author: HODGES, J.

text:
    STRICKLAND et al. v. BAUGH et al.
    (No. 1293.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1914.
    Rehearing Denied May 28, 1914.)
    1. New Trial (§ 6) — Grounds.
    Rev St. 1911, art 2026, provides that where a judgment has been rendered on service by publication, and defendant has not appeared in person or by attorney of his own selection, a new trial may be granted on defendant’s application for good cause shown, supported by affidavit filed within two years after the rendition of the judgment. Eeld, that such article merely extended the time within which a motion for a new trial in such ciass of cases may be presented and acted on; the grounds which may constitute “good cause” being within the discretion of the trial judge and governed largely by the rules controlling similar motions filed during the term.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 9, 10, Dec. Dig. § 6.]
    2. Limitation op Actions (§ 102) — Reformation op Deed — Resulting Trust
    Where a husband, after the death of his wife, discovered that property purchased with community funds had been conveyed by mistake to her as a part of her separate estate, and sued to reform the deed the suit was not only for reformation but to enforce a resulting trust, and hence limitations did not begin to run until an adverse claim had been asserted to the land or the trust repudiated.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 494-505, Dec. Dig. § 102.]
    3. Reformation op Instruments (§ 44) — Trusts (§ 88) — Proceedings—Evidence-Resulting Trusts.
    A recital, in a dehd to certain land_ conveyed by the ve.ndor to complainant’s wife, that the consideration was derived from the wife’s separate funds, and the land was to be her separate prope”ty, did not preclude complainant after the wife.’s death, in a suit to enforce a resulting trust and reform the deed for mistake, from testifying that such recital was erroneous, and that the consideration was in fact paid from the community property of himself and wife.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent Dig. §§ 355, 156, Dec. Dig. § 44; Trusts, Cent. Dig. §§ 130-133; Dee. Dig. § 88.]
    4. New Trial (§ 125) — Application—Statements on Information and Belief.
    Complainant having recovered judgment in a suit to reform a deed conveying certain land to his wife, since deceased, as her separate property on the ground.that the conveyance to her as her separate estate was a mistake, and that the consideration for the deed had been community funds, defendants applied for a new trial, alleging that they had reason to believe, and therefore did believe, that the consideration was the separate property ot the wife, which they were informed and believed she had received from the estate of her father by inheritance. Eeld, r.hat such averment on information and belief only did not indicate with reasonable certainty that a different result would be had at another trial, and was therefore insufficient.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 254, 255, Dee. Dig. § 125.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by R. P. Baugh and others against Henry Strickland, Jr., and others. Judgment having been rendered for complainants, defendants appeal from an order denying their motion to set aside the judgment and-for a new trial.
    Affirmed.
    M. B. Harris, of Ft. Worth, and Burgess,Burgess, Chrestman & Brundidge, Geo. A. Titterington, and R. H. Vogel, all of Dallas,, for appellants. Charles F. Clint and Chilton & Chilton, all of Dallas, for appellees.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

On the 17th day of August, 1911, the appellee R. P. Baugh filed in the district court of the Forty-Fourth judicial district of Texas his original petition, alleging in substance the following facts: That the plaintiff and Evaline Baugh were husband and wife prior to the death of the latter in 1908. Evaline Baugh died intestate and without leaving any children or descendants; her only, heirs being the defendants, her sisters and brothers and their descendants. On the 30th day of April, 1904, R, P. Baugh purchased from W. L. Nichols a tract of 16 acres of land situated in Dallas county, not far from the city of Dallas. The consideration paid was the sum of $3.,333.35 cash and a promissory note for $266.65 due on or before four years after date. The money paid in cash was the community property of the plaintiff and his wife, and the note executed was their community debt. The deed made by Nichols conveyed the land to Mrs. Baugh, and recited that the consideration was paid and to be paid from her separate funds, and the property was to be held by her as her separate estate. These recitals were untrue. No part of the consideration was from the separate funds of Evaline Baugh, and it was not intended that the land should become her separate property, but same was to be the community property of plaintiff and his wife. The recitals referred to above were inserted in the deed of conveyance without the knowledge or consent of the plaintiff or his wife, and plaintiff did not know that the deed contained such recitals till after the death of his wife. By reason of the payment of the consideration out of the community funds of the plaintiff and his wife, a resulting trust arose in favor of the community estate, and a decree so declaring was asked for.

2. It is further alleged: That the land referred to was purchased from Col. O. P. Bowser, the agent for W. L. Nichols. The terms were agreed to, and the property was to be conveyed to the plaintiff; “the whole transaction being in ordinary form a community trade.” Plaintiff and his wife being without any children or their descendants, and knowing that plaintiff had relatives in other states, and not intending that his property should be affected, plaintiff suggested to Col. Bowser “that he wanted the deed fixed so that when he (plaintiff) died his wife would get tlie property.” That plaintiff had no experience and was unacquainted with the proper forms of conveyances, and was unacquainted with the effect of such documents and with the rules of descent in Texas; and he relied upon Ool. Bowser, whom he knew to be a business man and real estate agent of experience. That, when the deed of the date aforesaid was presented to him, he accepted same without question. That it was the intention of himself and his said wife that said property should be so conveyed that the plaintiff would acquire a present community interest in the property, but that, if he died before his wife, the property should go to her, and that, if she died first, it should go to him. When the deed was delivered to plaintiff, he paid over the cash to Bowser, and plaintiff and his wife executed the note for the deferred payments. He did not examine the deed, and did not know that it contained the recital that the consideration was paid and to be paid out of the separate funds of his wife, and that the property was to belong to her separate estate.

“That, while plaintiff did not read said deed, yet if he had read it he would not have known that the language used therein defeated the intention of himself and his said wife, and so vested the title that in case of the death of his said wife the fee-simple estate in said property, or a part thereof, would go to her brothers and sisters and their descendants, to the exclusion of plaintiff.”

3. He further alleges: That it was not his intention to make a gift to his wife, and he “believes and so charges that it was not the intention and understanding of his said wife that a gift of the community property was being made to her.” Nichols had no interest in the way in which the title vested, and was indifferent as to the form of the conveyance; and neither he nor Bowser intended or understood that the property was being conveyed, so that, at the death of the plaintiff’s wife, the title of one-half thereof would pass by descent to her relatives. That the deed, therefore, does not truly express the agreement of the parties, and there was a mutual misunderstanding of the legal effect of the language used.

4. It is also averred: That the relatives of the plaintiff’s wife live in a distant state, and many of them are well provided for financially. That plaintiff’s wife knew that plaintiff was old and poor and dependent, and, had she known that the deed was drawn as it was, she would have rejected and revoked it. It was not plaintiff’s intention, in directing the manner of making the conveyance, that the deed should be so framed as to deprive him of a present interest in the title, but it was his intention for the conveyance to be so drawn as to preserve his community interest during his lifetime, and that same would pass to his wife in the event of his death occurring before hers.

5. That the deed was in fact drawn by D. W. Bowser, a capable attorney and son of Ool. Bowser. That D. W. Bowser was told by his father that the deed was to be so drawn as to provide that, if plaintiff died before his wife, the property would be hers. That the attorney, not fully understanding that the community interest of the plaintiff was to be in this manner preserved, wrote the deed in its present form, vesting the title’ in plaintiff’s wife as a part of her separate estate. Plaintiff had no communication with D. W. Bowser, who actually wrote the conveyance, and relied upon Ool. Bowser to conduct that transaction. That, after the execution and delivery of the deed, plaintiff and his wife entered into possession of the land and occupied it as their homestead till the time of her death in 1908. That, since the death of his wife, plaintiff has continued to use and occupy the land as his home. This tract of land was all the property owned by the plaintiff and his wife at the time of its purchase and at the time of her death. That, relying upon the superior knowledge of Col. Bowser, plaintiff had never read nor examined the deed, and after the death of his wife took it for granted that the property belonged exclusively to him. He never discovered the verbiage of the deed or became aware of its legal effect till within less than a year before the filing of this suit, when his attention was called to it by an attorney who examined the abstract of title preparatory to a sale contemplated by plaintiff.' After making this discovery, plaintiff applied to his wife’s relatives for a release of their interest in the property, but they had failed to execute any.

After further alleging that no administration was pending on the estate of Mrs. Baugh, and that there was no necessity for any, the petition concludes by asking for judgment for the property in controversy; that plaintiff be quieted in his title; and that the cloud caused by the unfounded claim of the defendants be removed. He further asks: That the court decree that the deed from W. L. Nichols to Mrs. Evaline Baugh be corrected and reformed by striking from it the w.ords “out of her separate and individual funds and estate,” and from the habendum clause the following words: “To have and to hold all and singular the • said premises unto the said Mrs. Evaline Baugh as her separate and individual estate.” That the property be adjudged as belonging to the community estate of plaintiff and his said wife, and for relief general and special.

Citation was issued and published as required by law in suits against nonresidents. On January 2, 1912, the court appointed an attorney to represent the nonresidents. The attorney so appointed filed an answer in behalf of the nonresident defendants, consisting of a general demurrer, general and special denials, pleas of limitation, and stale demand. W. L. Nichols waived service of citation, entered his appearance, but filed no answer. Tlie appellants did not answer, and were represented only through the attorney ad litem appointed by the court.

On the 5th day of January, 1912, the case was tried and a judgment rendered in favor of the plaintiff R. P. Baugh. In this judgment the court finds the facts to be substantially as alleged in the petition: That the property was purchased for the community of plaintiff and his wife, and was paid for with community funds; that the recitals in the deed from Nichols to Mrs. Baugh making the land her separate property were inserted by mistake on the part ol' the draftsman; and that there was a “common and mutual mistake of all parties.” It was adjudged by the court that the deed be corrected and reformed by striking therefrom the words “out of her separate and individual funds and estate,” and from the habendum clause the words “to have and to hold all and singular the said premises unto the said Evaline Baugh as her separate and individual estate.” It was further adjudged and decreed:

“That the land is now and has ever been the community property of the plaintiff and his deceased wife, Evaline Baugh, and the title thereto is hereby vested in R. P. Baugh, subject to the unpaid balance due on the note, and that R. P. Baugh do have and recover of the defendants (naming the appellants herein) the land described in the deed.”

It is unnecessary to refer to the other provisions of the judgment.

A statement of the facts adduced upon the trial was prepared and filed with the papers, as required by statute. That statement consisted of the testimony of the plaintiff R. P. Baugh and O. P. Bowser and a copy of the deed from Nichols to Mrs. Baugh.

R. P. Baugh testified in substance: That he and his wife, Evaline, were married just before the beginning of the War. That his wife died in August, 1908. That, at the time the land involved in that suit was purchased, all the property owned by himself and wife consisted of the money paid on the purchase price. That this was their community property, and neither of them at that time had any separate estate. He bought the land through Col. O. P. Bowser, paying in cash $1,383.35, and giving a note for $2G6.65. He told Bowser to write the deed and to fix it so that, in case of his death, Mrs. Baugh would have the property. He did not tell him that the money being paid was her separate money, nor did he tell him to put it in her name as her separate property, but merely told him to use the money so she could get the property if he (plaintiff) died, and so that plaintiff would get it if she died. He did not at the time intend to make his wife a gift of the property, or to deprive himself of any right in it. After the deed was made, plaintiff had it recorded. The first time he discovered that the deed contained any recital that the property belonged to the separate estate of his wife was when he' went to sell the land. He then had a lawyer to examine the title for the purchaser, and his attention was called to this provision of the deed. He knew that his wife’s name was in the deed, but did not know of the stipulation making it her separate property. On cross-examination he stated that he left the deed to Bowser to write, and knew of the deed being on record, but did not know the meaning of the contents of the deed; did not think that he had ever read it or had it read over to him. All the money paid belonged to the community estate. He and his wife had only one child, and it died in infancy. He and his wife moved upon the property immediately after its purchase. He had brothers and sisters, but wanted the land to go to his wife upon his death rather than to them, if he died before she did. The deed was introduced, and showed the recitals described in the petition.

O. P. Bowser testified to having negotiated the trade between Nichols and Baugh, and that Baugh asked him to have the deed made to his wife. Bowser’s language with reference to this fact is as follows:

“He asked me to have the deed made to his wife voluntarily, saying that if he should die, or drop off (I believe is the word he used), that he wanted her to have it. In other words, he wanted no controversy about her getting the property at his death in the event he should die before she did. That is about all that was said about the deed.”

The witness further stated that, according to his recollection, his son wrote the deed. He told his son that Baugh decided that the deed should be made to his wife, and gave his son Mrs. Baugh’s name. He could not recall whether he said anything to his son about wording the separate clause. He further stated that Baugh said nothing to him about the purchase money being his wife’s separate property, or anything about deeding the property to her as her separate estate, but only to deed it to her in her name so that, in the event of his death, she should have it. On cross-examination he stated that he acted as the agent for both Nichols and Baugh in the transaction. Mrs. Baugh signed the notes, and he thinks acknowledged a deed of trust on the land.

Before the expiration of two years from the date of the judgment rendered in the case, Henry Strickland, Jr., and others, the appellants herein, claiming to be the sisters and brothers and their descendants of Mrs. Baugh, filed their motion asking for a new trial. The motion was verified by the affidavit of the attorney who represented the appellants in asking for a new trial, and is as follows:

“Before the undersigned authority on this day personally appeared M. B. Harris, agent and attorney for petitioners in the above styled and numbered cause, and being duly sworn on oath says that the matters and facts set out in said instrument are true, and that the matters and facts alleged to be true on information and belief he verily believes to be true as alleged. This affidavit covers only those allegations designated by Nos. 1 to 19, inclusive.”

The substan'ce of the motion will be referred to in discussing the assignments of error. The court overruled the motion, and this appeal followed.

Article 2026 of the Revised Oivil Statutes is as follows:

“In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by an attorney of his own selection, a new trial may be granted by the court upon the application of the defendant, for good cause shown, supported by affidavit, filed within two years after the rendition of such judgment.”

It has now been definitely decided that this article merely extends the time within which a motion for a new trial in the class of cases there referred to may be presented and acted on. Miles v. Dana (Tex. Civ. App.) 36 S. W. 848; Wolfe v. Sahn, 55 Tex. Civ. App. 564, 120 S. W. 1114, and cases there cited. What constitutes “good cause” must to some extent be left to the discretion of the trial judge, 'and is governed largely by the rules which should control him in passing upon similar motions filed during the term at which the cause is tried. Perhaps more liberality should be exercised in such instances in order to give the defendant an opportunity to be represented in person or by an attorney of his own selection. If the judgment in such-cases appears to be based upon insufficient evidence, or upon evidence which should not have been considered by the court, or if the defendant in his application presents new evidence not available on the first trial, these would constitute “good cause,” and a new trial should be granted.

In the first group of errors assigned it is insisted that both the pleadings and the evidence showed that the cause of action set out in plaintiff’s original petition for a correction of the deed accrued more than four years before the institution of this suit, and that the court should have held that the action was barred by the statute of limitation. It may be conceded that this is correct if this suit be treated as one solely to correct a deed; but, if we look to the real purpose of the suit, it will be found that it is an action by one in possession to recover the title to land and to have judicially established the existence of a resulting trust. The pleadings are broad énough to bear this construction. In such a case, limitation does not begin to run until an adverse claim is asserted or the trust is in some manner repudiated. It is- true the court found that the recitals in the deed from Nichols to Mrs. Baugh were inserted by mistake, and rendered a judgment correcting the verbiage of the deed by striking out those recitals. That feature of the judgment we regard as unimportant, inasmuch as the court also found that a resulting trust, in favor of the community consisting of Baugh and wife, had arisen by reason of the payment of the consideration from the community funds, and awarded a judgment to that effect. The correction of the deed, even if error, furnishes no substantial ground of complaint if the judgment in otherwise disposing of the title be correct. Payne v. Ross, 10 Tex. Civ. App. 419, 30 S. W. 670; Aransas Pass Arbor Co. v. First National Bank, 28 Tex. Civ. App. 372, 67 S. W. 906.

In the second group of assigned errors it is contended: (1) That the court erred in permitting R. P. Baugh to testify to facts which might authorize the reformation of the deed made to his deceased wife; (2) because there was no sufficient evidence introduced to support the judgment after excluding that which was illegally admitted; -and (3) because of the facts set up in the application, which are detailed at length. The only proposition submitted under these assignments is as follows:

“Recitals in a deed that consideration was paid by a wife out of her separate estate, or that the property was intended to be her separate property, are contractual in their nature and cannot be contradicted or varied by parol.”

It will be observed that this proposition does not apply to all of the errors complained of in this group.

We infer from the argument that the particular objection sought to be raised in this part of the appellants’ brief is the act o& the court on the original trial in admitting the testimony of R. P. Baugh regarding the payment of the consideration from the community funds. It is claimed that this testimony related to a transaction with his deceased wife and should have been excluded. We do not so construe the testimony. Baugh’s dealings in this transaction were with Bowser, the agent of Nichols, the vendor, and there is nothing in the record to indicate that Mrs. Baugh at any time participated in those negotiations or had any personal connection with that transaction. It is true the deed recites that the consideration was paid from her separate funds, but that does not imply that she paid it. Her husband, as the representative of the community, and having the right, under the statute, to the possession and control of her funds, could have been the agent through whom that payment was made, if it be a fact that the consideration was from her separate funds. Hence it does not necessarily follow from such a recital that Mrs., Baugh must have had some connection with the transaction. The assignment raising this, question is very indefinite and points to no particular language set out in the statement of facts. It would be difficult to identify the testimony which the appellants now insist should have been excluded. The recitals in the deed from Nichols to Mrs. Baugh, in which it is stated that the consideration was from her separate funds and the land was to be her separate property, did not preclude Baugh from showing that the money from which the consideration was paid was the community property of himself and wife.

Appellants rely upon Kahn v. Kahn, 94 Tex. 118, 58 S. W. 825. In that case the facts showed that the deed under consideration was executed by the husband, conveying certain property to his wife, and contained recitals showing that the property conveyed was to belong to her separate estate. The husband afterwards sought to annul the deed and recover the property upon evidence showing that there was in fact no consideration for the conveyance, and that he did not execute the deed with the intention of vesting the title in her. The court held that in such a case the recitals as to the consideration were contractual and could not be disputed; there being no evidence of any accident, mistake, or fraud entering into the transaction. That case, however, was one in which the grantor was seeking to impeach the validity of his own deed. Here the case is different. Baugh was not a party to this deed, and he is not estopped by the language used. McCutchen v. Purinton, 84 Tex. 603, 19 S. W. 710; Dunham v. Chatham, 21 Tex. 245, 73 Am. Dec. 228; Fairhurst v. Lewis, 23 Ark. 435.

The next question to be considered is: Does the motion show upon its face any other ground which may be considered good cause for a new trial? The application contains the following averments as to what appellants expect to prove upon another trial:

“Petitioners would further show that they have reason to believe, and therefore do believe and aver, that said property was in truth and in fact purchased with the separate funds of Mrs. E valine Baugh; that the said R. P. Baugh, being aware of said fact at the time of the execution of said deed by said W. L. Nichols, understood that said property was the separate property of said wife, and he made no complaint, change, or effort to change said deed or reform the same while his said wife was alive. Petitioners would further show that the money which was paid for said land, so they are informed and believe and therefore aver, was given to her by her father, Henry Strickland, Sr., now deceased, and that she received the same from his said estate as a part of her inheritance from her said father. Petitioners would further show that, if they had had an opportunity to be heard in said case at the time of the trial and before thi? rendition of said, judgment, they could have made proof of the facts hereinbefore alleged.”

It will be observed that these allegations do not positively aver that the funds with which the land in controversy was purchased belonged to the separate estate of Mrs. Baugh, but that appellants “are informed and believe” that such was the fact. The affidavit which was made by their attorney is couched in language equally as guarded with reference to that question. If it is a fact that the property was paid for with the separate funds of Mrs. Baugh, that fact should have been positively averred; and, if appellants were in á position to make that proof upon another trial, this also should have been stated with certainty. Unless a different result would likely follow another trial, there is no good reason for disturbing the former judgment. Sharp v. Schmidt, 62 Tex. 265; Schleicher v. Markward, 61 Tex. 103; Kitchen v. Crawford, 13 Tex. 516; Foster v. Martin, 20 Tex. 118.

We are of the opinion that the trial judge did not abuse his discretion in refusing to grant the new trial; and the judgment is accordingly affirmed.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    OSVALD v. WILLIAMS.
    (No. 6660.)
    (Court of Civil Appeals of Texas. Galveston.
    July 1, 1914.)
    1. Master and Servant (§ TO) — Actions for Compensation — Issues, Proof, and Variance.
    A petition alleging that defendant contracted to pay plaintiff ten cents per tree for all trees purchased by defendant on information by plaintiff of the location and name of the owner does not justify a recovery for trees cut and made into staves by defendant in the neighborhood where plaintiff resides, regardless of whether information as to location and name of owner was furnished by plaintiff to defendant or not.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 82-86; Dec. Dig. § 70.]
    2. Judgment (§ 251) — Conformity to Pleadings.
    Facts not alleged, though proved, cannot form the basis of a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    3. Trial (§ 144) — Question for Court or. Jury — Attorney’s Fees.
    Under Rev. St. 1911, art. 2178, authorizing an allowance as costs of reasonable attorney’s fees to be determined by the court or-jury, the amount of attorney’s fees must be determined by the jury trying the case, and not by the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 344; Dec. Dig. § 144.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Action by M. H. Williams against George-Osvald. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Hamilton & Hamilton, of Hemphill, for appellant. J. W. Minton, of Hemphill, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   McMEANS, J.

This suit originated in the-justice court of Sabine county, and after a trial in that court was appealed to the county court, where, upon a trial before a jury, a verdict in favor of appellee was rendered for 8103.50, upon which a judgment was entered for appellee for $123.50. From this judgment the appellant has prosecuted this appeal.

Plaintiff alleged in his petition that he entered into an oral contract with defendant by which he obligated himself to assist the defendant in locating and purchasing oak trees, suitable for making staves, and in which contract he agreed to furnish to defendant information as to the location of such timber,. and to advise defendant of the names of the owners thereof, and that defendant agreed to pay him for such services ten cents per tree for all the oak trees so located by plaintiff and purchased by defendant. He further 'alleged that he furnished to the defendant information that one W. W. Lawson, of Shelby county, Tex., owned a large number of oak trees on a tract of 286 acres of land, on the James Mason league in Sabine county, suitable for making staves, and, as a result of such information so furnished by plaintiff to defendant, the latter purchased 1,035 oak trees on said tract from said W. W. Lawson, whereby the defendant became indebted to, and promised to pay, him the sum of $103.50, which was the reasonable value of such services. He prayed for judgment for said sum of $103.50, interest and costs, and for $20 attorney’s fee, and for general relief.

As before stated, the verdict was for only $103.50. To this the court added in its judgment $20 for attorney’s fee, under article 2178, Revised Statutes 1911, which reads as follows:

“Art. 2178. Attorney’s Fees Recoverable in Certain Cases; Procedure; Costs. Hereafter, any person in this state having a valid, bona fide claim against any person or corporation doing business in this state for personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or em-ployés, may present the same to such person or corporation or to any duly authorized agent thereof, in any county where suit may be instituted for the same; and if, at the expiration of thirty days after the presentation of such claim, the same has not been paid or satisfied, he may immediately institute suit thereon in the proper court, and if he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such person or corporation in such court, he shall be entitled to recover the amount of such claim and all costs of suit, and, in addition thereto, a reasonable amount as attorney’s fees: Provided, he has an attorney employed in the case, not to exceed twenty dollars, to be determined .by the court or jury trying the case.”

We. are of the opinion that the judgment appealed from must be reversed on account of fundamental error apparent on the face of thé record, because it appears that the court charged, and the jury found, a verdict in favor of the plaintiff, upon a cause of action not pleaded by plaintiff.

It will be observed that plaintiff pleaded as his cause of action that he had made a contract with defendant by which he obligated himself to assist the defendant in locating and purchasing oak trees suitable for making staves and to furnish defendant information as to the location of such timber and the names of the owners thereof, for which service defendant agreed to pay him ten cents for each of such trees as he should purchase; and that he had furnished defendant information as to the location and name of the owner of such trees on 286 acres of the James Mason league, and that defendant had purchased 1,035 oak trees thereon, whereby he became indebted to plaintiff in the sum of $103.50. The case was submitted to the jury on special issues, which are as follows:

“(1) Did the defendant enter into a contract with plaintiff whereby he agreed to pay plaintiff ten cents per tree for all trees cut and made into staves by defendant, his agents, servants, and employes, in the neighborhood where plaintiff resides? You will answer this question ‘Yes’ or ‘No’ as you may find and determine from the evidence. In the event you should answer ‘No,’ then you need not consider of your verdict further, but will simply return your verdict for the defendant; but, in the event you should answer ‘Yes,’ then you will consider further of your verdict and answer the following question:
“(2) Is the defendant indebted to the plaintiff? You will answer this question ‘Yes’ or ‘No’ as you may find and determine from the evidence. In the event you answer ‘Yes,’ then state the amount you so find.”

The jury answered both questions in the affirmative and found in plaintiff’s favor for $103.50.

Thus the issues submitted to the jury were, not whether there existed a contract whereby defendant agreed to pay plaintiff ten cents per tree for all trees purchased by it upon information by plaintiff of the location and name of owner as pleaded by plaintiff, but whether the contract was that defendant should pay plaintiff ten cents per tree for “all trees cut and made into staves by defendant, his agents, servants, and employes, in the neighborhood where plaintiff resides,” regardless of whether information as to location and name of owner was furnished by plaintiff to defendant or not.

It is well settled that facts not alleged, though proved, cannot form the basis of a judgment (Hall v. Jackson, 3 Tex. 309; Chrisman v. Miller, 15 Tex. 160; Wallace v. Bogel, 62 Tex. 638), and that a judgment not responsive to the pleadings should be set aside (Lee v. Mortgage Co., 16 Tex. Civ. App. 671, 40 S. W. 1041).

Appellant complains of the action of the court in adding $20 to the amount of the vérdict as attorney’s fees and in rendering judgment for this additional amount. The statute above copied requires that the reasonable amount to be allowed as attorney’s fees is to be determined by the court or jury trying the case. As this case was tried by a jury, it was for the jury, and not the court, to determine, under appropriate instructions from the court, what would be a reasonable amount.

All other assignments of error presented by appellant have been carefully examined by us, and we are of the opinion that none of them points out reversible error.

For the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: PLEASANTS, C. J.

text:
    YORK v. J. M. THOMPSON LUMBER CO.
    (No. 6655.)
    (Court of Civil Appeals of Texas. Galveston.
    June 23, 1914.)
    1. Trespass to Try Title (§ 47) — Judgment — Disclaimer—Relief to. Defendant.
    In trespass to try title, where defendant by plea 'disclaimed title or interest in the tract, except as to a specifically described 160 acres, as to which he alleged a good title by adverse possession for more than ten years, without any alternative plea that if he was found not entitled to recover such 160 acres he might have judgment for 160 acres, including his improvements, to be surveyed and designated out of the tract by order of the court, or proof that to award him such 160 acres would be a fair and equitable partition between himself and plaintiff, the trial court could not render judgment for such 160 acres, or any other title or interest in the tract.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    2. Trespass to Try Title (§ 47) — Judgment —Conformity to Evidence.
    Nor in such case could the court render judgment for defendant for any part of the tract, where there was no evidence as to the quantity of land actually occupied by defendant, except the 50 or 60 acres under cultivation, under which it could describe the lands actually occupied for the ten years prior to the suit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Trespass to try title by the J. M. Thompson Lumber Company against George York. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John I. Moore, of Crockett, for appellant. Wm. A. Vinson and Lane, Wolters & Storey, all of Houston, Kenley & Minton, of Grove-ton, and Paul Kayser, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellee against the appellant to recover a tract of 609.5 acres of land on the Joel Clapp survey in Trinity county. The appellant disclaimed as to all of the land sued for except a tract of 160 acres thereof, which he described in his answer by metes and bounds, and to which he claimed title under the ten years’ statute of limitation. The trial in the court below without a jury resulted in a judgment for plaintiff for all of the land.

The conclusions of fact and law filed by the trial court, at the request of appellant, are as follows:

“(1) The patent from the state of Texas, of date October 9, 1S48, was issued to Joel Clapp, for approximately 2,214 acres of land, and which includes the land in controversy.
“(2) That plaintiff, by inheritance and mesne conveyances, is now the owner of the record title to the 609.5-acre tract of land described in its original petition; same being a part of the aforesaid Joel Clapp survey.
“(3) That defendant, George York, took actual possession of some undivided part of said 609.5 acres about 12 or 15 years prior to the institution of this suit against him by plaintiff, and that he thereafter, up to November 22, 1900, continuously held, occupied, and adversely claimed an undivided part amounting to 160 acres.
“(4) That on November 22, 1900, said defendant, George York, for the first time, had the county surveyor of Trinity county make a survey of the 160 acres of land described in his original answer on file in this cause.
“(5) That since November 22, 1900, said defendant, George York, has been claiming and adversely holding the said 160 acres so surveyed for him, and as described in his said answer, and no other portion of said 609.5 acres.
“(6) That said defendant, George York, did not claim prior to November 22, 1900, the particular 160 acres of land described in his original answer on file in this cause.
“(7) That plaintiff’s original petition was filed in this cause on May 21, 1906.
“(8) That said defendant, George York, by his answer on file in this cause, disclaims all interest in said 609.5 acres sued for by plaintiff, save and except the 160 acres described in his answer.
“(9) That said defendant, George York, has not made any allegations, or offered any proof, that the setting aside to him of the particular 160 acres described in his answer and now claimed by him wopld be just and equitable to the owner, of the remainder of the 609.5 acres.” Tr. pp. 9, 10.
Conclusions of Law.
“(1) That plaintiff is entitled to recover against defendant, George York, on his disclaimer, all the land in controversy, save and except the 160 acres described in defendant’s said answer.
“(2) That defendant, George York, is not entitled to recover the particular 160 acres claimed by him, because same was not surveyed or otherwise designated on the ground or claimed by him for as much as ten years prior to the filing of this suit; the defendant having made no allegations nor offered any proof that the setting aside to him of the 160 acres would be a just and equitable partition of said land.
“(3) In light of the foregoing findings of fact and law, judgment should be and is rendered for the plaintiff for all of the land sued for by it herein.”

These fact findings are supported by the evidence and are not assailed by any assignment presented in appellant’s brief.

Appellant contends under appropriate assignments that because the undisputed evidence shows that he was in" continuous adverse possession of a portion of the land, claiming 160 acres thereof for more than ten years before the filing of this suit, judgment should have been rendered in his favor either for the 160 acres described in his petition or for 160 acres, including his improvements ■and a survey and designation thereof ordered by the court. It is further contended that appellant upon the undisputed evidence was at least entitled to a judgment for all of the land actually occupied by him. We do not think that any of these contentions can be sustained.

The want of sufficient pleading to support it is as fatal to a judgment as the want of evidence, or, to state the rule conversely, a judgment can no more be properly rendered upon insufficient pleading than upon insufficient evidence. Appellant’s claim of title by limitation is to a specific tract described in his answer by metes and bounds. His entire pleading, omitting the formal portions, is as follows:

“Now, at this term of the court, C9mes the defendant, George York, and disclaims any right, title, or interest in and to the land sued for herein, save and except to the hereinafter described land, to wit: [Here follows the description of the 160 acres.] The remainder of the land sued for herein this defendant says he sets up no claim of right, title, or interest, and here and now disclaims the same except the land above described, and of the same this defendant says the plaintiff ought not to have and maintain his aforesaid action against him, because he says that he, claiming to have good and perfect title to the above-described land and tenements, has had and held peaceful and adverse possession of the said land, cultivating, using, and enjoying the same for a period of more than ten years after the plaintiff’s cause of action accrued, if any he ever had, and before the commencement of this suit, and of this he is ready to verify. Wherefore defendant respectfully prays that proof be heard, and that upon hearing he be permitted to go hence without day, and that plaintiff take nothing by his suit, and that defendant have judgment for the title and possession of the above-described land, quieting his title thereto, and for such other and further orders and decrees as may be proper and right, and for costs, special and general relief, for which defendant will ever pray.” Tr. p. 4.

Appellant had not claimed the specific tract of 160 acres described in petition for ten years prior to the institution of this suit, and there is neither allegation nor proof that to award him the 160 acres described in his answer would be a fair and equitable partition of the land between him and the appel-lee. Upon this state of the pleading and evidence the trial court was not authorized to render judgment for appellant for said 160 acres. La. & Tex. Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; La. & Tex. Lbr. Co. v. Stewart (Civ. App.) 130 S. W. 199.

There is no alternative plea that, in event it should be found that appellant was not entitled to recover the specific 160 acres described in his answer, he have judgment for 160 acres, including his improvements to be surveyed and designated under direction of the court, but, on the contrary, appellant expressly “disclaims any right, title, or interest in and to any of the land sued for herein, save and except” the specific 160 acres described in his answer. But for appellant’s disclaimer the court might, under the prayer for general relief, have rendered judgment giving appellant 160 acres of land, including his improvements, ánd directing a survey thereof, but no relief could be granted inconsistent with the facts stated in the petition, ■ and judgment could not have been rendered in appellant’s favor for laud in which he had expressly disclaimed any right, title, or interest. Herring v. Swain, 84 Tex. 523, 19 S. W. 774; Milliken v. Smoot, 64 Tex. 171; McIlhenny v. Tood, 71 Tex. 400, 9 S. W. 445, 10 Am. St. Rep. 753.

There was no evidence .upon which the court could render a judgment describing the land actually occupied by appellant, nor is there any evidence showing the quantity of land he had actually occupied for ten years-prior to the institution of this suit. The evidence only shows that, at the time of the trial, he had 50 or 60 acres in cultivation and had a house and bam thereon.

It was incumbent upon appellant to furnish evidence sufficient to enable the court to-determine with some degree of certainty what portion of the 160 acres claimed by him he was entitled to recover by reason of his-actual occupancy thereof for ten years, and, in the absence of such evidence, the court was not authorized to render judgment in his-favor for any portion of the land.

It follows from these conclusions that the-judgment of the court below should be affirmed ; and it has been so ordered.

Affirmed.


author: CONNER, C. J.

text:
    STEVENS v. CITY OF DUBLIN et al.
    (No. 8005.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.)
    1. Eminent Domain (§ 2) — Compensation— “Taking” of Property.
    The closing of a street by a city is not a “taking” of property of an abutting owner within Const, art. 1, § 17, providing that no-person’s property shall be taken, etc., for any public use without adequate compensation being made, and, when taken, except for the use of the state, such compensation shall be first made, etc.
    [Ed. Note. — For other cases, see Eminent Domain, Dec. Dig. § 2.

    For other definitions, see Words and Phrases, vol. 8, pp. 6852-6860, 7813.]
    2. Municipal Corporations (§ 657) — Streets —Power to Close Steeet.
    The general powers of a municipality to control, alter, widen, etc., and, in the interest of public safety, to temporarily close a street do not authorize a permanent closing of a public street to the damage of an abutting owner.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 844, 1429, -1496; Dec. Dig. § 657.]
    3. Municipal Corporations (§ 57) — Powers.
    A municipality has such powers only as are conferred upon it, or such power as exists-by necessary implication from powers given.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. § 57.]
    4. Municipal Corporations (§ 657) — Police Power — Closing Street.
    A city under the police power, given by Rev. St. tit. 22, c. 14, could not close a street because its continued existence was dangerous to school children attending a school abutting thereon, as the general public was only affected-indirectly by the supposed danger.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 844, 1429, 1496; Dec. Dig. § 657.]

      Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by Carl Stevens against the City of Dublin and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Keith & Johnson, of Stephenville, for appellant. Hickman & Bateman and E. E. .Solomon, all of Dublin, for appellees.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   CONNER, C. J.

The city of Dublin, incorporated as a municipality under the general laws of this state, acting in the interest of and for the benefit of the Dublin Independent School District, incorporated for public free school purposes, passed an ordinance which in terms authorized the school district to close that portion of College street in said city which extends between two blocks of land owned and used by the school district. College street extends north and south, and is intersected at right angles by streets extending east and west. Vallient street so intersects College street, and extends along the north boundary line of the two school blocks. Across Vallient street appellant owns and occupies as a homestead a quarter of a block, bounded on the west by College street and on the south by Vallient street, and he instituted this suit to enjoin a closing of College street as authorized by the ordinance mentioned. A preliminary hearing upon the facts resulted in a judgment refusing to grant the temporary writ of injunction as prayed for, and the case is now before us for review on an appeal from the order refusing the writ. The case is here submitted upon the trial court’s conclusions of fact and law, which, omitting formal parts, are as follows:

“I find from the evidence before me that in the year 1S84 J. K. Keith, as guardian of the heirs of Mary E. Keith, deceased, after order of the probate court of Erath county for •such purpose, dedicated and deeded to the public, in consideration of the enhanced value of the adjacent blocks and lots in the Keith addition to the city of' Dublin, among others, the street in question, known as College street.
“Second. I find that said street has been open and used, worked, graveled, and graded, by the city of Dublin for a period of 20 years.
“Third. I find that plaintiff’s property is situated on said street in the manner and in the place shown by. the map and plat of said addition, which is hereto attached and found by me to be correct.
“Fourth. That the plaintiff resides upon said lot with his family as a residence, and that it is worth about $1,500.
“Fifth. That plaintiff bought said lot and has lived on the same as a homestead for 12 years, and that he bought the same in reference to the streets and alleys and plot of said addition as shown in the map hereto attached.
“Sixth. That the city of Dublin, on the 18th day of February, 1913, passed an ordinance discontinuing and closing a part of the street in controversy, and granted authority to the trustees of the Independent High School of Dublin to close and fence said street and to embrace it within its school or playgrounds. That the trustees of said Independent School* District, who are defendants, are now threatening to, and will, close and fence said street so as to embrace it within-the school ground as indicated on the map hereto attached. A copy of said ordinance of the city of Dublin relative to this street is made a part of the answer herein, and is referred to.
“Seventh. That if said street is closed as contemplated by the defendants, the north side of the two blocks of the said school property will present a closed front to plaintiff’s residence of 550 feet or more, his said residence being near the center of said inclosure with Vallient street, a 50-foot street, running east and west between him and said inclosure.
“Eighth. That if said street is closed as proposed, plaintiff’s property will be damaged in the sum of $200.
“Ninth. That in going from plaintiff’s residence to the southern part of Dublin, in which his relations reside and to the depot, etc., plaintiff and his family if said street is closed, will have to travel west on Vallient street" around said high school block, or east and then south around said school property.,
“Tenth. That said street is now constantly used by plaintiff, his family, and a large number of people going into the southern and middle portion of Dublin, and has been so used for 20 years.
“Eleventh. The court further finds the allegations of defendants, the Independent School District of Dublin, in regard to the uses to which said defendant’s property is put, the value and extent of improvements thereon, number of pupils attending the school, and the alleged danger to the said pupils occasioned by the open street which said defendants, together with the other defendant, are threatening to close, to be true. And further finds that the use of that portion of Post Oak or College street sought to be inclosed within the school grounds is necessary to give adequate room for exercise and playgrounds for the pupils attending said school. That without the use of said street in connection with said' playground the remaining grounds belonging to the Independent School District, and separated as they now are by said street, are entirely too limited to enable the pupils of said school to indulge in proper and suitable exercise for the preservation of their health and for their physical development.
“Twelfth. I further find that plaintiff owns no part of the fee in that portion of the street sought to be inclosed, that he is not an abutting owner, and his land does not abut on that portion of the street sought to be inclosed, but that his property is separated from the two blocks sought to be connected and is situated north of each of said blocks a distance of 50 feet, and that a 50-foot street runs east and west between plaintiff’s property and the two school blocks between which the street passes that is sought to be discontinued.
“I further find that plaintiff lives and his property lies on College street, but does not abut on that portion of the street sought to be discontinued, and that plaintiff’s property is located on other streets, and his means of access to and from the property and his ways are not obstructed.
“Thirteenth. I conclude as a matter of law that the petition does not disclose a threat to take, and does not threaten to take, any part of plaintiff’s property as the term ‘taken’ is used in McCammon & Lang Lumber Co. v. Railway Co., 104 Tex. 15 [133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870], and that injunction will not lie except to prevent a taking of the property without compensation. At most, the petition in this case shows only a threat or intention on the part of the defendants to do an act which, if done, will likely damage plaintiff’s property. And for such injuries compensation in advance is not required. Id.
“Fourteenth. In the case of Ort v. Bowden, 148 S. W. 1148, quoting from another ease, it is said, in regard to streets and to authority granted to city council: ‘It must be understood that [the Legislature] has power over- them as streets, for it cannot be justly affirmed that it may deprive them of the character of streets •to the special injury of abutters without yielding them fair compensation for the loss actually sustained.’ Taking the converse of this proposition, the trial court is of the opinion, that the city council of the city may deprive a street of its character to the special injury of abutters, but will be responsible to those abutters for fair compensation for the loss they actually sustain, and the remedy of the abutters is not by injunction to prevent the injury, but by an action for damages occasioned to the property. The writ of injunction prayed for in plaintiff’s petition is therefore denied, and the cost of this proceeding is adjudged against the plaintiff.”

It cannot be denied that appellant had a property interest in the street in question, and if it be assumed that the city of Dublin had the power, under the circumstances stated, to close the street as threatened, then it seems under the authorities that the closing would not constitute a taking within the meaning of article 1, section 17, of our Constitution, which requires compensation to be first made. See Settegast v. Railway Company, 38 Tex. Civ. App. 623, 87 S. W. 197; Gray v. Dallas Terminal Co., 13 Tex. Civ. App. 158, 36 S. W. 352; Burton Lumber Corp. v. City of Houston, 45 Tex. Civ. App. 363, 101 S. W. 822, all cited with approval on this point by our Supreme Court in Lumber Co. v. Railway Company, 104 Tex. 15, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870. In such cases, i. e., where the complaining party owns property abutting on the street, but not upon that portion closed, the owner is remitted to an action for his damages, if any, as was held by the court below.

We have concluded, however, that the facts found fail to show authority in the city of Dublin to close the street as attempted, and it is not pretended that the school district had any such authority in its own right. We need not discuss the power of the Legislature in such cases, for no legislative act discontinuing any part of College street is relied upon. The vital question is, Does the ordinance of the city of Dublin confer lawful authority for the threatened act? If not, the remedy of injunction is available to appellant by force of the very terms of the statute. Revised Statutes, art. 4643; Ort v. Bowden, 148 S. W. 1145.

It is not pretended that at the time of the passage of the ordinance in question any express authority from the Legislature to so enact existed. On the contrary, such authority would seem to be excluded on the principle of “Inclusio unius est exclusio alteráis.” Por Revised Statutes, article 854, as it existed at the date of the ordinance expressly conferred the power to vacate an alley upon the written application of the abutting owners, but neither there nor elsewhere is any such express power given to vacate a public street, or part thereof. There existed only such control over the streets as was necessary to prevent encroachments thereon, to alter, widen, or otherwise improve the same, and doubtless, in the interest of public safety, to temporarily close them. But these general powers were not, we think, properly susceptible of such extension as to authorize a permanent closing of a public street to the damage of an abutting owner. The city had such power, and such power only, as was conferred upon it, or such power as existed .by necessary implication from powers given. See Vosburg, Mayor, v. McCrary, 77 Tex. 568, 14 S. W. 195; Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143. In McQuillin Municipal Corporations, § 229, it is said:

“Whatever rights the city may have over its streets, by virtue of constitution or statutes, its powers are essentially those of a trustee for the benefit of the cestui que trust (the public), liberally construed for its benefit, strictly construed to its detriment,” etc.

The same author, in section 1391, says:

“When a public street is laid out the public ‘acquires an easement in the land, which includes a right to occupy it for every kind of travel and communication of persons, and every movement of property, that is reasonable and proper in the use of a public street.’ As already stated, the right of public travel in a street is the paramount right to which all others must give way. Such travel is the primary purpose of a street. It is not limited in extent, but, on the contrary, the full width and length of a street may be utilized for such purposes, subject, of course, to such regulations as may be imposed by the municipality,” etc.

These observations relating to the rights of the public in a street are to be emphasized, if possible, when its closing operates to the special damage of an owner abutting thereon, as in this case was expressly found by the court.

The court below, however, found, in substance, that the continued existence of College street as originally dedicated and used would be, as to the portion closed, dangerous to the students attending the schools of the Independent School District, and that therefore it would be for the benefit and general welfare of the inhabitants of the city to close the street as ordained, and appellees insist that, under the general police powers conferred by the Legislature upon the municipality, the ordinance was authorized. The police power of cities is undoubtedly large, but, like, other powers, must be of legislative derivation. Chapter 4 of title 22 of the Revised Statutes enumerates many things that the city may do in the preservation of the life, health, and safety of its citizens. This power would doubtless extend to the temporary closing of a street to insure public safety in cases of fire, excavations, and the like. But the ordinance, a copy of which is attached to the answer of the Dublin Independent School District, recites no such purpose, and we think it would be a perversion of the power to say that it applies to circumstances such as found by the court in this case. Mr. McQuillin in the work hereinbefore cite'd, section 893, in discussing other limitations of this power, says:

“However, to justify the interposition of this authority in behalf of the public, it must appear: First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. In a word, the police power must be exercised within its appropriate sphere and by appropriate methods. This power can be exercised only to promote the public good, and is always subject to judicial scrutiny.”

In the case as here found the danger is to the school children, and arises only by their own seeking, so to speak, while trespassing upon a street which has been dedicated to other uses for the benefit of the general public. The street as such is not dangerous, and the general public is only affected indirectly by the. supposed danger. Nor does it appear that reasonable regulations on the part of the proper authorities cannot be adopted that will prevent the children from seeking places of danger, and at the same time preserve the rights of the public and of abutting owners to the use of the street.

We conclude that the judgment should be reversed, the temporary writ of injunction granted as prayed for, and the cause remanded for further proceedings in accordance with this opinion.


text:
    MOORE GROCERY CO. v. McCAN et al.
    (No. 6695.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1914.)
    Pabtneeship (§ 181) — Debts—Exclusion of Fiem Cbeditobs.
    A partner in a firm which owed plaintiff a balance for goods sold, and which turned over its stock of goods, accounts, etc., to plaintiff, to be applied generally to the payment of its debts, had no right to direct, nor had plaintiff the right to make the application of his half interest in the firm to the payment of his individual debt, to the exclusion of the firm’s creditors.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 810, 816, 317; Dec. Dig. § 181.]
    Appeal from Leon County Court; L. T. Dashiell, Judge.
    Action by the Moore Grocery Company against J. L. McCan, John A. Marshall, and R. H. Sammon, with cross-actions by Marshall and Sammon. Judgment for defendants Marshall and Sammon denying any recovery to plaintiff, and plaintiff appeals.
    Reversed and remanded.
    Price & Beaird, of Tyler, and Joe H. Seale, of Centerville, for appellant.

       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   McMEANS, J.

The Moore Grocery Company, a corporation, brought this suit against-J. L. McCan, John A. Marshall, and R. H. Sammon to recover $455.66, upon a verified account for goods, wares, and merchandise sold by plaintiff to defendants. Plaintiffs obtained a judgment in this suit against defendant McCan in the county court of Smith county before the venue was changed to the county court of Leon county.

Defendants Marshall and Sammon filed their answers, denying under oath that the account sued on was just and true or that all just and lawful payments and credits had been allowed, and defendant Marshall by cross-action alleged that during the time that he was a member of the firm of J. L. McCan & Co. the said firm paid plaintiff $280.-02 in excess of the indebtedness to it, one-half of which, he was entitled to reimbursement from plaintiff, and he prayed for judgment for $140.01.

The defendant Sammon also filed a cross-action, in which he alleged that he purchased the interest of his codefendant, Marshall, in the mercantile business of J. L. McCan & Co. on March 12, 1912, and that during the time he was a member of said firm there was purchased from plaintiff goods to the amount of $108.46, and that during said time said firm paid plaintiff $621.80, $513.24 in excess-of the indebtedness incurred by said firm during said time, and he prayed for judgment for one-half of such excess. He further-alleged that plaintiff induced him to transfer and assign to it notes and accounts due said firm of McCan & Co. aggregating a sum more than $900 through the false and fraudulent representations made by plaintiff through its president and general manager, that the-said firm of J. L. McCan was hopelessly in debt to plaintiff and divers other creditors, and that thereafter plaintiff sold said notes and accounts to J. L. McCan for $300, and that plaintiff converted the proceeds of said sale to its own use and benefit; and he prayed for judgment over against plaintiff for $500, which he alleged was the actual cash, value of his interest in said notes and accounts.

Plaintiff filed a supplemental petition, in-which he denied the allegations of defendants’ cross-bills.

A trial of the case before a jury resulted in a verdict and judgment in favor of defendant Marshall on his cross-action for $140.01, and in favor of defendant Sammon on his cross-action for $256.60, and denying any recovery in favor of plaintiff, and from this judgment the plaintiff has appealed. No-briefs have been filed in behalf of the appel-lees.

The facts adduced upon the trial, as well-as we can understand them from a careful-reading of the statement of facts, are as follows : J. L. McCan was engaged in the mercantile business in the town of Oakwoods, and while so engaged bought goods, wares, and merchandise on credit, from the plaintiff Moore Grocery Company of Tyler. ■ On the-20th day of September, 1911, McCan’s indebtedness to plaintiff was in the neighborhood of $1,000. On the day mentioned defendant Marshall bought a half interest in McCan’s business, and the firm’s name was then changed to J. L. McCan & Co. After tliis J. E. Mc-Can & Co. purchased goods, .wares, and merchandise from plaintiff, on credit, amounting to $1,064.53. About March 12, 1912, defendant Sammon purchased Marshall’s half interest in the business-taking Marshall’s place in the firm, and assuming all indebtedness due by the firm.

Plaintiff admitted payments by McCan and Marshall at various times and in various sums, amounting to $558.87, leaving a balance due it, as it claimed, of $455.66. Some time after the business of McCan and Sammon had been running, they turned over their entire stock of goods, wares, and merchandise, and all notes and accounts due the firm to plaintiff for the benefit of all their creditors, including plaintiff. McCan directed plaintiff to apply his half interest in the assets of the firm to the payment of his individual debt to plaintiff, which accrued before Marshall bought an interest in the business. Plaintiff through its president sold the notes and accounts to McCan for $300, and also sold the stock of goods, but the price received therefor is not shown, further than that with the proceeds of the sale of the goods and notes and accounts the plaintiff discharged $400 of the individual indebtedness due to it by McCan. It was not shown that any of the proceeds were applied to the payment of the debts of the general creditors of McCan and Sammon. It is shown by a letter written by plaintiff to McCan on November 15, 1912, that plaintiff canceled and returned to him four notes which were paid out of his half interest in the business. These notes as shown by other testimony were for $100 each.

This is the best analysis we can make of the evidence. As presented to us in the statement of facts, it is unsatisfactory and confusing, and appellees have not seen fit to aid us with briefs.

We will not discuss appellant’s assignments of error in detail.

According to appellant’s testimony, the firm composed of McCan and Marshall owed it a balance of $455.66 at the time Sammon bought Marshall’s interest and assumed the indebtedness of the firm. Nothing was paid upon this indebtedness until McCan and Sam-mon turned their stock of goods, notes and accounts over to appellant to be applied generally to the payment of their debts. Mc-Can had no right to direct, nor had the appellant the right to apply', McCan’s half interest to the payment of his individual debt to the exclusion of the firm’s creditors as was attempted to be done. If we assume that the $400 applied by appellant was one-half of the proceeds of the sale of the goods, notes, and accounts, then the whole must have sold for $800. If so, then the $400 applied by appellant on the individual debt of McCan should be applied to the payment of the firm’s debt and discharge'it pro tanto. This would leave the firm still owing $55.66. If the balance of the proceeds of the sale were applied to the payment of general creditors, then whether the pro rata received by appellant was sufficient or more than sufficient to discharge this balance would depend on the amount of other indebtedness the firm owed. It may have been considerably more than sufficient, but on this point the evidence does not enlighten us. It is clear, however, that the verdict rendered in favor of the defendants on their cross-action was not warranted by the evidence as presented to us in the statement of facts, and must have been the result of guess or speculation. Certainly there is no substantial basis therefor in the testimony, and we cannot permit a judgment based thereon to stand.

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.