author: WALTHALL, J.

text:
    TOM v. ROBERSON.
    (No. 507.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 6, 1916.
    On Rehearing Feb. 10, 1916.)
    1. Evidence <@=3450 — Parol Evidence — “Ambiguous” Contract.
    An “ambiguous” contract, to explain the terms of which parol evidence may be heard, is one capable of being understood in more senses than one; a contract obscure in meaning, through indefiniteness of expression, or having a double meaning.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. <@= 450.
    For other definitions, see Words and Phrases, First and Second Series, Ambiguous.]
    2. Contracts <@=93 — Omission oe Parol AgreementsMutual Mistake.
    Omission of part of the oral agreement from the written contract is not by mutual mistake, where one of the parties, at the time of signing it, knows that all the agreement is not embraced in it.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 415-419; Dec. Dig. <@=93.]
    On Rehearing.
    3. Bandlord and Tenant <@=72 — Contract eor Lease — Ambiguity.
    A contract reciting that R., having land leased for a year, leases it to T. at the same price R. paid N. for it, is not ambiguous as to the time T.’s lease is to run, which is only the year for which R. had a lease, even though R. again leases from N.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 218, 219; Dec. Dig. <@=
    Appeal from District Court, Martin County; S. J. Isaacks, Judge.
    Action by J. B. Roberson against C. Tom. Judgment for plaintiff, and 'defendant appeals.
    Affirmed.
    Jno. B. Littler, of Big Springs, S. W. Pratt, of Stanton, and Chas. Gibbs, of Midland, for appellant. Morrison & Morrison, of Big Springs, for appellee.

      Application for writ of error pending in Supreme Court,

   WALTHALL, J.

This is a suit in trespass to try title, brought by J. B. Roberson, ap-pellee, against appellant, C. Tom, seeking recovery of sections 21 and 29, block 36, township 2 N., T. & P. surveys in Martin county. Appellee claimed right of possession through a lease contract from J. F. Norton, the owner of the section. Appellant, Tom, pleaded “not guilty,” and ' further pleaded his right of possession as sublessee from appellee. Appellee alleged that J. H. Epley, W. ■ T. Epley, appellant, and appellee each own adjoining pastures in said county; that he (appellant) owns section 30, block 36, township 2 N., and is in the pasture of W. T. Epley; that section 33 in same block was formerly in the pasture of T. H. Epley, but is now in appellee’s pasture; that said sections 21 and 29, involved in this suit, are now and for more than ten years have been in his (appellant’s) pasture; that on February 13, 1912, a suit was.pending in Martin county, in which .suit W. T. Epley sued ap-pellee on certain notes and to foreclose a lien; that about the time the suit was pending appellee had procured a lease to said sections 21, 29, and 33, neither of which was then in appellee’s pasture; that pending the suit the two Epleys and appellant and ap-pellee entered into a blocking contract with reference to said lands, resulting in a dismissal of said suit, at-appellant’s expense, with the agreement that J. H. Epley should yield his possession of section 33 to appellee, and that appellant should yield possession of his sections to J. H. Epley, and retain possession of said sections' 21 and 29, and maintain one mile of fence along the north line of section 33, belonging to him (appellant) for the benefit of appellant, during the continuance of said arrangement; that the said blocking arrangement resulted in all controversies being adjusted, each party went into possession of the respective sections, as arranged, the suit was1 dismissed, expenses paid, and appellee’s notes extended for one year, according to agreement; that it was understood and agreed that said blocking agreement should continue as long as the parties to the agreement owned or controlled the lands involved; that said agreement was attempted to be reduced to writing, a copy of which is made a part of appellant’s answer. Appellant alleged that said written agreement, as written is ambiguous, in that “the intention of the parties thereto” is not made clear; “that by mistake and oversight the scrivener who reduced said agreement to writing failed to state definitely the life of said agreement, and by mutual mistake the parties to same signed said agreement as drawn.” Appellant alleged that at the date of said agreement appellee held a lease from J. F. Norton covering sections 21 and 29 for a term of one year; that at the expiration of said lease, and pursuant to said blocking agreement, appellee procured another lease to sections 21 and 29 for a term of one year, and collected from appellant the rental due thereon; that at the expiration of that lease appellee procured another lease for one year, and again collected of appellant the annual rental, paying same to Norton, the owner; that at the expiration of said first and second lease contracts appel-lee represented to appellant that he would procure a renewal of the lease covering said sections 21 and 29 for the use and benefit of appellant, and in all things acquiesced in the original blocking agreement as made until the date of the renewal' of the lease contract for the year 1915, appellant continuing to remain in possession of said sections 21 and 29 under said agreement during the years 1912, 1913, and 1914. Appellant alleged that, on account of appellee’s having acquiesced in said original blocking contract from year to year and respected same as a permanent blocking arrangement, appellee is now estopped to deny tbe agreement and demand possession of sections 21 and 29; that on account of the conduct of appellee in procuring said lease contracts from year to year, for the use and benefit of appellant, appellant made no effort to secure a lease for himself from the owner, but relied upon the agreement, and has purchased cattle with which to stock said sections, and will be damaged, etc.; that at the renewal of said lease by appellee of sections 21 and 29 for 1915 appellant offered to pay the rental to appellee, and tendered same in court.

Appellee, filed a supplemental petition, admitting and denying some of the facts alleged, not necessary to state here, but denied that there was any agreement as to permanency of the blocking agreement, and alleged that the written agreement signed by the parties was the agreement made, and denied that any mistake was made or any part of their agreement was omitted from the writing; alleged that appellant paid him the same rental he paid the owner, and that at the expiration of the written agreement he verbally let said sections 21 and 29 to appellant each year, and refused to extend the verbal lease to appellant for the year 1915, proffering, however, one of said sections to appellant for 1915, which appellant refused to accept.

The case was tried before the court without a jury. The court made and filed findings of fact, and thereupon entered judgment for appellant.

Findings of Facts.

Appellee leased from the owner sections 21, 29, and 33 on the 8th day of February, 1912, for a period of one year, and has renewed the lease each year since. Sections 21 and 29 were in appellant’s pasture. After procuring the first lease a controversy arose between appellant and appellee on account of the two sections being in appellant’s pasture. The following written contract was then made:

“The State of Texas, County of Martin.
“This article of agreement this day entered into by and between J. B. Roberson, of Martin county, Texas, and C. Tom, J. H. Epley, and W. T. Epley, of the county of Martin and state of Texas, witnesseth: That said J. B. Roberson, having all of sections Nos. 21, 29, and 33 in block No. 36, township 2 north, grantee, Texas & Pacific Railway Company, leased for the period of one year, and the said J. B. Roberson leases to C. Tom, at the same price he paid to Norton for said lease, and he, the said Roberson, retains the lease on said section No. S3 above described, and for such consideration for the two sections the said C. Tom agrees to pay all costs of a suit that was filed by W. T. Epley against the said J. B. Roberson to foreclose vendor’s lien notes, provided it is agreeable with W. T. Epley for him to do so. It is further agreed that C. Tom is to have the fence on north line of said section 33 described, to be used by J. B. Roberson, during the life of this lease. It is further agreed that one-half of fence is to be built by J. B. Roberson and W. T. Epley jointly on the east side of the south one-half of section No. 32, and I, J. B. Roberson, agree that the one mile of fence on the east side of section No. 33 belongs to J. H. Epley, and the said W. T. Epley agrees to give J. B. Roberson one year’s time on the land notes that are owned by J. B. Roberson, as he, W. T. Ep-ley, provided the same time can be secured from Norton. This contract is signed by J. B. Roberson and C. Tom with the understanding it will meet the approval of J. H. Epley and W. T. Epley and signed by them. Witness our hands at Stanton, Texas, this 13th day of February, A. D„ 1912. [Signed] C. Tom. J. B. Roberson. J. H. Epley. W. T. Epley.”

In the negotiations arising on account of the controversy, Roberson and Tom agreed between themselves that, if Tom would secure an extension from J. H. Epley for a period of one year on the time of payment of the notes due to Epley by Roberson, Roberson would let Tom use sections 21 and 39 so long as he (Roberson) should have same under lease or under his control, it being contemplated at the time that Roberson should secure a renewal of the one-year lease from year to year; after entering into the agreement orally, in which it was contemplated, as a part of it, that Tom should have the use of said two sections 21 and 29, so long as they were under the control of Roberson, Roberson and Tom went to P. O. Aiken to have their oral agreement reduced to writing and the written contract signed by the parties, including the two Epleys; that the above written contract was prepared by Aiken, but was not what was orally agreed to and intended to have been reduced to writing; Roberson permitted Tom to use sections 21 and 29 from the 8th day of February, 1912, to the 8th day of February, 1915, and collected the rent therefor.

Before signing the written contract, Tom read it or had it read within his hearing, and remarked that it did not go far enough, meaning thereby that it did not cover all the oral agreement between himself and Roberson, but signed the contract as written, after understanding that it did not contain all of the oral agreement. Roberson on the 8th day of February 1915, declined to further permit Tom to use sections 21 and 29, and filed this suit on March 1st to recover possession. No evidence was introduced as to the rental value of the two sections. The written contract failed to state the oral agreement of Roberson and Tom, in that it did not state that Tom should have the use of sections 21 and 29 (the land in controversy) so long as Roberson should have a lease upon the two sections or have them under his control. From the time the written contract was signed to the 8th day of February, 1915, Roberson acquiesced in that part of the oral agreement not put in the writing, that Tom should have the use of the two sections, so long as he (Roberson) should have them leased,-or have control of them. At the time of Roberson’s refusal to further let Tom have the use of the sections 21 and 29, and at the time the judgment was entered, Roberson had a lease on said two sections, or had them under his control.

