author: MOURSUND, J.

text:
    JUST v. HERRY.
    (No. 5423.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 3, 1915.
    On Motion for Rehearing, April 7, 1915.)
    1. Insurance <S=>188 — Action fob Premiums —Sufficiency of Petition.
    A petition alleging defendant’s indebtedness to plaintiff by reason of plaintiff’s procuring the issuance of a life insurance policy on defendant’s application and his delivery of the policy, whereby defendant became bound to pay the premium, a three-fourths interest in which belonged to plaintiff under his agency agreement, and the other one-fourth of which he had himself paid, and defendant’s agreement to deliver a note for the amount, provided the insurance company was solvent, and alleging advice that it was solvent, stated a cause of action.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 245, 402-407; Dec. Dig. <@=>1S8.)
    2. Insurance <§=>188 — Action—Instruction.
    Where the issue was as to defendant’s receipt and acceptance of the policy, a charge that although defendant had 40 days in which to accept or reject the policy, yet if he accepted and receipted therefor within that time and agreed to pay the premium, plaintiff might recover, unless he had fraudulently misrepresented the contents of the policy or fraudulently secured the signing of defendant’s receipt and acceptance, was not objectionable as making the receipt conclusive, as it also required a finding of defendant’s acceptance.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 245, 402-407; Dec. Dig. <©=188.)
    3. Trial <§=251 — Instruction—Issues—Condition Precedent.
    In such action, where defendant did not contend that a condition that advice that the insurer was solvent, made a condition precedent to his acceptance of the policy, had not been complied with, there was no error in a charge omitting mention of such condition precedent.
    [Ed. Note. — -For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. <©=251.)
    4. Appeal and Error <§=1064 — Harmless Error — Instructions.
    Error, if any, in omitting reference to such condition precedent, which would not have affected the result, would not justify a reversal of a judgment for plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <§=1064.)
    5. Insurance <§=188 — Action for Premium —Sufficiency of Evidence.
    In an insurance agent’s action for the amount of the first premium due on a policy delivered to, receipted for, and accented by defendant, alleged to be due under the agent’s contract with his company, and his advance of a part of the premium, evidence held to sustain a verdict for him.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 245, 402-407; Dec. Dig. <©=188.)
    On Motion for Rehearing.
    6. Appeal and Error <©==>882 — Party Entitled to Allege Error.
    Where defendant requested charges permitting the jury to pass on issues of fact which he claimed were such as to entitle him to a judgment, he could not urge on appeal that there was no evidence .to justify their submission.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. <©= 882.)
    7. Appeal and Error <§=1002 — Verdict — Conclusiveness.
    It is the province of the jury to weigh the testimony and choose between conflicts and inconsistencies therein, and it is immaterial whether the appellate court would have taken their view of it as an original proposition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <§= 1002.)
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Action by Chris Herry, Jr., against August Just. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Dibrell & Mosheim, of Seguin, for appellant. I-I. M." Wurzbach and Jas. A. Harley, both of Seguin, for appellee.
   MOURSUND, J.

Appellee sued appellant for $208.85, alleging: That said indebtedness accrued by reason of his having, as agent of the Amicable Life Insurance Company of Waco, procured the issuance of a policy upon the life of the defendant for $5,000, pursuant to written application by defendant, and delivered said policy, whereby defendant became bound to pay the premium, which amounted to $208.35; that á three-fourths interest in said premium belonged to plaintiff by virtue of bis agreement with the company, and that he became the owner of the other one-fourth by paying such amount to the company after defendant had signed a certain policy receipt, and had accepted the policy and agreed to sign and deliver to appellee his promissory note for the amount of the premium, provided Chas. E. Tips, of Seguin, would advise defendant that said company was a good company, or a solvent company in good standing; that said Tips did, by a letter duly received by defendant, advise him that the company was as “good a Texas company as can possibly be,” and that he had made no mistake in placing his insurance in that company.

Defendant Just filed a general demurrer, several special exceptions, and an answer to the merits, in which he denied that he executed to plaintiff or the company any note or other instrument whereby he obligated himself to pay any sum to plaintiff or said company, and alleged that the policy receipt was obtained from him by means of fraudulent representations. He alleged further that he was to have 41 days in which to have the policy examined and determine whether he would accept it, and that plaintiff refused to let him have the policy for such purpose, unless he signed a receipt for same, so that, as stated by plaintiff, if it was not satisfactory, the receipt would secure its return to plaintiff; that defendant is unable to read and write the English language, and the nature of the receipt'was misrepresented by plaintiff; that the policy was not in accordance with the promises and representations made by plaintiff. Defendant then took up each allegation of plaintiff’s petition, admitting those relating to plaintiff’s agency and authority, but putting in issue practically all of the material allegations.

Plaintiff by first supplemental petition al- i leged that lie paid the ¡jíftllO to the company at the instance and request of defendant. The trial resulted in a verdict and judgment in favor of plaintiff. i

The first assignment of error complains of the overruling of the general demurrer. Mo proposition is submitted under such assignment. We are of the opinion that plaintiff’s pleadings state a cause of action, and therefore overrule the assignment.

The second and third assignments are based upon the overruling of special exceptions. The pleading is sufficiently definite to apprise the defendant of the nature of the cause of action alleged. It is clear that the note was not sued upon, as it was expressly alleged that no note had ever been executed. Plaintiff alleged a completed contract of insurance which could be avoided only upon one condition, namely, that Tips should refuse to state that the company was solvent. He alleged that it was further agreed that, upon Tips declaring the company to be solvent, defendant was to give his note payable on August 1, 1913; that Tips did state to defendant that the company was solvent; and that thereupon defendant refused to give a note for the indebtedness. Plaintiff further alleged that he was the owner of the indebtedness sued for, and not the company, ana alleged the facts upon which he based such claim of ownership, which facts we consider sufficient to substantiate his claim. The assignments are overruled.

There is no fourth assignment of error.

The fifth complains of the giving of a special charge. Two objections were made to said charge; the first being that it makes the receipt for the policy conclusive. The charge provided that although defendant had 40 days within which to accept or reject the policy, if he accepted and receipted for the same before the expiration of the time and agreed to pay the premium on August 1,1913, then to find for plaintiff, unless the jury found that plaintiff fraudulently misrepresented the contents of the policy or “fraudulently secured the signing of said receipt and acceptance.” It is clear that this charge did not make the receipt for the policy conclusive, but required a finding that defendant accepted the policy, and also that he receipted for it. The second objection is, as stated by defendant:

“That the uncontradicted evidence shows that, at the time the policy receipt was executed by defendant, he had not accepted the policy, but something more was to be determined before defendant was satisfied to accept the policy, viz., the standing or solvency of said insurance company was to be determined.”

i Plaintiff alleged the acceptance of the policy at the time the receipt was signed, but with the condition that such acceptance would not be binding, unless Tips expressed a favorable opinion in regard to the solvency of the company. The evidence is undisputed i that Tips did express a favorable opinion, and no issue was made in the pleadings upon that point. The condition was one which, if not fulfilled, would defeat the acceptance; and, as no contention was made that it was not complied with, we do not think the court erred in omitting the mention thereof in his charge.

But, if the charge was erroneous in the respect mentioned, such error is one which could not have affected the result, and would not justify the reversal of the judgment. The assignment is overruled.

The sixth assignment questions the sufficiency of the evidence to sustain the judgment. Appellee’s testimony made out a case in accordance with his pleading. His pleading was to the effect that there was a delivery to appellant of the policy and an acceptance thereof, subject to Tips’ approval of the financial standing of the company, and that it was only delivered back to appellee to carry to Tips and leave it with him for his examination. Appellee testified that appellant kept the policy from February 10, 1913, the date when he signed the receipt, until the latter part of February, and then requested appellee to carry it to Tips. He further testified that on February 10th he informed defendant that he would advance the premium to the company, and that defendant should give him a note payable August 1, 1913, but that defendant did not 'have to take the policy, unless Tips said the company was a good or solvent company. Pie testified that he explained the policy receipt fully to defendant; that he read it over to him, and also translated it into German. The policy receipt signed by defendant was to the effect that he had received and examined the policy; that it was in accordance with his application; and that he accepted it. Defendant testified that the receipt was misrepresented to him, and that about February 27th or 28th he told plaintiff he did not want the policy because it was not as represented, and gave it back to plaintiff. Tips testified that plaintiff left the policy with his bank to be delivered to defendant upon his signing a note left there by plaintiff with the policy. This testimony of Tips does not accord with that of plaintiff, and tends to corroborate defendant in his contention that there was no such acceptance of the policy, as was testified to by plaintiff. But this issue was submitted in a charge prepared by defendant and given at his request, and the jury was also instructed at defendant’s request that if, before 40 days expired, defendant delivered the policy back to plaintiff, and plaintiff left it with Tips, with instructions to deliver it to defendant upon his signing a note for $208.35, and if they found that the note was never signed and the policy never delivered to defendant by Tips, then to return a verdict for defendant. The jury decided in favor of plaintiff, and we conclude that the judgment should be affirmed.

Judgment affirmed.

On Motion for Rehearing.

No request was made by defendant for a peremptory instruction; on the contrary, he requested that four special charges be given, which request was granted. By these charges the jury was required to pass upon the issues of fact upon which he contends, upon this appeal, that the evidence is of such a character as to entitle him to a judgment. Having participated in having these issues submitted to the jury, he cannot be heard to say there was no evidence to justify their submission. I. & G. N. Ry. Co. v. Walker, 162 S. W. 921; Poindexter v. Kirby Lumber Co., 101 Tex. 326, 107 S. W. 42; St. Louis, B. & M. Ry. Go. v. West, 131 S. W. 841; Alamo Dressed Beef Co. v. Yeargan, 123 S. W. 723. But we are of the opinion that appellant’s contention would be without merit even had he requested a peremptory instruction, and assigned error upon the failure of the court to give it, for the evidence is conflicting upon the points relied upon by him.

The main issue in this case, as made by the pleadings, was whether appellant accepted the policy and agreed to pay the premium. Upon this issue there was a direct conflict between his testimony and that of appellee. There was also a direct conflict concerning the purpose for which the policy was redelivered to appellant, and appellee’s testimony on this point, and as to what he told Tips, is inconsistent with Tips’ testimony. The jury evidently believed that appellant accepted the policy upon condition that the acceptance would not oe binding unless Tips approved the company; that it became his property; and that no rescission of the trade took place. The evidence was undisputed that Tips expressed a favorable opinion in regard to the solvency of the company. The jury doubtless decided that Tips was mistaken about the instructions given him by appellee. It was the province of the jury to weigh the testimony, and’ choose between conflicts and inconsistencies therein, and it is immaterial whether or not we would have taken their view of it as an original proposition.

We adhere to our former conclusion that no error is shown which requires or justifies a reversal of the judgment. The motion for rehearing is overruled.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    STARK et al. v. STOUT et al.
    (No. 721.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 13, 1915.
    On Motion for Rehearing March 20, 1915.
    Second Motion for Rehearing and to Certify Denied April 3, 1915.)
    1. Boundaries <⅜=>3 — Courses and Distances — Relative Importance.
    Where a survey called for a line running from a beginning point a certain distance in a certain course to the south bank of a river, the course controlled the distance, and the point where such course in fact touched the bank of the river, irrespective of the distance, was the true point located.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <§=>3.]
    2. Boundaries <S=o37 — Location of Survey —SUFFICIENCY OF -EVIDENCE.
    In an action between claimants to public lands previpusly surveyed and located, evidence held sufficient to show that defendants’ surveys were located on the south bank of a river, although the distance, given to be run from the beginning point of the survey to such river' was erroneous.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. ⅞=⅜7.]
    3. Boundaries <S=j37 — Location oe Survey— Change in Position oe Landmark — Sufficiency of Evidence.
    In an action between claimants to public lands previously surveyed and located, evidence held insufficient to warrant finding that the river on which the surveys, under which defendants claimed, were located had changed its course considerably since such surveys.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dee. Dig. <g^37.]
    4. Boundaries <®=»3 — Conflicting Calls.
    Where there are two identified marks or lines in a block of surveys neither can control the other to establish another point in the same survey when it is found that the calls are conflicting, but effect should be given to the one most in harmony with the other calls of the field notes and with the lines of contiguous surveys.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <⅜^3.]
    5. Boundakies — Location of Sub-vey — Sufficiency of Evidence.
    In an action between claimants to public lands previously surveyed and located, evidence hold, insufficient to show that plaintiff’s survey, crossed a certain creek.
    TEd. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. <®=»37.]
    6. Public Lands <®=>175 — Lands of States— Location — Lands Pbeviously Located.
    Lands previously located by defendants by surveys older than those under which plaintiffs claim cannot be recovered in trespass to try title.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. <⅜^175.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by W. H. Stark and others against W. M. Stout and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Holland & Holland, of Orange, and Madden, Trulove & Kimbrough, of Amarillo, for appellants. R. E. Carswell and J. V. Patterson, both of Decatur, and J. M. Elliott and II. D. Spencer, both of Memphis, for appel-lees. ,
   HUFF, C. J.

Appellant W. H. Stark, as executor of the will of Alexander Gilmer, deceased, and A. G. Thomas and B. F. Hew-son, executors of the will of Mrs. C. C. Gil-mer, deceased, sued W. M. Stout, J. W. Duncan, J. E. Duncan, W. Duncan, J. W. Christopher, and S. B. Crump, which suit was originally filed August 25, 1911. The three Duncans disclaimed, and the case was tried as between the appellants and the other three defendants. The action is in the form of trespass to try title to recover three surveys of land, numbered 195, 197, and 199, block IT of survej-s located for Beatty, Seale & Forwood, in Hall county, Tex. Upon amendment of the petition, it was alleged the suit was one of boundary, involving á conflict between section 27, Adams, Beatty & Moulton survey, block A, which is alleged and claimed to cover survey No. 195, B., S. & F., block I-I, and the defendant Christopher claimed section No. 19, A., B. & M., block A, which is claimed covers survey No. 197, B. S. & F., block H, and the defendant Crump claimed survey No. 18, A., B. & M., block A, which he claimed covered survey No. 199, B., S. & F., block H. The defendants Stout, Christopher, and Crump answered separately by general denial and not guilty and the three, five, and ten year statutes of limitation, and also plead specially the boundaries of their respective sections, claiming the land included in the boundaries of their section, and asked for judgment therefor. The court rendered judgment for the defendants, appel-lees here, for the lands included in their boundaries as prayed for by them, from which appellants appeal. The court found that surveys 195, 197, and 199, claimed by plaintiff, should be located by course and distance calls of the original field notes from the southwest corner of survey No. 187, the 'same block as identified on the ground; that surveys 18, 19, and 27, A., B. & M., claimed by the defendants, conflict with said surveys and should be located as claimed by the ap-pellees.

