author: CONLEY, C. J.

text:
    PATTERSON et al. v. BRYANT et al.
    (No. 106.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1916.
    Rehearing Denied Dec. 21, 1916.)
    1. Adverse Possession <3=»110(2) — Statute oe Limitations — Pleading—Complaint.
    To authorize judgment for one claiming under the ten-year statute of limitations a part of a larger survey, the land recovered need not be specifically described in the pleadings by metes and bounds, but under appropriate pleadings the adverse claimants may recover an undivided part of a larger tract.
    [Ed. Note. — For other eases, see Adverse Possession. Cent. Dig. §§ 638, 639, 642; Dec. Dig. <3=110 (2).]
    2. Adverse Possession <3=^114(2) — Ten-Year Statute op Limitations — Evidence.
    To authorize judgment for one claiming under the ten-year statute of limitations a part of a larger survey, the evidence need not show possession and adverse claim to a specified tract.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 685, 686; Dec. Dig. <3= 114(2).]
    3. Trespass to Try Title <®=?47(1) — Judgment — Description oe Land.
    A judgment in trespass to try title for defendant claiming 160 acres of a larger survey under the ten-year statute of limitations should determine the boundaries of defendant’s land by metes and bounds, either by the appointment of commissioners, or upon the evidence if sufficient.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 69; Dec. Dig. <3=47(1).]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Trespass to try title by W. WÍ. Patterson and another, executors, against Charley Bryant and others. From a judgment, plaintiffs appeal.
    Affirmed and remanded.
    J. G. Wool worth and R. W. Priest, both of Carthage, and C. M. Smithdeal, of Dallas, for appellants. W. 6. Banks, of Carthage, for appellees.
   CONLEY, C. J.

This is a suit in trespass to try title, brought by appellants, William W. Patterson and Thomas W¡. Patterson, executors of the estate of John D. Patterson, deceased, against Mrs. G. A. Briggs, Charley Bryant, D. W. Maxwell, Alec Slocum, and Mrs. Effie McPherson, appellees, to recover 344 acres of land, a part of the Daniel Tut-tle, Sr., survey situated in Panola county, Tex. Appellees answered by general demurrer, plea of not guilty, and pleaded the ten-year statute of limitation to the entire tract, claiming under muniment of title, and further pleaded, in the alternative, the statute of limitation of ten years to 160 acres of the land sued for, setting the same out by metes and bounds.

Appellants filed a supplemental petition, alleging that the appellee Mrs. Georgia Ann Briggs resided upon and claimed a tract of about 50 acres in the northeast corner of the original tract; that said 50 acres had been segregated, and the marks and lines of the same designated and determined; that her claim had never , extended to the entire tract, and that her claim of limitation should, on that account, therefore, not extend beyond the metes and bounds of the said 50-acre tract which she had in actual possession, and further set out that the land sued for was no part of the land actually occupied by Mrs. Georgia Ann Briggs.

Upon the trial of the case, the defendants (appellees) were awarded an undivided interest of 110 acres1 of the land sued for, which, added to the 50 acres that she had in actual possession, made a tract of 160 acres. The judgment of the court further decreed that the 110 acres was to be surveyed so as to be contiguous to the said 50-acre tract, and so as to include the improvements placed thereon by the appellees. While the evidence is conflicting upon many of the issues involved in this case, the record sustains the following conclusions:

That Daniel and Mary Tuttle came from the state of New York in February, 1836, and were granted a headlight certificate for a league of land, which was subsequently located in Panola county; that Daniel Tut-tle, joined by Mary Tuttle, transferred said headright certificate to Charles W. Jackson on June 20, 1838; that in the fall of 1838 Daniel Tuttle abandoned his family, and left the country; that Mary Tuttle claimed that she did not voluntarily sign the transfer of said certificate; that thereafter, on November 16, 1850, patent was issued to this land by the state of Texas to Charles' W. Jackson, assignee of Daniel Tuttle; that on August 1, 1838, Charles W. Jackson gave a bond for title to William H. Cowling for 700 acres of land, and the appellants, by mesne conveyances, claim to be the owners of the legal title to the 344 acres of land in controversy, same being a part of said 700-acre tract.

On December 13, 1842, under a proceeding in the district court of Harrison county, commissioners were appointed to partition the estate of Daniel Tuttle, deceased, under which partition proceedings one-half of said league 'of land was set over to Mary Tuttle, the wife .of said Daniel Tuttle, deceased. Georgia Ann Briggs,' one of the appellees herein, married - Coyie, who was a grandson of Mary Tuttle. They moved on the land in controversy in 1876, and, in accordance with the testimony of the appel-lee Georgia Ann Briggs, they were claiming the entire tract of land in controversy and took possession thereof as heirs of Mary Tuttle. The testimony further shows that in 1888 Mary Coyle, the mother of appellee’s husband, gave them some kind of a deed to the entire tract. This witness claims also that, when they moved on the land she had it surveyed; that from that time on she resided upon the land continuously, claiming the same with her husband, until his death, in 1892. After the death of her husband, she married a man by the name of Briggs, and continued to reside on the land for a number of years. On January 12, 1911, under the advice of an attorney, she accepted from a son-in-law, who had no title to said land, a deed to said land, which deed was duly recorded in the deed records of Panola county. The evident object of this deed was to place of record evidence of her claim to the entire tract of land, and to aid her title by perfecting a claim under the five-year statute. With the exception of four or five years, the appellee Mrs. Georgia Ann Briggs has held continuous1 possession of the tract, with about 50 acres under fence, from 1876 up until the date of the filing of this suit, February 26, 1914. The court, after hearing the evidence, awarded the appellees but 160 acres under their plea of ten-year limitation, the 50 acres being conceded by appellants as having been in the actual and adverse possession of appellees, and further awarded them the 110 acres adjoining said 50-acre tract and to be so surveyed as to include the improvements located thereon. The appel-lees do not make any complaint as to this judgment, nor do they cross-assign error for the failure of the court to award them the entire tract.

Appellants attack the judgment of the court under the first assignment of error as being contrary to the law and the evidence, in that appellee’s actual possession and claim was confined to a specific tract, the lines of which were fixed and determined, and that the possession within such lines could not be constructively extended to other lands.

The question ’of the restricted nature of appellee’s possession was a sharply disputed issue before the trial court, but the record shows there is ample evidence to support the judgment of the lower court against this contention. It would serve no good purpose to set out this evidence specifically, further than to say that the appellee Mrs. Coyle-Briggs testified that shortly after going on the land in controversy, in 1876, she had the entire tract surveyed, and has been claiming the same adversely, and exercising dominion thereover from that time up to the filing of this suit. There is also evidence to the effect that this same land was known and referred to in the neighborhood for many years as the “Coyle tract.” This assignment is therefore overruled

The second, third, and fourth assignments 'of error assail the judgment of the court upon the grounds that the uncontradicted evidence show's that defendant was not claiming any part of said- 110-acre tract until after January, 1911, when her son-in-law made a deed to her to said land. These assignments are based upon a misconception of the record.' The evidence on the subject of the claim to the land by appellee Mrs. Coyle-Briggs is positive and emphatic. Appellants’ evidence, of course, controverted her claims1 to the entire tract, but this only raised an issue, which, the trial court having decided against the appellants, we see no reason to disturb. For the reason herein stated, these assignments are overruled.

Appellants1’ fifth assignment 'of error is as follows:

“The court erred in rendering judgment for any of the land sued for herein, because the description as set out by the defendants does not describe, any specific 160 acres of land, but there is contained in the boundaries of said description more than ICO acres of land, and there was no proof that any part of the land described by defendant had ever been segregated from the other land, or any lines run, or corners established to show what land the defendant claimed, and the proof fully showed that no lines around this land had been run and established.”

Tlie first proposition under this assignment is:

“To authorize the court to render judgment for the defendant under the statute of limitation of ten years, for any part of a larger survey, the land recovered must be specifically described.”

Under this same assignment of error appellants submit a second proposition, as follows:

“To authorize a party to recover under the ten-year statute of limitation any other lands than those inclosed, it is necessary to show that the party was claiming certain specified lands, not in excess of 160 acres, which said land is defined by metes and bounds and marked lines and corners.”

An examination of appellees’ pleadings shows that Mrs. Coyle-Briggs first pleaded the ten-year statute of limitation to the entire tract of land in controversy, claiming the same under memorandum of title, and second, that she pleaded in the alternative that if she should be mistaken in her plea as to the entire tract, then she ought to recover 160 acres out of the Daniel Tuttle survey under the ten-year statute of limitation, setting out the same by metes and bounds, and which field notes so set out included the 50 acres about which there was no contention.

The judgment of the court awarded her the 50 acres claimed in her answer, and, in addition thereto, 110 acres out of the Tuttle league, to be so surveyed as to be adjoining and contiguous to said 50 acres, and to be so made as to include the improvements of ap-pellee upon said 110 acres, making in all a 160-acre tract. The 110-acre tract is not described by metes and bounds. This judgment is, in effect, a finding that the appellees were not entitled, under the pleadings and the evidence, to the specific 160-acre tract of land described in their answer, but that they were entitled to 160 acres out of the Tuttle league, including the said 50 acres, the 110 acres to be an undivided interest and to be surveyed adjoining said 50 acres, so as to include the improvements on the 110 acres.

