author: CONNER, C. J.

text:
    WEBB v. COOKS’, WAITERS’ & WAITRESSES’ UNION, No. 748, et al.
    (No. 8986.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1918.
    Rehearing Denied June 22, 1918.)
    1. Injunction <@=>101 (3) — Picketing—“Intimidation’ “Coercion’’ — Trade Unions —Boycott.
    The acts of a labor union which seeks to force an employer to unionize his restaurant by means of picketing and boycott amount to. “intimidation” and “coercion,” and are unlawful and subject to injunctive relief, even though no open throat or violence are proven.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Coercion; Intimidation.]
    2. Injunction <@=>101(1) — Combination-Boycott — Trabe Unions.
    The constitutional right of an individual to trhde where he pleases does not confer upon a labor union of which he is a member the right to picket and boycott as an organization.
    3. Injunction <@=>101(1) — Injuries to Business-Boycott.
    A boycott by a labor union invades the constitutional rights of the employer to conduct his business on terms of equality with others, and is illegal, even though the ultimate object .is the welfare, of the union members rather than injury to the employer.
    4. Injunction <@=>101(1) — ’Trade Unions — Boycott.
    Where the acts done by a trade union in a boycott have the inevitable effect of causing injury to plaintiff, seeking injunctive religf, intent to injure is implied.
    5. Injunction <@=>101(1)— Boycott — Injuries to Business — “Malice.”
    An injury knowingly and voluntarily inflicted upon plaintiff’s business by picketing and boycott is malicious warranting injunctive relief ; malice, in a legal sense, denoting wrongful acts intentionally done without just cause or excuse.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Malice.]
    6. Injunction <@=>101(3) — Picketing and Boycott.
    Where a labor union by concerted action seeks to coerce an employer to unionize his business, and by picketing and boycotting amounting to intimidation injures his business, such interference will be enjoined.

      7. Monopolies <@=12(2) — Unlawful Combination — Trade Unions — “Trust.”
    Where a labor union combines to boycott and picket an employer to coerce Mm into unionizing his business, such combination is a trust within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796, and is illegal under article 7799.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Trust.]
    8. Monopolies <@=516 — Picketing and Boycott.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5245, providing that it shall not be unlawful for a member of a union to- induce by lawful moans any person to accept or relinquish employment, is not, in view of article 5246', .at variance with the anti-trust laws, and'dpes not permit the picketing. and boycott of' an employer, whoso employes are in harmony with him, with the view of compelling the unionizing of the business.
    Appeal from District Court, Tarrant County ; R. E. L. Roy, Judge.
    Suit by G. R. Webb against the Cooks’, Waiters’ & Waitresses’ Union, No. 748, and others. From a judgment for ' defendants, plaintiff appeals.
    Reversed and rendered.
    Chas. T. Rowland and Marvin H. Brown, both of Ft. Worth, for appellant. Dee Estes, Capps, Cantey, Hanger & Short, and David B. Trammell, all of Ft. Worth, for appellees.
   CONNER, C. J.

This appeal is from a . judgment denying injunctive relief sought by appellant against the Cooks’, Waiters’ & Waitresses’ Union, Docal No. 748, of the city of Ft. Worth, and the officers and members of said union. In substance it was alleged that .said officers and members of said union had conspired together to intimidate, coerce, and harass the plaintiff and injure his business, which was that of a restaurant or café ownT er, and to that end had caused his place of business to be “picketed,” etc., to his great and irreparable injury, etc.

The case is the first of its kind, so far as we are a'dvised, that has reached an appellate tribunal of Texas, but so much has been written by courts in other jurisdictions on the subject herein involved that it almost seems superfluous to do more than to declare our conclusion with a citation of numerous cases where the subject of a labor union’s attempt to boycott and picket has been treated. But because of the importance of the subject, and of the earnestness with which this cause has been presented, and because we think we have statutes relating to the questions invblved, it will perhaps be our duty to set forth our conclusions, at least briefly.

To be as brief as possible, then, we will further state that a hearing was had by the court upon the evidence and the injunction denied under the facts. We therefore deem it immaterial to discuss at length the court’s rulings upon the demurrers to the plaintiff’s petition. We content ourselves on this branch of the appeal with the simple statement that in our judgment the facts as alleged by the plaintiff below and the appellant here were sufficient to entitle the plaintiff to an injunction as prayed for.

But are the facts sufficient? After a careful consideration of the evidence and of the authorities we think they are. Briefly stated, the undisputed evidence is to the effect that after a visit by Mr. Childs, business agent, sometimes designated as the “walking ■delegate,” of the union, and Mr. Webb’s refusal to “unionize” his place of business by signing a contract to employ none but members of the union or those affiliated therewith, at the scale of prices for prescribed hours per week, etc., the union in open meeting, upon Mr. Childs’ report, agreed to and ordered the “picketing” of Mr. Webb’s place. Pickets from among the members were appointed by Mr. Childs and regularly paid by the authorized officers of the, union. Hie picketing had continued about two weeks prior to the trial, and consisted of the pickets, two or more at-a time, walking back and forward in front of plaintiff’s restaurant and handing out to passers-by cards upon which were printed the words:

“This café is unfair to organized labor. Cooks’, Waiters’ & Waitresses’ Union, Docal No. 748.”

Appellant testified that he had seen as many as six people standing in front of his place of business handing these cards out, usually, however, but two, the number designated by the union, and heard such remarks by the pickets §£:

“Please don’t go into that café!” “We are working for organized labor!” “We will win!”

The officers of the union, however, testified that the instructions to the pickets were to merely hand out the cards without remarks, and the pickets, who testified denied making remarks. Appellant also testified without contradiction that the wages paid by him exceeded those prescribed by the union, and the evidence discloses no complaint as to the qualification or character of. appellant’s em-ployés or of the hours of service required of them. Appellant further testified without contradiction that as a result of the picketing his daily receipts fell off from $10 to $15 per day, that he was 46 years old, a native of Georgia, and that it was not a pleasant thing personally to be “picketed against.” In describing its effect upon him, appellant used the following words:

“If I said what I think of it personally, whenever I see a man out in front of my place of business trying to keep me from making a living for my wife and family, I feel just like I ought to take a gun and kill him.”

There was also testimony showing the insolvency of the defendants, and other testimony that will be noticed further on in the course of our opinion, but for the present we think the foregoing outline of the facts will present a sufficient view of the case.

We as a people are exceedingly sensitive to influences of the kind indicated. We have adopted as a slogan the saying, “Yox populi, vox Dei.” The voice of the people determine the tenure and rewards of the officeholder and who shall hold the offices. The influence of such voice enters into all of our laws, and it is therefore particularly true of us that the officeholder, the candidate for office, those engaged in business, and those of the general public to whom participation in a heated controversy of any kind is distasteful and repugnant, are all influenced in varying degrees by efforts, vocal or otherwise, of a labor organization with which other labor organizations are affiliated. The evidence shows without dispute that in the city of Ft. Worth there are numerous labor organizations with a large membership which have headquarters in which is designated in the evidence as “Labor Temple,” where the defendant union has its headquarters.

It therefore seems idle to say under circumstances as indicated that the acts complained of and shown are not provocative of violence and bloodshed, and do not amount to intimidation and coercion. We at least cannot hide nor obscure the truth with the specious contention urged herein that no open threats or violence was proven. We must know what has frequently been declared in] adjudicated cases, that restraint of the mind is just as po'tent as a threat of physical violence. See Barr v. Essex Trades Council, 53 N. J. Eq. 111, 30 Atl. 881; Purvis v. Local No. 600, U. B. C. & J., 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757.

In Beck v. Railway Teamsters’ Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421, it was held:

“That' the boycotting of one who refuses to accede to the demands of the union is unlawful, where the means used to prevent persons from dealing with the person boycotted are threatening in their nature, and tend naturally to overcome, by fear of loss of property, the will of others, and compel them to do what they would not otherwise do,” although such means are “unaccompanied by actual violence or threats of violence.’.’

The courts .of the country generally with but few exceptions have expressed like views. See Cœur D’Alene Consol. Min. Co. v. Miners’ Union (C. C.) 19 L. R. A. 382, 51 Fed. 260; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730, 19 L. R. A. 387; United States v. Weber (C. C.) 114 Fed. 950; Seattle Brewing & Malting Co. v. Hensen (C. C.) 144 Fed. 1011; My Maryland Lodge, No. 186, v. Adt, 100 Md. 238, 59 Atl. 721, 68 L. R. A. 752; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339. 79 Am. St. Rep. 30; Berry v. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738; Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783; Purvis v. Local No. 500, U. B. C. & J., 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 76 Am. St. Rep. 746; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, 22 L. R. A. (N. S.) 607, 128 Am. St. Rep. 492.

Appellees insist, in effect, that inasmuch as á single individual may under constitutional guaranty freely speak or write as he pleases without injunctive restraint, an association or combination of persons may lawfully do likewise, and hence that the defendants committed no wrong. It is, of course, apparent from the proof in this ease that the pickets were not merely expressing their individual views and wishes. On the contrary, they were giving voice to the concerted will and desire of a powerful organization.- The difference in the two things is quite distinct, both in character and force. The following quotation from the opinion in American Fed. of Labor v. Buck’s Stove & Range Co., reported in 33 App. D. C. 83, 32 L. R. A. (N. S.) 749, will illustrate the difference mentioned and indicates our view, viz.:

“The contention is put forward that, inasmuch as each member of the federation has the right to bestow his trade where he will, according to his whim or fancy, it cannot be unlawful for a combination of members to do what each, acting separately, may do, and that' therefore the combination may lawfully discontinue or threaten to discontinue business intercourse with a given firm and all who handle its product; or, to state thq proposition bluntly, that the boycott, as previously defined, is lawful. To admit the soundness of this contention is to give legal support and standing to an engine of harm and oppression utterly at variance with the spirit and theory of our institutions, place the weak at the mercy of the strong, foster monoply, permit an unwarranted interference with the natural course of trade, and deprive the citizen of the freedom guaranteed him by the Constitution. The loss of the trade of a single individual ordinarily affects a given dealer very little. Being discriminating, the purchasing public, if left free to exercise its own judgment, will not act arbitrarily or maliciously, but will be controlled by natural considerations. But a powerful combination to boycott immediately deflects the natural course of trade, and ruin follows in its wake because of the unlawful design of the conspirators to coerce or destroy the object of their displeasure. In other words, it is the conspiracy, and not natural causes, that is responsible for the result. From' time immemorial the law has frowned upon combinations formed for the purpose of doing harm, and we think public policy demands that such a combination as we have found to exist in this case be declared unlawful. As was said by Mr. Chief Justice Fuller of a similar combination: ‘The combination charged falls within the class of restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes ; and there is no doubt that (to quote from the well-known work of Chief Justice Erie on Trade Unions) “at common law every person has individually, and the public also has collectively, a right to require that the course of trade should bo kept free from unreasonable obstruction.” ’ ”

It is further insisted, in, behalf of appellees, and its witnesses so testified, that the object was not to injure appellant, but to promote the legitimate purposes of the union to better the conditions of the laboring man. Such purposes are, of course, worthy of all commendation, and by all lawful means are to be encouraged. But in the accomplishment of such purpose care must be exercised not to invade the field of the rights of other persons; for it is fundamental with us that all men have equal rights, that no man, or set of men, is entitled to separate public emoluments or privileges, save for public services, and that all of our citizens are entitled to the equal protection of our laws. The right of appellant to conduct his business upon terms of equality with all other persons is an essential part of his constitutional rights as an American citizen. In Allgeyer. v. Louisana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 835, the Supreme Court of the United States quoted and approved the following from another decision, viz.:

“The right to follow any of the common occupations of life ia an inalienable right. It was formulated as such undo]: the phrase, ‘pursuit of happiness" in the Declaration of Independence. * * * This right is a -large ingredient in the civil liberty of the citizen.”

In Hopkins v. Oxley Stave Co., 28 C. C. A. 99, 49 U. S. App. 709, 83 Fed. 912, the Circuit Court of Appeals for the Eighth Circuit said:

“The right of an .individual to carry on his business as ho sees fit, and to use such implements or processes of manufacture as he desires to use, provided he follows a lawful avoca, tion, and conducts it in a lawful manner, is entitled to as much consideration as his other personal rights; and the law should afford protection against the efforts of powerful combinations to rob him of that right and coerce his will by intimidating his customers and destroying his patronage.”

It is apparent that the supreme law of the land guarantees protection to all who desire to engage in a lawful calling. And while the ultimate object of the boycott and picketing under consideration may have been to thereby increase the force and power of the union and for the betterment of its members, it is not to be disguised that its immediate object was to intimate and coerce appellant to sign a contract he was unwilling to sign and that he was under no legal obligation to sign. To construe the evidence otherwise would be but to affi.pt a subterfuge, and tbis we cannot do. It is immaterial, therefore, that appelh' s’ ultimate object in ordering and carrying on the picketing may have been lawful; for, as said in the case from winch we have before quoted kt some length:

“The law looks to the immediate, and not the incidental, object of the combination. If the immediate object is unlawful, the combination is unlawful.”

It is also immaterial that the defendants entertained no specific ill will toward appellant and acted without the specific purpose to injure him, as some of them testified. It seems clear that what was done had the inevitable effect of causing him injury to a material extent, and it must be held as a matter of law: that defendants intended the injury that resulted. And inasmuch as the acts complained of constituted an invasion of appellant’s rights and were voluntarily and knowingly done, it must be further held that defendants, in a legal sense, acted maliciously. Malice, in a legal sense, denotes wrongful act intentionally done without just cause or excuse. In Ramsey v. Arrott, 64 Tex. 381, the following definition of malice by Mr. Greenleaf was approved:

“Any unlawful act, done willfully and purposely, to the injury of another, is, as against that person, malicious.”

See, also, Culbertson v. Cabeen, 29 Tex. 247, and, as applied in a case similar to the one before us, see, also, Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, 22 L. R. A. (N. S.) 607, 128 Am. St. Rep. 492.

But we will no longer discuss specific contentions or treat the case from the general viewpoint of the authorities, but will content ourselves with stating onr general conclusion that, notwithstanding some conflicts in the adjudicated cases, the great weight of authority seems to support appellant’s right to injunctive relief. See the following cases where the subject in all of its phases is discussed: Olive et al. v. Van Patten, 7 Tex. Civ. App. 630, 25 S. W. 428; Jensen v. Cooks’, Waiters’, etc., Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; My Maryland Lodge, etc., v. Jno. B. Adt, 100 Md. 238, 59 Atl. 721, 68 L. R. A. 752; Erdman v. Mitchell et al., 207 Pa. 79, 50 Atl. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783; Vegelahn v. Guntner et al., 167 Mass. 92, 44 N. E. 1077, 25 L. R. A. 722, 57 Am. St. Rep. 443; Sherry v. Perkins, 147 Mass. 214, 17 N. E. 307, 9 Am. St. Rep. 689; Cœur D'Alene, etc., Min. Co. v. Miners’ Union et al. (C. C.) 19 L. R. A. 382, 51 Fed. 260; Chicago Typo. v. Franklin Union No. 4, unreported case, but affirmed in 220 Ill. 355, 77. N. E. 176, 4 L. R. A. (N. S.) 1001, 110 Am. St. Rep. 248; Atchison, etc., Ry. v. Gee (C. C.) 139 Fed. 582; United States v. Cassidy et al. (D. C.) 67 Fed. 698; Lohse Pat. Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, 22 L. R. A. (N. S.) 607, 128 Am. St. Rep. 492; Goldberg v. Stablemen’s Union, 149 Cal. 429, 86 Pac. 806, 8 L. R. A. (N. S.) 460, 117 Am. St. Rep. 145, 9 Ann. Cas. 1219; Jordahl v. Hayda, 1 Cal. App. 696, 82 Pac. 1079; Allis Chalmers Co. v. Iron, etc., Union (C. C.) 150 Fed. 170; Casey v. Cincinnati Typo. Union (C. C.) 45 Fed. 135, 12 L. R. A. 193; Wilson et al. v. Hey et al., 232 Ill. 380, 83 N. E. 928, 16 L. R. A. (N. S.) 85, 122 Am. St. Rep. 119, 13 Ann. Cas. 82; Geo. Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219, 79 Atl. 262, 41 L. R. A. (N. S.) 445; Hitchman Coal & Coke Co. v. Mitchell et al., 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. 260; Ex parte Stout (Tex. Cr.) 198 S. W. 967.

But yet for another reason we think the judgment below is erroneous. We are of opinion that the acts of the appellees as alleged by appellant and as shown by the undisputed evidence fall within the prohibitory effect of our anti-trust statutes.

The statutes referred to may be found iri their codified form in title 130, 4 Vernon’s Sayles’ Tex. Civ. Stats, p. 4808 et seq. We quote therefrom so much as is believed to have application. By article 7796, c. 1, of the title a “trust” is defined as:

“A combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following-purposes: To create, or which may tend to create, or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state.”

Article 7799 declares that:

“Any and all trusts, monopolies and eonspir-'acies in restraint of trade, as herein defined, are prohibited and declared to be illegal

As it seems to us, the acts of appellees plainly come within the meaning of a trust as above defined. They combined in open meeting and formally initiated and carried into effect the picketing of appellant’s premises as shown by the evidence. The direct, the immediate, object in so doing seems just as certainly to have been to create and carry out restrictions in the free pursuit by appellant of his business, which was a lawful one. We must know from the evidence that such was the effect.

It is perhaps possible that it may be said that the expressed view of the anti-trust statute is at variance with our statutes relating generally to labor and labor organizations. But not so; on the contrary, as we think, the labor laws referred to give force to the construction given. Those laws, after providing that it shall be lawful for persons engaged in any kind of labor to associate themselves together and form unions, etc., make the following declaration relating to the rights and privileges of such associations, viz.:

“It shall not be held unlawful for any member or members of such trades union or other organization or association, or any other person, to induce or attempt to induce by peaceable and lawful means, any person to accept any particular employment, or quit or relinquish any particular employment in which such person may then be engaged, or to enter any pursuit, or refuse to enter any pursuit, or quit, or quit or relinquish any pursuit in -which such person may then be engaged; provided, that such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof.” Article 5245.

The next succeeding article of the statute (article 5246) contains, among others, the express proviso:

“That nothing herein contained shall be construed to repeal, affect or diminish the force and effect of any statute now existing- on the subject of ti-usts, conspiracies against trade, pools and monopolies.”

It is apparent that article 5245 is without -application here. The right and privileges there granted apparently relate to cases of the ordinary strike so familiar to the public, where the controversy is between an employer and his employés. But there is no controversy of the kind here. So far as the record shows, appellant and his employés are in entire harmony. Appellant has discharged no employé nor retained one objectionable to the other employés. Nor does it appear that any one or more of appellant’s employés are dissatisfied with appellant’s government, with the wages paid, or hours of service required. So that the question is narrowed to the simple one of whether in enacting article 5245 it was the legislative purpose to authorize any character of coercion or intimidation to compel a person in business necessitating the employment of servants to employ such persons only as shall be designated by another person or association of persons, and to permit such other person or association to dictate the rate of wages to be paid, the number of hours to serve, etc. We do not think so. The right of a citizen in this free republic to conduct any lawful business in any lawful manner that he may think best in view of his situation and circumstance is too important to yield at the behest of any private person or association organized to promote the interest of but a single class of our people, laborers though they may be. Indeed, to impose restrictions upon the freedom of the business world in favor of any particular class of labor is by no means necessarily beneficial to the perhaps larger number of laborers, who either cannot or who do not wish to conform to the rules of the organizations, or whose necessities or situation may require employment at schedules of wages or hours forbidden by the organized bodies.

At all events the privileges extended by article 5245, so far as they may be construed as limitations upon freedom in business pursuits, ought not, as it seems to us, to be extended to circumstances such as we now have before us, and thus run counter to our antitrust statute expressly forbidding combinations to “create or carry out restrictions in the free pursuit of any business.”

■ We conclude that both by the weight of authority and by virtue of our anti-trust statutes the judgment below was wrong, and that it should be reversed, and here rendered for appellant; that the writ of injunction forthwith issue' as prayed for. It is further ordered that all costs be taxed against appel-lees, and that this judgment be certified below for observance.

Reversed and rendered.
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source: Caselaw Access Project

author: BROOK, J. HIGHTOWER, O. J.

license: Public Domain

text:
    BELL v. C. J. GERLACH & BRO.
    (No. 250.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 28, 1917.
    On Motion for Rehearing, Dec. 12, 1917.)
    1. Interest @==>1 — Kinds—Definitions.
    Interest is of three kinds, conventional interest, fixed by the parties in the contract, legal interest, which is allowed by law when the parties have not agreed upon any particular rate, and interest which is allowed as damages for the detention of money.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interest.]
    2. Courts @==3169(4) — Jurisdiction oe County Court — Constitution—Interest.
    The language of Const, art. 5, § 16, providing that the county court shall have concurrent jurisdiction with the district court when the matter in controversy shall exceed $500 and not exceed $1,000, “exclusive of interest,” does not apply, where the interest is given as part of the damages, but only where it is expressly given by statute.
    3. Courts @=3169(4) — Jurisdiction of County Court — Action for Money — Interest— Constitution and Statute.
    Under Const, art. 5, § 16, providing that the county court shall have concurrent jurisdiction with the district court when the matter in controversy shall exceed $500 and not exceed $1,000, exclusive of interest, the county court had no jurisdiction of suit by the purchasers of corporate stock for $1,000 on the oral or written agreement of defendant to take such stock off their hands at the end of a year if they were not satisfied, the interest prayed for by plaintiffs being merely damages for the detention of money, for which the legal rate of interest is merely used as the measure of damages; the contract not coming within Vernon’s Sayles’ Texas Civil Statutes 1914, art. 4979, providing that the parties to any written contract may agree to and stipulate for any rate of interest not exceeding 10' per cent, per annum on the amount of the contract.
    On Motion for Rehearing.
    4. Courts @=3169(4) — Jurisdiction of County Court — Written Contract — Contract by Agent.
    The mere fact that an agent had authority in writing to make such a contract would not make a written contract under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4979.
    Appeal from Trinity County Court; C. M. McKinnon, Judge.
    Suit by C. J. Gerlach. & Bro. against W, A. Bell. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded, with instructions to dismiss.
    Clegg & Embry, of Trinity, and Huggins & Kayser, of Houston, for appellant. Campbell & Campbell, of Livingston, for appellee.
   BROOK, J.