The question to be determined in this case is the true beginning corner of section 1, block 1, J. Pointevant survey, which surveys were made by George Spiller, January 4, 1875, 'and he located block A, A., B. & M., consisting of 36 sections of 640 acres each, on April 5, 1875. The only work he did on the ground that can relate to said surveys was to run a traverse line in 1873, while locating other surveys across the Prairie Dog Town fork of Red river, at or near the north end of section No. 1 of the Pointevant block, as now claimed by the appellees; from that point he meandered the north bank of the river to the 100th meridian, and then ran north on the meridian 5 miles to the five-mile post thereon, then turned west and ran a line west 40 miles, from which corner he located the northeast corner of survey No. 45, T. & P., and from which he located other surveys and marked the corner as the china-berry corner, which is so known in this record. From the measurements theretofore made by him, he located the Pointevant block and the A., B. & M. block at the dates above specified and platted them and the field notes and the plats were returned to the land office May 22, 1875. Block I-I, B., S. & F., of which the sections claimed by appellant were a part, was located by R. O. Armstrong July 31, 1875, and their location is fixed by other connections than those of the Pointevant and A., B. & M. surveys; so it is uncontroverted that the appellees’ surveys are senior in point of location. The field notes of survey No. 1, block No. 1, J. Pointevant, are as follows:

“Situated in Hall county, on the waters of Prairie Dog fork, a tributary of Red river, about 5 mi. 60° W. from the center of the county and known as survey No. 1 in block 1, beginning at a stake in the south bank of Prairie Dog town of main Red river (3) three miles W. and (4) four miles, 782 vrs. S. of a china-berry stake, 2 high and 4 square, from which (2) two chinaberry trees br. S. 58½° E. 943 vrs. and S. 75° E. 1,246 vrs., which is the S. W. corner of survey No. 20, Blk. 18, for the H. & G. N. R. R.; thence E. 950 vrs. to stake with meanders of river; thence S. 3,800 vrs. to stake; thence W. 950 vrs. to stake; thence N. 3,840 vrs. to place of beginning.”

Surveys Nos. 1 to 36, inclusive, call for and are connected with No. 1 and call for and are platted on the river calling for its meanders as their north boundary and Nos. 37 to 54, inclusive, call for and are connected with the same on the south by course and distance. Survey No. 1, block A, A., B. & M., calls for 54, block 1, J. Pointevant, and all its surveys are located by course and distance from survey No. 1 of that block.

Survey No. 54, block 1, J. Pointevant, is described in the field notes as follows:

“Beginning at a stake 145 vrs. N. of N. W. corner of survey No. 53, also the S. E. corner of survey No. 1; thence W. 1,900 vrs. to stake; thence S. crossing Powell’s fork 1,900 vrs. to stake; thence E. 1,900 vrs. to stake; thence N. crossing Powell’s fork to place of beginning.”

Survey No. 1, block A, A., B. & M., is described as:

“Beginning at a stake, the S. W. corner of survey No. 54, block No. 1 for A. B. Grant, by virtue of script 2/195, issued to J. Pointevant; thence S. 1,900 vrs. to stake; thence East 1,900 vrs. to stake: thence N. 1,900 vrs. to stake; thence W. 1,900 vrs. to place of beginning.”

It is undisputed that the distance from a point three miles west of the ehinaberry corner to the south bank of Red river, when the river was first observed after the surveys were platted in — that is in 1889 — was 2,805 varas in excess of the distance called for in Spiller’s field notes for the Pointevant survey No. 1. It is uncontroverted that Spiller did not measure the distance from the chinaber-ry corner to the point on the south bank of the river fixed as the beginning corner of the Pointevant block, but that he calculated the distance from his previous measurements theretofore made. It is also uncontroverted, and the court so finds, that if the Pointevant block is located by its calls for the river, the true location of appellees’ surveys conflict with and practically cover appellants’ surveys; but if the Pointevant block is located by distance from the ehinaberry corner as called for by the field notes of Spiller, there is no conflict. The facts are uncontroverted that the river, when the location of the surveys was made, was, under the statute, a navigable stream more than 1,000 varas wide, and to locate the Pointevant blocks by the distance called for by Spiller will place surveys from 1 to 36 of Pointevant across the river with part of same on both sides of the river.

The controlling question in this case is, as we understand it, the true location of the northwest corner of survey No. 1, Pointe-vant block, and whether or not it should be located by the course and distance called for in the original field notes of Spiller and disregard the call for the river, or whether course and the river shall control in locating that corner and the distance called for south from the point three miles west of the china-berry corner be disregarded. The court located and established the Pointevant No. 1 from the bank of the river as established in the year 1889, and ran out the rest of that block, together with block A, A., B. & M., by course and distance, locating the lands where the appellees claim it to be, thereby conflicting with the surveys of the appellant, which ms above stated, are junior surveys.

In the call “three miles W. and 4 miles, 782 varas S. of a ehinaberry stake, 2 high and 4 square, from which two china-berry trees bear,” etc., we think the distance called for south from the three-mile point was directory in its nature and should be so treated, and that its evident purpose was to point out or lead a person into the region or neighborhood of the tract surveyed, and hence not considered as entitled to controlling weight in locating the boundaries of section 1, block 1, J. Pointevant; especially so where it conflicts with the special locative calls. The locative call of the surveys in J. Pointe-vant block 1 is on the south bank of Red river, beginning at a point on the south bank of the river south of a point three miles west of the ehinaberry stake. The 'north line of the tier of surveys in block 1, from 1 to 30 inclusive, call for the south bank of Red river with its meanders. In calling the distance to the south bank of the river, from a point three miles west of the ehinaberry, the surveyor missed the distance nearly a mile and a half. It may well be inferred in calling for the distance the surveyor would not be very particular. He gave the course to travel from a given point, and when the south bank of the river was reached, where the south line intersected that bank there the survey was to begin, following the meanders of the river for the north line of the block, giving to each survey therein the course and distance called for. Generally distance is regarded as less reliable than course. Distance may be reported inaccurately, either by mistake or design. The surveyor may fall into error in making field notes. This is the work of the officers themselves; but when a surveyor says to the locator, “Go to a certain point, travel south to the south bank of the river, and there begin your survey,” the locator has the right, we think, to go until his line reaches that point. If a surveyor says it is a certain dis.-tance to- that point, he only intends to put him in that neighborhood at that distance. If the locator reaches that point before the distance called for gives out, he must stop. If the distance gives out before reaching it, he is entitled to proceed until he reaches it and when he does he must begin there. Stafford v. King, 30 Tex. 273, 274, 94 Am. Dec. 304. This, of course, cannot be followed as the rule in all cases, but we believe it is the rule which should govern this case. The Supreme Court held that if the place called for can be established, even though a stake is called for at the place, the call for distance should yield to it. Thatcher v. Mathews, 101 Tex. 122, 105 S. W. 317.

In'this case the evidence shows that Spiller, the surveyor, did not survey the Pointe-vant block or block A, A., B. & M., on the ground, but made office surveys. He had previous thereto run a traverse line crossing the river near the point called for as the beginning point of the block, took the measurement of the river at that point, meandered the north bank of the river down to the 100th meridian, tbence north with the 100th meridian to the five-mile post and then turned west, running a west line for 40 miles and at the end of the line put in the china-stake corner. The distance from that point to the south bank of the river was calculated from the traverse lines theretofore run, and Spiller says he may have made a mistake in the calculation, but if it had been very great he would have discovered it in platting. The facts are clear that he did not' at that time, or at any other, run the distance from the cliinaberry corner to the south bank of the river. The south bank of the river was platted in by Spiller with the meanders of the north bank, and the lines of the surveys were platted in from the meanders of the river as thus ascertained. The northwest corner of the J. Pointevant block was determined by calculation. The course of the river was determined by his observation from his beginning corner for the meanders of the river. It is clear that Spiller observed the river, meandered its north bank, and that he platted the south bank by his meanders of the north bank. It was, as shown by him, his purpose when this work was done to put in block 1, S., P. R. R., and block 2, T. & P., which blocks some of the maps and the evidence in this case indicate were surveyed and platted, in between the 40-mile line west from the meridian and Red river. Block 2 shows to have been located west of the 40-mile line and to the river. It is certain that Spiller crossed Red river and knew where it was; that having located blocks 1 and 2, as above stated, the year before, north of the river, it was his purpose to locate the Pointe-vant block south of the river. He therefore called for the north line of that block to rest on the south bank. It is urged that he called for the river by mistake, for the reason that the three-mile point was more than 4 miles, 7S2 varas north of the south bank. AVe think the probabilities are that he made an erroneous calculation as to the distance from the china corner, rather than a mistake as to the river being situated at the point where he thought it was. It is quite certain he made a mistake somewhere, but one thing is absolutely certain from the field notes — he intended to locate the block on the south bank of the river. The true rule is that when calls lead to contrary results or confusion “that rule must be adopted which is most consistent with the intention of the parties apparent upon the face of the patent (field notes) read in the light of the surrounding facts and circumstances.” Stafford v. King, 30 Tex. 271; Huff v. Crawford, 89 Tex. 214, 34 S. W. 607, 610; Blackwell v. Coleman County, 94 Tex. 216, 59 S. W. 530; Robinson v. Doss, 53 Tex. 508. AVe do not think it can consistently be asserted that the surveyor was ignorant of the location of Red river. He crossed it, meandered its north bank, and measured its width near the point of the corner called for as the beginning corner, and further says that the northwest corner of survey 1, block 1, J. Pointevant, was a low, sandy valley with some sand dunes south of the river. This point he evidently intended for the beginning call. Plis constant assertion that the surveys fronted on the south bank should be held sufficient evidence that the surveys were located on the south bank. Of course, if the evidence showed that he mistook some other stream for Red river, or at that time Red river was in fact located north so as to place the south bank within 4 miles, 782 varas of the three-mile point, then the bank of the river as known, when resurveyed and located, would not control, but that it was the purpose to locate block 1 south of the river, fronting on the south bank, there can be no question, as evidenced by the field, notes. The trial court found that the surveyor made a miscalculation in the distance from the three-mile point west of the china stake to the south bank, and not that he made a mistake as to the location of the river. AVe think there is ample evidence to support the finding.

The facts in this case do not bring the case within the rule announced in Allen v. Koepsel, 77 Tex. 507, 14 S. W. 151, where the surveyor mistook a slough or old channel for the river Gaudalupe; or the case of Band Company v. Thompson, 83 Tex. 169, 17 S. W. 920, where the surveyor mistook a canyon for Devil’s river, and called for the latter in the field notes. Those cases hold simply that a mistake in a call for a river may be shown to be a mistake, such as may be shown in reference to any other call-in boundary.

It is contended by appellant that the maps then in use show that the river was then supposed to be north of its actual location, and that the survey should be constructed according to the river as located on the then map, and that the presumption should be, as it was an office survey, that the surveyor intended to so locate the land. In rebuttal of this presumption Spiller made the map, and evidently his miscalculation caused the delineation of the river thereon which occasioned the miscall as to the distance; and further, he had actually seen the river, meandered and measured it, and testifies that survey 1 was south of the river in a sandy flat with some sand dunes. There is nothing in our judgment which shows that he was mistaken as to the location of the river on the ground or the location of the block on its south bank. The appellants in this case rely on the case of I-Iuff: v. Crawford, supra, contending that as the map in the land office then showed the situation of the river the Pointevant should be now so located. In this case the surveyor did not locate by the map, but located on the south bank of the river. He himself made the maps, he delineated the river, but in doing so all the evidence showed he made a mistake in his call of distance for the river from the three-mile point, and also in platting the river on the map too far north. If he himself did not make the map he was the first surveyor in that country, and making his distance too short from the china corner for the river led to an erroneous map in designating the river. The Supreme Court said in the case above cited: “There is nothing in evidence to show that the surveyor made any mistake in any of the calls made in the field notes.” In this ease the trial court finds the surveyor made a mistake in the distance called for to the river. The evidence amply supports this finding. Spiller was on the river, knew it, meandered and measured it, identified and described the ground upon which section 1 is located south of the river. He calculated it could be reached in 4 miles, 782 varas. This the evidence shows was an error. As above stated, there is no room to doubt that the purpose was to put the Pointevant block south of the river, both by the field notes and Spiller’s evidence.

The appellants do not present by assignment of error that the court should have rendered Judgment for them on the ground that the south bank of Red river was at the distance called for from the three-mile point when the field notes were made by Spiller, but they argue most strongly that it was, and that since the survey the river has changed its channel south so as to place the south bank where it was found in 1889, and where surveyor Parks located it and surveyed out the block. The appellants introduced a witness who described the north bank of the river, describing a flat, sandy country, with a low-lying sandy ridge for some distance back, giving the distance, and then described other sand dunes, cottonwood trees, etc. Prom this character of testimony appellants present the theory that somewhere through these sand dunes the channel of the river evidently ran when Spiller made his survey. This is a theory which may or may not be correct. Counsel for appellant asserts:

“The earth writes her own history to those who are able to read her landmarks. The course of the river at this point, the sand hill, sand fiats, sand dunes, the sand bar, the cluster of cotton-wood trees, standing out just 1,-000 varas north from where the course and distance called for in Spiller’s field notes would locate the south bank of the river (thus marking the former location of the north bank) that being the uniform width which Spiller assigned to the river, as appears without dispute, make a record of a shifting river bed, which it were stupid not to be able to read.”

If the bandwriting of earth is so legible that it were stupid not to be able to read, it occurs to us that to those of us who are not familiar with her chirography it would have been wisdom to have produced a witness who could have testified to the writing in court, showing the time it took and when it was the river in its bed flowed over this spot, and not leave us to surmise and speculate when it was. Spiller does not testify the river was at that spot when he measured it, and no living witness so testified. The map introduced by appellants shows, if appellants’ theory is correct, that the river for the entire distance of the block — 15 miles — uniformly shifted south the exact distance at the point claimed by appellants in their theory. In 1889 Parks put in a corner on the south bank where vegetation ceased, and to further identify that corner set a monument back 200 varas from the river, which was standing at the trial. In 1903, by erosion of the south bank the original corner was destroyed and the river moved south 120 varas. This was 14 years after this corner was put in, and the Parks corner was put in about 14 years after the original field notes were made. Further than this evidence we find no change in the river bed. The block, as we understand, is now located and surveyed from the point 200 varas north of the monument set by Parks in 1889 to evidence the northwest corner of section 1. The witnesses who testified to the topography around this corner in some particulars described it as being in a low, sandy fiat, with some sand dunes to the east of it, as does Spiller in his evidence. We do not think the evidence is sufficient to have warranted the court in finding that the river was where appellants’ theory would place it when Spiller made the survey. They do not assign error on the part of the court in failing so to find, but present the theory in this court by argument. ■