It appears from the record that after Daniel and Mary Tuttle had transferred the headright certificate to Chas. W. Jackson, that he sold 700 acres to William H. Cowling, describing the same by metes and bounds, and which 700-acre tract includes the land sued for. Subsequently, Cowling and wife sold said 700-acre tract of land to R. G. Cartwright, and the heirs of Cartwright then sold it to J. D. McCutcheon, and on January 5, 1897, J. D. McCutcheon sold the 344 acres in controversy out of said 700-acre tract, describing the same by metes and bounds, to J. D. Patterson, deceased.

Since the decision of Lumber Company v. Kennedy, 103 Tex. 297, 126 S. W. 1110, and the decision in the ease of Louisiana & Texas Lumber Company v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 199, it is not necessary that the land recovered under the ten-year statute of limitation, when the same is a part of a larger survey, should be specifically described in the pleadings by metes and bounds, and possession and adverse claim to said specific tract shown by the evidence. Under appropriate pleadings, such adverse claimants may recover an undivided 160 acres in a larger tract. Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209, Titel v. Garland, 85 S. W. 466, and Id., 99 Tex. 201, 87 S. W. 1152, and other cases relied upon by appellants to sustain their propositions under these assignments, have been modified so as to meet the doctrine announced in this case.

In the case of Louisiana & Texas Lumber Company v. Stewart, supra, the court sa&:

“We think this opinion (referring to the case of Lumber Company v. Kennedy [103 Tex. 297], 126 S. W. 1110) settles the right of a claimant under the ten-year statute of limitation who has been in actual possession of a portion of a large tract of land claiming 160 acres thereof, without any deed or other muniment of title fixing the boundaries of his claim or without having such boundaries otherwise definitely fixed, to acquire title to an undivided 160 acres of such large tract including his improvements, and have the same designated and set apart to him by the court. If such occupant claims a specific 160 acres, he must sufficiently describe same in his plea to identify it and must prove his open and notorious adverse possession and claim for ten years of the identical land so described, or must show by pleading and proof that the setting apart to him of such specific 160 acres will not be an inequitable partition of the large tract between himself and his co-owner. If such occupant fails to show that he has held adverse possession of the specific tract claimed by him for ten years, and also fails to show that it would be fair and just to his co-owner to have the specific 160 acres claimed by him set apart to him by the court, he would nevertheless be entitled, under proper pleading, to have the court designate and set apart to him such 160 acres as the equities and justice of the case require. If necessary, the court might appoint commissioners for this purpose, and if there was sufficient evidence to authorize it a judgment could be rendered by the court, without the aid of commissioners of partition, setting apart to the occupant such designated 160 acres as in the judgment of the court would be just and equitable.”

This assignment of error is overruled.

Under the sixth assignment of error, it is contended that when the appellee pleads memorandum of title under the ten-year statute of limitation, and fails to prove any memorandum of title, it is error for the court to render judgment for the defendant for anything. A sufficient answer to this assignment and the proposition thereunder is to say that the pleadings of appellees included a plea of the statute of limitation of ten years, claiming under muniment of title, for the entire tract of land in controversy, and, in the alternative, for 160 acres only under said statute of limitation. There is no merit in this assignment, and it is overruled.

The seventh assignment of error is as follows:

“The court erred in rendering judgment, because the judgment of the court does not specify the land recovered by metes and bounds, and the judgment does not award the land sued for in and claimed in defendants’ second amended original answer, which was described by metes and bounds as having boon the property claimed by the defendant Mrs. G. A. Briggs, but decreed that the defendant Mrs. G. A. Briggs recover 110 acres of land to be surveyed out of the 344-acre tract sued for herein, the same to be surveyed so as to -be adjoining and contiguous to a certain tract of 50 acres of land upon which said defendant resides, and is to be surveyed so as to include the improvements of defendant upon said 110-acre tract of land, whereas the facts fail to show that defendant claimed the 110 acres, or that the same had been designated by marked lines, or that any taxes had been paid thereon by the defendant, and a total want of claim asserted to said land so awarded by said decree.”

There is only one portion of this assignment which we think is well taken; the balance of the assignment having been disposed of by what has been previously said. That portion of the assignment which attacks the judgment of the court as not specifying the land recovered by metes and bounds is well taken. The court should have determined the boundaries of the 110 acres, either by the appointment of commissioners, or, if the evidence was sufficient to authorize it, to make such determination without the aid of commissioners. In any event, the land awarded the appellee Mrs. Coyle-Briggs should have been set off to her by metes and bounds. In the present state of the record we are unable to fix and determine the metes and bounds of said 110 acres, and therefore it will be necessary to remand this case for further proceeding in that respect.

Judgment, therefore, will be entered affirming this cause as to the recovery of the land awarded appellee Mrs. Coyle-Briggs, but the case will be remanded to the trial court with instructions to fix and determine the metes and bounds of the 110-acre tract, and to partition the lands so as to have the 110-acre tract contiguous to and adjoining the 50-acre tract of appellees, the metes and bounds of said 110-acre tract to be so determined as to include the improvements thereon, and likewise made with a view to a just and equitable partition of the entire tract.

BROOKE, J., recused, not sitting.

       other cases see same topic and KEY-NUMBER in all Key- Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    TEXAS KALAMAZOO SILO CO. v. ALLEY.
    (No. 1052.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1916.
    On Motion for Rehearing, Dec. 20, 1916.
    Rehearing Denied Feb. 7, 1917.)
    1. Sales @=442(1) — Breach of Warranty— Value of Silo.
    In a suit for damages for breach of warranty of a hollow clay tile silo not to crack or bulge if erected on a suitable foundation, defendant having sold the material for the silo, which was constructed by plaintiff, the value of the silo could be predicated upon its cost, including the cost of material as well as of labor entering into its construction.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284, 1295; Dec. Dig. @=442(1).]
    2. Judgment @=251(1) — BreÁch of Warranty-Conformity to Pleading.
    In an action for breach of warranty of a silo, plaintiff could recover its full value as erected had it not cracked, though the pleadings did not allege the-amount'of cash paid on the silo, which was an element as evidence entering into its value.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. @=251(1).]
    3. Sales @=442(0, 7) — Breach of Warranty-Value of Silo.
    In an action for breach of warranty of a silo that it would not crack or bulge if erected on. a suitable foundation, plaintiff had the right to include the material and labor used by him in the erection of the silo as elements of its actual value, since, where parties at the time of making a contract have in contemplation some special end or purpose for which the article is warranted to be fit, if the buyer endeavoring to apply the article to the purpose for which it was warranted suitable sustains incidental loss, such loss is recoverable as special or consequential damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1290; Dec. Dig. @=442(6, 7).]
    4. Corporations @=503(2) — Venue of Actions — Breach of Warranty.
    Part of the cause of action for breach of warranty of a silo arose in the county where it was constructed and became defective, so that the company which sold the material for it could be sued therein under Rev. St. 1911, art. 1830, subd. 24, providing that suits against any private corporation may be commenced in any county in which the cause of action or a part arose.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1936; Dec. Dig. @=503(2).]-
    5. Judgment @=251(1) — Breach of Warranty — Pleading—Damages.
    In an action for breach of warranty of a silo, where there was no pleading for the rental value of the silo for five months for which the jury found in the sum of $75, such item of the recovery was improper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437 ; Dec. Dig. @==>251(1).]
    6. Sales @=441(4) — Breach of Warranty-Finding as to Damages — Sufficiency of Evidence.
    In an action for breach of warranty of a silo, evidence held insufficient to warrant the jury’s finding $240 for damaged ensilage.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1281, 12S2; Dec. Dig. @=441(4).]
    Appeal from District Court, Hale County; R. G. Joiner, Judge.
    Suit by Nick Alley against the Texas Kalamazoo Silo Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    See, also, 180 S. W. 621.
    H. C. Randolph and P. B. Randolph, both of Plainview, and Flournoy, Smith & Storer, of Ft. Worth, for appellant. Y. W. Holmes, of Plainview, for appellee.
   HENDRICKS, J.

The appellant, the Texas Kalamazoo Silo Company, sold the appellee, Alley, certain tiling, doors, steel hoops, steel door frames, gaskets, latches, etc., for the sum of $811.05, the same to be used by ap-pellee in the construction of a silo, on his farm in Hale county. According to the written contract of sale, Alley was to construct' tlie silo and furnish all the balance of the material at his own expense for its erection. The $S11.05, the purchase price of the material mentioned, was agreed to be paid in three installments, one third cash, paid upon delivery of the material, and the balance to be evidenced by equal notes, to be executed upon the arrival of said material.

The cash payment was made and the notes executed in accordance with the contract. The contract of sale contained the following warranty:

“This is to certify that the Kalamazoo Silo Company of Et. Worth, Tex., hereby guarantees their hollow clay tile silo to not crack or bulge, and to withstand all winds that does not destroy adjacent buildings, if erected on a suitable foundation, as instructed by this company. This guaranty is operative for five years from date of erection of silo.”

The appellee’s suit was one for damages for the value of the silo, $1,255.55, standing on plaintiff’s farm, if the same had been as warranted (which amount included $444.50, the value of labor and material furnished by plaintiff), and for $345, damage to the ensilage in the silo on account of the cracking.

The trial court submitted special issues to the jury, and the latter found that the value of the silo, as it was erected, had it not cracked, was $1,255.55. It was also found that said silo at the time it did crack had no value. The jury found' $75 for the use of the silo for five months and that jhe blocks and material in the silo for any purpose for which they might be used were of no value, additionally finding $240 for damaged ensilage in said silo, upon which amount the trial court rendered a judgment aggregating $1,556.06.

There is no complaint that plaintiff did not properly construct the silo on a suitable foundation, nor is there any objection to the findings of the jury that the silo or blocks and materials entering into its construction were of no value.

Following are the assignments of error in full, except the sixth assignment, raising a question of a plea of privilege:

First assignment of error: “The court erred in rendering judgment for the plaintiff in the sum of $1,556.06, on the verdict of the jury, because the verdict of the jury and the judgment of the court are without evidence to support them, in this: Plaintiff sued for $1,255.55, the alleged value of the silo if it had been as warranted by defendant, and for $345 damages to the contents. There is no evidence in the record that shows or tends to show the value of the silo if it had been as warranted by defendant, and there is no evidence of the amount of ensilage that was damaged on account of the silo cracking.”
Second assignment of error: “Tenth. Because the court erred in rendering judgment in this cause for the sum of $1,556.06 against this defendant for the reason that the same is an excessive judgment.”
Third assignment of error: “The court erred in rendering judgment for the plaintiff and against the defendant for the $75 found by the jury to be the rental value of the silo for five months, because plaintiff did not plead said item nor pray for the recovery thereof, nor was he entitled to recover the same under any construction of the facts and pleadings.”
Fourth assignment of error: “The verdict of the jury and the judgment of the court are contrary to the law and the evidence, in this: The plaintiff testifies for himself that he did not know how much rotten ensilage there was, and the evidence nowhere shows the amount of rotten ensilage; hence the recovery for damaged ensilage was unwarranted by the evidence.”
Fifth assignment of error: “Eleventh. Because the court erred in rendering judgment in this cause for said sum of money against this defendant for the reason that the same is not warranted by the pleadings in this cause, the plaintiff recovering herein for the full value of the silo as it was erected had it not cracked, when the pleadings do not allege that any amount was ever paid cash for said silo, and the plaintiff recovers not only the amount of cash, which he does not allege he was out by payment thereof, but also includes material and labor used by plaintiff in the erection of the silo.”

That portion of the first assignment of error (presented as fundamental error) claiming a lack of evidence tending to show the value of the silo, “if it had been as warranted by defendant,” irrespective of the question whether the point could be presented as fundamental error, cannot be sustained. The only criticism we obtain from the brief is that:

“No witness testified on the issue of the value of the silo if it had been as plaintiff claims defendant represented it to be, or would be, when completed.”

The value of the silo in this character of case could certainly be predicated upon its cost, including the cost of the material, as well as of the labor entering into its construction.

It is hard to assume that a subject-matter of this kind could, of itself, have a market value. It was upon the land, constructed for use relative to the preservation of feed for live stock. Hazed to the ground it would not be a silo, and its sale, including the foundation and the land, with the right of ingress and egress carrying with it its use, would rather be an anomaly.

We apply the same remarks to the fifth assignment of error, wherein it is complained that the plaintiff recovered the full value of the silo as it was erected, had it not cracked, “when the pleadings do not allege that any amount was ever paid cash for said silo, and the plaintiff recovers not only the amount of cash, which he does not allege he was out by payment thereof, but also includes material and labor used by plaintiff in the erection of the silo.”

Further, as to the last assignment mentioned, the pleadings would not have to allege the amount of cash paid on the silo; it would be an element as evidence entering into its value. However, we think it could be implied from the pleading that the cash payment was alleged to have been made.

“The price paid or agreed upon may have some tendency to show the value of the article as it should be if it were as warranted, and, in the absence of any showing to the contrary, it may be regarded as the value. Seigworth v. Leffel 76 Pa. St. 476.” Ash v. Beck, 68 S. W. 55.

We also think appellee had the right to include the material and labor used by him in the erection oí the silo as elements o£ its actual value. It is contended that all that the defendant did was to sell plaintiff certain material to be used in the construction of the silo and for which plaintiff agreed to pay defendant $811.05, and the recovery by plaintiff of a judgment for labor, hauling, material, etc., which under the contract he was to furnish, amounting to $444.50, “is not within the contemplation of the parties.”

It is noted that the warranty is in effect that the silo would not crack or bulge if erected on a suitable foundation as instructed by the company. The plaintiff obligated himself to construct a silo and furnish all labor and material for that purpose. The company certainly knew what the plaintiff had to do, and, no complaint having been made whatever to the findings of the jury as to the destruction of the silo, it becoming valueless on account of the cracking of same, we think in law it could be considered as having been in contemplation of the parties1 at the time the contract was made what would have been the loss to the plaintiff if the warranty that it would neither crack nor bulge was not complied with.

It has always been the rule, where the parties at the time of making the contract had in contemplation some special end or purpose for which the article was warranted to be fit, if the buyer, in endeavoring to apply the article to the purpose it was warranted as suitable, sustains loss incidental to such application, such loss, as special or consequential damages, is recoverable. Though literally the language of the warranty did not say that the particular silo was warranted to fulfill the function of a. silo after construction, however, there is ho question, from this record, but what its adaptability for that purpose would have been complete if it had not cracked or bulged, against which the warranty was specially made. A consideration of the following authorities will, we think, sustain the particular damages pleaded and recovered in this case above mentioned. Ellis v. Tips, 16 Tex. Civ. App. 82, 86, 40 S. W. 524; Dean v. Standifer, 37 Tex. Civ. App. 181, 183, 83 S. W. 230; Jones v. George, 61 Tex. 345, 347, 48 Am. Rep. 280; Chatham & Co. v. Jones, 69 Tex. 744, 745, 7 S. W. 600; Alamo Mills Co. v. Hercules Iron Works, 1 Tex. Civ. App. 683, 22 S. W. 1097; Houtchins v. Williams Bros., 25 S. W. 730.

Appellant cites the case of Miller Stone Machinery Co. v. Balfour, 61 S. W. 974, as decisive of the question that the cost of the material and labor cannot be recovered. The court did say in that case that the cost of drayage and the cost of putting the machinery in place were not recoverable for the reason that the items “must have been incurred by the purchaser in any event.” .The real facts of that case, as compared to the record here, exhibit the reason of the application of the rule applied by that court, and why a different rule should be applied by this court. The trial court in that case gave judgment for a difference between the value of the machinery had the contract been -complied with and the value of- the machinery as actually delivered. It may have been improper to have added the cost of putting the machinery in place and the drayage. In ' this cause there is1' a total loss, and Alley lost his drayage and other expenses as well, as his silo.

The pleadings in the case asked for a judgment for 10 per cent, interest on a part of the amount recovered. It was mentioned in the argument, but we find no complaint in the brief.

The corporation claims a privilege to be sued in Tarrant county. It very probably waived the right if it were conceded that it existed. Aside from the procedure, for an elementary reason, the assignment cannot be sustained. Subdivision 24 of article 1830, Rev. St. 1911, prescribes that:

. “Suits against any private corporation * * * may be commenced in any county in which the cause of action, or a part thereof, arose.”

Viewing the action as one for damages upon the collateral contract of warranty, a part of the cause of action at least arose in Hale county, where the silo was constructed and became defective. Houston Rice Milling Co. v. Wilcox & Swinney, 45 Tex. Civ. App. 303, 100 S. W. 204; Kell Milling Co. v. Bank of Miami, 155 S. W. 326; Railway Co. v. Hill, 63 Tex. 383, 51 Am. Rep. 642; Mangum v. Lane City Rice Milling Co., 95 S. W. 605.

The only proposition .under the second and third assignments of error relative to the excessiveness of the judgment is that plaintiff did not allege the rental value of the silo nor pray for a judgment for the same. The third assignment is presented as a fundamental error. The second assignment, with the proposition, probably raises the question, aside from that of fundamental error, and we think the same should be sustained. There is no pleading for the rental value of the silo for the period of five months, for which the jury found the sum of $75.

The fourth assignment of error, challenging the judgment of the court, based upon the finding of the jury of $240 for damaged ensilage, on the ground that the same is unwarranted by the evidencé, we think should also be sustained. The testimony of Alley and his witness Saigling, as to the amount of ensilage spoiled, is quite indefinite and it is very hard to arrive at any amount by mathematical calculation. We are not informed if the silo had been constructed 45 feet high whether it would have held 530 tons before the water was poured upon the feed, or whether, after it had become wet and settled, it would have held this quantity. Probably the more serious objection is that there is no criterion as to its value for this reason: The ensilage was valued at from $5 to $6 a ton, hut as an element of this value, as applied to this particular ensilage, the use of a section and a half of grass, lots, and troughs, and water, for the purpose of feeding the cattle of a purchaser, was considered. Saigling said, in speaking of its market value:

“Some of it sold at $5, and some of it at $6 per ton, depending on the kind of feed that was in the silo, whether it was good or bad; and the facilities for feeding it have something to do with it to some extent.”

Alley said:

“You can get out and sell ensilage sometimes and sometimes you can’t, and if you sell ensilage it has got to be fed on your place, and it would depend largely on the location of the place whether he could sell it or not. * * * I had my ensilage at a place where cattle could be kept.”

In another part of his testimony he said:

That the ensilage was worth $5 a ton, including the value of the grass. “Of course, the grass would be worth a little something, but I would not pay much for grass in the winter time when I was feeding, but the $5 would include the grass and the place for handling them and feeding them.”

The value of the use of the facilities, as well as the grass, should be deducted from the figures mentioned, but there is no criterion afforded for that purpose. We infer from the record that this character of feed could not be sold to be used any great distance from the silo. Necessarily the facilities and the grass, with the water afforded, would be a considerable element entering into the value of the ensilage, notwithstanding the opinionative statement of Alley in regard to the value of the grass. We think the finding of the jury of $240 for spoiled ensilage has no basis in the record to sustain it.

The judgment of the trial court will be reversed and remanded on account of the $75 found as the rental value of the silo, and the $240, as stated. If within ten days a remittitur for these amounts is filed in this court, the judgment of the trial court will be in all things affirmed.

On Motion for Rehearing.

In the motion for rehearing by appellee in this cause it is insisted that the $75, one of the items on account of which the cause was reversed, was in reality deducted by the trial court in the rendition of the judgment. On a more patient analysis of this matter we think this position is sustained.

The appellee’s argument in its brief under the first, second, and third propositions to the second and third assignments of error gives the process, though rather complicated, in arriving at the amount of the judgment actually rendered by the court, and by that process, which we are now inclined to think is correct, the sum of $75 is excluded from, instead of being added to, said judgment. However, as to the $240 found by the jury to be the value of the spoiled ensilage, for the reasons given in the original opinion, we still think the trial court committed error.

The motion is granted to the extent indicated, but is overruled on account of the error permitting the recovery for the $240, and the order of this court reversing and remanding the judgment of the lower court will stand, except as modified, with the condition that, if the appellee remits the said amount of $240 within ten days from this date, the cause will be affirmed.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J. HUFF, O. J.

text:
    WIGGINS v. STEPHENS.
    (No. 1089.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1916.
    On Motion for Rehearing, Jan. 31, 1917.)
    1. Covenants <©=>330(4) — Breach of Covenant of Warranty oe Title — Measure of Damages.
    Between the immediate parties the proper measure of damages for breach of a covenant of general warranty of title in an executed contract for the sale of realty is the purchase money paid, with interest, where there has been a total failure of title and the purchaser has lost the land.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 249, 250; Dec. Dig; <©=>130(4).]
    2. Covenants <©=>130(7) — Breach of Warranty of Title — Measure of Damages— Exchange.
    In the case of an exchange of lands, the measure of daftages for breach of a covenant of general warranty of title is the market value of the land conveyed to purchase that of the warrantor.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 252; Dee. Dig. <©=>130(7).]
    On Motion for Rehearing.
    3. Covenants <©=>130(5) — Breach of Warranty of Title — Partial Failure of Title.
    Where there is only a partial failure of' title in violation of a general warranty thereof, the value of the land lost to the warrantee must be ascertained as the measure of damages in the absence of an agreed value.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 253; Dec. Dig. <©=>130(5).]
    Appeal from District Court, Deaf Smith County; Wm. M. Knight, Special Judge.
    Action by A. D. Wiggins against H. B. Stephens. From a judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    Jno. W. Veale, of Amarillo, for appellant. W. H. Russell, of Hereford, for appellee.
   HENDRICKS, J.

The appellant Wiggins was the owner of 160 acres of land in Deaf Smith county, and conveyed the same to the appellee Stephens by general warranty deed; the real consideration being the exchange and conveyance by appellee, also by a general warranty deed, of 100 acres of land in Tennessee. It is undisputed that the transaction was a mere exchange of the two tracts of land, and that no other consideration was paid by either party; that no value was agreed upon by the parties as to either of the tracts of land at the time of the trade, and there was no fraud in the trade. The appellant Wiggins sued the appellee Stephens on the warranty, alleging that the Tennessee grant did not in fact exist at the date of the trial nor at any date anterior thereto, having been covered by senior and superior surveys. Wiggins alleged his damages in the sum of $2,500, as the reasonable market value of the land if the grant had existed with a merchantable title.

The case was tried by the court without the aid of a jury. It was found as a fact by the trial judge that the plaintiff obtained no title to the land in Tennessee, and that the land described in the deed to plaintiff would have been worth, with a title, the sum of $1,500. He further found, however, that the measure of damage, if any, sustained by appellant, was the value of the land transferred by him to appellee;' and having found that appellant, at the time he conveyed the land in Deaf Smith county, after deducting a prior mortgage and taxes charged on the land, had no equity in the Deaf Smith county land, judgment was rendered for appellee.

The challenge to the court’s action is well expressed in appellant’s first assignment of error, as follows:

“The court erred in his conclusion of law in holding that plaintiff’s measure qf damage was the value of the property conveyed by plaintiff ■to defendant; the true rule where the exchange of lands is had, under deeds with covenants of general warranty, title having failed, in the absence of any agreed value, and in the absence of fraud or deceit, or misrepresentations, the measure of damages is the reasonable market value of the land conveyed, to which defendant had no title.”

W,e are unable to find any decision by any of thé courts in this state directly upon the point, unless, as urged by appellant, the case of White v. Street, 67 Tex. 177, 2 S. W. 529, bears upon the issue.

It is the settled rule that, between the immediate parties, the proper measure of damages for breach of a covenant of general warranty of title, in an executed contract for the sale of real estate, is the purchase money paid, with interest, where there has been a total failure of title and the purchaser has lost the land. This rule prevails as an arbitrary one in the condition stated, without reference to the value of the land at the time of the breach or at any other time. Turner v. Miller, 42 Tex. 420, 19 Am. Rep. 47; Hynes v. Packard, 92 Tex. 49, 45 S. W. 562; Hollingsworth v. Mexia, 14 Tex. Civ. App. 363, 37 S. W. 455, and authorities cited. The same rule is usually applied in cases of breach of executory contracts to sell land unless there is an element of fraud, or willful refusal to' convey. Roberts & Corley, v. Mcfadden et al., 32 Tex. Civ. App. 54, 55, 74 S. W. 105 (writ of error refused).

It is said that the vendor should not be burdened with the responsibility for unknowable consequences, which may proceed from his sale, but should be able to contemplate in advance the measure of his liability. Roberts v. McFadden, 32 Tex. Civ. App. 47, 54, 55, 74 S. W. 105. It is also said that this rule of fixing the value as the,damages by the price agreed upon is forufied by the argument that it enables both parties at the time of their contract to know the liability which might arise upon the covenant, and does not leave the vendor of the land subject to unforeseen damages which might result from sudden depreciation of property or cost of improvements made by subsequent possessors. “It is confessedly not based entirely upon the idea of compensation for the loss sustained by the person evicted for it excludes a recovery for the value of the land at the time of eviction further than that may be compensated by restoration of the price received by the vendor.” Hollingsworth v. Mexia, 14 Tex. Civ. App. 367, 37 S. W. 455.

Justice Williams also said:

“As pointed out in Lowrance v. Robertson, 10 S. C. 8, wbat has been lost is the land itself, and the covenant, as interpreted by the rule of damages referred to is to restore in place of the land what the covenantor has received for it. The actual loss of the person evicted, the value of the land, may be more or less than this, but the liability of the warrantor is not varied by the fact.” Same case, supra, 14 Tex. Civ. App. 368, 37 S. W. 455.

In a case of a breach of a covenant of seisin, where the claim was made that the increase in the value of the land was recoverable, Justice Livingston of New York said:

'‘The safest general rule in all actions on contract is to limit the recovery as much as possible to an indemnity for the actual injury sustained, without regard to the profits, which the plaintiff has failed to make, unless it shall clearly appear, from the agreement, that the acquisition of certain profits depended on the defendant’s punctual performance, and that he had assumed to make good such a loss also.” Staats v. Ten Eyck, 3 Caines (N. Y.) 111, 2 Am. Dec. 254.

Chief Justice Rent, in' following Justice Livingston in rejecting the value of improvements at the time of eviction, in a case of a breach of a covenant of seisin, also said:

“The seller and the purchaser are equally interested in having the rule fixed. I agree that the contract is to be construed according to the intention of the parties; but I consider that the intention of the covenant of seisin, as uniformly expounded in the English law, is only to indemnify the grantee for the consideration paid; ⅜ * * and an the reasons of policy which prevent the .extension of the covenant to the increased value of the land, apply equally, if not more strongly, to prevent its extension to improvements made by the purchaser.” Pitcher v. Livingston, 4 Johns. (N. Y.) pp. 1-17, 4 Am. Dec. 229.

The appellant may suggest that such conditions producing the general rule stated, do not apply to the instant case, for the reason that this is not a case that could contemplate the value of increased profit or subsequent improvements laid at the time of eviction, where a covenant of seisin is broken; that his measure of damages only contemplates the value of what he should have obtained in presenti lost to the plaintiff.

And it may be further said, with considerable technical logic behind the argument, that the very cases cited by us recognize the rule that, at least, the desideratum is the value of tiie land lost, and in the case of the recovery of the price paid it is merely an agreed value of the land, and underlying this formula the contract is to restore that which is lost by the failure of the title; and where the value is not agreed upon in the case of a mere exchange of lands — simply one tract traded for another — you have no logical right to force the value of the consideration, that is the warrantee’s land that purchased the warrantor’s, as the measure of damages of the land lost.

The case of Booker v. Bell, by the Supreme Court of Kentucky, 3 Bibb, 173, 6 Am. Dee. 641, in commenting upon the rule that the consideration paid with interest is the measure of damages for a breach of covenant of warranty, uses this language:

“That there should be some rule upon this subject is manifest, and we know of none less liable to objection or better calculated to attain the ends of justice, than the one which has been established. The principle upon which the rule i;j founded is, that the purchase money and interest is the actual gain made by the one, and the actual loss sustained by the other; whereas if the amount to be recovered was to be more or less, according to the rise or the depression of the price of lands, the inevitable, result would be to enrich the one, to the prejudice of the other, contrary to the maxim both of civil and common law, that nemo debet locupletari aliena jactura.”

Though the price paid by the warrantee to the warrantor has a seeming advantage of an agreement for the value of the land lost where the title has failed, however, in analyzing the underlying reasons and actuating considerations we find upon a review of the authorities that: First, a safe and certain rule should be a criterion; second, the loss to the warrantee on account of the breach of the warranty; third, the lack of fluctuations of gain or loss either to the vendor or the vendee in the event of restitution — are the elements of the genesis of the rule.

As a matter of policy, would appellant’s rule, as a general rule, be a safe rule, and as fair a one to both vendor and ven-dee, under all conditions, in cases of exchange, as the one applied by the trial court —that is, to measure the warrantee's damages by the value of the property which bought the warrantor’s land, whether agreed upon or not? In reality, as a last analysis, appellant is contending for the value of his bargain in this particular instance. It is certain that if he had paid $600 cash for the land in Tennessee, and the same had been worth $1,500, he would not be entitled to his bargain; the law has fixed the measure by the consideration paid as an arbitrary rule, because a safe one. If he had paid $1,500 for the Tennessee property and the same was worth only $600, neither would be entitled to suffer the loss. In the last illustration it is fair that his warrantor should not keep the gain or ■ the difference, by confining his warrantee to the value of the land with bad title. He should not shoulder the loss upon his warrantee by keeping such difference. Hence, if the price paid, by the general rule previously stated as a fixed and arbitrary rule, is a just rule, for what reasons of public policy should the measure of damages be reversed and give the warrantee the value of the land .lost instead of restoring to him the value of the property which furnished the consideration, where the parties have not agreed upon the value of the two tracts in exchange? If the land received in exchange by the warrantor is of more market value than the land attempted to be conveyed by him to his warrantee, to make such warrantor restore the actual consideration (the value of such land retained by him) would be just. As a matter of equitable import, whether you measure that consideration by the price paid, or the agreed or market value of the property, we think the rule should be the same. In either instance, 1he warrantor never had any title, and where his land is of less value than that of the warrantee he is out nothing; in cases of exchange he pays the warrantee for the land received by him, and which he retains, by either the market value or the agreed value, as, similarly, where the warrantee pays in actual money. On the other hand, if the warrantor attempts to convey land, without title, of considerable more value than the land received by him from his warrantee, to make him pay the difference in value, by paying the full value of the land lost, is a burden. In the one ease the warrantor, whose defective title makes him respond in damages, if his land exchanged is of less value than the land received by him, the warrantee does not suffer and receives the value of the property he has parted with and which is retained by the warrantor. In the other case, if the land, to which the title has failed, is of greater value, the warrantor does not suffer if he retains the warrantee’s land with a good title and pays for it. By appellant's rule there is chance for loss to both parties. The warrantee may or may not be indemnified — he will gain or lose, or be reasonably and equitably compensated, according to conditions; he would be equally compensated only in cases where the lands exchanged happen to be of equal value. The warrantor by the other rule will neither gain nor lose, but simply pay for the land he keeps, whether it was agreed value or market value. Also by appellant’s rule, in cases where the warrantor’s land is of less value than the warrantee’s you would violate the fundamental, rule that the loss to the injured party is the just rule of compensation.

Though the able courts of this country, in adopting the price paid as the measure of value of the land lost, had the advantage, in that character of case, in that the same was agreed upon between the parties, however, the reasons for the adoption of that rule reach deeper, as a matter of public policy under all conditions and for all purposes, in the affairs and transactions of men. If the same reasons which inherently gave birth to that rule, as a matter of public policy, are in reality applicable to the present condition, then the market value of the war-rantee’s land purchasing that of the war-rantor should be the measure, for such reasons are persuasive of an extension of the same rule in another form to the present condition.

Sedgwick on Damages (9th Ed.) vol. 3, presents the following cases for and against the rule contended for, where an exchange of property was involved: Oases holding the value of the land conveyed by the plaintiff as the measure of damages, Looney v. Reeves, 5 Kan. App. 279, 48 Pac. 606; Cook v. Curtis, 68 Mich. 611, 36 N. W. 692; Burke v. Beveridge, 15 Minn. 205 (Gil. 160); Evans v. Fulton, 134 Mo. 653, 36 S. W. 230; Howard v. Hurst, 156 Mo. App. 205, 137 S. W. 1; Mayer v. Wooten, 46 Tex. Civ. App. 327, 102 S. W. 423. The cases cited as presenting the value of the land to which the title failed as the measure of damages, Donlan v. Evans, 40 Minn. 501, 42 N. W. 472; Holmes v. Seaman, 72 Neb. 300, 100 N. W. 417, 101 N. W. 1030; White v. Street, 67 Tex. 177, 2 S. W. 529. In addition to the class of cases first cited by Sedgwick, on the point that the value of the warrantee’s land traded to the warrantor is the criterion, we further cite the cases of Hodges v. Thayer, 110 Mass. 286, and Lacey v. Marnan, 37 Ind. 168, 171. We will not analyze the different opinions cited by Sedgwick, but we do not think that all of the cases cited on each side of the controversy are wholly on the point.

The case of Hodges v. Thayer, supra, by the Massachusetts court, when properly weighed, is, we think, quite persuasive of the question. It was an action for breach. of the covenants of seisin and right to' convey. The deed stated the consideration as a certain sum of money. The consideration, in fact, was the conveyance by the warrantee to a third person of real estate belonging to said warrantee (a. married woman) and of personal property belonging to her husband. It was held that the measure of damages was the value of this real and personal property.

After stating the general rule that the measure of damages for breach of the covenants was the consideration paid, or price agreed upon, for the conveyance, it was said:

“It does not modify the rule if the actual consideration was paid in other commodities than money, or even in other real estate. It only requires that the value of such other property be ascertained.”

On superficial reading, it may be thought that the case was one of agreed value in exchange. On a more careful reading, we think that the real point was as stated.

It is true that in Massachusetts, without citing the cases, on a breach of a covenant of warranty, for technical reasons “harking” back to the common law, the warrantee recovers the value of the land lost, at the time of eviction, even to the extent of improvements. However, on covenants of seisin, and right to convey, the rule is measured by the price paid, with interest.

The case of White v. Street, 67 Tex. 178, 2 S. W. 529, seriously relied upon by the appellant, as an authority for his rule, we do not think has the full force of application contended for. The plaintiff transferred 160 acres of land and a $100 note (thereafter paid) to defendant, in exchange for certain property in Cleburne and 63 acres of land. The title to the 63 acres failed. The plaintiff asserted an agreed value of $500 for the 63 acres and $400 for the Cleburne property, equalling the agreed value of the 160 acres of land and the $100 note given by him. The defendant denied any agreed valuation, and Justice Stay ton held that the plaintiff was either entitled to the agreed valuation of the 63 acres lost, or the true value, in the event there was no agreement. Our only concern is to state the case as we understand the facts to show, as we think, the conditions are not the same. Justice Stay ton, however, did state, in speaking of the evidence of the defendant:

“His own evidence shows that a consideration was paid to him for the 63 acres; and for that, at least, with interest on it, he was liable upon his warranty.”

This case to us is and has been upon a previous consideration difficult of understanding in the event there was no agreed value to any of the tracts. This difficulty is probably our fault and not that of Justice Stayton. However, we do not believe the case is applicable to the facts ruled upon in this record.

The case of George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456, by Chief Justice Gains, cited by appellee, is one where the defendant represented the existence of a flowing well on the land traded by him to the plaintiff, which the jury found to be untrue. The trial court held that the difference between the value of the property in the condition as it actually existed, received by the plaintiff in exchange, and its value if it had been as represented, was the measure of damages. The Supreme Court held that the difference between the value of the property as actually existent received by plaintiff and the value of the property traded by plaintiff to defendant in exchange was the measure, and not what plaintiff would have gained if the gusher had been on the land. The value of this case as an authority is to the extent that the real loss to the plaintiff should be the measure, and not the gain or difference, between the actual value of the land as it actually existed and its value if the land had. been as represented. There was considerable difference in dollars per acre measured by the difference between the values with a flowing well on and off the land; but the court said what Hesse “lost by the transaction is the measure of his damages.”

Judgment affirmed.

On Motion for Rehearing.

HUFF, O. J.

The appellant contends that the case of White v. Street, 67 Tex. 177, 2 S. W. 529, announces the rule that the value of the land lost is the measure of damages upon the breach of the covenant of warranty. It should be noted in that case there was only a failure of title to one tract of land conveyed and received in exchange of other land. There was not an entire loss or total breach; hence the value of the part lost should be ascertained in order to get the basis for the damages sustained. If the value of the tract lost was not agreed upon by the parties, then its value at the time of the conveyance. In this case the entire tract conveyed was lost, and hence a total breach of the covenant, and, as interpreted by our courts, the covenant required a return, in place of the land, what was paid for it. If nothing was paid, then there was nothing to restore, except, perhaps, nominal damages. In Hodges v. Thayer, 110 Mass. 2S6, it is said:

“The only other question relates to the proper measure of damages for the breach of the covenant of seisin and right to convey. The general rule is well settled that the measure of damages for breach of this covenant is the consideration paid, or price agreed upon for the conveyance. * * * It does not modify the rule, if the actual consideration was paid in other commodities than money, or even other real estate. It only requires that the value of such other property be ascertained.”
“If the amount of the consideration is not expressly agreed upon and has been paid in property, it would follow that the value of that property should be adopted as the basis of damages on a breach of the covenant of warranty, if the consideration is adopted as the criterion (which, as has been pointed out, is the basis of damages in this state), as we have seen in the case in assessing damages for breach of the covenant of seisin and power to convey.” 2 Suth. on Damages, §§ 594, 606.

In McGuffey v. Humes, 85 Tenn. 26, 1 S. W. 506, the Supreme Court of Tennessee states the rule as follows:

“But under the rule as to the measure of damages, as we understand it, the value of the land cannot be looked to where the parties have agreed upon the value of the personal property constituting the consideration for’ the land, or where the actual value of the consideration can bo ascertained from the proof. If neither of these measures can be applied for the want of proof, then the actual value of the land at the time of the purchase will be taken-as the measure of damages, with interest.”

7 R. C. L. “Covenants,” § 93, p. 1174, states the rule:

“If the consideration of the deed be land, by way of exchange, the value of that land at the time of the deed, with interest, will be the measure of damages.” Cummins v. Kennedy, 3 Litt. (Ky.) 118, 14 Am. Dec. 45.

In Mayer v. Wooten, 46 Tex. Civ. App. 327, 102 S. W. 425, the rule is stated:

“If the consideration is not paid in money, but in other property, the value of the property given is the measure of damages, and parol evidence is admissible to show such value. Jones, Real Prop. & Cov. §§ 948, 949.”

The rule that where there is a total failure of title that the. consideration is the measure of damages is established beyond question in this state, but where there is only a partial failure, as in White v. Street, the value of the land lost must be ascertained in the absence of an agreed value. This rule is again recognized by the Supreme Court in Hynes v. Packard, 92 Tex. 49, 45 S. W. 562, with only the added rule by the court for establishing the proportional amount of the consideration recoverable on account of the loss. These eases do not change, or purport to change, the rule of damage upon total breach. The consideration paid, whether it be money or property, represents the land purchased, and. hence the consideration, with interest, is recoverable as the measure of the damages for the breach.

The motion will be overruled.

BOYCE, J., not sitting.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■


author: CONNER, C. J.

text:
    HAILEY v. BROOKS et al.
    (No. 8671.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 23, 1916.)
    1. Schools and School Distbicts <§=>169 — Powers of Officers.
    Generally speaking, the superintendent, principal, and board of trustees of a public free school, to a limited extent at least, stand, as to pupils attending the school, in loco parentis, and they may exercise such powers of control, restraint, and correction over such pupils as may be reasonably necessary to enable the teachers to perform their duties and to effect the general purposes of education.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 341; Dec. Dig. <§=>169.]
    2. Schools and School Districts <§=>172 — Powers of Officers — “Boycott.”
    Where the principal, superintendent, and school trustees inaugurated a school cafeteria and supply house, and established a rule for punishment of pupils who purchased supplies of plaintiff, who alleged that he was selling wholesome food in premises wherein order was maintained, and that the sole purpose of the order was to destroy his business, their action amounted to a boycott, and transcended their authority —(citing Words and Phrases, First and Second Series, Boycott).
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. § 343; Dec. Dig. €=>172.]
    3. Monopolies €=>17(1) — Acts of Public Officers.
    If the inference can be said to be warranted that order of school officers, establishing supply house and prohibiting pupils from trading with plaintiff, was in the interest of public schools, neither the superintendent, principal, not trustees would be authorized to act in violation of Vernon’s Sayles’ Ann. Oiv. St. 1914,_ arts. 7796, 7798, prohibiting trusts for a purpose not properly pertaining to the interest of the pupils, the cause of education, or the preservation of school property.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. €=>17(1).]
    4. Appeal and. Error €=>837(3) — Scope of In quiry — In junction ._
    Where an injunction is refused upon the petition alone, the court, on appeal from the order made ex parte, cannot consider the supposed knowledge of the judge or contradictory affidavits by the defendants, but is limited to the petition.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3263; Dec. Dig. €=>837(3).]

      5. Injunction €=>152 — Riqht to Hearing— Discretion of Court.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4651, providing that on application for injunction the judge may fix the time for hearing, it is within his discretion whether there shall be a'hearing, and a failure to grant a hearing does not affect his jurisdiction, since even if the injunction is granted, the defendants may pi’o-cure a hearing by a motion to dissolve the writ.
    [Ed. Note. — For other case, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. €=>152.]
    Appeal from District Court, Taylor County.
    Injunction-by E. E. Hailey against J. D. Brooks and others. From an order denying the writ, petitioner .appeals.
    Order set aside, and cause remanded.
    Kirby & King, of Abilene, for appellant. Ben L. Cox, of Abilene, for appellees.
   CONNER, C. J.

This appeal is from an order of the district judge of the Forty-Second judicial district denying an injunction sought in the petition of E. E. Hailey. The petition complains, of J. D. Brooks, superintendent, and A. H. Roberts, principal, of the Abilene Public Free Schools, and of others alleged to be trustees of the district of said schools. It is charged, in substance, that the petitioner, Hailey, owned and conducted a small mercantile establishment adjoining the Abilene Central Ward and the Abilene High School Buildings;. that he therein offered for sale to the pupils and children attending the schools mentioned various and sundry school supplies, such as pens, pencils, tablets, and ink, and in- addition thereto sold to such students “out of good and wholesome material” hamburgers composed of bread and mashed meats, properly cooked, as also other little articles of food and confections, all of which are alleged to be wholesome and harmless. It is further alleged that the business had been conducted for some time, and that the plaintiff, by careful attention, had built up a business of the net profit to him of $30 a week. Ee further alleges that in the conduct of his business he maintained orderly, decent and respectable premises; that nothing was permitted in and about his premises that would in any way demoralize the school children; that the lunches and wares sold to such children were of the reasonable value for which he sold them, and as good as could be had for the money at any other place in Abilene; and that such things were necessities under the circumstances; notwithstanding all of which, that on a date named in October of the present year, the said superintendent and principal, joined by said trustees—

“each and all of them maliciously, unlawfully and willfully, and without just cause, and with the intention then and there of destroying the business owned and operated by this plaintiff, and with no other purpose in view, conspired together and did enter upon a course of action, which was put into effect by the said superintendent, principal, and trustees as aforesaid, to the end that a rule or order was promulgated by the authorities aforesaid that any and all children attending the Abilene public schools, and particularly the Abilene High School and the Abilene Central Ward School, were prohibited from dealing and trading with this plaintiff, and were personally, publicly, collectively, and separately warned and commanded not to trade with this plaintiff, and upon penalty that they would be punished by the authorities, and, if persisted in, that they would be expelled from school.”

It is further charged:

“That the purpose of this act and order by the defendants was to inure to the benefit of an establishment of a like kind which had, on or about that time, been opened in the basement of one of the school buildings, and which said establishment was dealing in the same character of wares, merchandise, and food as this plaintiff, and which said establishment this plaintiff charges was owned and controlled by the defendant J. B. Brooks and A. H. Roberts, and other members of the faculty of the Abilene High School, the names of which are unknown to the plaintiff; that by such order, prohibiting children and patrons of this plaintiff from dealing and trading with him, it was intended, and so stated by these defendants herein, that the purpose of the same was to enforce the children to trade with the establishment in the basement of the public school building, to the end that persons other than this plaintiff would profit thereby, and to the end that this plaintiff would be driven from his location and his business destroyed; that defendants and their agents and servants stated publicly that they would put plaintiff out of business, and that they .took the action complained of for no-other purpose.”

It is further alleged that since the order complained of went into effect, the patronage of his business has absolutely ceased through fear on the children’s part of punishment, and tnat as a result his said business has been ruined and destroyed. It is charged that said order was unreasonable and without the scope of defendants’ authority, and because it had been promulgated with the avowed purpose and intention to destroy the plaintiir’s business, and had been issued maliciously and willfully, and he prays for actual and exemplary damages in the sum of $5,030.

The petition was duly verified by the plaintiff, Hailey, but on presentation to the judge of said district court, his prayer for the issuance of an injunction was denied; hence the appeal, as stated in the beginning.

Generally speaking, it must he said that the superintendent, principal, and board of trustees of a public free school, to a limited extent at least, stand, as to pupils attending the school, in loco parentis, and they may exercise such powers of control, restraint, and correction over such pupils as may be reasonably necessary to enable the teachers to perform their duties and to effect the general purposes of education. Reasonable rules to enforce discipline, to preserve order, both in the school building and upon the grounds, to protect the morals, the health, and the safety of pupils, and to do, and to require pupils to do, whatever is reasonably necessary to preserve and conserve all of these interests may be made and enforced. But any such rule or regulation, whether adopted by the teachers or by the trustees, or by the concurrence of both teachers and trustees, must be reasonable within itself, and not opposed to some specific rule of law. See 35 Cyc. 1134, 1135; State v. Randall, 79 Mo. App. 226.

It seems clear to us that the rule and regulation complained of by the appellant, as alleged in his petition, contravenes the principles above announced. He alleges, in substance, that the merchandise or wares vended by him were good and wholesome, that he maintained order in and about his premises, and that the “sole purpose” of the promulgation and enforcement of the order complained of was to destroy his business in the interest of others. Such confederated action for such purpose, and such purpose alone, necessarily excludes any purpose which it would be lawful and proper for the teachers and trustees to entertain and attempt to enforce. It amounts to a “boycott” of the appellant, which, in popular acceptation, may be said to be an organized effort to exclude a person from business relations with others by persuasion, intimidation, or otherwise, and therefore within the meaning of unlawful conspiracies, which will be restrained upon proper application. See 1 Words and Thrases, title, “Boycott,” page 855. Indeed, the action complained of, as it is alleged, seems to come fairly within those acts, agreements, or combinations denounced by our statutes on trusts. Article 7796, 4 Vernon’s Sayles’ Texas Civil Statutes, defines a “trust” as:

“A combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following purposes: (1) To create, or which may tend to create, or carry out restrictions in trade or commerce * s * or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state. * * * (7) To abstain * * * from the purchase or sale of merchandise, produce or commodities.”

Article 7798 of the*same chapter reads:

“Either or any of the following acts shall constitute a conspiracy in restraint of trade: (1). Where any two or more persons, firms, corporations or associations of persons, who are engaged in buying or selling any article of merchandise, produce or * * * commodity, enter into an agreement or understanding to refuse to buy from or sell to any other person, firm, corporation or association of persons, any article of merchandise, produce or commodity. (2)' Where any two or more persons, firms, corporations or association of persons shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation or association of persons, for buying from or selling to any other person, firm, corporation, or association of persons.”

Article 7799 reads:

“Any and all trusts, monopolies and conspiracies in restraint of trade, as herein defined, are prohibited and declared to be illegal.”

Appellees have suggested to us in their answering brief that it is to be inferred that the order complained of was in. the interest of the public schools, but, as we have seen, as it seems to us, the language of the plaintiff’s petition excludes any such inference. But even if the inference can be said to be warranted, neither the superintendent, principal, nor trustees would be authorized to proceed in the manner alleged in violation of our statute, and for a purpose not properly pertaining to the interests of the pupils, or the cause of education, or to preservation of school property.

Appellees further argue that it is to be presumed that the district judge who refused the writ of injunction was on the ground, and did so because.of his personal knowledge of the parties, the situation, and of the lack of foundation for the charges made in the petition, and affidavits on the part ■ of the superintendent and by one or more of the trustees complained of are attached to the brief, which may be said, in certain particulars, to contradict the allegations of the appellant’s petition, but we do not understand that we are authorized to consider either the supposed knowledge of the judge or the contention of said affidavits. The district judge acted alone upon the appellant’s petition, without a hearing of any character, and for this court to now undertake to determine the issues indicated by the conflicting affidavits and inferences suggested would, in effect, be to deprive the plaintiff of his right to offer testimony in open court in support of the truth of his averments. It has accordingly been held that such an answer and affidavit on appeal can only be considered when the same constitute a part of the ease before the judge at the time he made the order appealed from. In other words, when the hearing hy the judge is ex parte, and the order refusing the injunction, as here, is based upon the allegations in the’ petition alone, answers and counter affidavits filed after the order has been made cannot be considered on appeal. See City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 460; Midleton v. Presidio County, 129 S. W. 637.

But brief notice will be necessary, we think, of the further suggestion in argument, to the effect that to now disturb the court’s order is to deprive the 'appellees of the right or privilege of a hearing. Our statute provides that, upon an application for any writ of injunction, the judge may, if he is of the opinion that delay will not prove injurious to any party, cause notice of the application to be served upon the opposite party, his agent or attorney, and fix a time and place for the hearing of the application. 3 Vernon’s Sayles’ Texas Civil Statutes, art. 4651. Whether there shall, be a hearing, however, rests in the sound discretion of the judge to whom the application is presented, and a failure in this,respect does not affect his jurisdiction to grant or refuse the writ without such hearing. Commissioners of Floyd County v. Nichols, 142 S. W. 37; Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 42. Upon the granting of the prayer of the petition in any given case, the appel-lees may procure a hearing by a motion, under the statute,, to dissolve the writ, or they may delay until, a trial upon the merits, and thus secure a hearing.

We conclude ".that the court erred in refusing appellant’s prayer for a writ of injunction upon the showing made upon the face of the petition alone, and the order to that effect is hereby set aside, and the cause remanded for further proceedings in accordance with this opinion.
      <2=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    RAWLINGS et al. v. LEWIS et al.

    (No. 1078.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1917.
    Rehearing Denied Jan. 31, 1917.)
    1. Mortgages <g=>342 — 1Trust-Deed—Substi-tution of ’Trustee.
    Where attorney of assignee of notes secured by trust deed requested trustee to refuse to act so that the attorney might sell the property as substituted trustee, this was not a request by mortgagee to act and refusal by. the trustee, as required by the trust deed before substituting another trustee; the holder of the notes Having no such power under the deed.-
    [Ed. Note. — For other eases, see Mortgages, Cent. Dig. § 1041; Dee. Dig. <⅜⅛3342.]
    2. Mortgages <®=>342 — Trust Deed- — Rights of Trustee.
    Where a trustee in a trust deed was authorized to sell only on the mortgagee’s request, such power remained dormant until the proper request was made, and he could not give a valid refusal to act to any one but the mortgagee.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1041; Dec. Dig. <®=^342.]
    3. Mortgages <®=»342, 37¾3) — Foreclosure Sale on Trust Deeds — Substituted Trustee.
    Where trust deeds, securing notes, authorized the trustee to sell on default of payment at mortgagee’s request and gave mortgagee power to appoint a substitute trustee upon the trustee’s refusal to act, the transferee of the notes had no authority to appoint a substitute trustee, and the deed of trustee substituted by him conveyed no title.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1041, 1106-1108; Dec. Dig. <§= 342, 372(3).]
    4. Mortgages <s=>342 — Trust Deed — Rights of Beneficiary.
    The beneficiary under a trust deed should not be permitted to create such conditions as will accomplish his own ends regardless of the original agreement.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1041; Dec. Dig. <S=>342.]
    Appeal from District Court, Dallam County; D. B. Hill, Judge.
    Suit to cancel deeds by Etta Lewis and others against J. D. Rawlings and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Veale ■& Lumpkin, of Amarillo, and R. E. Stalcup, of Dalhart, for appellants. W. I. Gamewell, of Stratford, and Clifford Braly, of Dalhart, for appellees.
   HUFF, C. J.

The appellee, Etta M. Lewis, brought suit against J. D. Rawlings and D. E. Powel, to cancel four certain deeds,, executed by R, E. Stalcup, as substitute trustee, to the four quarters of a section of land in Dallam county, alleging substantially that the deeds were executed without the power to do so, and that Stalcup was not, under the deed of trust, properly substituted for the trustee. The trial court, after the evidence was in, instructed a verdict for the appellee, plaintiff below, on the ground that Stalcup had no authority to execute the deeds to Powel, as substitute trustee. The jury, under his directions, rendered a verdict for the appellee, upon which verdict judgment was rendered for appellee canceling the four deeds, and decreeing the title in her to the entire section of land. The only assignment of error calls in question this action of the court instructing a verdict, and appellant admits that if the court was correct in so instructing the verdict, on the grounds stated, that the judgment was properly entered. There are a number of issues presented by the pleadings of the parties which will be unnecessary, under the assignments, to consider.

The appellee Etta M. Lewis has title by mesne conveyance to herself from J. D. Rawl-. ings. Rawlings, s'ome time previous to Miss Lewis’ title, sold this land to one S. E. Gates; making separate conveyance to the four quarters of tlie section and taking therefor on each quarter notes due in one, two, three, and four years, for $134.72 each. All the first three notes were paid, only leaving the last note, due four years after date, due on each quarter. To secure these four notes, S. E. Gates executed his certain deed of trust, naming W. B. Slaughter as trustee in the ^eed. This deed of trust was given separately on the four quarters, to secure the notes due on each. After setting out the conveyance and description of the property and the notes secured, the power is as follows:

“But, in ease of failure or default in the payment of said promissory notes, together with the interest thereon accrued, according to their terms and face, at the maturity of the same, then in such event, said W. B. Slaughter is by these presents fully authorized and empowered and it is made his special duty, at the request of the said J. D. Rawlings, at any time made after the maturity of said promissory notes, to sell the said above-described property to the highest bidder- for cash at public outcry,” etc.
“It is expressly agreed that the recitals in the conveyance to the purchaser shall he full evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed; and it is hereby' specially provided that should the said W. B. Slaughter, from any cause whatever, fail or refuse to act, or become disqualified from acting as such trustee, then the said J. D. Rawl-ings, or other holder of said indebtedness, shall have full power to appoint a substitute in writing who shall have the same powers as are hereby delegated to the said W. B. Slaughter; and I, by these presents, fully and absolutely ratify,” etc.

It is shown that Rawlings, on or about the 19th day of July, 1915, transferred the note last matured on each quarter to D. E. Powel, known as Ellis Powel, and that Powel at once placed the notes in the hands of R. E. Stalcup, as an attorney, to collect the same. It appears that after the execution of the deed of trust naming Slaughter as trustee, that he (Slaughter) moved from Dallam county to Dallas county. On July 20, 1915, R. E. Stalcup wrote to W. B. Slaughter in Dallas, Tex.:

“My dear Judge: About the year 1907 Judge Rawlings sold to one ,S. E. Gates four quarter sections of land in Dallam county, Texas, and took as security a deed of trust on each quarter to secure four notes on each quarter of the sum of $134.72 each. All the notes except one of each series have been paid. You were named as trustee in each deed of trust. Judge Rawl-ings sold these four notes to Ellis Powel, and Powel has turned them over to me to foreclose. I have prepared a. waiver of your rights to act as trustee, which I shall be glad you will sign and return to me by return mail so I can have time to get my notices properly prepared in time for sale.”

To this letter Slaughter replied under date of July 23d, to Stalcup, as follows:

“Dear Judge: I have your letter of July 20th with the waiver of rights as trustee, which I gladly sign and return to you.
“Hoping this will meet with your approval and wishing you success, I beg to remain, etc.
“[Signed] W. B. Slaughter.”

In the waiver mentioned, after reciting rlie facts of the execution of the deed of trust and the notes, and the fact that only one note on each quarter remains unpaid, and the notes had been transferred to Powel by Rawlings, and that Powel has requested that said trust be enforced, this clause follows:

“Whereas, I, the undersigned, W. B. Slaughter, having moved from said county of Dallam and not desiring to or being in a position to execute said trust, I hereby notify the said J. D. Rawlings, as well as the said assignee of the said notes, that I will not execute the said trust mentioned in said deed of trust, and hereby request that a substitute trustee be appointed.”
Dated the 20th day of July, 1915.

Powel executed an instrument substituting R. -E. Stalcup as substitute trustee. Stalcup thereupon gave notice for the sale of the land to take place September 7, 1915, reciting the facts with reference to the substitution; and on the 7th he did sell the same to D. E. Powel. There is no evidence in the record that Rawlings, Stalcup, or Powel, or any one else, ever requested W. B. Slaughter to sell the property as trustee under the deed of trust. All the request that was made was contained in the letter between Slaughter and Stalcup, and the waiver; however, in the notices it seems that Stalcup recited that Slaughter had refused to execute the trust after being requested.

The facts referable to the execution of the trust are aincontroverted and it was therefore a question of law for the court. The issue for determination is upon the facts, whether or not the substitute under the trust deed had the power to sell, and whether his deed to the purchaser conveyed any title; if not, the court properly instructed a verdict and rendered judgment, canceling the deed as a cloud upon the appellee’s title. The letter from Stalcup to Slaughter shows that he prepared a waiver of the right of Slaughter to sell under the trust deed, and Slaughter’s letter shows he signed such waiver as requested and returned it to Stal-cup. By these letters and other evidence it is shown Stalcup expected to and did act as substitute trustee.. This waiver, prepared by Stalcup, who was then attorney for Powell, and signed by Slaughter, recites:

“I hereby notify the said J. D. Rawlings, as well as the said assignee of said notes, that I will not execute said trusts- mentioned in said deed of trust, and hereby request that a substitute trustee be appointed.”

This, evidently, was the language of Stalcup, who, as attorney, was acting for Powel, the assignee of the notes, in making this request. This was all the request ever made of Slaughter, either by Rawlings, Powel, or Stalcup. This cannot be construed, we think, into a request to Slaughter by ■Rawlings to sell the land. It was a request that he refuse to act under the deed. The trustee, in other words, was solicited to aid the assignee of the notes in thwarting the agreement of the original parties to the deed of trust, to the end that Powel’s attorney may be appointed substitute trustee.. The deed of trust made it the duty of Slaughter, “at the request of the said J. D. Rawlings, at any time made after the maturity of said promissory notes, to sell.” It will be noted the duty to sell is not imposed on Slaughter by the power at the request of the holder of the notes. The duty was imposed on Slaughter, or the power was vested in him, only at the request of Rawlings. “There is no provision for the sale to be made at the request of the holder of note, which is common in such instruments, and the fact that such provision is omitted goes far to strengthen the conclusion that the purpose was to confide the authority to put the power of sale into active operation to Upton alone. It may be that Reiger was willing to trust to Upton, believing that he would not direct the sale under improper circumstances; but, no matter what the reason may have been, Reiger had the right to impose the limitation, and the court has no power to disregard it.” Boone v. Miller, 86 Tex. 74, 80, 23 S. W. 574, 576. So, in this case, the instrument confided in Rawlings alone the authority to put the power of sale into active operation. The facts show no request was ever made by Rawlings of Slaughter to sell.

In this case the power of sale vested in the trustee remained dormant and inactive until called into action by the request of the beneficiary.

“Until that request was made, he had no power to act, and without that request there could not be a failure or refusal on his part to perform the power given him by the deed of trust. Speaking on this subject, in the case of Boone v. Miller, 86 Tex. 74, 23 S. W. 574, the Supreme Court said: ‘The power of sale in a deed of trust is an important power, granted by the maker, and he has the right to place upon it such limitation and conditions as he may deem proper for Ms own protection. When the exercise _ of a power is made to depend upon the direction or request of a given'person, then the direction or request of that person must be given in order to authorize the exercise of the power.’ Under the testimony in the record, W. T. Armstead was never requested to sell the land, and for. that, reason did not execute the power placed in his hands by the deed of trust.” Bemis v. Williams, 32 Tex. Civ. App. 393, 74 S. W. 332.

In that case Armstead was the trustee named in the deed. The sale was made by one Taylor as substitute trustee. The deed made by him as such was excluded by the trial court after hearing evidence that the original trustee had not been requested to sell the land. The powers enumerated in the deed were the same in that case as in this. The action of the trial court in that case was sustained, and the judgment affirmed.

The case of Bracken v. Bounds, 96 Tex. 200, 71 S. W. 547, is quite similar to this, and the powers in the deed of trust there, as far as set out, exactly the same as that used in the deed in the instant case. It is urged that the waiver signed by Slaughter evidences his purpose to refusé to execute the trust. In the Bracken Case, the Supreme Court said:

“The power of substitution gave him a remedy only in case the power of sale, created for his benefit, would be defeated by the action or non-action of the trustee chosen by Bracken. That he could not, for his own convenience, bring about the condition to authorize himself to select another trustee seems too plain a proposition to require argument or authority to support it. The mere assent by Allen to Bounds’ suggestion that he should not act could not be held ⅛ failure or refusal’ of Allen, in the sense of the deed of trust, without doing violence to its very substance.”

Under the deed of trust Slaughter was not authorized to sell until he had been requested thereto by Rawlings. His failure or refusal until so requested was not sufficient under the power to clothe the holder of the note with the power of substitution. The mortgagor had the right to demand that the named mortgagee first make the request of the trustee, upon whom they had agreed, before a sale could be made. The powers of that trustee were dormant and not effective until the proper request was made. When Powel’s attorney requested a waiver, and that Slaughter notify Rawlings he would not execute the trust, Slaughter was then refusing something he could not then execute, and with which he was not then vested with the power to execute. Had he thereafter been called upon by Rawlings to sell, he could have done so, regardless of his waiver in favor of Stalcup. This waiver did not enlarge the powers of the holder of the notes, or lessen the rights of the mortgagor to have the property sold according to the terms of the deed. It cannot logically be said Slaughter failed and refused to execute a trust according to its terms when the request necessary to his power was never made. He could not fail or refuse to make a sale which, if then attempted, would not have been a sale. The power of substitution depended on his failure or refusal to make a sale. He simply, by his waiver, failed and refused to do an unlawful or a void thing. It is urged because of the declaration that he would not execute the trust that this was an unequivocal refusal, and that therefore the power of substitution existed. If the proper request had been made he may not have refused the duty. Powel and Stalcup adopted the method they did, which would most likely induce him to refuse; that is, the beneficiary solicited his resignation in favor of his attorney, and because of this solicitation procured a refusal. If he had requested Slaughter to sell, and indicated a willingness for him to do so, he likely would have more readily assented to the execution of the trust.

A beneficiary should not be permitted to create such conditions as will accomplish his own end, regardless of the express agreement of the original parties to the instrument. The failure or refusal so obtained clearly, was never contemplated by the original parties. The failure or refusal contemplated was only such as would' occur after a proper request. This view, we believe, is supported by the Bracken Case, supra; also Bemis v. Williams, 32 Tex. Civ. App. 393, 74 S. W. 332; Davis v. Hughes, 38 Tex. Civ. App. 473, 85 S. W. 1161; Stallings v. Thomas, 55 Ark. 326, 18 S. W. 184.

We think the action and ruling of the trial court in this ease correct under the facts. The judgment is affirmed.
      'i®=sFor other-cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes.