author: HENDRICKS, J.

text:
    J. I. CASE THRESHING MACH. CO. v. FIRST NAT. BANK OF DECATUR.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1913.)
    1.PRINCIPAL AND AGENT (§ 89)- — ACTIONS — Speculative Damages.
    In an action for damages for the fraudulent interference of a selling agent’s principal, whereby it was claimed the agent was deprived of a commission, it appearing that the principal made a direct bargain with a customer whom the agent had interested, the agent cannot recover his commission, in the absence of a showing that the purchaser would have bought without a reduction made by the principal.
    [Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 216, 229-239; Dec. Dig. § 89.]
    2.Pleading (§ 169) — Supplemental Petition — Office of Petition.
    The basis of a plaintiff’s cause of action should not be left to be found in the supplemental petition.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. § 331; Dec. Dig. § Í69.]
    3.Appeal and Error (§ 1041) — Review — Harmless Error.
    A judgment will not be reversed merely because the basis of a plaintiffs cause of action appeared first in the supplemental petition.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041.]
    4.Payment (§ 9) — What Constitutes.
    Where a corporation, which was the selling agent of a manufacturer, assigned its claim to a commission out of which it had been defrauded by the manufacturer, the delivery to and retention by one member of the agent corporation of a nonnegotiable instrument for an installment of the commission in controversy does not constitute a payment, in the absence of any showing whether it was sent before or after the assignment of the claim to the plaintiff or the beginning of the suit.
    [Ed. Note. — Por other cases, see Payment, Cent. Dig. §§ 34, 38, 40, 41, 45, 49, 53; Dec. Dig. § 9.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by the First National Bank of Decatur against the J. I. Case Threshing Machine Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Spence, Knight, Baker & Harris, of Dallas, for appellant. R. E. Carswell, of Decatur, for appellee.

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

   HENDRICKS, J.

In this case the First National Bank of Decatur sued the J. I. Case Threshing Machine Company, a corporation, and Helm, Ward & Dillehay, another corporation, for $252.73, the appellee bank alleging that the latter was employed by. the Threshing Machine Company to represent it in the sale of its machinery and products in Wise county, Tex., and as agents to secure purchasers for the .sale of said machinery, and under the contract between them the Case Threshing Machine Company was to pay Helm, Ward & Dillehay, the agent corporation, a commission of 10 per cent, on the purchase price of all machinery that they might sell or be instrumental in selling in Wise county, and, where sales were made on deferred payments, the commissions to the agents were to be paid when the installments of the purchase price were paid by the purchaser of the machinery, and in the latter event when such sale was made the Threshing Machine Company was to issue to said agent nonnegotiable certificates representing the commission due upon each installment. The Threshing Machine Company, among other things, answered that the particular contract provided that, upon sales made by its agent and approved by the Case Company, the latter would pay a commission of 10 per cent, on the basis of list price and all discounts, deductions, or allowances of any kind were agreed to be charged against the commission. In reply the plaintiff, to whom this claim had been assigned, by supplemental petition, pleaded that, as to the particular sale with reference to which they were claiming a commission, the agents had made diligent efforts to sell to the purchasers, Thompson & Clegg, the threshing machine outfit, and that said Thompson & Clegg would have purchased the same from Helm, Ward & Dillehay, the agent corporation, but for the fraudulent interference and acts of defendant’s agents, alleging that one Moore, representing the Threshing Machine Company, came to Decatur, Tex., at night and conferred with the proposed purchasers, who met said agent at the train, and who persuaded the prospective purchasers to accompany him to Dallas to prosecute and complete the negotiations for said sale; that at Dallas said company sold said threshing outfit at a price less than the list price; and that but for the clandestine and fraudulent acts of said Moore, the agent corporation, Helm, Ward & Dillehay would have made the sale to Thompson & Clegg at the list price and would have earned its commission of $252.73. The evidence is undisputed that the list price of the machinery sold by the Threshing Machine Company to Thompson & Clegg was $2,494.75 ; that Thompson & Clegg purchased said machinery for $2,276.26, evidenced by seven installment notes of different amounts, maturing a£ different times between July, 1912, and August, 1915, the purchasers paying the freight of $257.76. The court, without the assistance of a jury, rendered judgment against the Threshing Machine Company for $249.47, which was 10 per cent, of the list price.

It will be seen that the theory of the appellees for recovery in this case was in reality attempted to be based upon allegations of a fraudulent destruction by the Threshing Machine Company of the fruits of its commission contract, having found the purchaser for the machinery, and, except for the alleged fraudulent interference of one of the Case Company’s agents, it could have realized upon its said contract by making a sale of the property at said list price. The record is totally lacking of any evidence to sustain what we consider a necessary element of plaintiff’s cause of action; that is, proof that the sale could have been made to Clegg & Thompson at the list price, the company agreeing to pay 10 per cent, commission, to be “calculated and allowed only on the basis of the list price.” The nearest case in point which has been presented or that we can find applicable to the question involved is that of Equitable Mortgage Company v. Weddington, 2 Tex. Civ. App. 373, 21 S. W. 577, which case, however, seemed to embrace an exclusive contract, by the terms of which the mortgage company was to make loans upon land in a certain county through no other person but its agent in that county, and the mortgage company, without the assistance of said agent, Weddington, negotiated loans upon land situated in that county through an agent other than the appellee, who sued the mortgage company to recover a commission of 2 per cent, as damages for the breach of the contract. The Court of Civil Appeals of the Second District said, “where one party to a contract is prevented by the other from earning profits thereunder, and the amount of such profits that would have been earned can be reasonably ascertained from the evidence, this would furnish the measure of damages,” citing Railway Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Telegraph Co. v. Bowen, 84 Tex. 476, 19 S. W. 554; Telegraph Company v. Brown, 84 Tex. 54, 19 S. W. 336. And that court further said: “In this case, if the jury, under the evidence, should find that, had these loans been referred to appellees, they would have realized commissions that were paid' to the agent who did negotiate them, or, if the evidence should reasonably show that they would have been able to have obtained a greater commission than was paid, they should be allowed to recover the amount that was so lost.” And further holding that as the appellee had pitched his cause upon the .ground of a breach of the contract, gauged by the profits reserved to him in the contract, “they must be restricted to the compensation they would have earned had the contract not been broken by appellant, and, to entitle them to this compensation, they must be able to show the amount with reasonable certainty. Wholly conjectural commissions cannot be recovered.” .

In this case, appellee, by its original petition, did not strictly plead the provisions of the contract, which were specifically pleaded in answer by the Threshing Machine Company, and in reply to which the nature of its cause of action was then made to sound in fraud, to which appellant objects. Of course, the basis of plaintiff’s cause of action should not be in a supplemental petition. However, under the present rules, we would not have reversed the case solely upon that ground.

The appellant in this ease also assigns error on the ground that the contract fixed the commission upon a sale of this kind at $31.01, using the list price as a basis for the amount of the agent’s commission and to be represented by a nonnegotiable instrument, the installments owing by the purchaser of the machinery not having been paid, and this instrument having been tendered and accepted under the terms of the contract, the agent nor the assignee could recover. W. C. Bemmon, the manager of the branch house of the Case Company, Dallas, Tex., testified that he sent- the certificates to the agents for $31.01, as the amount of their commission on the sale, and that he arrived at said sum by taking 10 per cent, of the list price and deducting therefrom the discount in price and 31 cents for filing mortgage and postage; and W. A. Helm, one of the members of the corporation, admitted that he had the certificates somewhere in the office of the agents — all of which seems to have been undisputed. We are not, however, prepared to say that the corporation, upon this evidence, without other elements, had received the certificates in question, in payment of its services for the sale of the machinery. The brief, with the statement supporting this proposition, does not indicate when they were sent; whether before or after the assignment of the claim to the First National Bank of Decatur, and the filing of this suit, and on account of the evidence not being conclusive of the acceptance by the corporation, whether you regard it as a settlement,, or accord and satisfaction, we are unable to hold that there has been a tender and acceptance which will conclusively estop the corporation agent or its assignee from any other recovery.

For the error indicated with reference to the absence of proof on the matter of the measure of damages, we are required to reverse and remand this cause, and it is, accordingly, so ordered.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    TRINITY & B. V. RY. CO. v. VOSS.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 6, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Carriers (§ 265) — Carriage of Passen-GEES — PERFORMANCE OF CONTRACT — RECEIVING Passenger.
    Where the undisputed evidence shows that the train upon which a prospective passenger desired to take passage arrived at the same time as a train going- in the opposite direction, that both trains left at the same time, and that the other train was between the station and the tram the passenger desired. to take and was vestibuled so that he could not reach his trail) without climbing over, or crawling under, oi going around the end of the other train, the failure of the company to furnish reasonable and proper facilities for boarding the train was the proximate cause of the passenger’s failure to take it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1040-1048; Dec. Dig. § 265.]
    2. CaRkiers (§ 276) — Carriage of Passengers — Duty to Receive Passenger — Burden of Proof.
    One who has purchased a ticket from a passenger carrier has a prima facie right to travel upon a passenger train going in the direction called for by his ticket and which stopped at the station where he was, and the burden is upon the company to plead and prove a rule or regulation which relieved it of the prima facie obligation to transport the passenger upon that train.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1078, 1079; Dec. Dig. § 276.]
    3. Carriers (§ • 278) — Carriage of Passengers — Receiving Passenger — Negligence 'of Passenger.
    A prospective passenger is not negligent as a matter of law for failing to inquire whether the train upon which he expected to take passage would arrive and depart on the main line or on a switch, even though the existence of the two tracks was apparent to him.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1080, 1081; Dec. Dig. § 278.]
    4. Carriers (§ 277) — Carriage of Passengers — Breach of Contract — Damages— Loss of Time.
    A prospective passenger who was prevented from taking a train by the failure of the railroad company to furnish reasonable facilities for boarding it may recover from the company damages for the loss of time thereby occasioned.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.]
    5. Appeal and Error (§ 1051) — Harmless Error — Admission of Evidence — Fact Otherwise Established.
    In an action for damages for a carrier’s failure to provide proper facilities for boarding a train which left the station at the same time as another train which had been standing on the track next the station, error in admitting evidence as to a conversation between the station agent and a man in uniform, not otherwise identified, on the steps of the train as it was leaving, in which the latter stated that it would not return, if error, was harmless where the undisputed evidence showed that the train did not return.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    6. Justices of the Peace (§ 191) — Appeal-Liability of Sureties on Bond — Judgment.
    Where judgment is rendered on appeal from the justice of the peace against the appellant, it may be also rendered against the sureties on the appeal bond.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 735-750; Dec. Dig. § 191.]
    7. Trial (§ 192) — Instructions—Assumption of Fact.
    In an action against a passenger carrier for damages caused by failure to furnish proper facilities for taking a train, it was not error for the court in his charge to assume that the train was one upon which the plaintiff had a right to ride, since the burden of proving that it was not was upon the carrier, which had not attempted to show that fact.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    8. Appeal and Error (§ 1170) — Grounds for Reversal — Technical Errors.
    Under Court of Civil Appeals Rule 62a (149 S. W. x), forbidding reversal for errors which did not cause the rendition of an improper judgment and did not prevent a proper presentation of the case to the appellate court, an error which is merely technical is not a ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Error from Harris County Court; Clark C. Wren, Judge.
    Action by H. C. Yoss against the Trinity & Brazos Valley Railway Company. Judgment for the plaintiff in the County Court on appeal from the Justice’s Court, and defendant brings error.
    Affirmed.
    Andrews, Ball & Streetman and Robt. H. Kelley, all of Houston, and N. H. Lassiter, of Et. Worth, for plaintiff in error. Atkinson & Atkinson, of Houston, for defendant in error.

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

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

   HIGGINS, J.

This was a suit for damages by appellee against appellant, originating in the justice court of Harris county, and, on appeal to the county court for civil cases of Harris county, judgment was there rendered in favor of appellee for the sum of §125.70 damages. A remittitur of §64.70 was entered and judgment finally rendered in appellee’s favor for the sum of §61, from which this appeal is prosecuted.

It is disclosed by the record that ap-pellee was a traveling salesman, and on the morning of February 7, 1912, he was in the town of Jewett and desired to go thence to Normangee, a station on the line of appellant. He left Jewett by private conveyance and arrived at Newby, another station on the line of appellant, at the hour of 2 a. m.; it being his purpose, from the last-mentioned station, to go thence to Normangee on appellant’s train. Arriving at Newby, he bought a ticket for Normangee and checked four pieces of baggage to that point. The south-bound train en route to Normangee arrived at Newby about 3 a. m., and the northbound passenger train arrived there at the same time. The north-bound train arrived upon the main line and the south-bound train on a siding, thus placing the northbound train between appellant’s depot and the train upon which appellee desired to take passage. The north-bound train was vestibuled, and, in order for appellee to have reached' his train from the depot, it would have been necessary for him to have climbed over the north-hound train, crawled under the cars, or gone around one of the ends. If there is any other way in which appellant expected parties desiring to take the southbound train to reach same, it is not disclosed by the record. The north-bound and south-bound trains departed at the same time, departing so close together that the rear ends of the two trains separated in front of the depot. As the south-bound train passed, appellant’s station agent addressed a man on one of the steps of the coaches, who was clothed in a uniform and had a lantern, and stated to him that he had four passengers for his train and asked him if he was not coming back; the man on the steps said, “No;” and the train kept on going. Appel-lee, having missed his train, went back to the town of Jewett in a hack, arriving about 4 or 4:30 in the morning. The temperature was at about the freezing point, and it was a cold, raw, damp night. When appellee got back to Jewett he was unable to procure a bed and remained up until morning. Appellee states that his trip that night from Jewett to Newby and return, and the time spent staying up the rest of the night at Jewett, was not a very pleasant experience, and this contention does not seem to be controverted by appellant. From the foregoing statement, it will be readily noted that ap-pellee’s failure to take passage upon the south-bound train for Normangee was due to appellant’s failure to furnish reasonable and proper facilities for boarding the train.

The first assignment of error complains of the refusal of the court to give a peremptory instruction in favor of appellant, the contention being that railroad companies are not obliged to receive passengers at all points to all points and on all trains; and, there being no allegation or proof of any obligation on appellant’s part to receive appellee as a passenger on the south-bound train to which we have referred, he had therefore failed to make out a case. The cases cited by appellant are authority for the proposition that railroad companies are not bound to stop all trains at every station and to there receive passengers destined to any and all points upon its line; but, by the purchase of his ticket, appellee acquired a prima facie right to travel upon the south-bound train which stopped at Newby on the occasion in question, and, if there was any rule or regulation of the defendant company which relieved it of the prima facie obligation to receive and tranport him upon that train, it was defensive matter which should have been pleaded and proven by it. It was not incumbent upon the appellee to plead and assume the burden of proving that it was the duty of appellant to stop this particular train at Newby and there receive him for transportation to Normangee. It is further contended under the first assignment that the undisputed evidence shows that defendant’s failure to furnish a reasonable opportunity of boarding the train was not the proximate cause of appellee’s failure to take the train. As we regard the evidence, it shows beyond controversy that appellant’s default was the proximate cause of plaintiff’s failure to take the train.

Under the third proposition under this assignment, it is contended further that a peremptory charge should have been given, because appellant owed appellee no duty to notify or advise him of the particular track on which his train would arrive and depart, but, on the contrary, the evident existence of two tracks put him on notice that his train might arrive and depart on either, and his failure to make inquiry concerning the track upon which his train would arrive and depart constituted contributory negligence. We cannot agree to this contention. We do not think that as a matter of law appellee can be charged with negligence for his failure to inquire whether his train would arrive and depart on the main line or the switch. On the contrary, such inquiries would be most unusual.

There is no merit in the ..second assignment, under which it is contended that ap-pellee could not recover for lost time, and the assignment and the various contentions thereunder are overruled.

Under the third and fourth assignments, error is assigned to the admission of the conversation of the station agent with the unidentified person on the steps of the departing south-bound train, who wore a cap and uniform and carried a lantern. It is urged that this person was unidentified, save that he wore a uniform and carried a lantern and might have been a mere Pullman porter, and there is nothing to show that he was such an agent of appellant as would authorize his admissions to be offered in evidence. Technically the objection and contention may be well taken. We deem it unnecessary to inquire whether or not it is, as the error, if any, was harmless. That the train went on and did not come back is an undisputed fact, and that is all the unidentified person’s statements amounted to, so we cannot see what possible harm could have resulted from the admission of the testimony, if it be conceded that this admission was error.

The fifth assignment, complaining of the rendition of judgment against the sureties of appellant upon its appeal bond from the justice court, is without merit. It is authoritatively so decided in Cotulla v. Goggan, 77 Tex. 34, 13 S. W. 742, Franks v. Ware, 24 S. W. 349, and Hensel v. Kauffmann, 40 S. W. 819.

The court did not err in assuming in its charge that the train to which we have referred was the train upon which plaintiff had a right to ride. As stated above, if the train upon which he intends to take passage was such a train as would authorize appellant to deny him the right to ride thereon, it was defensive matter which should have been pleaded and proven by it. As we have heretofore stated, the undisputed evidence shows that appellant’s failure to furnish a reasonable opportunity of boarding the train was the proximate cause of appellee’s failure to take the train in question. We therefore overrule the propositions urged under the sixth, seventh, and eighth assignments of error.

The ninth, tenth, and eleventh assignments are overruled. As to the first contention urged thereunder, there can be no contention made that the error, if any here urged, was other than technical, if indeed it be such. In any such event, it is not ground for reversal. Rule 62a (149 S. W. x). As to the second proposition, it is disposed of by what has heretofore been said. The third proposition is likewise without merit, as we think the reasonable value of time lost by plaintiff was a proper item of damage. The fourth proposition under this assignment is overruled as being without merit.

Under the twelfth assignment of error, it is urged that a new-trial should have been granted, because the verdict of the jury was grossly excessive in the amount allowed for physical suffering, even after it had been reduced by a remittitur of $50. We cannot concur in the view that the judgment is excessive in this respect.

What we have heretofore stated with respect to the evidence relating to the proximate cause of appellee’s failure to catch the south-bound train disposes of the thirteenth assignment.

Affirmed.


author: FLY, C. J.

text:
    STEPHENSON v. LUTTRELL et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 15, 1913.
    On Motion for Rehearing, Nov. 19, 1913.)
    1. Pleading (§ 205) — Inconsistency — -General Demurrer.
    Plaintiff sued for title and possession of certain land, and in the alternative, if it should be found that he was the owner of only two-thirds thereof, for contribution by defendant, the owner of the other third, for money paid in filling the land in order to preserve it and to prevent it becoming a nuisance. Held, that the petition was not subject to general demurrer for inconsistency.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.]
    2. Tenancy in Common (§ 38) — Action for Contribution — Petition—Notice.
    In an action by the owner of two-thirds of a lot of land for contribution from the owner of the other third for filling the land, allegations that the owner of the other third could not be notified because of plaintiff’s inability to discover any claimant therefor were sufficient as to notice.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 100-104, 107-118; Dec. Dig. § 38.]
    3. Tenancy in Common (§ 38) — Action for Contribution — Petition — Necessity for Expense.
    In such action, allegations that if the land had not been filled while the lots about it were filled it would form a basin in which water would collect and produce a nuisance, sufficiently showed a necessity for the filling, without alleging how stagnant water in a city would become a nuisance, nor that any effort was made to abate a nuisance that would arise in the future.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 100-104, 107-118; Dec. Dig. § 3¿.J
    4. Tenancy in Common (§ 38) — Action fob Contribution — Petition — Payment by Plaintiff.
    Allegations that a contract was made with a dredging company to fill the road for a certain sum, and that the work was done and the amount expended by plaintiff, were sufficient as to plaintiff’s payments of the sum agreed to be paid.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 100-104, 107-118; Dec. Dig. § 38.]
    5. Tenancy in Common (§ 29) — Liability to Contribute.
    Where the owner of one-third of a lot of land knew that it was being filled by the owner of the other part and concealed his claim to the land and sought to derive the advantages of the work without paying for it, he was liable for his share of an expenditure which had increased the value of the lot more than the sum expended.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ .89-92, 94; Dec. Dig. § 29.]
    6. Damages (§ 67) — Liability—Action for Damages.
    A claim against the owner of one-third of a lot for contribution of that part of the expense of filling the lot was not an open account between the parties, or a claim for damages, not allowing the assessment of interest as a part of the damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 135, 136; Dec. Dig. § 67.]
    7. Costs (§ 234) — Appeal—Modification of Judgment.
    Where the error in assessing interest as a part of the damages was not definitely brought to the notice of the lower court, defendant could not avoid the payment of costs by having that item stricken out and the judgment reformed on appeal.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. § 234.]
    8. Limitation of Actions (§ 28) — Contribution between Tenants in Common.
    A suit against plaintiff’s tenants in common for contribution of their share of the expense incurred by plaintiff in filling and improving the land, instituted within two years after the cause of action accrued, was not barred.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. § 28.]
    9. Partition (§ 113) — Review—Necessity of Objection — Judgment.
    Where there was no objection thereto in the trial court, the part of a judgment which adjudged land incapable of partition and decreed a sale of the same will not be considered on appeal.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 424-439; Dec. Dig. § 113.]
    10. Partition (§ 57) — Allegations.
    Where there was a plea for partition of land, it was not necessary to allege that the property was incapable of partition, since under the express provision of Rev. Civ. St. 1911, art. 6111, it devolved upon the court to determine ■whether or not the land could be partitioned.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 162, 163; Dec. Dig. § 57.]
    11. Partition (§ 113) — Review — Presump- . tion to Sustain Judgment.
    Where a tenant in common, defending an •action by another tenant in common for contribution, asked no finding as to whether the land could be partitioned, it will be presumed that a decree of sale was founded upon sufficient evidence.
    [Ed. Note. — For other cases, see Partition, •Cent. Dig. §§ 424-439; Dec. Dig. § 113.]
    12. Tenancy in Common (§ 36) — Contribution— Pa ymbnt.
    Where a tenant in common, suing his co-tenant for contribution to the expense of filling the lot, bound himself to pay a certain sum therefor and paid all of it except $1,000, which was an outstanding obligation against him, defendant could not resist payment of his share of that amount on the ground that plaintiff would never pay it.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 105; Dec. Dig. § 36.]
    13. Appeal and Error (§ 742) — Assignment oe Error — Statement.
    An assignment of error not followed by a statement will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    14. Appeal and Error (§ 548) — Necessity oe Exception — Admission oe Evidence.
    Where no bill of exceptions was reserved to the admission of evidence, the assignment of error therein will not be considered.
    fEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    On Motion for Rehearing.
    15. Appeal and Error (§ 440) — Effect oe Appeal — Correction of Judgment — Power of Lower Court.
    Where the court found that a defendant, in an action by a tenant in common for contribution, had no interest in the land and the omission of such defendant’s name from a judgment of dismissal was a mistake or oversight, the district court had the right, at any time before final judgment on appeal, to correct the mistake and render such judgment nunc pro tunc as should have been rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2198-2201; Dec. Dig. § •440.]
    16. Appeal and Error (§ 743) — Record — Bill of Exceptions.
    Where an assignment of error and the propositions and statements thereunder make no reference to a bill of exceptions, the court is under no obligation to search through the statement of facts or other part of the record to find bills of exception.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    Error from District Court, Galveston County ; Robt. G. Street, Judge.
    Action by R. W. Luttrell against John Stephenson and others. Judgment for plaintiff and defendant Stephenson brings error.
    Reformed and affirmed.
    G. G. Clough, of Galveston, for plaintiff in error. Maco & Minor Stewart, J. E. Quaid, and Louis G. Lobit, all of Galveston, for defendants in error.

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

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

   FLY, C. J.

This suit was instituted by R. W. Luttrell against John Stephenson, W. E. Stringfellow, James W. Walker, and James A. Borard and wife, in which ownership in certain land in the city of Galveston was claimed by Luttrell, and it was alleged that he had caused the.land to be filled, in pursuance of the general policy to raise the grade of the surrounding territory; that the lot was a marsh, before it was filled, of value not exceeding $3,500; that Luttrell made a contract for the filling of the lot, agreeing to pay therefor the sum of $6,825.87; that the filling was absolutely necessary to protect the lot and render it useful; that the filling was done by the North American Dredging Company, and increased the value of the lot more than the sum expended for filling the same. ¡Luttrell prayed for title and possession of the property, and in the alternative for contribution for one-third of the sum expended in filling the lot. The cause was tried, without a jury, resulting in a judgment in favor of Luttrell for two-thirds of the land, in favor of Stephenson for the other one-third, and that Luttrell recover of Stephenson the sum of $2,275.29, with interest thereon at 6 per cent, per annum from July 17, 1909, that the same constitute a lien on the one-third interest, and that the property be sold for partition.

It was found by the court that Luttrell made efforts in good faith to discover the owner of the one-third interest that he might have him to join in having the lot filled; that it was absolutely necessary that it should be filled in order to preserve and enhance its value and prevent it from becoming a public nuisance; that, not finding the owner, Stephenson’s deed to the land not being recorded, Luttrell was compelled by the necessities of the occasion to have the lot filled, which he did, through a contract with the North American Dredging Company, at a cost of $6,825.-87, all of which he paid in services except the sum of $1,000, which he owed; that Stephenson and those under whom he claims knew that the lot was being filled, but did not object, and speculated on the chance of not having to pay any part of the cost of the filling, and that the value of the property was increased at least in the sum expended upon it. In addition the court found that the evidence did not show the date of the rendering of the services by Luttrell, but that the cost of the work was shown and the claim of Luttrell was not barred by limitation. We conclude that the findings are sustained by the facts.

The petition was not subject to general demurrer, and the contention of plaintiff in error that a petition which repudiates the title of the defendant, and at the same time seeks contribution, does not state a cause of action, cannot be sustained. Luttrell had a right to sue for the whole of the land and plead in the alternative that if he should recover only two-thirds of the land, he should recover for the expenditures incurred by him on the one-third share. The question is not an open one in Texas, but it has been held by the Supreme Court: “The court, in determining the rights of the parties, will adjust them upon the proper basis. It will deny to the ousting cotenant his claim to the exclusive ownership of the property, but will enforce his true rights with respect to it; and, if he has discharged burdens which rested alike on the whole estate, it will require his cotenants, when they seek partition and settlement with him, to bear their just proportion of such burdens, requiring him, at the same time, to account for any benefits, in excess of his just share, which he has received from the estate.” Hanrick v. Gurley, 93 Tex. 459, 54 S. W. 354. The quoted language was used in an action of trespass to try title, and an adjudication of the rights of the parties was had, and is law and common sense.

The petition fully alleged a necessity for the filling of the land and the inability on the part of Luttrell to discover any claimant of one-third of the land, and the court did not err in overruling an exception to the effect that the petition was defective in not alleging that the owner of the third interest was notified. It was sufficient to allege that the owner could not be notified because unknown. This disposes of the second assignment of error.

The third assignment is without merit, and is overruled. It was sufficient to allege that if the lot had not been filled, while the lots about it were filled, it would form a basin in which water would be collected and produce a nuisance. It was not necessary to allege how stagnant water in a city would become a nuisance, nor to allege that any effort was made to abate a nuisance that would arise in the future.

It was alleged that a contract was made with the North American Dredging Company to fill the lot for a certain sum, and that the work was done, and that the amount was expended by Luttrell, and the petition was sufficient as to the payments of the sum agreed to be paid. The fourth assignment is overruled.

A contract for the purchase of two-thirds of the land was entered into between Lut-trell and Hanley and Herring on February 25, 1909, and $250 was paid on the trade. Hanley was paid for his interest on April 14, 1909, and Herring was paid in full on June 30,1909. Hanley’s deed to Luttrell was dated July 9, 1909, and from Herring to Luttrell, June 23, 1909. The filling began in the latter part of May, and was finished on July 12, 1909. The contract for the purchase of the land was made before the filling began and before the contract for the filling was executed. The fifth assignment is therefore overruled.

The evidence fails to show that plaintiff in error, and those under whom he claims, were innocent purchasers of the land without notice of the claim and equitable lien of Luttrell. On the other hand, the evidence tends to show that those parties knew that the land was being filled, and concealed their claim to the land and sought to derive the advantage arising from the work done on the land without paying for it. They failed to place themselves even in the proximity of innocent purchasers. They speculated on having the land improved without cost to them, failed in their speculation, and must bear the burdens. It would be inequitable and unjust for plaintiff in error to reap where another has sown, and profit by the expenditure of the labor and money of another without giving something in return.

The seventh and eighth assignments of error are based on a claim of the insufficiency of the evidence to sustain the judgment, and are disposed of adversely to-plaintiff in error by our adoption of the findings of fact of the trial judge.

In the petition no claim was made for interest on the amount claimed by Lut-trell. The only amount claimed was one-third of the money expended in raising the grade of the lot, and that amount was $2,275,29. The court rendered judgment for that amount, with interest at 6 per cent, per annum from July 17, 1909, the time at which the work was completed. If there had been a claim for damages in a sum greater than the principal and interest, even though the latter was not mentioned eo-nomine, there might be a basis for the decreeing of interest, but the claim is merely for one-third of $6,825.87. The claim is not an open account between the parties, interest on which is provided for by law, but is rather a claim for damages, with no features attaching requiring thé assessing of interest as a part of the damages. Neither this point, nor for that matter any other raised in the brief of plaintiff in error, is discussed or adverted to in the paper denominated a brief for defendants in error. The error in assessing the interest was not definitely brought to the notice of the lower court, and plaintiff in error will not avoid the payment of costs by having the item stricken out and the judgment reformed in this court.

The tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments are without merit, and are overruled.

The sixteenth and seventeenth assignments of error claim that the amount sued for was barred by limitation. The court found otherwise, and the evidence sustained his finding. The suit was instituted in less-than two years after the cause of action accrued.

No objection was offered in the trial court to that part of the judgment which adjudged the land incapable of partition and decreed a sale of the same, and it will not be considered in this court.

There was a plea for partition, and it was not necessary to allege that the property was incapable of partition. It devolved upon the court to determine whether or not the land could be partitioned, and we will presume that his decree was founded upon sufficient evidence. Article 6111, Rev. Stats. 1911; Gorman v. Campbell (Tex. Civ. App.) 135 S. W. 177. No finding was ashed by plaintiff in error on this subject.

Luttrell bound himself to pay a certain sum for the filling of the land and paid all of it except $1,000, which was an obligation standing against him, and plaintiff in error cannot resist payment of his part of the $1,000 on the ground that Lut-trell will never pay it. The assignment of error which seeks to raise this point is not followed by a statement, and should not be considered.

The twenty-third assignment of error assails the action of the court in permitting Luttrell to testify .that it was necessary to fill the streets adjoining the property in controversy. No bill of exceptions was reserved to the admission of the testimony, and the assignment of error will not be considered.

The judgment will be reformed so that the amount recovered will bear interest only from the date of the judgment, and as reformed will be affirmed.

On Motion for Rehearing.

If the rights of Stringfellow were ascertained and his name was omitted from the judgment, as stated in the motion, by “a clear oversight,” the district court had the right to remedy the oversight and render such judgment nunc pro tune as should have been rendered. The original judgment clearly indicates .that appellee dismissed as to all of the defendants except appellant, and that the name of Stringfellow was omitted by mistake. The findings of fact and law of the trial judge show that Stringfellow had no interest in the land. Plaintiff in error does not claim that he was in any manner affected by the omission of the name of Stringfellow, nor by the correction of the judgment afterwards. In the corrected judgment it is recited that the cause was dismissed as to Stringfellow, and that his name was omitted by mistake. Plaintiff in error does not dispute those facts. In his petition for writ of error and in his bond he did not deem the judgment of dismissal as to the parties of sufficient importance to mention it. It only became important when an attempt was made to use it in this court. The district judge had the power and authority to amend the judgment at any time before final judgment in this court. Ramsey v. McCauley, 9 Tex. 106, 58 Am. Dec. 134; Blum v. Neilson, 59 Tex. 380; Hickey v. Behrens, 75 Tex. 488, 12 S. W. 679. The court could correct the judgment on his recollection that the cause was dismissed as to Stringfellow. Blum v. Neilson, before cited.

No reference is made to a biil of exceptions in the twenty-third assignment of error, nor in the propositions and statement thereunder; and this court assumed, as it had the right to do, that there was no bill of exceptions. It is under no obligation to search through the statement of facts or other parts of the record to find bills of exception. Under the rules the court refused to consider the assignment. However, the record shows that Luttrell was permitted in his direct examination to testify fully as to the cost of filling the streets without objection on the part of plaintiff in error, and only on the redirect examination, after a full cross-examination, was any objection made to testimony about filling the streets, and that objection was only to a statement that the filling was necessary. To the answer of Luttrell that the property would be worthless without the street being filled he did not object because the matter was not pleaded, but because it was immaterial. That objection is not presented in the assignment of error.

The case of Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664, decided by this court, has no applicability to the facts of this case. Luttrell was not claiming the whole of the land when the work was done on it. He claimed two-thirds of it.

The motion for rehearing is overruled.


author: HARPER, C. J.

text:
    NATIONAL UNION FIRE INS. CO. v. AKIN.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 6, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Insurance (§ 668) — Cancellation op Policy—Effect of Direction.
    Where insured directed the cancellation of a policy containing the usual cancellation clause, and the agents, instead of canceling it, wrote him concerning the reason why they were obliged to charge an increased premium, and stated that the policy would be canceled if he would send it to them, but not otherwise, it cannot be held, as a matter of law, that insured’s letter operated as a cancellation without action on the part of the insurer.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.]
    2. Insurance (§ 665)—Actions—Policies.
    In an action on an insurance policy, where the defense was cancellation, the finding of the court that the minds of the parties had not met on cancellation held supported by the evidence.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dee. Dig. § 665.]

      Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Henry R. Akin against the National Union Eire Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    U. B. Moody, of Houston, for appellant Andrews, Ball & Streetman, of Houston, for appellee.

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

   HARPER, C. J.

This suit was filed in the district court to recover the sum of $2,500 under a policy of insurance against loss by fire of certain household goods. Plaintiff alleged the issuance of the policy February 4, 1910, for one year, on the property while located in a warehouse at Houston. No premium was paid, but credit therefor extended; premium tendered in suit. The property was totally destroyed September 26, 1910, resulting in a loss of $6,000. Notice of loss was given, and proofs of loss were furnished in accordance with the policy. Defendant denied liability November 12, 1910. Itemized list of the property and copy of the policy were attached to the petition. The defenses relied upon were: (1) A general denial; (2) that the policy had been canceled prior to the fire, and was not in force at the time of the fire. By supplemental petition, plaintiff alleged that the policy was issued on a recited consideration of $33.75, and contained a clause providing for ascertainment of the correct premium which plaintiff was obligated to pay; that after the policy had been in force several months the insurance agent demanded as premium much more than $33.75; that plaintiff thought the demand excessive, and did write a letter ordering the policy canceled, but the agent wrote, declining to cancel unless the policy was returned; that plaintiff did not return the policy, intended to pay the premium, and thought the policy was still in force, and defendant is estopped to claim cancellation. By supplemental answer, defendant alleged that, if plaintiff ever changed his mind about the policy having been canceled, he did not advise defendant of such change, and defendant had no knowledge or information of any such change in plaintiff’s mind. A trial was had before the court without a jury, which, on July 23, 1912, rendered a judgment in favor of plaintiff for $2,090.20. Motion for a new trial was filed, presented, and overruled. Exceptions were taken, and notice of appeal given. Findings of fact and conclusions of law were requested by defendant, and were filed. Appeal bond was filed.

Appellant, under its first and second assignments of error, and the several propositions thereunder, urged that the court erred in rendering judgment for plaintiff (below), because the undisputed evidence shows that the policy had been canceled by request of the plaintiff.

The policy upon which the action was based contained the usual clause, viz.: “This policy shall be canceled at any time, at the request of the insured, or by the company. * * * If this policy shall be canceled as hereinbefore provided, * * * the unearned portion of the premium shall be returned,” etc.

The court made the following findings of fact:

“(1) I find that on the 4th day of February, 1910, the defendant, through its local agents at Houston, Texas, W. H. Kirkland &. Co., issued its policy of fire insurance, a copy of .which is attached to plaintiff’s third amended original petition in this cause. Said policy was by said agents mailed to the plaintiff. Some time in June, 1910, the-agents of defendant sent to the plaintiff a statement of the amount due as premium upon said policy; said statement showed an amount considerably larger than the-amount of premium stated in the face of the policy. Thereupon, on the 16th day of July, 1910, plaintiff wrote said agents the following letter: ‘Oakwoods, Texas, July 16th. W. H. Kirkland & Co., No. 217 1st Nat. Bk. Bld. — Gentlemen: As I will move my furniture up here, you may cancel my policy at once. Why should you wait until June 30 to advise me there would be additional charge in rate commencing June 13th; that is your loss, not mine. If you will send me statement of policy earnings under first rate made to me up to date you receive this letter, not later than July 20th, will send you check for same. Cancel policy after July 20th, 1910. Yours truly [Signed] Henry R. Akin.’
“Said agents received said letter and replied to the same on the 18th day of July, 1910, as follows: ‘Mr. H. R. Akin, Oakwoods, Texas — Dear Sir: We have received your letter dated July 16th, requesting' that we cancel policy on your household goods effective July 20th, and, if you will kindly return us this policy, we will cancel same as of that date. In reference to the additional premium charged you, we beg to say that we-made this charge strictly in accordance with the present insurance laws of the state which went into effect January 1st, 1910. The state-rating board have published a rate on the building containing your property, and .according to the law we are forced to assess-this rate from the time the policy was written. It does not matter whether we made-the indorsement on June 14th or May 14th; the additional charge runs from date to expiration, and it is necessary for us to collect the premiums in accordance with the published rate or cancel the policy. We fully appreciate the fact that the rate on this warehouse is unreasonably high, and, if you had known what this rate was in February, that you probably would have carried your own insurance, or you would have put goods elsewhere. Unfortunately, however, it was. one of the weak points of the law that we did not know what this rate was .until the early part of June. We think very likely that this law will be repealed during the present week, and, if it is, this rate will no doubt be-materially reduced, and the earned premium on your policy will be correspondingly smaller. We beg to assure you we will not charge you any more than is absolutely necessary. Tours very truly, W. H. Kirkland & Go.’
“Plaintiff did not reply to said letter from said agents, but was satisfied with the explanation therein made as to the amount of the premium, understood from said letter that said policy would not be canceled unless he returned it to said agents, kept said policy in his possession, and procured no other insurance, which he would have done if he had not believed said policy to be in force. Subsequently, on August 10, 1910, said agents wrote to plaintiff the following letter: ‘Mr. H. R. Akin, Oakwoods, Texas — Dear Sir: Will you please return us promptly National Union Policy No. 10691, covering on your household goods. You wrote ús some time ago that you desired to cancel this policy; but it is impossible for us to do so until you return it. Awaiting your reply, we are, yours truly, W. H. Kirkland & Co.’
“Plaintiff received this letter, and was confirmed thereby in his belief that said policy would not be canceled unless he returned it. He did not return said policy after the receipt of this letter, and afterwards,- on or about September 26, 1910, the property described in said policy was destroyed by fire, while situated as described in said policy.
“I find that the value of the property covered by said policy which was destroyed by said fire was $1,917.63. On November 21, 1910, the defendant denied all liability under said policy.”

The defendant relied upon the letter from Akin to the company being a revocation of the policy of insurance which is the basis of the recovery in this case, urging in its several propositions that, as a matter of law, the letter set out in full above from plaintiff (below) to the insurance company rescinded the policy of insurance without any action being necessary upon the part of the company (defendant).

The courts have held that, when similar letters, accompanied by a return of the policy, were written to the insurers, and even where not accompanied by a delivery of the policy, the insurance wás rescinded, and policy canceled, without action upon- the part of the insurance company (Stone v. Insurance Co., 105 N. Y. 543, 12 N. E. 45), and, if this case rested with no other attendant circumstances, we would not hesitate to so hold and render this case; but we have a. very different state of facts in this record.

The letter of Akin to the company was a clear and unqualified instruction to cancel the policy on July 20, 1910, and, if there had been no further correspondence between the parties, the effect would have been to cancel the' policy (Springfield F. & M. Ins. Co. v. McKinnon & Call, 59 Tex. 507); but in reply to this letter from the assured the agent of the company explains that the rate in Texas-is fixed by the state rating board for all companies doing business in Texas, and further expressly informed him that, “If he would return the policy, we will cancel same of that date,” and, again, in a letter of later date, the agent of the company informs the assured that “it is impossible to -cancel the policy until it is returned.”

Then it became a question of fact, to-be determined by the trial court, whether or not the minds of the parties ever met definitely upon a cancellation of the policy, and, this question having been decided in the negative, and this court concluding that the facts warranted such finding, the cause must, be affirmed, and it is so ordered.


author: KEY, C. J.

text:
    BARNETT et al. v. ELLIOTT et al.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 5, 1913.)
    1. Evidence (§ 461) — Pabol Evidence to-Vary Instrument — Admissibility.
    Where a conveyance which purported to-fix the rights of the several grantors to the proceeds of the property was ambiguous, parol evidence is admissible to explain the intention, of the parties.
    [Ed. Note. — For other cases, see Evidence,, Gent. Dig. §§ 2129-2133; Dec. Dig. § 461.],
    2. Evidence (§ 269) —Admissions — Admissions by Conduct.
    A mother deeded land to her son in consideration of his agreement to support and maintain her during the balance of her life, and thereafter the parties, including the son’s-wife, executed a conveyance of the property in trust, the mother to receive the proceeds for life, with remainder to the son’s wife, and later the three sold the property; the conveyance reciting that the parties had determined to abrogate all provision agreements, iield that, the conveyance being ambiguous as to disposition of the proceeds of the sale, the declarations by the mother communicated toiler son and his wife before they executed their conveyance as to what she intended to do with that part of the proceeds which were to remain in trust for her benefit are not inadmissible on the ground of hearsay, or that they were made-without the hearing of the son and his wife, but may be considered to determine .the intent, of the parties as to the disposition of the proceeds.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 1063-1067; Dec. Dig. § 269.)
    3. Trial (§ 63) — Reception op Evidence-Rebuttal Evidence.
    The mode of .reception of evidence rests-largely in the discretion of the trial court, and, where the parties failed to offer parol evidence-to explain a written instrument, because they understood that the court had not found it ambiguous, it was not improper, the instrument being ambiguous, to allow the evidence to be-admitted in rebuttal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 151-153; Dec. Dig. § 63.]

      4. Trial (§ 63) — Reception op Evidence-Rebuttal Evidence.
    Evidence which would be admissible in chief when admitted by the court on rebuttal should be considered by it and given the same weight as any other evidence; the case being tried to the court without a jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 151-153; Dec. Dig. § 63.]
    5. Trusts (§ 119) — Construction—Actions.
    In a suit to determine the rights of the parties to money in trust for plaintiff’s mother, held that, under the evidence, plaintiff was not entitled to the money by virtue of the instrument creating the trust.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 166; Dec. Dig. § 119.]
    6. Trusts (§ 119) — Construction—Trust Instrument.
    Where land held in trust was sold, all the parties interested joining in the conveyance which created a trust of the proceeds, the original instrument cannot be considered in construing the second trust instrument, where it distinctly stated that all former agreements of every kind were abrogated.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 166; Dec. Dig. § 119.]
    7. Evidence (§ 450) — Parol Evidence to Vary Instrument — Ambiguity—What Constitutes.
    Where property held in trust for several persons was conveyed by all of them under an instrument reciting that all former agreements were abrogated, and, that the conveyance was made in consideration of a certain payment, part of which was to be paid to a trustee for the use of one of the parties, payments to be made in monthly installments during her lifetime and whenever deemed necessary by the trustee, and that the remainder was to be paid to the others, there is an ambiguity in the instrument as to the final disposition of the moneys held in trust, warranting admission of parol evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dee. Dig. § 450.]
    8. Trusts (§ 257) — Actions—Proper Parties —Right to Intervene.
    In a suit involving the disposition of the proceeds of moneys held in trust for a deceased life tenant, a creditor of the life tenant may intervene, for he would be entitled to compel administration, and thus determine the right to the property.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 363-368; Dec. Dig. § 257.]
    9. Pleading (§ 402) — Persons Entitled to Allege Error.
    In an action involving the disposition of trust property, defendants impleaded by the trustee, against whom plaintiffs brought their action," cannot complain that the petition did not state a cause of action against them; where, by their own pleading, they alleged their interest, and contested the right asserted by plaintiffs.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 1343; Dec. Dig. § 402.]
    Appeal from District Court, Matagorda County ; Wells Thompson, Judge.
    Action by John W. Elliott and another against J. A. Barnett, in which Mary Ellen Rogers and others were impleaded, and W. G. Baker intervened. From a judgment for plaintiff and intervener, the impleaded defendants appeal.
    Reversed and remanded.
    Linn, Conger & Austin, of Bay City, for appellants. Krause & Wilson and Holland & Murphy, all of Bay City, for appellees.

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

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

   Statement.

KEY, C. J.

October 9, 1905, Mrs. Gertrude E. A. Elliott executed a deed, by which she conveyed to her son, John Elliott, and his wife, Melissa Elliott, a certain tract of land comprising I86V10 acres. The consideration recited in the deed was $5 cash, love, and affection, and that the grantees were to support and maintain Mrs. Elliott during the balance of her life. Thereafter Mrs. Elliott, the grantor, brought suit against John W. Elliott and his wife to cancel the deed referred to, and, from a judgment in her favor, an appeal was prosecuted, and on February 21, 1908, the Court of Civil Appeals for the First District reversed the judgment of the district court, and rendered judgment in favor of John W. Elliott and his wife, upholding the deed, and that judgment was approved by the Supreme Courtis refusal to grant a writ; of error. Elliott v. Elliott, 50 Tex. Civ. App. 272, 109 S. W. 215.

At the time the deed was executed John W. Elliott and his wife executed a separate instrument of writing, securing to Mrs. Elliott the rents from the land during her lifetime. In its first opinion, the Court of Civil Appeals stated that the evidence was insufficient to show that John W. Elliott and his wife had breached their contract for the support and maintenance of Mrs. Elliott; but, in a subsequent opinion overruling the motion for rehearing, that statement was withdrawn, and the court stated that testimony given by Mrs. Elliott would support a finding that the contract had been breached. 50 Tex. Civ. App. 272, 109 S. W. 1142.

On the 30th day of June, 1908, Mrs. Elliott and her son, John W,. Elliott, and his wife executed to J. A. Barnett a deed of trust, conveying the land referred to to him as trustee, with remainder over to Melissa Elliott, the wife of John W. Elliott, which instrument, among other things, contained the following recitals and stipulations:

“That whereas, we, Gertrude E. A. Elliott, widow, and John W. Elliott and Melissa Elliott, husband and wife, are desirous of forever settling all matters in contention between us, present and future, and of adjusting satisfactorily between each of us all the subject-matters of litigation now pending, or which may hereafter be commenced, over the conveyance heretofore made by Gertrude E. A. Elliott to John W. and Melissa Elliott, of date the 9th day of October, A. D. 1905, and of record in the deed records of said county, in volume 16, on page 265, thereof, or over rights and duties growing out of the same, and for the purpose of securing, as far as possible, to Gertrude E. A. Elliott a capable, careful, and efficient management and control of and the collection and receipt of the rents and revenues of the land herein described in a fixed amount annually, as near as can be as herein agreed for the term of her natural life, which rents were reserved by her and to her use when the aforesaid deed was made and delivered by her to John W. Elliott and Melissa Elliott, and which said deed is hereby ratified and confirmed, and for the further purpose of securing the absolute fee-simple title to the lands herein conveyed (same being a part and portion of the lands therein conveyed) to Melissa Elliott, her heirs and assigns, free from litigation, contention, or adverse claim of any kind by us or either of us, or by any person claiming under us, or either of us, and the conveyance to her of the unincum-bered fee-simple title thereto upon the death of Gertrude E. A. Elliott, free from any and every rent, claim, charge, incumbrance, burden, use, demand, or profit existing upon or arising out of the said land in any manner whatsoever, in favor of Gertrude E. A. Elliott, or any person claiming under her, at the present time, or at any future time, during the life of her, the said Gertrude E. A. Elliott, and to secure a conveyance of the said land to said Melissa Elliott on the death of the said Gertrude E. A. Elliott by the trustee herein named, or his successor, by general warranty deed by him to be made, executed, and delivered upon the happening of the death of said Gertrude E. A. Elliott, and for the further purpose of removing all fears entertained by Gertrude E. A. Elliott of the capacity of John W. Elliott to successfully manage and operate the said land as was contemplated and agreed to when the aforesaid deed from Gertrude E. A. Elliott to Jno. W. Elliott and Melissa Elliott, of date the 9th day of October, 1905, was executed and delivered, and to render any incumbrance thereof by him impossible, and for the final purpose of securing to each of the parties hereto the rent and management of the land and collection of the rentals arising therefrom during the life of G. E. A. Elliott, by a careful, competent, and honest trustee, representing all interest in so doing, so that no possible cause, reason, or occasion can or could arise or exist between the grantors or any of them herein to support contention or litigation in or over this conveyance and trust, or over the lands herein described and conveyed, or over or concerning the terms of the deed from G. E. A. Elliott to John W. and Melissa Elliott, hereinbefore described, and of settling all and every litigation now pending or proposed between us of any kind whatsoever: Now, therefore, we, Gertrude E. A. Elliott, widow, and John W. Elliott and Melissa Elliott, husband and wife, all of the county of Matagorda, state of Texas, in consideration of the above stipulations, covenants, and purposes agreed to between us and each of us, and of the mutual agreement and settlement of all matters of contention between us, either present or future, growing out of or concerning the deed from Gertrude E. A. Elliott to John W. Elliott and Melissa Elliott, heretofore described, and to secure careful and successful management of the lands and collection of the rents therefrom, and of the further consideration of the sum of ten dollars ($10) cash to us in hand paid by J. A. Barnett, trustee, of the county of Matagorda, state of Texas, and of the trusts hereinafter mentioned, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto him, the said J. A. Barnett, trustee, and to his successor in this trust, the following described tract or parcel of land. * * *
“In trust, nevertheless, and upon the following trust terms and conditions, viz.: The said J. A. Barnett, trustee, shall as soon as possible, after the execution and delivery hereof, take charge and possession of the above-described tract of land, and proceed to the management thereof as contemplated hereby, and when the rents are or become due and payable by tenants on said land, and now under contract made with W. S. Holman, trustee, he, the said J. A. Barnett, trustee, shall collect the same, and, if said rents consist either in whole or in part of crops raised thereon, he shall sell the same at the highest market price obtainable, and place the sums so received with the other funds received and collected as rent for the land for the year 1908, and out of the rents so received and collected by him he shall pay and deliver to Gertrude E. A. Elliott the amount of one ($1.00) dollar per acre for each acre of the land so cultivated and yielding an income for the year 1908, and take her receipt therefor; if there be so much in amount of rents received over and above the charge and expenses of the trusteeship of W. S. Holman, and the balance of the rents so received (if any such there be), less the expenses of collecting and securing the same, the said trustee shall pay over to John W. Elliott, for use in payment of repairs, replacements, and taxes, and for improvements, and betterments of the land.
“For the year 1909, and thereafter during the life of Gertrude E. A. Elliott, and up to the date of her death, the trustee, J. A Barnett, herein named, or his successor in this trust, shall take hold and enjoy as trustee under this trust, and for the lawful performance of its duties and powers, the exclusive management, care, control, custody, and possession of the. above-described tract of land, and shall rent the same, in whole or in part as may be possible and practicable, to such person or persons and upon such term or terms as may to him seem best for the interest of the grantors herein and each of them, and out of the rents and proceeds of rents so received by him he shall during the life of said Gertrude E. A. Elliott, annually, in such installments and amounts and at such times as may be convenient and possible, pay to Gertrude E. A. Elliott tbe amount or sum of one dollar for eaeb acre of tbe land cultivated, rented, and income bearing for said year, if so mueb rentals there be, after paying tbe charges and expenses of collection and securing the same, and, if there be not sufficient rents to do so, then he shall pay to her all rents so received by him, less the charges and expenses of collecting, and the balance of said rents so received (if any there be) the said trustee and his successor shall pay and deliver same to said John W. Elliott annually, on or before the 1st day of January of the succeeding year, to be used by him for the purposes above stated, and shall continue to do so during the life of said Gertrude E. A. Elliott, one of the grantors herein. It being understood that the trustee, J. A. Barnett, or his successor, is hereby authorized and empowered, and it is contemplated- that he shall employ, secure, and use all necessary means and agencies necessary to and proper in the performance of his duties as trustee, in the renting of the land and the collecting of the rents therefor, and that such reasonable charges and expenses as he may necessarily incur in so doing shall be deducted by him from the rents received prior to the payment thereof either to Gertrude E. A. Elliott or John W. Elliott, as hereinbefore stated.
“Upon the death of the joint grantor, Gertrude E. A. Elliott, the trustee, J. A. Barnett, or his successor in this trust, shall and will upon the demand of Melissa Elliott, it is hereby made his duty to convey the tract of land herein described in fee simple to Melissa Elliott, her heirs and assigns, forever, by general warranty deed, and upon the execution and delivery of the said deed as herein provided to her, the said Melissa Elliott, the duties and powers of the said trustee, J. A. Barnett, herein given and his successors shall cease and determine, and this trust will end, but otherwise it shall remain in full force and effect up to and until the date of the death of the said Gertrude E. A. Elliott, and thereupon said Melissa Elliott may, and she is hereby empowered to, compel the execution and delivery of said conveyance.”

July 29, 1911, Mrs. Gertrude Elliott, John W. and Melissa Elliott, and J. A. Barnett, acting as trustee, executed a deed, by which the tract of land referred to was conveyed to W. C. Glover, and the portions of that instrument which are material in this case read as follows: “Whereas, instruments have been heretofore executed between Gertrude E. A. Elliott, a widow, John W. Elliott, and Melissa Elliott, his wife, and J. A. Barnett, trustee, all of whom are residents of Matagorda county, Texas, concerning, involving, and appertaining to the title of 215 acres of land out of-the Thos. Oayce league, in Matagorda county, Texas; and whereas, W. O. Glover, of Matagorda county, Texas, has contracted to buy said land on basis of its actual acreage, which by survey has been ascertained to be 189.9 acres net, and has contracted to pay therefor as hereinafter set out; and whereas, the said Gertrude E. A. Elliott, and John W. Elliott, and Melissa Elliott have determined to abrogate and cancel all agreements of every kind and character heretofore existing concerning the ownership, management, or control of said land in consideration of the premises hereinafter named, and J. A. Barnett, the trustee, without personal liability, has acquiesced in such arrangement; and whereas, under said agreement, all former agreements concerning the title of said land or any interest therein having been revoked, canceled, abrogated, annulled, and terminated, and said land has been sold to W. O. Glover as hereinafter set out: Now, therefore, know all men by these presents, that we, Gertrude E. A. Elliott, and John W. Elliott, and Melissa Elliott, his wife, and J. A. Barnett, trustee, but without personal liability, all of Matagorda county, Texas, for and in consideration of the sum of $5,607, paid and to be paid as follows: $3,607 in cash, $2,000 of which cash is to be paid J. A. Barnett, trustee, for the use and benefit of Gertrude E. A. Elliott and her maintenance and support, the interest of which, together with any part of the principal deemed necessary by said trustee, is to be paid over to said Gertrude E. A. Elliott in monthly installments during her lifetime by the said J. A. Barnett, trustee, and for which said trustee is to give no bond, and held to no responsibility other than ordinary care, and the remaining $1,607 out of said cash, which is to be paid to J. A. Barnett, trustee, out of which he is first to pay himself all commissions for the sale of the herein described' land, and for other services in connection with his .former trusteeship herein, and all survey, attorney’s fees, and other necessary expenses in any wise incident to or connected with the handling of said land or the transfer of same, including the retention of a sufficient amount of money to pay all back taxes due, together with the taxes for the year 1911, the said J. A. Barnett, trustee, to turn over and deliver any balance remaining in his hands of the payment of such amount to John W. Elliott for the benefit of himself and wife; Melissa Elliott, taking his receipt therefor, and the further consideration of the execution and delivery by the said W. G. Glover of his four certain promissory notes, all bearing- even date herewith, all payable to the order of John W. Elliott and Melissa Elliott, at Bay City, Texas, all bearing interest at the rate of 10 per centum per annum from date -until paid, each containing the usual deferred interest, maturity, and attorney’s fees clauses, each being for the sum of $500, and being payable on or before December 15, 1912, 1913, 1914, and 1915, after date respectively, have bargained, granted,” etc.

It was shown by clear and uncontradieted testimony that the total consideration received for the land was $3,607, instead of $5,-607, as recited in the deed, and that $2,000 of the same was paid to J. A. Barnett, trustee, in cash, and the .balance, after paying certain expenses, the amount of which was not shown, was paid over to J. W. Elliott and wife.

On the 11th day of April, 1912, Mrs. Gertrude Elliott died, and on the 7th day of May following John W. Elliott and his wife commenced this suit against J. A. Barnett, and sought to recover from him the $2,000 which he had received as trustee under the instrument referred to. J. A. Barnett filed an answer, in which he impleaded Mary Ellen Rogers and her husband, and certain other designated persons, and alleged that they, together with the plaintiff John W. Elliott, were the heirs of Mrs. Gertrude Elliott deceased, that there was no administration upon her estate, and that it was necessary for his protection that they should be made parties to this suit. The parties referred to filed an answer, containing a general demurrer and a number of special exceptions to the plaintiffs’ petition. They also filed a general denial and a special answer, the terms of which need not be stated further than to say that it resisted the plaintiffs’ alleged right to the remainder of the $2,000 in the hands of the trustee, J. A. Barnett, at the time of the death of Gertrude Elliott, and presented the contention that the money referred to belonged to the estate of Gertrude Elliott, and descended and vested in her heirs, and did not belong exclusively to the plaintiffs. To that plea the plaintiffs filed a general denial. G. W. Baker filed a plea of intervention, claiming that at the time of the death of Mrs. Gertrude Elliott she was indebted to him in certain-specified sums for support and maintenance, and that after her death he paid certain of her funeral expenses.

The defendants Mary Ellen Rogers and others who had been impleaded filed exceptions to the plaintiffs’ petition, and a motion to strike out Baker’s plea of intervention, and also an answer thereto, containing a general demurrer and number of special exceptions, a general denial and special plea, the terms of which need not be set forth. They followed that up with a supplemental answer, containing special exceptions, and a special plea, the terms of which will be omitted. G. W. Baker filed a supplemental plea of intervention, denying the facts alleged in the pleas last referred to, and reasserting his right to recover a portion of the funds held by Barnett, trustee.

The case was tried before the court without a jury, and judgment rendered, overruling all the exceptions interposed by the impleaded defendants, and reciting the fact that J. A. Barnett had paid into the registry of the court the sum of $2,000, that all the parties had agreed that Barnett was entitled to $300, as compensation, and for his expenses as trustee, and $25 paid by him to Mrs. Gertrude Elliott, and thereupon judgment was rendered that he go hence without day, etc. The judgment then proceeds to award and adjudge to J. A. Barnett, trustee, $300, and to G. W. Baker, on his plea of intervention, $631.25, and the remaining $1,-043.75 to the plaintiffs John W. and Melissa Elliott, and Mary Ellen Rogers and the other impleaded defendants have prosecuted this appeal.

The trial judge filed findings of fact and conclusions of law, but made no distinct finding as to what the grantors in the instrument of July 29, 1911, intended should become of whatever portion of the $2,000 trust find might remain on hand at the death of Mrs. Elliott. It also appears that, after the judge announced from the bench that he would hold that the plaintiffs were entitled to recover such remainder, appellants, over the objection of plaintiffs, were permitted to introduce oral testimony tending to show that, before the execution of the deed referred to, it had been orally agreed between Gertrude Elliott and John W. Elliott that the land was to be sold to Glover, and the proceeds divided between them, so that Mrs. Gertrude Elliott was to become the absolute owner of the $2,000 which was to be paid to Barnett, the trustee, and by him used for her benefit; but the judge stated at the conclusion of his findings of fact that the testimony referred to, and some slight testimony offered by the plaintiffs in rebuttal, had not been considered by him in deciding, the case because of the fact that he had permitted it to be introduced after he had announced his decision. But, notwithstanding that statement, in qualifying bills of exception presented by the plaintiffs and approved by the judge, he stated that he reopened the ease, and permitted the testimony referred to to be introduced because of the fact that he had previously and repeatedly indicated to counsel that he would construe the trust as one passing the absolute title to the $2,000 to Mrs. Gertrude Elliott, and had thereby misled appellants, and induced them not to offer the evidence until after he changed his mind and announced his holding to the contrary, and then the trial judge proceeds to say: “And after the admission thereof the said testimony was considered by the court in rendering final judgment in the cause.”

Opinion.

Without treating in detail the several assignments of error presented in appellants’ brief, we announce our conclusion upon the controlling questions in the case as follows:

1. We conclude that the trust instrument which fixes the rights of the parties, and which is the deed to W. C. Glover, Of date July 29, 1911, is ambiguous in respect to the intention of the parties as to the ownership of whatever portion of the $2,000 trust fund should remain unexpended after the death of Mrs. Gertrude Elliott, and that it was proper for the court to hear and consider any admissible testimony tending to show what the parties really intended in that regard. According to the bills reserved thereto, the testimony offered upon that- subject was objected to by the plaintiffs (1) because there was no ambiguity in the instrument creating the trust, and therefore it was not permissible to contradict, vary, or explain it by parol evidence; (2) because the plaintiffs were not present when Mrs. Gertrude Elliott made the statements testified to; (3) because such testimony was hearsay; and (4) the testimony was offered after the parties had rested and the court had announced its judgment.

Our holding that the instrument referred to is ambiguous upon its face answers the first objection. As to the second and third, there was testimony tending to show that the statements made by Mrs. Gertrude Elliott were communicated to the plaintiffs before they signed the instrument, and that the latter acquiesced in Mrs. Elliott’s contention in that regard. The fourth and last objection is disposed of by the explanation given by the court as to the reason why the case was reopened. That was a matter within the sound discretion of the trial court, and the reason given by that court shows that there was no abuse of that discretion. Hence we hold that the appellants had the right to have the testimony referred to considered and given its proper weight by the trial court, and, if it was so considered, we hold that the judgment should be reversed, because it is contrary, if not to all, at least to the overwhelming weight of the evidence. If that testimony was not considered, then the case should be reversed because of the failure of the trial court to consider it. Of course, we do not know whether or not the evidence referred to was considered by that court, because in separate and distinct written documents the judge has stated that he did and that he did not consider it, and such contradictory statements, in and of themselves, ought to be held sufficient ground for reversing the ease.

Counsel for appellees contend that the instrument under consideration should be construed in connection with and as supplemental to the former trust instrument, in which there was a reversionary clause, distinctly vesting in Mrs. Melissa Elliott the remainder of the trust estate. That contention is unsound, because it is distinctly stated in the last instrument that it had been agreed between Mrs. Gertrude Elliott and John W. and Melissa Elliott that all former agreements of every kind and character concerning the title to the land or any interest therein had been revoked, canceled, abrogated, annulled, and terminated. Hence we hold that, while it may be proper to consider what had occurred in the past in determining what was the last and final agreement between the parties, that agreement, and that alone, fixes their rights.

Counsel for appellees also cite and rely upon Monday v. Vance, 92 Tex. 428, 49 S. W. 516. In that ease a husband and wife had executed a trust deed conveying the property to a trustee for the use and benefit, of the wife and her minor children, and thereafter the husband and wife conveyed the property to others. The trustee and the minor children sued the husband and wife, and their vendees, to recover the property, and on certified questions the Supreme Court held (1) that the trustee’s title was limited to the purposes of the trust, and that the remainder of the estate could be conveyed by the husband and wife, and (2) that during the lifetime of the beneficiaries, or at least during the minority of the children, the trustee was entitled to possession' and control of the property. The instrument there construed was in the ordinary form of a deed of trust, except that it contained no reversionary clause, while the one involved in this case converts property in which Mrs. Elliott had a life estate into money, and uses some language tending somewhat to show an agreement between her and her son and his wife to divide the money, so as to vest in her complete ownership of the $2,000, subject, of course, to the right of possession and control by the trustee. But that language is not so clear and specific as to render it certain that such was the intention of the parties, and therefore we hold that the instrument is ambiguous, and that parol evidence is admissible to aid in determining its meaning.

2. We hold that no error was committed in overruling appellants’ objections to the intervention of W. G. Baker. He alleged in his petition that the fund in question, which had been deposited in the registry of the court, was the only property belonging to the estate of Mrs. Gertrude Elliott, and if that be true, and he was a creditor of that estate, and chose to intervene in this ease instead of forcing an administration, we perceive no sufficient reason why he should not be permitted to do so.

3. We also hold that no error was committed in overruling appellants’ exceptions to the plaintiffs’ petition. In that petition the plaintiffs sued Barnett alone, and while, as alleged by appellants, it disclosed no right of action against them, it was not necessary that it should do so. They were impleaded by the defendant Barnett, and they would hardly be heard to say, nor do they say, that Barnett’s plea failed to show that they were interested in the subject-matter of the litigation, and therefore proper parties. In fact, in their own pleading they allege their interest, and contest the rights asserted by the plaintiffs.

4. Eor the reasons stated, the judgment of the trial court is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded."


author: RICE, J.

text:
    TRINITY & BRAZOS VALLEY RY. CO. v. LUNSFORD.
    (Court of Civil Appeals of Texas. Austin.
    June 11, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Trial (§ 194) — Instructions—'Weight ox Evidence.
    In a switchman’s action for personal injuries alleging that defendant permitted its track and roadbed to become so out of repair as to render it dangerous to plaintiff in the performance of his duties, without which his injury would not have occurred, the question of the negligence of defendant was for the jury, and a charge that, if defendant did not use ordinary care to keep its roadbed and track in proper and safe condition and permitted it to become so defective as to make switching thereon dangerous to employés,. it would be negligent was error.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    2. Trial (§ 243) — Instructions—Contradictory Instruction.
    A jury cannot be required to harmonize conflicting charges, and, where such charges are given which may be material, the case will be reversed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.]
    3. Appeal and Error (§ 701) — Absence ox Exceptions — Re view .
    In a switchman’s action for personal injuries from a roadbed so defective as to make switching dangerous, a charge taking the question of negligence from the jury and declaring such condition to be negligence was so apparently erroneous as to leave no doubt but that it must have influenced the jury and may be reviewed even though the record contained no such statement of facts as could be considered on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ -2933-2935; Dec. Dig. § 701.]
    4. Master and Servant (§ 112) — Master’s Duty — Railroads.
    It is a railroad’s duty to use ordinary care to keep its roadbed and track in reasonably safe condition.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 212, 213, 218-223; Dec. Dig. § 112.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by James T. Lunsford, against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    N. H. Lassiter, Robert Harrison, and R. M. Rowland, all of Ft. Worth, for appellant. Wroe & Geppert, of Teague, and Simkins & Simkins, of Corsicana, for appellee.

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

   RICE, J.

This suit was brought by ap-pellee against appellant to recover damages for personal injuries received by him while engaged as a switchman in the employ of ap^ pellant in its yards at Teague, when endeavoring to couple two box ears to a switch engine ; the negligence relied upon for recovery being that appellant permitted its track and roadbed to become so out of repair as to render it dangerous to appellee in the performance of his duties as. switchman and without which said injury would not have occurred. Appellant answered by general denial and pleas of contributory negligence and assumed risk. A jury trial resulted in a verdict and judgment in behalf of appellee for the sum of $15,000, of which $5,000 was remitted at the direction of the court, and the verdict permitted to stand for the sum of $10,000, from which judgment this appeal is prosecuted.

While various assignments of error are presented by the record, all of which have had our most careful consideration, yet it is deemed advisable to discuss only two of them, since, in our judgment, the first of these is determinative of the appeal.

In the sixth paragraph of its main charge to the jury, the court gave the following: “You are hereby instructed that, if the defendant company failed to use ordinary care to keep its roadbed and track in proper and safe condition or caused or permitted same to become so defective and out of repair as to render the operation of switching thereon dangerous to its employés, this would be negligence.” This charge is assigned as error on two grounds; the first being that the company was only required to use ordinary care to keep its roadbed and track in reasonably safe condition, whereas said charge imposed a greater obligation, requiring the company to use ordinary care to keep the roadbed and track “in proper and safe condition.” Second. Said charge was upon the weight of evidence and invaded the province of the jury in that it told them it would be negligence on the part of the defendant to cause or permit its roadbed and track to become so defective and out of repair as to render the operation of switching thereon dangerous to its employés instead of leaving it to the jury to say whether or not such would be negligence under the circumstances.

The question of negligence vel non is one of fact for the determination of the jury, and it is error for the court to state that certain facts or group of facts constitute negligence. See Railway Co. v. Cooper, 32 Tex. Civ. App. 592, 75 S. W. 328; Glenn Lumber Co. v. Quinn, 140 S. W. 863. The first case cited was a suit against a railway company for the killing of a mule; plaintiff having alleged that on the station ground at the town of Miami the defendant had negligently constructed certain fencing in such a way as to create a “pocket” adjacent to the track, thereby making the places dangerous for animals. On this phase of the case the court charged the jury as follows: “Now I instruct you that if, within the knowledge of the defendant company, such a place has been maintained by the company, and if you And this and also find by a preponderance of the testimony that the same is dangerous to stock, to horses, and that they may be induced, on the passing of trains, to go across the railroad track from such point in an effort to escape trains and should be killed thereby, it would be negligence on the part of the railroad company in maintaining such a place at such a point.” The court in discussing this charge used the following language: “Now it cannot be said as a matter of law that the maintenance by a railroad company of a ‘dangerous’ place is negligence, and the courf erred in so telling the jury in this instance. The jury should be left to determine this matter in view of all the surrounding circumstances.”

In Glenn Lumber Co. v. Quinn, supra, where the appellee sued for damages sustained while working as a sawyer at a sawmill, the jury were in effect told if certain conditions were found to exist and certain things had been done, without reference to whether these conditions resulted from negligence or whether such acts referred to constituted negligence, then to find for the plaintiff. This was held to be error, for the reason that the question of negligence was not submitted for the determination of the jury, and that the charge was upon the weight of the evidence. See Boldt v. San Antonio Traction Co., 148 S. W. 831. Numerous other authorities might be cited, if necessary, to sustain appellant’s contention in this respect.

Appellee contends, however, that in another paragraph of its charge the court left to the jury to say whether or not permitting the track to become unsafe would be negligence. But, if this be granted, it left a conflict between two different portions of the charge; and, as said by Hr. Chief Justice Brown in Railway Co. v. Sage, 98 Tex. 438, 84 S. W. 814: “A jury cannot be required to harmonize conflicting charges.” “When contradictory charges are given which may be material, the case will be reversed. Railway Co. v. Robinson, 73 Tex. 284, 11 S. W. 327.

We think the charge complained of constitutes reversible error, even though it be conceded that no such statement of facts accompanied the record as can be considered by us, because while it is held in Texas & Pacific Ry. Co. v. McAllister, 59 Tex. 349, and numerous other cases there cited, that the court will not revise an erroneous charge in the absence of a statement of facts, still this ease recognizes that there is an exception to such rule, saying: “Where the charge given, taken in connection with the pleadings and the verdict, is so apparently erroneous as to leave no doubt but that the finding of the jury must have been controlled by the improper instruction,” then the same will be revised on appeal. See McGaughey v. Bendy, 27 Tex. 534; Freiberg v. Lowe, 61 Tex. 436; Anding v. Perkins, 29 Tex. 352; Davis v. Calhoun, 41 Tex. 554; Ross v. McGowen, 58 Tex. 607; Neill v. Newton, 24 Tex. 202.

In Neill v. Newton and Anding v. Perkins, supra, it was held that, where the petition contained no allegation upon which a recovery could be had for exemplary damages, a verdict for such damages would be reversed, notwithstanding there was no statement of facts in the record.

In 2 Cyc. 1076c, it is said: “Where the error sought to be remedied appears upon the record, the party aggrieved may avail- himself of it on appeal or writ of error, without bill of exceptions, case, statement, or other statutory remedy; but rulings and decisions of the lower court, the correctness of which cannot toe determined from the record proper, must be made a part of a transcript by bill of exceptions, case, statement of facts, or other modes prescribed by statute in order to their review by' the appellate court”— citing many cases in the notes in support of the text, among others Neill v. Newton, supra.

It is said in Freiberg v. Lowe, supra, as shown by the syllabus, that, “in the absence of a statement of facts, a case will not be reversed on a charge of the court below, unless it would have been glaringly erroneous under any state of facts that could exist under the pleading.”

In the present case it is apparent from the record that plaintiff relied wholly for recovery upon the alleged negligence of appellant in allowing its roadbed and track to ¡become so defective and out of repair as to render it dangerous to him in the performance of his duty. It is also apparent, as shown by the charge, that the court was endeavoring to submit this issue for the consideration of the jury. If the trial judge had thought that this alleged neglect of duty was so gross as to constitute negligence as matter of law, then it became his duty' to instruct a verdict for plaintiff. But it is evident from the record that he did not entertain such belief but on the contrary saw proper to submit the question of negligence to the jury; and in attempting to do so he has fallen into the error above referred to. Under the authorities, we think this error was so glaring and patent from the whole record as to leave no doubt tout that the finding of the jury must have been influenced by it, for which reason we sustain this assignment.

We also believe the court erred as urged in the seventh assignment in telling the jury in the sixth paragraph of its charge that the defendant was required to use ordinary care to keep its roadbed and track in proper and safe condition. They should have been told that it was the appellant’s duty to use ordinary care to keep said road-tied and track in reasonably safe condition. See Railway Co. v. Eddings, 139 S. W. 902; Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S. W. 133. In tbe latter case tbe court said: “Tbe rule, as generally stated, is that a master bas discharged bis duty to bis servant when be exercises ordinary care to furnish him a reasonably safe place to work and reasonably safe appliances to work with and bas exercised ordinary care to maintain them in a reasonably safe condition.” See, also, Labatt on Master and Servant, vol. 1, § 22a; 26 Cyc. p. 1106, subd. 2. We only call attention to tbe error last noticed so that it may not recur on another trial.

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

Reversed and remanded.