author: WILLSON, C. J.

text:
    FONTAINE v. DAVIS & POWELL.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1914.)
    1. COMPROMISE AND SETTLEMENT (§ 23) — Evidence — Sufficiency.
    Evidence held sufficient to sustain a finding that defendant agreed that a payment made by plaintiffs should satisfy his claim against them for breach of warranty.
    [Ed. Note. — For other cases,- see Compromise and Settlement, Cent. Dig. §§ 91-94; Dec. Dig. § 23.]
    2. Compromise and Settlement (§ 6) — Doubtful Claim.
    To render valid the compromise of a claim, the matter need not be really in doubt; but it is sufficient if the parties consider it so far doubtful as to make it the subject of a compromise.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.]
    Error to District Court, Bowie County; H. F. O’Neal, Judge.
    Action by C. Fontaine against Davis & Powell for breach of warranty. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Smelser & Vaughan and Turner & De' Loach, all of Texarkana, for plaintiff in error. Rodgers & Dorough, of Texarkana, for defendants in error.

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

   WILLSON, C. J.

Frances Berry, wife of J. H. Berry, owned in her own separate right several tracts of land situated in Marion county, and claimed to also so own a tract of 640 acres situated partly in Marion and partly in Cass county, known as the W. H. Crain 640-acre survey. Mrs. Berry died, leaving lier husband and several children surviving her. By her will she devised the land referred to to her children. February 2, 1906, her surviving husband, without any authority to do so, in consideration of $2,000 paid by appellees, Davis & Powell, who hereinafter will be referred to as “defendants,” and of their undertaking thereafterwards to pay him the further sum of $2,500, by an instrument in writing of that date, undertook to sell and convey to defendants all the timber then growing on said land, except oak and hickory, “that is, six inches in diameter at the stump, or over.” By the terms of the instrument, defendants were to cut and. remove the timber from the land within five years from its date, and within three months thereafterwards were to remove from the land such machinery, houses, etc., as they had placed thereon. The instrument contained a stipulation binding Berry to warrant and defend “the title to said timber unto Davis & Powell, their heirs and assigns, against the claim or claims of any and all persons claiming the same or any part thereof,” and also a stipulation that “at the expiration of said five years all standing timber shall revert to and become the property of the grantors.” It also contained the following with reference to the Crain survey mentioned above: “The last-named tract, to wit, W. H. Crain, the title to which is now in T. L. Torrans, and it is agreed that Davis & Powell shall pay to Torrans the sum to redeem out of the cash above stated, and to have the title conveyed to them by Torrans, and it is further agreed that the title to land shall be held by Davis & Powell until they have received or become satisfied that they have the timber purchased from all the land as above described, and at which time Davis & Powell agree to convey whatever title received from Torrans to the estate of Frances Berry, deceased.”

By an instrument bearing the same date as the one above described, T. L. Torrans, in consideration of $1,885.20 paid to him by defendants, conveyed to them the Crain 640-acre survey mentioned above.

By an instrument dated May 6, 1907, defendants, in consideration of $2,500 paid to them by appellant, Fontaine, who hereinafter will be referred to as “plaintiff,” and the latter’s two notes for $2,500 each — one payable May 1, 1908, and the other May 1, 1909 — conveyed to plaintiff the timber on said tracts of land, warranting the title thereto “against the lawful claim of any and all persons whomsoever.” Among stipulations in the instrument not necessary to mention was one as follows: “It is further agreed and understood that the time given for cutting and removing the timber from said lands is provided for and set out in a contract held by said Davis & Powell, which is turned oyer to me as a part of the consideration of this deed.”

By an instrument dated May 6, 1908, defendants conveyed to plaintiff the title they had acquired from Torrans, as stated above, to said Crain 640-acre survey. As explanatory of the conveyance, the instrument contained the following: “It being the intention of this conveyance to place the said J. C. Fontaine in our place and stead with reference to all agreements and contracts that we have and had with the said J. H. Berry in connection with the sale and removal of timber from the land as hereinbefore described, hereby granting and giving unto the said J. C. Fontaine all our right, title, interest, and claim in and to said timber on the 640 acres of land above described, and known as the Old Pruitt (Crain) place, and subrogat-ing him to all our rights and privileges heretofore acquired by us in the purchase of said lands and timber. It being understood, 'however, that the said J. C. Fontaine is to accept and carry out all agreements and contracts made by us, the said Davis & Powell, with the said J. H. Berry in the purchase, control, and disposition of the lands and timber as hereinbefore set out.”

By an instrument dated July 12, 1909, said Berry, then, as he was when he made the conveyance of February 2, 1906, to defendants, without authority to convey said lands, or any interest in same, or in the timber thereon, undertook, in consideration of $800 paid to him by plaintiff, to sell and convey to said plaintiff the oak timber six inches and over in diameter at the stump then standing on said tracts of land, and at the same time to grant to plaintiff 3 years and 3 months in addition to the five years specified in his conveyance to defendants in which to cut and remove the timber and any other property, such as houses, he might place on the land.

October 1, 1910, plaintiff and Mills & Co. entered into a contract whereby the latter undertook to purchase and erect on the land a mill for the purpose of cutting said timber, and thereafterwards to cut and manufacture-same into railroad ties, etc.

By an instrument dated October 15, 1910, plaintiff, in consideration of $10,000 paid to him by the Texarkana Tie Company, sold and conveyed to it the timber on said tracts of land, conveyed to him as hereinbefore stated. The instrument contains a stipulation binding plaintiff “to warrant and forever defend all and singular the title to said timber unto the said Texarkana Tie Company, its assigns and legal representatives, against the lawful claim or claims of any person or persons whatsoever.” On the same day plaintiff assigned and transferred his said contract with said Mills & Co. to said tie company.

Prior to the date of the transactions between Mills & Co. and plaintiff and the latter and the Texarkana Tie Company, noted above, to wit, on August 2, 1909, the children and devisees of Frances Berry, deceased, who during all tlie time of said transactions and the others hereinbefore mentioned owned the timber on all' the tracts referred to, except the Crain 640-acre survey, commenced suit against J. H. Berry, plaintiff, defendants, and the National Creosoting Company, whereby sáid devisees sought as against the parties just mentioned a recovery of damages for timber cut and removed from the land, and to quiet their title to same. So far as the record before us shows to the contrary, nothing was done in the suit so commenced until February, 1911. , On the 8th day of that month the plaintiffs therein, the devisees aforesaid, filed an amended petition in which they prayed that the defendants therein be enjoined from cutting the timber on the land. A writ of injunction was then issued as prayed for, and on February 11, 1911, the writ was served on the defendants.

Afterwards the suit so commenced and prosecuted was compromised and settled. The terms of the compromise were shown by an instrument dated April 18, 1911, whereby the plaintiffs in that suit, the devisees aforesaid, in consideration of the conveyance to them by plaintiff of the Crain 640-acre survey, subject to a right reserved by him, during a period of 3 years and 3 months thereafterwards, to cut and remove from it all standing and growing timber thereon “as much as six inches in diameter at the ground,” and the payment to them by plaintiff and defendants of the sum of $2,594.40, sold and conveyed to plaintiff “all of the standing and growing timber measuring as much as six inches in diameter at the ground, save and except hickory,” upon all the tracts of land hereinbefore referred to, except said Crain tract, and granted to plaintiff, his heirs and assigns, “an easement in and right to go upon said land to cut and remove the timber so conveyed to him upon the same during a period of 3' years and 3 months, beginning on the date of the execution of this deed.” By said • instrument said devisees, for the said consideration, released all claim they had for damages against plaintiff, “or any other person or - persons or corporation holding under him,” and all claim they had against defendants and the National Lumber & Creosoting Company, because of timber cut and removed from the land, and agreed to dismiss their said suit It was stipulated in the instrument “that all rights granted to the said J. C. Fontaine under this conveyance shall terminate and become void at the expiration of 3 years and 3 months from this date, and that all timber herein conveyed to said J. C. Fontaine and all rights herein given shall revert to and become the property of these grantors 'at the expiration of 3 years and 3 months from the date of this instrument.”

Of the $2,594.40 mentioned in the instrument as having been paid by plaintiff and defendants, it appeared that a portion thereof, to wit, $500, was in fact paid by Judge A. S. Wátlington, then president of the Texar-kana Tie Company, that $1,250 thereof was paid by plaintiff, and that the remainder thereof was paid by defendants. It further' appeared that on November 8, 1911, Watling-ton assigned the claim he had, if any, against defendants, on account of the payment by him of said $500, to plaintiff.

The suit resulting in the judgment from which this appeal is prosecuted was commenced by plaintiff April 17, 1912. In his petition he alleged the facts to be as they have hereinbefore been set out, and prayed a recovery against defendants, on their warranty to him of the title to the timber they sold him of the $1,250 paid by him and the $500 paid by Watlington to effect the compromise referred to above. He also sought as against defendants a recovery of other sums paid by him and his assignors on account of attorney’s fees, taxes, and damages to Mills & Co., which need not be further mentioned here, as he concedes in his brief that he was not entitled to recover therefor as he sought to.

In their answer to the petition defendants alleged, among other things: (1) That the consideration for the conveyance by them of the Crain survey to plaintiff was an agreement on his part to release them of any liability on account of their warranty to him of the title to the timber they had previously conveyed to him; (2) that, after the suit of Mrs. Berry’s devisees attacking the conveyance of the timber made to them by J. H. Berry was commenced, they offered to buy the timber from said devisees, and make good their e warranty to plaintiff, who. refused to permit them to do so, claiming the right in himself to negotiate with said devisees such a compromise of the suit as would give him more time than he was entitled to under his contract with them (defendants) to cut and remove said timber; and (3) as follows, quoting from said answer: “Further specially answering herein, defendants say that, at the time of the settlement of said suit and extension of time secured from said Berry heirs, the defendants denied any liability by reason of any warranty claimed by plaintiff, and that they were released by ' the contract with plaintiff, dated May -, 1908; but, for the purpose of a settlement of all matters between plaintiff and defendants and between them and said Berry heirs by reason of said contract with reference to said timber and of the claims and suit of said Berry heirs, defendants agreed to and did contribute the sum of $850 of the amount paid to said Berry heirs in settlement of said suit, and for the extension of time to cut said timber, executed April 18,- 1911, and said amount was paid by defendants with the express stipulation and agreement between them and the plaintiff that such sum was in full satisfaction and release of any and all claims of plaintiff, against them by reason of and under any warranty of title to said timber claimed against them by plain- [ tiff, and the plaintiff accepted same, and' said amount was paid by defendants in full and complete accord and satisfaction of any and all claims of plaintiff against defendants j of every kind and character by reason of all and any contracts or warranties between them respecting said timber, and of all sums paid out for damages, expenses, or other claims by plaintiff.” ,

The trial was before the court without a jury. Among other findings of fact made by the court were the following:

‘‘(6) On August 2, 1909, the heirs of said Frances Berry filed suit in the district court of Marion county, Tex., against said J. C. Fontaine, Davis & Powell, X H. Berry et al., claiming said lands and timber, as the heirs of their mother, and that under the terms of the will their father had no right to sell the same, or their interest therein; and all the parties defendant were duly served in said suit. That plaintiffs therein afterward filed an amended petition, praying for an injunction, and such injunction against the defendants was granted on February 6, 1911, served February 11, 1911, which stopped the cutting and removing of the timber under said contracts.
“(7) I find that after the service of such injunction, and the refusal of the district judge to dissolve the same, on motion made therefor by the defendants, that the plaintiff, J. 0. Fontaine, and the defendants, Davis & Powell, through their attorneys; opened negotiations with the plaintiff for a settlement of said suit, and during such negotiations, after obtaining terms upon which same could be settled for $2,600, the defendants, Davis & Powell, .advised Fontaine that they would pay $850 of said $2,600 in full satisfaction and-discharge of all claims of Fontaine and the Berry heirs against them, including the warranty herein sued on, or that they would pay the entire amount of $2,600, and give Fontaine the full time mentioned in their contracts with him, with an additional period to equal" the period during which his operations had been stopped by reason of the injunction, and thereafter become the owners of the timber remaining on said land for the period granted by said Berry heirs, in s'ettlement of said suit.
“(8) That the said Fontaine refused to permit said Davis & Powell to pay the full amount of said settlement to the Berry heirs, and have said timber for the additional time after the expiration of his contract with them, and thereupon Davis & Powell agreed to and did pay $850 of said $2,600 paid to said Berry heirs, in satisfaction of all their claims, and for three years’ extension of time to cut and remove timber on said lands, and Fontaine and the tie company, claiming under him, paid the balance of said money to said Berry heirs, and Fontaine thereby acquired the extended time to remove such timber given in said settlement. That said Davis & Powell agreed, to contribute such sum upon the express condition that they, would be released and discharged from any claim of Fontaine by reason of their contracts with reference to such timber, and said Fontaine, in consideration of such payment, released and discharged said Davis & Powell from all claims by reason of the suit of the Berry heirs, and the interference with his cutting of the timber, and of all matters between them arising therefrom, as well -as the warranty of Davis & Powell to said Fontaine.”

The court concluded, as a matter of law, that plaintiff was not entitled to recover on account of the matters set up in his petition, and rendered judgment that he take nothing by his suit.

The record is before this court for review on a writ of error sued out by plaintiff;

Opinion.

The contention, and the only contention, made by plaintiff on this appeal is that the finding of the trial court that the payment made by defendants, on account of the compromise effected, operated to release them from liability to him on their warranty, of the title to the timber is not supported by the testimony.

It is reasonably clear to us that the contention should not < be sustained. At the time, to wit, April 18, 19Í1, the compromise ■was effected, the court was warranted in finding from the testimony that the situation of the parties was about as-follows: Plaintiff, because of the issuance and service, on him of, the writ of injunction, had been.unable since February 8, 1911, to cut or ¡remove any of the timber defendants had sold to him, and by the terms of his' contract with defendants his right to do so would cease on May 1st following. He was asserting a liability on the part of defendants to him because of their warranty of the title to said timber. Defendants were denying any such liability ón their part, on the ground that plaintiff had released them therefrom in consideration of their conveyance to him on May 6, 1908, of the Grain 640-acre survey, and were claiming, if they were liable on their warranty, their liability was only for the value of timber plaintiff ■was prevented from cutting or removing by the injunction -aforesaid, and the value'of such of same as it might appear he would cut or remove before May 1st. The timber within the terms of defendants’ contract with plaintiff then on the land was worth $8,000. Defendants were willing and able to. buy same of said devisees, and offered to do so, and then make good their warranty, as they construed it, by giving to plaintiff the right to cut and remove as much as he could of the timber for a period of time equaling that intervening between the date (February 8, 1911) of the issuance of the writ of injunction and the date (May 1, 1911) of the expiration of the time specified in their contract with plaintiff. The latter was not willing that defendants should so buy the timber, and make good their warranty, because, as he thought, he would not be able,, in the time he would thereby acquire for the purpose, to cut and remove the timber; and he claimed the right to himself negotiate such a compromise of the suit as would give him sufficient time in which to cut and remove same.

Such being the attitude, as the trial court might have found, of the parties at the time the compromise was effected, it is clear, we think, if plaintiff agreed that the payment made by defendants towards the compromise should operate as a satisfaction of all claim he had against them because of their warranty, the court might have concluded that plaintiff’s agreement was not without a sufficient consideration to support it, for there was testimony warranting a further finding by the court that defendants’ contention not only was made in good faith, but might not be without the support of law. Whether it should be said that it appeared that the contention was without such support or not need not be determined, for it is well settled that, “in order to render valid the compromise of a claim, it is not essential that the matter should be really in doubt. It is sufficient if the parties consider it so far doubtful as to make it the subject of a compromise.” 6 A. & E. Enc. Law, p. 713; 1 A. & E. Enc. Law, p. 419; Page on Contracts, § 321; Insurance Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1016; Gilliam v. Alford, 69 Tex. 267, 6 S. W. 757; City of Longview v. Capps, 123 S. W. 162.

To dispose of the contention made, it is necessary, therefore, only to determine whether there was testimony sufficient to support the finding that plaintiff did agree that the payment made by defendants should be a satisfaction of his claim against them on account of the warranty.

It appeared that the witness Mahaffey was one of the attorneys who represented plaintiff and defendant in the defense of the suit brought against them by the devisees of Mrs. Berry, and that as their attorney he represented them in the negotiations with said devisees resulting in the compromise effected. The negotiations, it seems, began several' weeks before the terms of 'the compromise were finally agreed upon. It seems they were concluded as the result of a conference over the telephone between the witness Mahaffey, then at Jefferson, and the attorney of Mrs. Berry’s devisees, then at Marshall. At the time the negotiations were concluded, defendants were with the witness at Jefferson. Plaintiff was in Texarkana, where he resided. After the witness Mahaffey ascertained the terms upon which a settlement could be effected with said devisees, and after he had ascertained from defendants what their position with reference to a settlement on those terms would be, he called over the telephone for plaintiff at Texarkana. Plaintiff, accompanied by Judge Watlington, answered the call. The latter, in the presence of the former, did a part, if not all, of the talking with witness over the telephone. With reference to the negotiations and the terms finally offered by said devisees for a settlement of the matters involved in the suit, and the defendants’ attitude towards same, the witness, on his direct examination, testified as follows: “Some weeks, possibly two or three weeks, before the court was to meet at Jefferson I went to Marshall and held a conference with Mr. Jones and Hindman, who had married one of the Berry girls. * * * I finally on that occasion obtained a proposition from them to this effect, that what is known as the Grain tract of 640 acres should be reconveyed to the Berry heirs, and that then they would accept $2,500 for the timber up to the expiration of the contract of Mr. Eontaine and Messrs. Davis & Powell, and for what Umber had been cut. I don’t know whether their proposition involved an extension of time or not; possibly it did; anyhow not so much time as was ultimately obtained. I reported that settlement by phone back to Texarkana, and talked it over, and we didn't settle at that time. We didn’t make any further negotiations to settle until at court at Jefferson; but anyway the matter rested that way. Q. Do you remember the terms of the settlement as it finally went through? A. Yes, sir. Q. Can you state the terms that finally went through? A. Yes; the terms of the settlement are expressed in this deed from the Berry heirs to Eontaine. * * * Q. Who was present at Jefferson when the terms were finally agreed on? A. Mr. Davis and Mr. Powell were present. It was at Armistead’s office, and I took up the negotiations with Sol Jones at Marshall over the phone, and with Mr. Eontaine at Texarkana — either Mr. Eon-taine or Judge Watlington; I don’t know. They seemed to be together, and I would talk over the phone, and-perhaps talked once or twice, or three times; I can’t remember about that; and I had two or three conversations with Mr. Jones over the phone 'at Marshall. Mr. Davis and Mr. Powell were there in the office of Tom Armistead — that’s where the negotiations took place at the time the settlement was finally agreed upon. * * * Q. I will get you to state whether or not you made any contract with Davis & Powell in the event they paid $850 it would be in full settlement of all their liability on their warranty. A. I can state what transpired there as near as I can recollect it, at Jefferson. Mr. Davis and Mr. Powell contended first that they had been relieved from their warranty by an instrument that had been gotten up on May 6, 1908, some time about that time. Mr. Powell and Mr. Eontaine both would at times try to broach this question of liability on the warranty. I told them I was representing both of them, and I didn’t propose to advise either about those questions. I didn’t think it was the proper thing to do, and I refused to do it; but, when the‘settlement came up, they contended, first, they had been released, and then they contended that they could go and buy the timber from tbe Berry beirs, and make tbe warranty good. They contended tbe warranty only extended about two months longer; but it finally got down to tbe proposition where they got up to tbe point tbat they would pay $800, and that’s all they would pay, otherwise they would go and buy tbe timber from the Berry beirs, and make their warranty good. I telephoned tbat to Texarkana (for me to say whether I was talking directly to Judge Watlington or to Mr. Fontaine, I couldn’t say positively about it); but I put the proposition up to them that this was what Davis & Powell would pay, ‘and tbat it was tbe last cent they say they will pay.’ * * * Mr. Fontaine, or whoever it was doing tbe talking, said Judge Watlington would pay $500, and Mr. Fontaine $1,250; and then another hitch arose. Sol Jones said in getting ready for trial be bad gone out and incurred tbe expense of getting a timber expert to count bow many ties had been cut, and had incurred, I believe, $117 expense for that; but finally, it seems to me, T got him to reduce that amount to some extent, and finally Mr. Davis or Mr. Powell said they would pay tbat.” On bis cross-examination tbe witness testified: “Q. Didn’t Mr. Davis and Mr. Powell contend in fixing tbe amount tbat they would contribute to tbe settlement of tbe Berry beirs, say that was all they would do, because they could settle with tbe Berry beirs, and make good their warranty, and tbat would be the end of it so far as Mr. Fontaine-was concerned, and Mr. Fontaine asked you, and you told him, ‘Yes’? A. Now, I will say I know tbat they said that, and I know it was my belief tbat they could do tbat, if they made tbe warranty good for tbe time. I know I would have giyen it as my opinion that way, and my best recollection is tbat I told Mr. Fontaine tbat; but I can’t be positive on account of tbe lapse of time. Q. You know tbat tbe matter was discussed in your presence? A. I know tbat Mr. Powell and Mr. Davis discussed it in my presence; my best recollection is that Mr. Fontaine was present. Q. They said tbat in bis presence? A. I know they made tbat to me, and I telephoned to Texarkana. Court: Tbat they should be released? A. They said: ‘We will contribute this much to settle this matter, to make the settlement contemplated, and that’s all we will do. If Mr. Fontaine won’t put up the balance, we will buy from the Berry heirs, and make our warranty good, including the time that he has been stopped, and that will' fill the measure of our warranty, and that’s all we will do.’ Court: Did Mr. Fontaine agree to that? A. I stated tbat to Texar-kana ; whether tbe conversation was bad directly with Mr. Fontaine in person, I don’t know about that, because I regarded him and Judge Watlington as one; their interests were joint in it; the authority came back to me in that telephone message to make the settlement on those terms. Q. I believe you stated they were together, and they seemed to be in the same room together? A Yes; I thought they were. I would talk with' one, and then with the other; which one I talked with it is impossible for me to say; I didn’t attach so [much] importance to that because I considered them one. Q. You explained to them fully how tbe settlement could be made, and they gave you authority to make the settlement, contributing these amounts tbat you spoke of? A. Yes, sir.”

Judge Watlington testified: “I beard tbe testimony of Mr. Mahaffey with reference to telephoning me and Mr. Fontaine as to tbe terms of tbe final settlement with tbe Berry beirs. I think Mr. Fontaine was present at tbe time tbat I talked with Mr. Mahaffey over tbe phone. I tried to report at that time correctly to Mr. Fontaine what Mr. Mahaffey said about the settlement; we all discussed it, and what we would do — tbe terms of tbe settlement. I recall tbat Mr. Mahaffey stated to me the terms of tbe settlement, and what Davis & Powell said about what they would do. Yes; Mr. Mahaffey said what they would do, what they said they would do, and they were there talking as I understood it. * * * Mr. Mahaffey said that Davis & Powell would pay $800. We felt Mr. Fontaine would pay the balance, and he said he couldn’t or wouldn’t pay the balance. * * * I told Mr. Mahaffey that I would pay $500 in order to get the matter closed up. Mr. Fontaine had refused to pay more than $1,250; that’s what induced me to pay $500. * * * Tbe best I recollect of it Mr. Fontaine sent for me, or came to me, to talk with Mr. Mahaffey at Jefferson, and when we got Mr. Mahaffey be says, T have got it down to this proposition, and Davis & Powell would pay $800’; I think tbat was tbe amount; and be said, ‘That’s tbe very best they will do.’ I said, ‘Wouldn’t they pay half? Mr. Fontaine thinks they ought to pay half.’ He said, ‘No; that’s their ultimatum; that’s the very best they will do, and there is no use for any further talk.’ I had induced several parties to go into tbe tie company, and I felt in honor bound to get out of it as quick as possible; to get tbe business running, I said over tbe phone to Mahaffey, T will pay $500 myself;’ and he said, ‘Well, I think I can close it on that basis.’ ”

It appearing from tbe testimony we have quoted at such length that Mr. Mahaffey fully advised Judge Watlington in the conversation between them over the telephone of the condition upon which the defendants were willing to pay the sum they did pay on the compromise, that Judge Watlington tried to correctly report to plaintiff, then present, what' Mr. Mahaffey said, and that the latter there-afterwards was instructed to make tbe compromise on the terms he had advised same could be made, we do not think it can be said that the finding of the trial court that plaintiff agreed that the payment to be made by defendants should operate as a satisfaction of his claim against them because of the warranty was without evidence to support it. It is evident from the inquiry Judge Watlington said he made to ascertain if defendants would not pay more than they had offered to pay, and from his statement to Mahaffey that plaintiff thought they ought to pay one-half of the sum demanded by Mrs. Berry’s devi-sees, that both Judge Watlington and plaintiff knew defendants were denying any liability on their part for as great a sum as said devisees were demanding, and that the point of difference between them and plaintiff, so far as the settlement was concerned, was the amount each should pay towards bringing it about. In that state of the testimony, we think the court was fully warranted, in concluding that plaintiff, as well as defendants, understood that the sum to be paid by the latter was to operate as satisfaction in full of - all claim he had against them.

I-Iaving reached the conclusion that the finding of the court in question was supported by testimony, and so disposed of the only assignment in th'e: brief, we need not inquire whether, had we reached a contrary conclusion, the judgment should be affirmed on other grounds or not.

The judgment is affirmed.


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    RICHARDS et al. v. OSBORNE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 24, 1914.
    Rehearing Denied Feb. 28, 1914.)
    1. Payment (§ 63) — Receipts — Plea op Non Est Factum — Necessity.
    Where, in an action on a note, defendants did not plead a receipt, but pleaded a payment, and offered the receipt as evidence thereof, a plea of non est factum was not necessary to enable plaintiff to attack the genuineness of the receipt.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 152-161; Dec. Dig. § 63.]
    2. Appeal and Error (§ 1047) — Harmless Error — Rulings as to Burden op Proof.
    In an action on a note, in which defendants pleaded payment, if the court erred in requiring defendants to prove the execution of a receipt offered in evidence by them, the error was harmless, where they very readily proved its execution, and in fact the genuineness of the signature was admitted, and the court charged that the receipt was prima facie evidence of the payment thereby shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-^152; Dec. Dig. § 1047.]
    3. Witnesses (§ 331%) — Impeachment — Fabrication of Evidence.
    In an action on a note, in which defendants relied on a receipt which plaintiff claimed was without consideration, a photographic copy of another receipt, on which one of the defend-, ants at one time relied, and the signature to1 which the evidence tended to show was not1 genuine, was properly admitted, as it may always be shown that a party has fabricated, or attempted to fabricate, evidence in his favor.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 331%.]
    4. Witnesses (§ 331%) — Impeachment — Fabrication of Evidence.
    In an executor’s action on a note, in which defendants relied on a receipt, where there was evidence that one of the defendants at one time relied on another receipt, which was forged, bank checks bearing the admitted signature of the testator were properly admitted on .the issue.of forgery.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 331%.]
    5. Trial (§ 243) — Instructions—Conflicting Instructions.
    In an action on a note, in which defendants pleaded payment, there was no conflict between an instruction placing the burden on defendants to prove the payment and one which told the jury that a receipt was prima facie evidence of payment.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.]
    6. Appeal and Error (§ 1033) — Harmless Error — Errors Favorable to Appellant.
    If there was a conflict in. such instructions, it was in defendants’ favor, as the burden of proof was on them to prove the payment pleaded, and they were not prejudiced by an instruction that the receipt prima facie discharged this burden.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.].
    7. Payment (§ 70) — Evidence—Admissibility.
    In an executor’s action on a note, in which defendants pleaded payment, evidence that the testator made no considerable deposits in any of the banks where she did business about tue time of the alleged payment was properly admitted.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 203, 204, 206-218; Dec. Dig. § 70.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Action by Beulah Osborne against Frank Richards and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Penix & Eberhart and Gross & Gross, all of Mineral Wells, for appellants. E. B. Ritchie, of Mineral Wells, for appellee.

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

   SPEER, J.

This is an action brought by Beulah Osborne, as executrix of Salina Phillips, against Frank Richards and others, to recover a balance due on a certain promissory note for $1,000. The defendants pleaded specially a payment in the sum of $550. By trial amendment the plaintiff was permitted to plead that the receipt of Salina Phillips, acknowledging the payment of said sum of $550 was without consideration, The case was submitted to a jury under instructions from the court, and a verdict was returned in favor of the plaintiff, and from a judgment based thereon defendants have appealed.

It is first complained that the court erred in requiring the defendants in the action to introduce evidence of the execution of .the receipt for $550 offered in evidence by them. The points made are, first, that there was no plea of non est factum on the part of the plaintiff; and, second, that the action of the court cast suspicion on the validity of the receipt. Appellants’ defense was not predicated upon the receipt, but upon the fact of payment, and the instrument was but the evidence of such fact. A plea of non est fac-tum was not necessary, therefore, to enable the appellee, to attack the genuineness of the receipt. Appellants very readily proved the execution of the instrument; in fact, the plaintiff in the action admitted the genuineness of Salina Phillips’ signature, and, moreover, the trial court instructed the jury that the receipt was prima facie evidence of the payment to Mrs. Phillips of the amount in question. There could not possibly have been any harm to appellants in the ruling complained of, though it be conceded to have been erroneous,

It is also complained that the court erred in admitting in evidence a photographic copy of another receipt, bearing the name of Mrs. Salina Phillips, acknowledging payment from Prank Richards of $550, which receipt was not pleaded or in any wise relied on by appellants in the trial of the case. This ruling was complained of, because the testimony was alleged to be irrelevant and immaterial, and because no plea of non est factum was filed as to the receipt pleaded and relied on. As already indicated, no plea of non est factum was necessary. The receipt, a photographic copy of which was offered, was shown to have been in the possession of appellant Prank Richards, and was relied upon by him at one time to evidence,the payment claimed in this suit. He was given notice to produce the same on the last trial, but asserted it was not in his possession, but in the possession of counsel for the opposite party. There was evidence tending to show the signature to this receipt was not genuine. There was no error, therefore, in permitting the introduction in evidence of the photographic copy. It is always admissible to show that a party has fabricated or attempted to fabricate evidence in his favor. It is a circumstance authorizing a court or jury to look with suspicion upon his cause.

As against the objections made — that is, that the same was irrelevant and immaterial and there was no plea of non est factum —there was no error in permitting appellee to offer in evidence the bank cheeks bearing the admitted signature of Salina Phillips. They bore upon the issue tendered by appellee that the signature of Salina Phillips to one of the receipts held by appellant Prank Richards had been forged. The court properly placed the burden of proof on appellants to establish the payment of the $550 pleaded, and there was no conflict between this charge and the one telling the jury that such receipt was prima facie evidence of payment. But if there was, and it was error at all, it was in appellants’ favor, for undoubtedly the burden, of proof is upon the party pleading payment, and at most it became a question of fact whether appellants had met that burden under all the facts and circumstances in evidence. To instruct that the introduction of-the receipt itself prima facie discharged the burden was clearly in appellants’ favor.

There was no error in admitting testimony to show that Mrs. Salina Phillips made no considerable deposits in any of the banks where she was accustomed to transacting her business about the time of the alleged payment by Richards. It was a circumstance for whatever the jury might consider it to be worth to show that no such payment was made.

The verdict and judgment are attacked because not supported by the evidence on the issue of payment, but we are unable to disturb them. While appellant Prank Richards testified positively to the payment pleaded, and while the subscribing witnesses to the receipt gave testimony from which the jury might well have found in favor of the plea, yet there are many circumstances in evidence, not necessary to enumerate, from which the jury were authorized to conclude that, even though the signature of Mrs. Phillips to the receipt was genuine, yet in fact the sum of money named had not been paid. There was a fair charge, submitting the issue to the jury, and they have found against appellants. The district judge, who had an equal opportunity of observing the witnesses and weighing the circumstances in evidence, has approved the verdict, and we see no reason for reversing his judgment.

All assignments are overruled, and the judgment is affirmed.


author: HIGGINS, J.

text:
    NATIONAL BISCUIT CO. v. BLOCK.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1914.
    Rehearing Denied March 12, 1914.)
    Witnesses (§ 379) — Cboss-Examination — Maps.
    Where, in a suit involving a disputed boundary line, defendant proved on the cross-examination of a surveyor that certain maps drawn by him indicated the dividing line between the properties in controversy to be a straight line without set-off at plaintiff’s southeast corner, as he contended, other maps, signed by the witness, and showing on their face that they were surveys of the block in question, and snowing the set-off, were admissible for the purpose of impeachment, though it appeared that they were made from field notes furnished by others in the witness’ employ.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by M. Block against the National Biscuit Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Baker, Botts, Parker & Garwood, O. E. Carter, and Walter H. Walne, all of Houston, for appellant. Campbell, Sonfield, Sewall & My-er, of Houston, for appellee.

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

   HIGGINS, J.

Tills is a boundary suit brought by Block against appellant to- recover a strip of ground in block 113 on south side of Buffalo Bayou in city of Houston, fronting 3.7 feet on Magnolia street and extending back between parallel lines a distance of 63.7 feet. Upon trial before a jury verdict was returned in Block’s favor, and judgment thereon rendered for a strip 2.2 feet wide, fronting on Magnolia street and running back between parallel lines the distance aforesaid.

Under the first assignment it is contended that the verdict of the jury is clearly against the great weight and preponderance of the evidence to such an extent as to require reversal at the hands of this court. We cannot concur in this view, and with due deference to the able and distinguished counsel representing appellant it occurs to this court that the verdict is in accord with the decided weight of the evidence. A discussion thereof in detail will serve no useful purpose, and attention will be directed only to the salient features.

It is admitted that the old fence between the properties of the parties stood upon their dividing line, and finding the true location of the line is dependent upon locating the old fence. This fence extended through the block from north to south. According to the contention of appellant, it had an offset at the southeast corner of Block’s property, and according to .Block it ran in a straight line through the • block.

A number of witnesses testified that it was a straight line of fence, without offset. Peter .Tunk testified to measurements made by him before and after the destruction of the fence and after the erection of appellant’s improvements. According to his testimony appellant had encroached over the line where the fence was originally located. The location of the fence with reference to a telephone post in Magnolia street is shown by the testimony of several witnesses, and as so located their testimony likewise establishes. an encroachment.

Miss Bertha Davis testified that the erection of appellant’s improvements had narrowed the space between the improvements and a cottage on Block’s land. There is other testimony in the record supporting the view that the company had encroached upon Block’s land, and upon the whole we conclude, as stated above, that the clear preponderance of the evidence supports the verdict.

Error is next assigned to the admission in evidence of certain maps, which were objected to upon the ground that there was no proof of their correctness; that they were not made up from a survey on the ground by the man who compiled them, but from field notes furnished by some one other than the one who made them, and the correctness of such survey had not been proven.

These maps were offered in evidence in connection with appellee’s cross-examination of defendant’s witness, T. O. Tarver, Jr., formerly city engineer of Houston. It would seem from the bill that appellant, on its direct examination of Tarver, undertook to prove up the maps. He testified that he made same while city engineer from data furnished by his employes, who did the work on the ground. Appellant did not question him further respecting the maps and did not offer them in evidence. Appellee on cross-examination developed from Tarver that the maps indicated the dividing line between the properties to be a straight line, without offset at Block’s southeast corner; the crucial point in the case, as heretofore stated, being whether the line was straight through the block, or had an offset at the point indicated.

Appellant had offered in evidence another map made by Tarver which showed an offset in the dividing line as contended for by it. The maps objected to were signed by Tar-ver, and upon their face stated that they were surveys of block 113, showing National Biscuit Company tract. It is of course true that a map purporting to reflect a survey is not admissible as independent evidence until the survey upon which it is based has been verified and proven to be correct; but in this case the witness had testified that the line had an offset, and another map made by him upon his own survey had been admitted, showing same. The maps objected to had his name thereon, purported to reflect a survey, and were admitted to have been made by him. They contradicted his testimony and his other map, and were admissible for purpose of impeachment, and as affecting the weight to be given to his testimony by the jury. Donohue v. Whitney, 133 N. Y. 178, 30 N. E. 848. He could not destroy their availability for that purpose by simply disclaiming having made the survey upon which he said they were based. Had they been offered by appellee as independent evidence supporting his theory that the line was straight, the contention of appellant that they must first have been proven to be correct would have been well taken; but since they have Tarver’s signature, and were admitted to have been made by him, they were admissible for the purpose of impeachment as indicated.

Affirmed.


author: HODGES, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CADENHEAD.
    (Court of Civil Appeals of Texas. Texarkana.
    March 6, 1914.
    Rehearing Denied March 12, 1914.)
    1. Appeal and Errob (§ 1052) — Harmless Error — Evidence.
    Admitting a written statement prepared by plaintiff, after he had testified fully as to all the items, facts, and figures contained in it, was harmless, especially where the verdict was for only two-thirds of what the statement showed plaintiff’s loss to be.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171 — 4177; Dec. Dig. § 1052.]
    2. Damages (§ 105) — Fires — Damages — Stock op Goods.
    One’s loss from the burning- of his stock of goods, for which a railroad company negligently burning it is liable, is what the goods would have sold for in bulk or in convenient lots.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 266^271; Dec. Dig. § 105.]
    Appeal from District Court, Camp County.
    Action by I. F. Cadenhead against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Alex S. Coke, of Dallas, for appellant. W. R. Heath and Bass & Engledow, all of Pittsburg, for appellee.

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

   HODGES, J.

In June, 1912, the appellee was the owner of a stock of merchandise in a frame building situated in the town of New-some, Tex. On the 12th of that month the building and contents were destroyed by fire. The appellee brought this suit for the value of the goods, alleging that the fire originated from sparks emitted from one of the appellant’s engines, and charging negligence in the equipment and operation of same. The appellant owns a line of railway that runs east and west through the town of Newsome. About 1 o’clock on the morning of June 12, 1912, one of its passenger trains arrived at the depot in Newsome, and remained there the usual time required for passengers to get on and off the cars. A few minutes after the departure of the train, fire was discovered in the roof of a building near the depot. From this building the fire spread to that building in which the appellee’s goods were stored. The evidence is sufficient to sustain the finding that the engine on that occasion was improperly handled, and that this caused the fire. The testimony of the appellee showed that his stock of goods at the time of their destruction amounted to $3,367.55. The jury returned a verdict in his favor for $2,048.

The appellee was permitted to introduce in evidence a typewritten document containing a tabular statement of merchandise on hand in January, 1912, merchandise received after an inventory taken during that month, goods purchased prior to the fire and placed in the stock, freight bills paid and collections made, sales made from stock, estimated profits and expenses, and a list of fixtures, and a summary of goods purchased after January 1st, together with collections and sales between January 1st and June 12th. This was objected to upon the ground: (1) That there was better evidence; (2) that the data from which the statement was compiled were uncertain; (3) because the statement was based in part upon pure speculation; (4) because the plaintiff had already testified from his own knowledge as to all the various items contained in the statement. The record shows, as seems to be conceded by the bill reserved, that prior to the introduction of this statement the appellee had testified fully as to all of the items, facts, and figures contained in this writing. The appellant does not contend that its use put before the jury any new evidence, nor does it undertake to point out where any better evidence might be found. The error, if any, we think was harmless. Evidently the jury was not governed solely by this statement in rendering their verdict, in view of the fact that they awarded plaintiff practically about two-thirds of what this statement showed his loss to be.

A motion was also made during the trial to withdraw from the jury the testimony of the appellee regarding the market value of the goods destroyed, upon the ground that it was shown on cross-examination that the witness was not qualified to testify as to the cash market value of the stock of goods at that time and place; that his answers were based upon estimates made by him from duplicate invoices and books not offered in evidence, and that his answers regarding the value of the goods were based upon a mere estimate; and further that his answers showed there was no cash market value for an entire stock of goods such as that owned by the appellee at that time and place. After this motion had been made and overruled by the court, the appellee testified without objection as follows: “From my experience as a general merchant, and from my acquaintance with this particular stock that was destroyed, aside from any record that I have, I can state what was the reasonable cash market value of my stock of merchandise destroyed by that fire in a lump sum, which amount was $3,367.55.” Taking the testimony of the appellee as a whole, we do not think it can be said that he had not qualified himself to testify as to the value of the goods he had on hand at the time of the fire. His loss was to be estimated by what the goods would sell for in bulk or in convenient lots. Needham •Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S. W. 787.

There is no merit in the remaining assignments of error, and they are overruled.

The judgment of the district court is affirmed.


author: HARPER, C. J.

text:
    TEXAS WAREHOUSE CO. v. IMPERIAL RICE CO.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1914.
    Rehearing Denied March 12, 1914.)
    1. Trial (§ 251) — Instructions—Damages— Pleading.
    Where, in conversion for the value of a rice mixer stored with defendant, there was no pleading to support a recovery of charges for rice stored with the machine, an assignment that the court erred in charging that defendant could not hold the mixer for other, than the storage charges due on it was unsustainable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §S 587-595; Dec. Dig. § 251.]
    2. Trover and Conversion (§ 67) — Personal Property — Value.
    Where there was evidence that a machine alleged to have been converted had a market value, the question of value should be submitted to the jury in the alternative, under an instruction that, if the jury believed that it had a market value, then plaintiff’s measure of damages was the reasonable market value at the time and place of conversion with lawful interest ; but, if the machine had no market value, then plaintiff’s damage was its value to him.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 295-303; Dec. Dig. § 67.]
    3. Trover and Conversion (§ 8) — Machinery — Use and Storage — Damages.
    Where plaintiff stored a rice mixer with defendant under an agreement that the same might be used in storage, and claimed that defendant on demand refused plaintiff permission to use the plant, defendant converted the machine at the time of such refusal if plaintiff had not forfeited his right to use it by being in arrears for rent; but, if plaintiff had lost such right and afterwards tendered all moneys due for rents, then his loss of profits would begin at a later date, to wit, when the machine could have been moved and reset in another place.
    [Ed. Note. — For other cases, see Trover and Conversion, Dec. Dig. § 8.]
    4. Trover and Conversion (§41) — Personal Property — Machinery—Damages—Loss oe Profits.
    Where defendant converted a rice mixer by refusing to permit plaintiff to operate it in the warehouse when he was entitled to do so under the storage contract, plaintiff could recover such profits as may have been lost between the date of such conversion and the time another machine could reasonably have been installed in another place, of which loss notice had been given.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 245-247, 249-253, 258, 259; Dec. Dig. § 41.]
    5. Trover and Conversion (§ 36) — Personal Property — Letters—Notice.
    In an action for conversion of a rice mixer, so much of a letter written by plaintiff to defendant as demanded possession of the machine and gave notice of possible damages, consisting of loss of profits which would flow from defendant’s refusal to deliver, was admissible.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 217-224; Dec. Dig. § 36.]
    6.Evidence (§ 113) — Value.
    Where, in trover for the conversion of a machine, whether it had a market value was for the jury, evidence as to the cost of the machine1 to plaintiff was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.]
    7.Evidence (§ 113) — Machinery—Damage».
    In an action for conversion of a rice mixer, which had been taken down and placed in storage after two years’ use, evidence as to the market value of the machine after two years’ use taken down was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.]
    Appeal from District Court, Harris County; Wm, Masterson, Judge.
    Action by the Imperial Rice Company against the Texas Warehouse Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood and Tal-iaferro & Taliaferro, all of Houston, for appellant. B. F. Louis and Dannenbaum & Taub, all of Houston, for appellee.

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

   HARPER, C. J.

This is a suit brought by the Imperial Rice Company, a partnership composed of Leo Hahn and T. F. Ryan, as plaintiff, against the Texas Warehouse Company and the Houston National Exchange Bank, as defendants. The suit is for the alleged conversion by the Texas Warehouse Company of a rice mixer, the property of the plaintiffs, and on which the Houston National Exchange Bank had a mortgage, together with damages for profits alleged by plaintiffs to have been lost by them on account of their inability to fill orders for rice by reason of such conversion. The Texas Warehouse Company set up a counterclaim for storage charges due it. The judgment, was in favor of the plaintiffs and defendant bank against the Warehouse Company for $1,375 and in favor of defendant Texas Warehouse Company for $75. The Texas Warehouse Company, in due time, filed in the court below its motion for a new trial, in which was set up all the errors here complained of. The motion for a new trial was overruled. The appeal bond was filed in the time required by law, and the judgment of the lower court is now properly before this court for review.

The first assignment of error follows: “The court erred in the paragraph of his charge numbered III, wherein it was stated to the jury, as the law of this ease, that the warehouse company would not be authorized to exercise the right to hold the rice mixing plant for anything other than the storage charges due upon it, because there was sufficient evidence in the record from which the jury would have been justified in concluding that the arrangements for the storage of rice and the arrangement for storing the rice mixer were all parts of one and the same contract, entered into at the same time, and because there was evidence that at the date of the alleged conversion there was due the Warehouse Company .charges on rice that had been theretofore stored in the warehouse under the same contract under which the mixer was stored, and that such rice had been removed without the payment of the charges that had accrued thereon, and it was error therefore for the court to charge the jury that the Warehouse Company was not authorized to hold the mixing plant to secure the payment of any other charges except that which had accrued on - the mixer itself. First Proposition. Where goods are stored with a warehouseman under one general contract of bailment, the warehouseman has a general lien on all such goods for any storage charges that may accrue on any part thereof, and in enforcing his lien he is not limited to the identical articles on which the charges he seeks to collect accrued. Under such circumstances, he may enforce a lien to satisfy any charges owing to him against any property he may have in hand, provided only that the contract under which such property was stored is the same as that under which the charges accrued.”

There being no pleading to support a recovery of charges for rice stored with machine, the assignment is overruled.

The second and third assignments being to the same effect are disposed of by what is said above.

The facts leading up to this suit, and upon which the plaintiff relied for a recovery, are substantially as follows: In the year 1909, the Imperial Rice Company placed in' the warehouse of the Texas Warehouse Company a rice mixing machine under an agreement to pay $15 per month for such time as same might remain in the warehouse. It remained in the warehouse and the rental was paid up to May 1, 1911, after which date no rents were paid. On August 28th, following, the Imperial Rice Company by letter demanded possession of the mixing plant, and tendered $75, three months’ rent. The Warehouse Company refused to deliver possession, giving as their reason that the plaintiff had other articles stored with it, for which they had not paid storage.

The fourth assignment charges that the court erred in charging the jury that the measure of damages for the conversion is the reasonable value of the mixing plant at the time it was converted; the proposition being that the market value is the measuré of damages for conversion, and, where there is any evidence that the article had a market value, the issue must be submitted to the jury.

There is some evidence that the machine had a market value at the time of its alleged conversion, and the question of value .should have been submitted to the jury in the alternative, that is, if, from the evidence, the jury found that there was a market value for the mixing plant, then the measure of plaintiff’s damages was the reasonable market value of the property at the time and place of its conversion, with lawful interest; If the jury should find that the machine had no market value, then the rule of damages is the value of the goods to the owner. City of Dallas v. Allen, 40 S. W. 324. And the rule as to the market value of secondhand goods is not what one might get for them from a secondhand dealer, but what it would cost a person to purchase such goods in the open market, if there was a market for such goods. Souther v. Hunt, 141 S. W. 361; Texarkana & Ft. S. Ry. Co. v. Neches Iron Works, 57 Tex. Civ. App. 249, 122 S. W. 64.

Appellee asserts as a counter proposition “that where it is shown by evidence that a machinery plant which is to be built from its component parts and installed to suit the particular location, as in this case, and has been used to such an extent as to become second hand, the law will presume, in the absence of evidence of a market value, that there is no market value therefor.” The market value is the true rule, and it must first affirmatively be shown that there is no market value before evidence of reasonable value should be admitted from the evidence, or, if there is doubt about there being a market value, then it is a question for the jury to determine.

' In the instant case there is positive evidence that the machinery of the mixing plant had a market value, and, if plaintiff’s demand for possession had been acceded to, the machinery was all of any value that he would have been able to take possession of, and the value of this, as it would have been dismantled, and no' more, is all he should recover for, if wrongfully converted.

The fifth assignment charges that the trial court erred in paragraph 7 of its charge to the jury, which is as follows: “You are further charged in this case that, under the contract of storage between the plaintiffs, Imperial Rice Company, and the defendant Warehouse Company, that the Imperial Rice Company, through its employés, was entitled to access to their said mixing plant, and to the use of sufficient space to operate the same, and if you believe from the evidence that the defendant company,' on the 29th day of September, 1911, refused permission to plaintiffs or their employés to use the said mixing plant and necessary space to operate the same, then you will consider whether or not plaintiffs sustained any loss or damage in the way of profits which they could have otherwise earned, if they had had the use of said mixing plant. And if, in this connection, you find that plaintiffs did lose profits as alleged, then you will assess said damages, if any, at the amount you may so find; if, on the other hand, you find from the evidence that plaintiffs were not denied access and use of said mixing plant, then your verdict, in this connection, will be for the defendent; or if you find that, although defendant may have refused such access and use to plaintiffs of said mixing plant, that no loss- of profits was sustáined by plaintiffs, then your verdict will be for defendant upon this feature of the case” — the proposition being that “there was no evidence that such demand was made.”

In view of another trial of this case, this assignment is sustained for the reason that the evidence in the record would not justify the court in submitting the question of recovery of damages for refusal of the use of the machine upon the premises of defendant under the circumstances detailed. If the plaintiff, at the time of demand for permission to use the plant in defendant’s warehouse, had not forfeited his right to so use by being in. arrears in his rents, and defendant refused to permit plaintiff to enter and use his machine, the conversion then took place, as to the machine, and his rights were as hereinafter indicated. But if plaintiff had lost his right to the use of the machine in the warehouse by failure to comply with lease contract, and afterwards tendered all the moneys due for rents, then his loss of profits would begin at a much later date, the time it would require to dismantle and move and reset the machine in another place.

The sixth and seventh assignments charge that the court erred in submitting to the jury the issue of damages for lost profits because there is no evidence in the record to support it: (a) Because the evidence showed no profits had been lost; (b) no notice was given defendant of the probable loss of special damages as required by law; (c) the profits sought to be recovered were too remote and speculative to enable plaintiff to recover.

There is evidence that notice was given to defendant that losses on contracts for rice would possibly occur if plaintiffs were denied access to the mixing plant, and also positive evidence of loss of profits, and such as were not too remote and uncertain to be the basis of recovery, if the rice mixing plant was wrongfully converted. Alamo Mills Co. v. Hercules Iron Works, 1 Tex. Civ. App. 683, 22 S. W. 1097; Walter Box Co. v. Blackburn et al., 157 S. W. 220.

In other words, if the defendant wrongfully converted the rice mixing plant, by refusing to permit plaintiff to operate it in the warehouse when he was entitled to do so under his lease contract, the plaintiff would be entitled to recover such profits as may have been lost between the date of such conversion, and the date at which another machine could reasonably have been installed in another place, which are subject to definite proof by the plaintiff, and of which notice had been given.

The ninth assignment complains of the admission in evidence of the following letter:

“We here now advise you, as has been done by us heretofore, that we must demand immediate possession of the sixty-two (62) pockets of rice, placed by us in your warehouse, receipts covering which we have heretofore delivered to you, with and upon the understanding and expectation, that when we so desired, we would be permitted to ship out the said rice called for thereby, the same representing a surplus as shown by receipts delivered to you, over rice delivered to us thereunder, with all of which you are fully conversant.
“We also desire to again remind you that under our contract of storage of our mixing plant with you, and the rental of part of your premises for such purpose, we are entitled to the reasonably necessary use of the premises in and about the mixing plant, now in your warehouse, for the purpose of mixing such rice as we may desire out of that stored by us with you, and as has been done by us in the past (up to the time of your recent refusal to permit us to enter the premises leased by us as stated).
“We tender you herewith, through our Mr. Dillon, all storage charges upon this rice desired to be mixed and removed by us, in the sum of $5.00, which covers such storage up to and including the 31st inst.
“We are mindful of the fact that you have heretofore refused permission to our Mr. Dillon to enter the premises where this rice and mixing plant is stored, but we give you this opportunity to reconsider your action relative thereto, as well as to the delivery of this rice to us, and in the event you fail or refuse to permit us, through our representative (as in the past) to enter and mix the above rice, or to give us, or permit us to take immediate possession" of such rice, that we will hold you for all the damages that may flow from or be occasioned to us by such unlawful conduct, and we advise you now, as heretofore, that this rice has been sold to various parties, at different prices, and it is necessary that we make delivery thereof without further delay upon our contracts of sale, and in the event you render it impossible for us so to do, we shall sustain, among other damage, the following: (1) Such claims as may be made upon us for breach of our contracts to so deliver such rice, which will be considerable; (2) the loss of profits to us upon such sales, in the sum of not less than $75.00; (3) further, such conduct on your part will injure and damage us in standing; in addition thereto, we advise you that we shall hold you responsible for conversion of such rice to your own use, to the full value thereof. Of all of which you will take notice and be governed thereby.
“We deliver this notice to your Mr. E. W. Fain in person, through our Mr. Dillon, so that there may be no question as to the receipt thereof, or notice of the facts contained herein.
“We wish to notify you further, that it is necessary for us to have access to the rice stored by us in your warehouse in order to protect it from, and to prevent, damage thereto.”

The letter as a whole was not proper evidence, but those portions of it which demand possession of plaintiff’s property and those which give notice of possible damages to flow from the refusal so to do are admissible upon such issues.

The tenth assignment complains that the court erred in permitting witness Leo Hahn to testify to the value of the.mixing plant, what he paid for it, etc. Bearing in mind the discussion above of the rule as to the measure of damages, and the holding that it was a question for the jury to determine, whether there was in fact a market value for the mixing plant, this assignment is answered with the observation that if the record should show the same conflict upon another trial, as to there being a market value for the machine, this class of testimony would be admissible. For if it is a question for the jury to determine whether there was a market value, then evidence should be admitted on both phases of the rule.

The eleventh assignment charges that the court erred in refusing to permit one Hayes, a witness for plaintiff, to testify to the market value of the mixing machine, after two years’ use torn down. This assignment must be sustained for these questions and answers were directed to the true measure of damages in this case, and should have been admitted. Wright v. MacDonnell, 88 Tex. 141, 30 S. W. 907.

For the errors indicated, the cause must be reversed and remanded for new trial, and it is so ordered.


text:
    TEXAS MOLINE PLOW CO. v. KLAPPROTH et al.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1914.
    Rehearing Denied March 12, 1914,)
    1. Principal and Agent (§ 100) — Poweb oi? Attorney — Effect.
    A power, authorizing an attorney to bargain and sell the grantor’s realty, did not confer on him authority to incumber the same by¡ a deed of trust.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dec. Dig. § 100.]
    2. Principal and Agent (§ 117) — Authority op Agent — Execution op Deed op Trusi^-Necessity op Writing.
    Written authority is not necessary to enable an agent to bind his principal to an ex-ecutory contract for the sale of land, but he cannot consummate a conveyance by deed of bargain and sale, or by deed of trust without written authority, under Rev. St. 1911, art. 1103, providing that no estate of inheritance or freehold shall be conveyed unless by an instrument in writing, subscribed and delivered by the vendor, or by his agent “thereunto authorized by writing."'
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 378-390; Dec. Dig. § 117.]
    3. Principal and Agent (§ 169) — Deed op Trust — Ratification—Necessity op ‘Writing.
    Where a deed of trust executed by the grantor’s agent without written authority was invalid in its inception, it could not be ratified by mere oral assent or acquiescence, but only by an instrument in writing.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 636, 637; Dee. Dig. § 169.]
    4. Mortgages (§ 151) — Validity—Priority op Lien.
    Where a deed of trust on certain land was invalid because executed by the landowner’s agent, without written authority, a subsequent deed of trust, executed by the landowner on the same land, was prior in right.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. § 151.]
    5. Principal and Agent (§ 169) — Deed op Trust — Invalidity—Estoppel to Assert.
    While mere parol ratification of a deed of trust executed by a landowner’s agent without written authority is 'insufficient to validate it, yet the landowner may be bound by proof of full knowledge of the facts and accompanying acts sufficient to create an estoppel in pais.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 636, 637; Dee. Dig. § 169.]
    6.Principal and Agent (§ 167) — Deed op Trusi^-Invalidity — Ratification—Pleading.
    Where a deed of trust executed by a landowner’s agent was invalid for want of written authority, but the owner in a suit to foreclose answered and alleged that the deed was executed by the agent as her attorney in fact for a good and valuable consideration, and was in all things ratified by her, such pleading constituted a sufficient ratification to render the deed valid from its inception, not only as against the landowner, but as against the holder of a subsequent deed which accepted its lien with notice of the existence of the prior deed, and without reference to whether it also had knowledge of the lack of authority of the attorney making such deed or not.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 634, 635; Dec. Dig. § 167.]
    7.Estoppel (§ 3) — Validity—Execution.
    Where a deed of trust was invalid for want of written authority on the part of the attorney executing it, but in a suit to foreclose the landowner alleged that it was executed by her attorney in fact for a valuable consideration, such answer operated as an estoppel of record to validate the deed from its inception, not only as against the landowner, but as against the holder of a subsequent deed of trust.
    [Ed. Note. — For other cases, see Estoppel. Cent. Dig. §§ 2-5, 7; Dec. Dig. § 3.]
    Appeal from District Court, Midland County; S. J. Isaacs, Judge.
    Suit by H. Klapproth against the Texas Moline Plow Company and Julia Hooper. Decree for plaintiffs, and defendant Plow Company appeals.
    Affirmed.
    Charles Gibbs, of Midland, and Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for appellant. J. M. Caldwell, of Midland, for appellee Klapproth. Howard & De Armond, of Midland, for appellee Hooper.

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

   HIGGINS, J.

This was a suit by H. Klapproth, against Julia Hooper to recover upon certain promissory notes dated August 1, 1911, alleged to have been executed by her acting by her authorized agent, M. T. Hooper, and for foreclosure of deed in trust, securing same te W. B. Elkins, trustee, upon certain real estate, wMeli deed was also executed by Julia Hooper, by said M. T. Hooper, dated August 3, 1911, recorded August 12, 1911. In tbe petition it was averred that the notes and deed in trust were executed by Julia Hooper, acting by her duly authorized agent, M. T. Hooper, and, if he was not so duly authorized, that nevertheless, Julia Hooper, with full knowledge of the facts, ratified and confirmed the execution thereof. On January 6, 1912, Julia Hooper executed another deed in trust to O. P. Robb, trustee, covering the same realty, to secure 'payment of an indebtedness to the Texas Moline Plow Company. Said company was made a party defendant as a subsequent incumbrancer, and foreclosure sought against it. The Texas Moline Plow Company filed a general denial and special answer, averring that on January 6, 1912, Julia Hooper executed above-mentioned deed in trust to Robb, securing payment of certain notes in its favor; that if M. T. Hooper undertook to execute the deed in trust described in plaintiff’s petition for and in behalf of Julia Hooper, he was without authority so to do; that it was void because he was not authorized in writing by Julia Hooper to execute same in her behalf; that it accepted the Robb deed in trust for a valuable consideration, wherefore its lien upon the premises was superior to the one sought to be foreclosed. It prayed that its lien be established as a first lien, and that plaintiff be denied any relief as against it. Julia Hooper answered, admitting the execution and delivery of the notes and deed in trust declared upon by plaintiff; she alleged that the notes were given for a valuable consideration, and were executed by M. T. Hooper as her attorney in fact and with her full consent and approval; that the deed in trust was likewise so executed by M. T. Hooper, and had been in all things' ratified by her; she also admitted the execution of the Robb deed in trust for use of the Texas Moline Plow Company, securing payment of certain notes to it; that the negotiations leading up to the execution of the Robb instrument were conducted in behalf of said company by one Metcalf, its agent, and that Metcalf knew and was fully cognizant of the Elkins deed in trust, and he accepted the Robb instrument in behalf of the company as a second lien upon the premises. By supplemental petition, Klapproth averred that at date of the Robb deed in trust, Metcalf, agent. for the company, had notice of the prior one given to Elkins for use of plaintiff, and with full knowledge thereof, and by special agreement with Julia Hooper, he accepted the same as a second lien, subject to the lien created by the first one given to Elkins, wherefore the company was estopped to question the authority of M. T. Hooper to execute the same or to assert that same is other than a first lien upon the premises superior to the subsequently executed one to Robb. It was also alleged that the notes held by the company were given to cover an antecedent indebtedness, wherefore it was not an incumbrancer for value. Upon trial before the court, without the aid of a jury, judgment was rendered in favor of plaintiff, establishing and foreclosing the Elkins deed in trust as a first lien upon the premises, from which the Texas Moline Plow Company has prosecuted this appeal.

We quote and adopt as our own those portions of the findings of fact of the trial court which are deemed material to a consideration of the questions presented by this appeal:

“I. M. T. Hooper and the defendant Julia Hooper are mother and son, and were at the time of all of the transactions in this cause, and are now, both stockholders in a corporation known as the Midland Metal & Manufacturing Company.
“II. On the 30th day of August, 1910, the defendant Julia Hooper executed a general power of attorney, appointing M. T. Hooper as her attorney in fact, which power of attorney authorized him to bargain and sell any property, both real and personal, in the state of Texas, belonging to the said Julia Hooper.
“III. Said power of attorney was properly authenticated and filed for record in the office of the county clerk of Upton county on the 31st day of October, 1910, at 2 o’clock p. m., and duly recorded on the 3d day of November, 1910, at 11: 30 o’clock a. m.
“IV. Thereafter on the 1st day of August, 1911, M. T. Hooper acting under the aforesaid power of attorney, executed 38 certain promissory notes of $50 each, all dated August 1, 1911, and due one on the 1st of each month thereafter, payable to the order of H. Klapp-roth, signed by Mrs. Julia 'Hooper by M. T. Hooper, attorney in fact, and three days thereafter, to wit, on August 3d, the said M. T. Hooper, acting under said power of attorney, executed a certain deed of trust conveying to W. B. Elkins, trustee, the second tract of land in controversy, to secure the payment of the aforesaid 38 notes.”
“VII. The said 38 notes were executed in favor of H. Klapproth for a consideration of certain stock owned by the said Klapproth in the Midland Metal & Manufacturing Company, a corporation, the said corporation purchasing said stock from H. Klapproth.
“VIII. On the 5th day of January, 1912, the defendant Mrs. Julia Hooper executed a deed of trust on the land in controversy to O. P. Robb, trustee, to secure the payment of two promissory notes executed by the Midland Metal & Manufacturing Company, M. T. Hooper, and Mrs. Julia Hooper, dated January 6, 1912, due December 1, 1912, and November 1, 1913, for the sum of $795 each, payable to the Texas Moline Plow Company.
“IX. Immediately prior to the execution of said deed of trust by M. T. Hooper to W. B. Elkins the defendant Mrs. Julia Hooper knew that M. T. Hooper contemplated and was going to execute said deed of trust, and both the defendant Mrs. Julia Hooper and M. T. Hooper believed that M. T. Mooper had authority under the aforesaid power of attorney to execute said deed of trust; and within a very few days after the execution of the deed of trust by M. T. Hooper, the defendant Mrs. Julia Hooper was advised of the execution of same and approved and assented to the action of M. T. Hooper therein.
“X. The notes executed by Midland Metal & Manufacturing Company, M. T. Hooper, and Mrs. Julia Hooper to the Texas Moline Plow Company were for a pre-existing indebtedness of the Midland Metal & Manufacturing Company to the Texas Moline Plow Company, and the notes and deed of trust were given to secure an extension of said indebtedness.
“XI. The notes to the Texas Moline Plow Company signed by Midland Metal & Manufacturing Company and the deed of trust given to secure same were secured for the Texas Moline Plow Company by its duly authorized agent, W. A. Metcalf, who, before the execution of the notes and deed of trust, was advised by M. T. Hooper that he, acting under the power of attorney aforesaid, had executed a deed of trust to secure the notes due the plaintiff, and advised the said Metcalf that his lien would be subject to the lien of Klapproth, and also to the lien of the state of Texas for the purchase price of said land.
“XII. At the time of the execution of the deed of trust to secure the notes of the Texas Moline Plow Company the defendant the Texas Moline Plow Company, through its duly authorized agent, W. A. Metcalf, refused to accept a deed of trust on the land in controversy executed by M. T. Hooper as attorney in fact under said power of attorney, believing that the deed of trust executed by M. T. Hooper in favor of the plaintiff was invalid under the power of attorney.
“XIII. Of the 38 notes given, and for which the deed of trust was executed to secure, 8 have been paid off and discharged by the defendant Mrs. Julia Hooper out of the funds of the Midland Metal & Manufacturing Company, the remaining 30 of said notes are unpaid and are valid and subsisting obligations of the defendant Mrs. Julia Hooper; and the plaintiff, H. Klapproth, has elected to mature all of said notes under a provision in said deed of trust providing that a failure to pay any one or more of said notes should at the option of the holder thereof mature all of same.”
“XV. The approval and indorsement by the defendant Mrs. Julia Hooper of M. T. Hooper’s execution of the deed of trust was verbal and not in writing.”

The power of attorney from Julia Hooper to M. T. Hooper authorized him to bargain and sell her realty. Such power did not authorize him to incumber same by lien, and the Elkins deed in trust was executed without lawful authority, so far as the power of attorney was concerned. Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842; Reese v. Medlock, 27 Tex. 120, 84 Am. Dec. 611. And the parol authority, which, from the ninth paragraph of the court’s findings, seems to have existed at the time of its execution, was insufficient to pass title. While written authority is not necessary to enable an agent to bind his principal in an execu-tory contract for the sale of lands (Huffman v. Cartwright, 44 Tex. 296; Marlin v. Kosmyroski, 27 S. W. 1042; Tyman v. Dullnig, 25 S. W. 465), yet he cannot consummate a conveyance by deed without written authority. Article 1103, R. S. Zimpleman v. Keating, 72 Tex. 318, 12 S. W. 177.

It follows that the instrument in its inception was invalid for want of lawful authority on the part of M. T. Hooper to execute same. While there was a ratification by Julia Hooper, yet it likewise was verbal, and the general rule seems to be well settled that a ratification of a deed executed without lawful authority must be in writing. Mere assent or such acquiescence as will amount only to evidence of assent is not a lawful ratification. Reese v. Medlock, supra; Skirvin v. O'Brien, 43 Tex. Civ. App. 1, 95 S. W. 696; Zimpleman v. Keating, supra; Mechem on Agency, § 136.

If title was not divested out of Julia Hooper by the deed to Elkins, trustee, and which, as shown, it did not, the Texas Mo-line Plow Company, as the holder of a lien under a lawful contract had the superior right. Sanborn v. Murphy, 86 Tex. 437, at page 446, 25 S. W. 610; Masterson v. Little, 75 Tex. 682, 13 S. W. 154.

While a mere parol ratification is insufficient in cases such as is here considered, yet if same be made with full knowledge of the facts, and be accompanied by acts sufficient to create an estoppel in pais — as receipt of the purchase money — the principal will be bound. Reese v. Medlock, supra; Zimpleman v. Keating, supra; Frost v. Erath Cattle Company, 81 Tex. 509, 17 S. W. 52, 26 Am. St. Rep. 831.

Appellee does not question the invalidity, in its inception, of the deed in trust sought to be foreclosed, but contends that such equities have arisen as would bring the case within the rule just quoted above, but there is nothing in the facts called to our attention which would operate as an estoppel in pais against Julia Hooper. The stock, in payment for which the notes were given, it seems was not bought by Mrs. Hooper, but by the corporation itself. It is true M. T. Hooper testified she now owned a part of it, but she must have obtained it from the corporation and not from Klapproth direct. No equities are apparent as between Julia Hooper and appellee which would have precluded her from, availing herself of the illegality of the Instrument which M. T. Hooper undertook to execute in her behalf.

But as noted above, she appeared and answered in this cause by her attorneys, and formally averred that the deed in trust was executed by M. T. Hooper, her attorney in fact, for a good and valuable consideration, and was in all things ratified by her, She also admitted the execution of the Robb deed, and alleged that it had been accepted by appellant with full knowledge of the one previously given to Elkins for benefit of Klapproth, and that same was accepted by appellant as a second lien. She interposed no defense to the foreclosure sought by Klapproth, except as to 200 acres of the land which she claimed as a homestead. The court refused to set aside the same as a homestead, and no complaint is made by her of this refusal, or to any part of the judgment rendered.

The filing of this answer containing the formal admissions and averment noted was a sufficient ratification and confirmation by Julia Hooper of the original unauthorized act of M. T. Hooper, and validated the Elkins deed in trust. Stoney v. Shultz, 1 Hill, Eq. (S. C.) 465, 27 Am. Dec. 429. Authority in support of this view seems to be meager, but upon principle it would seem that an unauthorized act of .this nature could be ratified by formal pleading averring that the same had been ratified.

But if it cannot be considered as a lawful ratification, still it would seem to operate and be effective as an estoppel by record. Brown v. O’Brien, 11 Tex. Civ. App. 459, 33 S. W. 267; Scanlan v. Hitchler, 19 Tex. Civ. App. 689, 48 S. W. 762; Milby v. Hester, 94 S. W. 178. And whether validated upon theory of a ratification or an estoppel, it relates back, and is operative as though authority had originally been lawfully vested in M. T. Hooper. Mechem on Agency (1st Ed.) § 167. It is true such a retroactive effect cannot be permitted to affect third persons who in good faith have acquired rights which intervene between the original act and its ratification or validation by estoppel. Mechem on Agency (1st Ed.) § 168, but appellant cannot avail itself of this latter rule, for the court’s findings establish that it aécepted its lien with knowledge of the existence of the former deed in trust, and M. T. Hooper advised its agent, Metcalf, that the company’s lien would be subject to Klapproth’s lien. Having such knowledge of the prior instrument, it is immaterial that Metcalf knew that it was invalid for want of lawful authority on the part of M. T. Hooper to execute it. He took the company’s lien subject to the contingency that the former deed in trust might be validated by Julia Hooper by lawful ratification or by acts which would operate as an estoppel.

The various assignments have not been discussed in their order, but the views expressed dispose of all questions raised.

Affirmed.