author: RASBURX, J.

text:
    MUNSEY et al. v. MARNET OIL & GAS CO. et al.
    (No. 7704.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1917.
    Rehearing Denied Dec. 22, 1917.)
    1. Mines and Minerals <&wkey;77—Action to Forfeit Leases—Instruction.
    In an action by the lessors of oil lands to cancel the leases and for damages, the charge that the law looks with disfavor on and discourages the forfeiture of the rights of parties, etc., was improper as calculated to prejudice plaintiffs’ asserted right to forfeit the leases by conveying the suggestion that the right of forfeiture is regarded unfavorably.
    2. Mines and Minerals &wkey;>73⅛ — Conveyance of Minerals on Condition Subsequent—Performance,.
    Where, by agreements, all oil, gas, coal, and other minerals beneath the land covered were sold and conveyed, subject to a condition subsequent as to locating and bringing oil to the surface, which was complied with, on such compliance the grants became absolute for the purposes contemplated for 20 years, or as long as oil in paying quantities could be produced, according to their terms.
    3. Mines and Minerals <&wkey;78(l)—Oil Leases—Duty of Lessees.
    Where the only consideration moving to the grantors of minerals, other than an eighth interest in the oil which might be produced and saved, was $5, the real consideration was the one-eighth portion of the oil reserved by the grantors’ when delivered in the pipe line, and it was the duty of the grantees by implication continuously to operate the wells as contemplated.
    4. litaras and Minerals <&wkey;77—Purchase of Oil Lands—Succession to Ri&hts of Lessors as to Forfeiture by Abandonment.
    In an action to cancel oil leases and for damages, the instruction that, in determining whether there had been a forfeiture of the leases by abandonment, the jury could consider only the circumstances tending to establish the issue arising - since plaintiffs’ purchase of the land, was erroneous; all facts and circumstances and the acts of the parties and their agents properly admissible under the pleadings should have been admitted and presented to the jury without limitation, for, when plaintiffs acquired the land and the interest of the lessors in the leases, any rights inuring to the lessors inured to plaintiffs, the leases declaring that their conditions should extend to the successors of the parties.
    5. Words and Phrases — “Abandonment.” “Abandonment” is the relinquishment of a fight.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Abandonment.]
    6. Mines and Minerals &wkey;>77 — Oil Lease-Waiver of Right to Forfeiture and Reentry-Estoppel.
    One entitled to forfeiture and re-entry may waive such right, or be estopped by his own ■conduct from asserting it.
    7. Mines and Minerals <&wkey;77 — Oil Leases— Action to Cancel or Forfeit — Evidence.
    In an action to cancel oil leases, any fact properly evidencing the intention of plaintiffs’ predecessors in ownership of the land to waive any'right of forfeiture of the leases was admissible on the issue of'waiver.
    8. Trial <&wkey;244(l) — Instructions — Emphasizing Case or Defense.
    Though, in a general way, either side is entitled to a full affirmative presentation of its case or defense, and a special grouping of facts in certain cases, any repetition or emphasis thereof that essentially gives such case, issue, or defense prominence, is erroneous.
    ¾. Mines and Minerals <&wkey;77 — Action to Forfeit Oil Leases — Submission of Issue —Intention.
    In an action to cancel oil leases on the ground of forfeiture, the court properly submitted the issue of defendant lessees’ intention voluntarily to abandon the grants.
    10. Mines and Minerals <&wkey;77 — Forfeiture of Oil Leases — Intention.
    The intention of oil lessees to forfeit the grants to them by voluntary abandonment is to be found by the jury from a consideration of the nature and extent of the undertaking, the conduct of the parties, and what they did or failed to do; and the jury need not find that a special mental conclusion was reached by the lessees.
    11. Mines and Minerals <&wkey;77 — Action to Cancel Leases — Intention to Abandon-Question for Jury.
    In an action to cancel oil leases for voluntary abandonment, whether the lessees intended voluntarily to abandon 'held for the jury under the evidence.
    12. Mines and Minerals &wkey;>77 — Abandonment of Oil Leases — Intention—Evidence.
    Cessation of work by the lessees of oil lands is a fact to be considered in determining their intention voluntarily to abandon their leases.
    13. Appeal and Error <&wkey; 1064(1) — Harmless
    Error — Instruction. x
    In an action to cancel oil leases for forfeiture by abandonment, the court charging that the intention to abandon must have been voluntarily formed by defendant lessees, the use of the word ■“voluntarily” was at most harmless to plaintiffs.
    14. Mines and Minerals &wkey;>78(7) — Action to Cancel Oil Leases — Instruction—“Ordinary Care.”
    In an action to cancel oil leases for forfeiture by abandonment, in its charge on the issue of. damages, the court improperly instructed that it was defendant lessees’ duty to exercise ordinary care in the operation of the wells, since “ordinary care” refers to the duty one person owes another in the conduct, management, or use of any agency, utility, property, or thing, ■etc., as affecting his personal safety or property rights, and has nothing to do with covenants to be performed absolutely.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]
    15. Appeal and Error <&wkey; 1064(1) — Harmless Error — 'Instruction.
    The use of the term was harmless to plaintiffs.
    16. Mines and Minerals <&wkey;78(l) — Oil Lands — Failure to Operate Wells — Damages.
    Where oil wells were seized by the bankruptcy court, the lessees of the lands, on showing that they made reasonable effort to secure possession from the court, or to operate under its direction, could not be held liable in damages to the lessors’ successors during the period for failure to operate under the leases or grants.
    17. Mines and Minerals <@&wkey;77 — Action to Cancel Oil Leases — Evidence.
    In an action by the lessors’ successors to cancel oil leases, it was not error to permit proof of the facts in reference to the bankruptcy.
    18. Appeal and Error <&wkey;742(4) — Assignments Of Error — Statement in Support.'
    If bill of exceptions to overruling of objection to a question to a witness does not, as it should, disclose what the answer was, if the question was in fact answered, etc., the statement in support of the assignment of jerror should.
    19. Mines and Minerals <&wkey;77 — Action to Cancel Oil Leases — Evidence.
    In an action to cancel oil leases on the ground of forfeiture by abandonment, the court properly admitted in evidence the amount of money spent on the oil wells by defendant lessees after the property was released by the bankruptcy court.
    20. Mines and Minerals <&wkey;77 — Forfeiture of Lease — Evidence of ■ Title — Immateri- • ality.
    In an action to cancel oil leases, where a certain judgment could only prove title to a tract of land which was not in issue, such judgment was inadmissible in evidence.
    21. Mines and Minerals <&wkey;77 — Cancellation of Lease — Evidence.
    In an action to cancel oil leases for forfeiture by abandonment, an injunction restraining one of the co-owners from selling any of the product of the wells, but which in no way interfered with the operation of the wells by either defendant, was improperly admitted in evidence.
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    Suit by É’. W. Munsey and others against the Marnet Oil & Gas Company and others. From judgment for plaintiffs, they appeal.
    Judgment reversed, and cause remanded.
    Dexter Hamilton and Callicutt & Johnson, all of Corsicana, for appellants. W. J. McKie and Richard' Mays, both of Corsicana, for appellees.
   RASBURX, J.

This suit was Instituted by appellants for the purpose of canceling certain oil leases and for damages. Upon trial by jury, verdict was against cancellation of the leases, but for damages, followed by similar judgment, from whith this appeal is taken.-

The following facts are not disputed: In the year 1898 the owners of adjoining tracts of land in Navarro county comprising approximately 168 acres entered into written agreements, one with W. H. Staley and one with Oarmody and Davis, in reference to any minerals beneath the land. The agreements are similar. By the terms thereof all of the oil, gas, coal, and other minerals beneath the land were sold and conveyed to the grantees, who were to have and hold same on condition that drilling for oil, etc., was begun and diligently prosecuted within 80 days from the grant. If oil or other mineral was discovered within the said period, such grant was to continue in force for 20 years, or so long as oil could be produced in paying quantities, in which event the grantees were to bore not less than six additional wells within one year from the grant, and six in the second year, should the paying wells justify the expenditure. For the purposes indicated, grantees were given the right of ingress and egress upon the said lands for the purpose of laying pipe, -for drilling, and for transporting oil. The grant declared it evidenced a conveyance of property and not a mere franchise, and that the “conditions” thereof should extend to the heirs, executors, and administrators of the parties thereto. The consideration of the grant was the free delivery in a local pipe line to the credit of the grantors: of one-eighth of the oil produced and saved from said premises. There are other provisions in the leases, which are omitted because immaterial to any issue presented in the case. Development of the mineral resources of the land under the provisions of the leases and to the apparent satisfaction of the grantors therein and their successors were had for a period of years. Mutations in the ownership of the leases, unnecessary to detail, placed such ownership on February 11, 1911, three-fourths in appellee Marnet Oil & Gas Company, and one-fourth in W. I-I. Staley, who was in charge thereof for himself and said Marnet Oil & Gas Company. The development of the minerals and the ownership of the leases so stood when appellants in July, 1912, acquired the fee to the land and the one-eighth portion of the minerals produced and reserved by the original lessors.