It is assigned as error on the part of the trial court in failing to locate section 54, block 1, J. Pointevant, so that its east and west lines will cross Powell creek. This section is the last section called for in block 1. Its lines on the east and west by the field notes call to cross the creek. It is undisputed that it was not actually surveyed on the ground. Spiller testified in 1873 he ran down this creek part of its length, just where and what part of it is not shown. 1-Ie left the creek, crossed the river, and in 1874 meandered the north bank. It is not shown what distance he found the creek, where he placed the lines to cross it, was from the south bank of the river. So far as this record shows, its distance from the river where the lines of 54 should cross the creek is the merest conjecture on his part. That the calls for this creek were conjectured cannot very well be disputed. To have located this section so as to cross the creek would have placed it in conflict with section 1, block 1, and would be to disregard every other call for course and its situation as platted in the block. The trial court having fixed the northwest corner of section 1, as above shown, could not have placed section 54 as claimed by appellants without disregarding the other calls in the block, thereby .destroying the contour and formation of the block. Where there are two identified marks or lines in a block of surveys, one is entitled to no greater dignity than the other to establish another point in the same survey. When it is found in such instance the calls are conflicting, and cannot be harmonized, effect should be given to the one which is most in harmony with the other calls of the field notes and with the lines of contiguous surveys. Davidson v. Killen, 68 Tex. 406, 4 S. W. 561. We think in this instance the calls for Powell creek are merely descriptive calls, and that course and distance should prevail over the calls for the lines crossing the creek. The surrounding and connected circumstances adduced in proof show that course and distance is the most certain and reliable evidence of the true locality of section 54 from section 1 of the same block. We think the trial court was correct in so locating it. The court having so fixed and established sections 1 and 54, it is undisputed that the land of appellees is where they claim it and which they have fenced and occupied for more than 10 years before this suit was instituted. Their surveys being older than those claimed by appellants, it follows the land claimed by appellants was appropriated when their surveys were located, and they cannot recover in this cause.

It is contended by appellants that the court was in error in holding that Stout, Christopher, and Crump had title by the 10-year statute of limitation. Prom an examination of the record, we believe the court was correct in his findings that they had title, each of them, to their respective sections of land by the 10-year statute of limitation; however, our findings with reference to the boundary make it unnecessary to go into an examination and discussion of the facts with reference to the statute of limitation, and the assignments of appellants with reference to the 10-year statute of limitation will be overruled.

We think, under the facts and pleadings in this ease, there was no error on the part of the court in refusing to tax the costs or any part of them against appellees.

The judgment will in all things be affirmed.

On Motion for Kehearing.

In appellants’ motion for rehearing, they assail our statement that the river was a navigable stream. The statement in the opinion is susceptible of the criticism offered by appellants. We really meant to say that the uncontroverted facts show that the surveys were made under the statute prescribing the manner of locating surveys upon navigable streams, the field notes and facts showing that the surveyor found the stream 1,000 varas wide, at least at one point. The field notes of each river survey call to front on the river one-half of its square, while the other surveys in the block call to be 1,900 varas square. Articles 5338 and 5339, Revised Civil Statutes, which has been the law since 1837, require surveys on streams so far as they retain an average width of 30 feet, which are defined to be navigable, to front one-half of the square on the stream, and that such stream shall not be crossed by the lines of any survey, while all other surveys shall be made in a square. We only called attention to this statute as evidence, not that the stream was actually proven to be navigable, but that the surveyor so treated it, that in his calls he fronted the river surveys one-half the square, while the other surveys were made in a square, and as evidence that it was not his intention to locate all the river surveys across the river, which would be the case if appellants’ contention prevailed. Appellants insist that we are applying the rules where a survey is actually made upon the ground to an office survey. We are informed that we should follow the “pen” and not the “footsteps” of the survey- or in order to get his intention. We must admit that the appellants’ lecture has been instructive, but really that is what we thought we had done in the opinion, and regret .we have been unable to make ourselves understood. The same “pen” that wrote the call for distance also wrote that the survey must commence on the south bank where the line running south crossed the river. In following the same mark, we found it wrote that the north line of 26 .surveys should be bounded by the south bank of the river. We also found that each survey fronted half the square on the south bank of the river and that all the other surveys south of this tier in the same block were made in a square. We may be in error, but we are convinced that the intention of the surveyor was to locate these blocks south of the river. Spiller, also, in his testimony, said survey No. 1 of J. Pointevant was located, south of the river in a low, sandy flat, showing' the point he intended to begin this block was south of the river. He had seen this point previously. That he crossed the river near this point is evidenced by the fact that he- ran down Powell’s fork and that he called that this block rest in part upon that stream. To our mind it is conclusive that the surveyor intended to locate the survey south of the river. The argument of appellant that he testified that he did not meander the south bank of the river may be ingenious, but we do not think sound in the light of Spiller’s evidence to the effect that he meandered the north bank of Red river and platted in the south bank to conform to the north bank. The facts in this case do not bring it within the statement quoted by appellants from Sanborn v. Gunter, 84 Tex. 273, 17 S. W. 117:

“It will be as easy to say that all the land lying on the principal rivers in the state, if not the whole public domain, could have been as well taken up by going to their sources and establishing monuments there and then simply calling for surveys projecting from them.”

The facts in this case do not establish any such conduct on the part of the surveyor Spiller. I-Ie not only picked out the place where the block should begin, but he meandered the north bank of the river and thereby ascertained the south bank. He actually ascertained and knew the course of the river, if his testimony is worth anything. He did not conjecture its course as did Maddox in the Sanborn Case, but he ran its course on the north bank. The trouble in this case is not caused by an abrupt bend in the river, as in the Sanborn Case, after leaving the starting point, but the trouble in this case is his call from a given point south for the south bank of the river is too short for his beginning corner. Appellants would disregard every other call in the field notes indicating Spiller’s intention and let one isolated call for distance control the whole location. It is so evident that this call for distance was occasioned by a miscalculation that it would be doing violence to every other known call, and in our opinion is absolutely against all the other evidence.

The appellants are very much distressed over losing their land and the great injustice done them. The record in this case is conclusive that the appellees in good faith have established and erected their homes on the land in dispute, and for years have improved and occupied it. One or the other must lose and it occurs to us from the facts in this case that the trial court has correctly located these lands, if not, certainly the equities are as strong in favor of appellees as they are in favor of appellants. The motion will be overruled.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=*For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HARLESS v. HAILE et al.
    (No. 718.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1915.
    Rehearing Denied March 13, 1915.)
    1. Account @=>16 — Commissions on Sales of Stock — Accounting—Pabties.
    In an action for an accounting for commissions earned by agents acting in a sort of partnership to sell stock, plaintiff having been first associated -with one defendant and then having left the country, when the second defendant became associated with the first, the first defendant could properly bring in as defendant the second party whom he had associated with himself and have the rights of all determined in one suit, since if plaintiff was entitled to recover under his agreement with the first defendant he would be entitled to a judgment against both, while if one of the defendants had collected more than his share of the earnings a cross-petition by the other would be proper, for where the interest of a person is necessarily affected by a suit he is a necessary party, while where the interest is joint all parties in interest, who may in any way be affected by the decree or judgment, should be made parties.
    [Ed. Note. — For other cases, see Account, Cent. Dig. §§ 74-76; Dec. Dig. @¿>16.]
    2. Pabties @=>26 — Pleading — Petition — Multifabiousness.
    Where plaintiff joined as defendants in a suit for an accounting a fellow agent who had been interested with him in commissions on the sale of stock and a second agent whom the first had brought into the transaction after the plaintiff had left the country, plaintiff’s petition was not multifarious, since where a petition confines itself to the adjustment of all the equities arising between the parties connected with, or growing out of, the same cause of action, however various their origin, the court can properly dispose of all such matters in one suit; multifariousness being an objection that is entitled to no liberal construction favoring it.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 32-34; Dec. Dig. @=>26.]
    3. Action @=> 50 — Pleading —Ceoss-Bill — Misjoinder oe Causes oe Action.
    In an action for an accounting by plaintiff against defendants, with one of whom he had been interested in a transaction for the sale of stock under an agreement to share commissions, where one defendant filed a cross-petition against the other, although his cause of action was based upon a contract separate from the one declared upon by the plaintiff in the original petition, there was no misjoinder of causes of action, since in a suit in equity if some of the causes of action be in one party and some in another each may present his claims by appropriate pleadings.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. @=350.]
    4. Pleading @=>403 — Petition — Defect-Cube by Answee.
    In an action for an accounting under an agreement to share commissions on the sale of stock, where the petition alleged that certain sales were made by the joint efforts of the parties, and that certain commissions thereby earned belonging to the petitioner had been appropriated by the defendant, although there was no allegation in the petition that the parties had worked together under an agreement to divide commissions, nevertheless, where the answer set out a specific agreement that the parties were to work together and divide commissions equally, and alleged that their rights rested on this agreement, the omission of the material allegation to that effect in the petition was cured by its allegation in the. answer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. @=>403.]
    5. Account @=>17 — Action fob Accounting —Pleading—Ceoss-Petition.
    In an action for an accounting under an agreement to share commissions on the sale of stock where the petition seeking recovery of commissions alleged to have been' appropriated wrongfully by defendant alleged that certain sums of money were earned by the joint efforts of petitioner and defendant, to which they were equally entitled, and that defendant had collected and appropriated all of the money so earned, such petition showed a right of action.
    [Ed. Note. — For other cases, see Account, Cent. Dig. §§ 77-82, 84-88; Dec. Dig. @=>17.]
    6. Beokebs @=>G6 — Commissions—Division-Sale of Stock.
    In an action for an accounting under an agreement to share commissions on the sale of stock, where petitioner had notified defendant of a prospective purchaser, the two agreeing to both attempt to persuade him to buy, although the defendant alone had made the sale, the petitioner nevertheless had a right of action for his share of the commissions on such sale.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. @=366.]
    7. Beokebs @=>66 — Sale of Stock — Agents— Division of Commissions — Liability to Account.
    Where a petition for an accounting was filed charging collection and appropriation to his own use by defendant of commissions on the sale of stock earned jointly by both, and it appeared that defendant, after a certain sale, had paid oyer to the company employing both the money received for such sale, the company paying him his half, and retaining the other, since the company had retained the sum due petitioner, defendant, who had directed that it be credited to the petitioner’s account, was not chargeable with it.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. ⅞⅛66.]
    Appeal from District Court, Dickens County; ,To. A. P. Dickson, Judge.
    Suit by L. 6. Wilhite against C. C. Haile and C. L. Harless. Judgment for Wilhite and Haile, and Harless appeals.
    Reformed and affirmed.
    Perkins & Perkins, of Snyder, for appellant. Higgins & Hamilton, of Snyder, Wilson & Wilson, of Sweetwater, and B. D. Glasgow, of Spur, for appellees.
   HUFF, C. J.

L. G. Wilhite instituted suit against C. C. Haile and C. L. Harless alleging that during the year 1912 plaintiff and the defendants were acting as agents for the Guaranty Investment Company in the sale of stock in the Great Western Loan & Trust Company, and for their services and as compensation therefor were to receive 15 per cent, of the amount of the capital stock of the trust company sold. He alleges that he and Ilaile entered into an agreement that they would both endeavor to sell said capital stock, and that upon the sale by either of them to purchasers whom they might find for the stock they were to divide equally the 15 per cent. Under the agreement plaintiff negotiated a sale of the stock to' Mrs. Goss, C. D. Bird, P. Chandler, and a Mr. Smith, and while the matter of sale was pending, but before completed, plaintiff left the country, and the matter of closing the sales with the defendant C. C. Haile, it being agreed in consideration of the services rendered by plaintiff in the negotiations with the parties above named, and other prospective sales then pending, that plaintiff was to receive one-lialf of the commission in case of the consummation of the sale • to either party. He alleged thereafter Haile, under the agreement, sold to Mrs. Goss $3,000 of the stock and the commission therefor was $225; that defendant Plarless and Haile sold to Bird $4,000, to Chandler $5,000 of the stock, upon which there was a commission of $1,350; and that afterwards Harless, acting surreptitiously, and without his or Haile’s knowledge, sold $4,000 to Smith, on which there was a commission of $600 due under the agreement. That he and Haile were acting in partnership as brokers and were the procuring cause of the sale in each and every instance of all the stock above alleged and as heretofore set out. That Harless was employed by said Haile only for the purpose of consummating sales, and that Harless is entitled to such remuneration as Haile agreed to pay him for his services, chargeable as an expense to said partnership business. It is alleged that Harless took no part in the sale to Mrs. Goss, but that he collected $112 thereof, which should have been paid to the plaintiff, and that both Ilarless and Haile are severally and jointly holding the commissions on the sale to Bird and Chandler, and are liable to plaintiff for his part. That he is entitled to recover against both defendants, as the facts may show, one-half of the $225 on the sale to Mrs. Goss, and one-half of the full amount earned on the sales to Bird and Chandler, less the amount agreed to be paid Harless by Haile, which plaintiff is informed is one-half of the commission earned. That he is entitled to recover from Harless one-half of the commission on the sale to Smith less the charges and expenses incurred for the service in making the same. He asked for judgment for his commission jointly and severally against the defendants and that defendants be required to make an accounting of the sale to the parties named.

The plaintiff in this case also garnished the Guaranty Investment Company and Harless, requiring them to answer what, if anything, they were indebted to Haile. The defendant Haile alleged that he and the plaintiff entered into an agreement that they both would endeavor to sell said capital stock to any and all buyers whom they or either of them might find for the stock, and that upon all sales of stock made by either or both of them while working together the 15 per cent, commission should be divided equally between them. He denied that plaintiff was the procuring cause of the sale to Mrs. Goss and others, and alleged that his efforts wholly failed to make such sales. That he did assist in selling $1,000 of the stock to Bird, the commission on which was $150; $75 thereof was paid to plaintiff and the other to Haile, and no other sale was made to Bird, either by the individual efforts of plaintiff or by the joint efforts of plaintiff and Haile. That plaintiff made an effort to sell to Chandler, but wholly failed and none was sold to Chandler while they were acting together. It is admitted by Haile that he and plaintiff sold $1,000 of the stock to Smith, but failed at that time to sell him more. That the plaintiff left while the above negotiations were pending, and that he collected all the commission on sales made by him and Haile, and put forth no further efforts towards closing up any contract for the sale of stock to the said parties. That plaintiff did no other acts for the joint benefit of plaintiff and Ilaile, but sold stock at other points and refused to divide commissions, etc. That Haile diligently attempted to close up the sale of the stock to the parties named, but was unable to do so, and plaintiff having left the territory, it became necessary to procure other assistance and the agreement between Mm and plaintiff came to an end. ■That they had failed to sell to the parties except $1,000 each to Bird and Smith, and Haile reported the condition to their employer, the guaranty company, and requested the president of the company to come or' send some one to induce Chandler, Smith, and Bird to buy other stock. In response thereto the company sent Harless, with whom and by their joint efforts, they made' sale to Bird .of $4,000 in addition to the $1,000 theretofore sold, and plaintiff is not entitled to one-half of the $600 commission on that sale. That Harless, the codefendant, collected all of the $600 commission on the sale to Bird, which included the $300 due Haile, and appropriated it to his (Harless) own use. That Harless and Haile, by their joint efforts, sold to Chandler $2,000 of the stock, and that there was due them $300 commission, which Harless collected and appropriated to his own use, one-half of which ($150) was Haile’s. That Haile and Harless induced Bird and Chandler to go to Sweetwater, where they could see and negotiate with the higher officials of the guaranty company, and that they paid the expenses of these parties on the trip, and while there Harless, through the joint efforts of Haile and ílarless, sold Chandler $3,000 of the stock. Their commission on the sale was $450, and that Harless appropriated the same, $225 of which belonged to Haile. That they sold to Smith, $4,000, upon which there was $600 commission, all of which Harless appropriated. That Haile made a sale of $2,000 to Mrs. Goss, for which he was entitled to a commission of $450. Plaintiff claimed one-half and Harless one-half thereof, and to satisfy each he paid their employer company one-half and it paid to each plaintiff and Harless one-half thereof in full settlement of their respective claims, and that Haile retained the other one-half, and now retains $225 of the $450 in his own right. That neither plaintiff nor Harless earned any part of it. He prayed that plaintiff and Harless be required to pay in court each $112 that they received on the Goss sale in order that it may be paid to the proper party.

There is a general allegation in his cross-petition that Haile and Harless worked together under an agreement to divide • the commission. Haile prays for judgment that plaintiff take nothing and for actual and exemplary damages against plaintiff for wrongfully suing out the writs of garnishment; that in case Harless • should be entitled to $112.50 paid the Guaranty Company that he have judgment against plaintiff for that sum; that he have a judgment against Harless for $1,087, with interest.

The defendant Harless answered by general and special exceptions, specially excepting to the action against him by the plaintiff and defendant Haile because there was a misjoin-der of causes of action and because the same was multifarious. He denied each and all the allegations of both plaintiff and Haile, and, quoting from appellant’s brief, alleged:

“That on or about January 2, 1913, as agent for the Guaranty Investment Company, he went to Dickens county, Tex., and that immediately after his arrival he and defendant Haile entered into a contract whereby they were to divide commissions equally on all stock each or both sold while they were both working together, and that during the existence of said contract, the defendant Harless sold $4,000 worth of stock to said Bird and $2,000 worth to P. Chandler, and the defendant Haile sold $3,000 worth to Mrs. Goss. That the defendant Harless only collected his half of the commission out of the Bird sale, and the defendant Haije refused to give the defendant Harless but $112.50 out of the Goss sale, even though the defendant Harless was entitled to $225, and that when Haile refused to give him but $112.50 he retained $112.50 out of commissions derived from the $2,000 stock sold to P. Chandler. That defendant Harless collected $300 as commission out of the said Chandler sale, out of which $150 was due Haile had he divided the commissions derived from the Goss sale equally, but, having failed to do so, defendant Harless retained $112.50 out of the $150 due Haile, leaving $37.50 due defendant Haile by defendant Harless, which defendant Harless tendered defendant Haile, and which defendant Haile refused to accept. That the aforesaid contract between the defendants Haile and Harless came to an end and thereafter defendant Planless, acting for himself, sold to P. Chandler $3,000 worth of additional stock; and thereafter defendant Harless and one C. E. Mathews,’acting for themselves, sold $4,000 worth of stock to J. H. Smith, the commission derived from which sale was divided equally between the defendant Harless and said Mathews. That the defendant Harless never agreed to divide commissions derived from the last Chandler sale and the Smith sale with either the plaintiff or the defendant Haile. Defendant Harless prayed that neither the plaintiff nor defendant Haile recover from him any sum whatsoever in this cause and for all costs of suit.
.“The case was submitted to the jury on special issues and thereafter a judgment was rendered upon the findings of the jury: (1) That plaintiff recover from the defendant Haile $122.-06 with 6 per cent, interest from date of judgment; (2) that defendant Haile recover from plaintiff $68.0$, and that said $68.03 be credited on plaintiff’s judgment against defendant Haile; (3) that defendant Haile recover from defendant Harless $1,143.43, and all costs of suit; and (4) that plaintiff recover nothing from defendant Harless.”

The plaintiff Wilhite does not appeal. Harless appeals from the judgment rendered against him; and as appellant, under his first assignment of error, asserts that the court should have sustained his second special exception, which is to the effect that the suit should be abated as to Haile’s action against him, for that it is multifarious and an improper joinder of causes of action. That Wilhite seeks to recover against both defendants upon a contract, alleged to have been made between the plaintiff and Haile, and Haile seeks to recover from Harless on a separate and distinct contract between Haile and Harless.

The pleadings of the parties, taken together, show a controversy over the commissions earned upon certain sales to named parties. The plaintiff sought to show one-half of these commissions were his by virtue of an agreement entitling him thereto. He alleges that Harless was, by Haile, brought in to assist in the sales and that the amounts paid him were to be charged as expenses to the partnership, and that the amount Haile agreed to pay him should be so charged. Both defendants in substance denied any such agreement, and both set up in effect that Wilhite was not entitled to participate in certain commissions earned and, if not in terms, in effect, set up an agreement by virtue of which Haile and Harless should share equally in the commissions so earned. It was, we think, proper for plaintiff to bring in both defendants and have the rights of each determined in the suit. If he was entitled to recover under his alleged agreement, then he would, if the facts warranted it, be entitled to a joint and several judg-! ment against them, as the case might be, and if one of the defendants collected more than his share of the earnings he should be made to respond to the other and a cross-petition to that effect would be proper. Where the interest of a person is necessarily affected by a suit, he is a necessary party, whether he is benefited or not. Where the ■ interest is joint all the parties in interest to be in any way affected by the decree or judgment sought to be obtained should be made parties. Cook v. Pollard, 70 Tex. 723, 8 S. W. 512; Pendleton v. Ferguson, 99 Tex. 296, 89 S. W. 758.

The subject-matter of the suit was the commissions earned; each party claimed an interest therein. True each set up a right thereto arising out of an alleged different agreement and state of facts. We cannot see very well how their respective rights could be finally settled or adjudicated without all being parties. We think under the state of facts alleged, had Haile instituted suit against Harless, Wilhite would have been a proper, if not a necessary, party. We see no serious objection in the defendant’s alleging a different agreement and facts from that alleged by the plaintiff in order to defeat his action and at the same time ask the court to adjust their rights, while the plaintiff is a party to the suit with reference to the subject-matter over which the suit is prosecuted. Multifariousness is an objection that can seldom be sustained, and is entitled to no liberal construction in its favor. If a petition confines itself to the adjustment of all the equities arising between the parties, however various in their origin, there is no sound principle governing the exercise of chancery jurisdiction that would restrain the court from disposing of all such matters, without driving the parties to another and distinct suit. Mateer v. Cockrill, 18 Tex. Civ. App. 391; 45 S. W. 751. Each case of multifariousness must be governed by its own circumstances and in a great measure left to the sound discretion of the court. Love v. Keowne, 58 Tex. 191, 198. Where the matters relied on are connected with or grow out of the same cause of action, or transaction and subject-matter in dispute, or the fund, an exception on the ground of multifariousness should not be sustained. Craddock v. Goodwin, 54 Tex. 578, 582. Particularly should this be the rule where the parties and evidence would be the same. In this case plaintiff was required to prove the commissions collected by the defendants. This same evidence would have shown who collected it. The defendants sought to defeat plaintiff’s cause by showing that it was they who made the sale under an agreement, between themselves, after plaintiff abandoned the negotiations ; hence the same testimony in defeating plaintiff’s cause would establish the rights between the defendants. We see no abuse of discretion on the part of the trial court, but think the issues between the several parties is over the same fund and that substantially the same evidence would sustain the one or defeat the other. Townes on Pleading, 430, et seq.; Dollar v. Lockney Supply Co., 164 S. W. 1076.

The second assignment of error is to the action of the court in overruling the sixth special exception to Haile’s cross-petition because his cause of action against Harless is based upon a contract entered into between them, which is a separate contract to the one declared upon by plaintiff in the original petition. From what has been said above it will be seen there was no misjoinder in the proper sense of the word. “If some of the causes of action be in one party and some in the other, each may, by appropriate pleadings, present his1 rights. The court will consider them all and will render judgment in favor of him who is entitled to the balance upon a comparison of claims'.” Townes on Pleading, p. 219. The soundness of appellant’s proposition rests upon the question whether there was in the cross-bill a mis-joinder as to parties and causes of action. As above seen, there was no misjoinder. Insurance Co. v. Beneke, 53 S. W. 98; Ney v. Ladd, 68 S. W. 1014; Finegan v. Read, 8 Tex. Civ. App. 33, 27 S. W. 261; Cardwell v. Masterson, 27 Tex. Civ. App. 591, 66 S. W. 1121. The first and second assignments are overruled.

By the third • assignment, complaint is urged by appellant to the action of the court in overruling his general exception to Haile’s cross-petition. The ground upon which the petition is said to be defective is that it does not allege the terms of the contract and that it does not allege the rights .and duties arising thereunder. In passing upon a general exception, every reasonable intendment arising upon the pleading is indulged in favor of its sufficiency. Gorham v. Dallas, etc., 41 Tex. Civ. App. 615, 95 S. W. page 557. In this case the allegations show that the sales were made by the joint efforts of Haile and Harless, and that by such efforts the commissions were earned, and that certain amounts thereof belong to Haile; that Harless retained and appropriated to his own use and benefit Haile’s part. While there is no allegation or statement in the plea to the effect that while they were wording together under an agreement to divide commissions as aforesaid, we think, construing the entire pleading, it is sufficient to show that the money was earned by the efforts of appellee, and that he was entitled to one-half of such earnings, and that appellants converted Haile’s part. The appellant himself set out a specific agreement that he and Haile were to work together and were to divide equally the commissions, and alleges the rights of the parties rested upon this agreement. The omission of the fact in pleading is cured by its allegation in the adversary pleading. McFarland v. Mooring, 56 Tex. 118; Grimes v. Hagood, 19 Tex. 246. If the facts did not warrant a recovery on Haile’s allegation and if his rights in reality rested upon an agreement the allegation was supplied by Harless’ answer.

Assignments 4 to 9 inclusive are overruled. These assignments relate to what appellant terms- special exceptions to certain paragraphs of the cross-petition. The exceptions are to the effect that the several paragraphs are vague, uncertain, and do not allege by what right Haile seeks a recovery against appellant. It, we think, is sufficient that it is alleged that certain sums of money were earned by the joint efforts of Haile and Harless, that they were equally interested and entitled to those sums and that Harless had collected and appropriated all of the money so earned. If half of the money was appellee’s and appellant retained it, we think he shows the right when he shows the fact and that he appropriated that belonging to Haile, a cross-action is shown against Harless. Haile having shown that he earned by his labor the commission, we think, shows the right.

The tenth assignment complains at the action of the trial court in refusing to instruct the jury that they should not allow Haile anything on the commissions earned in the sale of' stock to Smith by Harless, on the ground that there was no testimony authorizing a recovery therefor. The appellant set up the contract entered into between himself and Haile, to the effect that, in consideration of the profits to be made by each therefrom and the mutual assistance to be rendered each other in selling stock in co-operation with each other, all commissions earned by either were to be divided equally. Haile testified during the time they were working together he notified Harless of the fact that Smith was a prospective purchaser, but owing, then, to the want of time, they then agreed after a certain stockholders’ meeting they would see Smith, and Harless agreed to come by after Haile for that purpose. After the meeting, Harless, instead of going by after Haile, went to Smith with another man and sold the stock. We think under the agreement and the facts the court properly refused the charge. The rule where two or more brokers are employed to make a sale the first making the sale is entitled to the commission does not apply in this instance. The question is-: Did he make the sale while his agreement was in force with Haile? The jury found that he did, and the facts tend to support their finding.

eleventh and twelfth assignments are that the trial court should have given ap-apperemptory charge to find in favor of appellant for the item of $300, being one-one-of the commission earned on the sale of $4,000 of the stock to Bird, and that the ver-verand judgment for that sum is erroneous. It appears from the evidence the stock for $4,000 was sold to Bird. The Guaranty In-InCompany was selling stock of the Great Western Loan & Trust Company and the guaranty Company paid agents 15 per cent, and retained 30 per cent, for promotion, so that 25 per cent, was retained by the guaran-guarancompany from the sale of stock to pay these expenses. In the Bird case the agents took a note for $1,000 to pay the expenses above named. This note was turned over to the guaranty company. The agents Haile and Harless were entitled to 60 per cent, of this note and the guaranty company 40 per cent'. The uncontroverted facts in this case show that the guaranty company dis-disthis $1,000 note, Harless agreeing to share his part of the discount. The guaranty company discounted the note with the bank and paid Harless $300, being one-one-of the commission owing on the sale of the stock less his part of the discount out of the proceeds. Harless instructed the guar-guarcompany to put the balance of the com-comto the credit of Haile, and he testi-testiwithout contradiction, that he did not know what became of this sum afterwards. Haile testified that he did not know and had neter received it. The records do not show whether the guaranty company still has the money or who has it. Haile alleged that Harless appropriated.it to his own use and the jury, upon special issues, so found. Un-Unthe undisputed facts, we do not think the evidence shows that Harless got the mon-monHe is not charged by appellees with neg-neglosing it or with placing it with the guaranty company, or the like, or that he is liable otherwise than by appropriating it to his own use and benefit. We do not think the evidence shows that Harless collected the commission belonging to Haile on the Bird sale, but that it is conclusive the guaranty company, to whom the note had been turned over for collection, still retains the sum due Haile thereon, and we do not think that Har-Harshould be charged with that sum. The thirteenth assignment will be overruled 'for the reasons heretofore given.

We think the judgment should be reformed and, as reformed, affirmed. The judgment will be here rendered for the amount recovered in the court below, less the sum oí $300, with interest thereon at the rate of 6 per cent, from the 1st day of January, 1914, and up to the date of the judgment in the court below. The total amount of the credit, including principal and interest, made by us, is $307.-50. The judgment of the lower court will be reformed and affirmed with the costs of this appeal taxed against the appellee, Haile.

Reformed and affirmed.
      @r=Eor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <3fc»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes