author: MONTGOMERY, P. J.

text:
    McKENZIE et al. v. WITHERS et al.
    (No. 2543.)
    (Commission of Appeals of Texas, Section B.
    Nov. 13, 1918.)
    1. Appeal and Error i&wkey;80(l) — Matter Ap-pealable — J TJD GMENTS.
    A judgment dissolving a temporary injunction, restraining execution and awarding fixed sum to defendant in injunction upon a plea of reeonvention, constitutes a final appealable judgment denying plaintiff in injunction all relief and giving defendant a judgment against plaintiff and his sureties on the cross-action.
    2. Judgment. <&wkey;713(l) — Construction — Scope.
    In respect to its operation upon the subject-matter, a judgment is to be understood as determining whatever follows by necessary implications from its terms, although not specified, and as disposing of all issues raised, unless questions are reserved or leave given to take further proceedings.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by William Linden against Mrs. V. E. Withers and H. C. Cantrell to restrain an execution sale. An order was made dissolving a temporary injunction, and writ of error brought by J. M. McKenzie and another, sureties on the injunction bond, was dismissed by the Court of Civil Appeals (152 S. W. 658; 153 S. W. 413), whereupon sureties bring error.
    Reversed and remanded, in accordance with the recommendation of the Commission of Appeals.
    See, also, 206 S. W. 503.
    Goree & Turner, of Et. Worth, for plaintiffs in error.
    Jas. C. Scott, of Ft. Worth, for defendants in error.
   Synopsis of the Case.

MONTGOMERY, P. J.

This suit was brought in the district court of Tarrant county, Tex., by William Linden against the defendants in error, Mrs. Y. E. Withers and H. C. Cantrell, a constable of Tarrant county, Tex., to restrain by injunction the sale under execution of certain land belonging to said Linden and the enforcement of the judgment in favor of Mrs. Y. P. Withers against him, on which the execution was issued. The judgment was rendered in a justice court of Tarrant county, and a copy of the judgment urns made an exhibit to the petition for injunction, from which it axipears that said judgment was rendered January 25, 1910, in the justice court of Tarrant county, Tex., in favor of one Craig against the said Linden and Withers, jointly and severally for $85.70. and judgment was also rendered in favor of Mrs. V. P. Withers against the said Linden, her codefendant, for the sum of $85.70, interest, and. cost. The petition for injunction alleges that the judgment in favor of Mrs. Withers was rendered against the said linden without notice of any kind and that he did not learn of said judgment in time to prosecute an appeal or take the same to the county court by certiorari.

The Court of Civil Appeals, in the opinion in this case, found that the ¿negations, if true, stated a good cause of action.

The plaintiff’s petition was presented to one of the district judges of Tarrant county, Tex., and temporary injunction granted, and the writ, after execution of bond, as provided in the order, was duly issued. J. M. McKenzie and E. W. McKenzie were the sureties on the bond.

The defendant, Mrs. Y. P. Withers, in the district court, answered by a motion to dissolve the injunction, and also by an answer under oath denying all the equities of the bill, and further sought a judgment against the plaintiff, Linden, and X M. and E. W. McKenzie, sureties on the injunction bond, for the amount of her debt, with interest and cost of suit, and also for 10 per cent, penalty provided by statute.

In view of the disposition of the case, we think it unnecessary to make any further statement, except to set out the judgment, which was rendered in the district court of Tarrant county, Tex., and which was taken to the Court of Civil Appeals for review by writ of error. The original judgment rendered in the case, and which is now under consideration, was as follows:

“This day this cause came on to be heard, whereupon came the defendants, V. E. Withers and H. O. Cantrell, and presented their motion to dissolve the injunction heretofore granted on April 30, 1910, and the pleading being considered by the court, together with the motion, and fully understood, it is the opinion of the court that the law is for the respondents, V. P. Withers and H. C. Cantrell, and that said injunction restrained the collection of a judgment in favor of the defendant Y. P. Withers against the plaintiff, William Linden; and it is the opinion of the court that the injunction was issued restraining the collection of a judgment for the purpose of delay, and that the plaintiff, William Linden, bad executed an injunction bond, with X M. McKenzie and E. W. McKenzie as sureties thereon, and that the amount enjoined was the sum of $97.80, with 8 per cent, from April 5, 1910, together with $5.30 costs incurred in the levy of the execution; it appearing to the court that H. C. Cantrell was constable who made the levy of the execution, and is not liable in this action, and is hereby dismissed, with his costs. It is therefore ordered, adjudged, and decreed that defendant V. P. Withers do have and recover of and from William Linden, J. M. McKenzie, and B. W. McKenzie the sum of $114.19, together with 10 per cent, damages thereon, to wit, $11.41, amounting to the sum of $125.60, with 8 per cent, interest thereon from this date, and all costs in this behalf incurred, for which she may have her writs of execution.”

' From this judgment the sureties, J. M. McKenzie and E. W. McKenzie, prosecuted a writ of error to the Court of Civil Appeals.

After the writ of error had been sued out and the record filed in the Court of Civil Appeals, the district court entered a judgment nunc pro tunc for the purpose of correcting errors in the original judgment, which is set out above, and making the same conform to the judgment actually rendered by the court. Said corrected judgment reads as follows:

“William Linden v. Mrs. V. P. Withers et al.
No. 29887.
“Judgment October 4, 1911.
“This day this cause came on to be heard, whereupon came the defendants, V. P. Withers and H. C. Cantrell, and presented their motion to dissolve the injunction heretofore granted on April 30, 1910, and the pleadings being considered by the court, together with the motion and accompanying affidavits, and being fully understood, it is the opinion of the court that the law is for thé respondents, V. P. Withers and H. C. Cantrell, and that said injunction restraining the collection of the judgment described in the pleadings in favor of the defendant Y. P. Withers against the plaintiff, William Linden, should be dissolved. It is the further opinion of the court that the injunction was issued restraining the collection of said judgment for the purpose of delay, and it appearing that the plaintiff, William Linden, has herein executed an injunction bond, with J. M. McKenzie and E. W, McKenzie as sureties thereon, and that the amount of the judgment enjoined is the sum of $97.80, with 8 per cent, from April 5, 1910, together with $5.30' costs incurred in the levy of the execution, and that H. C. Cantrell is the constable who made the levy of the execution, and is not liable in this action.
“It is further ordered, adjudged, and decreed that the writ of injunction heretofore issued in this cause on the 30th day of April, 1910, be and the same is hereby dissolved, set aside, and declared to be of no further force or effect; that defendant V. P. Withers do have and recover of and from William Linden, J. M. McKenzie, and E. W. McKenzie the sum of $114.-19, together with 10 per cent, damages thereon, to wit, $11.41, amounting to the sum of $125.60, with 8 per cent, thereon from this day, and all costs in this behalf incurred, for which she may have her writs of execution. It is further ordered the said H. C. Cantrell go hence without day and recover his costs, and that the officers of this court may have execution against each party to this suit, respectively, for all costs by him or her incurred.”

The Court of Civil Appeals held that the judgment rendered in the ease was not a final judgment, but only interlocutory, and for that reason dismissed the appeal. See opinion of the Court of Civil Appeals, 152 S. W. 658.

The writ of error in this case was granted by the Supreme Court to review the action of the Court of Civil Appeals in dismissing said writ of error and refusing to consider the case on its merits.

The above, we think, is all the statement necessary to a clear understanding of the points involved in this case.

Opinion.

The question to be decided is whether the judgment rendered by the district court was final or merely interlocutory. The Court of Civil Appeals held that the judgment was not final, and that therefore no writ of error or appeal lay therefrom, and dismissed the writ of error.

It must be borne in mind that we are not concerned with the correctness of the judgment, but only as to whether or not the judgment was final and disposed of all the issues in the case, and could therefore be appealed from. This question must be governed by the rules of construction applicable to judgments.

The Court of Civil Appeals held that the judgment was interlocutory because:

“It leaves the controversy involved in the original suit for the perpetual injunction against the enforcement of the justice court judgment wholly undisposed of.”

We think the judgment, when properly construed, has the effect of denying plaintiff, Linden, all relief, and giving the defendant Withers a judgment against Linden, and J. M. McKenzie and E. W. McKenzie, his sureties, on her cross-action.

One rule for the construction of judgments, which we think correct, is thus stated:

“In respect to its operation upon the subject-matter of the action, the judgment is to be understood as including and determining whatever follows by necessary implication from its terms, although not specified in so many words, and as disposing of all the issues and controversies raised in the case, unless questions are reserved or leave given to the parties to take further proceedings, in which case the unadjudicated matters are left entirely open, except in so far as their determination in a particular way would be inconsistent with the general tenor of the original judgment.”' 23 Cyc. 1104.

It must be borne in mind that the plaintiff in the district court sought no relief except by injunction, and it will be noted that the judgment dissolves the injunction restraining the collection of the justice court judgment, and further adjudges that the injunction was sued out for the purpose of delay.

The court further rendered judgment in favor of the defendant Withers against the plaintiff and the sureties on the injunction bond for the amount of the original judgment, with interest, and for cost of suit and for a penalty of 10 per cent.

It is apparent that any judgment, which might thereafter have been rendered in the trial court in this ease, granting or perpetuating the injunction, would be entirely inconsistent with this judgment. The judgment, we think, is final and conclusive of every issue in the case.

We have not thought it necessary to discuss the various cases cited as to the proper judgment to be rendered in cases where temporary injunctions are dissolved, either upon motion, demurrer, or after answer filed denying the equities of the bill.

The case of Love v. Powell, 67 Tex. 15, 2 S. W. 456, reviews all the authorities upon this question, and lays down a rule which we accept, but the decision ip. that ease does not control the question herein involved.

In that case it was held that the plaintiff in the injunction suit, where preliminary writ has been dissolved by reason of a sworn answer denying the equities of the bill, would not be deemed to have waived his right to a trial upon the merits, because he failed to affirmatively demand it. There was nothing in the judgment in that case which indicated that the court had done anything more than to dissolve the temporary injunction and dismiss the case. This judgment while final, was held erroneous, and the case reversed for trial on the issues raised by the bill and answer.

We think that the rule there laid down has no application to this case, for the reason that in Love v. Powell the question was as to whether the court properly dismissed the case or not, while in this case the question is: Did the judgment have the effect of dismissing the case?

Construing the judgment as we do, it has the effect of denying the plaintiff all relief, and of giving the defendant Withers judgment against the plaintiff for the amount of the original judgment, interest, penalty, and cost, which judgment, if not appealed from or set aside could be enforced by execution.

It follows from the foregoing that the Court of Civil Appeals erred in dismissing the writ of error proceedings. We are of opinion that the case should be remanded to the Court of Civil Appeals, with the instructions to set aside the order dismissing said writ of error, to reinstate the case on its docket, and to dispose of the case upon the merits.

PHILLIPS, C. J. The judgment recommended by the Commission is adopted and will be entered as the judgment at the Supreme Court.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: STRONG, J.

license: Public Domain

text:
    SOUTHERN KANSAS RY. CO. OF TEXAS v. WALLACE.
    (No. 2561.)
    (Commission of Appeals of Texas, Section B.
    Nov. 13, 1918.)
    1. Carriers <&wkey;362 — Ejection of Passen-GEKS — VOLUNTARY DEPARTURE.
    If a passenger voluntarily leaves a railroad train on the advice of the conductor, upon discovery that she has forgotten her ticket, she cannot recover from the railroad company as for ejection.
    2. Trial &wkey;>204 — Instruction — Statement oe Facts.
    A party is entitled, when he requests it by correct instructions, to have facts establishing his cause of action or grounds of defense affirmatively stated by the court to the jury.
    3. Carriers <&wkey;384(2) — Ejection oe Passengers — Instructions.
    In a passenger’s action against a carrier for ejection from its train, instructions should cover the question whether the acts of the conductor were reasonable and necessary in ejecting the passenger, and whether in fact he suffered humiliation, chagrin, and mortification.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by C. H. Wallace against the Southern Kansas /Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (152 S. W. 873), and defendant brings error.
    Reversed and remanded, on recommendation of Commission of Appeals.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough and E. M. Ryburn, all of Amarillo, for plaintiff in error.
    J. L. Penry, of Et. Worth, and R. E. Underwood, of Amarillo, for defendant in error.
   STRONG, J.

C. H. Wallace, plaintiff in the trial court, brought this suit against the Southern Kansas Railway Company, as defendant, for damages on account of the alleged ejection of plaintiff’s wife from defendant’s passenger train.

The material allegations in plaintiff’s petition are that he purchased the necessary tickets to entitle his wife, two children, and a brother of his wife, about 16 years of age, to passage on defendant’s train from Amarillo, Tex., to Kansas City, Mo.; that, while assisting his wife and children on the train, he was informed by the agent of the defendant that it would be necessary to check a certain gocart; that he procured the tickets from his wife and cheeked the gocart, then boarded the train and delivered the cheek to his wife, but in the rush' incident to so doing, the train being in the act of leaving, he neglected to give her the tickets; that, when the conductor requested the tickets of his wife, she for the first time discovered that he had not returned the tickets to her; that thereupon she requested the conductor to permit her to pay the fare to Panhandle City, a station on defendant’s road, and wire back for the tickets, which request was refused,, and she and her children were ejected from defendant’s train, about three miles from Amarillo, and were required to walk back to said station in the rain and mud, causing them to become sick and suffer great humiliation, chagrin, etc.

Defendant answered by general denial and pleas of contributory negligence.

Upon the trial, plaintiff’s wife testified in substance that, when the conductor called for the tickets and she discovered that her husband had neglected to return them to her, she then offered to pay the fare to Panhandle City, and asked the conductor if she could do so, and wire back to her husband for the tickets, but that the conductor refused to permit her to do this, and ejected her and those accompanying her from the train.

The testimony of the defendant’s conductor was in substance that, after plaintiff’s wife had detailed to him the circumstances of her husband’s failure to give her the tickets, he told her he thought it would be best for her to get off and get the tickets and come out on the next train, and suggested that she could phone for a conveyance, and that, after discussing the matter, she accepted his advice, and of her own will, without compulsion on the part of defendant’s employés, left the train for the purpose of procuring her tickets; that she at no time said anything about paying the fare to Panhandle City, or any other point.

Such being the evidence, the defendant requested the following charge, which was by the court refused:

“If you find and believe from the evidence that defendant’s conductor, G. P. Hamblin, did not compel plaintiff’s wife and acompanying children to alight from the train, but that said conductor advised or suggested to plaintiff’s wife that it would be better for her to get off the train and return for her tickets, and, continue her journey on the next train, and further find that such advice or suggestion was acquiesced in and accepted by Mrs. Wallace, and that she and the persons accompanying her voluntarily left said train without any compulsion on the part of defendant’s conductor, and further find that said conductor exercised ordinary care in the treatment of plaintiff’s wife, and in assisting her off of said train, and in furnishing her a suitable place at which to alight from said train, then you are instructed to return a verdict for defendant.”

The defendant in error contends that this issue was sufficiently presented by the court’s main charge.

The court’s charge presents the plaintiff’s theory of the case in an affirmative manner, but does not undertake to give the defendant an affirmative instruction on the issue covered by the requested charge.

We think, under the evidence, the requested charge should have been given. If plaintiff’s wife and those accompanying her voluntarily left the train under the circumstances stated in the charge requested, he would not be entitled to recover. There was a sharp conflict in the testimony on this point, and defendant had the right, upon proper request, to have the law affirmatively stated to the jury in its application to the facts under which it would be entitled to a verdict. This right was not impaired by the fact that the .same matter had been negatively presented in the main charge of the court.

The rule of practice is well established that a party is entitled, when he requests it by correct instructions, to have the facts establishing his cause of action or grounds of defense affirmatively stated by the court to the jury. Traction Co. v. Evans, 108 Tex. 356, 193 S. W. 1067; Railway Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Railway Co. v. Kiersey, 98 Tex. 596, 86 S. W. 744; Railway Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Railway Co. v. Casseday, 92 Tex. 525, 50 S. W. 125; Railway Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058.

This is true, whether the defense arises under the general denial or a special plea. Railway Co. v. Johnson, supra.

Plaintiff in error contends that the court erred in paragraph 6 of his charge, because said paragraph permits plaintiff to recover on account of the acts and conduct of the conductor, if said acts and conduct were of such character as to produce a sense of humiliation, chagrin, and mortification in the mind of plaintiff’s wife, without regard to whether such' effect was in fact produced, and because said charge permits plaintiff to recover, without regard to wheth-er such acts and conduct of the conductor were reasonably necessary in ejecting plaintiff’s wife from the train, if she was ejected. As the ease is to be reversed for failure to give the above requested charge, we suggest that upon another trial the charge be ■so framed as to meet these objections.

It is unnecessary to pass upon the other assignments, as the matters complained of may not arise upon another trial.

We are of the opinion that, for the error pointed out, the ease should be reversed and remanded for another trial.

PHILLIPS, O. J. The judgment recommended by the Commission is adopted and will be entered as the judgment of the Supreme Court. The special charge referred to in the opinion should have been given.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SHERK v. FIRST NAT. BANK OF HEREFORD et al.
    (No. 2560.)
    (Commission of Appeals of Texas, Section B.
    Nov. 20, 1918.)
    1. Partnership <&wkey;179 — Interest of Partners— Specific Property.
    A partner has no specific interest in any particular chattel or part of the firm property, but only in the proper proportion of the surplus of the whole after payment of debts, including amounts due the other partners.
    2. Partnership t&wkey;183(6) — Sale op Share op Partner — Title op Purchaser.
    The assignee or mortgagee of the interest of one partner takes subject to all partnership debts and liabilities, since he can obtain no greater right than the assignor or .mortgagor had.
    8. Partnership @=>183(6) — Sale -of Share op Partner — Title op Purchaser.
    Where a partnership purchased land with money advanced by plaintiff partner, who paid partnership notes and debts, and the other partner conveyed all his interest to plaintiff, after giving, while the partnership was insolvent, a deed of his interest to a third person as trustee for a hank, which was his individual creditor, the trustee had no rights superior to those of plaintiff.
    4. Partnership <&wkey;264 — Dissolution—Sale by One Partner to1 Other.
    A sale by one partner to another has the effect of dissolving partnership, since it destroys the community of interest.
    5. Partnership <&wkey;183(6) — Payment op Debts — Rights of Partner.
    Where partnership purchased land with money advanced by plaintiff partner, who paid partnership notes and debts, and the other partner conveyed all his interest to plaintiff, after giving, while the partnership was insolvent, a deed of his interest to a'third person as trustee for a bank, which was his individual creditor, the bank had merely a right to subject any surplus remaining after payment of partnership debts, including the debt to plaintiff, who did not waive his rights by accepting the deed.
    6. Partnership <&wkey;183(6) — Application op Assets — Individual Debts.
    The fact that the trust deed by one partner to a third person in payment of his individual debts was recorded did not have the effect, when the other partner accepted a deed to the same interest, of a waiver of his rights to have the partnership assets applied to the payment of partnership debts.
    Error to Court of Civil Appeals of Seventh. Supreme Judicial District.
    Action by A. L. Sherk against the First National Bank of Hereford and J. L. Fuqua. From a judgment of the Court of Civil Appeals (152 S. W. 832), affirming judgment that plaintiff take nothing, and decreeing foreclosure prayed by the defendant bank, plaintiff brings error.
    Reversed in part, and in part affirmed, as recommended by the Commission of Appeals.
    G. W. Barcus, of Waco, for plaintiff in error.
    Carl Gilliland, of Hereford, for 'defendant in error.
   Statement of the Case.

MONTGOMERY, P. J.

A. L. Sherk, plaintiff in error, sued the First National Bank of Hereford and J. L. Fuqua.

The plaintiff’s petition was in two counts; the 'first in ordinary form of trespass to try title, to recover lots 13, 14, and 15, in block 10, of the town of Hereford. In the second count the plaintiff, Sherk, alleged substantially the following facts:

That in the year 1908 plaintiff and one Stenek, entered into a partnership agreement under the firm name of Sherk' & Stenek for the purpose of conducting a livery, feed, and sales stable; it being agreed that each was to furnish one-half the necessary capital. That they purchased the lots in controversy and barn situated thereon for use in said business (the lots were conveyed to A. L. Sherk and James Stenek). That the lots were purchased from J. F. Easterwood; the price being $6,000, of which $1,500 was paid in cash, by plaintiff, Sherk, and a vendor’s lien note being dated September 9, 1908, due six months after date, and plaintiff al-. leged that he thereafter paid the note in full out of his separate means. That the firm borrowed from the First State Bank & Trust Company of Hereford $7,575.80, for which they executed their joint notes, which note matured September 15, 1909. That plaintiff paid, prior to bringing the suit, $2,500 on the note out of his own funds, and has agreed to pay 'the balance, and that Stenek had paid nothing, and had been released from liability thereon. That plaintiff placed on said lots improvements of the value of $1,-000, and paid therefor out of his own funds. That on March 21, 1910, in consideration of plaintiffs having paid the several sums of money above alleged, for and on account of said partnership, James Stenek, his partner, conveyed to plaintiff by warranty deed .all said Stenek’s interest in the property in controversy, and that the consideration was the reasonable value of such interest.

Plaintiff further alleged that prior to said conveyance, and on February 19,1910, Stenek executed a deed of trust on said lots to J. It. Fuqua as trustee to secure the First National Bank of Hereford in payment of certain notes executed by said Stenek and by said Stenek and N. E. [Rood, and that said secured debt was the individual debt of said Stenek, and that neither plaintiff nor Sherk & Stenek were in any way interested therein ; that when the trust deed was given the firm of Sherk & Stenek was insolvent.

The plaintiff prayed that he be quieted in the title to said property as against said deed of trust, and prayed in the alternative “that he have judgment fixing a partner’s lien in his favor on Stenek’s interest in said property, and declaring his a prior lien to any of the defendants to secure him in the payment of the sum of $7,287.90, together with all interest due thereon, to any that the defendants may have, and for a foreclosure of said lien,” and for general relief.

The defendant bank and Fuqua, after a general denial, alleged title in themselves to the lots, and prayed for judgment for title and possession.

The defendants further alleged that Stenek was the owner on February 2, 1910, of an undivided one-half interest in the lots in controversy, and that at said time he executed the deed of trust on said interest, and also on survey 248, block No. 6, Castro county, Tex., to secure the payment of certain notes (fully described) executed by said Stenek and one Rood, and asked for a foreclosure.

The case was tried by a jury and the court gave a peremptory charge to find for the defendants a foreclosure of their deed of trust lien for the amount claimed, $4,739.75.

Judgment was accordingly entered that plaintiff take nothing and that defendant bank have its foreclosure, etc.

The Court of Civil Appeals affirmed this judgment, 152 S. W. 832. The facts are set out in the original opinion and the opinion on rehearing of the Court of Civil Appeals. From these and from the record We find that all the material facts alleged in the petition were either admitted or proven without contradiction, except the allegation that the $4,-500 note, executed to Easterwood as part of the purchase money for the lots, was paid by plaintiff. The facts disclose that Stenek, acting for the firm, borrowed the amount oi this note and interest from a bank, giving the firm’s note, and with the money thus borrowed paid the Easterwood note, and that the plaintiff afterwards, out of his own funds, paid the note given the bank. The evidence further showed that a part of the $2,500 paid on the note to the First State Bank & Trust Company was paid out of partnership funds.

The Court of Civil Appeals finds that the firm of Sherk & Stenek, at the time of the execution of the deed of trust and at the time of the trial, was insolvent. The lots in controversy seem to have been treated by the Court of Civil Appeals as partnership property, and we think the evidence conclusively shows that fact. The undisputed evidence shows that Sherk did not in fact know of the deed of .trust to Fuqua as trustee to secure the debt of the First National Bank until after he obtained the deed from Stenek, although the deed of trust was filed for record and duly recorded soon after its execution. The evidence showed the 'execution and delivery of the deed of trust to Fuqua as trustee to secure the bank in the payment of notes due it by Stenek and Rood as alleged by it.

Opinion.

To recapitulate briefly the essential facts: Sherk and Stenek were partners. Sherk advanced to the firm practically all the capital employed, although the partnership contract contemplated they should furnish the capital in equal portions. The partnership was indebted to various creditors, as well as to Sherk for advancements made to the partnership.

After the partnership became insolvent, Stenek, one of the partners, without the knowledge or consent of Sherk, mortgaged one-half interest in the real estate of the partnership to secure the payment of his individuals debts, and the same was duly recorded. About one month after the execution and recording of said mortgage, Stenek conveyed to his partner, Sherk, who had no actual knowledge of said mortgage, all his interest in the partnership property, and in addition included in the deed a section of land which Stenek owned individually; said land, however, being heavily incumbered.) This conveyance recited as a consideration that certain advancements had been made by Sherk to the firm by furnishing funds and the payment of partnership debts, and further that Sherk agreed to pay certain partnership debts still unpaid, and further that Sherk assumed the debts against the section of land conveyed.

There was no reservation of an express lien. The controlling question in the case is whether the First National Bank, defendant in error, had a lien upon the partnership property included in the mortgage which was superior to the rights of plaintiff in error, Sherk. The lower court and Court of Civil Appeals both held that the mortgage to the hank was superior to the rights of Sherk, and foreclosed the mortgage against him.

We must first determine exactly what right, if any, the bank acquired by virtue of the mortgage. It is well settled that a—

“partner has no specific interest in any particular chattel or part of the property of the firm. His only interest is in a proper proportion of the surplus of the whole after payments of debts, including the amounts due the other partners.” Bates on Partnerships, § 180; Oliphant v. Markham, 79 Tex. 550, 15 S. W. 569, 23 Am. St. Rep. 363; Moore v. Steele, 67 Tex. 435, 3 S. W. 448.

It follows from the foregoing that, as the' share of a partner is merely a right to a proper proportion of the surplus after payment of partnership debts and adjustment of balances, the assignee or mortgagee of the interest of one partner takes subject to all debts and liabilities, for he can get no greater right in the property than the assignor or mortgagor had. Bates on Partnership, § 183; Oliphant v. Markham, 79 Tex. 551, 15 S. W. 569, 23 Am. St. Rep. 363; Moore v. Steele, 67 Tex. 435, 3 S. W. 448; Parsons on Partnership (4th Ed.) § 178.

From, the foregoing it is apparent that the bank, by virtue of the deed of trust in this cause, got no more than a right to have that portion of the surplus, if any, remaining of the partnership assets, after the payment of debts and adjustment of accounts between the partners, which Stenek would have been entitled to, had no mortgage been given. The record shows that the partnership of Sherk & Stenek was insolvent when the deed of trust was given, and also at the date of the deed from Stenek to Sherk. The bank then had no lien or claim on the property, or even on any surplus, as it is apparent there could be no surplus to which its lien could attach. Parsons on Partnership, § 178.

The decision of the Court of Civil Appeals rests upon the proposition that, when Stenek conveyed his interest in the firm property to Sherk, thereby the partnership was dissolved, and any lien which Sherk may have had by virtue of the partnership was extinguished.

It is true that a sale by one partner to another has the effect of dissolving the partnership. It destroys the community of interest and thereafter there is no partnership. The partnership property thereafter is the individual property of the purchasing partner, and so far as creditors of the partnership are concerned they have thereafter no claim upon the former partnership assets superior to the claims of the individual creditors of the purchasing partner, and the assets may be applied to the individual debts of the purchasing partner, even in preference to the partnership debts, provided, of course, there is no fraud. The cases cited by the Court of Civil Appeals abundantly sustain this proposition, but none of them hold that a partner, purchasing the interest of his co-partner, thereby releases any right in the firm’s property which he theretofore had in favor of a creditor of the selling partner. The case of Wiggins v. Blackshear, 26 S. W. 939, was a case in which all the members of the partnership mortgaged partnership property to secure their individual debts, and the court held that this mortgage was superior to the claims of the partnership creditors. This case is, however, no authority for the proposition that one member of an insolvent firm can execute a valid and enforceable mortgage to secure his individual debt on his interest in the property of an insolvent partnership.

The syllabus in Case v. Beauregard, 99 U. S. 119, 25 L. Ed. 370, fairly states the proposition decided, as follows:

“A member of a firm assigned and transferred in good faith his interest in the partnership property in payment of a just debt for which he was solely liable. The creditor took possession of it and sold it to A., who, by an act of sale, in which the other member of the firm united, transferred it for a valuable consideration to B. The firm and the members of it were insolvent. C., claiming to be a simple contract creditor of the firm, then filed his bill to subject the property to the payment of his debt. Held, that C. had no specific lien on the property, and, there being no trust which a court of equity can enforce, the bill cannot be sustained.”

It will.be noted that all of the partners had parted with their interest in the property, and therefore had no interest or equity therein, at the time the partnership creditor brought his suit to subject it to his debt.

The reason for the decision in the case is shown by the following quotation from the opinion:

“No doubt the effects of a partnership belong to it so long as it continues in existence, and not to the individuals who compose it. The right of each partner extends only to a share of what may remain after payment of the debts of the firm and the settlement of its accounts.
“Growing out of this right, or rather included in it, is the right to have the partnership property applied to the payment of the partnership debts in preference to those of any individual partner. This is an equity the partners have as between themselves, and in certain circumstances it inures to the benefit of the creditors of the firm. The latter are said to have a privilege or preference, sometimes loosely denominated a lien, to have the debts due to them paid out of the assets of a firm in course of liquidation to the exclusion of the creditors of its several members. It is practically a subrogation to the equity of the individual partner, to be made effective only through him. Hence, if he is not in a condition to enforce it, the creditors of the firm cannot.”

All the other cases cited by the Court of Civil Appeals are controlled by the rule as stated above.

In this case the bank was a creditor, not of the firm, but of Stenek, one of the partners. The mortgage, at most, only gave the bank the right to share in the surplus,, if any, remaining after payment of all firm debts and settlement of partnership accounts. It got no lien on the specific property, and a sale by it under the deed of trust would have passed no title against the firm.

The sale by Stenek to Sherk did not have the effect of creating a lien in favor of the bank on the specific property. It left the rights of the bank unaffected. The bank, after the sale, still had the right to subject the surplus, if any, of the partnership effects, to the payment of its debt. By accepting the deed Sherk did not waive his right as a partner to see that the property was applied to the payment of partnership debts; the very purpose of the conveyance was to vest the title in him free from any claim of Stenek and his creditors, and the consideration was the payment by Sherk of partnership debts and the satisfaction of debts due Sherk by the partnership.

“A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.” 40 Cyc. p. 252.
“A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right or of his intention to rely on that right.” 40 Cyc. 259.

The undisputed testimony of Sherk is that he knew nothing of the deed of trust to the bank until after he obtained the deed from Stenek. The fact that the deed of trust was recorded does not charge him with such knowledge as can be the basis of a waiver. 'The deed itself shows that there was no intention to waive his rights, but rather to protect and preserve them.

If the matter is treated as if Sherk had a first lien on the partnership property and the bank a second, which almost expresses the facts, then the taking of the deed by Sherk would not have the effect of merging his lien In the fee title, so as to let in a second lien; but a court of equity would preserve and enforce his lien, as against the second lien of the bank. Under no view of the case was the bank entitled to the foreclosure on the partnership property. As to the section of land, the individual property of Stenek, the foreclosure was authorized.

IVe think the judgment of both the Court ■of Civil Appeals and the district court should •be reversed, in so far as the First National Bank of Hereford was granted a foreclosure on lots 13, 14, and 15, of block 10, of the town of Hereford, in Deaf Smith county, and judgment here rendered that plaintiff, A. D. Sherk, recover the title and possession thereof as against said bank and the defendant J. D. Fuqua, and that the judgment, in so far •as it foreclosed the lien of the said bank in survey lío. 248, block No. 6, in Castro county, should be affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission is approved and will be entered as the judgment of the Supreme Court.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MORTIMER v. JACKSON.
    (No. 2568.)
    (Commission of Appeals of Texas, Section B.
    Nov. 20, 1918.)
    1. Evidence <&wkey;343(2) — Admissibility—Ab-stbacts.
    Abstracts furnished under Rev. St. art. 7743, are admissible in trespass to try title to show common source.
    2. Trespass to Try Title <&wkey;ll — Title op Plaintiff.
    Where defendant’s grantor, engaged to marry a woman who had two children by former marriage, bought land, the title to which was taken in her name, in trust for him, pending his divorce, and after marriage; he conveyed to plaintiff, and on his wife’s death her mother assumed to convey to defendant, defendant had no title from the common source since the two children survived; but plaintiff had equitable title, at least, from the common source, entitling her to recover.
    3. Trespass to Try Title &wkey;>l&wkey;RiOHT to Possession.
    Where the grantor of plaintiff in trespass to try title had possession by a tenant prior to the entry of defendant, plaintiff’s possession was sufficient to support a judgment as against defendant who was a mere trespasser.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Dora Jackson against Paul Mortimer, Jr. - To review a judgment in the Court of Civil Appeals (155 S. W. 341), affirming a judgment for plaintiff, defendant brings error.
    Affirmed, as recommended by the Commission of Apipeals.
    E. H. Powell and Geo. Powell, both of San Antonio, for plaintiff in error.
    C. M. Chambers, of San Antonio, for defendant in error.
   Statement of the Case.

MONTGOMERY, P. J.

Suit by Dora Jackson against Paul Mortimer, Jr., in trespass to try title to recover lot 2, block 8, in the city of San Antonio, Bexar county, Tex.

Defendant, Mortimer, answered by general demurrer, general denial, and lilea of not guilty.

Trial by jury. After the evidence was concluded, the court gave a peremptory charge to find for plaintiff. Judgment in accordance with verdict. Mortimer appealed, and the judgment was affirmed by the Court of Civil Appeals, Fourth District. 155 S. W. 341.

The plaintiff,' Dora Jackson, offered the following chain of title:

(1) Warranty deed from Charles Nunn to Rhoda Harris, dated February 17, 1892.

(2) Warranty deed from Rhoda Harris to George R. Stumberg, dated April 4, 1895.

(3) Warranty deed from George R. Stum-berg, Jr., to Mrs. Diana Singleton, dated April 29, 1901. This deed recites a cash consideration of $75 and reserves a vendor’s lien to secure a vendor’s lien note for $125, due on or before two years after date.

(4) A release of the vendor’s lien retained in the dee'd from George R. Stumberg, Jr., to Mrs. Diana Singleton, dated February 26, 1003, executed by George R. Stumberg, Jr., to Diana Singleton, reciting the payment of the note.

(5) Warranty deed from Martin Milholland to Dora Jackson, dated January 22, 1910.

All said instruments properly described the property in controversy and were duly acknowledged and recorded. The plaintiff also showed by certified copy of marriage license and return that Martin Milholland and Diana Singleton were married on March 5, 1902.

George R. Stumberg, Jr., testified in substance:

That he executed the deed to Diana Singleton, and that the contract of purchase was made with him by Milholland, and that at the time he gave the deed both Milholland and Diana Singleton were present, and that on that occasion Milholland, in presence of Diana Singleton, made the following statement: “I have got a divorce pending now in the court, and I want to buy this piece of property, and I want to buy it now; but I will tell you, George, I want 3'ou to deed the property to Diana, but I will make all the payments, the property shall be mine, and I want you to get Diana’s verbal agreement here she will give me back a deed to this property when the divorce suit is finally settled.” That Diana Singleton agreed to this, and the deed was made to Diana Singleton.

He further testified that Milholland made every payment for the lot. The deed to Diana Singleton was made while she was a widow, but the note was paid off after her marriage to Milholland.

Plaintiff proved the execution of, and offered in evidence, a written instrument, dated February 27, 1903, and signed “Diana Holland,” who was proved to be the same person formerly known as Diana Singleton, as follows:

“This certifies that Martin Holland has paid out of his own separate estate all the consideration price' for lot 2, block 8, on Virginia street, in San Antonio, Texas, bought from George R. Stumberg, Jr., said consideration price, amounting to $260 and interest, and deed should therefore have been in his name. This instrument is given to evidence that fact and that he has as his separate estate such claim.”

Martin Milholland, the evidence shows, was also known as “Martin Holland.” Martin Milholland also testified by deposition that he paid all the purchase money for said lots, and he produced the written statement of “Diana Holland” above set out. The proof showed that Diana Milholland was dead, and that she left surviving her two children, the fruit of a marriage prior to her marriage to Milholland.

The proof showed that the lot in controversy had an old dilapidated house- on it, which Milholland testified was not occupied by him, but which “we (meaning evidently himself and wife) had rented out.”

The defendant, Mortimer, introduced a deed from Mary Williams to Paul Mortimer, Jr., dated August 4, 1909, and duly acknowledged and recorded, conveying the lot in controversy. He also introduced the deed from George R. Stumberg, Jr., to Diana Singleton, being the same deed introduced by plaintiff. The defendant, Mortimer, testified that he bought the lot from Mary.Williams, and that she had possession of it when he bought it, and that, since buying it, he had rented it “off and on”; it being vacant a good part of the time.

Mary Williams testified that Diana Singleton, who married Milholland, was her daughter, and was dead; that she left two children, the issue of a marriage to one Whitehead. This witness further testified that her •daughter had the money to buy the lot before she married Milholland; that she got some money from the city on account of a personal injury; that she let her daughter have $5 and her daughter told her what she was going to do with it; that Diana got Milhol-land to buy the lot, and borrowed $5 from her to pay for it; that she did not know who paid for it; that Diana told her she gave Milholland the last money; that she did not see her give him the money; that she had all the money, except $5, and came to her for that. This witness testified she knew nothing about her signing a note; that she saw Diana give Milholland part of the money — saw her give him $4 or $5 two or three times. This witness further along testified that she did not know who bought the lot, but that Milholland put the lot in Diana’s name. The testimony of this witness was uncertain and contradictory, and it is impossible to get a clear idea from her testimony.

It was agreed that both plaintiff and defendant filed abstract of title from the sovereignty of the soil, and said abstracts were the same, except the memorandum made before Jas. Ryan. (This refers to the acknowledgment in writing by Diana Singleton of Milholland’s having paid for the property.)

Opinion.

The sole question in this case is whether the district court was authorized under the facts to give a peremptory charge to the jury to find a verdict for the plaintiff. If the evidence properly admitted authorized the giving of the peremptory charge, then the judgment of the Court of Civil Appeals, affirming the judgment, should be here affirmed. As we view this case, the evidence fails to show a title from the sovereignty of the soil, but does show that George R. Stumberg, Jr., is the common source of title.

The plaintiff, Dora Jackson, claimed title from George R. Stumberg, Jr., through the deed to Diana Singleton and the deed from Martin Milholland, and claimed that Milholland, having paid the purchase money under the agreement shown in the statement of the case, had the equitable title to the lot, and that this title passed to her by the conveyance from Milholland. The defendant, Mortimer, claimed title through the deed from George R. Stumberg, Jr., to Diana Singleton, and through the deed from Mary Williams, the mother of Diana Singleton, made after the death of Diana Singleton. In other words, his claim was based on the deed to Diana Singleton, and the alleged descent of the property to Mary Williams, her mother, and the deed from Mary Williams. This claim from the common source is shown by the introduction by defendant of the deed from Geo. R. Stumberg, Jr. It is well settled that abstracts furnished under article 7743, R. S., are admissible to show common source. Wichita Hand & Cattle Co. v. Ward, 1 Tex. Civ. App. 307, 21 S. W. 128; Gonzales v. Batts, 20 Tex. Civ. App. 421, 50 S. W. 403.

It is apparent that the defendant, Mortimer, had no title from the common source, as Diana Jackson left surviving her two children, who inherited whatever property she owned at the time of her death.

If the plaintiff, Dora Jackson, had either a legal or equitable title from the common source, she was entitled to recover.

After a careful consideration of the entire record, we think that the evidence conclusively shows that, when the conveyance was made to Diana Singleton, she agreed to hold the title in trust for Milholland, and that Milholland paid all, or practically all, of the purchase money to George R. Stumberg, Jr., and that therefore his conveyance to Dora Jackson vested her with such equitable title in the land as would support the action of trespass to try title.

In addition to the foregoing, we think that the testimony of Milholland to the effect that he had actual possession of the property by tenant prior to the time that the defendant, Mortimer, ever had such possession, would be sufficient to support the judgment upon the theory of prior possession; it being conclusively shown that defendant, Mortimer, was a trespasser. In our judgment, the opinion of the Court of Civil Appeals properly disposes of all assignments of error complaining of admission of testimony and of the refusal of the court to make additional parties.

It is our opinion that the judgment should be affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is approved and will be entered as the judgment of the Supreme Court.
      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SONFIELD, P. J.

text:
    LIEBER v. NICHOLSON et al.
    (No. 2541.)
    (Commission of Appeals of Texas, Section A.
    Nov. 20, 1918.)
    1. VENDOR AND PURCHASER <&wkey;341(3) — RECOVERY of Purchase Money Paid — Burden of Proof.
    In action to recover money paid in part performance of an executory contract for sale of realty, plaintiff had the burden of showing that he fully complied with conditions of contract under which he was entitled to a return of the money paid.
    2. Vendor and Purchaser <&wkey;335 — Recovery of Purchase Money — Defective Title.
    Under contract providing that vendee should have SO days for examination of abstract of title furnished by vendors, and should point out defects to vendors, who should have reasonable time to cure defects, where vendee did not within 30 days -point out defects which were not remedied, he cannot recover partial payments made on theory that vendors may not perfect title; vendors having a good title by limitations.
    3. Vendor and Purchaser &wkey;>143 — Defects in Title — Right to Waive.
    Purchaser had the right to ignore or waive defects in title and demand the conveyance of such title as the vendors had, the contract provision for good title inuring to the benefit of the purchaser.
    4. Vendor and Purchaser &wkey;>185 — Default of Vendor — Recovery for Improvements.
    Where supplemental contract made recovery for improvements placed on land by purchaser contingent upon his compliance with executory contract of sale, purchaser could not, where he defaulted in contract of sale, recover for value of improvements.
    5. Appeal and Error <&wkey;265(l) — Findings— Review.
    Where a statement of facts appears in the record, findings of fact need not be excepted to in the trial court to be subject to review on appeal.
    6. Appeal and Error <®=3ll22(2) — Findings —Reversal.
    Where there was no evidence to" support a finding of fact by trial court, the Court of Civil Appeals was authorized to substitute its own finding and thereon reverse and render the judgment.
    7. Vendor and Purchaser &wkey;>185 — Default of Purchaser — Recovery for Improvements.
    Although purchaser defaulted in contract of sale, where with consent of vendors he performed plumbing and electrical work at an agreed price independent of forfeiture clause in contract of sale and supplemental contract for improvements, he was entitled to recover agreed price.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by J. H. Lieber against B. F. Nicholson and others. There was judgment for plaintiff for a specified sum and for defendants for a specified sum, and defendants appealed to the Court of Civil Appeals (153 S. W. 641), which reversed and rendered in part and affirmed in part, and plaintiff brings error.
    Judgment of Court of Civil Appeals, in so far as it reverses the judgment of the district court allowing recovery by plaintiff, reversed, and, in all other respects, affirmed.
    Swearingen & Tayloe, of San Antonio, for plaintiff in error.
    John M. Rowland, of Mission, and R. P. Ingrum, of San Antonio, for defendants in error.
   SONFIELD, P. J.

Suit- by plaintiff in error to recover from defendants in error advance payments of purchase money under a contract of sale of certain real estate, an amount expended under a supplemental contract, and certain other sums of money claimed to have become due plaintiff in error to defendants in error. The contract of sale was dated March 1, 1910. The portion of the contract material herein reads as follows:

“Grantors are to furnish abstract _ of title brought down to date as soon as possible, and grantee is to have thirty days from date of delivery for examination of said abstract. If any defects in title are found, same are to be pointed out to grantors by grantee or his attorney, and grantors are to have a reasonable time to cure said defects. If this, cannot be done and good title furnished, the above-mentioned $500.00 is to be returned to grantee and the said payment of $250.00 to be made March 20th; if already paid, is to be returned and this contract he of no further force or effect. But if good title is furnished, and grantee fails or refuses to go forward with closing the deal as in all conditions fully set forth, the $500.00 earnest money this day paid and the $250.00 payment to be made March 20th, 1910, is to be forfeited as and for liquidated damages.”

The material part of the supplemental contract dated April 1, 1910, provides as follows:

“It is, however, distinctly understood and agreed that, in order to place the promises above described in a condition acceptable to the said lodge, it has become necessary for the said James H. Lieber to enter into a contract for the erection of certain improvements at an agreed expense of $620.00, with the contractor, C. T. Finch-am, and it is understood that should, upon examination of the abstract of title, it he found that the title to said property failed, or was not such as provided for in said contract of purchase, and on such account said purchase not be consummated, then, in such event, the said Nicholson, Sames, and Moore, agree to pay said expense of $620.00; but should the said James H. Lieber make failure or .default in complying with the terms and conditions of said purchase contract, and thereby surrender and forfeit the earnest money of $750.00 on said contract, it is further distinctly understood and agreed that the said James H. Lieber shall be liable unto the said Nicholson, Sames, and Moore for an additional $320.00 as liquidated damages by reason of such default.”

The cause was tried by the court without a jury, and judgment was rendered for plaintiff in error for the amounts paid under the contract of sale, the amount expended under the supplemental contract, and the sum of $195 for certain plumbing and electrical work on a building constructed on the land, denying recovery of other amounts claimed and the foreclosure of a mechanical lien. The court further rendered judgment against plaintiff in error in the sum of $145 for loss of rent by defendants in error, because of the delay of plaintiff in rejecting the title.

From the judgment against plaintiff in error there was no appeal. The Court of Civil Appeals reversed and rendered the judgment of the district court, in so far as plaintiff in error recovered against defendants in error, and affirmed the judgment in favor of defendants in error against plaintiff in error. 153 S. W. 641.

Both the district court and the Court of Civil Appeals hold that plaintiff in error, under the contract, was authorized to insist that he be furnished a good record title and to reject a title good only by limitation.

It is conceded that the record title of defendants in error was defective. Has plaintiff in error, by any default on his part or breach of the contract of sale, debarred himself from the right to recover the advance payments made under said contract?

The Court of Civil Appeals held that, under the contract, it was the duty of plaintiff in error to examine the abstract within 30 days after its delivery and at the end of that time to point out the defects, if any, giving defendants in error a reasonable time for correction; that the limitation upon the time for the pointing out of the defects was material. This construction is not complained of by any proper assignment of error. Indeed, plaintiff in error, in effect, so pleaded the contract, alleged compliance therewith; and upon this, and the failure of defendants in error to correct the defects and tender a good record title, he predicates his right of recovery.

On the 9th day of April, 1910, being the thirty-first day after the delivery of the abstract, the attorneys of plaintiff m error delivered to him an opinion on the title; several defects were specified. Therein the attorneys said:

“This title does not go back to the sovereignty of the soil, but it has been' held by your vendors and their vendors in such way as to give perfect title by limitation.”

On the same day, plaintiff in error addressed a letter to one of defendants in error, quoting from his attorneys’ opinion the various objections to the title, but omitting th’at portion of the opinion hereinabove quoted.

Defendants in error promptly corrected all the defects thus pointed out, to the satisfaction of the attorneys of plaintiff in error.

On May 26, 1910, the attorneys of plaintiff in error delivered to him a second opinion on the title, again directing attention to the fact that the title of defendants in error did not connect with the sovereignty of the soil, but that they had a perfect title by limitation. The opinion specified other defects not incorporated in their opinion of April 9th. This opinion was delivered to defendants in error, and plaintiff in error advised defendants in error that, by reason of the defects set out in this last opinion, he would not go further with the transaction, and immediately and positively declined to consummate the purchase, affording defendants in error no opportunity to remedy these defects.

The right of plaintiff in error to recover the advance payments must be determined by the contract. The contract of sale herein provides for such advance payments and the conditions upon which plaintiff in error would be entitled to a return of the same. The burden is upon him to show that he has fully complied therewith.

Under the contract, as held by the Court of Civil Appeals, it was the duty of plaintiff in error, at the end of the 30 days given him in which to examine the title, to point out all defects which he deemed material. In this, the Court of Civil Appeals finds he made default. He did, within the time, give notice of some of the defects, but failed to point out others of which he then had knowledge.

The pointing out of defects within the time was as much the duty of plaintiff in error, under the contract, as was the furnishing of the abstract the duty of the defendants in error. This provision cannot be disregarded. It is an integral part of the contract inserted with purpose. Upon the performance of this duty hinged and depended the obligation of the defendants in error to correct the defects. The defects were to be corrected when properly pointed out, and defendants in error were obligated to correct only the defects so pointed out. 39 Cyc. 1413; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979, 982; Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332.

It is true, ordinarily, that a purchaser cannot be required to accept a title substantially different from that contracted for. ’But defendants in error are not seeking to enforce specific performance of the contract. They defend against the recovery of money paid in part performance of an executory contract on the sufficient ground that plaintiff in error, being himself in default, is precluded from such recovery. 39 Cyc. 1422; Kane v. Jones, 46 Wash. 631, 91 Pac. 2.

It is urged that defendants in error should not be permitted to retain the money paid because they failed to tender the character of title contracted for. So far as the record shows, this failure may have been the result of the default of plaintiff in error. It is not disclosed that defendants in error could not or would not have- tendered such title had the defects been pointed out and they given opportunity to correct the same. It was conceded on the trial that defendants in error had a good title by limitation. Such title, as stated by the Court of Civil Appeals, could be converted into a record title by proper releases or deeds from all adverse claimants or by suit and final adjudication between all claimants in a court of competent jurisdiction. It was incumbent upon plaintiff in error to point out all the defects which he deemed material to remedy, in order to a title of the character contracted for or a title such as he would be willing to accept. He had the right to ignore or waive defects and demand the conveyance of such title as the vendor had, the contract provision for a good title inuring to the benefit of the purchaser. 39 Cyc. 1524; Hughes v. Adams, 55 Tex. Civ. App. 197, 119 S. W. 134. The tender of a good record title was conditioned upon and subject to the disclosure of defects. Plaintiff in error being in default rendered further performance or attempted performance by defendants in error futile. 13 C. J. 567. Being thus in default, he cannot be heard to object to the retention of the advance payments on the ground of the tender of a defective title.

Defendants in error, under the contract, were bound to correct all defects properly pointed out by plaintiff in error capable of correction within a reasonable time. They could not arbitrarily refuse, to perform this duty. Defendants in error being thus bound, plaintiff in error was likewise bound to point out the defects within the time provided and afford defendants in error a reasonable time in which to correct same. Failing in this, he is in no position to seek a recovery of the advance payments. Such recovery, under the clear and unambiguous terms of the contract, could be had only if plaintiff in error, in good faith, within the time pointed out defects which defendants in error failed to correct within a reasonable time. In such case, plaintiff in error, being without default, can recover on the ground that the title tendered was not the title contracted for. 39 Cyc. 1521, 1413; Kane v. Jones, 46 Wash. 631, 91 Pac. 2.

To hold otherwise would not only violate the express terms of the contract, but would be inequitable, placing the vendor wholly at the mercy of the purchaser, tying up the vendor’s land, requiring him to go to the expense of furnishing an abstract, and when, as in this case, some of the defects are pointed out, the trouble and expense of correcting same, while the purchaser may speculate with the land seeking a resale at a profit to himself and, failing in such resale, refuse to consummate the purchase and recover the money paid.

As to the amount expended under the supplemental contract, that contract makes a recovery thereof contingent upon a compliance with the contract of sale. Plaintiff in error having made default in complying with the terms and conditions of the contract of sale and thereby surrendered and forfeited the earnest money, defendants in error are entitled under the terms of said contract to retain the same as liquidated damages.

Plaintiff in error urges that the trial court, having filed findings of fact and conclusions of law, and the same not having been excepted to, such findings are conclusive on appeal. Where, as in this case, a statement of facts appears in the record, findings of fact need not be excepted to in the trial court to be subject to review on appeal. Voight v. Mackie, 71 Tex. 78, 8 S. W. 623; Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443; Hahn v. Kellogg, 42 Tex. Civ. App. 182, 94 S. W. 391.

Plaintiff in error contends that the trial court having found as a fact that on April 9th he gave notice to defendants in error of all the defects in the title pointed out by Ills attorneys, and such finding being based upon conflicting evidence, tbe Court of Civil Appeals was without authority to substitute its own finding and reverse and render the judgment, and the case should have been remanded.

From a careful examination of the record, we conclude there was no evidence to sustain such finding by the trial court, and the Court of Civil Appeals was authorized to substitute its own finding and thereon reverse and render the judgment.

The trial court rendered judgment in favor of plaintiff in error for the sums of money paid under the contract of sale, the amount expended under the supplemental contract, and the additional sum of $195 for certain plumbing and electrical work performed by the firm of which plaintiff in error was a member, and by the said firm assigned to him.

The Court of Civil Appeals reversed and rendered this judgment. As to all of the judgment except the $195 item, we are of opinion that the judgment of the Court of Civil, Appeals is correct and should be affirmed; but, as to this item, we think said judgment is erroneous. The $195 was entirely independent of the forfeiture clauses in the contract of sale and supplemental contract. The trial court found that—

“With the consent of defendants, plaintiff performed the plumbing and electrical work at the agreed price of $195, which was a. reasonable charge for the work performed. This $195 has never been paid to plaintiff.”

The Court of Civil Appeals made no finding as to this item, and the record discloses that there was evidence to sustain the finding of the trial court.

We are of opinion that the judgment of the Court of Civil Appeals, in so far as it reverses the judgment of the district court allowing recovery by plaintiff in error against defendants in error, for the sum of $195 with 6 per cent, interest from September 19,1910, should be reversed, and the judgment of the district court affirmed, and in all other respects the judgment of the Court of Civil Appeals should be affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission is approved and will be entered as the judgment of the Supreme Court.
      <g£^>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    JAMES v. STATE.
    (No. 5194.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Homicide <&wkey;250 — Murder—Evidence.
    Evidence liélcb to sustain conviction of murder.
    2. Criminal Law <§=51160 — Approved Verdict — Review.
    Where court submitted case in charge fully protecting accused’s rights, and fairly submitting all issues favorable to Mm, and jury rejected accused’s theory upon sufficient ground, and trial court approved finding, conviction will be affirmed, where nothing is found authorizing court to disturb verdict.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Arthur James was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant, on conviction for murder, was condemned to the penitentiary for 99 years.

There are no errors assigned or discovered. From the statement of facts it appears that appellant and deceased were in a room together; no one else being present. A woman who was at work in the yard saw them, after they went in the house, sitting down talking. Later she heard a noise “what seemed like a lick,” and ran to the house, and saw deceased in a sitting position; but he had fallen over on his side, blood was flowing from his head and face, and he was not moving at all. Appellant had a baseball bat drawn in a striking position, and struck deceased once on the head after witness got there; appellant then walking away. She said she did not see deceased move a muscle thereafter, and that he died in a short time. One of deceased’s hands was under his side and the other across his chest. The doctors examined deceased and declared that his head was beaten into a pulp; that several blows with a baseball bat would have been necessary to produce the effect. Appellant claimed that, while he and deceased were in a game of craps, a difficulty arose over the game, and that deceased picked up a baseball bat, which appellant took away from him, whereupon deceased opened a knife and tried to cut him, and that appellant then struck him with the baseball bat, hitting him but one blow; that he left immediately, without knowledge that he had killed deceased.

There is testimony that no knife was found, and that deceased had some dice clinched in his right hand. There was evidence of flight, and that appellant had been charged with various offenses. The court submitted the case in a charge which appears to have fully protected the rights of appellant and fairly submitted all issues favorable to him that could arise from the evidence. The jury was advised of the law of manslaughter and self-defense. They have rejected appellant’s theory, not arbitrarily, but upon sufficient grounds, and the trial court has approved their finding, and we find nothing in the record which would authorize us to disturb the verdict.

The judgment is affirmed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    BELL v. STATE.
    (No. 5173.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)

    1. Criminal Law @=>784(1) — 'Circumstantial Evidence — Instruction.
    In a prosecution for keeping a gaming house, where the state’s evidence is entirely circumstantial, it is error to omit to instruct as to the law applicable to circumstantial evidence.
    2. Criminal Law @=>706 — Remarks oe Prosecuting Attorney.
    A remark by the prosecuting attorney, while examining a witness, that he was laying a predicate for a perjury case, was prejudicial, where the witness had failed to give testimony adverse to the state, and therefore could not be contradicted or impeached.
    3. Criminal Law @=>421(1) — Hearsay Evidence.
    In a prosecution for keeping a gaming house, evidence that people told witness that it was defendant’s gaming house was. not admissible to prove control and ownership.
    4. Gaming @=>102 — Prosecutions — Instructions.
    In a prosecution for keeping a gaming house, it was error to refuse to charge that defendant could not be convicted for gambling.
    5. Gaming @=>98(5) — Evidence — Sueei-OIENOY.
    Evidence that defendant, in a prosecution for keeping a gaming house, .had assisted the owner of the premises in finding a tenant after he himself had surrendered his lease, knowing or believing that the tenant would keep a gambling house, was not sufficient to sustain his conviction as keeper of such house.
    Appeal from District Court, Bowie County ; H. E. O’Neal, Judge.
    John Bell was convicted of keeping a gaming house, and he appeals. •
    Reversed and remanded.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of keeping a gaming house and allotted two years in the penitentiary.

The indictment contains three counts — the first charging appellant with keeping and being interested in keeping certain premises for the purpose of being used as a place to bet with cards and dice; second, that he kept and was interested in keeping certain premises for the purpose of keeping a table for gaming; and, third, that he knowingly permitted premises under his control to be used as a place to bet and wager and gamble with cards and dice.

The evidence shows that appellant had rented four upstairs rooms of a house in Texarkana, that he surrendered the lease contract to the owner, and that it' was subsequently rented to another party; that under the control of the other party gambling was carried on in one or more of these rooms. Wlhen appellant surrendered his lease contract, and until the second party had rented the property, he paid a nominal rent for one of the rooms, in which to store his goods and belongings. When appellant surrendered his contract to the owner, Robinson, it was understood between them that Robinson desired to rent the property, and appellant offered to aid him in securing another renter. This appellant did, and the other party moved in about two months after appellant vacated, and paid Robinson the rent for the time that he occupied the rooms. Gambling was carried on in one or more of the rooms while in possession and under the control of the second renter. There is abundant testimony to the effect that gambling was carried on. It is also shown that appellant played in some of the games.

There is no evidence of a direct nature that appellant had any interest in the house, and the state’s case, therefore, was one of circumstantial evidence, growing out of the facts stated. In the absence of any direct or positive evidence that appellant was interested in the house as owner or keeper, the case became one of circumstantial evidence. His connection, if any, as keeper, is largely dependent upon the fact that he was in and about the house, and knew that gaming was carried on, and indulged in such gaming. Quite a number of other parties were in and about the house, and gambled, and some of them rather extensively as evidenced by the testimony. The court did not instruct the jury with reference to the law applicable to cases of circumstantial evidence, and this constitutes one of the grounds relied upon by appellant for reversal. We are of opinion this proposition is well taken, ana the court erred in not giving such charge.

.Bill of exceptions No. 9 recites that, while Martin was testifying in behalf of the state, the district attorney asked: “Did you see Jerry Roberts up there?” (meaning the premises where the gambling was being carried on). The witness answered: “Tes, sir.” “Did you see him buy chips from John Bell, defendant?” “No, sir; X didn’t see him buy any chips.” “Didn’t you swear before the grand jury that you did?” Appellant objected, and the court sustained the objection. The district attorney then stated, while the witness was on the witness stand: “I am 'laying a predicate for a perjury case.” Exception was taken to this remark.

We think it should have been sustained, and the jury informed that this testimony was illegal. Such remarks should not be indulged. The witness had failed to give testimony adverse to the state. It was a failure of testimony, and therefore he could not be contradicted or impeached, and under such circumstances his evidence before the grand jury was not permissible. In order to permit such witness to be impeached upon this line, he must give testimony that is adverse to the state. There seems to be no question of the fact that the remark of the district attorney, tliat lie was laying a predicate for a case of perjury against the witness, was clearly inadmissible. It was a statement of his to the effect that the witness was swearing falsely, and this before the jury.

The assistant county attorney, testifying for the state, stated that he knew the place where the alleged gambling is said to have occurred, and that he had assisted the chief of police of the city of Texarkana and other officers in making a raid upon the place in 1917. After being asked various questions, he went into detail as to instructions he gave the officers in approaching the place, and how to make the entrance, and as to how they obtained admittance, and in the following bill of exceptions he was permitted to state that the place was pretty well known, and had been pointed out to him, which was interrupted by an objection. The court then stated: “You want to prove the reputation of it?” The district attorney stated he wanted to prove the name of it—what it was known by. The court stated: “If it has a name, and was known by the public, I will let him tell what it was.” Appellant excepted. “Q. Was that a pretty well known place? A. Yes, sir; I think it was, and it had been pointed out to me by a number of people in Texark-ana, and I had been asked why we didn’t break it up.” This was interrupted by objection. The court stated: “You say that it was a pretty well known place?” This was interrupted by an objection. The court then remarked:

“I rule he can prove what the house was called, the name of it; I sustain the objection to the well-known house, unless the defendant proves the reputation of it, and I don’t know whether he can do that or not.”

The witness was then asked if he knew the name of the house. He answered:

“I don’t know that it had such a name as you would speak of a place as a bank or the Cosmopolitan Hotel. It was spoken of to me as being Mr. Bell’s gambling house up there, and folks were jumping on me about it.”

Various objections were urged to this, which we think were well taken. This character of testimony is not admissible. The fact that people told Mm that it was Bell’s gambling house was not admissible. If it was Bell’s gambling house, this fact could be shown by facts and circumstances attending it; but control and ownership could not be proven in this manner. The authorities are pretty clear upon this proposition.

Exceptions were reserved to the charge and refusal to give special instructions. Among othefs, the court was requested to instruct the jury to the effect that defendant was not on trial for playing at or betting on any game prohibited by law, and the evidence to the effect that the defendant during the fall of 1917 played and bet on games of cards, which the evidence shows were played in the rooms under discussion, would not constitute a basis for a conviction for keeping and permitting cards to be played on the premises.

We are of opinion this charge should have been given under the facts. It is a different offense to play or bet at cards from that of which appellant was charged, to wit, keeping a gaming house, or permitting cards to be played in the house under his control. The jury, therefore, should have had this, or a similar, charge given them, to the effect that they could not convict appellant for betting at cards under an indictment charging him with keeping a gaming house.

There was evidence to the effect that, in a conversation between Robinson, owner of the house, and the defendant, when he surrendered his lease, appellant agreed to assist Robinson in finding a renter. This appellant did, and appellant later told Robinson that Will Campbell would rent the place, and a contract was made between Robinson and Campbell, apparently, if not in fact, through the intervention of appellant. Appellant asked the court to instruct the jury that under this testimony he would not be responsible for keeping the house; that he must be connected with it in some way, and this although appellant may have known or believed that Campbell intended running a gaming house.

We are of opinion that there must be more testimony than the mere fact that he induced Robinson to rent Campbell the premises, knowing or believing that Campbell might carry on gaming in the rooms, to predicate conviction. This might be considered as a circumstance, along with other circumstances, to show whether or not he was interested in the house; but the house did not belong to appellant, and he was not shown to have any interest in it, further than as agent of Robinson in renting to Campbell. He may have known or believed Campbell intended to permit gaming in the rooms, ,yet not be guilty under the indictment. This of itself would not constitute him a keeper of a gambling house. There must be other facts and circumstances to show his connection with it; and if the jury should believe that his connection with the house was simply to obtain a renter for Robinson, and himself not further interested in it, this would not constitute him a principal or a keeper, or being interested in keeping.

The judgment is reversed, and the cause remanded.
      É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    BEAUPRE v. STATE.
    (No. 4911.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Criminal Haw <@=>451(3)—Opinion Evidence—State of Mind.
    In a prosecution for murder, evidence of a physician called to attend deceased, -who was defendant’s wife, that in his opinion defendant’s grief was feigned, was not inadmissible, as being an opinion; it being? a statement of an effect produced upon tbe mind.
    2. Criminal Law <&wkey;366(4) — Evidence—Res Gestee.
    In a prosecution for tbe murder of defendant’s wife, evidence that, when defendant _ approached her after tbe infliction of the injury from which she died, she pushed him away and frowned at him, was admissible as res geste.
    3. Criminal Law &wkey;462 — Evidence—Admissibility.
    In a prosecution for murder of defendant’s wife, testimony of a witness that in his opinion defendant could not possibly have gotten home, committed the murder, and gone out and summoned help within the time charged, was properly excluded.
    4. Criminal Law &wkey;>193% — Former Jeopardy — Conviction of Offense of Lesser Degree.
    In a prosecution for murder committed February 8, 1911, at which time murder was divided into two degrees, where a trial in 1911 resulted in a hung jury, but a subsequent trial resulted in a conviction of murder in the second degree, the acquittal of murder in the first degree by conviction in the second degree did not on a subsequent trial, preclude a trial for murder, and require a trial for manslaughter only.
    5. Homicide &wkey;282 — -Manslaughter—Sub- . mission of Issue.
    In a prosecution for murder, it was not error to refuse to submit the question of manslaughter, where neither adequate cause nor passion was shown under the evidence.
    6. Homicide <&wkey;282 — Aggravated Assault — , Submission of Issue.
    In a prosecution for wife murder by defendant, shown to have been committed with a hammer, in the absence of evidence that there was no intention to hill, the issue of aggravated assault was not raised, so as to require submission thereof to the jury.
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    O. P. Beaupre was convicted of murder in the second degree, and he appeals.
    Aflirmed.
    See, also, 135 S. W. 547, and 70 Tex. Cr. R. 19, 156 S. W. 625.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder in the second degree and assessed the lowest} punishment.

This is the third appeal in this case. The first was an appeal from a habeas corpus hearing denying him bail, and is reported in 135 S. W. 547. The second is reported in 70 Tex. Cr. R. 19, 156 S. W. 625. In the second appeal a statement was made, making it unnecessary at this time to make another. On said trial appellant himself testified. On this trial he did not. On said second appeal he contended that the evidence was insufficient to sustain his conviction. On this appeal he makes the same contention. The evidence on this trial was as strong, if not stronger, against him, showing his guilt, than on the previous trial. On the previous appeal this court expressly held that the evidence was sufficient, and it adheres to that holding.

Appellant on this trial, as he did on the previous trial, objected to the testimony of Dr. Embree, a physician who was first called to see, and did-see, deceased soon after she was fatally knocked in the head with a hammer, to the effect that appellant’s apparent grief at deceased’s condition at the time, in his opinion was not real, but was feigned and simulated; the witness having testified as to what appellant did and said at the time. This court held against apxiellant on this point on the previous trial, and now adheres thereto. This evidence was admissible under the well-established principle by the many decisions of this court and text-writers to this effect:

“An opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible, whenever the condition of things is such that it cannot be reproduced and made palpable in the concrete.” 1 Branch’s Ann. P. C. § 131, and the following cases cited by him; Miller v. State, 18 Tex. App. 232; Clark v. State, 28 Tex. App. 195, 12 S. W. 729, 19 Am. St. Rep. 817; Graham v. State, 28 Tex. App. 582, 13 S. W. 1010; Garner v. State, 28 Tex. App. 561, 13 S. W. 1004; Meyers v. State, 37 Tex. Cr. R. 210, 39 S. W. 111; Holland v. State, 60 Tex. Cr. R. 122, 131 S. W. 563; Harris v. State, 62 Tex. Cr. R. 240, 137 S. W. 373; Powdrill v. State, 62 Tex. Cr. R. 442, 138 S. W. 114.

Dr. Embree further testified, without objection, that when appellant attempted with a wet rag to wipe the blood off of her face she said, “Quit!” that she did not take hold of or caress him; “it was the reverse; it was kind o’ pushing Mr. Beaupre away — she was;” and that, when he and one of the policemen were standing together, appellant attempted to wipe her face, he said to the policeman, “She doesn’t want him to do that; make him quit,” and he thought the policeman did stop him; and that, when he saw appellant’s actions and heard what he said, “I did not think that the defendant’s conduct was real; I thought it was more of a feigning condition, and for that reason the policeman made him- get up out of the floor.”

The court did not err in permitting Mrs. Musgraves to testify that Mrs. Beaupre, deceased, kept pushing him (appellant) away and frowning for him to go away from her ; “just kept pushing and shoving him away and seemed to want to get rid of him,” in answer to the question of what Mrs. Beaupre’s attitude toward him was every time he approached her. This evidence was also admissible as a part of the res gestae of what occurred very soon — almost immediately— after deceased had been struck as stated, and Mrs. Musgraves and others gathered in and were present to render her whatever assistance and relief they could. Besides, Mrs. Musgraves testified that appellant was in the middle of the bed right over Mrs. Beaupre, holding her and asking her: “ ‘"Wliy don’t yon speak to me? Ton have been stubborn, but speak to me now.’ Slie said something and pushed him away. I didn’t understand what she said. She kept pushing him away.” And further: “Every time he would take a hold of her she would keep pushing him away and frowning.” No objection,was. made to the testimony of Mrs. Musgraves, just .recited.

Mr. Hauk, a policeman who was called and reached deceased soon after she was injured, testified, without objection, that appellant “tried to put his hands on his wife to caress her or something, and she pushed him back and would not allow him to talk fo her or touch her. * * * I saw her push Mr. Beaupre away a couple or three times.”

The state proved that appellant reached the home where his wife was alone at about 10 o’clock at night; that two witnesses, who lived very close to him, one in 200 feet and the other a little further, in a different direction, some 10 or 20 minutes after he reached home, heard the screams of a woman, which they said was in the direction of appellant’s; that very soon thereafter appellant went rapidly from his residence to one of his neighbors, just a little more than 200 feet away, and called for help. His neighbors responded, and at once went to his residence and found his wife knocked in the head with a hammer.

Mr. Self, who testified for appellant, swore that he went out on the same street car that appellant did, and went just one block from where appellant got off to go to his home, to where he got off to go to his; that he went home. He tells what he did— hung up a picture and did various other things that caused delay — and that he was attracted by the appellant being at said neighbor’s calling for help. The court committed no error in refusing to permit Mr. Self to testify, the state objecting, that in his (witness’)' “opinion the defendant could not have possibly been guilty of the offense charged, and could not have traveled from the point where witness saw him last, before he started to his home, to have made the assault upon his wife, and have gotten to the place where he saw him next by any possibility.”

The indictment alleged, and the proof showed, that deceased was killed on the night of February 8, 1911. At ‘that time murder was divided into two degrees, first and second, under our law. He was first tried in Dallas county in 1911. The trial resulting in a hung jury. The venue was then changed to Ellis county, where he was tried a second time, and convicted of murder in the second degree, thereby acquitting him of murder in the first degree. Because of the statute doing away with murder in degrees by the act of 1913 (Acts 33d Leg. c. 116 [Vernon’s Ann. Pen. Code 1916, arts. 1140, 1141]), and his acquittal of murder in the first degree, appellant contended on this trial that he could not be tried for murder at all, but could only be tried for manslaughter. This has been uniformly held against him. Cook v. State, 71 Tex. Cr. R. 537, 160 S. W. 465; Shaw v. State, 71 Tex. Cr. R. 632, 160 S. W. 103; Andrus v. State, 73 Tex. Cr. R. 334, 165 S. W. 189; Sorrell v. State, 74 Tex. Cr. R. 510, 169 S. W. 299; and other cases since then. We adhere to these decisions.

The court did not err in not submitting the question of manslaughter to the jury. This offense was not raised by the evidence. There was neither adequate cause nor any passion thereby shown. This was also held by this court on the previous appeal.

On the former appeal this court held that the “hammer in the hands of a vigorous male would be a deadly weapon,” and if. such proof had been made on that trial a charge submitting aggravated assault would have been wholly uncalled for. On this trial that proof, uncontradicted, was made. In addition, the uncontradicted proof showed that the hammer was iron or steel, weighing 1 pound and 4 ounces. The iron part, the hammer itself, was 3 inches long, the diameter of the head a little over half an inch, and the handle 14 inches long; also that the wounds inflicted on deceased’s head with this hammer were necessarily fatal and directly caused her death. There was no evidence that there was no intention to kill, and none from which an inference could be properly drawn. Hence aggravated assault was not raised on this trial, and the court did not err in refusing to submit any such question.

The judgment is affirmed.
      ¡®=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.

      <®cs>Far other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes