text:
    SMITH, Sheriff, et al. v. BUCKHOLTS STATE BANK et al.
    (No. 5753.)
    (Court of Civil Appeals of Texas. Austin.
    March 7, 1917.)
    1. Process <@=^33 — Service oe Citation — Tíme eoe Answer.
    A citation, commanding the defendants to answer the petition five days before it was filed, which was an impossibility, was fatally defective.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 12, 13, 27.]
    2. Process &wkey;>24 — Citation—Uncertainty-Intendment.
    The want of proper certainty in a citation cannot be supplied by construction or intendment.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 9, 19.]
    3. Judgment &wkey;>17(9) — Citation—Statote.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, prescribing the requisites of a citation, must be strictly complied with, and a citation in any respect omitting a requisite will not support a default judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31.]
    4. Process <&wkey;24 — Citation—Date oe Filing Petition.
    A citation was fatally defective where it failed to state the true date of the filing of plaintiff’s petition, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, as such requirement is mandatory and must be observed.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 9, 19.]
    Error from District Court, Milam County; J. C. Scott, Judge.
    Action by the Buckholts State Bank against R. S. Smith, sheriff of Bandera County, G. D. C'ox, W. J. Davenport, G. Hicks, W. J. Davenport, Sr., and others. Suit dismissed as to the other defendants, and default judgment against the named defendants, and they bring error.
    Reversed and remanded.
    W. S. Ethridge and H. C. Duffy, both of Bandera, and Henderson, Kidd & Gillis, of Cameron, for plaintiffs in error. Morrison & Lewis, of Cameron, for defendants in error.
   RICE, J.

On the 26th day of May, 1914, the Buckholts State Bank recovered judgment in the district court of Milam county against I. B. Williams and A. J. Stone, jointly and severally, for the sum of $2,974.11, together with interest and costs of suit, decreeing foreclosure of its mortgage -lien on 51 head of cattle belonging to Williams, providing for the issuance of order of sale in satisfaction of said judgment. This suit was originally brought on the 24th day of March, 1915, against R. S. Smith, sheriff of Ban-dera county, Tex., G. D. Cox, W. J. Davenport, G. Hicks, J. F. Haby, J. W. Short, W. J. Davenport, Sr., and C. Lewis, sureties on the official bonds of said sheriff, and against O. Thellm'an and J. E. Barnett, all residents of Bandera county, alleging that it had placed an order of sale in the hands of such sheriff, with indemnity bond, requesting that he levy upon and sell said cattle in satisfaction of such judgment, further alleging the insolvency of Williams and Stone, and seekT ing the recovery of damages against Smith and his sureties for failing and refusing to sell certain of said cattle levied on under such order of sale, alleging that Barnett and Thellman, who were in no way connected with said officer as sureties, claiming prior liens on said cattle, conspired with and fraudulently prevented him from making the levy upon and sale of such cattle, whereby it suffered loss, praying for judgment' for its debt, interest and costs of suit Service was had upon all of the defendants more than five, but less than ten, days before the appearance day of the next term of court, except Barnett, who had never been served. On that day, however, no answer having been filed by any of the defendants, an interlocutory judgment by default was taken against all of them except Thellman and Barnett, and subsequently during the same term, the case was dismissed by the bank against Thellman, Barnett, Haby, Shaw, and Lewis, as well as all of its cause of action, except that part alleging failure and refusal of the sheriff to sell the cattle under said order of sale, and judgment final was entered against the other defendants for the sunt of $1,005, being the value of the cattle which had been levied upon, but which the sheriff had refused to sell, together with all costs, from which judgment this writ of error was sued out.

We will pretermit a discussion and decision of the question raised by the first assignment of error, which claims that, this being a common-law action for damages, it was improper for the hank to have dismissed its suit and the cause of action against the parties named, and take judgment by default against the others, because none of them was served with citation for a sufficient length of time to justify such action upon the part of the court, for the reason that it is not necessary, in the view that we take of this case, to pass upon and determine such question, but sustain the second assignment of error, which challenges the legal sufficiency of the citation served upon the plaintiffs in error against whom judgment was taken.

The record shows that the petition was filed and citation issued on the 24th day of March, 1915, but the citation states that the petition was filed in the district court of Milam county on the 24th day of April, 1915, and commanded the constable of Ban-dera county, to' whom it was directed, to summon said defendants to be and appear before the honorable district court of Milam county at the next regular term thereof, to be held on the 19th day of April, 1915, the same being the third Monday in sáid month, to answer plaintiff’s petition. So that it appears therefrom that said parties were commanded to answer the petition five days before it was filed, which was an impossibility, and for which reason the citation was fatally defective. See Taylor v. Taylor, 157 S. W. 1184, and cases there cited.

It has been held in Wright v. Wilmot, 22 Tex. 898, and also in McNeil v. Ballinger, 1 White & W. Civ. Cas. Ct. App. § 841, that “the want of proper certainty in” the citation “cannot be supplied by construction or intendment.”

Article 1852, vol. 2, Vernon’s Sayles’ Rev. Civ. Stats., provides that such citation shall be directed to the sheriff of any constable of the county where the defendant is alleged to reside or he, and shall command him to summon the defendant to appear and answer the plaintiff’s petition at the next regular term of the court, stating the time and place of holding same. It shall state the date of the filing of plaintiff’s petition, the file number of the suit, the names of all the parties, and the nature of the plaintiff’s demand, and shall contain the requisites prescribed in article 2180. And it has been held that a citation in any respect omitting a requirement of the law will not support a judgment by default. See I. & G. N. R. R. Co. v. Pape, 1 White & W. Civ. Cas. Ct. App. § 242. And it has also been held that this article must be strictly complied with. Dunn v. Hughes, 86 S. W. 1084; American National Insurance Co. v. Rodriquez, 147 S. W. 678.

The citation, in our judgment, was likewise fatally defective because it failed to state the true date of the filing of plaintiff’s petition, as required by the statute above quoted. It is true, as contended by counsel for defendants in error, that in the case of Pruitt v. State, decided by this court, reported in 47 S. W. 553, where, in a suit brought against the tax collector and his sureties, the citation was dated June 7, 1895, and stated that the petition was filed September 5, 1895, when it was really filed September 5, 1893, and commanded the officer executing it to deliver to defendant “the accompanying copy of the aforesaid petition,” the sheriff served the citation and delivered the copy of the petition on which the proper date of filing was indorsed, it was held that the copy of the petition was a part of the citation and corrected the erroneous date therein. But, on certified question to the Supreme Court in that case, such ruling was held to be error, Mr. Chief Justice Gaines stating that the file mark is merely the memorandum of the clerk, and no part of the petition, and that the court was not authorized to presume that the copy of the petition served upon the defendant 'Pruitt .contained a copy of the clerk’s file mark. See Pruitt v. State, 92 Tex. 434, 49 S. W. 366. It has frequently been held that it is absolutely essential that the citation should state, not only the true date of the filing of plaintiff’s petition, but also the number of the suit, without either of which it would be improper to render judgment by default, and that these requirements of the above article are mandatory, and must be observed. See Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060; Dunn v. Hughes, supra; Leavitt v. Brazelton, 28 Tex. Civ. App. 4, 66 S. W. 466; Duke v. Spiller, 51 Tex. Civ. App. 237, 111 S. W. 787; Crenshaw v. Hempel, 60 Tex. Civ. App. 385, 130 S. W. 731. We recently had occasion to review these authorities and pass upon a similar question in Simms v. Miears, 190 S. W. 544, holding in accordance with the views above expressed. Courts have no right to dispense with these mandatory requirements of the statute. In Durham v. Betterton, supra, Mr. Justice Hobby says that the article cited does not m'ore imperatively require that “the names of all the parties to the suit” shall be contained in the citation than that it “shall state the file number of the suit.” The citation must contain the true date of the filing of plaintiff’s petition, without which it is insufficient, and it is immaterial .that the indorsement on the certified copy served on defendants may have stated when it was filed, because, as ruled by Mr. Chief Justice Gaines in the Pruitt Case, supra, such indorsement by the clerk is no part of the petition, and therefore cannot be looked to in passing upon this question. While it has frequently been urged that these are technical objections, still the courts have, in each instance, replied that the mandate of the statute is plain and must be obeyed, and that they had no authority to dispense therewith; their duty being to follow the law as written.

The citation being insufficient in the respects indicated, the court erred in rendering judgment by default thereon, for which reason its judgment must be reversed, and the cause remanded.

Reversed and remanded.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    G. M. CARLETON BROS. & CO. v. BOWEN et al.
    (No. 5704.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 20, 1916.
    On Motion for Rehearing, Feb. 21, 1917.)
    1. Chattel Mortgages <&wkey;22 — Fottjee Advances — Validity.
    A mortgage to secure future advances is valid.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 68.]
    2. Chattel Mortgages <&wkey;110 — FVture Advances — Validity.
    As between the parties a mortgage for future advances is valid for whatever advances may be made by the mortgagee and accepted by the mortgagor, though in excess of the amount which the mortgagee agreed to furnish, where it was the intention of the parties that such additional advances should be secured.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 192.]
    3. Chattel Mortgages &wkey;>110 — Future Advances — Security—Oral Agreement.
    Where the amount to be advanced by a mortgagee is stipulated, the parties may increase it by oral agreement which will be enforced as between them where the mortgage provides that the mortgagee may furnish an additional amount.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 192.]
    4. Chattel Mortgages <&wkey;>110 — Future Advances — Presumptions.
    Where a mortgage to secure future advances authorized the mortgagee to make advances in excess of those stipulated, it will be presumed that an oral agreement for advances in excess of the amount stipulated was made after the amount stipulated in the mortgage had been furnished.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. § 192.]
    5. Chattel Mortgages &wkey;>141 — Future Advances — Validity of Agreement.
    A stipulation in a mortgage to secure future advances that mortgagee should furnish the mortgagor with a stated amount is a contract enforceable by the mortgagor, but a stipulation authorizing the mortgagee at his option to make advances is enforceable, being unilateral; therefore, where a mortgage for future advances provided for the making of stipulated advances and authorized the mortgagee at his option to make other advances, and before such other advances were made the mortgagor executed other mortgages, the original mortgage does not give the mortgagee a paramount lien for such advances, as the contract relating thereto is unilateral.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 239, 244.]
    6. Chattel Mortgages <&wkey;>141 — Construction-Future Advances.
    A crop mortgage was given to secure future advances to the amount of $300 which provided thát the mortgagee might at his option make other advances. Before such additional advances were made the mortgagor executed other mortgages, declaring that they were subject to a lien to a mortgage for $350; and that the mortgagor’s indebtedness to the mortgagee should not exceed that amount. Held, that the mortgagee, having made advances beyond the $¿00, was entitled to a lien to the amount of $350.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 239, 244.]
    7. Chattel Mortgages &wkey;>218 — Future Advances — Disposition.
    Where a crop was mortgaged to secure advances to the amount of $300' and to secure such other advances as the mortgagee at his option might make, the mortgagor can, no advances beyond the amount stipulated having been made, dispose of his crop subject to a lien for that amount.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 222, 467.]
    8. Accord and Satisfaction <&wkey;9 — Chattel Mortgages <&wkey;241 — Extinguishment — Renewal.
    Where a second note is given in part payment of original debt, it does not extinguish that debt, and the renewal mortgage has all the binding force of the original mortgage.
    [Ed. Note. — For other cases, ■ see Accord and Satisfaction, Cent. Dig. §§ 88-91; Chattel Mortgages, Cent. Dig. §§ 503, 504.]
    Appeal from Coryell County Court; H. E. Bell, Judge.
    Action by C. M. Carleton Bros. & Co. against J. E. Bowen and A. A. McNeil. Prom the judgment against the first-named defendant, but in favor of the defendant McNeil, plaintiffs appeal.
    Affirmed in part, and in part reversed and rendered.
    Mears & Watkins, of Gatesville, for appellants. Sadler & Cobb, of Gatesville, for appellees.
   Findings of Fact.

JENKINS, J.

This case was tried before the court without a jury. The court filed its findings of fact, to which no objections are made. From said findings we make the following findings of fact:

(1) On November 19, 1913, J. E. Bowen executed to A. A. McNeil, a merchant, a mortgage on, among other things, his entire crop of cotton to be raised on a certain farm in Bosque county, which, among other things, recites, “Whereas, said A. A. McNeil agrees to make advances during the present year and 1914 to the amount of $300, or more, at his discretion, in goods, wares, merchandise, and provisions, to be furnished to me,” etc., he executes said mortgage to secure such indebtedness. This mortgage was filed for record November 20, 1913.
(2) On January 16, 1914, the said Bowen mortgaged the same crop to appellants, merchants, to secure a note for $452.25 of that date, due October 1, 1914, with 10 per cent, interest and attorney’s fees, and also for advances of merchandise that might be made to Bowen, not to exceed $600. This mortgage contains the following recitation: “There is a lien prior to this in favor of McNeil at Valley Mills for $350.00, and I agree that my indebtedness to McNeil shall not exceed $350.00.”
(3) McNeil had both actual and constructive notice of this mortgage before he made any advances to Bowen.
(4) McNeil advanced to Bowen during 1914 $175.13, of which Bowen paid $74.68, leaving due on such advances $700.05.
(5) Subsequently to Carleton’s mortgage Bowen executed a note to McNeil for $1,008, which was intended to represent the balance of $700.45 due for said advances, and also an additional indebtedness arising from the fact that McNeil had purchased a note on him (Bowen) for $307.55.
(6) The second mortgage to McNeil was intended as a renewal of the former mortgage, and it so recites.
(7) McNeil received from Bowen and converted to his own use said cotton crop of the value of $696.06.
(8) Appellants brought this suit against Bowen on his note to them, and against McNeil to recover the value of said cotton in excess of the unpaid balance of the $300 advances made by McNeil to Bowen, alleging that as to such excess they had a'prior mortgage on said cotton.
(9)The court gave judgment for appellants against Bowen on his note to them for the sum of $557.75 principal, interest, and attorney’s fees, but gave judgment in favor of McNeil, based upon its conclusions of law and fact filed herein, that McNeil’s mortgage was the prior mortgage for the full amount of advances made by him to Bowen, the balance due by Bowen for such advances ($700.45) being in excess of the value of the cotton ($696) received by McNeil.

Opinion.

A mortgage to secure an indebtedness which may be incurred by reason of future advances, or other future indebtedness, is valid. Willis v. Sanger Bros., 15 Tex. Civ. App. 655, 40 S. W. 229; Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684. As between the parties such mortgage is valid for whatever advances may be made'by the mortgagee and accepted by the mortgagor, though in excess of the amount that the mortgagee agrees in such mortgage to furnish, if it appear that it was the intention of the parties thereto that such additional amount should be secured by the mortgage.

Where the amount to be advanced by the mortgagee is stipulated in the mortgage, the parties may thereafter increase such amount by oral agreement, and such agreement as between the parties thereto will be enforced where the mortgage provides that the mortgagee may, at his option, furnish an additional amount, and he does so; but, in the absence of proof to the contrary, such oral agreement will be presumed to have been made after the amount stipulated in the mortgage has been furnished.

The stipulation in a mortgage that the mortgagee will furnish the mortgagor a stated amount is a contract on his part that he will do so, which can be enforced by the mortgagor. Mercantile Co. v. Hause, 184 S. W. 737. But a stipulation in a mortgage that the mortgagor may make advances to the mortgagee at his option is a unilateral contract, and cannot be enforced. Produce & Exchange Co. v. Sorrell, 168 S. W. 76, 77; Owens v. Petroleum Co., 169 S. W. 194; Film Co. v. Morris, 184 S. W. 1061. A unilateral contract, so called, is no contract. Therefore the first mortgage executed by Bowen to McNeil did not at the time of its execution bind Bowen’s cotton crop for an amount in excess of $300, and did not thereafter do so until goods in excess of that amount were furnished Bowen by McNeil. There is no pretense of any subsequent verbal agreement that McNeil would furnish Bowen an amount in excess of $300. Such being the case, we hold that appellants’ mortgage is superior to McNeil’s prior mortgage in excess of $350.

Our reason for holding said amount to be $350 is that the mortgage to appellants, in effect, reserves $350 worth of said cotton crop from said mortgage, and therefore McNeil’s mortgage took effect as to the additional $50 when the same was furnished.

There are some expressions in Willis v. Sanger Bros, and Freiburg v. Magale, supra, which might seem to be against our holding herein, but when all that is said in those cases, read in the light of their facts, is considered, they will be found not to be so. In the Sanger Case the court said that:

The mortgagee “is entitled to advance money and extend credit according to the terms of his contract with the mortgagor.” (Italics ours.)

As we have seen, McNeil’s contract with Bowen, as shown by the mortgage, was to furnish him supplies to the amount of $300. He was not under contract to furnish him more. The court further said:

“A mortgage to secure future advances which on its face gives information as to the extent and purpose of the contract, so far as a purchaser or junior creditor may, by an inspection of the record, by ordinary diligence and common prudence, ascertain the extent of the incum-brance, will prevail over the supex-veming claim of such purchaser or creditor as to all advances made by the mortgagee within the terms of such mortgage [italics ours], whether made before or after the claim of such * *• * creditor arose.”

“According to the terms of his contract,” McNeil was secured by his mortgage to the extent of $300 for advances to be made by him in the future. But it also provided that he might, at his option, advance an amount in excess of $300. By reason of this provision “ordinary diligence and common prudence” required of appellants to ascertain if McNeil had, in the exercise of such option, made advances to Bowen in excess of $300 at the time they obtained their mortgage. Such inquiry made of McNeil, as appears from the record, would have shown that at said time he had made no advances to Bowen whatever, and that he had not agreed with Bowen to make to him any advances in excess of $300. Such being the case, Bowen was at that time privileged to sell or mortgage his cotton crop in excess of $300, free from any claim of McNeil. He did mortgage it to appellants in excess of $350, and they could not be affected by any subsequent dealings between Bowen and McNeil.

As to the second note, it was given in part for the original debt due by Bowen to McNeil, and did not extinguish that debt, and the renewal mortgage had all the binding force on the cotton of the original mortgage, but no more. Willis v. Sanger Bros., supra; Type Foundry v. Bank, 156 S. W. 300; Adams-Burks-Simmons Co. v. Johnson, 51 Tex. Civ. App. 583, 113 S. W. 177; Cantrell v. Cawyer, 162 S. W. 919. The amount of cotton to which McNeil’s mortgage applied was $350, of which he was paid by .Bowen $74.68; balance of cotton to which he was entitled under his mortgage, $275.32 ; amount converted by him, $696.06; amount for which he is liable to appellants, $420.74.

For the reasons stated, the judgment of the trial court is affirmed as to Bowen, but as to appellees the same is reversed, and judgment is here rendered for appellants against appellee McNeil for $420.74, with interest thereon at the rate of 6 per cent, per annum from January 1, 1916, the record herein not showing more definitely when said cotton was so converted than that it was prior to the last-mentioned date.

Affirmed in part, and in part reversed and rendered:

On Motion for Rehearing.

In our original opinion herein we overlooked the fact that the prior mortgage to McNeil was to secure a note for $125 dated November 19, 1913, with interest from date at 10 per cent, per annum, as well as for advances to be made by McNeil. This note, principal and interest, to the date of the trial, December 16, 1915, would have amounted to $149.10, which should be deducted from the $420.74, which we adjudged against McNeil, leaving $270.84.

For the reason stated, the motion for rehearing is granted, our former judgment is set aside, and judgment is here now rendered for appellants against appellee McNeil for the sum of $270.84.

Motion granted.
      ©ssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    ROBERTS et al. v. MUNROE, District Judge.
    (No. 5854.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 13, 1917.
    On Motion for Rehearing, April 4, 1917.)
    1. Courts <&wkey;480(l) — Jurisdiction—Loss of.
    Where an application by a corporate stockholder to obtain a writ of mandamus compelling the officers to permit him to inspect the corporate books was filed with one judge of the district court of a county, the subsequent filing with another judge of a petition to enjoin the stockholder from proceeding with an alleged conspiracy to secure the names of persons interested in the corporation so that he might make false charges to other stockholders does not deprive the first judge of jurisdiction to-entertain the mandamus proceeding.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270, 1271, 1274-1278.]
    2. Mandamus <&wkey;31 — Courts of Civil Ap- - peal — Jurisdiction.
    Rev. St. art. 1595, declaring that the Courts of Civil Appeals or any judge thereof in vacation may issue a writ of mandamus to compel a judge of a district court to proceed to trial and judgment in the cause agreeably to the principles and usages of law, the Court of Civil Appeals has no authority to dictate the judgment to be rendered by the judge of the district court, but merely to require him to proceed.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 74, 75.]

      3. MANDAMUS <&wkey;141 — JURISDICTION — DISTRICT Court.
    As both, the Constitution and statutes authorize district courts and judges thereof to issue writs of mandamus, district judges may, where the facts are undisputed, issue writs oí mandamus in vacation.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 276-278.]
    4. Mandamus &wkey;>129 — Stockholders — Inspection of Books.
    Notwithstanding the statute declaring that a stockholder shall have the right to examine the books of a corporation, one seeking to examine the corporate books, not for the purpose of protecting his own interest as a stockholder, but to obtain information to be used in furtherance of a scheme to defraud stockholders and wreck the corporation, is not entitled to the aid of the courts to secure his right to examine the corporate books.
    [Ed. Note. — For other eases, see Mandamus, Cent. Dig. § 264.]
    5. BIandamus <&wkey;l — Proceedings — Nature of.
    The statutory remedy denominated a writ of mandamus is a civil suit, the common-law prerogative features of the writ having been modified.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 1-3.]
    6. Jury <&wkey;19(3) — Mandamus Proceedings— Jury Trial.
    Constitution Bill of Rights declares that the right of trial by jury shall remain inviolate, and article 5, § 10, provides that, upon timely demand and payment of the jury fee, either party to a cause shall be entitled to a jury trial. Other provisions of the Constitution confer upon district courts and the judge thereof in vacation the power to issue writs of mandamus. On an application for a writ of mandamus filed with the district judge in vacation, respondents filed an answer denying the allegations of the application, made timely' demand for jury trial, and paid the fee in accordance with the Constitution. Held that, in view of the safeguards surrounding the right to trial by jury and of the fact that mandamus has become a civil suit, the district judge cannot in vacation issue a writ of mandamus without jury trial, where the facts are disputed and jury has been demanded; his power being limited to the issuance of writs where the facts are undisputed.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 106.]
    7. Mandamus <&wkey;>31 — Courts of Civil Appeals — Jurisdiction.
    Under Rev. St. 1911, art. 1595, declaring that the Court of Civil Appeals or any judge thereof in vacation may issue a writ of mandamus to compel a judge of the district court to proceed to trial and judgment in the cause agreeably to the principles and usages of law, the Court of Civil Appeals may, where the district judge has in vacation issued a writ of mandamus notwithstanding the facts were disputed and jury trial was demanded, issue a writ of mandamus compelling the district judge to proceed with the trial of the cause, though such writ will require him to set aside his own erroneous order and proceed to hearing with a jury during term.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 74, 75.]
    Original petition by Artemas R. Roberts and. others for writ of mandamus against Richard I. Munroe, District Judge.
    Writ granted.
    Williams & Williams and E. G. Senter, all of Waco, for petitioners. Richard I. Blunroe, Spell & Sanford, and Stribling & Stribling, all of Waco, for respondent.
   KEY, C. J.

On the 13th day of January, 1917, Eli W. Gaffney filed a petition in the district court of McLennan county for the Fifty-Fourth judicial district, against Arte-mas R. Roberts, A. R. Wilson, and the Amicable Life Insurance Company, in which petition he sought to obtain a peremptory writ of mandamus, compelling Artemas R. Roberts, as president, and A. R. Wilson, as secretary, of the Amicable Life Insurance Company, to permit him as a stockholder in that corporation to inspect the stock books and other record books of the company. The petition was properly verified, and for the purpose of this opinion it will be conceded that it alleged facts which, if true, entitled Gaff-ney to the relief sought, unless his right to such relief would be defeated by proof of the facts averred in the answer filed by the respondents in that case. On the same day the petition was presented to Judge Munroe, who set the matter for hearing on the 18th day of January, 1917, but who thereafter, at the request of defendants’ counsel, postponed the hearing until the 25th day of that month. On the 20th day of January, 1917, the Amicable Life Insurance Company filed a petition against Eli W. Gaffney and five other defendants in the district court of McLennan county for the Seventy-Fourth judiqial district, in which suit the plaintiff alleged that Gaffney was not in fact a stockholder in the plaintiff’s corporation; that he and the other defendants had entered into a -conspiracy for the purpose of destroying and wrecking plaintiff’s business; that in order to accomplish that result the defendant Gaffney desired to inspect the plaintiff’s books and records for the purpose of obtaining a list of its stockholders, in order that he might communicate with them and make to them false and untrue charges against the plaintiff, its officers and employes, in the management of its business, etc. On the 20th day of January, 1917, that petition was presented to Judge E. J. Clark, judge of the district court of McLennan county for the Seventy-Fourth judicial district, and he granted a temporary writ of injunction, restraining the defendants from committing the wrongful acts charged in that petition.

On the 25th day of January, 1917, Judge Munroe, whose court was not in session in Blc-Lennan county, and acting in vacation, heard and disposed of the ease first above referred to, and granted to Gaffney, the plaintiff in that case, the writ of mandamus prayed for against the defendants in that case, compelling them to permit him to examine the books and records of the corporation known as tne Amicable Life Insurance Company. They appeared and filed an answer, in which they set up substantially the same facts set up in their petition, upon which Judge Clark had already -issued an injunction in their favor; and they also paid a jury fee, and demanded that the case be put on the jury docket, and tried at the next term of Judge Munroe’s court in McLennan county.

Judge Munroe, as shown by his answer filed in this court, decided that Gaffney was a ■bona fide stockholder in the Amicable Life Insurance Company, and was such when he made request to inspect the records and books of the company; and he held, as matter of law, that he was vested with jurisdiction and power to finally try and decide the case in vacation, and that, even conceding that the pleadings presented a material issue of fact, the defendants were not entitled, as matter of right, to have the case put on the jury docket and tried before a jury in open court; that as such stockholder Gaffney had the right to examine the books and records of the insurance company at reasonable times, regardless of his motives for making such examination; and that the proper preservation and enforcement of his rights in that regard demanded judicial action at that time, and when the district court of McLen-nan county for the Eifty-Eourth judicial district was not in session.

On January 27, 1917, the Amicable Life Insurance Company and Artemas R. Roberts and A. R. Wilson, president and secretary of that company, as relators, filed a petition in this court against Judge Richard I. Munroe, as respondent, in which they pray for a judgment and decree, commanding and requiring him to vacate the order and decree made by him granting the writ of mandamus against relators, and to require the clerk of that court to recall and cancel the same, and to place that case upon the jury docket, etc.

After due notice, hearing, and consideration, this court has reached the conclusion that the relators are entitled to the relief sought.

Preliminary to a discussion of the controlling questions in the case, we deem it proper to say that we do not regard the proceeding had in Judge Clark’s court as in any wise affecting the rights of the parties in this court. We agree with the ruling of Judge Munroe, wherein he held that, as the suit in. his court was filed before the one brought in Judge Clark’s court, the proceedings had in the latter case in no wise affected his jurisdiction in the other case.

If this court has any authority to grant the relief sought in this case, such authority is derived from article 1595 of the 'Revised Statutes, relating to Courts of Civil Appeals, which reads:

“The said courts, or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law, returnable on or before the first day of the next term or during the session of the same, or Before any judge of the said court, as the nature of the case may require.”

It was decided by our Supreme Court in Kleiber v. McManus, 66 Tex. 48, 17 S. W. 249, that the phrase “agreeably to the principles and usages of law,” contained in a similar statute which at that time conferred similar jurisdiction upon the Supreme Court, should be construed as applying to the procedure in the appellate court by which the mandamus was sought, and not as characterizing the nature of that writ when issued against a district judge; and we accept the construction placed upon that statute as the proper one to be placed upon the statute authorizing Courts of Civil Appeals and judges thereof to issue writs of mandamus for the purpose of requiring a district judge to proceed to trial of a case.

We also accept and heartily concur in the doctrine announced by our .Supreme Court in Ewing v. Cohen, 63 Tex. 482, and many other cases, to the effect that, while the statute referred to confers power upon this court to compel a district judge to proceed with the trial of a case, it does not confer authority to dictate what judgment shall be rendered, or 'direct how the district court shall rule upon any question that-may arise during the progress of the trial.

With these preliminary observations, we now pass to a consideration of more important questions. Did the law confer upon the respondent authority, while sitting in vacation, to make the ord^r and render the judgment made and rendered in the proceeding before him? Both the Constitution an'd the statute authorize district courts and the judges thereof to issue writs of mandamus, and it was decided by the Supreme Court in Thorne v. Moore, 101 Tex. 205, 105 S. W. 985, that the statute referred to confers upon district judges, in cases where the facts are undisputed, the power to issue writs of mandamus in vacation. In that case, the facts upon which the district judge had issued the writ of mandamus were undisputed, and therefore the Supreme Court held that he had jurisdiction to issue that writ. The facts did not require, and the court did not decide, what would have been the result as to the jurisdiction of the trial judge, if there had been any controversy as to the material facts.

In the proceeding before this court, the record shows that the respondents in the case disposed of by Judge Munroe had. filed an answer, alleging facts which, if true, should have defeated Mr. Gaffney’s right to examine the books of the corporation. In other words, we hold that if Mr. Gaffney was not a stockholder, or if he sought to examine the books of the corporation, not for the purpose of protecting his own rights as a stockholder, but for the purpose of obtaining information. to he used by him in furtherance of a scheme to defraud stockholders and wreck the corporation, then and in that event he was not entitled to the aid of a court of equity to enable him to accomplish that result, although it is provided by statute that a stockholder shall have the right to examine the books of the corporation. So in this case, as the pleadings raised issues of fact material to the rights of the parties, and as .the insurance company and its officers demanded a jury trial, it becomes necessary to decide whether or not they were entitled to such trial; and, if so, whether or not that fact, and the fact that no method has been prescribed by law for' obtaining juries and testimony for the trial of issues of fact before a judge in vacation, deprived Judge Munroe of jurisdiction and authority to render the judgment and make the order here complained of; and we have reached the conclusion that both of these questions must be decided in favor of the relators in this case. And we also conclude that relators are entitled at the hands of this court to the relief here sought, and the reasons for such conclusions will now be stated.

There is a marked and radical distinction between a common-law writ of mandamus and the writ designated by the same name in the judicial procedure in this state. That distinction is clearly pointed out in the case of Griffin v. Wakelee, 42 Tex. 515, where the court said:

“At common law a proceeding by mandamus did not partake of the nature of a suit between parties, but the relief sought was granted immediately by and through means of the writ itself. It was not in the nature of a judicial writ requiring a defendant to appear and plead. It was a direct and immediate command to the party to immediately fulfill the requirement of the writ, or show, by a return to it, cause why he had not done so. This return, whether true or false, could not be gainsaid or questioned. If sufficient cause to refuse the demand was shown in the return, the writ was discharged, if not, it was made absolute, and immediate obedience to it required under pain of attachment. Prior to the statute of Ann, no issue of fact could be made upon the return. If false, the remedy was not to be had by mandamus, or a judicial proceeding inaugurated by it, but by an action against the respondent for a false return to the writ.
“That the writ of mandamus which may be awarded by the district court under our statute is essentially different in almost every particular is too obvious for comment. The relief sought to be effected through its aid is asked, as in any other case, by a petition alleging the facts by virtue of which it is claimed, with a prayer for such judgment as the facts warrant. The defendant is served and required to answer as in any other suit, and the case proceeds to trial and judgment as any other action, and there is no distinguishable difference in principle in the course of proceeding and result attained in it and. any other suit in the district court. When the judgment is rendered by the court, unless superseded or suspended by writ of error or appeal, it is carried into effect by the appropriate writ for this purpose, termed in the statute a writ of mandamus, from analogy, no doubt, drawn from the nature of the matters complained of in the petition, to cases in which relief is granted by this writ at common law. , Plainly, then, unless we discard principles, and are controlled merely by names, it must be treated, and regarded as a judicial writ, based upon and issuing by virtue of, and to carry into effect, a judgment of the district court. And so it has been in effect held by the Supreme Court of the United States.”

Prom the cases cited, and from others to the same effect, we conclude that the proceeding pending before Judge Munroe, and which was decided and disposed of by him in vacation, was a civil suit; and, inasmuch as he decided the entire case, and awarded the relator Gaffney all the relief he sought, such action upon his part constituted a denial of the right of trial by jury, and violated those provisions of the Constitution which guarantee and protect that right, unless it can properly be held that the provision of the Constitution which confers upon a district judge the power to issue writs of mandamus in vacation is a limitation upon that provision of the Bill of Rights which declares that the right of trial by jury shall remain inviolate, and section 10 of article 5 of our Constitution, which provides that, upon timely demand, and the payment of a jury fee, either party to a case shall be entitled to a jury trial. We are of opinion that these constitutional guaranties should not be construed as subordinate to and limited by the section of the Constitution which confers jurisdiction upon district judges while sitting in chambers. Since the days of Magna Charta the Anglo-Saxon race has cherished and attempted to safeguard the right of trial by jury; and, while it has properly been held that our constitutional provisions upon that subject do not enlarge the right of a trial by jury beyond its scope as known to the common law at the time the Constitution was adopted, still we are clearly of the opinion that such constitutional guaranties apply to and include the ease upon which Judge Munroe was called upon to act; and we are equally well convinced that the provision of the Constitution conferring jurisdiction upon courts and judges was not intended by the framers of that instrument, and the people who adopted it, as a restriction or limitation upon the other provisions securing and protecting the right of trial by jury. On the contrary, keeping in view the fact that the right of trial by jury is incorporated in two separate articles of the Constitution, one of which is the Bill of Rights, which should be construed as paramount to all of the subsequent provisions of the Constitution, and bearing in mind the declaration therein that the right of trial by jury shall remain inviolate, if conflict exists between that and the other section relating to the right of trial by jury on the one hand and the section conferring vacation jurisdiction upon district judges on the other hand, we are clearly of the opinion that the former should control and the. latter yield. However, as pointed out by Mr. Justice Williams in Thorne v. Moore, supra, there is no necessary conflict between the several provisions of the Constitution referred to. In the first place, the section conferring jurisdiction upon judges can be given effect when the facts are undisputed; and, in the second place, if the legislative department of the government desires to have the jurisdiction referred to apply to cases where the facts are in dispute, that department has the power, which it has not so far exercised, to make proper provision for a jury trial in vacation. But as it has made no such provision, and as the respondents in the case then before Judge Munroe had the right to have a jury trial upon the contested issues of fact, we feel compelled to hold that, when they filed their answer raising such issues of fact and demanded a jury trial, the judge had no jurisdiction to proceed with the trial of the case in vacation, and that his action in so doing, and in rendering a judgment or making an order which, if executed, will award to the relator in that case all the relief he sought, renders it manifest that, unless prevented from so doing by some superior authority, he will cause the judgment he has already rendered in vacation to be executed and will not proceed with the trial of the case at the next session or at any other session of the court in which the suit was filed. Unless he is prevented from executing the judgment which he has already rendered, it would be folly to suppose that he would proceed with the trial of the case when his court meets. In fact, there would be nothing then to try. The plaintiff has already obtained a judgment awarding him all the relief he desires, and, if that is not set aside, nothing would be left for either court or jury to decide.

In support of our view that the insurance company and its officers were entitled to a trial by jury, we refer to Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302; De Poyster v. Baker, 89 Tex. 155, 34 S. W. 106; and Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653, In the first two cases just cited, the Supreme Court was construing a statute which authorizes that court to issue writs of mandamus against the heads of the various departments of the state government, except the Governor, and also against district judges. In those cases, the complaining litigants sought writs of mandamus against the Commissioner of the General Land Office; and, in assigning reasons why that court had no power to issue such writs when the pleadings put in issue a material question of fact, the court mentioned the fact that no provision had been made by which that court could organize a jury for the trial of disputed questions of fact. In Teat v. MeGaughey, the court said:

“But we are clearly of the opinion that it was intended neither by the recent amendments to the Constitution, nor by the statutes which have been passed in pursuance thereof, to confer jurisdiction upon this court to try a case on mandamus in which the act which is sought to be compelled may involve the determination of a doubtful question of fact. The machinery of the court is not adapted to the trial of such a cause. The Bill of Rights secures the right of trial by jury, and, while the people doubtless could amend the Constitution so as to modify or limit the right, we do not think any modification was intended by the provision in the late amendments which authorized the Legislature to confer jurisdiction upon this court to issue the torit of mandamus in certain specified cases. We think it was not intended that we should exercise that jurisdiction in any case, unless the officer was under a olear legal obligation to do the act, and the right to have it performed was not dependent upon the determination of aivy doubtful question of foot.” (The italics are ours.)

In De Poyster v. Baker, supra, the court used this language:

“The Constitution, as amended in 1891, authorizes the Legislature to confer original jurisdiction on the Supreme Court to issue writs of mandamus in such cases as may be specified, except as against the Governor of the State. Article 946, Rev. Stats., reads thus: ‘The Supreme Court, or any justice thereof, shall have power to issue writs of habeas corpus as may be prescribed by law; and the said court, or the justices thereof, may issue writs of mandamus, pro-cedendo) certiorari, and all writs necessary to enforce the jurisdiction of said court; and in term time or vacation may issue writs of quo warranto or mandamus against any district judge or officer of the State government, except the Governor of the State.’ This court is not provided with the means of ascertaining the facts in any controversy. It has none of the powers conferred by law upon the district court to take depositions, issue subpoenas, writs of attachment, or other process necessary to the trial of issues of fact; and in this court the right of trial by jury, which is secured by the Constitution to every person demanding it, could not be accorded. We therefore conclude that it was not the intention of the framers of the Constitution, or the Legislature, to empower this court to issue writs of mandamus, except where the facts were undisputed and the right clear and unquestioned.”

In the Allison Case, a statutory- proceeding had been instituted, and upon final trial a a perpetual injunction had been obtained against Allison restraining him from the use of certain premises for the purposes of gaming or keeping and exhibiting games prohibited by law. Allison violated the writ of injunction, and in a contempt proceeding he was fined $100, and upon failure to pay the fine was placed in the custody of the sheriff of the county; whereupon he sued out a writ of habeas corpus in the Supreme Court, and in the course of its opinion that court said:

“It is also insisted on behalf of the relator that the Legislature has no power to confer upon the courts the authority to enjoin the commission of crime or the establishment or continuance of a public nuisance. The Legislature, when not restrained by the Constitution of the state or of that of the United States, has the power to make the law and to provide remedies for its enforcement. We find no express provision in either of these instruments which prohibits the lawmaking power from either extending or abridging equitable remedies. The main argument against the power the Legislature has attempted to exercise by the passage of the act in question is that it deprives the defendant in the action of the right of trial by jury, and therefore violates the provision of our Bill of Rights, which declares that ‘the right of trial by jury shall remain inviolate.’ This may present a serious difficulty in those jurisdictions in which, as at common law, legal and equitable remedies were kept distinct and administered in separate courts. In courts of law the parties are entitled to have the issues of fact determined by a jury, which is not the case in a court of equity. Hence it might be that in such jurisdictions a statute which attempted to confer upon a court of equity the power to try a cause which was previously cognizable in a court of law would be held obnoxious to the objection that it deprived the parties of the right of trial by jury. But under our system, in which law and equity are blended, and the right of trial by jury exists, whether the remedy be legal or equitable, the difficulty vanishes. Before the injunction oould he made perpetual under the statute in question, it is the right of the defendant to have the jury pass upon the facts.”

We have italicized the portion of that excerpt which is pertinent to the question now under consideration.

In all three of those cases, two of which were mandamus suits, the Supreme Court made the distinct declaration that, upon the controverted issues of fact material to the rights of the parties, the litigants had the right of trial by jury; and in the first case it was distinctly held that the provision of the Bill of Bights securing the right of trial by jury was not modified by the subsequent amendment of the Constitution, and the act of the Legislature in pursuance thereof, conferring jurisdiction upon the Supreme Court to issue the writ of mandamus. If that provision of the Bill of Bights was not affected by the subsequent provision of the Constitution and statute conferring jurisdiction upon the Supreme Court to issue writs' of mandamus, we think it must also be held that the provision of the Constitution conferring vacation jurisdiction upon, district judges was not intended to in any wise limit the right of trial by jury.

This brings us, then, to this question: When a case is pending in which a party has the right to a jury trial, and he demands such right, and objects to a trial in vacation, and the judge overrules such demand and objection and proceeds to make an order, the result of which, if complied with, will render it impossible for the case to be tried and the rights of the parties litigated when the court meets, is such action upon the part of the judge tantamount to the refusal to proceed with the trial of the case, and has this court the power, either express or implied, to compel him to undo what he has done by setting aside and canceling the order which would have the result referred to, and in addition thereto compel him when his court meets to proceed with the trial of the case? After earnest and careful consideration, we have reached the conclusion that the article of the statute which confers the power upon this court to issue a writ of mandamus compelling a judge to proceed with the trial of a cause also confers the authority upon us to require him to remove any obstacle which he has placed in the way of, and which, if not removed, will prevent such trial. When a judge, acting in vacation and without authority of law, tries a case upon its merits and renders a judgment or makes an order which, if not rescinded, will result in the plaintiffs obtaining, before' the court meets, all the relief he sought, such action by the judge may well be regarded as equivalent to an express declaration that he will not try the case when the court meets. Schintz v. Morris, 13 Tex. Civ. App. 580, 35 S. W. 520, 825, 36 S. W. 292. And we think it must also be held that the statute, which expressly confers upon this court power to compel a district judge to try a case in open court, confers upon us, by implication, a similar power to restrain him from doing anything in vacation which would prevent a trial in term time.

At the common law, an application for a writ of mandamus was not treated as an ordinary civil action, and could be heard and disposed of by the judge at any time, and as to that proceeding the right of trial by jury and the right of appeal did not exist. But in our practice the name “mandamus” has been applied to a civil suit in which the parties are entitled, whenever the facts are contested, to a trial in open court, as in other civil suits; and we apprehend that the learned judge, who it seems was called upon to deal with this matter while he was holding court in another county, failed to have this distinction in mind, when he held that the respondents in the case before him were not entitled to a jury trial, and proceeded with the trial of that case in vacation. In that holding we are clearly convinced he fell into error, which led to results which this court feels compelled to relieve against by granting the writ of mandamus; but, as we are satisfied that he acted in the utmost good faith, no costs will be taxed against him, and the costs of this proceeding will be taxed against the relators.

Accordingly, a writ of mandamus will be issued by this court requiring the respondent to cancel and set aside the judgment or order entered by him in vacation granting a writ of mandamus against these relators; and to make such other orders as may be necessary to prevent the enforcement of that writ; and also, when the court of which he is the judge meets in McLennan county, to proceed with the trial of the ease in which he granted the writ of mandamus referred to.

Writ of mandamus granted.

On Motion for Rehearing.

This motion has received due consideration, and our conclusion is that it shows no grounds for changing the views announced in our former opinion.

We concede that certain mandamus proceedings may be instituted in which the right of trial by a jury does not exist. For instance, a mandamus proceeding against a district judge to require him to proceed with the trial of a case, or in any other ancillary proceeding in which a writ of mandamus is sought, hut in which the merits of the case are not involved, the right of trial hy jury may not exist. In such a proceeding, it may be proper, with reference to the right of trial hy jury, to apply the same rule that applies in reference to an application for a preliminary writ of injunction or temporary restraining order. But when the proceeding is not ancillary to a pending or contemplated suit, and the only relief sought is a judgment or writ requiring the adverse party to do or refrain from doing a particular thing, a trial judge has no power in vacation to try the case and award the complaining litigant all the relief sought. And in such a case, whenever timely demand therefor is made, and a jury fee paid, the party so doing has the right to have a jury pass upon the contested issues of fact.

Motion overruled.
      <S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^>For other cases see same topic and KEY-NUMBER m all Key-Nnmhered Digests and Indexes


author: ELY, C. J. MOURSTJND, J.

text:
    LIGHT et al. v. HART.
    (No. 5803.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.
    Rehearing Denied April 11, 1917.)
    Sales <&wkey;71(l) — CoNTBACTS—Construction— Subject-Matter.
    A contract for the purchase of 1,000 head of steers “more or less” three years old and up, as hereinafter specified, etc., when construed with a supplemental contract, held unambiguous and to constitute a contract for the purchase of all the cattle of the defendant then on his range, three years old or over, with a “cut back” to reduce the number to a select 1,000 cattle, and another “cut back” of 10 per cent, of the 1,000 head, the consideration to be $45 a head for the 900 head so selected, as provided by the contract, and $30 a head for all that remained.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 189, 196.]
    Moursund, J., dissenting.
    Appeal from District Court, Val Verde County; W. F. Ezell, Judge.
    Action by D. W. Light and another against D. Hart. Judgment for defendant, and plaintiffs appeal.
    Reversed and rendered.
    Geo. M. Thurmond, of Del Rio, and Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellants. .Boggess & Smith, of Del Rio, for appellee.
   ELY, C. J.

The appellants, D. W. Light and Asa H. Jones, sued appellee for damages arising from the breach of a certain contract to sell certain cattle to appellants. The cause was submitted to the jury on special issues, and upon the answers thereto judgment was rendered that appellants take nothing hy their suit. The cause comes before this court as an, agreed case, under the provisions of article 2112, Revised Statutes of Texas. The agreement, so far as necessary to this decision, is as follows:

“First. Plaintiffs’ cause of action is based upon two certain written contracts, true copies of which were attached as exhibits to plaintiffs’ First Amended Original Petition and the originals of which were introduced in evidence upon the trial of this said cause, same being as follows, to wit:
“ ‘The State .of Texas, County of Bexar.
“ ‘This memoranda of agreement by and between D. I-Iart hereinafter styled first party, and Light & Jones, a firm composed of D. W. Light and Asa H. Jones, hereinafter styled second party, witnesseth:
“ ‘First. First party has bargained and sold and agrees to hereafter deliver to second party, one thousand (1,000) head of steers, more or less, three years old and up, as hereinafter specified, the cattle to be delivered being branded (a heart) on-, and there may be other brands and marks on the above cattle, but the above brand is the holding brand, said cattle being located in the pastures and range of first party in Val Verde and Terrell counties.
“ ‘Second. Said second party shall have a cut of ten (10) per cent, on all cattle of the above class delivered up to one thousand head, which ten (10) per cent, cut shall include all cattle of the above class cut out because of defects or otherwise.
“ ‘Third. Should there he moire than one thousand head of cattle delivered of the ages above stipulated, then second party may cut out the smallest steers and shortest aged steers so as to reduce the .number of cattle down to one thousand head, and then out of the aforesaid one thousand head second party may take their ten per cent, cut as in the foregoing' paragraph provided.
“ ‘Fourth. As a consideration for the sale and delivery of the cattle as hereinbefore specified, said second party agree and bind themselves to pay to the first party forty-five ($45.00) dollars per head for each and every steer delivered under this contract.
“ ‘Fifth. First party agrees and binds himself to gather and deliver all cattle under this contract f. o/b. ears, S. P. Ry. Oo. at Langtry, Lozier, or Pumpville, making each delivery at any one of the above stations as first party may deem most convenient to himself.
“ ‘Sixth. Said second party shall have the privilege of taking as many of the two year 'old steers belonging to said first party in the above’ pastures and range as said second party may desire, this privilege being a part of the consideration of this contract, but said second party shall not be required to take any of the said two year old steers unless they so desire, but for each and every two year old steer taken by said second party, they agree and bind themselves to pay the sum of $45.00 per head.
“ ‘Seventh. Said first party shall begin delivering under this contract June 1st, 1915, unless notified by said second party to begin delivery at an earlier date, in which case, said first party shall have ten (10) days’ notice of the time when said second party desires delivery to begin, and said first party shall have as much as six (6) weeks to complete delivery after beginning the same; and deliveries shall be made in four or more bunches as said second party may desire.
“ ‘Eighth. As an earnest obligation said second party has executed and delivered their promissory note in the sum of $6,000.00 due July 1st, 1915, without interest, and the balance of the purchase money shall be paid as each delivery is made until the last delivery, when the money represented by said note shall be credited on the last payment and paid when due, provided the deliveries are completed before the due date of said note.
“ ‘Ninth. First party shall furnish horse and board to one man representing second party in gathering and delivering said cattle.
“ ‘Tenth. In case of any disagreement between the parties to this contract as to whether or not the cattle offered for delivery are three years olcl, then such disagreement shall be settled by toothing the animal, and if the animal shows four large teeth, then the same shall pass for three years of age.
“ ‘Eleventh. The cut of ten per cent, or more as above provided, shall be made on the range and not at the stockyards, provided, however, that the final cut shall be had on the last delivery ; and provided further, that of the culls made during the several deliveries provided for the said first party shall not be required to hold to exceed two hundred and fifty (250) head of culls at any one time, and provided further, that should any of the steers cut out escape so that they cannot with practical effort be delivered again, then the number so escaping and not delivered, shall not be counted as against the cut of the said second party.
“ ‘Twelfth. The said second party bind and obligate themselves to receive, accept and pay for as many as nine hundred (900) head of cattle of the class provided for in the first paragraph of this contract, provided the number delivered is sufficient to make the aforesaid number after the cut provided for of ten per cent, in this contract and under the conditions of this contract.
“ ‘Thirteenth. The cattle sold under this contract are all the cattle in the pastures and range of D. Hart of the classes-referred to, and are the ones inspected by said second party, and said cattle are to remain upon the range until delivery is made, unmoved, the said first party hereby warranting that he has not sold or disposed of any of the cattle above referred to since the inspection by the said second party.
“ ‘Witness our hands this the 5th day of March, A. D„ 1915. .
“ ‘D. Hart, First Party.
“ ‘Light & Jones, Second Party.
“ ‘Pumpville, Val Verde Co.,
“ ‘Texas, May 20, 1915.
“ ‘I hereby agree to sell to Light and Jones, all cut backs from cattle sold to same parties and to be delivered in June and July, 1915 (this being all steer cattle, three years old and up, cut out from steers sold), at ($30.00) thirty dollars per head. These cattle to be received f. o. b. with other cattle and eliminating the holding of cattle for said parties. L. Hart.’
“Second. Plaintiffs contended and insisted upon the trial of this said cause that said contracts were unambiguous, and covered and included all of the steer cattle, three years old and upward, owned by defendant, D. Hart, at the time of making said contracts, on and in his pastures and range in Val Verde and Terrell counties, Tex., and that under the terms and conditions of said two contracts 900 head thereof were to be sold and delivered to plaintiffs at $45 per head, and all of the remainder at $30 per head, but that, if said contracts were ambiguous, it was the agreement and understanding between the parties that defendant was selling and should deliver to plaintiffs all of the said steer cattle, three years old and upward, at the price of $45 per head for 900 head and $30 per head for all in excess of 900 head.
“Defendant contended and insisted upon the trial of this said cause that said contracts were unambiguous, but that the same only included and covered 1,000 head of cattle, of which 90Ó head were to be delivered at $45 per head and 100 head at $30 per head, but that, if said contracts were ambiguous, it was the agreement and understanding between the parties that defendant was selling and should deliver to plaintiffs only 1,000 head of the steer cattle, three years old and upward, then owned by him.
“The trial court held that said contracts were ambiguous, and permitted, over the objection of plaintiffs and defendant, testimony as to the effect of said contracts, and how the respective parties thereto construed and acted under same.
“Third. The case was submitted to the jury' upon special issues, and the jury found, in effect, that it was the intention of the parties to said contract of May 20,1915, that the plaintiffs were only to have and receive thereunder, and in connection with the original contract, 100 head (in excess of the 900 head referred to in the original contract) at $30 per head.
“Fourth. It was an undisputed fact upon the trial of the case that 1,207 head of steer cattle, three years old and upward, had been actually gathered by the said Hart; the defendant, however, refusing to deliver the 20-7 head in excess of 1,000 to plaintiffs under said contracts claiming that said contracts only covered and included 1,000 head, and the excess, or 207 head, were sold to and received by plaintiffs under an independent contract at $43.50 per head.
“Fifth. It is further agreed by parties plaintiffs and defendant that the only question involved upon this appeal is one of law, as to the construction of said two contracts, and that, if the appellate court should hold that the same are unambiguous and covered and included all of the steer cattle three years old and upward owned by defendant, Hart, that this cause should be reversed and rendered in favor of plaintiffs for $2,784.50, with interest thereon at the rate of six per cent, per annum from the 12th day of July, 1915, being- $13.50 per head on 207 head of cattle which were actually gathered by the said D. Hart in excess of 1,000 head, and all costs; whereas, if the court should hold that said contracts were ambiguous and properly explainable by extraneous evidence, or, if not ambiguous, but by their terms covered and included only 10O head, 900 head at $45 per head and 100 head at $30, then this said case should be by the appellate court affirmed, at costs of plaintiffs (appellants).”

The first clause of the contract read in connection with the thirteenth clause, we think, clearly shows that it was the intention of the parties to include all the three year old steers owned by appellees in Val Verde and Terrell counties. In the first clause it is stated that appellee would deliver to appellants 1,000 “head of steers, more or less, three years old and up,” then this is followed by the declaration in the thirteenth clause that:

“The cattle sold under this contract are all the cattle in the pastures and ranges of D. Hart of the classes referred to.”

There is no ambiguity about those clauses. This view of the contract settles the question as to what cattle were to be delivered. If that view be correct, then no question could arise as to what cattle should be included among the “cut backs,” which are described as “being all steer cattle three years old and up cut out from steers sold”; that is, all the cattle cut of the three year old steers and over that appellee owned in the counties named. Language could not he plainer in describing the cattle sold than “all the cattle in the pastures and range of D. Hart of the classes referred to,” and there is nothing in any other clause that contradicts or obscures this plain language. The price of none of the cattle is fixed in the original contract except that of the 900 head culled from all the three year olds owned by appellee, in the manner fixed by the contract by two “cut backs,” the first being to reduce the number to a select 1,009 steers and then another cut of 10 per cent, of that 1,000 steers. In the twelfth paragraph there is a promise to pay the price set out in the contract for the 900 select steers. Afterwards it seems that the parties realized that no price had been fixed on the “cut backs” evidently included in the recital that “the cattle sold under this contract are all the cattle in the pastures and range of D. Hart of the classes referred to.” To fill the omissions in the original contract the supplemental contract was executed by which appellee agreed to sell appellants all cut backs, and to make it more positive, the “cut backs” are described as “being all steer cattle, three years old and up, cut out from steers sold.”

If the construction is put upon the words, “steers sold,” so that they are made to include only the 900 steers, then the cattle cut out from the 900 steers were not only the last cut of 100 cattle, but the first cut of 207 cattle. The first lot of steers was as much “cut out” as the last lot, and the first lot is so treated in the contract. It is provided in clause third that if more than 1,000 cattle were delivered, appellants could cut them so as to reduce the number to 1,000, “and then out of the aforesaid 1,000 head second party may take their ten per cent, cut as is in the foregoing paragraph provided.” This clause fixed the status of the “cut backs” as well as it did the second ones, and when in the supplemental contract the term, “all cut backs” is used, it would, in reason and common sense, include “all cut backs,” whether of the first or second cut. In no place in the contract is the word “cut backs” made to refer exclusively to those under the 10 per cent, cut. The language is plain and unambiguous.

If there be any uncertainty in other parts of the contract as to the cattle to be delivered, every doubt or uncertainty is removed in the last clause of the original contract, and it is plain that appellee sold to appellants all of his cattle of the classes mentioned in other parts of the contract, and the supplemental contract to remove any imagined obscurities and to fix the price reinforces the last paragraph of the original contract by specially including the “cut backs” in the sale. To say that all the “cut backs” were not included in the last contract would be to place appellee in the position of selling the 100 head of steers culled from the selected thousand at a low price and keeping the “smallest steers and shortest aged steers.” Business sense and management would have included all the “cut backs” in second contract, as was done by appellee.

There is no conflict in the language used in the first clause of the contract, wherein the cattle sold are described as “one thousand more or less,” and the language of the last clause, wherein the cattle are described as being all cattle of certain classes owned by appellee. The clauses do not create an ambiguity, but are explanatory of- each other. The number, 1,000 more or less, is merely descriptive, and in perfect accord with other portions of the contract, which show that all the cattle were sold. Appellants in their brief have collected a number of authorities bearing on such contracts and their construction, and sustaining the construction placed on this contract by this court. Day v. Cross, 59 Tex. 595; Mosby v. Smith (Mo. App.) 186 S. W. 49; Morris v. Wibaux, 159 Ill. 627, 43 N. E. 837; Land Co. v. White, 82 Tex. 477, 18 S. W. 603.

The original contract clearly shows an agreement that appellee would deliver to appellants at least 1,000 three year old steers and over that age, and that from the number delivered, if more than 1,000, appellants should have the right to cut out all of them down to 1,000, and from that number should have the right to cut out 10 per cent, or 100 head more. In other words, the contract was for appellants to select out of the cattle delivered 900 head of steers and pay for the same at the rate of $45 a head. It is true that in clause 1 of the contract it is recited that 1,000 cattle had been sold, but that clause must be construed with the second and twelfth clauses, where it is clearly and unequivocally stated that appellants were only bound for 900 head of cattle. There can be no doubt about this proposition. Appellee acquiesces in this statement, and with him we ignore the thirteenth clause and treat the contract as though that clause was not contained therein. Then there can be no doubt or ambiguity as to what number of cattle' were sold, for it is plainly stated that it was 900 head. After fixing that number in the original contract beyond cavil or dispute, the supplemental agreement was made to sell to appellants all the cattle “cut out” of the “cattle sold.” What cattle were sold? Why the 900 head of course, for only that number were described. Then when we fix the number sold it is easy to fix the number “cut out” of it, for it was all the three year old steers delivered or tendered by appellee to appellants, or 1,207 head of steers. Under the clear and unequivocal terms of the contract the first cut were all those in excess of 1,000 steers, then a further cut of 100 head from the remaining 1,000 steers. The only way to avoid the plain terms of the contract is to deny that there were two cuts of the cattle, which, of course, cannot be done with any reason or propriety.

While we could, as hereinbefore stated, consider the contract without reference to the thirteenth clause, which plainly states that all the three year old steers and over were sold, there is no conflict between it and the other provisions of the contract. By its terms it strengthens our construction of the contract, and renders it clear and unambiguous. There is no conflict between it and other parts of the contract.

We have put no stress upon the words “more or less,” because whatever force and effect the word, “more” might otherwise have had is destroyed by the plain terms of the contract as to the number of cattle contracted to be sold. Appellants by the contract could not have been compelled to taire more than 900 head of cattle, and the question as to whether they could have been compelled to take a less number is of no practical importance in this case.

Construing all parts of the original contract together, in the light of the second contract, as should be done, we are convinced that it was a contract for the purchase of all the cattle of appellee, three years old or over, the consideration to be $45 a head for 900 head, selected as provided by the contract, and $30 a head for all that remained.

As agreed by the parties, if this court reached the conclusion, at which it has arrived, the judgment of the lower court will be reversed, and judgment here rendered that appellants recover of appellee the sum of $2,-794.50, with 6 per cent, interest per annum thereon from July 12, 1915, and all costs in this behalf expended.

MOURSTJND, J.

(dissenting). It seems clear that when the parties appended to the original contract the agreement dated May 20, 1915, they intended to sell steers additional to those contracted to be sold in the first contract, and not to supply anything left out of the first contract by inadvertence. Did they intend that Hart agreed to sell all of his three year old steers over and above 900 head at $30 per head? If so, they could have easily said so. What they did say was that Hart thereby agreed to sell to Light and Jones all cut backs from cattle sold to same parties, and then again particularly describe them as all steers “three years old and up cut out from steers sold.” This language is so plain that it cannot be construed to mean all the three year old steers over and above 900 head owned by Hart, and appellants do not plead mistake, so they are driven to admit that resort must be had to the original contract to ascertain what steers were sold, in order to determine to what steers the contract of May 20, 1915, relates. They, therefore, contend that in the first contract Hart bound himself to sell to appellants all of his steers three years old and up, and this contention is sustained in the majority opinion. In fact, it is held that such intention is so apparent that the trial court erred in holding the contract to be ambiguous. It is strange that if parties intended to contract for the sale of all three year old steers in a certain pasture, steers which had been inspected by the prospective buyers, and that they were to pay $45 a head for 900 head and $30 a head for the "remainder, they could not have so provided in plain and unequivocal terms, and it would also be very unusual for parties to a contract to omit the consideration for about 300 head of cattle out of 1,200. It may be that by selecting certain portions of the contract and failing to give effect to others, such an intention can be deduced, but can it be said that a contract is unambiguous if it is necessary to ignore certain provisions in order to give it a definite meaning?

It is true that the first clause in the contract states that Hart agrees to sell 1,000 head of steers, more or less, three years old and up, and that the thirteenth and last clause states that the cattle sold are all of the cattle in the pasture and range of D. Hart of the classes referred to but these are not the only provisions, and if they be construed as making the contract, one for the sale of all steers three years old and up, the parties went to a lot of trouble for nothing. If they contracted to sell all the steers, then the only omission, according to the majority opinion, was the failure to state the price for the steers in excess of 900 head. It is true there is only one provision fixing the price of the steers three years old and up sold to Light and Jones, but that provision is explicit. It is found in paragraph 4, and says that second parties agree and bind themselves to pay to first party $45 per head for “each and every steer delivered under this contract.” If the contract was for the sale of all the steers, then the price for all was fixed at $45 per head, but it is not stated in the subsequent agreement that any mistake was made in the original contract as to the price of some of the steers and that the parties seek to correct such mistake. If the contract was for the sale of all the steers, the provision for a 10 per cent, cut out of 1,000 head was superfluous, and the further provision that Light and Jones could virtually select the 1,000 head before being required to make the cut, if more than 1,000 should be delivered was also uncalled for. The fact that Light & Jones only bound themselves to take 900 head as is shown in paragraph 12, also contradicts the theory that the first contract was for the sale of all the cattle, and that the parties omitted to state the price for those other than the 900. Again, if all of the steers were to be taken by Light & Jones, there would be no occasion for the holding as many as 250 culls and for the cut to be made on the range. In view of all these provisions, is the contract clearly one for the sale of all the steers owned by Hart of the named class, or is it a contract for the sale of 1,000 head of steers, with a 10 per cent, cut, giving the buyers the right of selecting the 1,000 head before making the 10 per cent, cut as best they could, in view of the delivery being made in four or more bunches. It appears to me that the latter construction does less violence by far to the language of the contract than the one contended for by appellant.

I am unable to see any reason for subordinating the other provisions of the contract to the thirteenth paragraph. The following statements made by Mr. Elliott in his work on Contracts, §§ 1514, 1515, are deemed peculiarly applicable to tbis case:

“The actual contract of the parties must be deduced from the entire agreement and from all its provisions considered together, and not from specific provisions or fragmentary parts of the instrument, because the intention of the parties is not expressed by any single part or provision of the agreement, but by every part and term so construed, if possible, as to be consistent with every other part, and with the entire agreement, since the parties could not have intended apparently conflicting clauses in a contradictory sense. Effect must be given to all the provisions and parts of the contract where possible, and no part should he rejected unless absolutely repugnant to the general intent. * * * But while words or clauses in a contract apparently repugnant should be reconciled if it can be done by any reasonable construction, yet a proviso which is utterly repugnant to the body of the contract and irreconcilable with a former clause and repugnant to the general purpose and intent of the contract will be set aside or rejected; likewise, a subsequent clause, irreconcilable with a former clause and repugnant to the general purpose and intent of the contract, will be set aside or rejected.”

That part of the thirteenth paragraph relied upon by appellants is repugnant to the general purpose and intent of the contract. The paragraph was probably inserted for the purpose of preventing Hart from removing from his pasture any steers inspected by appellants, and out of which these purchased were to be selected, and the language used is so inapt as to create a conflict between such provision and other provisions of the contract in which the cattle sold are described. In view of the fact that the other description of the cattle accords with the various provisions hereinbefore pointed out, that part of paragraph 13 relied on by appellants should probably be rejected on the theory that ,the draftsman erred in saying the “cattle sold under,” instead of “the cattle described in.” But, at any rate, it should not be held to control all the other provisions, for, to say the least, such an intention is not plainly apparent.

It is true that if it be held that Hart intended to let the buyers first cut the herd down to 1,000 head and then take 900 at $45 and 100 at $30, it would be reasonable for him to be willing to contract that those cut out in selecting the 1,000 head should also be sold for $30. But at the time of the contract the buyers might not have been willing to take them at that price, and even if Hart was making a concession, it must be remembered that he was avoiding the holding of cattle, and was making an agreement which was susceptible of the construction that he intended to eliminate all cutting and selecting, and just deliver, f. o. b. the 1,000 head of steers as he gathered them, and the buyers would pay him $45 per head for 900 and $30 per head for the other 100.

I have endeavored to show that the contention made’ in appellants’ brief, and sustained in the first part of the majority opinion, is incorrect, and that the language of the contract bears out appellee’s theory much more strongly than that of appellants. Ap-pellee’s contention is expressed in his brief as follows:

“We think it clear that what the parties intended by this contract was that Light & Jones should top out of all of Hart’s three year old and ups, 1,000 head, if he had more than 1,000 head, and this topped 1,000 head Eight & Jones were to buy, subject to a 10 per cent, cut therefrom. In the contingency that there were only 1,000 head of three year old and ups that could be tendered, these Light & Jones were to take at $45 per head after cutting back 10 per cent., or 100 of them. If there were more than 1,000 head, the whole tenor of the original contract shows that Light & Jones by the contract acquired the right to cull them out till they were reduced to 1,000 head. This 1,000 head they were to take at $45 per head, subject to the ten per cent. cut. Clearly, under the contract, they were only buying 1,000 head with a 10 per cent, cut from that 1,000 head. True they acquired the right to pick this 1,000 head out of all of Hart’s three years old and up cattle that were on his range in Val Verde and Terrell counties.”

However, appellee, while contending for his constructiopi in argument in his brief, need, only show that the contracts are ambiguous in order to sustain the judgment of the trial court, the jury having found that his construction of the contract expresses the contract actually made.

The theories advanced by the respective parties and contended for in their briefs, and also presumably before the jury, are supplemented in the opinion of the majority by an additional theory, which is considered to.be deducible from the contract, and under which it is thought the judgment should be reversed. This theory is that if the original contract does not call for the sale of all the steers, then that it calls for the sale of only 900 head, and as it is not provided that there should be any cut backs out of said 900 head, the expressions used in the second contract should be given the meaning of steers cut away from the 900 head and be held to include all the remainder of the steers. Such a theory can only be supported by saying that, as appellants were only bound to take 900 head, the parties in making the second contract meant, by the expression “cattle sold,” to say 900 head. Can it be said that such an intention is clearly apparent? I fail to find any portion of the original contract in which it describes the cattle sold as 900 head. The parties described the cattle sold as 1,000 head, more or less, which means approximately 1,000 head. They said in paragraph 2 that Light & Jones should have a cut of 10 per cent, on all cattle delivered, up to 1,000 head, and in paragraph 13 that the cattle sold were all the cattle, and also that Light & Jones.were bound to take 900 head if enough were delivered to make such number after the 10 per cent, cut had been made. If the steers had risen in value to $60 a head between the date of the contract and' date of deliveries, and the second contract had not been made, appellee would doubtless have ascertained that he had sold 1,000 head of steers and not 900, for appellants would, no doubt, have taken advantage of the terms of the contract and waived their privilege of cutting out 10 per cent. In speaking of cattle sold, did they mean 900 head, or did they mean all, or did they mean 1,000 head. If the matter is so uncertain that a theory not advanced by appellants can be deduced which makes the parties mean 900 and not all, then is it not sufficiently uncertain that appellee’s theory may be correct, and that the parties regarded the. contract as one for the sale of 1,000 head with a 10 per cent. cut. The contract is framed in the language used in the cattle business, and I fail to see how it can be said that the contracting parties clearly contemplated as cattle sold those the buyers were bound to take, and not those they were at liberty to take under the contract. There is indeed much in the contract which indicates that they contemplated 1,000 head as the number sold, with a 10 per cent, cut allowed, but I believe the theory that they contemplated as cattle sold 900 head can find no basis in what they said, but must rest upon construction based upon a certain conception as to what is sufficient in law to constitute a contract for the sale of property. When it becomes necessary to theorize about the intention of the parties as disclosed by the language of a contract, can it be said to be unambiguous? Of course if it were admitted that the parties meant by “steers sold” only 900 head, it would follow that there could not be any which were cut out of those sold, and the words in the second contract would necessarily mean cut away from those sold. If it were admitted that such a construction can be given thereto, it certainly is not clear that the parties used it in any such sense.

Believing as I do that the appellee’s construction does less violence to the language of the contracts than appellants’, but that the court did not err in holding the same' ambiguous, I think the judgment should be affirmed.
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