text:
    ORDER OF AZTECS v. NOBLE.
    (No. 5435.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 27, 1915.
    Rehearing Denied March 3, 1915.)
    1. Judgment <©=>162— Judgment by Default —Proof.
    A default judgment, reciting proof of the matters alleged in plaintiff’s petition, without any record showing that it was rendered without proof thereof, will not be set aside as rendered without proof.
    TEd. Note. — Por other cases, see Judgment, Cent. Dig. §§ 319-322; Dee. Dig. <©=>162.]
    2. Pleading <©=>301 — Verification — Sufficiency of Affidavit — Jurat.
    Under Acts 33d Leg. c. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829b, 1902), requiring plaintiff to verify his pleadings, and Rev. St. 1911, art. 12, requiring all aifi-davits to be • in writing, signed by the party making them, the certificate of the officer administering the oath to plaintiff’s sworn petition stating that it was done on the- day
    of -, 1914, was sufficient, since it is not necessary that an affidavit be dated, and the “jurat” is not an essential part of the complaint, but is only prima facie evidence that the statements therein were sworn to by affiant before duly authorized officers as certified.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 314, 318, 892-897, 904-906; Dec. Dig. <©=>301.]
    3. Appeal and Error <©=>1170 — Exception-Defect in Pleading.
    Under Acts 33d Leg. c. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829b), amending Rev. St. 1911, art. 1829b, to provide that, if the petition has no certificate of affirmation attached, it may nevertheless be considered by the court as if it had, unless the opposing party specially excepts, to it on that ground, whereupon the court shall allow the party to add a certificate if he desires, the failure to verify a petition could not be the basis of a valid objection.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. <©=>1170.]
    4. Judgment <©=>143 — Judgment by Default —Setting Aside.
    To justify the court in setting aside a judgment by default, the defendant’s motion therefor must negative the want of diligence on his part, and show that he had a good defense to plaintiff’s demand.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. <©=> 143.]
    5. Contracts <©=>319 — Part Performance-Recovery.
    Plaintiff, after part performance of his contract, and after breach by defendant, without his consent, might recover the actual amount earned thereunder and damages as for its breach.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. §§ 1458, 1476, 1477, 1479, 1493-1507; Dec. Dig. <©=>319.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by W. S. Noble against the Order of Aztecs. Judgment by default for plaintiff, and from the overruling of its motion to set aside the judgment, defendant appeals.
    Affirmed.

      Ernest A. Landman, of Athens, and Theodore Mack, of Ft. Worth, for appellant. Wallace & Moore, of Cameron, for appellee.
   RICE, J.

This suit was brought by appel-lee against appellant, alleging that on the 9th of September, 1913, he had been employed by it to solicit insurance for it, which contract expired.on January 1, 1914, and by which it contracted to pay him 60 per cent, of the first 12 monthly assessments of all members secured. He further alleged that in pursuance of said contract of employment he began working for appellant, and continued to do so until about the 1st of November, during which period he devoted his entire time to such employment, expended large sums in advertising said order, and incurred other necessary expense, amounting in the aggregate to $60; that as a result of said effort he secured members who took out policies therein, naming them, the commissions for which amounted in the aggregate to the sum of $213.48. He further alleged that by reason of said advertisement and the work that he had done for appellant, in addition to such business obtained, he had reasonable expectation of acquiring other business during the term of his contract, and that the amount of such new business would aggregate the sum of $250, but that appellant, on the 1st of November thereafter, without cause, terminated appellee’s contract without his consent, thereby breaching the same, whereby he was damaged in the sum of the reasonable commissions that he would have earned before the expiration of said contract, to wit, $250, and prayed for judgment in his total damage in the sum of $523.48.

Although duly cited to appear and answer, appellant failed to do so, and judgment was, on the 13th of April, 1914, taken by default against it for the sum of $273.48, with interest and costs of suit. Thereafter, on the 19th of April, 1914, appellant filed its first motion to set aside said judgment, which was overruled, and on the 24th of April filed its second motion for new trial, which was likewise overruled, and from which judgment it prosecutes this appeal.

It is urged by the first assignment that the judgment was rendered without proof of the matters alleged in plaintiff’s petition. The judgment, however, recites the contrary, and there is nothing in the record to support appellant’s contention in this respect, for which reason this assignment is overruled.

The, second assignment challenges the sufficiency of the petition to support the judgment. We think the petition is good as 'against a general demurrer. It clearly states a cause of action. This assignment is therefore overruled.

The petition in this case was duly signed and sworn to by appellee, but the jurat of the officer administering the oath states that this was done on the - day of -, 1914. Appellant assigns this as error. By the act of the Thirty-Third Legislature (General Laws, p. 256 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829b, 1902]) plaintiff is required to verify his pleadings. This we think in the present case was in fact done, as appears from the certificate of the officer. Sayles’ Civil Statutes 1911, art. 12, tit. 2, states that “all affidavits shall be in writing, and signed by the party making same.” This affidavit conforms thereto. It is not necessary that an affidavit should be dated. 2 Cyc. p. 22, D; Freas v. Jones, 15 N. J. Law, 20; Bell v. City of Spokane, 30 Wash. 508, 71 Pac. 31, 32. So it appears that the affidavit itself is sufficient and conforms to the statute; but the principal objection seems to be that the jurat is not complete, in that it is not dated. The jurat is not an essential part of the complaint. It has been held in some cases that the jurat is essential, but the generally accepted doctrine seems to be that it is not such an essential part of the affidavit proper that its omission will render the affidavit a nullity, but is only prima facie evidence that the statements therein were sworn to by the affiant, as certified; and it may be shown otherwise that the affidavit was in fact sworn to at the proper time and before the proper officer. 2 Cyc. pp. 26, 27. Little formality is required, as its only office is to show that the affiant took the oath before the duly authorized officer. 2 Cyc. 27. With reference to the date in jurats, it is stated that under the English practice the jurat must give the date on which the oath was administered, but in a New York case it was held that the omission of the date was not fatal, where it was shown, on objection raised, that the oath was taken in due season. 2 Cyc. 29.

We hold that the petition was duly verified; but in the present case, even if we are in error as to this, no exception was taken to the petition on this account, because judgment was rendered by default. The statute referred to, in amending article 1829b, provides that if the petition or answer has not a certificate of affirmation attached thereto that the same shall nevertheless be considered by the court as though it had same, unless the opposing party specially excepts to the same upon that ground, whereupon it shall be the duty of the court to allow the party to add a certificate of affirmation to his pleading, if he so desires. So, in the instant ease, as in the nature of things no exception was or could have been taken, the failure to verify the petition could not be made the basis of a valid objection, for which reason we overrule the third assignment.

While appellant did appear at the same term of court and move to set aside the judgment, still we think the reasons urged by it for this purpose do not sufficiently negative the want of diligence on its part, nor does it sufficiently appear that appellant had a good defense to appellee’s demand, both of which facts must be clearly' shown in order to justify the court in setting aside the judgment by default. See Delaware Ins. Co. v. Hutto, 159 S. W. 73.

We do not think any fundamental error is apparent of record, as suggested by counsel for appellant. It is true the petition declares on a written contract; but it is clearly shown by. the allegations thereof that, after a part performance of the contract by appellee, appellant, without his consent, breached the same, and the suit is brought as well to recover the actual amount earned thereunder as for damages for its breach, which we think appellee was entitled to recover, if the proof supported the allegations of the petition. The judgment is not for the entire amount claimed, as asserted, but only for a portion thereof, and it recites that it was rendered upon evidence duly submitted. We therefore overrule this contention.

We do not think this is such a case as would entitle appellee to the 10 per cent, penalty for delay. We therefore overrule his request in this respect, and affirm the judgment of the trial court.

Judgment affirmed.
      <£=>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:
    NALLE & CO. v. COSTLEY.
    (No. 5440.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1915.)
    1. Frauds, Statute of <§=>101 — Trial — Findings — Construction.
    That defendant verbally agreed to pay the debt of another to plaintiffs does not appear from the record ; so-called findings of fact being merely as to what certain persons testified regarding it, and. the conclusion of law that it is immaterial whether defendant made the statements, as his promise, if made, was within the statute of frauds, expressly showing no finding of fact was made as to the promise.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 380; Dec. Dig. <§=>161.]
    2. Appeal and Error <§=>1122 — Finding Facts.
    The Court of Appeals cannot, on the preponderance of evidence, make a finding of fact on an issue not passed on by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4420; Dec. Dig. <§=>1122.]
    3. Contracts <§=>187 — Construction—Promise to Pay.
    Provision in the contract of loan by C. to G. that the mortgage held by N. shall be paid off out of the money agreed to be paid by C. to G., and in place thereof a mortgage bo executed by G. to G., to secure repayment of the loan, is a promise by G. for the benefit of C., and not one of C. for the benefit of N., so as to authorize action thereon by N. against C.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 798-S07; Dec. Dig. <§=>187.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by Nalle & Co. against J. L. Costley. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    J. H. Hart, of Austin, for appellants. J. Bouldin Rector and A. L. Green, both of Austin, for appellee.
   JENKINS, J.

Appellants’ first assignment of error is based upon the proposition that the verbal agreement of appellee to pay appellants’ debt is not within the statute of frauds, for the reason that, although the effect of such payment would have been to extinguish the debt of Breinig and Glass to appellants, the main purpose of such promise was to serve the interest of appellee. This is a correct proposition of law, if such was the fact. Lemmon v. Box, 20 Tex. 333; McCreary v. Van Hook, 35 Tex. 632. But such fact does not appear from the record. This case was tried before the court without the intervention of a jury, and the court filed its findings of fact and conclusions of law', from which we quote as follows:

“(6) Ewell Nalle, an employé of the firm of Nalle & Co., testified, in substance, that on May 30th he called upon Glass for the purpose of collecting the weekly installment due by said Glass and Breinig; that Glass sent him to Costley; and that Costley stated to him that he (Costley) had assumed the Glass and Breinig indebtedness, and that Nalle & Co. need not worry.
“(7) Ernest Nalle, a member of the firm of Nalle <& Co., testified that he had a conversation with the defendant, Costley, over the telephone with reference to the collection of the Nalle & Co. account against Glass and Breinig, in which conversation Costley stated to him, in substance, that he had taken the Glass and Breinig business over, and that he would pay the Nalle & Co.'account. This witness testified that this conversation occurred after all the lumber and materials upon which this suit is based had been furnished to Glass and Breinig.
“(8) -Veach, a former employé of Nalle <& Co., testified as follows: That he saw Cost-ley upon some date after June 5th, and that Costley stated to him, in substance: ‘Tell Ernest (meaning Ernest Nalle) not to worry; I have charge of the account and will see it paid.’
“(9) I find that on May 30th the firm of Nalle & Co. learned of the contract which had been entered into between Glass and Breinig and Costley on May 27th, and I further find that on or about May 30th Nalle & Co. had become uneasy about their account, by reason of the fact that one weekly payment theretofore due them had not been paid, and by reason of the further fact that Glass and Breinig were calling upon them for more material than they had agreed to furnish, and I find that said Nalle & Co. would not have furnished said Breinig and Glass with any further material after said date of May 30th had they not believed that the defendant, J. L. Costley, was furnishing money to said Breinig'and Glass and would pay their said account.
“(10) I find that the amount of material furnished by Nalle & Co. to Breinig and Glass after May 30th was of the value of $290.32.
“(11) It is not shown by the evidence that on May 30th, at the time of the alleged conversation between Ewell Nalle and Costley, that the said Costley had any notice that further materials or supplies were to be furnished by Nalle & Co. to said Glass and Breinig, or that he had any knowledge that Nalle & Co. were threaten-ing_ to bring suit upon their said account. Nor is it shown by the evidence that Nalle & Co. at any time entered into any contract with Costley or with Glass and Breinig not to file suit upon their claim by reason of the alleged agreement of Costley to pay said claim, nor is it shown that Nalle & Co. waived any right they had in the premises.”
“I conclude that it is immaterial whether or not the defendant, Costley, made the statements as testified to by the witnesses Ewell Nalle, Ernest Nalle, and - Veach, the substance of which conversations is set out in the finding's of fact Nos. 6, 7, and 8, for the reason that, under the facts of this case, such promises if made by Costley, were without any valid consideration, and were within the statute of frauds.”

Nos. 6, 7, and 8, above set out, are not findings of fact, but only statements of the testimony. The conclusion of law above set out expressly shows that the court made no finding of fact as to such alleged verbal promise. Consequently, appellants’ assignments of error based upon the theory that ap-pellee promised to pay appellants’ debt must be overruled.

Appellants’ second assignment of error, in effect, asks us to find that appellee verbally promised to pay the debt sued on, for the reason that the preponderance of the evidence shows such to be the fact. Appel-lee denied making such promise. It is not for us to pass upon the preponderance of evidence. The controverted material facts must be found by the jury, or by the court, if there be no jury. The Court of Appeals cannot sit as a jury to find the facts upon issues not passed upon in the court below. The appellants had the right to demand that the court should make a finding of fact on this issue, but they, did not do so, and have not assigned error upon the failure of the court so to do.

The only remaining question for our determination is as to whether appellee promised in writing to pay the debt herein sued on. Appellants submit the following proposition:

“When one, for a valuable consideration, agrees with another to pay the debt of that other person to a third person, such agreement inures to the benefit of the third person, who may maintain an action thereon.”

The proposition is correct (Mathonican v. Scott, 87 Tex. 396, 28 S. W. 1063; Spann v. Cochran, 63 Tex. 242); and, if appellee promised in writing to pay the debt owing by Breinig and Glass to appellant, the judgment of the trial court should bp reversed.

That portion of the written contract between appellee and Breinig and Glass material to this issue is as follows:

“Know all men by these presents that whereas, heretofore, James L. Glass, as trustee and fiscal agent of the Riverside Park & Amusement Company, an association of individuals which is to be hereinafter incorporated under said name according to the laws of the state of Texas, entered into a certain contract with H. L. Breinig, of Terre Haute, Indiana, whereby the said Breinig is to furnish said company with the necessary equipment and plant, including labor, for the purpose of conducting an amusement park on the premises of said company in the city of Austin, Travis county, Texas, for which the said Glass as such trustee and fiscal agent, agreed to -pay said Breinig the sum of thirty thousand ($30,000) dollars as follows: Fifteen thousand ($15,000) dollars in cash upon the certain terms set forth in said agreement and the sum of fifteen thousand ($15,000) dollars to be evidenced by stock in said company to be issued to said Breinig upon the organization and incorporation thereof; and
“Whereas, it is necessary to procure the amount of three thousand ($3,000) dollars in cash to further promote the organization of said company and to pay for supplies and labor and other expenses in connection therewith and in the organization thereof:
“Now, therefore, this agreement made this the 27th day of May, A. D. 1911, by and between H. If. Breinig, as contractor of said company, and James B. Glass, as trustee and fiscal agent thereof, and J. L. Costley, witnesseth: That J. L. Costley agrees to pay to James L. Glass, as trustee and fiscal agent and for the purposes and benefits aforesaid, the sum of three thousand ($3,000) dollars upon the certain terms and conditions hereinafter slated and for the considerations hereinafter stated. It is agreed by and between the parties hereto that said amount of money shall be paid by said Costley to said Glass upon the requisition of said Glass and in such amounts as the needs of the company in the purchase and construction of supplies, and the payment for labor for the purpose hereinafter stated, may demand until the entire amount of said three thousand ($3,000) dollars is paid to said Glass. Said amount of money to be charged against said company and to be applied as the payments thereof may evidence upon the account of H. L. Breinig against said company as shown by said contract with said Glass. ⅜ ⅝ ⅜
“It is further agreed that the said chattel mortgage now held by the Nalle Lumber Company shall be paid off and satisfied out of the three thousand ($3,000) dollars agreed to be paid by said Costley and that in lieu thereof a mortgage shall be executed and delivered by said Glass and said Breinig to said Costley, giving a first mortgage and lien upon all property that may be now or hereinafter erected or placed upon the premises of said company to secure the repayment to said Costley of said three thousand ($3,000) dollars, according to the terms of this agreement.”

The twelfth finding of fact by the court is as follows:

“(12) I further find that the defendant, J. L. Costley, paid out upon the requisition of the said J. L. Glass, for improvements made and debts incurred in the building of said amusement park, the full sum of $3,000 agreed to be paid by him in the contract of May 27th.”

The trial court filed the following conclusion of law:

“(1) I conclude that under the terms of the written contract dated May 27, 1911, entered into between Breinig and Glass and Costley, that said Costley did not undertake or agree to pay the account of Nalle & Co., he only agreeing to pay out said sum of $3,000 upon the requisition of said Glass, said Glass reserving the right to direct the payment-of said sum for the purposes mentioned in said contract. I conclude that the stipulation in said contract whereby it was agreed that the Nalle & Co. indebtedness be taken up was made for the benefit of Costley, and not for the benefit of Nalle & Co., and that the same constituted an agreement on the part of said Glass to pay said Nalle & Co. debt out of said proceeds, and that under the terms of said contract the said Costley would not have been justified in paying the Nalle & Co. account, except with the consent and upon the requisition of said Glass.”

We concur in the conclusion reached by the learned trial court as to the proper construction of the written contract.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    ROBERTSON v. TALMADGE et al.
    (No. 719.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 13, 1915.
    Rehearing Denied March 6, 1915.)
    1. Trespass to Try Title @=>40 — Evidence —Unsigned Copy op Report op Commis-, sioners to Partition — Admissibility — “Decree.’*
    A certified copy of an. unsigned report of commissioners to partition a tract, forming a part of the record of the ease, and showing a partition between the heirs of the deceased owner, is admissible, in connection with other evidence in'trespass to try title between the heirs, to show a partition, though the report is not a “decree” which is a declaration of the court announcing the legal consequences of the facts found.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. @=> 40.
    For other definitions, see Words and Phrases, First and Second Series, Decree.]
    2. Evidence @=>372 — Archives op Land Office — Ancient Documents.
    A letter addressed to the Commissioner of the General Land Office and forming a part of the records of the Land Office is admissible as an archive of the Land Office when more than 30 years old.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. @=>372.]
    3. Evidence @=>382 — Archives of Land Office-Ancient Documents.
    Whether a letter offered in evidence as an archive of the General Land Office was a forgery held under the evidence for the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1658, 1659; Dec. Dig. <£=382.]
    4. Evidence @=>474^Genuineness of Handwriting.
    A witness who testified that he had known a county clerk of a county for many years and knew his handwriting, having frequently seen him write, could testify that he had made an examination of a signature purporting to be that of the county clerk found among the papers in the General Land Office and that in his opinion the signature was not genuine, as against the objection that the testimony referred to a document not produced in court.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. @=>474.]
    5. Courts @=>89 — Controlling Decisions— Courts op Texas — Military Courts.
    A decision of a military court in Texas existing under reconstruction laws is not binding authority.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312; Dec. Dig. @=>89.]
    6. Evidence @=>197 — Handwriting — Genuineness-Proof of Comparison.
    A signature cannot be proved by comparison when the signature is not before the court.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681 ½ ; Dec. Dig. @=>197.]
    7. Evidence @=>564 — Handwriting — Genuineness — Proof op Comparison.
    Persons who are experts on the question of handwriting may not testify to the genuineness of a signature of an officer to papers submitted to them for comparison with signatures on other papers not filed in the case and their genuineness being denied.
    [Ed. Note. — For other .cases, see Evidence, Cent. Dig. §§ 2385-2389; Dee. Dig. @=>564.]
    8.Trespass to Try Title ⅞=>39 — Evidence-Admissibility.
    Where in trespass to try title defendant relied on partition, whereby plaintiff obtained a part of the land of the deceased ancestor of the parties, evidence that the land alleged to have been allotted to plaintiff was absorbed by conflict with another league grant was admissible as against the objection that it was improper to show conflict without field notes, and that the testimony was irrelevant and immaterial.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. @=>39.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by Sterling C. Robertson against Clara A. Talmadge and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Bean & Klett, of Lubbock, for appellant. Ferguson & Puckett, of Lubbock, for appel-lees.
   HALL, J.

The appellant instituted this suit in trespass to try title in the district court of Lubbock county, September, 1912, to recover an undivided one-fifth interest in two tracts of land described in the petition. The appellees Mollie E. Wright, Milton A. Wright, and Lou Addie Wright, filed pleas of not guilty and asserting title in themselves sought to remove the cloud of appellant’s claim from their lands. Appellee Mrs. Tal-madge made no defense. The court directed a verdict, and judgment was duly entered, from which this appeal is prosecuted.

In 1841, a headright certificate was issued to James R. Robertson, for a league and labor of land. Some time during the year 1S47, approximately 4,043 acres of this certificate -was located in Robertson county, in two contiguous surveys, and the remainder of the certificate was located in 1850. In June, 1878, an unlocated balance certificate was issued for 1,892 acres, which was located in Lubbock county and patented to James R. Robertson. The 830 acres in controversy is part of the Lubbock county location. It is admitted that appellant is one of the five heirs of James R. Robertson, the patentee of the Lubbock county land. The appellees Wright and Talmadge hold conveyances from all the heirs except appellant to the land in controversy. James R. Robertson and his wife having died, it is claimed that there was a partition of the land between the five heirs. The defendants introduced in evidence as part of the deposition of J. H. Walker, chief clerk of the land office, certified copies of the following letters from the land office:

“Salado, Bell County, Tex., September 22, ’76.
“Hon. Jacob Gross, Commissioner G. L. O.— Dear Sir: This is to request that you do not allow the headright certificate of James R. Robertson for one league located in Robertson county, in conflict with the George Antonio Nixon 11 League grant, to be lifted for relocation by anyone without my consent as one of the heirs .and owners of said league of land, as I wish it to remain where it is.
“Yours respt, S. O. Robertson.”
“January, 1, 1S78.
“To the ITon. J. J. Gross, Commissioner of the General Land Office of the State of Texas— Dear Sir: I hereby consent that the headright certificate of James R. Robertson, located on the 11-league grant of George Antonio Nixon, in Robertson county, Texas, may be withdrawn from the General Land Office, except that portion of it which covers 808½ acres of land that was apportioned to me as one of the heirs of James R. Robertson, deceased, and one tract that was purchased by me and one purchased by my father, E. S. O. Robertson, that belong to the estate of P. D. Robertson, deceased,, as will more fully appear by reference to the accompanying plan and field notes of partition of said league, among the heirs of James R. Robertson, and the deeds of conveyance, that is to say:
Tract No. 1, E. D. R.Ill acres
” ” 3, S. C. R.115 acres
» ” 7, S. C. R.161¼ acres
» ” 15, S. C. R.321 acres
S. G. R.100 acres
808¼ acres
“I have no objection to any disposition the heirs and owners of said certificate may desire to make of the remainder-of the certificate after deducting the about mentioned 80Sa/4 acres, which I protest against being lifted or moved from the above mentioned tracts.
“Yours respectfully,
“Sterling O. Robertson,
“By E. Sterling 0. Robertson. “E. Sterling C. Robertson.
“Approved.”

This letter is designated in the statement of facts as “Exhibit E,” and attached to it as part of the deposition and exhibit are what appear to be copies of field notes of the subdivisions of two James R. Robertson surveys, together with a copy of what appears to be the report of the commissioners to partition the headright league belonging to the estate of James R. Robertson; also, copies of certain administrator’s deeds and a plot of such subdivisions. It appears that the instruments designated as Exhibit E have been in the land office ever since they were filed there in 1878. Prior to filing these instruments in the General Land Office, appellant conveyed a portion of the land described in the exhibits as having been partitioned to him, and in 1884, six years after the filing of these papers in the land office, he conveyed another portion of the 808½ acres. The record does not show whether or not he owns the remainder of the 808½ acres.

The first assignment of error is that the court erred in admitting that part of Exhibit E attached to the deposition of Chief Clerk Walker, designated as “a certified copy of the field notes and unsigned report of partition filed with the county clerk of Robertson county.”

The record shows .that there is attached to this unsigned report of partition the following certificate:

“The State of Texas, County of Robertson.
“I, Phalielo W. Hall, clerk of the county court aforesaid, do certify that the foregoing instrument in writing is a correct copy and true of the field notes of the different surveys and decree of partition of the estate of James R. Robertson, deceased, as the same appear from the original papers in said succession, on file in my office.
“Given under my hand and seal of office at Owensville, this the 6th day of Slay, 1869.
“P. W. Hall, Clerk O. C. R. C.”

On the back of this instrument was a plat, subdividing the land. The subdivisions were numbered from 1 to 15. Nos. 3, 7, and 15, the initials S. C. R. written in them; the remaining subdivisions each having the initials of one of the other heirs.

Under this assignment the proposition is urged that an instrument on file in the clerk’s office, purporting to be a report of commissioners which has not been signed, nor approved by the court, does not constitute a decree of partition. As stated above, the certified copy from the General Land Office showing this instrument was a part of Exhibit E, and attached to the letter of January 1, 1878.

The point raised by this proposition is not one of admissibility, but it questions the effect of the unsigned report of the commissioners. The instrument which appellees claim is a decree and which appellants designate as “an unsigned report of the Commissioners” is in part as follows :

“The State of Texas, Robertson County.
“In the County Court of said County.
“In the Succession of James R. Robertson, .
Deceased.
“To the Honorable J. B. Ellison, County Judge:
“The undersigned duly appointed and legally authorized commissioners, appointed by your honorable court to partition and divide the head-right league of land belonging to the estate of James R. Robertson, deceased, among the heirs of said Robertson, and to pay expense of administration pursuant to the right of partition directed to us, concerning the laws in accordance with the accompanying decree of your honorable court accompanying said writ, proceeded to partition and divide the aforesaid league of land in the following manner, as shown by the plot hereto attached, that is to say: To IT. H. Robertson we set apart that tract of land described in the field notes hereto attached,” etc.

The instrument then in detail giving the field notes of each tract allots to each of the heirs certain tracts according to the numbers as shown on the plot, and to appellant the tracts as stated in his letter of January 1, 1878, setting aside 500 acres of the tract for the purpose of paying “costs of court and expenses of administration as directed in your decree above,” and closes as follows:

“And we, the undersigned commissioners, show that the above and foregoing partition made by us, by virtue of said writ, issued from the honorable countj' court of Robertson county, directed to us, in accordance with the decree of said court accompanying said writ, is a fail-, just and impartial partition of said league of land among the heirs of said deceased and for paying the expenses of administration and costs of court, to the best of our skill and ability. In testimony whereof we have hereto signed our names this the 14th day of January, A. D. 1868.”

This instrument is certainly not a decree, notwithstanding the statement in the certificate of County Clerk Hall to that effect. It does not purport to be and cannot be construed as “the declaration of the court announcing the legal consequences of the facts found.” Trammell v. Rosen (Sup.) 157 S. W. 1161. It is simply an unsigned copy of a paper which might have at one time been filed among the papers of the cause. Teague v. Swasey, 46 Tex. Civ. App. 151, 102 S. W. 458. We do not want -to be understood as holding that it was inadmissible for any purpose. We think it was admissible in connection with other evidence tending to show a partition and that appellant’s portion of the estate had been set aside and received by him.

Appellant’s second assignment of error is predicated upon the admission in evidence of the letter dated January 1, 1878, set out above. In Robertson v. Brothers, 139 S. W. 657, Dunklin, Justice, considered this letter and held it to be an archive of the land office and admissible, because more than 30 years old. We approve this holding and think that the same may be said of the copy of the commissioner’s report and field notes, the deed from the administrator of the estate to Sterling C. Robertson, and the plot which accompanied the letter, unless appellant had shown that the letter was a forgery. Appellant attacked the genuineness of the letter and testified that he never wrote, authorized, directed, or instructed any one else to write for him any letter to the Commissioner of the General Land Office, consenting that any part of the Robertson headright certificate might be withdrawn from the land office and stating that he had no objection to any disposition the heirs and owners of the certificate desired to make after deducting certain lands in Robertson county apportioned to him as one of the heirs of James R. Robertson. We think this was sufficient to put in issue the verity of the letter, and the question should have been submitted to the jury. Failure of the court to do so is reversible error.

What is here said disposes of the third and fourth assignments of error.

Axjpellant sought by the deposition of F. G. Prendergast to impeach the genuineness of the signature of P. W. Hall, the county clerk of Robertson county, to the certificate following the exhibits attached to the letter testified to by Chief Clerk Walker of the land office. Prendergast testified that he had known P. W. Hall during his lifetime since 1861; knew his handwriting, having frequently seen him write; that he had made a careful examination of the signature purporting to be that of P. W. Hall found among the papers pertaining to the James R. Robertson headright certificate in the General Land Office; and that in his opinion the signature was not the genuine signature of P. W. Hall. The appellees objected to the testimony because it referred to a document not produced before the court, and upon this objection the evidence was excluded. We think this- was error. If the witness had seen the signature in question, it was not necessary for it to be produced in court for the inspection of the judge and jury. We are cited to the case of Renn v. Samos, 33 Tex. 674, as sustaining ap-pellees’ objection. This case is not in point. It presented no issue of forgery and merely raised a question of the identity of a will, which it had been alleged was procured by fraud and undue influence. Besides, this opinion was rendered by the “Military Court” of Texas, and is not binding authority. Taylor v. Murphy, 50 Tex. 291; Peck v. City of San Antonio, 51 Tex. 490.

The court refused to admit in evidence two documents bearing the signature of P. W. Hall as county judge of Robertson county for the purpose of being used as standards of comparison on the question of the genuineness of the signature of Hall. The genuineness of these signatures was denied by appel-lees. The present county clerk of Robertson county had testified by deposition that said documents were regular files in his office and, so far as he knew, had always been treated as genuine and official signatures. The rule is established in this state that a signature cannot be proved by comparison when the signature itself was not before the court. Mugge v. Adams, 76 Tex. 448, 13 S. W. 330.

In our opinion the court did not err in excluding the testimony of the expert witnesses in the land office, who testified by comparing the signature to the papers sent them with that of P. W. Hall then on file in the General Land Office. The testimony of Truett did not establish the genuineness of the signature of Hall to the two papers ^submitted to the experts in the General Land Office at Austin, and these signatures not being found upon papers filed in the case, and their genuineness being denied by appel-lees, this testimony was properly excluded. Woodward v. Keck, 97 S. W. 852.

For the purpose of showing that the land alleged to have been allotted to Sterling C. Robertson in Robertson county was absorbed by conflict with the Nixon 11-league grant, the appellant offered in evidence a certified copy from the land office at Austin of that part of the official map of Robertson county which tended to prove this fact. Ap-pellees objected on the ground that it was improper to show conflict without field notes and because the testimony was irrelevant and immaterial. We think the action of the court in sustaining this objection was error. Hollingsworth v. Hblshousen, 17 Tex. 51; Railway Co. v. Bowie, 2 Tex. Civ. App. 437, 21 S. W. 304.

The ninth and last assignment challenges the sufficiency of the evidence to support the verdict. Since the judgment must be reversed and the cause remanded for another trial, this assignment will be disregarded.

Appellant’s brief in this case is typewritten and 23 pages in length. This is a violation of rule 37 for Courts of Civil Appeals (142 S. W. xiii) and Vernon’s Sayles’ Civil Statutes, art. 1614. The writing is double-spaced, however, clearly written, and well prepared, and, on account Of the issues involved, we have for this time waived the irregularity and considered it, since appellee does not object, but our action must not be taken as establishing a precedent.

For the errors pointed out, the judgment is reversed, and the cause remanded.
      @=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    KELLY v. A. B. CROUCH GRAIN CO.
    (No. 724.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1915.)
    1. Venue <§==532 — Change—Action in Wrong County — Waiver.
    A motion to vacate a default judgment, which alleged, as was necessary, a meritorious defense to the action, is not a waiver of defendant’s right thereafter to plead his persona] privilege to be sued in the county of his residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. <§=>32.].
    2. Venue <§=>32 — Motion to Change — 1Time for Filing — “Appeabance. ”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 18S3, providing that, where the citation of service is quashed on motion, the cause shall be continued for the term, but the defendant shall be deemed to have entered his appearance to the .succeeding term, the “appearance” thus entered is the appearance that the service of a proper citation would have produced, and the defendant may thereafter plead his personal privilege.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. <§=>32.
    For other definitions, see Words and Phrases, First and Second Series, Appearance.]
    3. Corporations <§=>503 — Motion to Change VEnue — Affidavit—Correction.
    The trial court can permit a defendant corporation to correct a defective affidavit in support of a plea of personal privilege by permitting the president of the corporation to swear to it in lieu of the affidavit of the attorney.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1835-1939, 1942-1946; Dec. Dig. <§=>503.]
    Appeal from Wilbarger County Court; A. B. Copeland, Judge.
    Action by Sam Kelly against the A. B. Crouch Grain Company. From a judgment sustaining defendant’s plea of personal privilege, plaintiff appeals.
    Affirmed.
    Cook & Cook, of Vernon, for appellant. Berry, Stokes & Morgan, of Vernon, for ap-pellee.
   HENDRICKS, J.

The correctness of the judgment of the lower court, sustaining a plea of personal privilege, is the issue in this cause. The appellee, A. B. Crouch Grain Company, is a corporation with its domicile in Bell county, Tex. The appellant, Sam Kelly, instituted suit on the 12th day of January, 1914, in the county court of Wil-barger county, against the grain company; the citation purporting to summon the grain company to the March term of said court.

On the 2d day of March, 1914, the first Monday, the defendant grain company filed its motion to quash the citation and service upon the alleged ground that the officer serving said citation did not deliver to it an accompanying certified copy of plaintiff’s petition, which motion was never called to the attention of the court.

On Tuesday, the 5th day of May, 1914 (the court having convened on the 4th, the first Monday in May), a judgment by default, on account of lack of appearance, was rendered against defendant. At 4 o’clock p. m. the defendant corporation filed its plea of privilege, alleging its residence in Bell county, Tex., and the sufficiency of the evidence to sustain the plea, as well as the sufficiency of the allegations, are conceded in this cause by the appellant, except an alleged imperfect affidavit hereinafter mentioned.. At 5:30 p. m., the 5th day of May, 1914, the defendant corporation filed its motion to set aside the judgment by default rendered in the cause, praying that it be allowed to plead therein, for the reason that it did not know that the commissioners’ court of Wilbarger county had fixed the term of the county court to begin on the first Monday in May, 1914, which was a different date for holding a term of said court from that specified in the Revised Statutes, and the defendant was misled thereby, and further alleging a meritorious defense to the cause of action asserted by plaintiff, not necessary to set out, praying that the judgment by default be set aside, and that it be allowed to file its plea in said cause.

On the 20th day of June, at the same term of the court, the parties in open court agreed that the court should vacate the judgment, which1 was accordingly done; and thereafter, on the same day, defendant’s plea of privilege was sustained by the court, which action is challenged in this court, principally upon the theory that appellee having filed a separate motion to vacate the judgment by default, with no reference therein to the plea of privilege, and thereby invoking, as stated, “the power of the court in aid of the defendant’s defense,” the plea of privilege was waived.

The appellant invokes a line of authorities, which we have attempted to carefully analyze, but which we think have no just application to the status of this cause. We infer that the 5th day o.f May, 1914, was appearance day for this cause, and the first day in which defendant was required to answer. The defendant was impelled to in-vote tlie jurisdiction of tlie court for the purpose of setting aside the judgment, and the plaintiff, appellant herein, conceded that sufficient grounds in the motion existed; also defendant was compelled to allege a meritorious defense, addressed to the equitable powers of the court, in order to attain the end desired; otherwise the judgment by default would of course have been good. Defendant was not submitting itself to the court for any other jurisdictional purpose than to set aside the default judgment and file and present its pleas. Appellant’s position, we think, is inconsistent in that, referable to the relief applied for and granted herein, the defendant was attempting to place its status as a litigant in the cause, for the very purpose, we take it, of presenting and pleading, not only a defense to the merits, but all defenses to which it may be entitled. It is true it asked the court to set aside the default judgment so that it may be allowed to plead in the cause, and it may also be inferred that it asked this right so that a pleading to the merits could be filed and presented. It is also true that, if it had filed and presented a plea to the merits without the presentation of the plea of venue, the latter would have been waived; but defendant had the right to file its pleas in accordance with the due order of pleading after the judgment was set aside, and the motion was addressed to the consideration of the court solely for the purpose of placing the cause in the same condition as it would have existed had no judgment been rendered. The case of Thomas v. Ellison (decided by the Gourt of Civil Appeals of Dallas) 110 S. AV. 935, and the nearest decision in point, seemingly supporting appellant’s contention, on a proper consideration, we think is not really pertinent. A judgment by default was entered in that cause, and upon motion the same was set aside. Thereafter another motion was filed, asking until the next term of court in which to file an answer in the cause, which was granted. Several months thereafter, at the next term, the defendant filed its plea of privilege, which the trial court overruled, and the appellate court sustained the action of the trial court, not only upon the ground of waiver of the plea, but also on the ground of the alleged deceit and fraud set up in plaintiff’s pleadings. Appellant evidently deduces the seeming analogy that because in the Thomas-Ellison Case the court granted until the next term to file an answer, and that because in this cause appellee prayed to set aside a default of judgment, and for the right to plead, if in the former case the plea of privilege was waived, it should be in this case. The prayer for the right to file an answer is entirely surplusage; it would follow from setting aside the judgment. The defendant would have had the right to have amended and em-Dodied its plea of personal privilege with its answer to the merits, if the due order of pleading were regarded. Tt also had the right to file a plea of personal privilege, and then present its motion with sufficient allegations of a meritorious defense and invoke the jurisdiction of the court solely for the purpose of setting aside the judgment, and the cause then standing as it before stood, without any judgment, present its plea of privilege without filing any plea to the merits, and, if good, the cause would have gone to Bell county.

Appellant cites numerous authorities, illustrated by York v. State, 73 Tex. 651, 11 S. W. 869, construing article 1883, Vernon’s Sayles’ Civil Statutes, with reference to appearance at the succeeding term of the court, where motions have been made for the purpose of suppressing service, which we also think have no application here. It is true that under that statute, and as construed by the numerous decisions, the defendant enters his appearance at the next term of the court; but his appearance is entered at the next term of the court for the purpose of answering to the cause. F. T. Ramsey & Son v. Cook, 151 S. AV. 347. In the cause cited, Cook moved to strike the plea of personal privilege because the defendants had filed a motion to quash the citation, and hence had waived the plea. The effect of the appearance, as Justice Jenkins in substance decided, is merely that character of appearance that a proper citation, properly issued and served upon the defendant, would have produced.

In the case of Wolf v. Sahm, 55 Tex. Civ. App. at page 570, 120 S. AV. at page 1117, decided by the Court of Civil Appeals of the Austin District, it appears that, in the motions to set aside the verdict, the defendants referred to their plea of personal privilege theretofore filed, indicating an intention not to waive the same; but Justice Key, in the course of discussion, uses this significant language-:

“Appellant contends that that plea lof personal privilege] was waived, because appellees, in their motions seeking to set aside the former judgment, set up defensive matters relating to the merits of the suit. AVe are of the opinion that the documents in question were not pleadings, in the sense referred to in the decisions, which hold that a plea presenting the question of venue must precede a plea to the merits or be regarded as waived. It was necessary for appellees to get the former judgment set aside before they could file an answer to the plaintiff’s petition, and the documents filed by them, for the purpose of accomplishing that result, were intended for that purpose only, and not as pleas upon which to try the case.”

AVe think it is clear that the trial court had "the right to permit the appellee to correct a defective affidavit by permitting the president of the corporation to swear to the plea in lieu of the affidavit made by the attorney.

The judgment of the trial court is in all things affirmed.
      <§=Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WATSON v. PATRICK.
    (No. 400.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 11, 1915.
    Rehearing Denied March 4, 1915.)
    1. Appeal and Error <@=3301 — Assignment op Error — Motion por New Trial.
    An. assignment of error not contained in the motion for new trial, which under Acts 33d Leg. c. 186 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), constitutes the assignments of error on appeal when a motion for new trial is filed, cannot be considered by the appellate court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <@=3301.]
    2. Appeal and Error <@=>759 — Assignments oe Error — Copying in Brief.
    Assignments of error, as they appear in the motion for new trial, must be correctly copied in the brief on appeal, in order to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <@=3759.]
    3. Sales <@=3417 — Breach oe Contract by Seller — Evidence.
    Evidence held to show a seller’s breach of contract by failure to deliver.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. § 1173; Dec. Dig. <@=3417.]
    4. Sales <@=>82 — Contracts — Payment oe Price.
    A contract of sale, which calls for delivery f. o. b. for shipment, does not call for payment or tender before delivery to a carrier.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 229-233; Dee. Dig. <@=382.]
    5. Sales <@=3161 — Contracts—Delivery.
    Where a seller, under a contract calling for shipment as directed by the buyer, shipped goods contrary to instructions, there was no delivery under the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dee. Dig. <@=3101.1
    6. Sales <@=3101 — Contracts—Delivery.
    Where a seller, under a contract calling for delivery f. o. b. cars and shipments as directed, forwarded goods under a bill of lading, calling for delivery to himself, and the goods were never received by the buyer, there was no delivery.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dee. Dig. <@=3161.]
    7. Trial <@=3350 — Issues—Questions’ oe Law and Fact.
    Where, in an action by a buyer for the seller’s breach of contract, the seller claimed damages for the buyer’s wrongful attachment, and also prayed judgment for the value of goods shipped, a submission of the issue, “Was defendant [the seller] indebted to plaintiff [the buyer] in the sum of $875 when said attachment was sued out?” involved a question of law and fact, and was improper, since it is only issues of fact that are for the jury, while questions of law are for the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. <@=>350.]
    Axipeal from Ward County Court; Burch Carson, Judge.
    Action by H. H. Watson against T. L. Patrick. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Lacy & Bramlette, of Longview, and John B. Howard, of Pecos, for appellant. B. W. Baker, of Barstow, W. A. Hudson, of Pecos, and W. B. Brack and J. F. McKenzie, both of El Paso, for appellee.
   HIGGINS, J.

Watson brought this suit against Patrick to recover damages occasioned by breach of contract for delivery of 30 tons of hay to be delivered f. o. b. Barstow, Tex., and shipped during months of either July, August, or September, as directed by Watson. A number of cars were shipped, and on August 16th Watson instructed Patrick to let the balance of the hay due on the contract come forward to Longview. Six cars were shipped after this instruction was received. Eleven cars in all were shipped under that contract. Subsequently, in the month of October, ten ears were bought and delivered. In November an order for five cars was given, and upon this order four ears were shipped. They were not shipped in accordance with the instructions given, and Watson did not accept same. Watson about this time filed this suit to recover his damages arising from the breach of the 30-car contract. He caused an attachment to be issued, under which the 4 cars last mentioned were seized.

In bar of the suit, Patrick answered, admitting the contract declared upon, but averred that he only received shipping instructions for 11 cars during the months of July, August, and September, and these he had shipped. The answer also contains certain irrelevant matter, constituting no bar to the action, and it will not be stated. By cross-action he alleged the sale and shipment of the four ears in November and prayed judgment for its value. The wrongful issuance of the attachment was also averred and damages claimed by reason thereof.

Upon trial, the cause was submitted upon special issues, and, upon the answers of the jury thereto, judgment was rendered that Watson take nothing by his suit; that Patrick upon his cross-action against Watson recover $590.98, the value of the four cars shipped in November; that Patrick take nothing upon his cross-action for damages arising from the alleged wrongful issuance of the attachment.

The first assignment cannot be considered. There is no such assignment in the motion for new trial which, under chapter 136 of Acts of 1913, constitutes the assignments when a motion for new trial is filed in the court below. Edwards v. Youngblood, 160 S. W. 288; Dees v. Thompson, 166 S. W. 56. And the assignments, as they appear in such motion, must be correctly copied in the brief. Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35; Lakeside Irr. Co. v. Buffington, 168 S. W. 21; Coons v. Lain, 168 S. W. 981.

The rule that the assignments, as filed in court below, must be correctly copied in brief, applies in all instances, and it is not permissible to present reconstructed assignments in brief. Rutb v. Cobe, 165 S. W. 530, and cases there cited.

Other assignments question the sufficiency of the evidence to support the findings and judgment. They must be sustained. The undisputed and admitted facts disclose a breach by Patrick of the 30-car contract, and ensuing damage. On August 16th instructions were given to let the balance of the hay come forward to Longview, but only six cars were so forwarded. Defendants, Patrick and Billberry, testified that they did not forward the balance because they did not consider the shipping instructions sufficient. They did not, in the lower court, undertake to point out in what respect the instructions were insufficient and none is suggested here. They made no complaint to Watson of any want of certainty in shipping instructions. This court can see no insufficiency whatever therein. Furthermore, Patrick and Billberry considered them sufficiently definite to ship six cars thereon, and, if they were sufficient for that number, they would assuredly be sufficient for the entire balance. There was no release or waiver shown by Watson of his claim arising from the breach of this contract. If he did so, it was without consideration and invalid. Neither is there any merit in the suggestion of appellee that, under the contract of purchase, it was necessary for Watson to have alleged and proven a tender of payment. There is no such issue raised by the defendant’s pleadings. Furthermore, under no circumstances could Watson have been required to tender payment until the hay was loaded for shipment. It certainly could not be contended that payment or tender of payment was necessary before delivery was made to the carrier. Judgment should have been rendered for the damages sustained by Watson arising from the breach of the 30-car contract.

The judgment in favor of Patrick upon his cross-action for the value of the four cars shipped in November is likewise unsupported by the evidence. In the first place there is no competent evidence of the value thereof. Furthermore, two cars of this shipment were shipped to Longview, contrary to instructions. There was therefore no such delivery in accordance with the contract as would pass the title thereto (Estill v. Weaver, 19 Tex. 543; Hoover v. Maher, 51 Minn. 269, 53 N. W. 646; Simpkins’ Contracts and Sales, 347), and, as to the two forwarded to Footes, bill of lading was taken out calling for delivery to Patrick. The two cars were never received by Watson, and title remained in Patrick. Bank v. Railway Co., 79 S. W. 1094; Sohn v. Jervis, 101 Ind. 578, 1 N. E. 73.

Title to the four cars having never passed to Watson, the judgment against him for the purchase price upon theory of a sale and de-

livery to him is thus wholly unsupported by the evidence.

The seventh assignment complains of the submission of this issue to the jury: “Was defendant indebted to the plaintiff in the sum of $875 when said attachment was sued out?” The assignment is sustained. The issue involved a mixed question of law and fact. It is the sole province of the jury to pass upon issues of fact. Questions of law must be passed upon by the court.

Reversed and remanded.
      <@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    COOK et al. v. HARDIN.
    (No. 7302.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 20, 1915.)
    1. Appeal and Error <§=>555 — Record — Statement op Facts — Bills op Exception —Scope of Review.
    Where the statement of facts and bills of exception were stricken from the record, assignments challenging the sufficiency of the evidence to sustain the verdict, or the propriety of the charge, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2955; Dec. Dig. <§=>555.]
    2. Limitation op Actions <§=>103 — Limitations — Accrual op Right.
    1’laintiff, who was defendant’s grandmother, conveyed land to him to enable him to renew a loan and also upon the security of the land to borrow money which he needed to carry out another enterprise. Defendant agreed to recon-vey the land whenever plaintiff desired it. Although frequently requested to reconvey, defendant put plaintiff off with one excuse after another for about 'four years. At the end of that time, plaintiff, having discovered that defendant had conveyed the land to another, sued to cancel her deed on the ground of fraud. lield, that the original conveyance created a resulting trust in favor, of plaintiff, and the four years’ statute of limitations (Rev. St. 1911, § 5690) applicable to suits to cancel deeds did not begin to run until plaintiff discovered defendant did not intend to comply with his agreement, and hence suit, having been brought within a few months after plaintiff’s discovery of such fraud, was not barred/
    LBd. Note.--I<'or other cases, see Limitation of Actions, Cent. Dig. §§ 500, 508-510; Dec. Dig. <§=103.J
    3. Cancellation op Instruments <§=>4 — Right to Cancellation.
    In such case, plaintiff was entitled to have her conveyance canceled on the ground of fraud.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 1; Dec. Dig. <§=> 4.]
    4. Limitation of Actions <©=>104 — Running of Statute.
    A fraudulent concealment of a cause of action takes the case out of the statute, and limitations do not begin to run until the discovery of the right of action.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 511-513; Dec. Dig. ■§=>104.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by Mrs. N. Ann Hardin against D. L. Cook and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.

      Huffmaster 8a EQúffmaster, of Kaufman, for appellants. O. M. Crumbaugh and Da-shiell & Coon, all of Terrell, for appellee.
   RASBURY, J.

This suit was instituted November 16, 1912, and had for its purpose the cancellation of certain deeds to land and notes secured by liens thereon, and for other relief not material on this appeal. There was a trial by jury upon special issues. Upon verdict of the jury judgment was entered canceling the deeds and notes as prayed, from which this appeal is taken.

There are a number of assignments of error contained in the brief, all however challenging the sufficiency of the evidence to sustain the finding of the jury, or the action of the court in giving its main charge or in giving or refusing to give special charges, to the consideration of any of which counsel for appellee objects, grounding such objections on the action of this court in heretofore striking from the record the statement of facts and. bills of exceptions. The bills of exception and statement of facts having in fact been stricken from the record, the objections will necessarily be sustained. This leaves but one assignment for our consideration, that being the action of the court in overruling appellants’ fourth special exception (which was preserved by proper order, and which is not dependent upon either the bills of exception or statement of facts), urging that the allegations of appellee’s petition show that appellee was guilty of “laches and inattention to their supposed rights in failing to assert them within the time prescribed by the law of limitation,” and are as a consequence barred from prosecuting such rights. This makes it necessary to state the facts upon which appellee’s cause of action was based, as disclosed by her pleading, the essential parts of which, in our own language, are substantially as follows: •

Being the owner of and in possession of certain lands in Kaufman county on September 8, 1905, appellee was approached by appellant D. L. Cook, her grandson, who informed her that he was in need of $800 with which to improve lands he owned and was unable to secure same and requested appellee to permit him the use of appellee’s land for that purpose, explaining that he could borrow the money upon her land and at the same time renew and extend an indebtedness then existing against the same and in time repay the money obtained for his own use. Appel-lee directed appellant to ascertain if his mother, appellee’s daughter and one of the appellants herein, approved the plan. Eater appellant returned and said his mother did approve. Appellee then told appellant he might have the use of her land for such purpose on condition that appellant would repay the amount borrowed thereon for his use, or, failing so to do, such amount should ■ be a charge against the expectant interest of his mother in the land. Thereupon appellant informed appellee that in order for him to borrow money on the land it would be necessary for appellee to deed same to him, in order that he might in turn execute deed of trust thereon for the sum he desired. Appel-lee executed the deed on condition that appellant would return her the land -whenever she desired it, said deed reciting the payment by appellant of $8,650 cash and the assumption of said $1,350 note. In truth, no consideration whatever was paid to appellee. Upon various occasions after conveying said land to appellant D. L. Cook, appellee requested him to reconvey same to her, but appellant would make excuses for not doing so, upon which appellee relied, thus deferring the matter but promising from time to time to do so, such promises being both oral and in writing, the last promise of appellant having been by letter written in the spring of 1912. In September or October of said year appel-lee discovered for the first time that appellant did not intend to reconvey the land and had been deceiving her in that respect. Whereupon she had an abstract of the title to her lands made, and discovered that appellant had placed another mortgage on the land increasing the incumbrance to $3,500, and had in October, 1912, conveyed the land to Maggie Ayres Porter (one of the defendants below), in consideration of $1 cash and $10,000 in notes, said Maggie Ayres Porter having in turn conveyed the land to Mrs. M. E. Cook, appellant’s mother and appellee’s daughter, in consideration of $1 cash and the assumption of the debt against same. At the time appellant induced appellee to deed said land to him for the use aforesaid, he did not intend to reconvey same to her, all his representations in that respect made at the time of said conveyance being false and fraudulently made for the purpose of cheating and defrauding appellee and acquiring said land for himself. Appellee had great love for and confidence in appellant, her grandson, and consulted him with relation to her business affairs and permitted him to sign her name to bank checks withdrawing .her moneys, and continued to repose great confidence in him until she became suspicious of his continued failure to observe his promise to reconvey the said land, and discovered as aforesaid in the year 1912, by examination of the records, that he was attempting to claim her land. Because of her confidence in her daughter, with whom she resided, and her grandson, and by reason of their undue influence over her, and her physical and mental weakness, and her ignorance of business matters and the manner of conveying land, and because she did not know or have made known to her the contents of said deed, she did not know she was irrevocably deeding same away, and did not intend to do so, but, on the contrary, believed she was only taking such steps as were necessary to enable appellant, her grandson, to borrow tbe amount of money he desired and renew the loan then upon the land. Appellee had been in possession and control of the land since 1856, actually occupying same until 1890, and after that time in actual control and possession thereof, collecting all rents thereon and depositing same in her name, without interference from appellants, either in the use or the control thereof. The deed from appellee to Maggie Ayres Porter and the one from the latter to M. E. Cook, appellee’s daughter, as well as the consideration therein recited, were simulated and false and part of the scheme or plan to cheat and defraud her out of said lands. The prayer was that the deeds and notes be canceled and for other relief not material on this appeal.

The contention of appellant is that the facts related disclose that appellee’s right to maintain the suit is barred. The suit being one to cancel deeds, etc., for fraud is controlled by article 5690, R. S. 1911, and is barred unless brought within four years next after the right to bring the same shall have accrued, and the pertinent inquiry is: When did appellee’s cause of action under the facts accrue? In that connection it is important to determine the status of the parties under the facts when the deed passed. We think it clear that the facts stated show that it was not intended by the deed from appellee to appellant to pass title, but to create a trust for the benefit of appellant and appellee, and that that was the result of the transfer. Appellant was a beneficiary of the trust so created to the extent that he was authorized to use the land in securing the payment of the $800 it was agreed he could borrow, and appellee a beneficiary to the extent that she was entitled to a return of the land when its use by the trustee had been completed. £>uch was the legal status of the parties under the alleged facts at the time appellee deeded the land to appellant. Such status continued until appellant repudiated the trust relation or did or said that which in law would have amounted to a repudiation of the relation. Rice v. Ward, 92 Tex. 704, 51 S. W. 844. The act of appellant in deeding the land to Maggie Ayres Porter, and securing her in turn to deed same to appellant’s mother, was beyond doubt a repudiation in law of the trust, and set in motion the statute of limitation whenever the facts became known to ap-pellee. These acts, however, occurred during the same year in which the suit was filed and were ineffective to bar the suit, since the period of time necessary to bar the cause of action had not elapsed. The fact that ap-pellee requested appellant to reconvey the land on several occasions, and that he failed to do so, and that more than four years elapsed after such promises were made before suit was filed, is, under the alleged facts, insufficient to show repudiation as matter of law. On each occasion when requested to reconvey appellant would, according to the allegations of the petition, excuse himself for not doing so, meaning, in the ordinary acceptation of the term, justification or apology for not doing that which he in effect acknowledged he-was bound in law to do, coupled with a promise to do so later. Such allegations are insufficient to show repudia,tion in law, since they in no respect imported notice or knowledge of repudiation, but were calculated rather to conceal any formed intention of renunciation. The only other alleged fact urged as constituting repudiation is the execution by appellant of the second mortgage upon the lands. Even if such fact established repudiation, the petition fails to show affirmatively that appellee had knowledge thereof four years next before the accrual of her cause of action and that as a consequence the cause was barred.

We also conclude, having in mind at all times that we are considering the cause from the standpoint of the sufficiency of the facts alleged in the petition, that the petition states a cause of action, and that it is not barred by the- four years’ statute, on the theory that appellant at the time he secured appellee to convey him the land in trust did so with the design and purpose of cheating and deceiving appellee and had no intention at that time of ever reconveying the land, but that' the promise to do so was made in order to induce appellee to execute the deed. Such acts and promises, coupled with the subsequent failure to reconvey, constituted such fraud as entitled appellee to rescission. Chicago, Tex. & Mex. Cen. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39. The alleged facts will sustain also the claim that appellant’s intention was fraudulently concealed from appellee, and that appellee only discovered appellant’s intention in reference to the trust in the year 1912. The rule of law is that. the fraudulent concealment of plaintiff’s cause of action takes the case out of the bar of the statute, and limitation commences to run from the time of the discovery of the fraudulent intent, subject to the limitation that the failure to discover the fraud is not attributable to the neglect of the plaintiff, which is not shown by the petition. Texas & Pacific Ry. Co. v. Gay et al., 86 Tex. 571, 26 S. W. 599, 25 L. R. A. 52, and cases cited.

For the reasons stated, the judgment is affirmed.
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