to do so, his failure to do so is a breach of his contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 238, 250-254, 258; Dec. Dig. § 134.]
    6. Vendor and Purchaser (§ 80) — Construction of Contract — Presumption.
    Knowledge of the vendor and the purchaser that the lien of a purchase-money note could not be removed might well raise the presumption that it was not contemplated that it should be removed, rebuttable, however, by proof to the contrary.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 132-135; Dec. Dig. § 80.]
    7. Vendor and Purchaser (§ 80) — Construction of Contract — Situation of Parties.
    Under a contract for the sale of land, reciting that a $10,500 indebtedness assumed by the purchaser was one-half of a purchase-money note for the land, which was a blanket lien on the entire four leagues, evidence that the purchaser knew of such lien, and, after the contract was drawn and signed, examined the abstract and found that it could be paid off a few months later, was admissible as part of the circumstances surrounding the parties, and to aid an understanding of whether the purchaser agreed to take one-half of the leagues knowing of the lien and not understanding that the vendor was to remove it, but relying upon a third person, who had assumed the other half of the indebtedness, to pay it off, and that, on his failure to do so, the part not assumed by him would be paid out of the proceeds of the sale of the other half.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 132-135; Dec. Dig. § 80.]
    8. Vendor and Purchaser (§ 80) — Removal of Liens — Presumption.
    A clause of a contract, providing that the ■ purchaser was to eliminate an indebtedness against the east half of the tract, by its inclusion of that indebtedness tended to raise a presumption of the exclusion of other indebtedness.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 132-135; Dec. Dig. § 80.]
    9. Vendor and Purchaser (§' 80) — Con- . STRUCTION OF CONTRACT — 'SITUATION OF Parties.
    Upon a contract providing that the vendor was to eliminate an indebtedness 'against the east half of the four leagues, evidence that the purchaser knew of a blanket lien on the four leagues was admissible as a part of the circumstances surrounding the parties at the time of its execution and as bearing on whether the vendor agreed to remove such indebtedness.
    [Ed. Note. — For other cases, see Vendor and-Purchaser, Cent. Dig. §§ 132-135; Dec. Dig. § 80.]
    10. Evidence (§ 448) — Parol Evidence-Mistake — Contract for Sale of Land.
    A mutual mistake may arise from a mistaken legal construction put upon the language by the parties to the contract; it is permissible to prove what legal construction the parties placed upon a contract when there is no ambiguity as to its legal meaning; but, when there is an ambiguity, oral testimony is admissible to show what legal ^effect the parties intended the contract to have, even though such effect differs from that which would be given it by the court, unaided by such oral testimony.
    [Ed. Note. — For other bases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dee. Dig. § 448.]
    11. Vendor and Purchaser (§ 82) — Removal of Liens — Extension of Time.
    Where a contract for the sale of land was to expire July 1, 1912, the vendor’s letter of July 2d asking for an extension of time in which to cure certain objections to his title, exclusive of a blanket lien, which he claimed that the purchaser knew when he entered into the contract, and the purchaser’s letter granting such time and stating that he required a release from the vendor’s lien, except as assumed by him, granted a further time in which to carry out the contract as it existed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 138, 139; Dec. Dig. § 82.]
    Í2. Vendor and Purchaser (§ 80) — Action by Vendor — Sufficiency of Evi- - dence — Assumption of Liens.
    In a vendor’s action, evidence held to sustain a finding that, when the contract was made, it was agreed that the purchaser should take the land subject to a blanket lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 132-135; Dec. Dig. § 80.]

      On'Motion for Rehearing.
    13. Evidence (§ 4450) — Parol Evidence— ■Explaining Ambiguity in Contract.
    Where a contract for the sale of land recited certain specified incumbrances against one-half of it, amounting to $30,000, ■which included one-half of a $21,000 purchase-money note, and expressly stated that there was another ana different indebtedness of $13,000 against the land, there was sufficient ambiguity to admit evidence that the parties thought that the $30,000 was the only incumbrance the vendor was to assume, that the $13,000 incumbrance was to be eliminated by him, and that the purchaser was to assume one-half of the blanket lien of $21,-000, and that he expected to be able to shift half of such amount to the other half of the land.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. § 450.]
    Appeal from District Court, McLennan County; Tom D. McCullough, Judge.
    Action by Sid Post against J. W. Riggins. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Neff & Taylor and J. E. Yantis, all of Waco, and W. P. Ramsey and C. L. Black, both of Austin, for appellant. W. L. Eason, of Waco, for appellee.

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

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

   JENKINS, J.

In our former opinion, we held that the contract sued on was not ambiguous. The fourth paragraph reads as follows:

“Each party to furnish to the other complete abstracts of title to each tract of land brought down to date, and each abstract shall show a good record title thereto' vested in the grantor in said deeds of conveyance.”

Looking to this paragraph alone, the instrument is certainly not ambiguous.

“A good record title, in the absence of any words of limitation, means that the proper records must show an unincumbered, fee-simple title'; in other words, ‘the legal estate in fee, •free and clear of all valid claims, liens, and in-cumbrances whatever.’ ” Jones v. Gardner, 10 Johns. (N. Y.) 269.
“The word ‘title’ is defined by the Century Dictionary to mean ownership; absolute ownership ; the unincumbered fee.” Langmede v. Weaver, 65 Ohio St. 17, 60 N. E. 997.

But this primary meaning of “good title” may be limited by other portions of a contract to convey, which, like other written instruments, must be interpreted as a whole. Looking to other portions of the contract under consideration, we see that it did not mean that either party should convey free of all incumbrances, for a number of incum-brances are mentioned, which the respective parties are to assume. Thus far there is still no difficulty, for a good title, without more, would mean a title free from all in-cumbrances, except those assumed by the respective parties. Appellant did not agree to assume the entire indebtedness of $21,000, but only one-half of the same.

But notwithstanding the fact that appellant assumed only one-half of the $21,000, which was a blanket lien on the entire.four leagués, the question at issue is: Did he agree to take the east half of said leagues, knowing of the existence of said blanket lien, and not understanding that appellee was to remove such incumbrance, but relying upon Holloway, who had assumed the other half of said indebtedness, to pay off the same, or, in case he or his assignees failed so to do, that said west half would be sold under foreclosure proceedings, and that the half of the debt not assumed by appellant would be paid out of the proceeds of such sale, it being primarily liable for said one-half of such indebtedness?

First, may such inference be reasonably .drawn from anything contained in the instrument itself? The first paragraph of the contract recites that the four leagues are Hemphill county school lands; that the $10,500 indebtedness assumed by appellant is one-half of the purchase-money note given by John H. Traylor for said land, dated October 9, 1902, payable ,40 years after date, bearing 5 per cent, interest. Appellant, like all other persons, is presumed to have known the law, and to have known that this note had not been paid off, and could not legally be paid off before the time fixed by the contract herein for executing deeds of conveyance, viz., July 1, 1912, and that the said Traylor note, at the time of the execution of said contract, did, and on July 1, 1912, and thereafter, so far as appears from said contract, until October 9, 1942,. would, constitute a valid blanket lien on all of said four leagues of land.

Notwithstanding appellee could not legally free the east half of the four leagues from the incumbrance thereon, still, if he specifically, by plain and unambiguous language, agreed to do so, his failure so to do would constitute a breach of his contract. Irrigation Co. v. Dodd, 162 S. W. 946; Dilley & Son v. Hervey & Wise, 160 S. W. 985.

But the fact that it was known to both parties that a thing could not be done may well raise the presumption, in absence of explicit language to the contrary, that it was not contemplated that it should be done. ■But the inference arising from the presumption of a knowledge of the law may be rebutted by proof to the contrary.

So likewise such presumption may be strengthened by evidence. Green, a witness for appellee, testified that appellee did know of the existence of the blanket lien, and that, at the very time the contract was drawn and signed by the parties, he and appellant examined the abstract to see when the $21,000 Traylor note could be payed off, and that said abstract showed, by reason of an option therein, it could be paid off on October 9, 1912, or within 10 days thereof. Said abstract so shows, and appellant did not deny that he examined the same at the time the contract was executed. This evidence was admissible, not for the purpose of contradicting or varying the written contract, but to aid in understanding it. When there is any doubt as to the proper construction of a written contract, the situation of the parties and the circumstances surrounding them at the time of its execution may be shown by oral testimony, in order to aid in understanding the written instrument. Field v. Munson, 47 N. X. 221; M. E. Church v. Clime, 116 Pa. 146, 9 Atl. 163.

The fifth clause of the contract provides that appellee is to eliminate a $13,000 indebtedness against the east half of the four leagues. Now if there was any other indebtedness against said land, not assumed by appellant, which appellee was to eliminate, why was it not also mentioned in this •connection? The inclusion of one at least tends to raise the presumption of the exclusion of all others. It seems to us that a reasonable answer to this question is either that appellant did not know of such indebtedness, or that the appellee did not contract to remove the same. As w'e have seen, the appellant did know of such indebtedness. Evidence as to this fact was admissible as a part of the circumstances surrounding the parties at the time of the execution of the contract, in order to show that the construction of the contract, as contended for by appellee, is reasonable.

There is no evidence of a mutual mistake in the sense that, at the time the parties signed the contract, they supposed that it contained or omitted to contain some clause that was not intended to be inserted in or ■omitted from said contract.

But a mutual mistake may arise from a mistaken legal construction put upon the language by the parties to the contract. Kelley v. Ward, 94 Tex. 295, 60 S. W. 311; Norris v. Belcher, 98 Tex. 182, 82 S. W. 502. We do not understand from these cases that it is permissible to prove what legal construction the parties placed upon the contract, when there is no ambiguity as to the legal meaning of the instrument. But, when ambiguity appears, it is permissible to show by oral testimony what legal effect the parties intended the instrument should have, even though such effect be different from that which would be given it by the court, unaided by such oral testimony.

Appellant insists that the original contract expired by limitation by reason of appellee’s failure to comply with same by July 1, 1912, and that a new contract was formed by appellee’s letter of July 2, 1912, asking for an extension of time in which to cure certain objections to his title, and appellant’s reply of same date granting such time. Appellant insists that further time was granted upon condition that appellee remove the Hemphill county blanket lien. We do not so understand said letters. Appellee in said letter did not ask for time in which to | remove the blanket lien, but only as to other objections which he did remove. As to the blanket lien, his letter says that appellant was informed of the blanket lien and entered into the contract with such knowledge. Fourteen objections to appellee’s title had been pointed out by appellant’s attorneys; the fourteenth being the existence of the blanket lien. Appellee’s letter concludes as follows:

“I ask not exceeding- 20 days’ time from this date be allowed as a reasonable time to cure defects 1 to 12, inclusive, as contemplated by the contract. The thirteenth will be cured at the time of conveyance; all agreements therefor having been made. I do not consider that under the understanding and contract the condition of the $21,000 debt incumbers the title beyond construction of contract and agreement.”

Appellant’s reply was as follows:

“In pursuance of yours of the 2d inst. in the matter of the Hemphill county school land to me, the 20 days’ time required by you to cure the objections made by my attorneys is granted. My attorneys require a valid release from the vendor’s lien in favor of Hemphill county, except as assumed by me in the contract.”

We think, the effect of these letters was to grant further time in which to carry out the contract as it existed, concerning the proper construction of which appellee and appellant’s attorneys differed.

For the reasons herein stated, we think that we erred in holding that the contract was not ambiguous. This ease was submitted on special issues.

The first question propounded by the court to the jury was as follows:

“When the contract of June 11, 1912, was made, was it agreed and understood by the parties thereto that the defendant Riggins would take the land subject to the Hemphill county blanket lien?”

To yhieh question the jury answered, “Xes.” The evidence supports this finding.

For the reasons stated, the appellee’s motion for a rehearing is granted, the judgment heretofore rendered by us herein is set aside, and the judgment of the trial court is affirmed.' We overrule appellee’s cross-assignments. Our original opinion herein is withdrawn, and this opinion is adopted in lieu thereof.

Affirmed.

Motion for Rehearing.

Appellant, in his motion for a rehearing, submits the propositions that, where a contract for the sale of land specifies certain indebtedness against the same, this is, in effect, a statement that there is no other indebtedness against said land, and that, where the aggregate amount of such indebtedness is stated, this is a warranty that there is no greater amount of indebtedness against it. As abstract propositions of law, these statements are correct. But, in order to be able to say that any rule of construction governs in the interpretation of an instrument, we must first know that the facts of the case do not bring it within the modifying influence of any other rule of construction.-

As applied to the instant case, it is recited in the contract that there are certain specified incumbrances against the east half of the four leagues to be conveyed, and that these amount in the aggregate to $30,070, and that the debts specified include one-half, but no more, of the $21,000 Traylor purchase-money notes. But must this contract be therefore interpreted as representing that there was no other or greater indebtedness against the land? To do so would be to contradict the plain language of the instrument itself. The sixth clause of the contract expressly states that there was another and a different indebtedness of $13,000 against the land. The first clause of the contract implies that the other half of the 'Traylor note, not included in the specified indebtedness aggregating $30,070, existed against said land.

These seeming contradictions can be reconciled upon the theory that what the parties to the contract meant to express hy the language used therein, and what they thought was the legal meaning of such language, was that the specified incumbrances, amounting in the aggregate to $30,070, were the only incumbrances that appellee was to assume; that the $13,000 incumbrance was to be eliminated by appellee; and that appellant was to take the land subject to the blanket lien of the $21,000, one half of which he assumed, and the other half he expected to be able to shift to Holloway’s half of the land, or to look to Holloway’s half to meet the same. This is, in effect, what the testimony of -Green and Post shows, and what the jury found; and we are still of the opinion that there was a sufficient ambiguity in the contract to render such testimony admissible.

Motion overruled.