Appellant presents two assignments of error. The first is to the effect that the judgment of the court does not conform to the findings of facts made by the court; and the second assigns error in the court’s refusal to consider the oral testimony offered for the purpose of explaining the alleged ambiguity in the written contract as to its duration. The trial court’s findings of fact in all things conformed to and sustained the allegations in defendant’s answer upon which he relied for defense, except that there was no finding on the issue of fact pleaded that there was a mutual mistake made in drafting the written contract, in that it omitted to state that Roberson agreed to let Tom use said -two sections of land so long as he should have same under lease or under his control, and that the omission of said fact from the contemporaneous agreement was through mistake as alleged; that the omission was through mistake waá an essential element of defense. Nor did the court find that the contract was ambiguous. The omission of that part of the parol agreement from the writing would not, in our opinion, make the contract ambiguous. An ambiguous contract is one capable of being understood in more senses than one; a contract obscure in meaning, through indefiniteness of expression, or haying a double meaning. If a contract is in fact ambiguous, parol proof can be heard to explain the terms or expressions or language used, and only for that purpose can negotiations leading up to the written contract be used. Lemp v. Armengal et al., 86 Tex. 693, 26 S. W. 941; Clark v. Regan, 45 S. W. 169. The evidence does not show that a mistake was made in omitting from the writing any part of the parol agreement. The court found that before signing the written contract Tom read same, or had same read within his hearing, and remarked that it did not go far enough, meaning thereby that it did not cover all of the agreement between himself and Roberson, but signed the contract after understanding that it did not contain all of the agreement. If Tom knew at the time he signed the contract that all of the parol agreement was not embraced in the written contract, its omission therefrom could not constitute a mistake. Lott v. Kaiser, 61 Tex. 665. In Janes v. Fred Heim Brewing Co., 44 S. W. 896, the court said:

“If the defendants desired to show that the written contract did not embrace the entire terms of the contract between plaintiff and W. T. Jones, they should have alleged that fact in their pleadings, and further alleged that it was omitted either through fraud, accident or mistake, and the evidence must have supported this allegation.” Railway Co. v. Garrett, 52 Tex. 139.

Neither the evidence nor the findings of the court support the allegation of mutual mistake. The only material point of appellant’s contention in the case, and to which his pleading is directed, is the issue of mistake in not embracing the alleged omitted part of the, parol agreement in the written contract; and the evidence having wholly failed to show a mistake, the trial court could not properly have entered any other judgment than the one entered. The court was not in error in rendering judgment for appellee.

The case is affirmed.

On Rehearing.

In passing upon motion for rehearing, we have concluded that the following should be added to the original opinion:

The writing recites:

■ “The lessor, Roberson, having the land leased for the period of one year, the said J. B. Roberson leases to C. Tom, at the same price he paid to Norton for said lease.”

It is apparent from this language that the life of the lease was the time Roberson had it leased. Tom was bound to know that he got no more by his contract than Roberson himself had. The time for which Roberson liad the section leased being stated in the writing in direct connection with the consideration to be paid by Tom, “the same price as paid to Norton by Roberson,” leaves no doubt that the length of time the lease was to run was the time Roberson’s lease then had to run, and there is nothing in the writing to indicate that Roberson would again lease from Norton, nor that required him to so do; therefore, the time for which the lease was to run being clearly fixed by the writing, it was not ambiguous for that reason.

If the time for which the lease was to run does not clearly appear upon the face of the writing, the contract as written would be ambiguous, as contended by appellant. Willis v. Byars, 21 S. W. 320; Beard v. Gooch & Sons, 130 S. W. 1022; Brincefield v. Allen, 25 Tex. Civ. App. 258, 60 S. W. 1010; Giddings v. Lee, 84 Tex. 605, 19 S. W. 682. So parol evidence was not admissible to vary or add to the contract as written, except upon the theory that some matter under consideration at the time the writing was executed was left out by mistake of the parties to it. This proposition is, we think, properly disposed of by the original opinion.

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


source: Caselaw Access Project

author: FLX, C. J.

license: Public Domain

text:
    EL FRESNAL IRRIGATED LAND CO. v. BANK OF WASHINGTON.
    (No. 5593.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1916.)
    1. SUBMISSION Off CONTROVERSY <&wkey;17 — Agreed Statement oe Facts — Examination off Pleadings.
    It is proper for the court to examine the pleadings in determining a case on an agreed statement of facts.
    [Ed. Note. — For other eases, see Submission of Controversy, Cent. Dig. § 19; Dec. Dig. <&wkey;>17.]
    2. CORPORATIONS &wkey;300 — AUTHORITY Off President.
    In the absence of authority through the charter or directors, the president of a corporation has no greater control over corporate property and funds than any other director.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1320-1323; Dec. Dig. &wkey;300.]
    3. Corporations <&wkey;415 — Implied Authority off President.
    Where the president of a corporation is authorized to execute notes, there is no implied authority to execute liens or mortgages on corporate lands to secure such notes.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1664-1609; Dee. Dig. <&wkey;>415.]
    4. Corporations @=3415 — Authority of President — Mortgage.
    Where a corporation organized for irrigation purposes did not in tha ordinary course of business give liens to secure loans made to it, its president could not mortgage corporate land without authority from the board of directors.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1664-1669; Dec. Dig. &wkey;415J
    5. Bills and Notes <&wkey;340 — Bona Fide Purchasers — Authority off President off Corporation — Notice.
    Where plaintiff took as collateral security for a private debt of the president notes executed by the president of the defendant corporation and purporting to be secured by a lien on corporate land, plaintiff was charged with notice that the president was not authorized to give such liens, and it was not an innocent purchaser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 825-828, 842-848; Dec. Dig. @=>340.]
    6. Corporations <&wkey;370 — Purpose—Notice.
    Corporations exist by law for the purposes defined in their charters, and he who deals with them is charged with notice of these purposes.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1511-1518; Dec. Dig. @=>370.]
    7. Corporations <&wkey;399 — Authority off Agents — Scope.
    Corporations, like natural persons, are bound only by the acts and contracts of their agents done and made within the scope of their authority.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1588, 1602-1610; Dec. Dig. &wkey; 399.]
    8. Bills and Notes <&wkey;>342 — Bona Fide Purchasers — Notice.
    Where a bank took notes executed by the president of a corporation which purported on their face to be secured by a lien reserved in a deed to corporate land, which was recorded, the bank was charged with notice of the fact that no lien was reserved in the deed, and, although it took the note in the ordinary course of business, it was not an innocent purchaser.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1486-1488; Dee. Dig. 4=3342.]
    9. Corporations <&wkey;414 — Apparent Authority off President.
    The execution of notes is not within the apparent authority of the president of a corporation, even where he acts as general manager.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1640-1646; Dec. Dig. &wkey;414.]
    10. Corporations @=>429 — Agents—Assumption oe Authority.
    One cannot by relying upon its agent’s assumption of authority, charge a corporation for an unauthorized act of its agent.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1720-1723, 1725; Dec. Dig. &wkey; 429.]
    11. Bills and Notes @=>345 — Bona Fide Purchasers.
    Where the president of the A. corporation, as such, executed two notes to the B. corporation without consideration, and on the same day the B. corporation assigned the notes as collateral security to the C. corporation, and later a bank made a loan to the president of the A. corporation in his private capacity and to the B. and C. corporations, and took among other collateral the said two notes, the circumstances were such as to put the bank on notice of a fraudulent conspiracy against the A. corporation.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 996-1021; Dec. Dig. @=>
    12. Bills and Notes <&wkey;497 — Good Faith-Burden off Pro off.
    In such a case the burden was upon the bank to prove that it was a bona fide holder of the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. @=>497.]
    13. Estoppel &wkey;>52 — Nature and Elements. Where the president of a corporation, as
    such, without authority executed two notes without consideration, and later the notes were produced to secure a debt partly owed by the president in his private capacity, there was no element of estoppel against the corporation.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127; Dee. Dig. @=>52.]
    Appeal from District Court, Cameron County ; W. B. Hopkins, Judge.
    Action by the Bank of Washington against the El Fresnal Irrigated Land Company. From a judgment for the plaintiff, the defendant appeals,
    lieversed.
    Spears & Montgomery, of San Benito, for appellant. F. W. Seabury, of Brownsville, for appellee.

      Application tor writ of error pending in Supreme Court.

   FLX, C. J.

This is a suit instituted by ap-pellee on two promissory notes for $750 each, purporting to have been executed by appellant to the San Benito Land & Water Company, and it sought the foreclosure of a lien on certain land. The trial court rendered judgment in favor of appellee for $1,955.25 and for the foreclosure of a lien on 2,000 acres of land.

The cause is brought to this court on the following agreed statement of facts:

(1) “The defendant is a corporation incorporated and existing under the laws of Texas, for the purpose of constructing, maintaining, and operating canals, ditches, flumes, feeders, laterals, dams, reservoirs, lakes, and wells, and for conserving, storing, conducting', and transferring water to all persons entitled to the use of same for irrigation,” etc.
(2) “The defendant was at all the times hereinafter stated, and is now, the owner of a tract of 2,000 acres of land in Cameron county, Tex., known as the El Fresnal Irrigated Land Company’s subdivision of land in the Espíritu Santo grant in this county of Cameron, same being a part of share 1 in the partition of said grant, and being the same land conveyed by C. P. Barreda to Samuel Spears, trustee, by deed dated February 12, 1912, and recorded in Book 18, pages 144^147, of the deed records of this county, and by said Samuel Spears, trustee, conveyed to defendant by deed dated July 1, 1912, and recorded in Book 19, pages 452-454, of said records, having acquired and owing' same for its corporate purposes.”
(3) “On May 26, 1913, S. A. Robertson, as president and acting for said corporation, executed and delivered to the San Benito Land & Water Company the two promissory notes sued upon herein, same being in the principal sum of $750 each, bearing the date aforesaid, and due, respectively, on July 1, 1913, and January 1, 1914, which notes are identical, except as to their dates of maturity, and said note first maturing is now here copied in full as a statement of the terms of said two notes, as follows:
“ ‘$750. San Benito. Texas, May 26, 1913.
“ ‘On July 1, 1913, after date we promise to pay to the San Benito Land & Water Company, or order, seven hundred fifty and no/100 dollars, with interest at the rate of ten per cent, per annum from maturity until paid, interest payable annually, and further hereby agree that if this note is not paid when due to pay all costs necessary for collection, including 10 per cent, on all unpaid principal and interest for attorney’s fees; past-due principal, interest, and attorney’s fees to draw interest at 10 per cent, per annum the same as principal, with annual rests.
“ ‘This note is secured by a lien for water charges for the year 1913 on 2,000 acres of land in Cameron county, Texas, being El Fres-nal Irrigated Land Company’s subdivision of Espíritu Santo grant, in Cameron county, Texas, which said lien is set out in a deed by the San Benito Land & Water Company conveying said land, and this note shall not be held to change the terms and provisions of said deed in any other respect except as herein expressly provided.
“ ‘Voluntary payments on this note shall be made at San Benito, Texas, but if suit be brought thereon for debt, or for debt and foreclosure, same may be instituted and tried in Cameron or Travis counties, Texas, at the option of the holder.
“ ‘El Fresnal Irrigated Land Co.,
“ ‘By S. A. Robertson, Pres.’ ”
(4) “At the time said notes were executed by S. A. Robertson, as president of the defendant corporation, there was no provision in the charter or by-laws of the corporation, nor was there any resolution, order, vote, or other action of its board of directors, as far as shown by the minutes of said board, expressly granting to said president power or authority to execute notes and obligations in its name, or create a lien on said land for the purpose of securing any debt owing by it, but he was, as such president, lawfully in charge of and personally managing the business of defendant corporation, and, as such president, customarily executed, without express authority, all notes and obligations that were issued in the name of the corporation, and all notes and obligations so executed by him, except the present notes, were regularly paid or honored by the corporation. The two notes in question were, however, executed by S. A. Robertson, as such president for defendant corporation, under a misapprehension of facts as follows: At said time the defendant was not at all indebted to the San Benito Land & Water Company, and has not since been indebted to said company, and the defendant did not receive, nor did the San Benito Land & Water Company pay, any valuable consideration for said notes. That the San Benito Land & Water Company had not then, and has not since, executed any deed to defendant conveying said land, nor entered into any contract with defendant whereby a lien was fixed on said land for water charges for the year 1913, and that said land was acquired by defendant only in the manner above stated, and that, while there was a contract between defendant and the San Benito Land & Water Company, then duly recorded in Cameron county, Tex., whereby the latter compány undertook to furnish water for the irrigation of said land, yet said contract provides that no water charges shall be made against the defendant, or constitute a lien upon its said lands so long as same remain in the hands of defendant, it being contemplated that the land should be subdivided, and water charges were to run only on the subdivision thereof after same were sold by the defendant. Said contract did not create any obligation on defendant to pay any moneys to the San Benito Land & Water Company, or create any lien on said lands for the water charges of the year 1913, mentioned in said notes. ' That the foregoing facts were well known to both defendant and to the said San Benito Land & Water Company at the time said notes were executed and delivered, but same were overlooked by the parties, and said notes, in fact, executed by mutual mistake.”
(5) “On May 26, 1913, the San Benito Land & Water Company became indebted to the Rio Grande Construction Company in the sum of $3,500, to evidence which it on that day executed and delivered its notes for said sum to the said Rio Grande Construction Company, as collateral security therefor, the two notes herein sued on, which were duly indorsed by said San Benito Land & Water Company, the payee thereof, and in addition by S. A. Robertson.”
(6) “On June 1, 1913, plaintiff herein loaned to the Hidalgo Construction Company, the Rio Grande Construction Company, and S. A. Robertson the sum of $10,000, then and there paid to them in cash, and to evidence said loan took from them a note for said sum by the terms of which note the Rio Grande Construction Company pledged as collateral security therefor the said $3,500 note given it by San Benito Land & Water Company, together with the notes herein sued on, collateral to said $3,500 note, and delivered same to plaintiff, who has ever since been, except as hereinafter stated, the legal and equitable owner and holder of the notes here sued upon, as sueh pledgee. Plaintiff paid and loaned the said sum of money on the security of the two notes herein sued upon, with other securities, and at that time had not had, and did not have, any actual knowledge of the circumstances surrounding the execution and delivery of the two notes here sued upon, as above ggj* out ^
(7) “Subsequently, the said $10,000 not having been paid at the maturity thereof, plaintiff, acting in accordance with its rights as pledgee, and in compliance with the terms of said pledge, did on June 15, 1914, and on September 21. 1914, sell the various collaterals pledged with it to secure said $10,000 note, and at such sales became the purchaser of said $3,500 note given by the San Benito Land & Water Company, and of the two notes herein sued upon, for a valuable consideration. That before the time of said two sales plaintiff had received information that the defendant herein denied the obligations of the two notes sued upon, and claimed same were given without consideration, and plaintiff then knew that the statement in said notes in regard to the lien securing same was untrue in respect to the matters herein-before pointed out.”
(8) “Plaintiff is now, under the pledgee’s sale aforesaid, the legal and equitable owner and holder of said two notes and of any lien that under the foregoing facts may exist upon said lands securing the payment of said notes.”
(9) “No part of the principal or interest of said notes has been paid, and that on October 22, 1914, plaintiff placed said notes in the hands of F. W. Seabury, an attorney, for collection, and contracted with him to pay for his services in making suoh collection the 10 per cent, attorney’s fees in said notes respectively stipulated, which amount would be a fair and reasonable compensation for such service and the compensation usually allowed in suits of this character.”
(10) “Plaintiff has collected a part of the other collateral to its said $10,000 note, and has sold out all the collateral thereto not so collected, and realized from such sales and collections the sum of $2,539.50, which has been credited on said $10,000 note. That, the remainder of said note being overdue and unpaid, plaintiff in another suit in this court recovered judgment against the makers and indorsers of said note for the same, but an execution on said judgment has been returned unsatisfied, and that neither the makers nor the indorsers of said $10,000 note have property subject to execution, and are wholly insolvent. That plaintiff will not be able to collect its aforesaid -debt, even if it recovers and receives the full amount herein sued for. That the indorsers on the note herein sued upon are also insolvent.”
(11) “Plaintiff was, before the pledgee’s sale aforesaid, pledgee and holder for a valuable consideration of the two notes herein sued upon, without any notice whatever of any invalidity in or defense to said notes, except in so far as plaintiff may have been bound to take notice of the terms of the water contract aforesaid, which contract was of record in the real estate records of Cameron county at the time, and except as it may have been bound to take notice of the authority which said S. A. Robertson had as president of defendant corporation.”

The ninth assignment of error is taken up out of its order and disposed of adversely to appellant. The contention therein is that it is recited in the judgment that the court arrived at its conclusion “after hearing and considering the pleadings of the parties and the agreed statement of facts,” and the court should not have considered the pleadings at all.’ There is no merit in the proposition. Of course, the pleadings were heard and considered as pleadings, and not as evidence. The court was necessarily compelled to consider the pleadings in order to ascertain what was the subject of litigation, because the defense does not very clearly appear from the agreed statement on which the cause was submitted. The recital as to pleadings is found in most judgments, and is merely formal in its nature, just as is a recital as to argument of counsel. There is no rule forbidding a court to consider the pleadings in an agreed case. There is nothing to the contrary in the case of Thaison v. Sanchez, 13 Tex. Civ. App. 73, 35 S. W. 478, wherein it was held that when an agreed case is submitted in an appellate court issues as to pleadings are laid aside.

The first assignment of error assails the power and authority of the president of the irrigation company to create a lien on the land of the company in the absence of such authority being given in its charter, or by the board of directors, when no implication of authority arises from the manner and custom of the corporation in doing business with others. It is admitted that no such authority was vested in the president of the corporation by the charter or the directors, and the facts fail to show that it was customary for the president to execute liens on the land of the company. In the notes executed by the president no lien was given on the land, and no' intention is evidenced to give a lien through the medium of the note. The recital in the note is that it is secured by a lien for water charges set out in a certain deed made by a certain corporation to appellant. In fact no such lien was reserved in any deed. However, we will consider the case as though the lien was attempted to be given by the note.

The well-established general rule is that the president, in the absence of authority through the charter or the directors, has no more control over the corporate property and funds than any other director. His official station in itself confers no power or authority to act or contract for the corporation, and, where he is clothed with the power to execute notes, no authority will arise by implication or otherwise to execute liens on corporate lands to secure such notes. The president of a corporation is not authorized to mortgage its property to secure a loan without specific authority from, the board of directors. Currie v. Bowman, 25 Or. 364, 35 Pac. 848; Tempel v. Dodge, 89 Tex. 69, 32 S. W. 514, 33 S. W. 222; Leggett v. Mfg. Co., 1 N. J. Eq. 541, 23 Am. Dec. 728; Union Nat. Bank v. State Nat. Bank, 155 Mo. 95, 55 S. W. 989, 78 Am. St. Rep. 560.

According to the facts, the president had never before attempted to create a lien on the property of the corporation, and, his act being out of the usual course of business, appellee was bound to inquire as to the authority of the agent to create a lien on the property of the corporation. Appellant was a corporation organized for irrigation purposes, and it was not in the ordinary course of its business to give liens to secure loans made to it. Appellee was charged with notice that the president could not mortgage the land of his corporation without authority of the board of directors, and it knew that the debt was created in the interest of the president and not in that of the corporation, which did not receive a dollar of the money. It was not an innocent purchaser of the notes. Land Co. v. McCormick, 85 Tex. 421, 23 S. W. 123, 34 Am. St. Rep. 815; Liquor Co. v. Magnus, 43 Tex. Civ. App. 463, 94 S. W. 1117; Gulf Grocery Co. v. Crews (Ctv. App.) 146 S. W. 657.