Perhaps it will be as well to incorporate the original petition of plaintiff in this cause, which was as follows:

“(1) During the summer of 1911 defendant and others sought to incorporate the Trinity Compress & Gin Company, at Trinity, Tex., and did so incorporate such company. That defendant approached plaintiff through Chas. J. Rogan and besought the plaintiffs to subscribe $1,000 to the enterprise, for which stock in said compress and gin company should be ' issued in due time, depicting to these plaintiffs the great profits and advantages that would accrue to the owners of stock in said compress and gin company then and there stating that the revenue from said investment would be great.
“(2) That in order to induce plaintiffs to invest $1,000 in such enterprise the defendant then and there bound and obligated himself to relieve the plaintiffs of such investment, and return to the plaintiffs their $1,000 at the end of one year should the plaintiffs be not satisfied therewith.
“(3) Now plaintiffs say that because of the promise and obligation of the defendant to indemnify them, and relying implicitly upon such promises and obligations, they did subscribe to the stock in said enterprise, and did at or about the time of said subscription pay some small portion of the $/l,000.
■ “(4) That at the time the plaintiffs subscribed as aforesaid the stock was not then ready to issue, but that later, some time about or before September 26, 1911, the said sto.ck was ready to be delivered and then it was these plaintiffs refused to go further until the defendant gave them his obligation in writing, binding and obligating himself in addition to his promises and obligations through the said Rogan and that on September 26, 1911, defendant wrote these plaintiffs a letter, making great promises of success, and on the point of plaintiffs’ demand said, ‘Regarding your stock will say, if you are not satisfied with it at the end of a year, I will take it off your hands.’
“(5) Plaintiffs say that defendant bound himself and became liable to the plaintiffs to pay to them at the expiration of one year $T,000 in exchange for said stock of $1,000 if plaintiffs were not satisfied therewith.
“(6) That before the expiration of one year and oftimes after the expiration thereof plaintiffs advised defendant that they were not satisfied with said stock, and urged and demanded the defendant to pay to them their $1,000, but they say that defendant has wholly failed so to. do, and wholly fails and refuses to answer correspondence through open mail, or by registered letter or by letters from plaintiffs’ counsel; indeed, the plaintiffs say that the quiet and circumspect ‘lobster’ would envy the silence with which defendant has treated their oft demand for a compliance with his firmly bound obligations to them to pay the $1,000.
“(7) And, further, the plaintiffs say that they would not at any time have ventured such investment but for the solemn and positive promises and obligation of defendant to relieve them and protect them against loss further than the use of their money for one year, and, confidently relying upon the obligations and promises of defendant, they did lay out the said $.1,000, and with which investment these plaintiffs are not satisfied, and here now tender in open court said stock asking that defendant be required to pay to them the said $1,000, with 6 per cent, interest from the date of one year after the date of said stock.
“(8) Wherefore plaintiffs pray the court that defendant be cited to appear and answer herein ; that they have their judgment for the full sum of $1,000, with interest thereon at 6 per cent, from one year after the date of said stock, for cost of suit, and for such other and further relief, both' general and special, in law and in equity, that they may show themselves justly entitled to,” etc.

This case, as alleged by the pleadings, was tried with a jury, and resulted in a verdict for the appellees.

In this court for the first time a motion is made, setting up, among other things, the fact that the county court was without jurisdiction of this cause, and therefore that this court is without jurisdiction of same. As shown by the plaintiffs’ petition, plaintiffs sue in the county court of Trinity county for $1,000, with interest thereon at the rate of 6 per cent, per' annum. Interest is of three kinds: First, conventional interest fixed by the parties in the contract; second, legal interest, that which is allowed by law when the parties have not agreed upon any particular rate; and, third, interest which is allowed as damages for the detention of money. The last kind, however, is not, strictly speaking, interest at all, but the legal rate of interest is merely used as the measure of damages. Article 4973, Vernon’s Sayles’ Texas Civil Statutes of 1914, gives the following definition of interest:

“ ‘Interest’ is the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.”

Article 4974, Id., reads as follows:

“ ‘Legal interest’ is that interest which is allowed by law when the parties to a contract have not agreed upon any particular rate of interest.”

Article 4976 reads;

“The distinction between legal and conventional interest shall be known and recognized by the laws of this state.”

Article 4977 provides:

“On all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent, per annum from and after the time when the sum is due and payable.”

Article 4978 provides:

“On all open accounts, when no specified rate of interest is agreed upon by the parties, interest shall be allowed at the rate of six per cent, per annum from the first day of January, after the same are made.”

Article 4979 provides:

“The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten per cent, per annum on the amount of the contract.”

Article 4980 provides:

“All written contracts whatsoever, which may in any -way, directly or indirectly, violate the preceding article by stipulating for a greater rate of interest than ten per cent, per annum shall be void and of no effect for the amount or value of the interest only; but the principal sum of money or value of the contract may be received and recovered.”

■With reference to the matters in controversy here, it is sufficient to quote the statute, as above. The interest prayed for in this case and allowed by the court is not within the first specification above set out, that is, conventional interest fixed by the parties in the contract, so that the question, to be determined in this .cause is whether the interest prayed for in this suit is legal interest, or whether it is merely damages. Of course, if it is damages, it is a part of the amount in controversy, and the county court has no jurisdiction. Article 5, § 16, of the Constitution, regarding the jurisdiction of the county court, is as follows:

“The county court shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice’s court as the same is now or may hereafter be prescribed by law, and when the fine to be imposed shall exceed two hundred dollars, and they shall have exclusive jurisdiction in all civil cases when the matter in controversy shall exceed in value two hundred dollars and not exceed five hundred dollars, exclusive of interest; and concurrent jurisdiction with the district court when the matter in controversy shall exceed five hundred dollars, and not exceed one thousand dollars, exclusive of interest; but shall not have jurisdiction of suits for the recovery of land.”

The language of tbe Constitution “exclusive of interest” does not apply where the interest, so called, is given as a part of the damages, but only where it is expressly given by statute. The question in this case then is: Is the interest prayed for by plaintiff expressly given by the statute, or is it not strictly interest, but merely a part of the damages, for the measure of which the rate of interest is used? The question, then, further resolves itself into the inquiry, Does the contract sued on in this case come within the languáge of article 4979 of the statutes?

In the first place, the contract was not a written contract at all, but was an oral agreement made through Chas. J. Rogan, acting for appellant, Bell, and C. J. Gerlach, acting for plaintiffs. This is shown by the plaintiffs in their petition in the following' language:

“That defendant approached plaintiff through Chas. J. Rogan, and besought the plaintiffs to subscribe $1,000 to the enterprise, for which stock in said compress and gin company should be issued. * * * That in order to induce plaintiffs to invest $1,000 in such enterpi-ise the defendant then and there bound and obligated himself to reheve the plaintiffs of such investment and return to the plaintiffs their $1,000 at the end of one year should the plaintiffs be not satisfied therewith. * * * That at the time the plaintiffs subscribed as aforesaid, the stock was not then ready to issue, but that later, some time about or before September 26, 1911, the said stock was ready to be delivered, and then it was these plaintiffs refused to go further Until the defendant gave to them his obligation in writing, binding and obligating himself in addition to his promises and obligations through the said Rogan, and that on September 26, 1911, defendant wrote these plaintiffs a letter, making great promises of success, and on the point of plaintiffs’ demand said: ‘Regarding your stock, will say, if you are not satisfied with it at the end of a year, I will take it off your hands.’ ”

The letters referred to in the pleadings and the letters testified to by plaintiff, are as follows:

“Livingston, Texas, 9/2/1911:
“Mr. W. A. Bell, Trinity, Texas — Dear Sir: Herewith we inclose our check for $200.00, being the third installment, amounting to $500.00' total on 10 shares of compress stock, please acknowledge receipt. Mr. Bell, when we subscribed for this stock, it was understood with Mr. Rogan, that at the end of one year, if we were not satisfied with the purchase of this Compress Stock and wished to dispose of same, you were to take it off our hands at par. Will you please let us know whether or not you understand this as we do.
“With, best wishes and many thanks for your kindness, we are. •
“Yours very truly, O. J. Gerlaeh & Bro.”
“Mess. O. J. Gerlaeh & Bro., Livingston, Texas — Gentlemen: * * * Regarding your stock, will say, if you are not satisfied with it at the end of a year, I will take it off your hands, but I do not believe you will want to sell’ it.
“Yours truly, W. A. Bell.”

The most that could be claimed upon the petition hereinbefore set out was that the contract sued upon was an oral contract, and that the letters merely ratified the oral agreement, but even assuming that the letters do constitute a contract in writing, yet such contract does not ascertain the sum payable. Appellant’s letter merely states that he will take the stock off of appellees’ hands. Appellees’ letter states that the agreement 'was that he would take it at par off their hands, but there is not a line to show what was the par value of the stock. Without some outside evidence, it is impossible. to take these letters and ascertain the amount that was due and payable.

In the case of McNeill et al. v. Casey, 135 S. W. 1130, which opinion was written by Rice, Justice, the following language is used:

‘"The first question raised by appellants in their brief is whether or not the county court of Williamson county had jurisdiction of the amount in controversy. This suit is based upon breach of contract for the recovery of $1,-■000, with 8 per cent, interest thereon from the date of the alleged breach thereof. If plaintiff was entitled to recover interest upon said contract eo nomine, and not to recover the same ■as an element of damages for breach thereof, then the county court of Williamson county had jurisdiction; but otherwise not. In 2 Oye. p. 565, it is said: ‘Where interest on a principal amount is a part of the claim or subject-matter involved in the controversy, such interest will be considered as determining appellate jurisdiction, and interest which is not given eo nomine, as upon a contract ascertaining the sum payable, but which is a part of the damages, is to be included in the amount in controversy in determining appellate jurisdiction.’
“In 22 Oye. p. 1495, it is said: ‘Although in some cases of breach of contract to pay money, interest has been allowed thereon on the ground of an implied contract to pay interest that arises from the failure to pay the principal, the general rule, established by the great weight of authority, is that where there is a contract, express or implied, to pay money, even though such contract be silent as to interest, interest will be allowed upon its breach as damages, and not because of any promise to pay it. Interest in such cases is merely the measure of damages to be allowed, and this measure is a fixed and invariable standard, not subject to be varied ■because of peculiar or unusual damages sustained in any particular case, as the law contemplates no damages for the detention of money beyond the interest on such money. In some cakes it has been held that, even where interest is provided for by contract in case of breach of contract to pay the principal sum when due, such interest is recoverable only as damages which have been liquidated by such agreement.’
“The settled rule in this state with reference to this matter seems to be that when interest is sought eo nomine, as flowing from and incident to the contract in writing sued upon, it will not be taken into account in determining the jurisdiction of the court; but the contrary is true where the same is sued for as an element of damages arising from the breach of the contract, and where the same is not specially recoverable as due under the contract itself. See Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Schultz v. Tessman & Bro., 92 Tex. 491, 49 S. W. 1031, and authorities there cited; Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Houston & Texas Central Railroad Co. v. Jackson, 62 Tex. 209, and authorities there cited; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312.
“In Heidenheimer v. Ellis, supra, which was a suit to recover the amount due upon a stated account and for interest thereon, wherein the court charged the jury, in effect, that if they believed that defendant was indebted to plaintiffs on stated account to return a verdict for the amount of said account, and interest thereon at 8 per cent, from the date of acknowledgment and promise to pay the same, it was contended that the charge was erroneous, in so far as it instructed the jury to allow interest from the time at which the payment was to have been made, etc. The court, in discussing this question, says: ‘It is frequently said in the decisions of the courts that interest is the creation of the statute. In a certain sense this is true, but as applied to one class of cases the phrase is misleading. Interest cannot be allowed eo nomine, unless expressly provided for by statute; but in many instances it may be assessed as damages when necessary to indemnify a party for an injury inflicted by his adversary, though the statute be silent upon the subject.’ Saying further: ‘The whole subject of interest is very ably discussed by Senator .Spencer in the case of the Rensselaer Glass Factory v. Reid, 5 Cow. (N. Y.) 604, and the distinction between the cases in which interest is allowed eo nomine and those in which it is allowed only by way of indemnification made very deal’. Referring to the latter, the opinion said: “In such cases it is not an incident to the debt, but may be allowed under circumstances by way of mulct or punishment for some fraud or delinquency or injustice of the debtor, or for some injury done by him to the creditor.” ’ The court holding that, if it be conceded that the suit was not upon a written contract ascertaining a sum payable, as provided by article 2976 of the Revised Statutes (1879), nor upon open account as mentioned in article 2977 (in either event, as we understand it, interest would be allowed as upon a demand sued upon), yet remarked: ‘It is a stated account to be paid in cash upon delivery of goods, the sale of which constituted its consideration, and which had been delivered when the accounting was had. Here is a manifest delinquency on the part of the debtors, working a gross injustice to the creditors, and resulting in a wrong which cannot be compensated by any sum less than the principal and the interest on the debt from the time at which it ought to have been paid,’ citing cases, and thereafter holding, as we understand the case, that the amount sued for as interest might be alone recovered as damages. See, also, Savings Bank v. Sachtleben, 67 Tex. 420, 3 S. W. 733.
“In Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163, which was a suit for the conversion of goods of the value of $1,000, and interest thereon, it was held that the county court had no jurisdiction, because the amount sued for as interest was not in fact interest, but was recoverable as an element of damages for the alleged conversion, and therefore when added, as it must be, to the amount sued for, exceeded the jurisdiction of the court; Chief Justice Gaines saying, in. delivering the opinion of the court: ‘It is apparent from the record before us that the plaintiff must have claimed in his petition $1,000, the value of the goods converted, and additional damages for the conversion, measurable by the interest on that value from the date of conversion to the time of trial. ’ If these damages are to be treated as “interest” within the meaning of that term as used in the section of the Constitution from which we have quoted (section 16, art. 5), then'the record fails to show that we have jurisdiction. If they are not to be so treated, then the sum sued for exceeds $1,000, exclusive of interest, and it is a case in which a writ of error lies to the judgment of the Court of Civil Appeals. Our statutes make no provision for allowing interest in actions of this character; but it belongs to a class of cases in which interest upon the amount of the pecuniary loss inflicted by the injury is allowed as a part of the damages. It is clear that in a suit for the conversion of a specific sum of money a recovery of that sum, without an allowance for the use of the money, would not adequately compensate the loss. The rate of interest established by law, being a fixed standard of the value of the use of money, is adopted by the court as the measure of that damage in such a case. When the statute does not expressly provide for the recovery of the interest, it is allowed, not eo nomine — that is, not as interest — but merely as damages. It would probably be more correct to say that rate of interest is resorted to in order to measure the damages accruing from the loss of the use of the money. As in case of the conversion of money, so in case of the conversion of goods, and in many others in which the statute does not expressly create a legal liability for interest. Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666. Recurring, then, to the provision of the Constitution now under consideration, we are of the opinion that it was intended to apply to cases in which interest is expressly given by statute, and not those in which the rate of interest is merely taken as a standard by which to measure in part the damages to be recovered. This ease comes under the latter class; and, since we infer from the agreed statement and the judgment of the trial court that more than $1,-000 rilust have been claimed in the petition, we conclude that jurisdiction over it has been given by the statute.’ Interest has been allowed for conversion or detention of money, and the same is allowed as damages, and not as interest on the money. See Bank v. Jones, 18 Tex. 811; Close v. Fields, 13 Tex. 623. Interest allowed as damages is regarded as such, and not as interest. See Perley on the Law of Interest, p. 23; Browne et al. v. Steck, 2 Colo. 70.
“Speaking with reference to county courts, section 16, art. 5, of our Constitution provides, among other things, that they shall have ‘exclusive jurisdiction in all civil cases when the matter in controversy shall exceed in value $200 and not exceed $500, exclusive of interest; and concurrent jurisdiction with the district courts when the matter in controversy shall exceed $500 and not exceed $1,000 exclusive of interest.’
“Our_ statute' on the subject of interest provides, in article 3101, formerly article 2976, Rev. Stat., as follows: That ‘on all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent, per annum from and after the time when the same is due and payable.’
“Now it is clear from the Constitution that if the item sued for as interest can be held or regarded as interest, and not as an element of damages, then the court below had jurisdiction of the amount in controversy; but, if said amount sued for as interest was in reality recoverable, if at all, as an element of damages as a punishment for appellants’ delinquency in holding the money, then the same cannot be regarded as interest, but must be added to the principal amounts sued for, which would place the amount in controversy beyond the jurisdiction of the court. Now it would seem that if, under the statute above quoted, the contract, breach of which is made the basis of plaintiff’s recovery, clearly ascertained the sum payable, then and in that event the interest sued for would be recoverable as interest and not as damages; but is tie sum so payable clearly ascertained therefrom? We think not, for the reason that no amount is fixed definitely as payable from the terms of the contract, but in order to ascertain or determine the amount you must go outside of the contract and show its breach on the part of appellants before any sum can be recovered. It is true that upon certain conditions plaintiff would have a right to sue, and the measure of his recovery would be the amount stated in the contract; but this is not the amount ascertainable from the contract itself, but the ascertainment of the amount due is dependent upon a number of conditions outside of the contract, which would be necessary to show, in order to recover at all. Wie therefore think, under the authorities above quoted, that the amount sued for in this case as interest cannot be recovered as interest, but must be recoverable, if at all, as an element of damages for the purpose of compensating plaintiff for the detention of the money, and is based alone on appellants’ delinquency or dereliction in failing to comply with the contract, the breach of which forms the basis of this suit. For which reason we hold that the amount in controversy was beyond the jurisdiction of the court; and since the court a quo had no jurisdiction, none can be conferred upon this court by appeal.”

And so, in the instant case, while we would gladly, upon the case made out by appellees in the lower court, and which seems upon its face to be of great merit, be able to entertain the jurisdiction which has been conferred by statute upon the county court, but we are constrained to believe and to hold that the county court in this cause, under the pleadings, was without jurisdiction, and, therefore, that court having no jurisdiction, this court is also without jurisdiction.

The cause, therefore, is reversed and remanded to the lower court, with instructions to dismiss the same.

On Motion for Rehearing.

HIGHTOWER, O. J.

At a former day of this term, the judgment of the trial court in this cause was reversed, and the case remanded, with instructions to the trial court to dismiss, the case. Appellees have in due time filed a motion for rehearing, praying this court to set aside its judgment in so disposing of this cause, and to affirm the judgment of the trial court.

In the motion for rehearing, appellees contend that this court erred in its opinion, on page 6 thereof, as shown by the following language of the court there used:

“The most that could be claimed upon the petition hereinbefore set out was that the contract sued upon was anP oral contract, and -that the letters merely ratified the oral agreement; but, even assuming that the letters do constitute a contract in writing, yet such contract does not ascertain the sum payable.”

In this connection, appellees say that this court very probably overlooked the testimony of the witness Chas. J. Rogan, which was by deposition, and was as follows:

“My occupation during the summer of 1911 was vice president and General Superintendent of the Beaumont & Great Northern Railway Company. When I first approached plaintiff with reference to the sale of. the stock, he stated that he did not care to make the purchase of the Compress stock. Plaintiff first rejected the offer of sale, for the reason that he did not consider it a safe investment. I communicated such rejection to W. A. Bell, president of the Trinity Compress & Gin Company by word of mouth. I got an answer from my notice. The answer was verbal, also by letter; the letter on the subject has been lost. I did not find the letter from defendant Bell relative to and effecting a sale of this $1,000 worth of stock, and have exhausted every avenue and bypath in the search for said letter. The letter stated, and my verbal instructions were, that I could guarantee Mr. L. F. Gerlach that he (W. A. Bell) would return to him (Gerlach) dollar for dollar of the money paid for the Trinity Compress & Gin Company stock at the expiration of one year in the event he (Gerlach) was dissatisfied with the purchase. Mr. L. P. Gerlach accepted this proposition in a letter dated June 19, 1911; letter attached hereto and marked ‘Exhibit 1’ for identification. To the best of my knowledge I had said letter at the time I concluded the sale to plaintiff for the $1,000 stock. Yes; such representations were in the terms of such letter. I stated to Mr. Gerlach that W. A. Bell had authorized me to say that he (W. A. Bell) would take the stock off his hands at its face value at the end of one year if he (Gerlach) was dissatisfied. Mr. Gerlach authorized me to subscribe for the stock, as shown in his letter attached hereto, marked ‘Exhibit 1’ for identification. This letter, to the best of my knowledge, was simply a repetition of the verbal instructions, already given me by Mr. W. A. Bell, that he (Bell) would repurchase the stock of Mr. Gerlach at its face value at the end of one year in the event he (Mr. Gerlach) was dissatisfied; that is, the letter of instructions from Mr. Bell. I acted upon the letter from Mr. Bell, and upon verbal instructions. I made representations to plaintiff by virtue of said letter, and also on the verbal instructions which were already received. Such representations were as heretofore stated. As heretofore stated, I had verbal instructions from the defendant Bell relative to the sale of said stock in the Trinity Compress & Gin Company to the plaintiff, and I communicated such instructions to the plaintiff. Defendant Bell authorized me to make such representations and promises to plaintiff, and I did so.”

It is contended by appellees in the motion for rehearing that this testimony on the part of the witness Rogan show's that the contract between Bell and Gerlach for the sale and purchase of the stock in question was a written contract, and that the same “ascertained the sum payable,” etc., and that therefore the court erred in its original opinion in holding that the contract between the parties was not a written one ascertaining the amount payable.

In reply to the motion for rehearing, we will say that the court did not overlook, in arriving at the conclusion reached in this case, the testimony of the witness Rogan, but had the same clearly in mind; but the court was of the opinion that the testimony of the witness Rogan in the motion showed only that the letter from Bell to himself, claimed to have been lost, was only authority in writing from Bell to him to enter into the contract with Gerlach for the sale and purchase of the stock in question, and that such written authorization to him as Bell’s agent to enter into a verbal agreement with Gerlach did not constitute, and w'ould not have the legal effect to make the contract entered into between Gerlach and Bell, acting through his agent Rogán, a written contract between the parties, regarding the purchase and sale of the stock in question, and ascertaining the amount payable in the event of its breach.

We have said this much merely out of courtesy to counsel for appellees, and to show' that the court did not overlook the testimony of the witness Rogan as apprehended by counsel.

The motion for rehearing is overruled.
      <gc^For other cases see same topic and KEY-NUMBER in all Key-Numbered .Digests and Indexes


author: JENKINS, J.

text:
    KERR et al. v. STATE et al.
    (No. 6002.)
    (Court of Civil Appeals of Texas. Austin.
    June 26, 1918.)
    Appeal and Error i@=>999(1) — Weight op Evidence — Written Instruments.
    Where there is no contradiction in testimony in boundary dispute, and the verdict is simply deduction from facts proven, consisting of field notes and maps, the appellate court will not defer to the verdict of the jury.
    2. Trial @s=240 — Argumentative Instructions.
    In a boundary dispute an instruction that surveyor is presumed to have surveyed on the ground all lines called for and ran to all of the artificial objects or lines called for in his field notes, and that original east lines of league of land were marked lines, an artificial boundary, held, under the facts, argumentative.
    3. Trial @=>194(10) — Instructions—Weight op Evidence.
    In a boundary dispute an instruction that surveyor is presumed to have surveyed on the ground all lines called for and ran to all of the artificial objects or lines called for in his field notes, and that original east lines of leagues of land were marked lines, an artificial boundary, held, under the facts on the weight of the evidence, in effect calling for a peremptory instruction.
    4. Boundaries @=>3(1) — Relative Importance op Conplicting Evidence.
    A call made upon conjecture will not control a call for course and distance.
    5. Boundaries @=>3(6) — Relative Importance op Conflicting Evidence.
    The call for a marked line will ordinarily control the call for course and distance.
    6. Boundaries @=>37(1) — Conflicting Surveys — Sufficiency op Evidence.
    In a boundary dispute involving conflict between surveys under the 50 cent act and a resurvey of leagues of land set apart by state for building state capitol, in which jury found state was entitled to land as made vacant by the correction of the original survey of state land by resurvey, whereby eastern line of such survey was moved west, evidence held insufficient to sustain the verdict.
    Appeal from District Court, Travis County; Ireland Graves, Judge.
    Action between C. F. Kerr and others and the State of Texas and another. From a judgment for the latter, the former appeal.
    Reversed and remanded for new trial.

      E. H. Yeiser, of Austin, and C. S. Williams, of Plainview, for appellants. B. F. Looney, Atty. Gen,, and G. B. Smedley, of Austin, for the State. N. A. Rector, of Austin, for appellee T. E. Pinckney.
   Findings of Pact.

JENKINS, J.

In 1880, in accordance with an act of the Legislature of Texas (Acts 16th Leg. e. 18) setting 'aside 3,000,000 acres of public land with which to defray the expense of building a state capitol, J. T. Munson surveyed said land in league surveys, and returned the field notes of same to the land office, together with maps thereof. In order to aid in, fixing the location of the leagues shown on the sketch herewith, he ran a connecting line from what is known as the “sod-house corner,” north 18,330 vrs., and thence east 1,180 vrs., to what appears on his map as the N. E. corner of league 617. All parties hereto in their briefs treat this call as an error, in that it should have been for the N. E. corner of league 618, which is the N. W. corner of 17.

Some time prior to May 23, 1883, a large number of sections had been surveyed for Thompson Bros, under the “50 cent act.” These surveys, which are in what is known as blocks T-l, T-2, and T-3, lie east of the capitol leagues, and, as originally surveyed, covered a number of such leagues.

It is evident from the record that prior to May 23, 1883, there was an agreement between the owners of the league surveys and the Thompsons, under which certain of the capitol leagues were to be abandoned, and the Thompson sections were to be resurveyed, so as to make their western lines coincide with the eastern lines of the capitol leagues not abandoned. Sam L. Ghalk, on May 23, 1883, made corrected field notes of the Thompson surveys, evidently with the view of carrying this agreement into effect, and the Thompson surveys, were- patented on such corrected field notes.

Chalk, for the purpose of' ascertaining the distance between the eastern boundary of the leagues which were not abandoned and the N. W. comer of survey No. 19, ran from the sodhouse corner north, east, and north, and found and identified as a league corner what he calls the N. ®. corner of No. 517 and the S. B. corner of No. 574, which callings would have been correct if there had been no error in numbering the capitol leagues, as shown on Munson’s map of same. If the error in said map was as the parties hereto concede, the points at which Chalk arrived were in fact the N. E. corner of No. 580 and the- S. E. corner of 573 as shown on accompanying sketch.

The following sketch will aid in understanding our findings of fact:

The points “a” and “b” are the places on the ground to which Ghalk actually arrived, whatever be the correct number of said leagues. From the point “b” Chalk: ran north 5,050 vrs., and from thence in a S.. E'., direction, apparently following the meanders of Oat Eish creek, to a large stone on a knoll, which he called the N. W. corner of survey No. 19, a point well identified, hut which in fact is the bearing for the N. W. corner of 19, and is 269 vrs. N., 45 E., or 190 vrs. east and 190 vrs. north of said corner. The total of Chalk’s southings is 8,839 vrs., and of his eastings is 34,290 vrs., which is the same as if he had run south from the point “b” 5,050 vrs. to point Y, and thence east 34,290 vrs. to the point “c” on the foregoing sketch.

From this it is apparent that the land subject to the Thompson locations, if Chalk made no mistake as to his eastings, and the league lines were 5,000 vrs., as called for in their field notes, was 34,290 vrs., less the distance across the two leagues not abandoned, 10,000=24,290 vrs.

The corrected field notes of the Thompson surveys show that, beginning at the N. W. corner of No. 19, they extend west an aggregate distance of exactly 24,290 vrs. The western boundary of the Thompson surveys calls to reach and run to the eastern boundaries of leagues 676, 677, 610, and 615, which their distance would have reached, as above indicated, had there been no error in the Munson map of said leagues, but which in fact are leagues Nos. 576, 578, 609, and 616, as shown on the foregoing sketch.

It is the contention of the state and the appellee Pinckney, who claims, as a purchaser from the state, a part of the alleged vacancy, that the calls in the field notes of the most westerly of the Thompson survey, viz. sections 13, 14, and 15, in block T-3, and 10, 15, 50, and 51, in block T-2, and 4 in T-l, for the eastern lines of leagues 576, 577, 610, and 615, should be construed to be calls for the original eastern lines of 575, 57S, 609, and 616, and that this is the controlling call in said field notes.

If this be conceded, as the north and south lines of the last-mentioned leagues were subsequently moved west 347 vrs., as shown by their corrected field notes and patents, a vacancy of that width was left between the western lines of the Thompson surveys and the eastern lines of the leagues. This is the theory upon which the state recovered in this suit.

The theory of the appellants is that the Thompson surveys must begin' at the N. W. corner of No. 19, as called for in their field notes, and run from thence west an aggregate distance of 24,290 vrs. for their western boundary, and, as the point to which Ohalk ran in order to get his eastings of 34,290 vrs. was 190 vrs. east of the N. W. comer of survey 19, this run would place the Thompson surveys 190 vrs. in conflict with the league surveys, if there was no excess in same. But inasmuch as the uncontradicted evidence shows that there was an excess of 156 vrs. in the lines of said leagues running east and west as originally surveyed, the con"flict with said leagues is 190, plus 156, equals 246 vrs.; that the league surveys were corrected so as to move them off of this conflict, leaving the same not vacant, but belonging to the Thompson surveys as the same were patented.

The corrected field notes and the patents of leagues 575, 578, 609, and 616 show their north and south boundary lines to be 4,653 vrs., instead of 5,000, as called for in their original field notes. In other words, the eastern lines of said leagues were by their corrected field notes moved west 347 vrs.

Opinion.

It has been said that where there are two theories with reference to the location of a boundary, each of which finds some support in the evidence, and the jury adopts one of them and rejects the other, their verdict will not be disturbed on appeal. This is a convenient method whereby an appellate court may avoid the labor of investigating ' a voluminous and complicated statement of facts and the responsibility of making the proper deduction therefrom. It is true that jurors are the judges of the credibility of witnesses and the weight to be given to their testimony, and it is seldom that an appellate court is justified in. disturbing their findings of fact. But when there is no contradiction in the testimony, as in the instant case, and the verdict of the jury is simply their deduction from the facts proven, which in boundary cases often consists of numerous field notes and maps, we are not irnpressed with the sacredness of such verdict.

In the statement of facts ini the instant case there are 25 sets of field notes; 13 patents, introduced, not for the purpose of showing title, which was not in dispute, except as to boundary, but to show such boundary; 11 maps; and 8 file wrappers from the land office, with numerous indorsements thereon, besides the Ohalk connecting run. It is no reflection upon the intelligence of the average jury to say that their deduction from the mass of testimony of this character is not necessarily entitled to much weight. Nor is it any assumption of superior ability to say that a court with such testimony before it, in' writing, and ample time to examine the same, is in a better condition to make a proper deduction from such testimony than is a jury, especially as the members of appellate courts, both as practitioners at the bar and members of the court, must necessarily have had more or less experience in such cases, whereas the jurors have probably had no such previous experience.

Ordinarily, a trial court is not in position to render a jury any material assistance in a boundary suit without violating .the rule that the charge must not be upon the weight of the evidence. Courts have laid down some general rules with reference to the compara- ■ tive dignity of calls which, as general rules, are founded oni reason. But in the very cases in which these rules have been announced the courts have said, and properly' so, that these rules might have no application in a particular case, but that the circumstances may show that the call of the lowest order should control those of the highest order. We have stated our views with reference to these rules, the reasons upon which they are founded, and exceptions thereto, in other cases. State v. Sulflow, 60 Tex. Civ. App. 615, 128 S. W. 654; State v. Palacios, 150 S. W. 236; State v. Post, 169 S. W. 406.

The court submitted to the jury only one issue, viz.: Did Chalk, in making the resurvey of the Thompson surveys, place the west lines thereof at the original east lines of the capitol leagues 575, 578, 609, and 616? The jury answered in the affirmative.

The court instructed the jury that, “in the absence of evidence to the contrary, it is presumed that Ohalk, in making his resurvey, actually surveyed on the ground all of the lines called for, and ran to all of the artificial objects or lines called for in his field notes for said resurveys of said sections,” and also instructed them that “the original east lines of capitol leagues 575, 578, 609, and 616 were marked lines, and were artificial objects.”

Under the facts of this case, such charge was not only arguméntative and upon the weight of the evidence, but was, in effect, a peremptory instruction to find for appellees. There is no assignment of error as to this charge, but it is here referred to as accounting for the verdict of the jury, which we do not think is sustained by the evidence.

We do not think it material, under the facts as disclosed by the record, whether Chalk actually ran the lines of the Thompson sections or whether the same were office surveys. If they were office surveys, he had ascertained by actual measurement from the point “b,” up to and down Cat Fish creek, to the point “c,” on the sketch shown in our statement of facts, that the distance from the east line of the capitol sections to the point “c” was, according, to his measurement, 24,290 vrs. The space which his surveys called for aggregated this distance, which shows that he intended the distance to control, and that he called for the east lines of the leagues upon the supposition that such distance would reach said lines at point X on above sketch.

On the other hand, if he actually ran out said surveys, we think his calls for the east lines of the surveys were made on the supposition that he had reached the same; but, in fact, he did not know where said lines were. A call made upon conjecture will not control a call for course and distance. Huff v. Crawford, 89 Tex. 214, 34 S. W. 606; Hamilton v. State, 152 S. W. 1117; Ry. Co. v. Thompson, 65 Tex. 192; Sellman v. Sellman, 73 S. W. 48.

The call for a marked line will ordinarily control the call for course and distance; for the reason that, it being a visible object, the presumption is that the surveyor made no mistake when he said he ran to the same, though the distance called for may indicate the contrary. Courts have said, in some cases, that the call for an open prairie line may he given the same weight as a call for a marked line, upon the supposition that, inasmuch as such line could easily have been ascertained by running it out from a near-by known corner, it ought to be presumed that the surveyor, in calling for the same, had ascertained its true location.

But in the instant case the league surveys are all located on a treeless plane. The surveyor who located them was required to mark two corners of each by 4 pits dug in the ground, 2 feet square and i foot deep. It is shown that such pits can now he found on the eastern boundary of the league, one at the S. E. corner of league 575 and the N. E. corner of 578, and the other at the. S. E. corner of 609 and the N. E. corner of 615. If Chalk began at the N. AY. comer of survey 19, and ran west 24,290 vrs., on account of the fact that the point “c” is 190 vrs. east of survey 19, and the excess in the two league lines lying east of the point “b” is 156 vrs., instead of being on the east boundary of said leagues, he was 346 vrs. west of the point X instead of at said point. If, as a careful surveyor, he instituted search for the east corners of the leagues, as they would not have been in the vicinity of where his measurement had led him to believe they were located, there is no such presumption, as a matter of law, that he found them as to give to his call for such line the same force as the call for a marked line, and the presumption of fact that he found said line is certainly not stronger than the presumption of fact that he actually ran the distance called for in his field notes.

After the Thompson resurveys were made, calling, as they did, for the eastern lines of the capitol leagues, the field notes of leagues 575, 578, 609, and 616 were corrected, for the reason, as appears on the wrappers of the files in the land office, that they were in conflict with the Thompson surveys. To remove such conflict, the eastern lines of these leagues were moved west- 347 vrs., just the distance, plus 1 vara, that the 190 vrs. at the point “c” and the 156 vrs. excess in these leagues surveys indicate such conflict to have been. These league surveys were patented on these corrected field notes.

The facts in this case have not been fully developed. There is no dispute as to the location of the eastern lines of the leagues, either as originally located or as at present located. A survey of the Thompson sections would have disclosed, allowing them their distance west, where their western lines are located, and this would have settled the controversy in this suit.

In making the survey suggested, a question may arise as to whether it should begin at the N. AY. corner of No. 19 or 190 vrs. east and 190 vrs. north of said corner. This may or may not be determined by the calls for natural or artificial objects, if any, in the Thompson field notes. None of the Thompson field notes, from 1 to 9, inclusive, were read in evidence, except No. 1; it being agreed that the other surveys were 1,900 vrs. square. No. 1 calls to run “west 1,800 vrs. cross McKenzie’s trail at 1,900 vrs., buffalo head for corner, 31 vrs. north of McKenzie trail.” Of course, the buffalo head cannot now be found. AYe do not know whether or not the McKenzie trail can be located. As stated, we do not know wliat, if any, natural or artificial objects are called for in the field notes of the other Thompson surveys. If so, and they can be identified, they may control the calls for course and distance.

Assignments presenting other questions are overruled.

For the reason that the verdict of the jury is pot supported by the evidence, judgment herein is reversed, and this cause is remanded for further trial.

Reversed and remanded.
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