In May, 1913, thereafter, appellants commenced the present suit for the purposes already detailed. The case was tried October 11, 1&15, and the evidence adduced by appellants upon trial tended to show that appel-lees had abandoned the operation of the wells upon the land about October, 1911, and were by reason thereof permitting the oil beneath appellants’ land to be drained by other wells on land adjacent thereto and derived from the same strata, and that appellants had after,,their purchase promptly and repeatedly demanded that the wells be operated,, which demand appellees declined to comply with, and that had the wells been operated during the period they were idle appellants would have received therefrom approximately $200 per annum. Appellees’ evidence tended to show that from the incipiency of the1 leases numerous wells were sunk on the lands and profitably operated to the satisfaction of those owning the lands, but that when appellants acquired the lands and’ the oil interests of former owners the supply had naturally decreased and the machinery or equipment considerably run down, and that when appellants within a short time after their purchase demanded that the wells be pumped they agrqed to do so as soon as certain necessary machinery which had been ordered should arrive, but that before the machinery arrived and on January 10,1913, W. H. Staley became a voluntary bankrupt, whereupon his trustee not only assumed possession and control of Staley’s interest in the oil leases, but of the entire property, and refused to operate same until in November, 1913, at which time ap-pellees made the necessary improvements, cleaned out the wells, and commenced operation, after which time appellants’ interest in the oil produced was delivered to- the local pipe line in accordance with the leases.

' Due to the fact that we have reached the conclusion that it is our duty to reverse the ease, we have for obvious reasons of propriety stated only in a general way the facts which the evidence tendered by the respective parties tended to prove. Any further reference to the facts necessary to a disposition of the issues will be had in considering such issues, and issues as such will be discussed without reference to- the assignments of error.

The jury was told by the court:

“That the law looks with disfavor upon and discourages the forfeiture of the rights of parties, and declares that before a forfeiture will he declared the evidence on which such forfeiture is predicated and sought must preponderate in favor of the forfeiture.”

Appellants contend that the charge was error, since forfeiture is a salutary remedy and is not, when the facts warrant it, without favor before and discouraged by law, and that the language used was prejudicial and upon the weight of the testimony. That forfeitures arising as matter of law upon statutes and contracts between private persons are not regarded with favor, and that equity will, when it is equitable to do so, relieve against them, is a rule declared so often by text-writers and decisions as not to require the citation of authority. Whether, when forfeitures is a fact issue, as distinguished from one arising upon statute or contract upon fixed contingencies, the jury-should be told that such remedy is looked upon with disfavor, is, it seems to us, a rule of doubtful expediency. That equity abhors forfeitures is not because forfeitures in every case would be inequitable, but because equity prefers, when it is equitable to. do so, to, preserve to parties valuable property rights against loss in such manner, if the loss caused the particular default, as can be compensated for in other ways. The pleading and proof in the case at bar fairly presented and raised the issue of forfeiture based upon abandonment of the rights granted by the leases. While the language used by the able trial judge cannot correctly be said to be on the weight of the evidence, it was, we believe, calculated to prejudice the right asserted to forfeit by conveying to the jury the suggestion that, unlike all other proceedings, the one being tried was regarded in an unfavorable light. Incidentally, it is ruled by some authorities, in reference to grants similar to the one involved in the instant ease, that, where the grant is in the hope and expectation of pecuniary profit from mineral development, the same reasons do not exist for the application of the rule that equity abhors forfeitures for the reason that forfeiture when the grantee is guilty of laches in that respect is but equity. 12 R. C. L.. 873.

Appellees, while maintaining that the charge was correct, assert the counter, proposition that the rights acquired by appel-lees by the leases detailed are in no event subject to forfeiture, for the reason that the grants evidenced in law an absolute sale of all minerals beneath the surface of the land. We agree that the leases did by their terms evidence an absolute sale of all minerals beneath the land, subject to the condition subsequent contained therein in relation to locating and bringing oil to the surface, whidh we have shown was complied with, and whereupon the grants became absolute for the purposes contemplated by the parties for a period of 20 years, or as long as oil in paying quantity could be produced. Benavides v. Hunt, 79 Tex. 383, 15 S. W. 396; Southern Oil Co. v. Colquitt, 28 Tex. Civ. App. 292, 69 S. W. 169; Texas Company v. Daugherty, 107 Tex. 226, 176 S. W. 717; Fisher v. Crescent Oil Co., 178 S. W. 905.

We do not agree, however, after the condition subsequent in reference to the development of paying wells upon the property had been complied with, that all obligation on the part of the grantees ended, and that an abandonment of the operation of the wells, which in substance is appellants’ contention, might not, depending upon all the facts and circumstances surrounding such claimed abandonment, constitute grounds for forfeiture and re-entry. The only consideration moving to the grantors in the leases, other than the one-eighth interest in the oil which might, be produced and saved, was $5. Without going to the extent of holding that such sum would in no case constitute a sufficient consideration, it is, we believe, correct in this case to say that obviously the parties to the grant, in view of its provisions, did not regard such sum the real consideration for the grant, but, on the contrary, indulged the hope and expectation that oil in paying quantities would be found beneath the surface of the land, and, when so found, the one-eighth portion thereof reserved by the grantors when delivered in the pipe line to the credit of the grantees in order that it might be marketed was to constitute the real consideration for the grants. Such being the purpose and intention of the parties, it was the duty of the grantees to continuously operate the wells in the manner contemplated by the undertaking; and if it cannot be said. that the duty to continuously develop and produce the lands’ mineral resources in a reasonably diligent manner, after discovery thereof in paying, quantities, is not expressly provided for by the terms of the grant, then such duty unquestionably arises by implication. Such implication arises upon the provisions in the leases reserving to the grantees the right of ingress and egress over the surface land, the right to lay pipes for both production and transportation of all minerals when discovered and produced, and the duty imposed upon grantees to deliver to grantors in a pipe line their share of oil and to pay for same quarterly. These provisions suggest without discussion the intention of the parties, and what they contemplated. Clearly, it cannot be said that such provisions contemplate the operation of the wells at the will of the grantees, any more than that the right to operate by grantees - could be divested at the will of grantors. Fisher v. Crescent Oil Co., supra, in our opinion presents a correct discussion of the mutual obligations of the parties under such contracts or leases after the discovery of oil in paying quantities.

The court instructed the jury, in substance, that in determining whether there had in fact been a forfeiture by abandonment they could in that connection consider only the facts and circumstances tending to establish that issue arising after appellants’ purchase of the land. It is contended, and we believe correctly, that such limitation was error. All the facts and circumstances and the acts of the parties and their agents properly admissible under the pleading should have been admitted in testimony and presented to the jury without limitation, for tlfs reason that, when appellants acquired the land and the. interest of the grantors in the oil leases, any rights inuring to such grantors thereunder in like manner inured to appellants. The grant declares that its “conditions” shall extend to the heirs, executors, administrators, and assigns of the original parties. As a consequence', if appellees, prior to the appellants’ purchase, had in fact so acted as to satisfy the jury on the issue of abandonment, such abandonment inured to the benefit of and could be asserted by appellants; or if the conduct of appellees, partly during the ownership of appellants’ vendors, and partly during the ownership of appellants, was sufficient to satisfy the jury on such issue, appellants could rely thereon. Otherwise it might result that a complete abandonment had resulted, and yet, because of a change of ownership, those forfeiting could reclaim a right wholly lost. “Abandonment” is the relinquishment of a right, in the instant case a right for a period of years to remove minerals from beneath certain lands. Phillips v. Watkins, 90 Tex. 195, 38 S. W. 274, 470. If such right is in fact relinquished during the ownership of one person, it is none the less so when such person conveys to another, since a right so lost cannot by mere transfer of property be revived.

There is, however, the other rule, of equal force and dignity, that one entitled to forfeiture and re-entry may waive such right or be estopped by his own conduct from asserting such right. Benavides v. Hunt, supra. And any fact properly evidencing the intention of former owners to waive any right of forfeiture would be admissible on that issue.

The court in substance instructed the jury that, before the grant could be forfeited, it must appear from the evidence that appellees intended to voluntarily abandon same and ih that connection further instructed them that even though the wells were not operated for a short time abandonment would not result unless the intention to abandon existed. Complaint is made that intention is not a proper issue, that the charge is restrictive in that it in effect withdraws from the jury the issue of intention, if proper, based on the time appellees failed to operate the wells, that it emphasizes the issue of intention by requiring the jury to find that appellees voluntarily abandoned the property, and repeats and accentuates that issue in such manner as to give it undue prominence.

In reference to the manner of submitting the issue to the jury, it is sufficient to say that while in a general way either side is entitled to a full affirmative presentation of the case or defense, ahd a special grouping of facts in certain cases, any repetition or emphasis thereof that essentially gave such case, issue, or defense prominence would be erroneous, and the rule should be observed upon another trial.

The court did not err in submitting the issue of intention, for when it is claimed that a right has been lost by abandonment and upon which forfeiture is sought the issue, of intention can rarely, if ever, be said to be absent. Such intention, of course, is to be found by the jury from a consideration of the nature and extent of the undertaking, the conduct of the parties, and what they did do or failed to do in that respect. The rule does not mean that the jury shall find that a specific mental conclusion was reached by the person so charged to so abandon the right, since such a finding could never find a basis in the testimony, except by admission or confession. Nor do we believe the charge of the court susceptible of such construction as claimed by appellants. Failure to operate the wells for a given period might or might not furnish the basis for a finding that the intention to abandon was established alone by such failure, depending upon what brought about cessation. Again, cessation for a period might afford no basis whatever to support such a finding. In the instant case, we incline to the opinion that the evidence presented an issue for the jury, and that that portion of the court’s charge which, in effect, told the jury that the failure to operate would not support a finding of intention to' abandon, was incorrect. In Bena-vides v. Hunt, supra, the court did hold that temporary cessation of work, under the conditions shown by the evidence, would not establish abandonment. But whether the cessation in this case was temporary was excusable, or evidenced an intention to abandon the rights secured by the leases, was for the jury to determine under appropriate charge. Cessation of work is a fact to be considered in determining intention. It might or it might not afford basis for a finding of abandonment. In this case, appellants’ evidence on that issue was at least such as not to warrant the restriction imposed ]jy the charge.

The contention that the court erred when he, in effect, told the jury that the intention to abandon must be voluntarily formed, is, in our opinion, without material merit. As we have said, intention is a mental process evidenced by outward acts, conduct, and declarations, and is necessarily voluntary, for it is hard to conceive of involuntary mental action, save in cases of hypnotism or mesmerism, concerning which we confess entire ignorance. The use of the word, at most, was harmless. The reason of its use was perhaps due to the claim of appellees, which will appear at another point, that the wells were not operated over a considerable period for reasons beyond their control, and for that reason their failure to- operate was involuntary.

The court on the issue of damages instructed the jury that it was appellees’ duty to exercise “ordinary care” in the operation of the wells on the lands granted, which is assigned as error on the ground that such issue was not raised by the pleading or the evidence. The term, as used, is in our opinion a misnomer. “Ordinary care” as applied and discussed generally refers to the duty one person owes another in the conduct, management, or use of any agency, utility, property, or thing, etc., as affecting his personal safety or property rights and has nothing to do with covenants to be performed absolutely. While we consider the use of ■ the term inappropriate and one calculated in a limited way to mislead the jury with reference to appellees’ obligation to continuously operate the wells, it would, we- believe, in the absence of other grounds, constitute insufficient reasons for reversal.

The court restricted appellees’ recovery of damages as for oil that should have been produced to the period from date of appellants’ purchase in July, 1912, to the time the property was taken in charge by the bankruptcy court. It appears from the evidence that Staley, who, as we have shown, owned a one-fourth interest in the leases, voluntarily admitted bankruptcy. The bankruptcy court, in adjusting Staley’s affairs, not only assumed control of his interest in the oil wells, but that of Marnet Oil & Gas Company’s as well, and refused to permit the latter to improve or operate same during its control thereof. If, correctly or incorrectly, the. bankruptcy court seized the interest of Marnet Oil & Gas Company in the wells, as well as that of Staley, the property was in the custody of the law, and any attempt to interfere with such possession would have been in contempt of court. As a consequence, appellees, upon a showing that a reasonable effort was made to secure possession from the bankruptcy court or to operate same under direction of the said court, could not be held liable in damages during such period for failure to operate under the terms of the contract.

Under the conditions recited above, it also was not error, as asserted in another place,' to permit proof of the facts related in reference to bankruptcy.

A number of issues are presented which arise upon the admission and exclusion of evidence, concerning which we have the following to say:

1. The witness Witherspoon was asked, in effect, if a dry well in proximity to a producing well was not to be accounted by certain earth formations beneath the surface, to which appellants objected, and which objection the court overruled, and which action of the court is assigned as error. The bill does not disclose what the answer was, if it was in fact answered; nor does the statement accompanying the assignment disclose where, if answered, it may be found in the testimony. If the bill does not, as it should, contain all the proceedings complained of, the statement in strpport of the assignment should. Por the reason stated, the assignment will not be considered.

2. The bill of exception concerning evidence tending to show amount of oil produced on waterworks property, which adjoins appellants’ property, is insufficient in nearly every respect and will not be considered.

3. There is nothing in the bill concerning the exclusion of the testimony of Gage, concerning the oil production on the Hickey tract, which evidences error in its exclusion. It may be, conditions and surroundings being similar, the production of a given tract would be evidence of the probable production of an adjoining tract. Such conditions are not disclosed by the bill we are discussing.

4. We think the court properly admitted in evidence the amount of money spent upon the wells by appellees after the property was released by the bankruptcy court. As we have attempted to say at another point, all the acts of the parties are to be considered by the jury in determining the issue of intention.

5. We cannot see the materiality of the judgment rendered in case of Fox v. Robbins, as relates to any issue arising in this case, and ihink it should have been excluded. The judgment could only prove title to the Robbins’ tract of land, which was in no sense an issue at trial.

6. We think it was improper to admit in evidence the injunction issued by the federal court by which Staley was, at the suit of the Marnet Oil & Gas Company, his co-owner of seven-eighths of the minerals, restrained from selling any of the product of the wells. Such injunction in no way interfered with the operation of the property by either appellee and could not form the basis for such contention.

There are four assignments which relate to the refusal of the court to allow certain special charges. These assignments will not be considered, because not supported by bills of exception preserving the objections; this ease having been tried prior to the recent amendment concerning the manner of reviewing the trial court’s action in refusing special charges. Por the reasons indicated, the judgment is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    SAN ANTONIO TRACTION CO. v MENDEZ.
    (No. 5922.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 12, 1917.
    Rehearing Denied Jan. 9, 1918.)
    Trial <®=315 — Conduct ox Juey — Manner ox Arriving at Verdict.
    In action for personal injuries, it was flagrant misconduct for the jury in assessing damages to consider the fact that the plaintiff’s attorneys would receive 50 per cent, of the recovery, and to double their verdict on that account, and to consider items for hospital, medicine, and physicians not submitted to it.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Carlotta Mendez against the San Antonio Traction Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. Dwyer & Dwyer, Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.
   PLY, C. J.

This is a suit for damages resulting from personal injuries alleged to have been inflicted through the negligence -of appellant, in the derailment of one of its cars, near the corner of Medina, and Ruiz streets, in the city of San Antonio, on December 9|, 1915. A trial by jury resulted in a verdict and judgment for appellee in the sum of $15,-090.

The first, second, and third assignments of error complain of the judgment of the court on the ground that there was such misconduct of the jury as to the discussion of the amount that the attorneys of appellee would receive out of any sum found by the jury as damages as to invalidate their verdict. The evidence of several of the jurors, who testified, was that the matter of attorneys’ fees, was mentioned while the amount of the verdict was being discussed. One of the jurors stated that after it had been stated that ap-pellee and her attorneys would divide the amount recovered “fifty-fifty,” the other jurors talked him into giving $15,000. That juror, as well as others, had made vohlntary affidavits before the hearing to the effect that in arriving at a verdict they had considered the fact that attorneys for appellee would receive one-half of any sum recovered. At least four or five of the jurors had signed an affidavit that the jury had agreed that each one should write the amount to which he believed appellee was entitled, add those .amounts together and divide by the number of jurors, and that the quotient should constitute the verdict.

Adolph Weyel, one of the jurors, stated that while they were adding doctors’ bills, medicine, and time lost, “somebody suggested about the lawyers, and said they fought these cases usually for half, and then after that conversation took place and then later on, we doubled th£ $4,000, and made it $8,000.” This juror had previously signed an affidavit that he had considered the talk about the attorneysi fee in arriving at his verdict, but denied it at the trial, because while he could read and write English he was sick and did not understand it.

All of the jurors who signed affidavits had, according to their testimony, received information that acting on statements made as to attorneys’ fees was in contempt of court. That information, they stated, had been obtained between the time the affidavits were signed and the hearing on the motion for new trial. Those affidavits showed the condition of the minds of the jurors on the subject immediately after the trial, before they realized what might result from their statements that they considered the question of attorneys’ fees in connection with the amount of their verdict.

Edward Levy, foreman of the jury, sighed an affidavit in which it was stated:

“That this affiant' as a juroi; considered the fact that the plaintiff’s attorneys would get one-half of the recovery in arriving at his verdict, and was influenced thereby.”

The affidavit was placed in his hands by an agent of appellant, but he held it several hours and signed-it in his office when no one 'was present except his stenographer and himself. No compulsion was used, nor inducements held out to the juror to sign it. He testified:

“The traction company did not threaten me a bit, and I signed it of my own accord at the request of Mir. Johnston after he went over the facts with me.”

Max Polunsky, a juror, testified to a discussion of the question of attorneys’ fees and how much should be given appellee, and some of the jurors said:

“That in order for her to get that amount we would have to double that, to make that amount, you understand; now, for instance, if we decided to give her $5,000, why we would have to make that ten in order for her to get five, because the attorneys were figured in, because the attorneys would get half. Of course that did not affect me in any way, because I wasn’t worried about the attorneys, whether they got anything or not. ⅜ * *

He also stated:

“I believe some of them based their verdict, I am not sure, but I should think that some of them based their amounts on that. * * ⅞ ”

The last-named juror said be started in for a verdict of $4,000, and then went to $8,000 after the discussion narrated by him. He signed an affidavit, after having it all day, that he had been influenced by the talk about attorneys’ fees. He swore that, while he had the affidavit, “I did study it; I looked it over carefully.” He also testified:

“I was not influenced personally by attorneys’ fees, but I say it was mentioned in the jury room by some of the jurors, and I think they based the amount on that because when they said $4,-000 why they had doubled it and whatever amount they decided they figured it had to be doubled.”

While this juror claimed for himself superior strength of mind, or a higher conception of his duties as a juror, his testimony leads to the inevitable conclusion that he was taking himself as a model by which to judge his fellows when he concluded they were influenced by- the discussion of attorneys’ fees. He was the juror who started with $4,000, and after the discussion jumped to the sum of $8,000, and finally ended by agreeing to a verdict of $15,000. He almost doubled the doubled $4,000. ' The juror afterward indicated doubts as to the propriety of considering the fees, and also that under favorable circumstances he might unbosom himself, for he requested the court to instruct him as to the propriety or impropriety of such conduct. The court, however, declined to give the information.

George Wrase, a juror, stated that nothing was said, so far as he knew, about attorneys’ fees in the jury room, and yet admitted that he had signed and sworn to statements that fees had been mentioned, and that he had been influenced thereby,, and that the statements were true, and further:

“X WQuld not have sworn to them if I had thought they were not true. I don’t say they are not true.”

He stated that he understood everything in the affidavit except the word “deliberate.”

Hal W. Tucker, a juror, admitted that he had signed an affidavit similar to that signed by the other jurors mentioned, and although he had the part stricken out as to the sum obtained by dividing the sum of the different amounts suggested by the different jurors by the number of jurors, was the verdict, he signed the balance. Before he testified he had learned that it was wrong to discuss attorneys’ fees in the jury room.

Adin Houck stated that the jurors were to be tried on their conduct in the jury room. That was told him after he had signed an affidavit like unto the others and before he testified at the hearing of the motion for new trial. He testified:

“I was for $4,000, and I went up to $8,000, more according, not exactly according, to attorneys’ fees, but more because I wanted to.”

He testified on cross-examination that he only considered- the evidence and charge of the court in arriving at a verdict, and yet some influence raised his verdict from $4,-000 to $15,000.

Montanio, Ehrhardt, land Feille, jurors, swore that they did not hear any mention of attorneys’ fees.

L. W. Durrell, on examination by appel-lee, swore that he heard the matter of attorneys’ fees mentioned in the jury room in a casual way, and that he did not consider the fees in arriving at a verdict. He also testified that before the hearing on the motion for new trial that he had been told by the prosecution that it was the law “that it was not proper for a jury to consider attorneys’ fees in arriving at their verdict, and he said' if they did do it they were in contempt of court; that is what he said.”

Adolph Weyel signed one of the affidavits mentioned herein, admitting that the discussion of the attorneys’ fees had influenced his verdict, but swore on the examination in chief, by appellee, that the fees had not entered into his verdict. On cross-examination he testified:

“As_ to how the conversation came up that in most instances the lawyers tried or fought these cases for half, well, first they added together in figuring up how much it would cost Miss Mendez, the doctors’ bills and everything like that, and they figured it about $4,000, and then I believe they doubled it because may be she has got to suffer some two or three years more, that was the reason for doubling.”

Again he swore:

“The things we considered when we figured up the $4,000 was the time she was laying in bed, the lost time in work, and her mother’s work, the doctors’ bills, hospital bills, and drugs; I took all those in my own mind when I figured up the $4,000. Then somebody mentioned attorneys’ fees, and that was added in. Then somebody suggested about that possibly she would suffer some more, and I took that in consideration, and all these things that have been mentioned, I took into consideration.”

Immediately after making that unequivocal statement, he again testified that he did not consider “attorneys’ fees in going up' to any amount.”

We have never considered a moré flagrant case of the consideration of matters not mentioned in the pleadings or evidence than is shown by the facts of this ease. Four or five of the jurors, after full consideration of the contents, signed affidavits stating that attorneys’ fees had been considered and the heavy verdict brought about by such consideration. In other words, after deliberating as to the amount of damages incurred by appellee and ascertaining a certain sum that appellee should recover, that was doubled to offset attorneys’ fees. There was one half of the verdict, at least in the minds of part of the jury, in favor of the client, and the other half in favor of her attorneys.

If only one juror had signed an affidavit, it might be thought that he had been misled or deceived, but it is inconceivable that four or five average citizens could, after due consideration, be induced to swear td a false statement about what had occurred in the jury room. Their testimony on the hearing, given under fear of being held in contempt of court, while evasive and intended to contradict the affidavits, shows the truth of the written affidavits made by them. The consideration of attorneys’ fees was not only not upheld by pleadings or proof, but as directly in the face of the measure of damages given by the charge of the court, and the jurors were truthfully informed by ap-pellee that the consideration of such matters was contrary to law and in contempt of the court. Not only did the jury consider attorneys’ fees, but also doctors’ bills, drug and hospital bills,-and compensation for the services of the mother of appellee, which were not submitted as items of damages by the court.

The question before the court was fully discussed in the case of San Antonio Traction Co. v. Cassanova, 154 S. W. 1190, in which only two jurors testified that attorneys’ fees had been discussed, and this court held:

“It is clear that there was a general discussion of matters by the jury that were not alleged in the pleadings, nor that appear in the evidence. At least one of them admitted that he took those matters into consideration, and any one who is acquainted with human nature must be convinced that it influenced others.”

The facts of that case are mild as compared with the testimony in this, and while there was some sort of denial of being influenced by the discussion of the attorneys’ fees, yet the affidavits and the testimony show beyond cavil or doubt that attorneys’ fees entered into and became a part of the verdict. The denial of being influenced by the testimony in the jury room carries with it but little force, even though uncontradict-ed, for, as said in the Oassanova Case:

“We see no particular force in such denial, because the influence of such discussions is so subtle and appeals to human nature so strongly that the influence might, in some instances, be exerted without the juror being aware of it. In other instances fear of punishment at the hands of the trial judge would cause denials of influence upon the verdict.”

In the present case the latter part of the quotation applies with peculiar force, for each of the jurors who made the affidavits, if not all of them, had been informed that what they had done was contempt of court, and in 'one instance the juror was told that the jury was to be tried on the hearing of the motion for new trial. A verdict cannot be sustained under the circumstances surrounding this case. As said in the Cas-sanova Case:

“The authority will not be given to jurors to formulate and act upon a different measure of damages from that prescribed by law and given to them in the charge of -the court. It is uniformly held that it is error to permit proof of damages not alleged, and how much graver the error when matters are considered which were neither alleged nor proved.”

In the case of Steele v. Dover, 170 S. W. 809, only one juror testified in regard to the discussion of attorneys’ fees in the jury room, and this court held, -through Associate Justice Moursund:

“While the juror, upon cross-examination, made the general statement that he observed his oath, which was natural, his testimony shows clearly that he was influenced by the belief that the attorneys would get half. He was one of those in favor of a very low amount; he says the reason for giving plaintiff so much was on account of such belief. Many jurors do not realize the impropriety of taking such matters into consideration, and, after doing so, do not realize that they have not tried the case upon the evidence admitted by the court.”

The evidence in that case was not near so strong as this as to the consideration of attorneys’ fees in making up the verdict; in fact, no case has come to our notice in which such flagrant disregard of rules should govern a jury in considering their verdict has been shown as was clearly proven in this ease. One juror seems to have considered any matter foreign to the evidence that could in his mind justify him in increasing the verdict.

The evidence was sufficient to take the case to the jury, and the assignments of error questioning the sufficiency of the evidence to require its submission are overruled. The matters raised by the other assignments of error will probably not arise on another trial, and therefore need not Be considered,

On account of the misconduct of the jury, the judgment is reversed and the causé remanded.
      (gs^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, O. J.

text:
    JONES v. GILLIAM et al.
    (No. 1255.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Executors and Administrators <&wkey;129(l) —Assets—Land .
    • Title to land vests in decedent’s heirs, and -not in his administrator.
    2. Executors and Administrators <§=^319— Real Estate — Sales—Power.
    An administrator cannot sell land, except for certain purposes, and upon an order of the probate court, which must be strictly followed, since Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3479 et seq., vests the discretionary power regarding sales in the probate court.
    3. Executors and Administrators <&wkey;336— Real Estate Sales — Application.
    An administrator’s application to sell real estate must show the claims against the estate and the estimated expense of administration.
    4. Executors and Administrators i&wkey;346— Real Estate Sales — Order.,
    An order authorizing an administrator to sell real estate must give the terms of such sale.
    5. Executors and Administrators &wkey;>375— Real Estate Sales — Coneirmation.
    An order confirming an administrator’s sale of real estate must direct that proper conveyance be made when the purchaser complies with the terms of the sale.
    6. Executors and Administrators <&wkey;379— Real Estate Sales — Settinu Aside.
    A probate court, if not satisfied that an administrator’s sale of real estate was fairly made, should set it aside.
    7. Executors and Administrators <&wkey;395— Real Estate Sales — Conveyance.
    An administrator should not convey real estate until the purchaser has complied with the terms of the sale, and if the sale be upon credit, until the purchaser has given his note for the balance due.
    8. Executors and Administrators <&wkey;97— Real Estate Sales — Commissions.
    An administrator’s promise to give a broker’s commission for selling real estate must be authorized or approved by probate court before it is binding upon the estate.
    9. Executors and Administrators <&wkey;109(3) —Real Estate Sales — Commissions.
    A probate court’s refusal to allow an administrator credit for broker’s commissions for negotiating real estate sales will not be reversed, except for a clear abuse of discretion.
    10. Executors and Administrators &wkey;>109 ■ (3) — Real Estate Sales — Commissions.
    A probate court did not abuse its discretion in refusing an administrator credit for broker’s commissions for negotiating real estate sales, where it was conceded the prospective purchaser failed to perform his part of the contract.
    11. Executors and Administrators <&wkey;87— Powers — Compromises.
    Under the direct provisions of Rev. St. art. 3354, an administrator cannot compromise a claim for broker’s commission, so as to bind the estate, without an order of probate court.
    12. Executors and Administrators &wkey;>109 (3) —Expense of Administration — Broker’s Commission.
    Rev. St. art. 3623, allowing reasonable expenses necessarily incurred by an administrator, is inapplicable to the payment of broker's commissions, not authorized or approved by the probate court.
    Appeal from District Court, Childress County; J. A. Nabers, Judge.
    Application by Will P. Jones, administrator, for final settlement and discharge, contested by Alma Gilliam and others. The county court’s refusal to allow certain items was affirmed by the district court, and the administrator appeals.
    Affirmed.
    Fires & Diggs, of Childress, for appellant. M. J. Hathaway, of Childress, for appellees.
   HUFF, O. J.

Will P. Jones was appointed administrator of the estate of P. S. and Alma Roberts, deceased. The administration is pending in the county court of Chil-dress county, and as part of the assets of the estate it appears that it owned some ten sections of land situated in Hutchinson county, and oral testimony shows that the county court of Childress county, some time in April, 1915, authorized the administrator to sell the land in Hutchinson county. The order authorizing such sale is not in evidence. The evidence also shows that Jones, the administrator, made an oral contract with Ramsey & Gillespie, hy which he agreed to pay them a commission of 5 per cent, of the purchase price of the land if they should procure a purchaser of said land, ready, willing, and able to buy upon the terms offered, and that Ramsey & Gillespie, in connection with the Vernon Realty Company, found and procured a purchaser, in the person of Ike M. Smith, who entered into a written contract for the purchase of the land with W. P. Jones as administrator of the estate; the contract reciting that the purchase price should be $19,000, one-third cash and the balance to he evidenced by Smith’s note and subject to the approval of the county court of Childress county. The contract further recites, and the evidence shows, that Smith paid $250 down as earnest money, and the administrator was to furnish an abstract of title, and as soon as the abstract could be prepared and furnished and the order of the county court of Childress county, approving the sale and ordering it consummated, the trade should be finally closed. The contract was dated the 17th day of June, 1915. It sufficiently appears that the Vernon Realty Company, at the instance of Ramsey & Gillespie, procured Smith, the proposed purchaser. It appears from the oral testimony that the sale to Smith was reported by the administrator to the probate court, which approved and confirmed the sale, directing the execution of the deed upon the compliance with the contract by Smith. The order of that court, however, is not in evidence. Before the abstract could be completed and examined the evidence shows that Ike M. Smith died, and that his son, Ed. Smith, qualified as his executor. After the administrator received notice of the death of Smith he learned through one” Mr. Owensby that a Mr. W. T. Coble would purchase the land. Owens-by either wrote or wired the administrator, asking him if he (Owensby) would find a buyer for the land if there would be a commission to him. The administrator says he told him there was a commission in it, but that he would have to square it with other parties — the parties who procured the other buyer, Smith. He testifies:

That he went over the ground with Owensby and finally agreed on a settlement with him. “We agreed that he (Owensby) have a commission. I asked Ramsey if they would allow Owensby $200 on tlieir commission, 'or if they would be willing to take $750 and allow him $200 and he took up the matter with the other party, and told me he would do so — with the Vernon Realty Company. I then went to Amarillo and went over the situation with Owensby. I was to pay him, and agreed to pay him $200 or agreed with Ramsey & Gillespie to pay him $200, and the other parties $750 in all.”

He afterwards stated that he induced Owensby to take $100, and that he only paid in all $850, and the total commission would have been $950. After Smith’s death the administrator filed in the probate court his report of the sale to Coble, reciting in that report that the court had theretofore, in July, 1915, confirmed the sale to Ike Smith, setting up the terms of the sale to Ike Smith, further reciting: .

“Your administrator would show to the court that the said Ike M. Smith has never complied with the terms and conditions of said sale, but, on the contrary, failed and refused to carry out and perform the conditions and terms of said sale, and has failed to pay the cash payment for said lands, or to execute the notes for deferred payments, as set out in said report; the said Ike M. Smith has since died, and that the heir's and executors of the estate of the will of said Ike M. Smith have also failed and refused to comply with the terms of said sale, and to make the cash payment for said land, and to execute the notes for the deferred payments as set out in said report of sale.”

He then sets out that he had sold the land to Coble for the same price, the terms being different, in that Coble was to pay two-thirds cash and one-third on time. The order confirming the sale to Coble is not in the record, but it is treated by the parties as having been consummated by the administrator. It also appears that the executor of Ike Smith executed on the 5th day of February, 1916, a quitclaim deed, or release of Will P. Jones, the administrator, reciting therein that Ike M. Smith did not, during his lifetime, comply with the terms of the agreement, but failed to do so, and that he died thereafter in September, 1915, without in any manner complying with the terms of the agreement, and that his executor, likewise, since the death of Smith, and after his appointment as executor, failed and declined to carry out and comply with the contract. The administrator filed his annual statement of his account with the estate, in which he charged the estate with the two items, $375 each, one to Ramsey & Gillespie, and the other to the Vernon Realty Company, and thereafter also filed his application for final settlement and discharge. The heirs of P. S. Jones and Alma Roberts filed a contest of several of the items in the county probate court, among which was the commission theretofore charged against the estate. The county court refused to allow these two items, and. Jones appealed to the district court from that judgment, and upon, hearing on appeal to the district court the same result was had, and from ‘ the judgment of the district court this appeal is prosecuted.

It was admitted in the trial court and in this court that it was agreed that the only-items in controversy before this court are the items, one dated 3/1/16, amounting to $375, paid to Ramsey & Gillespie,' and another paid to the Vernon Realty Company, for the same amount, aggregating in all $750, and 5 per cent, on this sum of $750.

The assignments and propositions in this case present the question whether a land agent, who has found a purchaser, ready and willing to enter into a contract with the administrator of an estate of a deceased person, and who does enter into a written agreement with the administrator, is entitled to recover the commission agreed upon between the administrator and the agent. The agreement so made depends upon the power of the administrator to so contract. It is elementary that the title to the land belonging to a decedent does not vest in the administrator, but in his heirs. The land cannot be sold by the administrator except for certain specified purposes and upon an order duly made by the probate court. The administrator is not vested with the discretion with reference to such sales, but it rests with the probate court. In other words, the administrator is an officer of the court, and only the executive arm of the court with reference to sale of lands. Such representative therefore acts under the direction and under the control of the court. The power is in the court to fix the terms of the sale. It is therefore the duty of the administrator to strictly conform to the terms or requirements of the order. Ruling Case Law, vol. 11, Executors and Administrators, § 389 et seq. Our statutes with reference to the administration of the estates of decedents are evidently founded upon the principles of common law, and nowhere vest in the administrator the title or discretion with reference to the sale of real estate. This will he perceived by an examination of chapters 22 and 23, Estates of Decedents, vol. 2, Vernon’s Sayles’ Civil Statutes, art. 3479 et seq.

An application for the sale of real estate must show fully and particularly the charges and claims against the estate, “and the estimated expenses of administration.” The order granting the application must give the terms of such sale, and in the report of sales the items which must be reported are specified. The court must, upon the report, inquire.into the manner in which the sale was made, and the order of confirmation must direct the proper conveyance to be made by the administrator when the purchaser complies with the terms of sale; and if the court is not satisfied that the sale was fairly made and in conformity with láw, he shall set it aside by order duly.entered. No conveyance shall be executed or delivered to the purchaser 'until the terms of the sale have been complied with by the purchaser; when such sales are made upon credit, it is made the duty of the administrator, before delivering the conveyance of the property, to take from the purchaser his note,, etc. When the real estate brokers in this case undertook to find a purchaser for the land, they must have done so with the understanding that the sale could not be consummated, except upon compliance with the statutes and orders of the court. In order to bind estates, such contract for commission must have been authorized by the court or approved by the court. It occurs to us the only remedy the brokers had, in the absence of such order or approval by the court, would be against the administrator personally. The order authorizing a sale to Smith or its confirmation is not in the record, and in so far as this record shows the court only authorized the administrator to make the sale. He was not authorized, to employ another agent or to delegate his authority to others. The law fixes his commission and compensation for his services. In the report of sale of the land to Coble the administrator expressly states that Ike Smith, and his representatives after his death, refused to comply with the terms of the sale as required by the order and statutes, and thereby procured the order confirming the sale to Smith vacated. Until the purchaser had complied with the terms of sale under the law, there could be no sale, and the estate could not be charged with services which were of no benefit to the estate and which were not authorized or approved by the court or authorized by law. In finding and procuring Smith, the brokers must have done so with the understanding that the powers of the administrator were limited and subject/at all times to the control of the court. To that extent we think the general rule with reference to the rights of a broker to commission upon producing a purchaser is modified. It may be the administrator would be personally liable to the brokers, but it is not our view that they could force the court to charge up against the estate the value of such services rendered under their brokerage contract. If, therefore, the administrator paid the brokers for such services, he must have done so out of his own funds, and should not be permitted to retain it out of funds belonging to the heirs of the estate. It apparently is the contention, even though the sale was not consummated, yet the brokers, in the interest of the estate, had been employed by the administrator, who performed all of their undertaking in producing a purchaser ready, able, etc., and therefore the administrator, acting as a prudent man would have done in his own affairs, should be allowed to charge for the services so rendered. It is insisted that the uncontroverted evidence shows the services were reasonable and necessary. The administrator was given authority to make the sale, and was not given the autnority to delegate his power, but he undertook to perform, his duties under the control of the court...

He asked the court to vacate the sale made by his brokers because the purchaser would not comply with the contract or the law. 'The undertaking of the broker to find a purchaser who would comply with the contract and the law was not produced according to his own sworn report and application. They had not, therefore, complied with their undertaking, but it is insisted that specific performance could have been enforced.

We do not understand from the statutes that the court, whose duty it was to determine such matters, was forced by law, or the contract, to enforce the sale. He was the sole arbiter as to the best interest of the estate; in him alone was the power to determine its best interest, and we think a ■clear abuse in refusing such commissions must be shown in order to permit the broker or administrator to recover for such services so rendered. Ennis v. Cator, 174 S. W. 947. In this case there was no sale to Smith for the reason that he died before its consummation and according to the recitation in the application filed by the administrator to sell to Coble because Smith and his representatives refused to comply. On the sale to Coble it appears one Owensby first notified the administrator that he could find a purchaser if there was any commission to him in it. Jones informed him there was. The sale to Coble was consummated, and upon its consummation Jones testified that Owensby, the broker firm in the Smith deal, and the administrator, agreed that the commission of 5 per cent, on the Coble deal should be divided, $200 to Owensby, $375 each to the respective brokers in the Smith deal. There is no order of court showing that the administrator was authorized to employ Owensby and pay him 5 per cent, commission on the sale, or that any such charge was ever approved by the court. In fact, there is no evidence that there was an agreement by the administrator to pay Owensby that amount. Owensby was willing and did take $100 for his services. There can be no ground upon which the two brokers were paid $375 each, except that it was in satisfaction or compromise of their claim against the administrator or estate in the Smith trade.

In so far as the estate’s liability or interest was concerned, the administrator had no authority to compromise so as to create a liability against the estate. The administrator may compromise any claim in dispute only upon application to a regular term of court, and this will be permitted only when the court is satisfied it is to the best interest of the estate, and an order must be entered to that effect. Article 3354, R. O. S. In this case the administrator received his full 5 per cent, commission for receiving the money paid in consideration of the land by Coble. In addition he paid $100. to Owensby, and then paid the two other broker firms $750, and also charged the estate 5 per cent. on the $750 so paid to the brokers. These several items are charged up as expenses necessary and proper in managing the estate. The probate court evidently disallowed this claim, as did the trial court below, on the ground that it was not necessary in the handling of the estate or to its best interests. The original broker had no such contract as could have been enforced by them. The estate got no benefit from their services under their contract. Owensby had no such contract as could be enforced against the estate; his services may have benefited the estate, but he was satisfied with $100 for his services. This the court allowed, as expenses incurred by the administrator. But his commission with the two broker firms was not allowed. We do not believe that he had the power to adjust or settle the claim against the estate. That, under the law, rested with the court. In the case of Rice v. Conwill, 35 Tex. Civ. App. 341, 80. S. W. 393, the court had under consideration the statutes, which impose the duty on the administrator to take such care of the property of the estate as a prudent man would take of his own, and to keep in repair buildings, etc. It was there held that improvements made on the premises did not fall under the term “repair.” There was also an item of $50 charged for assisting the agent of the administrator in selling land. The court said in the absence of an order of court the administrator had no power to contract in person therefor, much less through the medium of an agent. In that case the judgment of the lower court was reversed and rendered. While the $50 item for the sale of land is only mentioned incidently, it is evident the court refused to allow a recovery against the estate therefor. Appellant relies upon Gibson v. Gray, 17 Tex. Civ. App. 646, 43 S. W. 925. An examination of that case shows that it was based upon the theory that an as-signee of a bankrupt estate under the statute is a trustee, in whom the title is vested and who is personally responsible in a contract of agency, citing Taylor v. Mayo, 110 U. S. 330, 4 Sup. Ct. 147, 28 L. Ed. 163, in which case it is said a trustee is not an agent. When a trustee contracts as such, unless he is bound no one is bound. It was therefore held a broker who sold under a contract of employment with such trustee could recover against the trust estate. In that case the court also distinguishes the contract of a trustee and a receiver. The custody of property by a receiver is that of the court, and his acts, so far as authorized, are the acts of the court, and of course he incurs no personal obligation while acting within the scope of his authority. So in the case of an administrator, he is the officer of the court; no title vests in him, but all the powers with reference to the sale of land is in the court. The other cases cited by appellant are cases where an independent executor, under a will, which gives him power to sell, may contract for commissions. Armstrong v. O’Brien, 83 Tex. 635, 19 S. W. 268; O'Brien v. Gilleland, 79 Tex. 602, 15 S. W. 681; Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227; McCown v. Terrell, 9 Tex. Civ. App. 66, 29 S. W. 484. These cases evidently rest upon the doctrine of trust; the title or power being vested in the executor as trustee under a will empowering the trustee to sell. Article 3374, R. C. iS ; Terrell v. McCown, 91 Tex. 231, 43 S. W. 2. The appellant also cites cases with reference to the employment of attorneys. This power is especially conferred by statute.

It does not occur to us that money paid a broker on a contract for 5 per cent, commission to effect a sale properly falls under article 3623, allowing all reasonable expenses necessarily incurred by the administrator in the preservation, safe-keeping, and management of the estate and all reasonable attorney’s fees necessarily incurred in the course of administration, The appellant contests the finding or the idea that the amounts claimed were for commission for sale, but asserts that they were for services rendered in the management of the estate. The administrator testified the compensation agreed upon was 5 per cent, commission on the amount of the sale. They were employed as brokers and sold the land and contracted as such. By such contract the brokers undertook to sell' the land and to perform a duty imposed by the statutes upon the administrator. This duty or power could not be delegated by the administrator to another and certainly not without an order authorizing him to do so, or approved by the court. The law fixed the compensation of the administrator at 5 per cent, on the money received on the consideration paid for the land, and to permit another 5 per cent, for the services included in the power to sell would amount to a double chaise for the same services. We believe the court correctly refused to allow these items.

The judgment will be affirmed.
      <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SOUTHERN TRACTION CO. v. DILLON.
    (No. 7756.)
    (Court of Civil Appeals of Texas. Dallas.
    June 9, 1917.
    On Rehearing, Nov. 3, 1917.
    Rehearing Denied Dec. 15, 1917.)
    1. Witnesses <&wkey;275(2) — Cross-Exahination — Scope.
    In an action for personal injury and for the death of plaintiff’s son when struck by defendant’s car, a question to plaintiff on cross-examination as to whether he knew that, in a companion case arising out of injury to a third party in the same accident wherein - the facts detailed by plaintiff were the same as those testified to on the trial, the jury’s verdict found him guilty of negligence, was properly excluded, as it in no way contradicted the plaintiff’s former statement.
    2. Railroads. <&wkey;350(7) — Personal Injury —Speed of Car — Instructions.
    In such action, where the evidence showed that the car was running at the usual speed, with nothing to indicate that its speed would be lessened, until plaintiff drove upon the crossing, and where there was no issue of discovered peril, the speed of the car was not in issue, and its submission was erroneous.
    3. Appeal and Ebbob <&wkey;1062(l) — Harmless Ebbob — Submission op. Issue.
    Where the finding as to the sounding of the whistle was a sufficient predicate for defendant’s negligence, the submission of the issue as to the speed of the car was harmless.
    4. TBIAL <S--v214 — CONTRIBUTORY Negligence! —Instbuction—Necessity op Request.
    In an action for personal injury at a crossing, when struck by defendant’s car, where the plea of contributory negligence was supported by evidence, the court should have presented a proper charge thereon, and its failure to do so would have been ground for reversal without presenting charges.
    5. Trial <&wkey;423 — Instructions—Requests— Preparation.
    Where defendant, not standing upon its objection to the charge, undertook at the court’s request, to prepare special charges on the issue of contributory negligence, part of which were given by the court, defendant could not complain that they were not as full and specific as they should have been.
    6. Damages <&wkey;216(8) — Instruction — Doss op Earning Capacity.
    An instruction that in estimating the amount of damages the jury might consider plaintiff’s lessened capacity to labor and earn money, but not placing any limitation as to the lessened capacity, and leaving the jury to assess damages in the future, was erroneous, where the evidence did not show that plaintiff’s injuries were permanent, or what his future condition would be.
    7. Death <&wkey;104(5) — Earning Capacity — Instruction.
    A charge that the jury might consider the net value of the services of plaintiff’s son from the date of the fatal accident until he should have reached majority, without requiring the jury to consider the expense that plaintiff would probably incur on his son’s account during minority, was erroneous, especially in view of its failure to explain the expression “the net value of the services.”
    -, On Rehearing.
    8. Appeal and Error <&wkey;754(l) — Harmless Ebror — Erroneous Instruction on Damages.
    In an action for personal injury and for the death of plaintiff’s son when struck by defendant’s car, where there was no assignment that the verdict for plaintiff was excessive, errors in the instructions, which could have only caused an excessive verdict, and which had no bearing on the question of liability, would not authorize a reversal.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by J. A. Dillon against the Southern Traction Company. Judgment for plaintiff, and defendant appeals.
    Judgment affirmed.
    J. J. Averitte and Wear & Frazier, all of Hillsboro, for, appellant. Shurtleff & Cummings and Walter Collins, all of Hillsboro, and Chas. L. Black, of Austin, for appellee.
   RAINEY, C. J.