As said by the New York Court of Appeals in Alexander v. Cauldwell, 83 N. Y. 480:

“Every one knows that corporations are artificial creations existing by virtue of law, and organized for purposes defined in tbeir charters; and he who deals with one of them is chargeable with notice of the purpose for which it was formed; and, when he deals with agents or officers of one of them, he is hound to know their powers and * * * authority. Corporations, like natural persons, are bound only by the acts, and contracts of their agents done and made within the scope of their authority.”

There was no lien reserved in a deed as recited in the notes, and appellee was charged with notice that there was no such lien reserved, for the deed was on record. The lien referred to as being in the deed was all upon which appellee! could rely for the creation of a lien, and with that deed upon record appellee could not be an innocent purchaser. It was charged with knowledge of the falsity of the recital in the note. Waggoner v. Dodson, 96 Tex. 415, 73 S. W. 517.

The act of Robertson in executing the notes was not, as claimed by appellee, within the apparent scope of his authority as president of the corporation. Appellee was charged with the knowledge that a president of a corporation has no apparent authority to execute liens on corporate property, and it should have made inquiry as to his authority under the charter or resolution of the directorate. The authorities cited by appel-lee have no applicability under the facts of this case. The facts did not indicate that Robertson had any authority to create a lien on the property of the corporation. It would not matter that he was general manager as well as president of the corporation; he could not, without authority from the charter or the corporation, place liens on its real estate. All the authority he had must have been given by the board of directors, for the general management of private corporations is placed in the hands of the directors by the statute. Rev. Stats. art. 1150; Cable Co. v. Telephone Co. (Civ. App.) 134 S. W. 429.

As said in a quotation indorsed by the Supreme Court in Railway v. Faulkner, 88 Tex. 649, 32 S. W. 883:

“A party dealing with the agent of a corporation must, at his peril, ascertain what authority the agent possesses, and is not at liberty to charge the corporation by relying upon the agent’s assumption of authority, which may prove, as it did in this case, to be entirely unfounded.”

Appellee could not indulge in the presumption as to the authority of the agent of the corporation to create liens, because such authority was not necessarily incident to or customarily exercised by presidents of private corporations engaged in irrigation purposes. Land & Irr. Co. v. Mercedes P. Co. (Civ. App.) 155 S. W. 286.

The fact that appellee may have acquired the notes before maturity, in the ordinary course of business, for a valuable consideration, and without notice, would not render appellant liable for the unauthorized act of its agent in endeavoring to place a lien on its property. Appellee presents no authority for the proposition that it would be an innocent purchaser, although the agent had no authority to execute the mortgage, and such act was not within the scope of his ordinary duties. The notes in question were not strictly commercial paper; for on their face they appear to be a mortgage, and they are relied on to give a lien on real estate. Strong v. Jackson, 123 Mass. 60, 25 Am. Rep. 19. In that case it was held that it was the duty of a bank that bought the note, with a lien appended, to examine the record, which would have revealed the fraud of the party who assigned the note. Appellee knew- that the money for which the notes were pledged was loaned to Robertson and his associates, and was not intended for the use and benefit of appellant. This was a suspicious circumstance, and appellee must have known that the president of a corporation is not given power to execute notes in the name of his corporation to be used to secure his individual debts. In discussing a similar question in Ward v. Trust Company, 192 N. Y. 71, 84 N. E. 588, the Court of Appeals held:

“The trust company had ample opportunity to learn all the facts ; for it had representatives on the board of directors of the Hartman Company, the apparent owner of the check. According to the custom of business men, and especially of banks, the first inquiry would have called for a resolution of the board of directors authorizing Umsted to use the check to pay his own debts. The minute book of the board was open to examination by the representatives of the trust company, but, when examined, it would have shown no such authority; for the resolution _ relied upon, broad as it was, simply authorized Umsted as president to take charge of the property and business of the company and to sign checks, notes, and other obligations in its behalf. This meant that he could do these acts only in transacting the business of the company; for no other construction would lie reasonable. There was no suggestion of permission to give away the assets of the company or to use them to pay the personal debts of its officers. Such dangerous power, which might involve the ruin of the company, cannot be conferred unless the intention is expressed with the utmost clearness.”

In the case under consideration the president of the coloration, with representatives of two other corporations, sought a loan of $10,000, and among other paper produced two notes given by the president for his corporation to still another corporation, and gave them as collateral security to apxiellee. The two notes were executed on May 26, 1913, and on the same day were assigned to the Rio Grande Construction Company as collateral security, and in five or six days they are placed in the hands of appellee as collateral for a debt of two corporations and the president of appellant company. The transaction was sufficient to put any reasonable man on notice that some transaction was going on, not in the interest of appellant, but to its detriment and contrary to its wishes. There was enough evidence of a conspiracy to arouse tlie suspicion of any business man or concern.

Tbe evidence showed unmistakably that tbe notes were given without consideration and fraudulently put in circulation, and it then devolved upon appellee to prove that it was a bona fide bolder of tbe notes for value. Tbe presumption arising from the mere fact of possession of the notes was overcome by tbe suspicious circumstances in-evidence, and there should have been proof by appellee of its bona fides. National Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676.

There are no elements of estoppel in this case. Appellant’s agent, without authority, executed two notes to a corporation to whom appellant owed nothing, and for which notes it received nothing, and the notes are then transferred to another corporation, and in a very short time are produced to secure a debt partly owed by the president. Is it not clear that the execution of the two notes, their transfer, and their placing as collateral security were parts of one and the same transaction? What did appellant do to estop it from refusing to pay notes fraudulently executed in its name? It has not sinned, but has been sinned against. The recitals in the two notes were not its recitals, but the recitals of one who had no authority to make them, and they were absolutely false. The facts form no basis for estoppel against appellant.

The least effort upon the part of appellee would have disclosed the fraud, for fraud it was to give notes in the name of a corporation for an imaginary debt, and then pledge them to secure a debt in which appellant had no interest whatever, but no effort was made. The circumstances were sufficient to put any one upon inquiry who had any interest in discovering the truth about the execution of the notes.

The judgment is reversed, and judgment here rendered that appellee take nothing by its suit, and that it pay all costs in this behalf expended.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    KRUEGEL v. RAWLINS et al.
    (No. 5910.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1916.
    Rehearing Denied Feb. 12, 1916.)
    Appeal and Error &wkey;>833 — Motion to Vacate Judgment in Natuke oe Rehearing— Time For.
    A motion, to vacate the opinion and judgment of a Court of Civil Appeals in a ease of which it had jurisdiction, made in such court nine years after such judgment was rendered, must be overruled, since all courts lose jurisdiction of final judgments rendered by them- after adjournment of the term, except for the correction of clerical errors, mistakes, or defects of form, or some matters necessary to carry out the jurisdiction of the court, or to declare a judgment void rendered in a ease not legally before the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3214, 3229-3240, 3244r-3246; Dec. Dig. <&wkey;833.]
    Appeal from District Court, Dallas County.
    Original motion in the nature of an application for rehearing, to set aside an opinion and judgment of the Court of Civil Appeals.
    Motion overruled.
    For former opinion, see 121 S. W. 216.
    See, also, 103 Tex. 86, 124 S. W. 419; 148 S. W. 343.
    Herman Kruegel, of Dallas, in pro. per.
   RAINEY, C. J.

This is a motion filed by Herman Kruegel to vacate, set aside, cancel, and hold for naught the opinion, decision, and judgment affirming the judgment of the Forty-Fourth district court of Dallas county, Tex., in case No. 507, styled Herman Kruegel v. A. B. Rawlins et al., reported in 121 S. W. 216.

The grounds relied upon for the granting of such relief are numerous, all of which have been duly considered, but we are met at the threshold with the proposition that we have no jurisdiction to grant the relief sought. The action taken by this court in disposing of said case was had on June 2, 1909, and a rehearing denied July 2, 1909. An apxilication for a writ of error was made to the Supreme Court of this state, which was denied by that court January 12, 1910. 103 Tex. 86, 124 S. W. 419. Thus, it will be seen that about nine years elapsed since the affirmance of the judgment by this court. It is well settled in this state that all courts lose jurisdiction of final judgments rendered by them after the adjournment of the term at which rendered—

“except for the correction of clerical errors,, mistakes, or defects of form, or some matter necessary to carry out the jurisdiction of the court, or to declare a judgment void rendered in a case not legally before the court.” Chambers v. Hodges, 3 Tex. 517; Burke v. Matthews, 37 Tex. 73.

The case was properly before this court on appeal. The errors complained of were properly urged, this court had jurisdiction to dispose of the case on appeal, and the motion now before us is in effect to obtain a rehearing of the case. The time having elapsed for a reopening of the case, whether the decision is right or wrong, we have no power, at this late day, to set it aside, as it is not void.

The motion is overruled.
      <g£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W.-45


author: HALL, J.

text:
    FARMERS’ & MERCHANTS’ NAT. BANK OF ABILENE v. IVEY et ux.
    (No. 888.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 12, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Disoovebt <&wkey;3 — Equitable Discovery-Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3679-8680, giving a party the right to examine the opposite parties as witnesses to secure information for maintaining an action or defense, superseded the bill of discovery as known to equity practice.
    [Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 3, 4; Dec. Dig. &wkey;>3.]
    2. Discovery i@=o70 — Oral Interrogatories —Taking as Confessed — Statutes.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3680, allows a party to take the deposition of an adverse party, section 3682 makes it unnecessary to give notice of the filing of interrogatories, and removes any objection on account of their leading character, article 3683 provides that the answers of the party to interrogatories shall be taken and returned as other depositions, and article 3663 et seq. provide for taking testimony of witnesses by oral examination and answers. In a suit to remove a cloud from title to land the defendant filed notice of application for a commission to take the deposition of plaintiffs by oral examination, and plaintiffs appeared, with counsel, but refused to answer any of the interrogatories propounded. Held that, in the absence of statutory authority, the interrogatories could not be taken as confessed because of the failure to answer.
    [Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 84-86; Dec. Dig. <&wkey;70.]
    3. Husband and Wife <&wkey;119 — Wife’s Separate Property — Community Property.
    In a suit to remove a cloud from title to town lots, alleging such lots to be the separate property of the wife, it appeared that the tract had been purchased with proceeds of the wife’s separate property and of community property, and conveyed to the husband and thereafter conveyed by him to his wife; that they borrowed money on the property secured by a deed of trust, part of the proceeds of which was applied to the payment of community debts; that thereafter the husband and wife conveyed certain parts to each of their children, who subsequently sold the land conveyed to them and delivered to the wife the greater part of the proceeds, with which she paid off the loan. Held, that the transactions vested the title of the remaining part of the land in the wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 172-174; Dec. Dig. <&wkey;> 119.]
    4. Appeal and Error <&wkey;1064 — Harmless Error — Instructions.
    In such suit, an instruction, assuming that the land in controversy contained 205 acres, when in fact it contained but 145 acres, in view of the uncontradicted evidence fixing the rights of the parties, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. @=^1064.]
    5. Homestead <&wkey;>181 — Abandonment—Evidence.
    In the absence of any evidence from a husband as to their, purpose in leaving and their intention to again .occupy a homestead, the wife’s statement as to such purpose and intent was competent.
    [Ed. Note. — For other eases, see Homestead, Cent. Dig. §§ 351-353; Dee. Dig. &wkey;181.]
    Error from District Court, Hale County; L. S. Kinder, Judge.
    Suit by R. F. Ivey and wife against the Farmers’ & Merchants’ National Bank of Abilene. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Sayles, Sayles & Sayles, of Abilene, and Graham & Graham, of riainview, for plaintiff in error. Y. W. Holmes and W. B. Lewis, both of Plainview, for defendants in error.

      Application for writ of error pending in Supreme Court.

   HALL, J.

Defendants in error filed this suit to remove cloud from their title to certain town lots in Plainview, Tex., and certain lands in Lamb county, Tex. They allege that all such real estate was the separate property of Mrs. Ivey, and that certain of the lots constituted their homestead; that said real estate had been levied upon and sold by the sheriffs of Hale and Lamb counties, respectively, under executions issued on a judgment in favor of plaintiff in error against R. F. Ivey and A. B. Britton. Plaintiff in error answered, denying that any of the real estate in controversy was Mrs. Ivey’s separate property, and alleging that said town lots and lands were community property, and that title had passed to plaintiff in error by the levies, sales, an,d sheriff’s deeds. It also denied that lots 5 and 6 in the College Hill addition to Plainview constituted the homestead of defendants in error, and that defendants in error were, prior to, at the time of, and since, the levy of the execution upon said lots, residing on the Highland addition lots in Plainview, also involved in this suit. The bank also attacked a conveyance made by R. F. Ivey to his wife on October 19, 1911, of the Lamb county land, as being fraudulent and void; that it was executed when R. F. Ivey was insolvent, and with the intent to hinder, delay, and defraud creditors. The suit was tried before a jury, who found upon every issue in favor of defendants in error, and judgment was entered accordingly.

Soon after the institution of the suit, plain; tiff in error filed with the clerk of the trial court a notice directed to defendants in error and their attorneys, that it would apply for a commission to take the deposition of defendants in error on June 3, 1914—

“by oral examination and answer under oath to such questions as may be propounded to them by the respective parties.”

A copy of this notice was served on the attorneys of defendants in error May 23, 1914. In response to the commission and notice given by the notary public defendants in error, with their attorneys, appeared before the notary on June 5, 1914, but refused to answer any of the interrogatories propounded to them by the attorney representing the bank. The interrogatories, if taken as confessed, would require a judgment to be entered in favor of the plaintiff in error.

The first assignment of error is predicated upon the action of the court in overruling tlie defendant’s motion to liave all of the oral interrogatories propounded to defendants in error taken as confessed and judgment entered accordingly. There is no provision in title 53, c. 3, for taking the deposition of a party to a suit upon verbal interrogatories. Interrogatories can be taken as confessed only when the proceeding is strictly within the provisions of the statute. The bill of discovery, as known to the equity practice, is superseded in this state by the provisions of chapter 3, tit. 53, Vernon’s Sayles’ Civil Statutes. Hamner v. Garrett, 133 S. W. 1058, 1061; Cargill v. Kountze Bros., 86 Tex. 386, 22 S. W. 1015, 25 S. W. 13, 24 L. R. A. 183, 40 Am. St. Rep. 853; Smith v. Olsen, 92 Tex. 181, 46 S. W. 631. The reasonable inference to be drawn from the language of articles 3680, 3682, 3683, Vernon’s Sayles’ Civil Statutes, is that written interrogatories must be filed as a prerequisite to taking the depositions of a party to the suit. Article 3663 et seq., relating to the taking of depositions of a witness in a case, upon oral interrogatories, do not, by their terms, provide for taking the deposition of parties in such manner. The whole matter of taking depositions of parties and witnesses is controlled by the statute. No such practice obtains under the common law; and, in the absence of statutory authority the taking of the party’s deposition as confessed, because of a failure to answer oral interrogatories, cannot be done in this state.

The second assignment is that the court erred in overruling defendant’s first objection to the court’s charge to the jury, in that, submitting the first issue to the jury, the court assumed as a fact that the land in controversy contained 205 acres, when in fact the tract of land contained only 145 acres. According to the contention of appellees their home in Abilene was Mrs. Ivey’s separate property, and was valued at $4,000. This amount was invested in the land in' question. The community had invested therein money from their Tuscola homestead in the sum of $1,000, and one-third of their equity in three other sections of land, amounting to $666.66; the total consideration for the section of land in question being $5,666.-66. According to appellant’s theory, 70.6 per cent, of this tract of land belonged to the separate estate of Mrs. Ivey, and the remainder, or 29.4 per cent, was community property and subject to appellant’s debts. It seems to be conceded that instead of the tract of land in question consisting of 205 acres, it contained only 145 acres, which, if apportioned as above stated, would give to Mrs. Ivey a fraction over 102 acres, instead of 145. This error of the court was duly excepted to, and is properly presented in the brief of appellants, but under the uncontradicted evidence, it does not constitute reversible error. It appears from the record that the entire section, of which the 145 acres in controversy is a part, was conveyed first to R. F. Ivey in April, 1910, and thereafter in 1911 conveyed by Ivey to his wife. Thereafter, in 1911 they borrowed $2,500 and secured the loan by a deed of trust on the entire section. Of this $2,500, $1,300 was applied to the payment of community debts in the form of notes against certain lands purchased by the community in Cochran county, $600 was used in patenting the section of land upon which the loan was negotiated, and the remainder of $2,500 was applied to the payment of community debts. After the negotiation of the $2,500 loan, ap-pellees conveyed to each of their five children 100 acres of the section, taking from each of them a note for $500. Subsequently their children sold the land conveyed to them, delivering to Mrs. Ivey a greater part, if not all, of the proceeds of the sale. With this money she paid oft the loan. The result of these transactions is to vest the title of the remaining portion of the land in Mrs. Ivey. The community estate having been fully reimbursed, through the loan of $2,500 and its repayment, for the amount of the community, fund originally invested in the section had no further interest in if. The whole of the 145 acres, remaining after the five tracts of 100 acres each had been conveyed to the children of appellees, was, we think, the separate property of Mrs. Ivey. If we are correct in this, no part of it could be subjected to the payment of community debts, and the error of the court in assuming that 205 acres, instead of 145, remains is harmless.

Under several assignments the sufficiency of the evidence to support the findings of the jury is assailed. A review of the statement of facts convinces us that the evidence required the court to submit the question of Ivey’s alleged fraudulent intent in conveying the land to his wife to the jury. The detailed statement made by him, on direct and cross-examination, showing his assets and liabilities, is sufficient to raise an issue as to his solvency in January, 1911, when he executed the deed to his wife. In the absence of any evidence from the husband as to their purpose in leaving and their intention to again occupy the homestead, Mrs. Ivey’s statements as to such purpose and intent are competent evidence to be considered. They had previously bruit a bam on the lots, in which they had resided for a time, and the statement of facts shows that since moving from the barn they nevertheless used the premises for purposes consistent with their homestead claim.

Appellant’s brief contains a great many other assignments, in which the questions and issues heretofore discussed are presented in different form, and which we believe it is not necessary to consider in detail.

We find no reversible error in the judgment, and it is affirmed.
      (gs^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    NORTH TEXAS GAS CO. v. MEADOR.
    (No. 7432.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 8. 1916.
    Rehearing Denied Feb. 12, 1916.)
    1. MUIilCIPAL CORPORATIONS <&wkey;821 — INJURY to Pedestrian — Ditcii in Street — Negligence-Questions eor Jury.
    Under the evidence in an action for injury to a pedestrian in attempting to cross a ditch in a street dug by a gas company, held, that whether she acted and relied on invitation of the company’s foreman in such attempt, and whether he, in so inviting her, was guilty of negligence proximately contributing to her injury, and whether she exercised ordinary care for her safety, were questions for the jury.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. <©=3821.]
    2. Trial &wkey;>252 — Instructions—Applicability to Evidence.
    There being no evidence that plaintiff’s injury was caused by a weakened condition of her arm, though it had previously been broken, a requested instruction predicated on a finding of such fact was properly refused.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    3. Trial <&wkey;251 — Instructions—Applicability to Pleading-r Contributory Negligence.
    Defendant, having specifically pleaded certain acts as contributory negligence, was not entitled to have other acts submitted to the jury as a basis for finding contributory negligence.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.j
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Jennie Meador against the North Texas Gas Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John T. Suggs, of Denison, and Jones & Hassell, of Sherman, for appellant. Wolfe & Wood, of Sherman, for appellee.
   TALBOT, J.

This suit was brought by the appellee against appellant to recover damages for personal injuries. Appellee alleged, in substance, that appellant had dug and excavated in a street between her home and that part of the town of Whitesboro to which her business called her a ditch about 16 or 18 inches wide and 3 to 3% feet deep, in which to lay its mains for conveying gas; that it was necessary for her to cross the ditch, or to go a considerable distance around, and appellant’s employé and superintendent, engaged in the work and having charge of the ditch, invited and directed her to cross said ditch, and thereby assured her that it was safe for her to undertake to pass over the same; that, had it not been for such invitation and direction on the part of appellant’s said employe, she would have gone a long way out of her way to have reached the point to which she was going by passing around the end thereof. Appellee further alleged that she was an old and feeble woman, with poor judgment, and unable to comprehend and understand the danger attending her attempt to cross the ditch in compliance with the invitation and direction of said employs, and believing and relying upon the superior judgment, knowledge, and understanding of said employs, believed that it was safe for her to attempt to do as she was directed. She further alleged that the ditch was dug in such manner as to leave about its edges and at the surface loose dirt, which would cave and slough off when weight or pressure was applied, which was unknown to her, but was known to defendant’s employs; that in compliance with the invitation and direction of said employs she did attempt to cross the ditch, when she fell into the same and was injured. The specific acts of negligence alleged and relied upon are:

“(a) In inviting and directing plaintiff, an old, feeble, and infirm woman, with poor judgment and discretion, to attempt to pass over said ditch at said time and place; (b) in inviting and directing plaintiff to cross said ditch at said point, where the edges of the bank and the ground were loose, so that, when plaintiff’s weight was placed thereon, the same was caused to break off and permit her to fall therein; (c) that said defendant was guilty of negligen.ee in inviting and directing plaintiff to cross said ditch at said place, without ¿lowing that the same was secure and safe for her to attempt to go over the same, or without making' the same safe for ordinary use.”

Appellant answered by denying that plaintiff received any injuries whatever as a result of its negligence. It denied that it had excavated a ditch of the depth alleged by ap-pellee, and denied that any of its agents invited appellee to cross said ditch. It denied that appellee was feeble and of poor judgment, and unable to comprehend and understand the danger attending her to cross said ditch, and denied that loose dirt had been left on the edges thereof. It alleged that the condition of the ditch and its surroundings were open and obvious, and if there was any danger in crossing the same such danger was as open and obvious to appellee as to appellant, and that appellee assumed the risk incident to crossing the ditch in the manner that she did, and that she was guilty of negligence contributing to her injuries in attempting to cross the ditch in the manner she did attempt to cross the same, as alleged in her petition. It further alleged that there was an open and unobstructed way around the ditch which plaintiff could have traveled without the loss of time, and that she voluntarily selected the route which she was traveling, and in doing so was guilty of negligence which proximately contributed to her injuries, and that in taking the route which she did take she assumed the risk of injury therefrom. Further answering, the appellant charged that the appellee was further guilty of contributory negligence in this: That' her said arm had been broken and injured before, and was weak and peculiarly susceptible to injury, which fact was not apparent to and was unknown to defendant and its servants, but which was well known to plaintiff; that plaintiff, in attempting to cross said ditch, negligently threw the weight of her body upon said arm, and that her injury resulted, not from any fall, but from the weight of her body upon said weakened and injured arm; and that in undertaking to cross said ditch, and in putting the weight of her body upon said arm in said manner, she was guilty of negligence which proximately contributed to cause her injury, and assumed the risk incident to the manner adopted by her in crossing said ditch.

A trial, November 13, 1914, resulted in a verdict and judgment in favor of appellee for the sum of $700, and appellant appealed.

The assignments of error from the first to the fourth, inclusive, complain respectively of the refusal of the trial court to give to the jury certain special charges requested by appellant, directing the jury to return a verdict in its favor. It is asserted that the court erred in refusing these charges because: (1) The evidence failed to show that appellant was guilty of any act of negligence, either in the construction of the ditch in question, or in the conduct of its foreman in charge of the digging of said ditch at the time appellee was injured; (2) because the undisputed evidence showed that appellee was guilty of contributory negligence in the manner in which she attempted to cross the ditch, in that she wholly failed to look and observe said ditch, and the place where she was stepping and about to step, and to take any precaution or exercise any care whatever for her own safety;. (3) because the undisputed evidence showed that the ditch was as open and obvious to appellee as it was to appellant and its foreman, and she assumed the risk of undertaking to cross it at the time and in the manner she did; and (4) because the evidence wholly failed to show that appellee at the time she undertook to cross the' ditch in question relied upon the invitation of appellant’s foreman and accepted such invitation as an assurance of safety.

We do not agree that the evidence was of the character here claimed, and hence not prepared to hold that the trial court would have been warranted by it in instructing a verdict for appellant. The appellee was an old lady 72 years of age. She testified :

“How I came to attempt to cross the ditch: The boss said to me, ‘You can cross right here,’ he says, ‘it ain’t very wide across.’ I just walked up to it, and I said, ‘Please take my hand,’ and he took my hand, and the dirt gave way under my foot; and I think I slipped into the ditch.”

On cross-examination she said:

“When I went to cross I didn’t see any place to cross, and the boss says, ‘You can cross right here.’ I didn’t look to see how wide it was. I didn’t look to see how deep it was. I didn’t look to see where I was going to step. I looked to see where I w,as putting my foot before I went to step. I looked to see whether my foot was on solid ground before I went to step. It was on solid ground.”

The ditch appellee was attempting to cross when hurt was 12 inches wide, and the testimony varies as to its depth. Appellant’s witness J. H. Wells testified that he measured it with a rule, and that it was 12 inches wide and 12 inches deep; while appellee’s witness J. E. Davis testified that he would be safe in saying the ditch was 2% feet deep. The testimony was also conflicting as to whether the appellant’s foreman invited appellee to cross over the ditch and as to whether she actually fell in the ditch. That appellee's arm was broken, and her shoulder in some manner injured in attempting to cross the ditch seems not to be denied. Pannill, appellant’s foreman, said in substance, that he caught hold of appellee’s arm to assist her in crossing the ditch, and that as she “stepped astraddle of the ditch” he “ ‘heard something pop,’ and appellee then cried out, ‘Oh, my arm is broken.’ ”

Considering the evidence as a whole, we think it must be held that whether appellee acted and relied upon the invitation of appellant’s foreman, Pannill, in attempting to cross the ditch at the place she did, and whether appellant’s said foreman was guilty of negligence in inviting her to cross at such place under the circumstances, which proximately contributed to her injury, and whether the appellee exercised ordinary care, in view of the circumstances and conditions surrounding her, for her own safety, were issuable facts for the determination of the jury. There was evidence to the effect that the soil was sandy, that loose dirt had been piled along the ditch, that it had been raining, and the edges of the ditch had in many places crumbled and “sloughed off.” These were conditions known to appellant’s foreman and not known to appellee. Appellee testified that she could not state how deep the ditch was, that she did not look to see how wide it was, nor where she was going to step, but that she did look to see where she was putting her foot before she attempted to step over the ditch, and that as she was in the act of stepping across the dirt gave way under her foot and she slipped into the ditch. Thus it appears, it seems to us, that the failure of appellee to acquaint herself with the width and depth of the ditch, and to observe just where she was going to place her toot on the opposite side thereof, had practically nothing to do with the accident and her injuries. The conclusion that the condition of the soil at and about the ditch where appel-lee was invited by appellant’s foreman to cross over it, his invitation to appellee to cross at such place without exercising ordinary care to make the place reasonably safe for her to cross, or otherwise to exercise such care to prevent injury to her in her attempt to cross over the ditch, were the proximate cause or causes of her injury, is, to say the least, very reasonable; and at the request of appellant the court charged the jury that:

“Even though you believe from the evidence that defendant’s foreman, Pannill, invited the plaintiff to cross said ditch on the occasion in question, and if you further believe from the evidence that such invitation was negligence, yet, unless you believe from the evidence that plaintiff relied on such invitation as to her being able to make said crossing in safety to herself, and would not have attempted to cross said ditch but for such invitation, you will find for defendant.”

We do not think the issue of assumed risk was in the case. That the ditch was open to observation is clear, but it cannot reasonably be said, as a matter of law arising upon the facts, that the danger of attempting to cross over it, as appellee did, was obvious. That she did not assume the risk of crossing is evidenced by the fact that she declined to make the attempt until appellant’s foreman invited her to do so. We conclude the peremptory instructions were properly refused.

The fifth assignment of error complains of the court’s refusal to give a special charge requested by appellant to the effect that, if appellee attempted to cross the ditch by the assistance of the foreman, Pannill, and Pannill acted as an ordinarily prudent person would have acted under the same circumstances, and that the injury, if any, resulting to the appellee, was caused by a weakened condition of her arm or shoulder, to return a verdict for appellant. We think there was no error in refusing this charge, for the reason that the evidence failed to raise the issue therein sought to be submitted. There was evidence that appellee’s arm had been previously broken, but none that would have warranted a finding that because thereof appellee’s arm was weakened and more liable to break on the occasion in question. Dr. Oarey, the physician who attended appellee, testified that her arm having been broken prior to the accident out of which this suit grows “would not have rendered it more easily broken at another point, nor would it have rendered it more easily broken if it had been broken on the occasion in question at the same site as the previous fracture, provided union had been good”; that “if you get union the arm is just as strong after the fracture as it was previously.” We have been unable to discover any testimony in the record tending to show that a good union had not been obtained after appellee’s arm was broken, prior to her attempt to cross the ditch dug by appellant, and that the former fracture rendered her arm on the occasion in question more likely to break.

The appellant requested the court to charge the jury as follows:

“If you believe from the evidence that a person of ordinary prudence, situated and circumstanced as plaintiff was on the occasion when she undertook to cross said ditch, would have looked and observed said ditch and the place where she was undertaking to step; and if you further believe from the evidence that plaintiff, on said occasion, failed to look and observe said ditch and the place where she was undertaking. to step ; and if you further believe from the evidence that such failure, if any, upon the part of plaintiff, proximately contributed to cause the injury, if any, she sustained on said occasion, you wiíl find for the defendant.”

This charge was refused, and its refusal complained of in appellant’s seventh assignment of error. In its general charge the court correctly defined contributory negligence, and told the jury that if they believed the appellee was guilty of contributory negligence in attempting to cross the ditch, or it they believed her injury was the result of her failure to exercise ordinary care for her own safety to find ini favor of the appellant.

The contention of appellant is that, in view of the general charge on the question of contributory negligence, the appellant was entitled to have the facts enumerated in the special charge grouped as they were, and the judgment of the jury upon the evidence relative to the issue raised by such facts invoked. It is a well-established rule that the defendant in an action for personal injuries has the right ordinarily to prepare and demand the giving of a charge requiring the jury to find whether the evidence established the existence of any specified group of facts which it is claimed constitutes contributory negligence, with instruction that if it did to find for the defendant. But we do not find that the pleadings and evidence in the case at bar called for the giving of the special charge under consideration. As we have said in a former part of this opinion, the failure of the appellee to observe the width and depth of the ditch and the place where she was undertaking to step had practically nothing to do with the accident causing her injuries, and could not be regarded as a proximate cause of said injuries; besides, appellant in pleading the defense of contributory negligence did not plead that the appellee was guilty of negligence contributing to her injury, in that she failed “to look and observe the ditch and the place where she was undertaking to step.” The specific plea of contributory negligence was that there was an open and unobstructed way around said ditch, which was open and obvious to appellee, and which she could have traveled without loss of time or inconvenience, and in safety, and that she voluntarily chose not to follow such safe and convenient way; that her arm had been previously broken and weakened, and that in attempting to cross the ditch she negligently threw the weight of her body upon said arm; and that her injury resulted, not from any fall, but from the weight of her body upon said arm. Having specifically. pleaded the foregoing acts constituting contributory negligence, appellant was not entitled to have the acts specified in the special charge refused submitted to the jury as a further basis for a finding of contributory negligence on appellee’s part, and there was no error in refusing the special charge. Railway Co. v. Hagood, 21 Tex. Civ. App. 442, 52 S. W. 574; Railway Co. v. Locke, 67 S. W. 1082; Railway Co. v. Foster, 87 S. W. 879; Railway Co. v. Alberti, 47 Tex. Civ. App. 32, 103 S. W. 699; Railway Co. v. Stillwell, 46 Tex. Civ. App. 647, 104 S. W. 1071.

The evidence is sufficient to sustain the verdict, the issues were fairly submitted, and no reversible error being pointed out by-appellant’s assignments, the judgment of the court below will be affirmed.

Affirmed.
      <S=x>Eor other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: FLY, C. J.

text:
    WARBURTON v. WILKINSON.
    (No. 5584.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1916.)
    1. Principal and Agent <&wkey;145 — Liability ow Undisclosed Principal — Ratification.
    Where the brother of the owner of cattle, having charge of them, rented lands for grazing purposes, and the owner reaped all the benefits of the contract with knowledge that his cattle were pastured on another’s land, and ratified the contract by refunding the brother the amount he paid thereon, such owner was liable for the rent of the grazing lands.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. <&wkey;145.]
    2. Evidence <&wkey;207 — Admissions.
    In an action for the rent of grazing lands, the admissions of defendant as to the pasturage of his cattle thereon, made in another suit between him and another than the adverse party in the present suit, were admissible in evidence, since the voluntary admissions of a party, wherever and however made, can be used in any suit to which he is a party.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §$ 707-712; Dec. Dig. &wkey;207.]
    Appeal from Victoria County Court; J. P. Pool, Judge.
    Action by B. J. Wilkinson against A. I-I. Warburton. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. F. & C. C. Carsner and R. L. Daniel, all of Victoria, for appellant. T. R. Wood, and Fly & Ragsdale, all of Victoria, for appellee.
   FLY, C. J.

This suit -was instituted by ap-pellee to recover of appellant the sum of $650, the balance due on the rent of 2,000 acres of land for grazing purposes for the year beginning August 1, 1913, and ending July 31, 1914. Appellant answered that he had not made a contract to rent the premises, and that his brother, J. A. Warburton, who leased the premises, was not his agent and had no authority to rent the premises. A jury being waived, the court rendered judgment in favor of appellee for $650, with interest at 6 per cent, from January 1, 1915.

The facts show that J. A. Warburton was the undisclosed agent of appellant and contracted for the land and pastured the cattle of appellant thereon. Appellant obtained the full benefit of the pasturage of the cattle, and ratified the acts of his agent by paying a part of the money due on the lease. We adopt the findings of fact of the county judge which are fully supported by the statement of facts.

The evidence clearly shows that J. A. War-burton, a brother of appellant, who had charge of the cattle of the latter, made the rental contract, and that appellant reaped all the benefits of the contract, and ratified the acts of his agent by repaying to him the sum of $150 paid on the contract. J. A. War-burton was undoubtedly the undisclosed agent of appellant, and whether appellee knew this fact or not would not affect the liability of the undisclosed principal. The evidence shows that the cattle were the property of appellant, that he knew that they were pastured on the land of appellee, and that he paid all that was paid on the rental contract. He is undoubtedly liable for the rent.

It is the general rule that an undisclosed principal, when subsequently discovered, may be held liable on all simple nonnegotiable contracts made in his behalf by his duly authorized agent, although the contract was originally made with the agent in entire ignorance of the principal. This has been held in many cases. Me’chem on Agency, § 1731, and authorities cited. To the same effect are Heffron v. Pollard, 73 Tex. 96, 11 S. W. 165, 15 Am. St. Rep. 764, Sanger v. Warren. 91 Tex. 472, 44 S. W. 477, 66 Am. St. Rep. 913, and Marx v. Luling Association, 17 Tex. Civ. App. 408, 43 S. W. 596.

The admissions of appellant as to the pasturage of the cattle, made in another suit between him and another party, were admissible in evidence in this suit. The voluntary admissions made by a party to a suit, made anywhere and under any circumstances, can be used in any suit to which he is a party. No reason can be given why the voluntary admissions of a litigant cannot be used against him, no matter where nor under what circumstances they were made. Greenleaf on Ev. § 341; Jones on Ev. § 683; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900; Bilger v. Buchanan (Sup.) 6 S. W. 408. The voluntary admission of a party is an admission, no matter where and how made, and can be used against him. We overrule the third and fourth assignments of error.

The judgment is affirmed.
      <@x3jPor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    SEATON v. MAJORS.
    (No. 5589.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1916.)
    1. Pleading i&wkey;34^-PETiTi0N — Sufficiency.
    As against general demurrer, every intendment will be indulged in favor of the petitioner.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. &wkey;34J
    2. Judgment &wkey;>2G0 — Pleading to Sustain.
    A judgment cannot be upheld, where the petition did not state a cause of action against the parties, regardless of what the evidence showed.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. <5&wkey;250.]
    3. Com?ORAtions <&wkey;268 — Stockholders—Actions Against.
    A petition by plaintiff, who rendered services for a corporation, by which he sought recovery against the corporation and its stockholders, alleged that defendants were the principal stockholders, and as such received and had the benefit of the services rendered, and by reason thereof became liable to plaintiff for his services. The petition contained no averments showing the stockholders liable, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1198, for unpaid stock, or bringing the case within articles 1206, 1208, on the ground of insolvency and dissolution. Held that, as a shareholder always receives the benefit of contracts made by the corporation, the petition did not state a cause of action against the defendant shareholders, notwithstanding every intendment must be taken in its favor.
    [Ed. Note. — For oth.er cases, see Corporations, Cent. Dig. §§ 1129, 1131, 1133-1147, 2276; Dec. Dig. &wkey;?268.]
    Error from Nueces County Court; W. F. Timón, Judge.
    Action by W. E. Majors against the Nueces River Irrigation Company, a corporation, and others. There was a judgment for plaintiff, and the defendant Mildred Seaton brings error.
    Reversed and remanded.
    B. W. Teagarden, of San Antonio, and Edward B. Ward, of Corpus Christi, for plaintiff in error. G. R. Scott, Boone & Pope, Claude Lawrence, and Gowan Jones, all of Corpus Christi, for defendant in error.
   CARL, J.

W. E. Majors sued the Nueces River Irrigation Company, a corporation, Mildred Seaton, a feme sole, and George Gee, and alleged that he was employed by the Irrigation Company about December 1, 1913, at $40 per month, and entered into the company’s service December 15, 1913, and worked for it under the terms of the oral contract of employment until the 1st of November, 1914, and that all he had been paid was $6, which was duly credited. The corporation, George Gee, and plaintiff in error were duly served with citation, but made default, and a joint and several judgment was rendered against all the defendants.

The only allegation whatsoever with reference to plaintiff in error and George Gee is contained in the eighth paragraph of the petition, and is as follows:

“That said defendants Mildred Seaton and George Gee are the principal stockholders in said defendant corporation, and as such received the benefit of the services rendered by plaintiff to defendant corporation, and by reason .thereof they, and each of them, became liable to this plaintiff for his said services, and that by reason thereof plaintiff is entitled to and does look to these defendants, and each of them, for the full satisfaction of his said debt.”

The prayer was for judgment against all the defendants. There is no allegation that the corporation is insolvent. If we indulge every reasonable intendment in favor of this petition, which we must do in testing its sufficiency as against a general denjurrer, does it state a cause of action against the plaintiff in error? We do not think it does. All the allegations of the petition are as to a contract made with the corporation, and that the service was performed for that company. The only charge against Gee and plaintiff in error is that they were the principal stockholders in the corporation sued, and received the benefits of the service. There is absolutely no allegation which charges them, or either of them, with anything which would show liability on their part. It matters not what the evidence showed. The petition must state a cause of action as to those against whom a judgment is sought. Busch v. Broun (Civ. App.) 152 S. W. 685; Western Union Tel. Co. v. Stracner (Civ. App.) 152 S. W. 845. It was not alleged that the corporation had been dissolved, and that its assets were in the hands of plaintiff in error and Gee, as mentioned in article 1208 of Vernon’s Sayles’ Civil Statutes; nor is it alleged that they were directors or officers at the time of the dissolution, if it was ever dissolved, as provided in article 1206, and thus trustees for the creditors. Neither is it alleged that plaintiff in error owed for stock in the corporation, so as to make her liable under article 1198.

In fact, this is just a straight suit declaring on a contract made with the corporation, and no fact whatever is alleged which would make the stockholders liable for the corporation’s contract. Every stockholder is supposed to receive the benefits of contracts made by the corporation, but that fact in no wise makes such stockholders liable for the debts of that corporation; and the allegation that Majors looked to them to pay him does not show that the stockholders ever in any way promised to pay him, or were under any legal obligation to him whatsoever.

The petition did not state a cause of action against plaintiff in error, and the judgment is reversed, and the cause remanded.
      <@^>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    BENNETT et al. v. RIO GRANDE CANAL CO.
    (No. 5569.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. Appeal and Eebob <©=5173 — Matters Reviewable — Request for Submission oe Issue to Jury.
    Where defendants failed to plead payment of water rent sued for, or to request submission of that issue to the jury, failure to submit it is not ground for reversal, since Rev. St. 1911, art. 1985, provides that failure to submit an issue not requested shall not be deemed ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§'1079-1089; 1091-1093, 109.5-1098, 1101-1120; Dee. Dig. <@=>173.]
    2. Appeal and Ebeob <@=>263 — Matters Reviewable — Necessity op Bill op Exceptions.
    Under Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 2061), providing that the ruling of the courts in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to, where no bill of exceptions is reserved to a charge attacked on appeal, the charge cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dee. Dig. <©=>263.]
    3. Appeal and Eebob <©=>699 — Matters Reviewable — Reservation op Exceptions— Time.
    Where exceptions were reserved to an order overruling objections to a charge, but the order failed to show that the objections were made before the charge was given, the propriety of the charge could not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2864; Dec. Dig. <©5=696.)
    4. Waters and Water Courses <©=>254 — Contract por Irrigation Service — Sale op Land.
    Where defendant contracted to pay a sum certain for irrigation water rights, he could not escape liability for failure to pay by selling his land, or a part thereof, so that, in an action to recover the sum due, his contract with the buyer of his land was inadmissible.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <©=> 254.)
    5. Waters and Water Courses <©=>254 — Contract por Water Supply — Legality-Limitation op Liability por Negligence.
    AVhere a contract to supply water for irrigating purposes provided for the repair of the system, so as to place it in an efficient condition, and that during a “reasonable period of repair and construction” the company should not be liable for damages, it was not error, in an action to recover the contract price for water furnished, to admit testimony that delay in furnishing water was caused by extension of the canal system; the condition being valid, and not an attempt of the company to contract against its own negligence.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <©=> 254.]
    6. Appeal and Error <©=>742 — Assignments ■op Error — Statements Accompanying.
    Assignments of error to the failure to give certain special issues, which are not followed by statements showing what the issues were, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <©=>742.]
    Appeal from Cameron County Court; V. L. Yates, Judge.
    Action by the Rio Grande Canal Company against W. H. Bennett and another, in which defendant M. M. Biggs filed a cross-action. Judgment for plaintiff against defendant Bennett, and against plaintiff as to defendant Biggs, and against defendant Biggs on his cross-action, and defendants appeal.
    Affirmed.
    Kinder & Williams, Ira Webster, and R. A. Kitchen, all of Brownsville, for appellants. Oscar C. Dancy and Graham, Jones, West & George, all of Brownsville, for appellee.
   FLY, C. J.

This is a suit instituted by appellee against appellants, W. H. Bennett and M. M. Biggs, to recover the sum of $408, alleged to be due it for water furnished during the year 1913 to irrigate 136 acres of land, under the terms of a pertain written contract made by and between Frank Willi-ford and W. H. Bennett, which contract had been assigned to appellee, whereby said Bennett bound himself to pay the sum of $3 an acre for the use of said water. It was further alleged that Bennett was still the owner of 136 acres of land out of the tract of ICO acres described in the contract, and that Biggs, during 1913, cultivated a part of the 136 acres under some lease or contract, the terms of which were not known to ap-pellee. It was alleged that water was furnished according to the terms of contract and that appellants had not paid for it. Biggs set up a cross-action against appellee for $901.25. The cause was submitted to a jury on special issues, and on the answers judgment was rendered against Bennett for $391.-50, against appellee as to Biggs, and against the latter as to his cross-action.

There was no plea of payment by appellants, and the uncontroverted evidence showing that 120 acres of land had been irrigated by appellee, and that Bennett had agreed to pay $3 an acre for the water during the year 1913, the court had the power and authority, without a finding by the jury, to render judgment for the amount' of the damages. This is statutory. Article 1985, Rev. Stats. Appellants requested the submission of no issue as to payment of the water rent. The first assignment of error is overruled.

The second and third assignments of error will not be considered, because no hills of exceptions were reserved to the charge of which complaint is made. Article 2061, Rev. St. 1911, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061). The order of the court overruling objections to the charge, to which exceptions were reserved by appellants, does not show that the objections were made before the charge was read to the jury. Insurance Association v. Rhoderick (Civ. App.) 164 S. W. 1067; Roberts v. Laney (Civ. App.) 165 S. W. 114; Railway v. Love (Civ. App.) 169 S. W. 922.

The contract between Bennett and Biggs had no pertinency to the issues in the case and was properly rejected by the court. Bennett could not, by a sale of the land or a part thereof, escape the penalty of an infraction of his contract with appellee. The rejection of the contract did not injure Biggs, for he testified that he did not go into possession of the land until the latter part of 1913, the year for which the water rent was due, and in April, 1913, he applied for water, not in his own name, but in that of Bennett.

The contract between appellee and Bennett provided for the repair of the irrigation system so as to place it in efficient condition, and that during a “reasonable period of repair and construction” the company should not be liable for damages. This was a valid condition, agreed to by the parties, and the court did not err in permitting J. B. Scott, a witness for appellee, to testify that delays in furnishing water were caused by extension of the canal system. We do not desire to draw any fine-spun distinctions between extensions, improvements, reconstructions, and repairs. The contract covered the work that delayed appellee, as testified by Scott. No negligence on the part of appellee appeared from the evidence, and appellants contracted with full knowledge that appellee had taken charge of a defunct concern, and that it would take much labor and expense to put the plant in a condition of efficiency. Appel-lee did not undertake to contract against its negligence, but against its inability under the circumstances to give perfect service. Bennett was fully notified of the condition of the plant before he signed the contract. As said by the Supreme Court in Railway v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410, in discussing the liability of a common carrier for delay of goods arising from freight congestion:

“We regard the rule denying to carriers the right to excuse themselves for delays resulting from such conditions as those supposed, when they have received the property knowing of the •existence of those conditions and giving no notice thereof to shippers, as defining a part of the duties imposed by law upon carriers, and not as expressing merely the results of agreements. That duty is to give notice to customers whenever the transportation cannot be performed, in the usual way, -which notice gives to the shipper the opportunity to choose between different courses open to him. When the carrier has done this, it has fulfilled its legal duty in this respect, and should not be held responsible for a delay which it cannot prevent, if the shipper still insists on delivering his property for shipment.”

Even in the absence of an express contract relieving appellee from damages arising from the condition of its plant, appellee could have shown that the condition of the plant and the necessity for repairs and reconstruction were known to appellants when the contract was made, and appellee would be relieved from liability. The contract served the purpose at least of bringing home to Bennett the condition of the plant and the probability of a failure to efficiently deliver water.

Bennett was liable to appellee for the water charges, and proof that he had sold part of the land to Biggs had no pertinency or force in the case, The sixth assignment of error is overruled.

The seventh and eighth assignments have been fully treated under other assignments, and they are overruled.

The ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments complain of the failure to give certain special issues; but they are not followed by statements showing what the issues were, and they will not be considered. Every pertinent issue, however, was submitted by the court, and appellants could not have been injured by a refusal to submit other issues, no matter what they were.

The charges complained of in the sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments cannot be inquired into, for the reason that no bill of exceptions was reserved by appellants to the giving of such charges.

The twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, and twenty-seventh assignments are mere reiterations of the fifth assignment of error, which has been fully discussed herein. They are overruled.

The twenty-eighth assignment of error is in effect the same as the first, and has been disposed of by the discussion thereunder.

We find no error in the judgment, and it is affirmed.
      <©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes