author: HUFF, C. J.

text:
    WALSH et al. v. METHODIST EPISCOPAL CHURCH SOUTH, OF PADUCAH, et al.
    (No. 700.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 2, 1915.
    Rehearing Denied Jan. 30, 1915.)
    1.Appeal and Eeeoe <@=>293 — Motion toe New Teial — Bill oe Exceptions — Necessity.
    Under Rev. St. 1911. art. 1612, as amended by Acts 33d Leg. c. 136, and articles 1987-1991, relating to assignments of error and to exceptions to conclusions of law, it was sufficient for review that appellants, in the judgment entry, had noted therein exceptions to the findings of fact ■ and conclusions of law, and had excepted to the judgment of the court, and it was not necessary to procure review of assignments of error filed in the lower court to conclusions of law and fact filed by the court that there should be a motion for new trial and bills of exceptions to such findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1395, 1700-1703, 1705, 1706; Dec. Dig. <@=>293.]
    2. Appeabance <@=>24, — Defects in Peocess.
    Motion to quash service of citation will not prevail where the defendants appeared and answered thereto.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. <@=>24.]
    3. Damages <@=>79 — Liquidated Damages oe Penalty — Delay.
    Where a contract for the building of a church provided that, on failure to complete within the time specified, the builder should pay the sum of $10 per day, which the other party should deduct out of the contract price, if sufficient funds remained in its hands, otherwise the builder would pay the sum, such sum might be treated as liquidated damages, as being fixed because of the difficulty in ascertaining the damages.
    [Ed. Note. — -For other cases, see Damages, Cent. Dig. §§ 16^-169; Dec. Dig. <@=>79J
    4. Damage <@=>175 — Evidence—Liquidated! Damages.
    In determining whether a stipulation for payment of $10 per day for delay by, a builder of church was liquidated damages or penalty, testimony that the church society used a courthouse and a church building of another denomination without paying anything for the use, and thereby sustained no damages, was irrelevant.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 469-471; Dec. Dig. <@=>175.]
    5. Evidence <@=>185 — Best and Secondaey Evidence — Copies — Notice, to Peodtjce Oeiginal.
    An objection against admission of carbon copies of letters written by plaintiff to one of the defendants without notice to produce the originals should have been sustained as against the contention that the bringing of the suit was notice that such evidence would be demanded; the suit being on a contract, and not upon the letters, which merely related to performance of the contract.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 642-660; Dec. Dig. <@=>-185.]
    6. Appeal and Eeeoe <@=>1050 — Haemless Eeeoe — Admission • op Secondaey Evidence.
    In an action against a building contractor and surety on his bond, the erroneous admission of carbon copies of letters written by plaintiff to defendants without notice to produce the originals was harmless, where plaintiff had introduced a letter to show the time of default, as shown in the copies, and the trial was before the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <&=1050.]
    7. Peincipal and Sueety <@=>123 — Release oe Sueety — “Default”—Notice.
    Where a building contract was not completed September 1st, as required, and on December 14th the building contractor notified the owners that he could not complete it, his “default,” within the meaning of the contract requiring notice to his surety immediately after “default” Of the principal, occurred September 1st, and not on the later date; “default” meaning nonperformance of a duty, whether arising under a contract or otherwise, and in its most general sense meaning a failing.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 304r-311; Dec. Dig. <@=>123.
    For other definitions, see Words and Phrases, First and Second Series, Default.]
    8. Peincipal and Sueety <@=>123 — Release of Sueety — Notice of Default.
    Where a building contract provided that, if the principal should in any manner default in performance or abandon the work, the obligee should immediately notify the surety, which should have the right to perform or sublet the contract, the right to notice was a condition precedent to right of recovery against the surety ; and the time for completion of the contract having expired without completion, but the surety not being notified until several months later, and not until the contractor had notified the creditor that he could not complete the contract, the surety was not liable.
    [Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 304-311; Dec. Dig. <§=>123.]
    9. Principal and Surety <§=>123 — Release of Surety — Notice of Default — Application oe Statute — Claim eor Damages.
    Rev. St. 1914, art. 5714, declaring that stipulations in contracts requiring notice of any “claim for damages” as a precedent condition to right to sue thereon if less than 90 days is void, did not apply to a contract of a surety entitling the surety to immediate notice of default by the principal; the statute not applying to mutual 'and reciprocal obligations determining the rights of the parties under the contract.
    [Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 304-311; Dec. Dig. <@=^ 123.].
    10. Principal and Surety <§=>101 — Release oe Surety — Alteration oe Contract.
    Where a contract of suretyship provided for notice to the surety of alterations in the contract, but did not require its consent thereto unless the costs should aggregate 10 per cent, of the bond, failure to give notice of an alteration costing less than the amount prescribed did not release the surety.
    [Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. <§=> 101.]
    11. Principal and Surety <§=>101 — Release oe Surety — Alterations oe Contract.
    Trifling alterations should not release a surety, and the rule applied in cases of voluntary suretyship when there is an alteration discharging the surety should not apply where the surety is engaged in the business of surety for hire, but the contract, like that of insurance, should be construed against the surety company.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 109-180; Dec. Dig. <§=^ 103.] '
    Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.
    Action by the Methodist Episcopal Church South, of Paducah, and others against E. D. Walsh and the Texas Fidelity & Bonding Company. Judgment for plaintiffs, and defendants appeal.
    Judgment against E. L. Walsh affirmed, and the judgment as to the Texas Fidelity & Bonding Company, surety on the bond of said Walsh, reversed and rendered.
    J. M. Blankenship, of Wichita Falls, for appellants. James M. Whatley and Browne & Hawkins, all of Paducah, for appellees.

       Writ of error pending in Supreme Court.

   HUFF, C. J.

The appellees, the Methodist Episcopal Church South, of Paducah, Tex., and others, the trustees thereof, instituted this suit against the appellants, E. L. Walsh and the Texas & Fidelity Bonding Company, on the 18th day of March, 1914, to recover damages for breach of contract alleged by ap-pellees to have been sustained by them on the ground that appellant E. L. Walsh failed to complete a one-story brick-veneered church building in the town of Paducah, Tex., according to the terms of a valid written contract. It is alleged substantially that the contract was made and entered into by and between E. L. Walsh, as principal, and the Texas Fidelity & Bonding Company, as sureties, being the parties of the first part, and the Methodist Episcopal Church South, of Paducah, Tex., and its trustees, parties of the second part, on the 17th day of May, 1913, and said building was to be completed by the 1st day of September, 1913; and appellees allege that said building was not completed for 105 days thereafter, and that said appellants were to pay the sum of $10 per day as liquidated damages for every day of delay 'after said September 1, 1913; and also for breach of contract in failing to furnish sufficient labor and material and to pay for the same, to complete the church, and that the appellees were compelled to discharge the items for material to the amount over and above the contract price of the sum of $200, asking for judgment for the full amount of $1,250.

The appellants answered generally and specially, which will not be necessary to set out in detail.

First the appellees object to the consideration of assignments 1 to 11, inclusive, and present the proposition that courts will not consider the assignments of error filed in the lower court to the conclusions of law and fact filed by the court trying the cause in the absence of a motion for new trial, calling die court’s attention to such error of fact and law committed by the trial court, and prepare bills of exceptions to such findings of fact and conclusions of law as found by the court. This court held in the cause of Cornelius v. Harris, 163 S. W. 346, that it was not necessary in a trial had before a court without a jury to file a motion for new trial in order to file assignments of error calling in question the sufficiency of the evidence as a question of law to support the judgment. In American, etc., v. Mercedes, etc., 155 S. W. 286, the same conclusion was reached, even before the amendment of article 1612 by the Thirty-Third Legislature and the addition to the rules of rule 101a (159 S. W. xi) by the Supreme Court. The appellants, in the judgment entry, had noted therein their exceptions to the findings of fact and conclusions of law filed by the court, and also excepted to the judgment of the court. We think this sufficient. Smith v. Abadie, 67 S. W. 1077; Brenton v. Peck, 39 Tex. Civ. App. 224, 87 S. W. 898; Supreme, etc., v. Ericson, 131 S. W. 92; Bond v. Garrison, 127 S. W. 839, bottom page 843, top 844; Edwards v. Youngblood, 160 S. W. 288. In this record there are bills of exceptions, statements of facts, as well as findings of the trial court. Where this is true we do not understand it to be necessary to file exceptions to the findings of the trial court. Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443 Gillespie v. Crawford, 42 S. W. 621-625. The Supreme Court, in the case of Insurance Co. v. Milliken, 64 Tex. 48, gives the reason for the exceptions to the findings of the trial court. When made, the opposite party must take notice of it, and, if the findings are not as full as they should be, it will be Ms right to have a statement of facts, or, in other respects, have a complete presentation of the case. We do not understand the revision of 1911 to have changed the rule as it heretofore existed under old article 1333. This article is brought forward in the revision as articles 1987-1991, inclusive.

The first and second assignments are overruled. The motion to quash the service of the citation we do not think good in the first place, and, further, it appears the appellants answered thereto. The application for continuance does not show sufficient diligence. The court’s reason given for overruling the motion justified the action of the court.

The third and eighth assignments assert the proposition that the contract authorT izing a recovery as liquidated damages the sum of $10 per day after September 1, 1913, was a penalty, and not a liquidated demand. The article of the contract upon which the suit was based is as follows:

“The contractor shall complete the several portions and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to wit, September 1st, 1913; and in the event the contractor fails to complete the same within the time specified, he forfeits the sum of $10.00 per day for every day it remains incomplete on his contract as liquidated damages; and party of the second part (the trustees) shall deduct the same out of the contract price if sufficient funds then remain in their hands; otherwise party of the first part to pay same at Paducah, Texas, on demand.’’

This is a contract to build a church according to certain plans and specifications, and to complete the same by the 1st day of September, 1913. The damages for failing so to complete the building would necessarily be uncertain and difficult to arrive at under the ordinary rules of law. The compensation for the breach was evidently fixed in consequence of the difficulty in ascertaining the damages. Indianola v. Railway Co., 56 Tex. 606-608; City of Marshall v. Atkins, 127 S. W. 1151.

It has been held that contracts to pay a certain sum per day after a given time can be recovered as a liquidated demand. Collier v. Betterton, 87 Tex. 440, 29 S. W. 467; Brown Iron Co. v. Norwood, 69 S. W. 253; Orenbaum Bros. v. Sewell, 153 S. W. 905. Especially is this the rule where the damages are difficult of ascertainment. In this case appellaoA sought to prove that the church used the courthouse and a church belonging to another denomination, without paying anything for the use thereof, and here urges no damages were sustained by the ap-pellees. This testimony we think irrelevant. The question would be the value of the use of the building during the time it should have been in use after September 1st. This case certainly falls under the rule above stated. We think from the contract the intention of the parties is clearly expressed to pay $10 per day as a liquidated sum. It is stipulated that the same shall be deducted from the contract price if sufficient funds remain in the hands of the trustees; otherwise the contractor was to pay the sum on demand. We see no room to construe a different meaning from the one expressed in the contract, especially under the particular circumstances of the subject-matter of the agreement. Yetter v. Hudson, 57 Tex. 604; Eakin v. Scott, 70 Tex. 442, 7 S. W. 777; Orenbaum v. Sewell, 153 S. W. 905, and authorities cited. These assignments will be overruled.

The fourth, sixth, and seventh assignments present error in the action of the court in admitting certain carbon copies of letters from parties representing the appellees to the Texas Fidelity & Bonding Company, during the month of December, 1913, and January, 1914. The objection is that they are copies, and not originals, and that no notice was given to produce the originals. It is suggested by the appellees that the matter of the suit was such as to give appellant notice that such evidence would be demanded and offered, citing Presidio County v. Clarke, 38 Tex. Civ. App. 320, 85 S. W. 475. We are inclined to think the suit is not sufficient for that purpose. The suit was on the contract, and not on the letters. It has been held in this state that carbon copies of letters are not admissible in the absence of notice to produce the original, and that such letters are in the same class with letter press copies. McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604; Thompson v. Berg, 10 Tex. Civ. App. 200, 30 S. W. 454. All of these letters appear to have been .written after the one appellant offered to show the first notice of default on the part of Walsh and received by the bonding company. They were only admissible for that purpose, as we take it. However, there was no injury shown to have resulted to appellants by their admission. The trial was before the court, and we will not presume he considered them as evidence of the amount due by the bonding company to appellees. No injury being shown, these assignments will be overruled. In doing so, however, we desire to say we believe the court should have excluded them upon the objections made.

The fifth assignment will be overruled. We think the evidence offered was sufficient to show that the letter of December 31, 1913, was from the bonding company, or written by its authority. It is shown to have been received in due course of mail in reply to a letter addressed to the bonding company. There was no error in its admission.

By the ninth assignment it is urged the court erred in rendering judgment against the Texas Fidelity & Bonding Company, because under the conditions of its bond it was the duty of appellee to properly notify the company of any default on the part of Walsh, the contractor. The evidence shows that Walsh made default in failing to complete the building on September 1, 1913, and the company was not notified of that fact until December 16, 1913. The clauses of the bond relied upon are as follows:

“Provided, however, this instrument is executed by the company as surety upon the following expressed conditions, which shall be precedent to the right of recovery hereunder.”

Section 3 is as follows:

“If said principal shall in any manner default in the performance of any matter or thing in said contract specified to be by said principal performed, or in the event of said principal abandoning the work provided by said contract to be done by said principal, the obligee shall immediately so notify the company, and thereafter the company shall have the right at its option to assume and sublet said contract and to proceed thereunder as if no default or abandonment had occurred; and if the company elect to assume said contract, all moneys agreed therein to he 'paid said principal, and which at the time of default be due the principal, shall thereupon become payable to the company, and shall be paid to it, anything to the contrary in said contract notwithstanding.”

The seventh provision of the bond is:

“None of the conditions or provisions contained in this instrument shall be deemed waived by the company unless the written consent of such waiver be duly executed by its president or active vice president, and its seal be thereto affixed, duly attested. Nor shall this instrument, or any rights thereunder, be assignable unless with a like consent duly executed and attested as aforesaid.”

The ninth provision is:

“All notices and other evidence required by this instrument to be furnished by the obligee to the company shall be in writing, and shall be forwarded by registered letters, addressed to the company at its principal office in the city of Waco, Texas.”

The evidence in this case discloses that the appellant company wrote several letters to the appellees of inquiry, with reference to the work on the building by Walsh under his contract; to which it received no reply until the letter dated December 16, 1913, was written, and in which they inclosed Walsh’s letter to them. The letter from Walsh is dated December 14, 1913. Therein he notified the trustees that he would be compelled to leave the contract up to the ap-pellees to do as their best judgment should suggest. The evidence is conclusive that this is the first notice the appellee gave the bonding company that Walsh had not complied with his contract. Mr. Drummond, the secretary and treasurer, or who had charge of the correspondence, testified:

“I did not consider he had defaulted until that time, and I knew our bond provided for $10 per day penalty. We were resting on that clause. We expected the contract to be carried out. We thought any delay after September 1st — we thought we would not say anything, but hold the bonding company for $10 per day.”

The trial court found the notice of default was given immediately after default. It is apparent that the trial court based his finding of facts upon the declaration of Walsh made December 14th, to the effect that he could not proceed with the work. We think the default occurred September 1st, when it was ascertained that the building would not be completedat the time specified in the contract. It is urged in this court by appellees that the term “default,” used in the contract, referred to the act of Walsh in abandoning the contract and the work on the building. We do not agree with appel-lees. They sued on the $10 per day clause, and secured a recovery for that sum against both appellants on the ground that the contract was not completed September 1, 1913. Unless Walsh defaulted on that day, no recovery could he had for the liquidated damages. The trial court found under the contract that Walsh was entitled to a credit of 21 days on account of bad weather. At the expiration of 21 days from September 1st, the court found a default of 84 days, and that appellees were entitled to $840. “Default” is defined to be:

“The nonperformance of a duty, whether arising under a contract or otherwise. In its largest and most general sense it seems to mean failing.” Rawle’s 3d Rev. Bouvier; 13 Cyc. 759.

If a defendant failed to make an appearance within the time prescribed by law, we say he has defaulted. In the contract the work was to be completed by September 1st. Walsh did not so complete the work, and hence defaulted under his contract. Under his contract it was his duty to have done so. If he did not, he agreed to pay $10 per day as liquidated damages. The bonding company guaranteed that he would do so, but, as a condition of its liability, it required immediate notice of such default, and this notice, by the terms of the contract, was made a. condition precedent to a right of recovery against it. It was the right of the surety to fix the boundary of its obligation to guarantee the performance of the contract by the contractor. The obligees, in order to hold the surety on the obligation cannot deviate from the terms of its contract. The principle is so well settled that quotations from authorities will not strengthen it. National Surety Co. v. Long, 125 Fed. 887, 60 C. C. A. 623, is a case very much like this. Luling Oil Mfg. Co. v. Gohmert, 50 Tex. Civ. App. 606, 110 S. W. 772.

This bond contains the mutual covenants of the parties — covenants by the surety company that Walsh the principal should construct the building according to the terms of the contract, and that, if he failed to perform the contract in the time and manner therein specified, the trustees would immediately notify the surety, and that the latter might then take the contractor’s place and complete the building. The appellees, the trustees in this case, failed to keep their covenant before the surety company had in any way failed to comply with those which it had made. On this ground they cannot enforce the fulfillment of the covenants of the surety company. He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform.

It is urged by appellees that article 5714, R. C. S., renders the provision in the bond requiring notice void. The statute declares void stipulations in contracts requiring notice to be given of “any claim for damages” as a precedent condition “to the right to sue thereon” if less than 90 days. We do not think this article applicable to contracts of this kind. The notice required in this case was not the claim for damages, but to notice of “default” by the principal. The statute does not apply to mutual and reciprocal obligations which determine the rights of the parties under the contract. Under the bond it was necessary to give immediate notice of default in order to bind the bonding company. Under the statute the liabilty under the terms of the contract is complete. The failure to give the notice thus referred to is a waiver of a right for damages thus accrued under a valid and binding contract. If notice of default is not given in this case, no right of action for damages ever existed; hence there was no waiver of such damages involved.

The tenth assignment complains that the judgment is erroneous because the facts show there were changes in the plans and specifications for the church. The trial court finds the alterations made were immaterial, and we think his finding is sustained by the evidence. The bond with reference to this matter stipulates:

“If any change or alteration by the principal and obligee be made in the plans and specifications for the work mentioned in said contract, the obligee shall immediately notify the company of such changes or alterations, giving a description thereof and stating the amount of money involved by such change or alterations, provided, however, that when the costs of said change or alterations shall in the aggregate amount to a sum equal to 10 per cent, of the penal sum of this bond no further change or alteration shall be agreed upon by the principal obligee until consent of the company shall first be obtained thereto.”

The bond provides for notice in case of any change, but it does not require its consent thereto, unless the costs shall aggregate 10 per cent, of the bond; but we do not understand' from the above clause that when the change is less than the amount, and no notice is given, that it is agreed thereby that it is to be relieved. In this case there is no stipulation that the company shall not be liable if the alteration is less than 10 per cent, of the obligation. We think the stipulation as to the condition precedent should be held to apply to such alterations as shall exceed ten per cent, of the penal sum of the bond, and until that is shown no forfeiture should' be declared.

The contract between Walsh and the trustees provided for making changes and how such changes should be made. It occurs to us that the bonding company, in guaranteeing the performance of the contract, must have known of the provision and the right of the trustees to change the plans and specifications by agreement with Walsh; and, while it stipulated for notice, it made no provision that its consent must be had to such changes where they were less than 10 per cent. Upon the terms of the bond we are inclined to think, under the evidence in this ease and th£ findings of the court, that the right of the trustees to sue upon the contract of indemnity should not be defeated merely because notice was not given. It occurs to us that the rule adopted by the Missouri courts is the correct one; that is, that a few trifling alterations should not defeat the obligation of the bond. The rule which is frequently applied' in cases of voluntary suretyship when there is an alteration, discharging the surety, ought not to apply where the surety is engaged in the business of surety for hire. We think bonding companies, under our statute, who make contracts of indemnity as such, should fall under the rules applicable to contracts of insurance, and their contracts should be strictly construed as to such companies, and no unreasonable right of forfeiture should be allowed, since the contracts are prepared by the company, and, as a rule, the obligations are full of conditions and stipulations for the restrictions of the obligation. General Bonding Co. v. Beckville Independent School District, etc. (Tex. Civ. App.) 156 S. W. 1161; Rule v. Anderson, 160 Mo. App. 347, 142 S. W. 358; Martin v. Whites, 128 Mo. App. 117, 106 S. W. 610; Hiller v. Daman (Mo. App.) 166 S. W. 869.

Clearly, under the provisions of this contract, the bonding company would not be liable for the liquidated damages; and we have also concluded that in the failure to notify the bonding company immediately of the default to complete the building in the time prescribed, that the appellees are defeated from a recovery upon the bond for any amount. It was stipulated by the bonding company that it should, upon notice of such default, have the right, at its option, to assume and sublet the contract, and to proceed thereunder, and that, if it did so, all moneys which were to be paid to the contractor, and which at the time of the default were due the contractor, should become payable to the bonding company, and should be paid to it. While by the terms of the contract it is not necessary to hold that such a right was a valuable one, yet tlie reason for the stipulation by the bonding company is obvious. By taking charge of the contract and the money, they may have saved themselves from loss by damage resulting from a failure to comply with the contract, and they stipulated for this right, which the appellees could not disregard and violate without subjecting themselves to the penalty of a forfeiture of recovery on the bond.

The judgment as to Walsh will be affirmed. The judgment as to the Texas Fidelity & Bonding Company will be reversed, and here rendered in its favor, and that it recover its costs on this appeal and in the court below.

Reversed and rendered in part and affirmed in part.
      <gx=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: I-IENDRICKS, J.

license: Public Domain

text:
    RAYNER v. POSEY et al.
    (No. 653.)

    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1914.
    On Motion for Rehearing, Feb. 6, 1915.)
    1. Deeds <@=>66 — Delivery — Question for Jury — Undisputed Testimony.
    Where two deeds, one from W. to R. and the other from R. to W., were executed and delivered on the same day, and, R. being dead, W. was impleaded in trespass to try title as a warrantor, and testified that R.’s deed to him was delivered after his deed to R„ and that he had never thereafter reconvoyed the property to R., being interested in sustaining his subsequent deed of the property, through which plaintiff claimed, it was the court’s duty to submit the question of the order of delivery of such deeds to the jury, though W.’s testimony was uncontradicted.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 127, 633; Dec. Dig. <©=66.]
    2. Evidence <@=>230 — Admissions Against Interest — Declarations op Grantor.
    Declarations of a grantor, made before execution of the deed, that he did not claim the land, are admissible as against his grantee.
    [Ed. Note.- — For other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. <@=>230.]
    3. Evidence <©=5230 — Admissions Against Interest — Declarations op Grantor.
    While declarations or admissions of a grantor in disparagement of title are admissible against the grantee, if made prior to. the grantee’s purchase, they are not admissible as against an innocent purchaser.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. <©=>230.]
    4. Appeal and Error <@=>835 — Record—Stipulations — Admissions.
    Where the determination of an appeal in trespass to try title depended on which of two deeds, made and delivered on the same day, was delivered last, and the Court of Civil Appeals determined that that question should have been submitted to the-jury, it would not reverse its decision and affirm by reason of a stipulation, filed in connection with an application for rehearing, by which the parties agreed that the deed from R. to W. was delivered last; the parties not being permitted to stipulate away the record as presented in order to present an issue in form of a question of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. <©= 835.]
    Appeal from District Court, Dubbock County ; W. R. Spencer, Judge.
    Trespass to try title by Alice Rayner against W. S. Posey and others. Judgment for defendants, and plaintiff appeals.
    Reversed, and motion for rehearing overruled.
    W. D. Benson and W. H. Bledsoe, both of Lubbock, for appellant. W. F. Schenck and Bean & Klett, all of Lubbock, for appellees.

       Writ of error pending in Supreme Court.

   I-IENDRICKS, J.

An admission in appel-lees’ motion for rehearing induces this court to change its opinion and its reasons for the disposition of the cause upon this appeal.

This as an action of trespass to try title, instituted in the district court of Lubbock county, Tex., by Alice Rayner against W. S. Posey and George W. Carter, for lot No. 11, in block 133, situated in the town of Lubbock, to which action the defendants pleaded not guilty, innocent purchaser, and the statutes of limitations of three, five, and ten years. The defendants Posey and Carter interpleaded ' certain warrantors in their chain of title, whose rights would necessarily follow the result of the cause, and further reference to their status in this controversy is unnecessary. This cause was tried to a jury, -which, upon a peremptory instruction by the court, returned a verdict against the appellant, the plaintiff in the trial court.

Appellant’s title consisted of the following chain of conveyances: Patent to Hiram G. Ferris of section 1, in block O, Lubbock county, Tex.; conveyance from Ferris of said section to F. E. Wheelock and W. E. Rayner; an agreement between Wheelock and Rayner in 1890 to select a town site upon said section of land, with a stipulation for partition, by the terms of which Wheelock was to receive the even numbers of the lots in the different blocks, and Rayner was to receive the odd numbers of said lots, as shown by the plat of the town site; deed from Wheelock to Rayner, dated January 31,1891, conveying the lot in controversy, in accordance with said agreement for partition; deed from Rayner to Wheelock, dated March 5, 1891, • and filed for record March 16, 1891; deed from Wheelock to Rayner, March 6, 1891; deed from W. E. Rajmer to W. R. Yates, dated April 23, 1S91, recorded same day; deed from Yates and wife to the appellant, Alice Rayner, November 23, 1894, filed for record November 30, 1894.

The appellees, Posey and Carter, claim the same chain of title from the state through the patentee, Perris, including the deed from W. E. Rayner to F. E. Wheelock, dated March 5, 1891, and recorded March 16, 1891, but thereafter, necessarily departing from appellant’s chain of title, and rejecting the deed from Wheelock to Rayner of March 5, 1891, claimed through a deed from Whee-lock to J. P. Merritt, dated January 15, 1907, and by conveyances through intermediate grantors and grantees to the appellees, Posey and Carter.

We are not following the chain of title as introduced in evidence, but in accordance with the status of the record as the opposition titles finally appeared as to the rights of each when the ease closed.

The submission of the peremptory instruction by the trial court, and the compulsory verdict of the jury based thereon, in favor of appellees, is assigned as error, and we are of the opinion, the same as upon the original hearing, that said assignment should be sustained. Appellees’ position is: First, that the burden of proof is upon the appellant, Alice Rayner, and that she must recover on the strength of her own title, and not upon the weakness of the defendants’ title; and, second, the claim is that the testimony in the cause is undisputed that the deed from Rayner to Wheelock, dated March 5, 1801, and filed for record March 16, 1801, was delivered subsequent to the deed from Wheelock to Rayner, dated the same day and filed for record March 6, 1891, and hence that the title to the lot, upon the close of that day, was in Wheelock, and the deed from Wheelock to Merritt of January 15, 1907, and the different conveyances through intermediate grantors and grantees to ap-pellees, Carter and Posey, lodged the superi- or title in the latter.

It is undisputed that Rayner, before either of the two mentioned deeds of March 5, 1S91, was executed, was the owner of the land and of the record title to the property on that date. Wheelock on January 31st, in pursuance of the agreement of partition, had conveyed this odd-numbered lot to Rayner. Ap-pellees’ testimony by Wheelock and other circumstances in the record disclose that on the 5th day of March, 1891 (the date of the two deeds in controversy here), Wheelock and Rayner passed several deeds between them, conveying different lots in the town of Lubbock, according to the plat of said town, and the explanation of Mr. Wheelock why the title of this particular lot was in him at the close of the day is as follows:

“This is the deed I have in my hand from W. E. Rayner to myself, dated March 5, 1891. There is a memorandum on the back of this deed, that I placed there when I filed it away with other papers, after it was recorded. From this deed I can state what property I exchanged with W. E. Rayner for lot 11, in block 133 [the lot in controversy].”

In the deed from Rayner to Wheelock of said date, two other lots were therein included, and, continuing, Mr. Wheelock further said:

“I gave lots 1, 3, and 5, in block 105, * * * for the three lots (including lot ,11 in controversy) in the deed from Rayner to me. After the ■ deed I have teas delivered to me, conveying to me lot 11 in block 1S3, I never conveyed to W. B. Rayner lot 11 in block 133.”

Rayner died previously to the time of this trial, and Wheelock was the only witness ■who testified as to the matter of conveyance or delivery. While he disclosed a consideration — one of exchange — for the deed of Ray-ner to him for lot 11 in block 133, on March 5, 1891, and while he further says that after this deed was delivered to him he never conveyed to Rayner the same property, there is not the slightest explanation in this record from him as to the actuating consideration of the deed executed by him to Rayner, embracing the same property, dated the same day, and ostensibly, according to the logical sequence of ownership, revesting the title in Rayner, lodging it there at the close of that day. This deed from Wheelock to Rayner, dated on the same day, is one of general warranty. In 1890 he had made an agreement with Rayner to select a town site on the section of land conveyed to them by Ferris, and with a stipulation for partition, in pursuance of which he was to convey this odd numbered lot to Rayner. Thirty-five days previously — January 31, 1891 — in pursuance of the partition agreement, he had conveyed said lot, an odd number, to Rayner.

Why he had executed a general warranty deed, and delivered the same previously to the time that Rayner executed another deed to him of the same lot, and at a time when he (Wheelock) had no title to the property, and within such a short time after he had previously conveyed the same lot to Rayner, is totally unexplained; and we think the mere statement by Wheelock, opinionative in its nature, more than 20 years after the execution of his deed to Rayner, and made the same day as Rayner’s deed to him, is insufficient testimony of an undisputed nature for the trial court to take the cause from the jury on the question of the time of the delivery of the deeds; neither do we think that the additional circumstances of the time of recording these two instruments — the Whee-lock deed having been recorded first, and tht Rayner deed last — in connection with the notary’s record, in making his memorandum, or the order shown therein, are of sufficient probative significance, aiding the testimony of Wheelock himself, as that ordinary minds, without any difference of opinion, would say that Wheelock’s deed was delivered to Ray-ner first, and that hence Rayner’s deed to the former left the title in him on the close of the day of March 5, 1891. The warranty deed executed by Wheelock to Rayner, imports an assertion, as evidence, that he was the owner in fee simple of the particular land, at the time he executed the instrument. Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727.

We are not holding that Wheelock, or his privies in estate, on account of the general warranty, and the nature of the deed Wheel-ock executed, are bound by the affirmation in said deed, and are precluded from saying that the Rayner deed was delivered last. We are holding that the execution of the Wheelock general warranty deed of March 5, 11891, is a pertinent circumstance to show— ¿specially in connection with the fact that 85 days previously he had already conveyed the lot to Rayner — that Wheelock owned the land when he conveyed it.

We, of course, agree with appellees' that the burden of proof was on the appellant to show that she had a superior title to that of appellees; but we think, however, the correct rule is that, when the appellant showed the chain of title as it finally appeared at the close of the evidence, the burden was upon the appellee to then show that the deed from Rayner to Wheelock, of March 5, 1891, was delivered last, in defeating what we believe to be the prima facie case of appellant.

When appellant finally introduced her chain of title from Ferris, the patentee, it was a natural order of conveyancing, placing the apparent title in Rayner upon the close of that day. Because it happened that two deeds were dated the same day, from Rayner to Wheelock and Wheelock to Ray-ner, we are unable, from any legal principle advanced, or any sound reasoning suggested to us, to see why the appellant should have the laboring oar to proceed further than the natural sequence and logical order in which the deeds would ordinarily have been executed, apparently vesting said title in Ray-ner at the particular time mentioned. The warranty deed from Wheelock to Rayner, as stated, is an assertion of the fact of ownership, and in connection with the previous conveyance of Wheelock to Rayner, in pursuance of the partition agreement, the prima facie effect of his deed as of that date would necessarily be that it was an instrument conveying title and land owned by him at the time of its execution and delivery.

If the contention were that, though Wheel-oek signed the deed in question, but had never made any delivery whatever of the same (as we thought deducible on the original hearing), the fact of the record of the instrument and the possession of the deed by the grantees, in connection with the presumption that a deed is delivered on the date of its execution, would clearly put the burden of proof in such a case upon the ap-pellees to prove such nondelivery. The Supreme Court of Illinois, in the case of Tuni-son v. Chamblin, 88 Ill. 379, was so strongly impressed with the doctrine of presumptive delivery by possession that it used the following language in that case:

‘When a deed, duly executed, is found in the hands of a grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. Otherwise, titles could be easily defeated, and no one could be regarded as being secure in the ownership of land. It cannot be that a grantor may assail a conveyance 15 or 20 years after a deed has been made, and recover the land by merely swearing he never delivered the deed. The unsupported evidence of .a grantor cannot be permitted to have such effegt, especially when the evidence of such a grantor is, in many material matters, contradictory, and who seems to act on a low moral plane. To so hold would render all titles insecure, and would be disastrous in the extreme.”

We are not adopting the expressions as to the enunciation of legal principles to the extent indicated by the Illinois Supreme Court, or that the expressions of the court as to the grantor in that case are applicable to Wheel-ock here, but are merely quoting the same as bearing upon appellees’ proposition as to the undisputed effect of testimony in similar cases — that case, one of nondelivery; this case, one of time of delivery. Appellees say it is true that Wheelock’s deed to Rayner was delivered; but they say it was delivered at a time when he had no title, though he executed a warranty deed, and he is saying it more than 20 years after the transaction occurred, without any explanation in this record why he executed a deed ostensibly asserting ownership of the property attempted to be conveyed.

We think the case of Breen v. Morehead, 101 Tex. 254, 136 S. W. 1048, Ann. Cas. 1914A, 1285, by the Supreme Court, has no application whatever to this case. Necessarily, as decided by the Supreme Court, we would hold that a purchaser is not bound to search the records previous to the origin of the title of his vendor for the purpose of ascertaining conveyances by his vendor at a time when the record did not indicate that his’vendor had any title.

On account of the character of the deeds from Rayner to Yates and Yates to Alice Rayner, the appellant, the latter is not able to say that Wheelock and his privies are estopped upon his warranty. Rayner conveyed to Yates such lots only in certain blocks as he owned at the date of his conveyance. If Wheelock, when he delivered his deed to Rayner, had no title to convey to Rayner, and thereafter Rayner delivered his deed to the same property to Wheelock, the latter had title upon the close of the day; and when Rayner thereafter conveyed to Yates only “the lots now owned by” him at the time of such deed, if Rayner did not own lot 11 he did not convey it; and Yates’ deed to his daughter, Alice Rayner, the appellant, was upon $1 and love and affection; but, if Rayner’s deed was delivered first and Whcel-ock’s last, appellees had constructive notice of the latter deed, and cannot recover.

In reverting- to the title of Wheelock’s grantees, the question also of innocent purchaser in the condition of this record is of no weight or legal significance in the cause. If the jury, on another trial, find upon the whole case that Rayner’s deed to Wheelock was delivered previously to the deed from Wheelock to Rayner, of date March 5, 1891, the cause is ended in favor of Alice Rayner, and the converse proposition is likewise true in favor of the appellees. Again, if they should find that the two deeds of that date-were connected and a part of the same transaction, so as to make the passing of the deeds-in pursuance of some trade by wbicb tbe two deeds so executed were to leave tbe title in Rayner, it would be immaterial as to tbe time of delivery, so they were delivered.

Upon our former consideration of tbis cause, we construed tbe statement of Wheel-oek to tbe effect that be bad not conveyed tbis property subsequently to the time Ray-ner conveyed it to him, to also have reference to tbe deed of January SI, 1891 (a previous deed executed by him), and while be was not denying under oath bis signature of tbe deed of March 5, 1891, tbe writer was inclined to think that tbe broad statement of tbe witness quoted by us left the question in tbe record of total lack of delivery of tbe deed of March 5, 1S91. Tbe condition of tbis testimony is of rather a peculiar nature, and we viewed the record as to what we thought it meant, and as to tbe contentions that might be deducible therefrom, irrespective of tbe manner in wbicb it was argued in tbe brief. Since tbe admission in appellees’ motion for rehearing that Wheeloek’s deed to Rayner was delivered, we necessarily treat tbe ease differently, withdrawing our former opinion in disposing of tbis case but still think on account of tbe reasons herein suggested, that tbe case as to tbe time of delivery, should never have been withdrawn from tbe jury and tbe original judgment, reversing and remanding tbe cause stands as originally decided with tbe further order that tbe appellee be granted 15 days from tbis date to file an amended or additional motion for rehearing.

We think tbe three years statute of limitation is not applicable.

On Motion for Rehearing.

Tbe appellees, as a part.of their motion for rehearing in tbis cause, submit and file tbe following agreement:

“It is admitted by appellant, Alice Rayner, that tbe deed from F. E. Wheelock to W. E. Rayner, dated March 5, 1891, conveying lot 11 in block 138 to W. E. Rayner, was delivered before tbe deed from W. E. Rayner to P. E. Wheelock, dated March 5, 1891, was delivered, and that the record affirmatively shows that fact; in other words, that the deed from W. E. Rayner to E. E. Wheelock, dated March 5, 1891, was delivered after the delivery of the deed from E. E. Wheelock to W. E. Rayner, dated March 5, 1891, and that both were delivered on the same day.
“This agreement is made for tbe purpose of settling the disputed issue of the time of delivery, and of presenting it to the court in the form of a question of law for its decision.”

We held that upon tbe record tbe question of tbe time of delivery of tbe deed of date the 5th day of March, 1891, executed by Wheelock to Rayner, for tbe property in controversy, was a disputed fact for tbe jury. Appellees are still contending that tbe testimony of Wheelock, to tbe effect that, after tbe deed from Rayner to him was delivered, be never conveyed to Rayner tbe same lot, is undisputed, and upon tbis bearing presents tbe agreement signed by counsel for appellant, to close tbe question.

Referring to our opinion, in wbicb we held, for reasons indicated therein, that tbe question of tbe time of delivery was a disputed question, we make tbe following additional observations: Tbe testimony of Wheelock, in tbe nature of an opinion, delivered over 20 years after tbe transaction, and being a party to tbe suit, the jury would have bad tbe right to have rejected. 1-Ie was a party to tbis suit, having been impleaded as a warrantor. Tbe Supreme Court of the United States said in the case of Sonnentbeil v. Brewing Co., 172 U. S. 408, 19 Sup. Ct. 236, 43 L. Ed. 495:

“They were all apparently interested in sustaining the deed., and in denying all knowledge of a fraudulent intent; and while the jury has no right to arbitrarily disregard the positive testimony of unimpeached and uncontradicted witnesses, * * * the very courts that lay down-this rule qualify it by saying the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact.”

Tbis rule, following tbe Supreme Court of tbe United States, was adopted in tbe cause of Burleson v. Tinnin, 100 S. W. 351 (writ of error denied), and is announced in numerous cases: Railway Co. v. Johnson, 23 Tex. Civ. App. 192, 55 S. W. 772; Franklin Life Ins. Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 203; Heierman v. Robinson, 26 Tex. Civ. App. 491, 63 S. W. 657; McCormick v. Kampmann, 109 S. W. 493; Galveston, H. & S. A. Ry. Co. v. Murray, 99 S. W. 148; and by this court in Groves v. Whittenberg, 165 S. W. 891.

Again, just before the conveyance of the particular property in controversy by Wheelock to Merritt, one C. A. Pierce testified that Wheelock made tbe declaration that be did not own lot 11, block 133, tbe same property. Declarations of a grantor in a deed, made before its execution, that be did not claim tbe land, are admissible against bis grantee. Snow v. Starr, 75 Tex. 411, 12 S. W. 673. See, also, Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40; City National Bank v. Flippen, 66 Tex. 610, 1 S. W. 898. While it is true that declarations or admissions in disparagement of title are admissible against tbe grantee of tbe person making the same, if made prior to tbe grantee’s purchase, they are not admissible as against an innocent purchaser. Ellis v. Stone, 4 Tex. Civ. App. 157, 23 S. W. 405.

We held in our former opinion, and repeat here, on account of tbe condition of tbe record, tbe sole question involved is one of delivery, and tbe question of innocent purchaser under Wheelock has no relevancy to tbe controversy. Devlin on Deeds, vol. 1 (3d Ed.) § 266, says:

“Where there is positive evidence that a deed was delivered at its date, and it is shown in addition this deed was ready for delivery at that time, and that its delivery was practicable, the evidence, consisting of verbal admissions, and the testimony of prejudiced parties to establish a delivery at a different time, cannot be regarded as convincing in a proceeding in equity.”

The case of McCullough v. Day, 45 Mich. 554, 8 N. W. 535, rather hears out Devlin’s statement, and is cited by us as referable to the issue of time of delivery, as a jury question.

This record does not affirmatively show, as an undisputed fact, that Wheelock, on the 5th day of March, 1S91, delivered his deed to Eayner before Rayner delivered the deed to him (Wheelock) embracing the same .property; and this court, upon full deliberation, refuse to be bound by such an interpretation and such an addition. If this agreement were made in the lower court, it should have been incorporated into the record. As we view the cause, if it is a fact that Wheelock’s delivery was previous to Rayner’s there was nothing to litigate; the title would be necessarily in appellees. We went as far, and probably further, than the rules of law would admit in writing the former opinion on rehearing, upon admission of a fact by appellees against his interest; but we are unwilling to go to the extent of affirming this cause upon an agreement as to what the record shows, as the cause is necessarily tried upon the record as it is made and forwarded to this court upon appeal, and not upon a different record made thereafter. Neither should we permit a record to be agreed away, for the purpose of presénting an issue “to the court in the form of a question of law, for its decision.”

In behalf of the learned trial judge, who peremptorily instructed a verdict in this cause, it may be that such an agreement was made in the lower court, and, if so, neither is appellant’s counsel to be criticized for attempting to stay with his agreement. If made in the lower court, as attempted to be added to the record here, the trial judge-could have done no more nor less than he did. We are convinced, however, as the record speaks here, the evidence is ample as a jury question.

The motion for rehearing is in all things overruled.
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