Appellee Dillon was traveling along a public road in Hill county, driving two mules bitched to a covered wagon, two lads accompanying him in the wagon, one his son 9 years old and the other about 13 years of age. While going across the track of the Southern Traction Company the wagon was struck by a car of said company, which collision resulted in Dillon’s legs being broken, his son being killed, and the other lad being injured. Dillon instituted this suit against the traction company to recover damages for the injuries to himself and for the killing of his son. Defendant answered by general denial and specially contributory negligence. Special issues were submitted to a jury, and upon return of answers thereto judgment was rendered for appellee.

Upon the trial of the case appellee, while testifying, shed tears, and on cross-examination he was asked this question:

“All right, you know that the jury in passing upon the Buford Owens case, a companion case to this, in which all of the facts and circumstances detailed by you at this time were detailed by you on that trial, and in passing upon that case the jury last week returned a verdict, that is, the jury trying that case returned a verdict on Monday of this week, stating that you were guilty of negligence in going upon the crossing and the track at the time you were injured?”

which was objected to because immaterial and irrelevant, and said objection was sustained. We find no error in this action of the court. It was not proper for him to testify that he knew the jury in the Owens Case, a companion chse which had been previously tried, had returned a verdict that he was guilty of negligence in driving upon the track, as it in no way contradicted any former statement made by him. Besides, there was testimony admitted which showed that appellee did not cry when being examined, and in detailing the circumstances of the accident on two former occasions. What the verdict in the Owens Case was was not a relevant matter for consideration of the jury trying this case.

Complaint is made of the court’s charge in the submission to the jury of the question of negligence of appellant in the speed of its car, and it being the proximate cause of the injury; also in failing to sound the whistle at the proper time and place in approaching the crossing; which issues were answered in the affirmative. As to the speed at which the car was running, we think the submission was erroneous, as the testimony was not sufficient to warrant it. The car was running at the usual speed for it to run, and there was nothing at the time in the surroundings to indicate that the speed should be lessened, until appellee drove upon the crossing, when the car was nearly approaching the crossing. There was no plea or issue of discovered peril presented, and the speed of the ear did not become an issue.

But the sounding of the whistle was an issue, and being answered in the affirmative was sufficient upon which negligence could be predicated, and the submission of the issue as to the speed of the car 'was harmless, and does not cause a reversal of the case.

The issue of contributory negligence was raised by the evidence, and the court failed of its own motion to charge thereon. Counsel objected to this omission in time, and the court offered to give a charge on this question if counsel would prepare it. Counsel prepared seven propositions there, on, which were requested to be given, but the court only submitted two to the jury, Nos. 1 and 5. No. 1 was answered in the negative, and No. 5 only calling for an answer in the event No. 1 was answered in the affirmative, it was not answered by the jury.

The appellant having pleaded contributory negligence, 'and that issue being raised by the evidence, the court should have presented the proper charge. Not having done so, the appellant would have a good ground for reversal without presenting special charges. Railway Co. v. Gant, 175 S. W. 745. But counsel did not stand alone upon his objections to the charge, but undertook to comply with the court’s request to prepare special charges on said issue. Having presented several and the court having given two, we are of the opinion that appellant cannot be heard to complain, although those given are not as full and specific as they should have been.

Complaint is made of the court’s charge on the measure of damages, which charge is as follows:

“Question No. 6. ‘What amount of money if paid now, in cash, would compensate J. A. Dillon for the damage, if any, sustained by him on account of the death of the son, Estrelle Dillon, and for the injuries, if any, sustained by him as a direct and proximate result of said accident? ’ ‘In estimating the amount of damages, if any, which you may find for J. A. Dillon, you will take into consideration only the following elements: The physical and mental pain, if any, suffered by the plaintiff, J. A. Dillon, and any lessened capacity to labor and earn money on the part of the said J. A. Dillon, if any, as a direct and proximate result of the injuries, if any, received by the plaintiff at the time of said accident, and the net value of the services of said Estrelle Dillon from the date of the said accident until he should have reached the age of 21 years.’ ”

One objection is to that part of the charge which relates to the lessened capacity of ap-pellee to labor and earn money. The appel-lee submits thát the impairment of earning capacity may be inferred by the nature of the injuries, in the absence of express evidence. The evidence shows that appellee, six months after the accident, testified as follows:

“I will be 42 years old my next birthday. Prior to this accident there was not anything the matter with me; I was able to work and did work every day, and before I was injured I was making from five to seven and eight dollars á day. I was hurt on the 2d day of last September, and since that time I have not done anything or earned any money. ⅜ * * When the car struck the wagon it killed my little boy and broke my leg and cut my head up there and skinned me all over. It broke my left leg right above the ankle and skinned my head up here about my left eye; cut my left eyebrow in two' twice. After the injury, we were carried to Milford, and were then brought home in Hills-boro something near 8 o’clock that night. I was confined to my bed after that and, was under the treatment of Dr. Brian and Dr. Edwin Vaughan for about two months, I think. There was a month and two days that I didn’t turn over, and then there was for quite awhile that I was in the bed then, and then I got to where I could sit up some, and I don’t remember just how long I was in the bed. During that month and two days I suffered a right smart pain and could not sleep at night and I suffered from mental worry.”

It is to be noted that the charge does not place any time or limitation in regard to the lessened capacity to earn money which may exist, and it leaves the jury to assess dam-, ages in the future on lessened capacity. The evidence does not show that appellee’s injuries were permanent, or what his future condition would be from the injuries. We agree with the contention of appellant that when there is evidence showing the capacity to earn money is lessened permanently such a charge would not be objectionable, but the evidence fails to make such a showing, and therefore we hold that the charge is error. Railway Co. v. Choate, 159 S. W. 1058; Railway Co. v. Spencer, 55 Tex. Civ. App. 456, 119 S. W. 716. The two cases above cited were cited by appellee to support his contention, but in the Choate Case, a charge was approved which limited the existence of incapacity to earn money “as long as such diminution, if any, shall exist, that was the direct and proximate result of the negligence, if any, of the said defendant.” This charge placed a due limitation upon the existence of such incapacity, which the charge in this ease does not do. In the Spencer Case, on this point the evidence showed the injuries were permanent, and the charge was proper as to future damages as to lessened capacity.

There is also objection to said charge as to the contributions that the boy would have made to appellee, had he not been killed. The charge fails to tell the jury, in estimating the value of the son’s services to the appellee, to consider the expense that appellee would probably incur on his son’s account for the period of his minority, hut the charge is so worded that the jury might infer what the services for the full time would he worth, and allow such value if now paid in cash. The expression in the charge, “net value of the services,” is not explained by the court, and there is no explanation from which the jury aré informed of what element is to be deducted from the value of the services that might he rendered. Railway Co. v. Morrison, 93 Tex. 527, 56 S. W. 745; Traction Co. v. White, 94 Tex. 468, 61 S. W. 706.

For 'the errors indicated we reverse the judgment and remand the cause.

On Rehearing.

On consideration of appellant’s motion for rehearing we have reached the conclusion that we erred in our former holding reversing the judgment and remanding this case. In our former holding our judgment was based on two grounds, to wit: (1) That the court erred in charging the jury that they, could assess damages for plaintiff on account of impaired earning capacity; (2) for submitting to the jury the question of damages for the loss of services of plaintiff’s deceased son.

In our former opinion we cited two cases, Railway Co. v. Choate, 159 S. W. 1058, and Railway Co. v. Spencer, 55 Tex. Civ. App. 456, 119 S. W. 716, and stated that said cases were cited by appellee in support of his contention. Counsel for appellee complains that this was a mistake on our part, but that said cases were cited in support of another proposition. This being true, we erred in this respect, which is here conceded. We also concede error was committed in reversing the judgment on the two grounds mentioned, as both relate to the court’s charge on the measure of damages. While the two cases were not cited by the appellant, as stated by us, we are of the opinion that the principle announced therein is applicable, and supports the proposition stated by us.

There was no assignment by appellant that the verdict was excessive, nor was there any contention in the court below by appellant that any such vice existed in the verdict. This being the condition of the record we feel that we were not authorized to reverse the judgment on these grounds, for as said by Mr. Justice Stayton in the case of Railway Co. v. Boozer, 70 Tex. 530, 8 S. W. 119, 8 Am. St. Rep. 615:

“We are of the opinion, however, that we would not be authorized to reverse the judgment on account of this charge, even if it was not the duty of the appellant to have asked a proper charge in this respect, for there is no complaint made that the verdict of the jury was excessive. The only effect the charge could have had would have been to cause an excessive verdict, and it in no way had a bearing on the question whether the appellant was liable at all under the facts.”

See, also, Railway Co. v. Motwiller, 51 Tex. Civ. App. 432, 112 S. W. 796.

Such being the case a rehearing is here granted, and as we conclude that there was no other error in the charge of the court, and as the evidence was submitted to the jury and they determined against appellant, we do not feel warranted in disturbing their finding. Therefore the motion for rehearing is granted and the judgment is affirmed.
      <g==>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    BAKER v. McMILLAN.
    (No. 762.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1917.
    Rehearing Denied Jan. 3, 1918.)
    Raileoads &wkey;>424 — Fencing Right of Wat —Animals—Negligence.
    In a city where there is a valid ordinance prohibiting stock from running at large, the owner of stock killed on a railroad track must prove negligence, although the railroad has not fenced its right of way, but in localities where there is no such law the railroads cannot defend, where the track is unfenced.
    Appeal from Anderson. County Court; E. V. Swift, Judge. •
    Suit by Major McMillan against James A. Baker, receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    N. B. Mbrris, Jr., N. B. Morris, and J. H. Ransom, all of Palestine, for appellant. W. R. Petty, of Palestine, for appellee.
   HARPER, C. J.

This. suit was filed in justice court by appellee to recover the value of a horse killed by a passenger train operated by the receiver of the International & Great Northern Railway Company, and this appeal is from a judgment in county court for $100 and interest.

It was admitted by both parties in open court that the animal in question belonged to the plaintiff; that it was killed on the 2d day of November, A. D. 1915, by one of defendant’s trains; that the operatives of said train were not guilty of negligence in the killing of said animal; that the track and right of way where the animal was killed was not fenced; that said point where said animal was struck and killed was and is situated within the city limits of the city of Palestine, Tex., and within the yard limits of said railroad company at Palestine; that at the time the animal was killed, and before and since then, there was and is in said city of Palestine a valid ordinance prohibiting the running at large of horses and other animals, and that said horse at said time was a trespasser on the defendant’s track.

Appellant urges that the court erred in refusing a peremptory instruction for .defendant, upon the ground that it- being admitted that the horse was killed at a point which was and is situated within -the city limits of Palestine, Tex., a city having in full force and effect at the time and place of the accident a valid city ordinance prohibiting horses and other animals from running at large, and it being further admitted that said horse was, at the time of its death, a trespasser on appellant’s track, and it being further admitted that the operatives of the train which killed said horse were not guilty of negligence, the appellee cannot recover as a matter of law.

Appellee’s counter proposition is that in order for the appellant to defend in this action it must show that the right of way and tracks could not or that it would not be permitted to fence, which it has not shown. The rule invoked by appellee is applicable to points -upon the railway right of way where there is no valid stock law prohibiting animals from running at large; but in all localities where there is a valid law prohibiting stock from running at large the owner of animals must show negligence in order to recover, for the reason that he violates the law in permitting his stock to run at large, and the animal commits a trespass when it goes upon the track. M., K. & T. Ry. Co. v. Tolbert, 100 Tex. 485, 101 S. W. 206; T. & P. Ry. Co. v. Webb, 102 Tex. 210, 114 S. W. 1171; Ft. Worth & D. Ry. Co. v. Hodge & Spur, 58 Tex. Civ. App. 540, 125 S. W. 350.

It being admitted in this case that a valid law or ordinance prohibiting the running at large of horses or other animals, and, further, that the operatives of the train were not guilty of negligence in killing the horse, the appellee cannot recover its value, and the trial court should have given the requested peremptory instruction for defendant.

Reversed and rendered.

WALTHAL-D, J., did not sit, being absent on committee of judges assisting the Supreme Court.


author: SWEARINGEN, J.

text:
    OWENSBORO WAGON CO. v. SAN ANTONIO TIE & LUMBER CO.
    (No. 5919.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Trial <&wkey;26 — Introduction oe Evidence —Postponement.
    Refusal to postpone a civil trial for a reasonable time to enable plaintiff to find a misplaced deposition and introduce it in evidence was within the sound discretion of the court under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1952, providing that the court in its discretion may, at any time before the conclusion of the argument where it appears to be necessary to the due administration of justice, allow a party to supply an omission in testimony on such terms as it may prescribe.
    2. Depositions t®=85 — Introduction oe Evidence-Discretion;
    Refusal of the court to allow plaintiff’s attorney to introduce in evidence a carbon copy of a deposition alleged to have been misplaced was within the sound discretion of the court under Vernon’s Sayles’ Aun. Civ. St. 1914, art. 1952, authorizing the court at its discretion to allow a party to supply an omission in testimony on such terms as it may prescribe.
    3. Partnership <&wkey;217(3) — Actions — Evi- , DENCEl
    In an action for the purchase price of wagons sold to a partnership, evidence held insufficient- to show delivery and receipt by the partnership.
    Appeal from Bexar County Court for Civil Cases; J. H. Clark, Judge.

      Action by the Owensboro Wagon Company against the San Antonio Tie & Lumber Company. Judgmlent for defendant and plaintiff appeals.
    Affirmed.
    Emmett B. Cocke and C. J. Matthews, both of San Antonio, for appellant. Gordon Bul-litt, of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit by appellant, the Owensboro Wagon Company, to recover the reasonable value of two wagons ordered and received by appellee, the San Antonio Tie & Lumber Cbmpany, a partnership composed of joe L. Hill, J. M. Dobie, and Win. A. Prisby. The court instructed a verdict in favor of the defendants J. M. Dobie and J. L. Hill, and in favor of the appellant against the defendant Wm. A. Prisby.

The petition alleged that the wagons were ordered by the San Antonio Tie & Lumber Company, a partnership of members designated; that the wagons were shipped as ordered; that they were received by the partnership and were appropriated to the use of either the partnership or the individual use of the manager of the company, W. A‘ .Prisby; that the reasonable value of the wagons was $248.16, plus $29.88 freight charges, paid by appellant. J. M. Dobie and Joe L. Hill denied that the wagons were ordered or received by the partnership.

The undisputed evidence shows that Dobie, Hill, and Prisby were a trading partnership, and Ptisby was manager at the tie .mills for the partnership; that he did order the two wagons shipped to the partnership; that the wagons were shipped to the partnership in pursuance with the order; that their reasonable value was $248.16, plus the freight. Whether the wagons were delivered to and received by the partnership, or whether they were refused by the partnership before delivery and were diverted by appellee to Prisby individually, is the issue of fact contended for by appellant in its third and fourth assignments, and will be further mentioned by us in considering those assignments.

The first assignment complains of the court’s refusal to postpone for a reasonable time the submission of this case to the jury, in order to enable the plaintiff to find a misplaced deposition- and introduce same in evidence, both sides having announced the preceding evening that they had no further testimony.

The second assignment complains that the court refused to allow plaintiff’s attorney to introduce in evidence what he claimed was a carbon copy of the depositions.

Both questions were within the discretion of the court, and, because wie are unauthorized to find as a matter of law that this discretion was abused, we overrule the first and second assignments. Vernon’s Say les’ Texas Civil Statutes, art. 1952, and citations thereunder.

The remaining assignments contend that the court erroneously instructed the verdict in favor of - J. ⅞⅝ Dobie and Joe L. Hill. We (think the undisputed evidence shows that the appellant was notified by the partnership, through its agent, that the wagons would not be received, and that this refusal was acquiesced in by the appellant, and it - authorized W. A. Prisby to take possession of the wagons either for appellees or for himself individually. Prom this we think that the allegation of appellant that the'wagons were delivered -to and received by the partnership was not sustained by any evidence, in fact, the evidence was to the contrary, and it was undisputed. This evidence is the letter written by Prisby, the agent of the partnership, refusing to receive the wagons for1 the partnership and submitting an offer to receive them for himself individually, and the reply thereto acquiescing in the partnership’s refusal to receive the wagons and making a conditional offer to sell to Prisby for his individual use. There was no condition about the instruction for Prfclbiy ini htsl individual capacity to receive the wagons. As there was no evidence to sustain the material allegation that the partnership had received the wagons, the court properly instructed the jury to return a verdict in favor of the partners, DoBie and Hill. The third and fourth assignments are overruled.

The judgmlent is- affirmed.

FLY, O. J., entered his disqualification in this case.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes