text:
    MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. CAUBLE.
    (No. 8111.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 20, 1915.
    Rehearing Denied March 20, 1915.)
    1. Evidence <§=>544 — Injury to Dive Stock —Expert Evidence as to Damage.
    Witnesses who had experience extending over years in the cattle business in Oklahoma, and had seen cattle dipped in arsenic and in crude oil, sufficiently qualified as experts to testify to the general fact of injury to cattle by dipping in crude oil.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2356; Dec. Dig. <§=>544.]
    2. Carriers <§=>230 — Injury To Live Stock-Evidence of Damages.
    Though witnesses who had qualified as experts on the general point how cattle might be injured by dipping in crude oil testified merely in a general way as to the probable damage from such action, and not specifically as to the market value of the cattle in suit at the place of dipping, such evidence was admissible as tending to establish the amount of damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <§=>230.]
    3. Carriers <§=>229 — Injury to Live Stock —Damages.
    That live stock injured by negligent dipping in crude oil recovered is not ground for the preclusion of the owner from recovery for any depreciation in value caused thereby.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dee. Dig. <§=>229.]
    4. Trial <§=>253 — Recovery of Stock from Injury — Instruction Ignoring Facts.
    Where there was evidence that stock injured by dipping in crude oil had to be given extra feed during the winter to fit them for market with other uninjured stock the plaintiff owned, an instruction that, if plaintiff's stock had recovered from the injury, if any, received in dipping, plaintiff could not recover, was properly refused, because ignoring such evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. <§=>253.]
    5. Trial <§=>192 —Instructions —Assuming Admitted Facts.
    In an action against a railroad for injury to cattle by dipping in crude oil, where there was no controversy in the testimony, but that the stock was dipped in some sort of a solution, an instruction that assumed such dipping in some solution as a fact was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. <§=>192.]
    6. Trial <§=>234 — Instructions—Evidence.
    An instruction in an action for injury to a shipment of cattle that, if it was found that defendant was not negligent, or that the cattle were not injured by defendant’s negligence, if any, then to find for defendant, was not erroneous as placing the burden on defendant of showing lack of negligence, where the court expressly charged that the burden was on plaintiff to establish his cause of action by a preponderance of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. <§=>234.]
    7. Trial <§=>234 — Instruction — Burden of Proof.
    An instruction that if, at the time of shipment, plaintiff requested of defendants, and defendants agreed, to dip plaintiff’s cattle in an arsenic dip, and defendants did dip the cattle in an approved arsenic dip, plaintiff could not recover any damage caused by the dipping of his cattle, was not misleading as putting the burden of proof on the defendants to prove their defense, where the court expressly charged that the burden was on plaintiff to prove his case by a preponderance of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. <§=>234.]
    8. Carriers <§=>215 — Carriage of Live Stock — Dipping.
    Where plaintiff, owner of live stock, pleaded against defendant railroad a special contract by such road to dip stock transported by it in a special arsenic bath, and not in crude oil, and that defendant had breached such contract by dipping in oil, plaintiff stated a cause of action, since governmental regulations as to the prevention of diseases of stock and their spread, and the means used by the government to prevent diseases, are police regulations imposed on the railroads merely under governmental direction and supervision, for injury in the conduct of which the railroad is liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. <§=>215.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    Action by C. M. Cauble against the Missouri, Kansas & Tesas Bailway 'Company of Texas and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    B. H. Hopkins, of Denton, for appellants. J. A. Templeton, of Ft. Worth, for appellee.
   BUCK, J.

This suit was filed in the county court of Denton county for damages alleged to have been suffered by appellee by virtue of rough handling and delays in transportation of 362 head of steers shipped from Ft. Worth, Tes., to Vinita, Okl., on November 21, 1910, and for injuries alleged to have been sustained by reason of said cattle having been dipped in crude petroleum oil at Vi-nita, instead of in an arsenic dip, as plaintiff alleged the appellant companies, through their live stock agent, L. B. Comer, had agreed to do. The total damages alleged to have been suffered by reason of the two grounds of negligence was $2.25 per head for those injured, and $32 per head for 3 alleged to have been killed, or the sum of $903.75.

Plaintiff alleged that prior to the shipment of said cattle he went to see L. B. Comer and stated to him that he did not want his cattle dipped in petroleum oil, and asked him, should said cattle be shipped over the defendants’ line of railway, whether the defendants were prepared to give, and would give, said cattle a dip in the arsenic solution approved by the proper officers of the government, and that said Comer stated to him that within the course of a few days they would be prepared to give said arsenic dip, and that they would have the vats at Vinita prepared and cleaned so as to give said dip, and that thereafter Comer informed plaintiff that they were prepared to give said arsenic dip, and he shipped said cattle in reliance upon said information and promise, and that he paid said defendant company, in addition to the freight, the charge for dipping the cattle in the arsenic dip. He further alleged that, in fact, said cattle were dipped in the petroleum dip, and that they were injured thereby, and that the oil remained on the cattle for many weeks, burned the hair off of many of them, and caused them to suffer greatly during the winter, and prevented them from, taking on flesh and fat, to his damage. He further alleged that three head of cattle were so badly crippled and bruised when they arrived at Vinita that they died shortly after being unloaded, and that they were of the reasonable market value of $32 per head.

Defendants specially answered, first, that they were not liable for any alleged negligence in overloading or underloading the cars; that said cattle were delivered to them at Hodge Junction; that at the time they were so delivered they were already loaded in said cars, either by the Ft. Worth Belt Bailway Company, or by the Ft. Worth Stockyards 'Company, neither of which said last-named companies was in any manner connected with, or the agents of, these defendants; and further denied any liability because of said alleged dipping in oil, and alleged affirmatively that said cattle were not dipped in the crude petroleum, as alleged by plaintiff, but were dipped in the arsenic dip, and under the supervision of the officer of the state of Oklahoma under the quarantine regulations of that state, and that the defendants were not responsible for any negligence of said officer. There were some other defenses set up in the answer not necessary here to mention.

Upon a trial before a jury a verdict and judgment was rendered in favor of plaintiff for the sum of $667.50, with interest at 6 per cent, from November 23, 1910, the date of arrival at Vinita of shipment, from which judgment this appeal is taken.

In the first and second assignments of error appellants complain of the admission of the testimony, first, of C. E. Nugent, and second, of C. J. Husslekamp, who testified to the depreciation in the market value of cattle dipped in oil over cattle dipped in arsenic solution, because, as claimed by appellants, these two witnesses failed to qualify as experts upon the question of the market value of the cattle in the shipment in controversy. Both of these witnesses testified to an experience extending over years in the cattle business in Oklahoma, and to have seen cattle dipped 'in arsenic dip, and also in crude oil, and, in substance, they testified that cattle submitted to the crude oil dip were injured, and were rendered thereby more expensive to carry through the winter and to fatten; that they required more feed to properly winter and fatten them than cattle submitted to the arsenic dip. Neither witness qualified to testify to the market value of these cattle at Vinita on the date named, and therefore appellants urged that there was error in admitting the testimony, because such testimony did not establish, or tend to establish, the measure of damages in this case, to wit, the difference, if any, in the market value of the cattle at Vinita if they had been dipped in arsenic and their market value if dipped in oil. It is true that such evidence did not alone furnish or conform to the legal measure of such damage, if any, but can we say that therefore it is inadmissible? If a certain treatment of cattle depreciates them in flesh or makes them sick, and consequently additional care and expense is required in the subsequent handling of said cattle, and additional feed required because of such treatment, is not such a fact admissible as probative of the main fact sought to be proved, to wit, the depreciation in market value of the cattle in controversy by reason of such treatment? Because the evidence elicited does not go to the full measure of the test provided by law is no reason why it should be held inadmissible. It may tend to establish such measure of damages, though not in itself establishing it. In Houston Oil Co. v. Trammell (Sup.) 74 S. W. 899, thé plaintiff complained that the defendant had sold him certain unsound cotton seed meal for cattle, and that in eating said meal said cattle were made sick, and that such cattle were injured thereby in the sum of $10 per head. Whereupon the defendant, upon a cross-examination of plaintiff, asked him “How much he received per head for the cattle sold in Kansas City and Chicago,” to which question the plaintiff objected, “because the measure of damages is the difference between the market value of said cattle at West, Tex., before and after they became sick, and because the time at which they were sold was 40 to 50 days after they became sick,” which objection the court sustained, and the defendant excepted. In passing upon this matter, the Supreme Court said:

“It is true that, as applicable to the facts of this case, the measure of damages as claimed is the difference between the market value of the cattle at West just before and just after they were made sick by eating the meal, and the evidence was not admissible to establish, as the measure of damages, the market value of the cattle at the places where sold as the criterion by which to determine the amount of recovery; but, the plaintiff having testified upon direct examination to the fact that the cattle had depreciated as much as $10 per head while sick, it was permissible on cross-examination to ascertain from him the price at which he sold the cattle at a subsequent, but not remote, date, because the testimony would tend to show that the plaintiff’s opinion of the amount which the cattle had declined in value was not correct, and thus impeached the reliability of his judgment in making estimate of the damages susr tained.”

In Railway v. Jackson et al., 99 Tex. 343, 89 S. W. 968, the court held that it was admissible in an action against a carrier for breach of a contract for a shipment of cattle, where plaintiff testified that he formed an opinion of the market value of cattle at destination from the estimate of value which commission men placed upon cattle, for the purpose of determining the amount to be loaned on them, defendant should have been permitted on cross-examination to ask him whát he paid for the cattle when he purchased them and the cost of shipping them to destination. Thus it will be seen that, while the evidence complained of does not meet the full measure of the criterion established by law, yet it discloses a condition or circumstance probative of the main fact sought to be proved, and therefore we believe that the first and second assignments should be overruled. This ruling is further sustained by the fact that another witness, W. F. Friend, testified without objection that he received the cattle in question at Vinita for plaintiff; that he knew their market value at that place before they -were dipped and afterwards; and that it cost from $3 to $5 more to winter the cattle dipped in the oil dip than it did others. Railway v. Hughes, 73 S. W. 977, and authorities there" cited; Green’s Tex. Dig. vol. 1, pp. 743-751.

The third assignment complains of the action of the court in refusing to give defendant’s special charge No. 1, as follows:

“You are instructed in this case that, even if you find from the. evidence in this case that said cattle were damaged from delay and rough handling, and that they were dipped in oil, instead of in arsenic, yet, if you believe from the evidence that when said cattle were placed upon pasture that they fattened and were fit for the market as early as other cattle which the plaintiff had in Oklahoma in the same vicinity at said time, then the plaintiff cannot recover in this case.”

In the proposition under this assignment appellants submit that no damage will lie where plaintiff charges that the cattle had been damaged in shipment, and it is shown by proof that they recuperated in the same length of time as other cattle shipped at the same time and in the same vicinity. The witness W. F. Friend testified:

“These 430 and 81 head were delivered to Little Bros., of Ramona, Okl., that spring. I. did not deliver just this lot. I delivered all the' cattle there was. I delivered these three shipments to Little Bros., less the 18 that died.”

And Joe Little, another witness, testified:

“When these cattle were first brought to my pasture they were poor and in bad condition. We shipped some of the cattle out in July and some of them in September. When these cattle were shipped out they were not fat, but they had done well considering the season. The season had been bad and the pasture poor. These cattle had done as well as the majority of cattle in this country.”

Upon this testimony appellants insist that the charge tendered should have been given. While the testimony was admissible as tending to show that the cattle had not been injured, or had not depreciated in market value by reason of the negligence alleged, yet the fact that the cattle included in this shipment and subjected to this dip, as alleged in plaintiff’s petition, fattened during the winter and sold thereafter at as good a price as other cattle not included in the shipment, or not subjected to the dip, would not preclude a recovery by plaintiff, if, in fact, the cattle were in reality depreciated in value by reason of said dip, and if defendant was guilty of negligence in the manner of giving or preparing for said dip. Houston Oil Co. v. Trammell, .supra. Moreover, we think the charge submits the incorrect measure of damages, and is on the weight of the evidence. Several of the witnesses for plaintiff testified that certain of these cattle alleged to have been dipped in oil had to be fed during the winter because of their debilitated condition due to said dip, and that, in order to prepare these cattle for market, it was necessary to spend for feed on them more than on others which had not been so treat-- ’ ed. The special charge requested ignores this evidence entirely. This assignment is overruled.

In their fourth and fifth assignments the appellants complain of the giving of certain paragraphs of the court’s charge. The fourth is as follows:

“The court erred in the fourth subdivision of his charge, wherein he uses the following language, to wit: ‘Take the difference between the market value at Yinita, Okl., in their injured and damaged condition, if they were damaged at the time of their delivery before they were dipped.’ The court erred, for the words underscored constitute a charge on the weight of the testimony, and because the court unduly emphasized the fact that they were dipped, and because the fact they were dipped had nothing to do with the damage, if any, occasioned by the delay in transportation or the damage incurred by rough handling.”

Paragraph 4 of the court’s charge is as follows :

“If you find for plaintiff, you will in such event find and assess the damages against the defendants at the difference between the market value of the cattle at Vinita, Okl., in their injured and damaged condition, if they were damaged, at the time of their delivery, and before they were dipped, and their market value at Vinita, Okl., at the time and in the condition they would and should have been delivered but for defendants’ negligence, if you find they were negligent, with 6 per cent, interest from November 23, 1910, to this date.”

As will be seen, appellants have, unintentionally, no doubt, misquoted said charge, but, irrespective of this discrepancy between the charges given and as quoted in the assignment, we are unable to see how any injury could result to appellants by the court’s assuming that said cattle were dipped; for all of the witnesses who testified on this question testified that the cattle were dipped, and the only controversy was as to whether they were dipped in a solution of crude petroleum or of arsenic. We think, if any criticism is sustainable to this paragraph of the court’s charge, it is that it is too favorable to the defendants in that it excludes from the consideration of the jury any depreciation in value or injury to the cattle which might have occurred by reason of the rough handling and delay in transportation alleged by plaintiff, and predicates the entire right of recovery upon the question of injury arising by reason of said dip. We find no error shown in the fourth assignment. The fifth section of the court’s charge instructs the jury as follows:

“If you find from the evidence that the defendants were not guilty of negligence in the handling and transporting [of] said cattle over the railway, or if you find that the plaintiff’s cattle were not injured by a result of said negligence if there was negligence, you will in such event find for the defendants upon plaintiff’s claim for delay in transportation and rough handling.”

Appellants in their fifth assignment allege error in that this charge puts the burden of proof upon the defendants to show that they were not guilty of negligence. We think that such assignment is hypercritical, inasmuch as the court later in his charge gave a correct instruction as to the burden of proof being upon the plaintiff to establish his cause of action by a preponderance of the testimony. While it might have been better if the court had differently worded.this paragraph, yet we cannot see that any injury was done to defendants, or that the jury were probably misled by reason of the said paragraph. Consequently the fourth and fifth assignments are overruled.

The sixth assignment urges error in “section 8” of the court’s charge. We presume that this is a clerical error, and that the reference should be to section 6 of said charge, which is as follows: ⅜

“If you find from the evidence that at the time of shipment plaintiff requested of defendants, and defendants, through their local agent, agreed, to dip plaintiff’s cattle in an arsenic dip, and you find that defendants did dip or cause_ the. cattle to be dipped in an approved arsenic dip, then plaintiff cannot recover any damage by reason of the dipping of his cattle.”

Appellants urge that this charge placed the burden of proof upon the defendants, rather than upon the plaintiff, to establish-that the cattle were dipped in an arsenic dip, rather than in oil; but, for the reasons given in the discussion of the fourth and fifth assignments, we do not think that this objection is well taken. Under this assignment appellants further urge that:

“Carriers engaged in the transportation of live stock owe the duty to the public to receive for transportation and safely transport to destination all live stock tendered to them for transportation. Governmental regulations with reference to the prevention of diseases and the means used by the government to prevent diseases are not part of the carrier’s duty; its duty to the shipper having ceased with the delivery of the live stock at the point of destination.”

As a general proposition, this may be true, but in the instant case the plaintiff had pleaded a specific contract with the defendants through their local live stock agent to prepare the means of giving the arsenic dip, and had paid the company before shipment for the giving of said dip. Defendants in their answer claimed that said cattle were dipped in the arsenic dip, and in this paragraph of the court’s charge instructions are given on that theory of the defense. While it is true that the government may and does assume direction and supervision over the enforcement of quarantine precautions and regulations, yet in this case the state of Oklahoma had authorized the giving of two kinds of dips for cattle shipped into the state from Texas; one of the arsenic solution, and the other of crude petroleum. The plaintiff desired his cattle to be subjected to the arsenic dip, and so informed defendants through the live stock agent, and was promised that provisions would be made by the cleaning out of the pens and vats at Vinita for the giving of the arsenic dip, and therefore the defendants could not avoid the responsibility entailed by such agreement merely because a government officer supervised the giving of this treatment to the cattle required by governmental regulations. In fact, the evidence justifies the finding by this court that the trouble was that the defendant companies failed to properly remove from the ,vats the crude petroleum before allowing the arsenic solution to be emptied into them, and that this sediment of oil rose to the surface and some of the cattle, at least, were in effect subjected to the oil dip, while others, after the oil had been carried away by previous cattle, did not receive the full effects from such floating oil. We do not believe that any error is shown in this assignment, and the s%me is overruled, and likewise the seventh, which raises the same question.

In the eighth assignment appellants complain that the court erred in giving the sixth and seventh paragraphs of the main charge, and also defendants’ specially requested instruction No. 3. The sixth paragraph of the court’s charge is given above, and the seventh submitted the converse, to wit, that if plaintiff had requested of defendants that his cattle be given an approved arsenical dip, and the defendants agreed to do so, and that the defendants negligently dipped them or permitted them to be dipped in a different dip, and by reason thereof plaintiff’s cattle were damaged, then the jury were instructed to find for the plaintiff the difference, if any, in the market value of cattle at Vinita just after they were dipped and what would have been their market value at the same time and place if dipped in an approved arsenical dip. As before stated, we believe that this was properly an issue to be submitted to the jury as to whether or not Mr. Comer for the defendants had promised to have prepared for plaintiff’s cattle this arsenic dip and to dip them therein, and whether or not the defendants had failed to carry out this agreement. If such be the case, defendants could not be relieved of the responsibility for the fulfillment of the obligation merely because a governmental officer supervised the dipping of said cattle. There is nothing in the record that raises the presumption that this inspector arrogated to himself the authority to say whether one or the other of the approved treatments should be applied to any specific shipment of cattle, but merely whether one or the other should be used, that it should be used in compliance with the law. In this view of the case, it seems to us that defendants’ special instruction No. 3 was an instruction to which they were not entitled, and therefore they cannot reasonably complain that it was in conflict with paragraphs 6 and 7 of the court’s charge and misleading and confusing to the jury. If there be any error, the defendants have received the benefit thereof, and show no injury. Therefore the eighth assignment is overruled.

In their ninth assignment appellants complain that the verdict of the jury is excessive, in that, by reason of the contention that the plaintiffs would not be entitled to recover for any injuries sustained on account of the dip used, and because the plaintiff himself testified that, in so far as the damages arising from delays in transportation were concerned, they amounted to only 50 cents a head, or a total of $180.50, and one dead, $36, and that inasmuch as the recovery was for $667.50, that the judgment is excessive to the amount of $451; but this court cannot agree with appellant’s premise that the plaintiff would not, under the pleadings and evidence, be entitled to damages on account of the dip used, and hence does not concur in the conclusion reached, and therefore the ninth assignment is overruled.

Finding no reversible error, the judgment of the trial court is hereby affirmed.
      <@=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      c§^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    KEITT v. GRESHAM et al.
    (No. 8105.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 20, 1915.)
    1. Appeal and Error <S=^732 — Assignment-Specifications.
    An assignment of error that “the court erred in overruling defendant’s motion for a rehearing” was too general to be considered, unless the record disclosed fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. <§=> 732.]
    2. Contbacts <5=550 — '“Consideration.”
    A valid “consideration” is some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 222; Dec. Dig. <®=>50.
    For other definitions, see Words and Phrases, First and Second Series, Consideration.]
    3. Brokers <*=567 — Agency for Both Parties.
    Where a real estate agent was employed by one to sell land, and, without knowledge of the vendor, a prospective purchaser contracted to pay him $500, if the deal did not go through on account of any action of such purchaser, such contract was against public policy, and there could be no recovery by the agent in suit on it against such purchaser.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. ⅞=>67.]
    4. Brokers <5=567 — Agency for Both Parties — Consideration.
    Where a real estate agent, under contract to sell land for another, contracted with.a prospective purchaser that if such purchaser failed to consummate the transaction he should pay to the agent'$500 for his services, such contract was a nullity as not supported by any consideration, since whatever detriment was called for from the agent under it, such as his services in completing the sale, he was already under legal duty to perform, by virtue of his contract with the vendor of the land.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. <S=>67.]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    Action by D. O. Gresham and another against W. E. Keitt. Judgment for plaintiffs,
    and defendant appeals.
    Reversed and remanded.
    Levi Herring and John A. Herring, both of Glen Rose, for appellant. John J. Hiner, of Ft. Worth, and O. D. Spann, of Glen Rose, for appellees.
   BUCK, J.

Appellees sued appellant in the district court of Somervell county for $500, alleging that one I. O. Cheek owned a valuable tract of land in Somervell county, and that plaintiffs were real estate dealers, not as partners but individually, and that prior to September 20, 1913, plaintiff Bert Lacy entered into a contract with said Cheek, whereby said Cheek agreed to pay to Lacy the sum of $500 if he should find a purchaser for the land aforesaid and upon terms to be agreed upon; said $500 to be due and payable only in the event the trade was closed with any such purchaser that might be secured by the said Lacy; that after making the said contract with Cheek, said Lacy agreed with his coplaintiff, Gresham, to divide the $500 with him upon condition that the said Gresham would assist said Lacy to find a purchaser for said land; that prior to September 20, 1913, the said Gresham met the defendant, appellant in this court, and offered to sell the above-described tract of land to him for $16,000, and upon terms to be agreed upon between the said Keitt and the said Cheek; that said plaintiffs informed the said Keitt at the time they offered said land for sale to him that they had an agreement and contract with the owner of said land whereby the latter was to pay to them the sum of $500 in the event they procured a sale, but that they were not to receive any pay for their services from the said Cheek unless the deal was closed, and that it would be necessary for the said Keitt to agree with him, the said Gresham, before proceeding with negotiations, to pay to him the sum of $500 in the event he, the said Keitt, failed to take said land, if he and the said Cheek could and should agree on the price and terms for same; that thereupon the said Keitt did agree with the said Gresham that, in the event he, Keitt, failed or refused to take said land at the price and on the terms to be agreed upon by and between him and the said Cheek, he, said Keitt, would thereupon pay the said Gresham the sum of $500. Plaintiffs further alleged that on September 20, 1913, the said Cheek and said Keitt did agree upon a sale and purchase of said property, upon certain terms set out in their petition, and that thereafter said Keitt defaulted and failed to comply with the terms of his said contract with Cheek, and declined to carry out and fulfill the terms thereof; that said Cheek did fulfill and comply with all of the terms of the contract between him and said Keitt, even to the execution of a warranty deed by said Cheek and his wife, and that the failure to complete said trade was in no wise due to any act or omission of said Cheek, but wholly to the failure of said Keitt to carry out the terms of his agreement, and that the plaintiffs, as well as said Cheek, did all they had agreed to do with reference to said lands and the title thereto. Wherefore said Keitt became indebted to the plaintiffs in said sum of $500. It might be stated, further, that the failure to consummate the deal seems to have been due, in part at least, to a misunderstanding, between appellant on one side and plaintiffs and Cheek on the other, as to whether or not an abstract of title should be furnished by Cheek, and also as to whether an artesian well should be sunk on the said premises and a flow secured before said trade was completed. It was contended by appellant that one of the plaintiffs had agreed with him that a flowing well should be sunk on said premises before said deal was closed, and that an abstract of title was to be furnished by Hr. Cheek. One of the plaintiffs, Mr. Lacy, stated that he had said that he would “guarantee” a flowing well on said premises, and that he would agree that if Mr. Keitt would sink a well and did not secure a flow, he would pay for it, but that if he did secure a flow, Keitt was to pay for it. Mr. Cheek denied that he was to furnish an abstract, but stated that Keitt had accepted the title as being good because a loan company had made a loan on the land. This case was tried by the court without the intervention of a jury, and a judgment was rendered for appellees for the amount sued for and interest, from which judgment this appeal is taken.

Appellant has but one assignment of error, to wit, “The court erred in overruling defendant’s motion for a rehearing.” This assignment is too general to be considered by us, as it goes to the entire record and does not point out in what respect the court erred in overruling defendant’s motion for new trial; unless it can be held that fundamental error exists, and that such error is patent, it will be our duty to afiirm the judgment rendered by the trial court.

The question, and the only one, presented to us for determination is, Was there a sufficient consideration moving to Keitt to support the contract and agreement alleged? As to all other matters in dispute the court, who tried the case and heard the witnesses testify, has decided in favor of the appel-lees, and the action of the trial court is binding upon this court.

A valuable consideration is generally defined as “some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other.” Elliott on Contracts, vol. 1, p. 337, and authorities there cited. Can there be said to have existed any right, interest, profit or benefit accruing to appellant, or any forbearance, detriment, loss, or responsibility suffered or undertaken by appellees, which will support the enforcement of this alleged agreement on the part of a prospective purchaser to pay the real estate agents a sum of money as commission, or, in lieu of commission, in case the said prospective purchaser should fail or refuse to fulfill the terms of an agreement yet to be made with the owner of the land sought to be sold? So far as the pleadings disclose, the land was for sale on the open market, and no superior rights were secured by appellant over any other would-be purchaser. It is true that the agents, the plaintiffs in the suit below, were put to some expense and trouble in showing the appellant the 'land and in seeking to complete the terms of the trade between him and the owner of the land, but this duty they were under obligation to perform by virtue of their contract of agency with the owner and not by virtue of relation of agent and principal between them and the appellant. In fact they could not represent both parties to the trade as agents, unless it was specifically agreed to by the prospective purchaser "and the owner that they should represent both parties, and there is nothing in the pleadings to sustain the conclusion that there was such an agreement between the buyer and the owner. In the absence of such agreement, it would be against public policy for them to represent both parties and to collect a commission or compensation from both parties for such service. Tinsley v. Penniman, 12 Tex. Civ. App. 591, 34 S. W. 365; Armstrong v. O’Brien, 83 Tex. 648,19 S. W. 268; Mechem on Agency, §§ 67, 598, 643, 644; Lynch v. Fallon, 11 R. I. 311, 23 Am. Rep. 458.

In Armstrong v. O’Brien, supra, Judge Garrett, in an able opinion, says:

“It is well settled that a person cannot act in the capacity of agent for both the buyer and seller, and receive commissions from both; and from principles of public policy such an agent would not be allowed to recover compensation from either party, unless he should so act with the full knowledge and consent of. both principals, and about this exception there is a conflict of authority. It makes no difference that the principal was not in fact injured, or that the agent intended no wrong, or that the other party acted in good faith.”

In Lynch v. Fallon, supra, the Supreme Court of Rhode Island, says:

“As agent for the vendor, his duty is to sell at the highest price; as agent for the vendee, his duty is to buy for the lowest; and even if the parties bargain for themsglves, they are entitled to the * * * skill, knowledge, and advice of the agent, and, at the same time, to communicate with him without the slightest fear of betrayal; so that it is hardly possible for him to be true to the one without being false to the other.”

In Everhart v. Searle, 71 Pa. 256, the defendant, knowing the plaintiff had the property for sale, agreed to pay him $500 for assisting him to negotiate the purchase of it, and it was held that the plaintiff could not recover on the contract. “The transaction,” says the court, “is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it.”

Everything that was done by the appel-lees in this case was in the furtherance of the obligation devolving upon them, as agents of the owner of the land. In James v. Fulcrod, 5 Tex. 519, 55 Am. Dec. 743, Chief Justice I-Iemphill, in discussing the question of consideration, says:

“The question, presented on the third special ground of demurrer, is whether the contract is supported by sufficient consideration. This point will be examined, but very briefly. A consideration may be defined to be something that is given in exchange, something that is mutual, or something which is the inducement to the contract; and it must be a thing which is lawful and competent in value, to sustain the assumption. A valuable consideration is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. A mutual promise amounts to a sufficient consideration, provided the mutual promises be concurrent in point of time.”

It cannot be reasonably contended that, had the appellant failed or refused to make said alleged promise to the appellees to pay the $500 mentioned, but had still signified a desire to investigate the property offered for sale, and in case the same should prove satisfactory and agreeable terms might be had that he would purchase the same, the agents would have refused to show appellant the property or to sell the same to him. Therefore we conclude that the alleged agreement between appellant and appellees was devoid of lawful consideration and was nudum pac-tum, and cannot be enforced, and that the judgment of the trial court awarding a recovery in behalf of appellees is without sufficient legal basis to sustain it. We, therefore, conclude that the error discussed is fundamental and apparent of record, and that although the assignment is not sufficiently full and definite to require our consideration thereof, yet it does call our attention to the error, and accordingly the judgment is re-' versed, and the cause remanded.
      other cases see same topic and KE'/-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    HOLMAN et al. v. HOUSTON OIL CO. et al.
    (No. 6643.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 1, 1915.
    Rehearing Denied March 4, 1915.)
    1. Deeds <S=»119 — Intention—Land Conveyed — Question eor Jury.
    Whether it was the intention by a deed, in terms, of “810 acres, * * * part of the H. league, * * ⅜ the same to be an undivided interest in said * * * league, and ⅜ * * being the interest owned by my father” therein, to convey only 810 acres, or the entire interest of 1,789 acres which the father had owned, held, undpr the evidence, a question for the jury.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 342, 343; Dec. Dig. <S=>119.]
    2. Deeds <S=mll8 — Intention—Land Conveyed — Evidence.
    On the question whether, by a deed from W. to L., in terms of 810 acres, in a certain league, “being the interest owned by my father,” H., therein, it was the intention to convey only 810 acres or all the interest H. had had in such league, if it was more, a deed from J., H.’s father, to B-., of 1,000 acres, was admissible, there being a strong probability that the description in such deed, when applied to the ground, would show -that the land attempted to be conveyed thereby was a part of such league, and at least a probability that such deed, though not on record when W.’s deed to L. was recorded, was known of by W.
    [Ed. Note. — Por other cases, see Deeds, Dec. Dig. <§=>118.]
    3. Appeal and Eeeoe <§=>1051 — Haemless Eeeoe — Admission op Evidence.
    Any error, in admission of evidence to show it was intended by a deed to convey only 810 acres, will be held harmless; there having been other evidence amply sufficient to justify the jury’s construction of the deed as conveying only that amount.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <§=> 1051.]
    4..Deeds <§=>114 — Construction—Land Conveyed.
    Land in S. county, and not merely in H. county, owned by the grantor as heir of H., was conveyed by his deed: “I, * * * one of the heirs of the estate of H., * * * convey * * * all of my right, title and interest in and to all of said estate, both real and personal, except as herein after excepted, my interest in said estate being a one-fourth interest. The portion of said estate excepted * * ⅜ is the land in M., W., and A. counties, which formerly belonged to said estate and was * * * conveyed to me by the other heirs * * ⅜ and the property hereby conveyed by me is my one-fourth interest in all lands in H. county belonging to said estate, also my one-fourth of ⅜ * * personal properties * * * to have and to hold any property, either real or personal, in order to make up my said share a full one-fourth of said estate.”
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; Dec. Dig. <§=> 114.]
    5. Deeds <§=>114 — Land Conveyed.
    A deed of “810 acres, * * * part of the H. league, * * * the same to be an undivided interest in said * * * league,” by one owning no interest in the west half of the league, but owning an undivided interest of that number of acres in the east half, is of all of that interest, and not of half thereof.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; Dec. Dig. <§=> 114.]
    6. Executoes and Administbatoes <§=>347— Sales — Oedees—Desceiption op Pbopeety.
    As regards validity of the administrator’s deed, the orders of sale and confirmation of sale by. the probate court describing the property as “8l0 acres, N. Hyden survey, S. A. county,” are not void as insufficiently describing the property ; the inventory showing the estate owned that number of acres of such survey, and not showing it owned any other lands therein.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1445; Dee. Dig. <§=>347.]
    7. Executoes and Administbatoes <§=>138 — Powee op Sale — Maeeiage op Executeix— Effect.
    The power of an executrix, testator’s widow, under a will to convey land, does not cease on her remarriage.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 560-566, 568-575; Dec. Dig. <§=>138.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Action by W. L. Holman against the Houston Oil Company, in which Harriett J. Harrison and others intervened. From a judgment for defendant, interveners appeal.
    Affirmed. •
    H. B. Short, of Center, Foster & Davis, of San Augustine, and G. P. Dougherty, of Houston, for appellants. H. O. Head, of Sherman, and Parker & Kennerly and John L. McMeans, all of Houston, for appellee.
   McMEANS, J.

This is a second appeal of this case. The first was disposed of by an opinion of this court reported in 152 S. W. 885.

The statement of the nature and result of the suit made by appellants in their brief is approved by the appellees and adopted by us. In substance it is as follows:

“This suit was originally instituted by W. L. Holman, as plaintiff, against the Houston Oil Company, on August 18, 1904, to recover the east half of the Nathaniel Hyden league, situated in. San Augustine county. On July 3, 1911, Harriett J. Harrison, J. E. Harrison, R. L. H. Williams, Mary Carnehan, and J. T. Carnehan filed. their original petition of intervention asserting title to the entire east half of the Hyden league, ‘less and except out of said east half of said league, 810 acres of land conveyed by the administrators of the estate of L. I. Holman to W. H. Ford by deed dated September 23, 1881.’ The defendants answered to both the petition of the plaintiff and the petition of the interveners, and the case was tried on July 6, 1911, resulting in a judgment for the interveners for all of the land sued for by them. The defendant Houston Oil Company perfected an appeal to the Court of Civil Appeals of the First District, and' on December 4, 1912, the Court of Civil Appeals rendered judgment reversing the judgment of the district court, and rendering judgment in favor of the defendant and against the plaintiff and interveners for the tract of 425 acres of land out of the northeast corner of the Hyden league conveyed by Col. W. W. Holman to J. G. Wdldert, by deed dated July 7, 1848, and the cause was remanded as to the other land sued for. After the cause was remanded to the district court, the interveners filed an amended petition of intervention, suggesting the death of R. L. H. Williams pending the suit and making his heirs parties, and also making the Maryland Trust Company a party defendant to the suit, and by the amended petition the interveners claim title to the entire east half of the Nathaniel Hyden league, less the tract of 425 acres out of the northeast corner of the league. The case was tried the second and last time by a jury on July 23, 1913, and special issues were submitted to the jury, and on the answers to the issues submitted to the jury a judgment was rendered that inter-veners take nothing by their suit, and that plaintiff also take nothing by his suit, and that the defendants go hence without day and recover their costs.”

From this judgment the interveners have appealed.

We are relieved of the duty of making any extensive statement of the facts because of the exhaustive statement made by Associate Justice Reese of this court in the former opinion, to which we refer. The evidence in part consisted of the following deed, executed by William W. Holman, Jr., familiarly known as “Little Billy Holman,” to Lucius I. Holman, which was introduced by the in-terveners :

“The State of Texas, County of San Augustine.
“Know all men by these presents, that I, William W. Holman, a resident citizen of the county of Denton, in the state aforesaid, for and in consideration of the sum of five hundred dollars cash to me in hand paid by Lucius I. Holman, a resident citizen of the county of San Augustine, in the said state of Texas, the receipt of which is hereby acknowledged and acquittance is fully granted, have this day bargained, sold, released, conveyed and delivered unto the said Lucius I. Holman, his heirs and assigns, forever, eight hundred and ten acres of land, part of the Nathaniel Hyden league, situated in the county of San Augustine and state aforesaid, and about twenty miles south of the town of San Augustine, the same to be an undivided interest in the said Nathaniel Hyden league, and the said eight hundred and ten acres of land being the interest owned by my father in the said league of land, as .will appear by reference to the record of real estate for the county of San Augustine and state aforesaid, together with all and singular the rights, members, hereditaments and appurtenances to the-same belonging or in any wise incident or appertaining. To have and to hold the same unto the said Lucius I. Holman, his heirs and assigns forever, and I, the said William W. Holman, do hereby bind myself, my heirs and assigns, to forever warrant and defend the title to the same unto the said Lucius X. Holman, his heirs and assigns, forever, against the claim or claims of any person whomsoever, claiming the same or any part thereof or interest therein.
“In testimony whereof witness my hand done in the town of San Augustine, Texas, on this the 8th day of January, A. D. 1874.
“[Signed] Wm. W. Holman. [Seal.] “W. H. Crouch. ■
“J. H. Sharp.”

One of the special issues submitted to the jury is as follows:

“Did W. W. Holman, Jr., intend to convey only an undivided interest of 810 acres, supposing that- to be the extent of his interest, but nevertheless intending to convey no more than the 810 acres undivided.”

The jury answered this question in the affirmative.

' By their first assignment of error appellant asserts that it was the duty of the court to construe said deed, and instruct the jury as to its legal effect, and complains that the court erred in submitting to the jury the question as to how much land was conveyed by the deed.

The second assignment complains of the refusal of the court to give to the jury its third special charge, to the effect that the deed in question conveyed to the grantee, L. I. Holman, all the land owned by W. W. Holman at the time of his death, which was the entire east half of the Nathaniel Hyden league, less a tract of 425 acres out of the northeast corner of the league. No complaint is made that the evidence was not sufficient to justify the jury in answering the special issue in the affirmative, and, even if such a contention had been made, we think the evidence amply justified, if it did not require, the jury to answer as it did.

One of the questions presented for determination by this court on the former appeal was “whether the deed from W. W. Holman, Jr., to Lucius I. Holman, conveyed only 810 acres of the east half of the Hyden league, or all of the land in such east half of the league, which was owned by W. W. Holman, Sr., and which was inherited by the grantor.” 152 S. W. 888. In passing on this question this court, on page 891 of 152 S. W., after referring to the recitals in the deed and the evidence introduced in aid of its construction, which is substantially the same as introduced on the last trial, says:

“Without paying much attention to the (often fine-spun) distinction between a general and a particular description of the land conveyed in a deed, our conclusion is that the court erred in holding as a matter of law, and so instructing the jury, that the deed from W. W. Holman, Jr., to Lucius I. Holman, conveyed the entire half league, or any more than an undivided interest of 810 acres. It is insisted on the part of the interveners that, at all events, the evidence being either documentary, or undisputed as to such facts as were not so shown, it was the duty of the court to construe the deed in the light of such surrounding circumstances. If we thought so, we would be inclined to construe the deed as the parties all seem to have construed it up to the time of filing this suit, 30 years after the date of its execution. But we think that the evidence presents a mixed question of law and fact which should have been referred to the jury for its determination under appropriate instructions; the issue being what, under all the evidence, inside and outside the deed, was I-Iolman’s intention as to what land was conveyed. Kingston v. Pickins, 46 Tex. 99; Brown v. Chambers, 63 Tex. 131; Arambula v. Sullivan, 80 Tex. 618, 16 S. W. 436.”

On the last trial the court adopted the views of this court above expressed and, as before stated, submitted this issue to the jury. In view of the fact that the evidence upon both trials was practically the same, and as we have no doubt of the correctness of our former ruling and adhere to it, the assignments do not, we think, point out error, and are therefore overruled.

It necessarily results from this conclusion that appellants’ third and fourth assignments, which present practically the same’ question, but in a different form, must be overruled.

The fifth assignment complains of the admission in evidence, over appellants’ objection, of a deed from John W. Holman to J. G. Barksdale. The proposition advanced is that the admission in evidence, over objection, of a deed void for want of description, that does not purport to convey the property involved in the suit and does not shed any light upon any of the issues in the case, is erroneous, and that its admission creates the presumption that injury resulted to the losing party therefrom, and is reversible error.

John W. Holman, the grantor in the deed in question, was the father and predecessor in title of W. W. Holman, Sr. The deed was admitted, not for the purpose of showing title, but in explanation of the intention of W. W. Holman, Jr., in the deed to Lucius I. Holman. The deed purports to convey 1,000 acres of land, by the following description:

“Lying and being in the county of San Augustine, and containing one thousand acres; the said land lies between the Ayish bayou and the river Angelina, in the forks of said streams, in Zavala Colony, about 10 or 12 miles from the town of Jackson; the said land lies on the west half of the league of land obtained from the government by the citizen Nathaniel Hyden from the legal commissioner as a colonist, which may be seen by reference to the records at Nacogdoches.”

In discussing this deed in our former opinion, we say:

“It does not clearly appear that this land was a part of the east half of the Hyden league; but there appears to be a strong probability that the particular description, when applied to the ground, would show that it was. It appears further that it was not on record when the deed to Lucius I. Holman was recorded. But there is at least a probability that W. W. Holman knew of the existence of this deed when he made the deed to Lucius I. Holman. This 1,-000 acres would be an undivided interest, and, if this deed be considered as conveying an undivided interest in the east half of the Hyden league then owned by John W. Holman, it would have left, after deducting also the 425 acres, 789 acres undivided as the interest of W. W. Holman, Jr., in the east half of the league, if it contained no more than its proper quantity of land.”

We think that, on the issue upon which the deed was introduced, it was admissible. But if we are mistaken in this, and if it was void for uncertainty in description, its admission would not, in our opinion, amount to such a denial of the rights of the appellant as reasonably to cause or probably cause the rendition of an improper judgment, because there was other testimony amply sufficient to justify the jury in construing the deed from W. W. Holman, Jr., to Lucius I. Holman, as conveying only 810 acres of the east half of the Hyden league. The assignment is overruled.

The sixth assignment complains that the court erred in admitting in evidence, over the objection of the interveners, the deed from K. L. H. Williams to Henry Lewis, which was introduced for the purpose of showing an outstanding title in Lewis in the land that the heirs of said Williams, the interveners, are seeking to recover in this suit; the contention being that the deed does not convey and does not purport to convey the interest of said Williams or any part of his interest in the land in controversy in this suit.

The deed, omitting the venue, date, and signature, is as follows:

“Know all men by these presents, that I, the undersigned, R. L. H. Williams, of said county and state, and one of the heirs of the estate of L. I. Holman, deceased, late of San Augustine, Texas, for and in consideration of the sum of two hundred dollars cash to me in hand paid by Henry Lewis, of the county of San Augustine, Texas, the receipt of which is hereby acknowledged, have this day bargained, sold and conveyed and do by these presents bargain, sell and convey unto the said Henry Lewis all of my right, title and interest in and to all of said estate, both real and personal, except as hereinafter excepted, my interest in said estate being a one-fourth interest. The portion of said estate excepted from this sale is in the land in Montague county and in Williamson county and in Archer county, which formerly belonged to said estate and was afterwards conveyed to me by the other heirs to said estate and the property hereby conveyed by me is my one-fourth interest in all lands in Harrison county, Texas, belonging to said estate, or my one-fourth of all proceeds of same if sold by the admrs. of said estate, also my one-fourth of all debts due to said estate from any source and of all moneys or personal properties in the hands of the administrator, and He said Lewis is authorized to demand and receive all of said property and to have and to hold any property, either real or personal, in order to make up my said share a full one-fourth of said estate, and to demand and recover of any other heirs my full prorate share of any advancements, rents or profits they may have received from said estate, it being understood that I am not to be held responsible for any of the debts due by said estate, and I hereby declare that I have made no conveyance or release to any other person of the property, either real or personal, as set forth in this instrument.”

.The record shows that Williams held under two sources of title, one as heir of Lucius I. Holman, and another by purchase from some of the other heirs. We think a fair construction of the deed requires the holding that the land in the Hyden league owned by the grantor, as an heir of Lucius I. Holman, was conveyed thereby to Lewis. It expressly conveys “all of my right, title and interest in and to said estate, both real and personal, except as hereinafter excepted, my interest in said estate being one-fourth.” The portion expressly excepted was land in Montague, Williamson, and Archer counties. The designation of his interest in land in Harrison county as passing by the deed does not exclude the idea that all his “right, title and interest in and to said estate, both real and personal,” other than that expressly excepted, passed thereby. This construction is aided by the habendum clause, which is “and to have and to hold any property, either real or personal, in order to make up my said share a full one-fourth of said estate.” But if we are in error in so construing the deed, the admission of it in evidence, if error, was harmless, if the deed from W. W. Holman to Lucius I. Holman conveyed only 810 acres of the eastern half of the Hyden league, as we have already held it did, and if the deed of the administrators of Lucius I. Holman’s estate conveyed the title of said estate in said 810 acres to the purchaser at the administrator’s sale, as we shall presently undertake to show that it did.

It is contended .in the seventh assignment of error that the judgment against the interveners for all of the land claimed by them is erroneous, because if it be true that only 810 acres was conveyed by the deed from W. W. Holman, Jr., to Lucius I. Holman, then the deed conveyed 810 acres in the entire Hyden league; and, this being true, the deed conveyed only half that amount, or 405 acres in the east half of the league. We overrule this contention. W. W. Holman owned no interest in the western half of the league, but did own an undivided interest of 810 acres in the eastern half. By conveying an undivided interest of S10 acres in the Hyden league to Lucius I. Holman, it was clearly his intention to convey such interest in that part of the league which he then owned, and not an undivided interest in the land he owned, as well as that to which he held no title. We had occasion to pass upon this question on the former appeal, and there decided, as we here decide, that the assignment is without merit.

By the eighth assignment it is complained that the court erred in admitting in evidence, over the objection of the inter--veners, a certified copy of an order of sale made and entered by the probate court of San Augustine county in the estate of Lucius I. Holman, ordering a sale of 810 acres of land in the N. Hyden survey, because, as appellant contends, the application of sale upon which the order of sale was based, and the said order of sale, were void for want of sufficient description of the property ordered to be sold, and the said order of sale is an attempt by the probate court to order the sale of an undefined interest of 810 acres out of a larger tract, which was also undefined, and which the probate court had no power to do.

A similar objection was made to the introduction in evidence of an order of the probate court confirming the sale made by the administrators pursuant to the order of sale, and also to the introduction of the deed of the administrators conveying the 810 acres to W. H. Ford; and the action of the court in overruling these objections is presented by the ninth and tenth assignments. The eleventh assignment complains generally of the action of the court in rendering judgment against the interveners for the 810 acres of land in question; it being contended that the sale made by the administrators was void. The proposition advanced under the eighth, ninth, and eleventh assignments is “that a judicial sale of an undefined part of a larger tract of land is invalid and void”; and that, “where the orders of the probate court are void for want of sufficient description of the property attempted to be sold, the administrator cannot cure such defect in the probate orders by giving an accurate description of the property in his deed, and the deed is void for want of power in the administrator to convey title to the property.

The correctness of the proposition last stated may be conceded without in any way affecting the question of whether the deed of the administrators conveying the land was void because of the insufficiency of description in the orders of the probate court ordering and confirming the sale, and to this question we now direct our attention.

Looking to the evidence, we find that the “810 acres, N. Hyden survey, San Augustine county,” was listed as a part of the lands belonging to Lucius I. Holman’s estate. The application for an order of sale, filed by the administrators, described it as “810 acres, N. Hyden survey, San Augustine county,” belonging to said estate. The report of sale, filed by the administrators, showed a sale by them of 810 acres, a part of the Nathaniel Hyden survey, San Augustine county, to W. I-I. Ford, and the land was so described in the order of the court confirming the sale. The deed of the administrators conveying the land to Ford described it as follows:

“Eight hundred and ten acres of land, part of the Nathaniel Hyden league, situated on the west bank of the Ayish bayou, about thirty miles south of the town of San Augustine, and the said 810 acres hereby conveyed being an undivided interest in and to a tract of eighteen hundred and sixty-four acres of said Hyden survey, said eighteen hundred and sixty-four acre tract, being all of the east half of said Hyden league, except a tract of 1,400 varas square in the northeast corner of said league which was conveyed by W. W. Holman to J. G. Woldert.”

That the description contained in the various orders of the probate court, directing and confirming a sale, was sufficient, we think there can be no doubt. A similar question was before our Supreme Court in Hermann v. Likens, 90 Tex. 448, 39 S. W. 282. The land sold in that ease was described as an undivided half interest 893 acres belonging to the estate of Likens in the Pleasant W. Rose league and labor in Harris county. There was a tract of 893 acres in the Rose survey, of which an undivided half was known to have belonged to Likens. As said by Judge Gaines, on page 453 of 90 Tex., on page 283 of 39 S. W.:

“It is evident from these proceedings that the land which was ordered to be sold, and which was sold and conveyed by the administrator, was not vaguely an undivided interest, in 893 acres of the P. W. Rose survey. It was the interest of the Estate of J. B. Likens, deceased, in a certain tract of 893 acres, a part of the Rose survey, of which he owned an undivided one-half.”
Continuing, he says:
“If the Rose survey contained only 893 acres, there would have been less difficulty about the description; but it embraces a league and labor of land. Is this description sufficient to pass the title by virtue of a probate sale? That it would be sufficient in a voluntary conveyance, we think there can be no doubt. Smith v. Westall, 76 Tex. 509 [13 S. W. 540]. Between the owner and his grantee, if from the facts given in the description in the deed the property intended to be conveyed can be identified with certainty, it is sufficient. What is a certain description in a voluntary conveyance is necessarily certain in a sheriff’s or administrator’s deed; and it would seem, therefore, that there should be no distinction in this respect between voluntary and involuntary conveyances; and there is high authority for so holding. In White v. Luning, 93 U. S. 514 [23 L. Ed. 938], the court say: ‘In regard, however, to the description of the property conveyed, the rules are the same, whether the deed be made by a party in his own right or by an officer of the court. The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistent with legal rules, the object they were intended to accomplish.’ ”

In the case before us the inventory of the property of Lucius I. Holman’s estate showed that the estate owned 810 acres of the Hyden survey. The inventory does not show that the estate owned any other land in the Hy-den. The evidence shows, and the jury in effect found (and their finding is not questioned on this appeal), that the estate of Holman owned an undivided interest of 810 acres of the Hyden, and that this interest was in the eastern half of the league. It was clearly - this interest that the probate court ordered to be sold, was sold, and the sale thereof confirmed. We think the effect of the order of sale was the same as if the administrators had been directed to sell all the interest of Lucius I. Holman’s estate in the Hyden survey, and the report of sale, order of confirmation, and deed had followed the description given in the order of sale. That such a description would have been sufficient seems to have been decided by our Supreme Court in Macmanus v. Orkney, 91 Tex. 27, 40 S. W. 715. As said by Judge Brown in that case:

“The court had jurisdiction of the subject-matter of the sale and of the parties interested in the estate. It was therefore lawful for the court to sell the land, and the intention to do so, when ascertained, must be enforced, if the language employed in the order is sufficient to effect the purpose. Wynne v. Parke, 89 Tex. 413 [34 S. W. 907]; Hancock v. Butler, 21 Tex. 805; Cartwright v. Trueblood, 90 Tex. 535 [39 S. W. 930]; Curdy v. Stafford, 88 Tex. 123 [30 S. W. 551]; Hermann v. Likens, 90 Tex. 448 [39 S. W. 282].”

Golden v. Walker, 153 S. W. 683, is a ease where an order of the probate court for the sale of a decedent’s land and the order confirming the sale described the land as 248 acres of land in the C. Smith grant in Bra-zoria county. The executor’s deed described it as the property of the decedent, in Bra-zoria county, “comprising 248 acres of land in the Cornelius Smith grant, being part of the Mary Scobe 775-acre survey, bequeathed to the (decedent) by the last will and testament of Maggie E. Minnick, a copy of which will is recorded in Deed Book No. 20 at page 235 in records of Brazoria county,” etc. The inventory showed no other land of the estate in the C. Smith survey. It was held by the El Paso Court of Civil Appeals that the deed was not void for uncertainty, nor was there any need of extrinsic evidence to identify the land conveyed as the same mentioned in the orders of the probate court.

In MeBee v. Johnson, 45 Tex. 634, the probate court made an order allowing the application of an administrator to sell “the real estate of the decedent consisting of four hundred and six acres of land,” fixing the time and place of sale, and directing that the sale be “in accordance with law.” The inventory showed that the only land owned by the estate was a tract of 406 acres. The administrator returned an account of sale of 400 acres. At the next term of the probate court the sale was approved, and the administrator ordered to “make good and sufficient deed to the purchaser.” It was held that the absence of particular description in the proceedings ordering and approving the sale was at most an irregularity, not rendering the proceedings void.

We are of the opinion that the description of the land given in the various orders of the court leading up to the execution of the deed would have been sufficient to pass the title in a voluntary conveyance, and this being true, following the rule laid down in Her-mann v. Likens, was sufficient to pass the title under the deed made by the administrators. The assignments are overruled.

The remaining questions are presented by the appellant W. L. Holman, plaintiff in the court below. The first, that the court erred in failing to hold, as a matter of law, that the deed from W. W. Holman, Jr., to Lucius I. Holman, conveyed 810 acres of land, undivided, out of the east half of the Hyden league, less 425 acres out of the northeast comer, is sufficiently disposed of herein and by the ruling in our former opinion. The next presents the question of whether the power of the widow of W. W. Holman, Jr., as independent executrix under the will, to convey land, ceased upon her subsequent marriage with Sam Brain. In our former opinion we held that her right to convey continued after her marriage to Brain, and we see no reason now for reversing our former holding, and no authorities have been cited to compel a different conclusion. We have determined both questions adversely to appellant’s contention.

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Affirmed.
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author: DUNKLIN, J.

text:
    GOLDSTEIN v. HEFLIN.
    (No. 8099.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 20, 1915.)
    Sales <⅞=^398 — Recovery of Price — Special Verdict — Inconsistencies.
    A special verdict in an action for the price of two car loads of goods, defended on the ground that the goods were not shipped in accordance with the contract, and hence not accepted ; that under the contract the buyer could inspect the goods on arrival before acceptance; that the goods belonged to him on arrival; that both parties breached the contract; that one car was not in condition because of delay in shipment due to the fault of the seller; that the buyer sold both cars, but did not deliver them — is contradictory and uncertain, and does not support a judgment which must follow the verdict.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 1137-1139; Dec. Dig. <S=39S.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.

      Action by M. W. Heflin against W. Gold-stein. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    C. B. Ambrose and W. R. Sawyers, both of Ft.' Worth, for appellant. H. D. Payne and A. 0. Heath, both of Ft. Worth, for-appellee.
   DUNKLIN, J.

W. Goldstein contracted to buy watermelons from M. W. Heflin during the summer of 1912 in car load lots. Gold-stein was a wholesale dealer in Ft. Worth, and the melons were to be shipped to him by Heflin from Falfurrias. Goldstein’s method of handling the shipments was to sell them in car load lots to his customers and divert the cars to such customers after they reached Ft. Worth without unloading them. Heflin instituted this suit against Goldstein to recover the contract prices of two car loads of melons which were shipped to' Gold-stein from Falfurrias, and from a judgment in favor of the plaintiff for the sum of $75 Goldstein has appealed.

Seventy dollars was the alleged contract price of one of the cars of melons, and $75 was the alleged contract price of the other ■car. The defendant pleaded that the melons were not shipped in compliance with Heflin’s contract; that by reason thereof he did not accept them when they reached Ft. Worth, and that he was not indebted to plaintiff in any sum. The suit was tried by a jury, and a verdict was returned upon special issues submitted by the trial court. In answer to one of the special issues the jury found that under the contract between the parties Gold-stein had the right to inspect the melons on their arrival at Ft. Worth before accepting them. The jury further found that the melons belonged to Goldstein when they arrived at Ft Worth; that both plaintiff and the defendant breached the contract; that one ear of the melons was not in good condition on account of being delayed in shipment, which delay was due to the fault of the plaintiff. In answer to another issue the jury found that the defendant sold both cars of melons, but did not deliver the same to his purchasers. Numerous other special issues were submitted upon which the jury made findings, some of which were nothing more than questions of evidence bearing upon the material issues in the case, and the findings upon which were contradictory and uncertain. The findings of the jury, taken as a whole, and as indicated, already were too confusing, contradictory, and uncertain to support any judgment thereon, and it was fundamental error for the court to enter any judgment in the cause instead of setting the case down for another trial. It is well settled that a judgment must follow the verdict. Ablowich v. Greenville Natl. Bank, 95 Tex. 429, 67 S. W. 79, 881. If the verdict is so contradictory and uncertain that no reasonable conclusion can be reached relative to the findings the jury intended to make upon the controlling issues in the case, it amounts to no verdict at all and furnishes no basis for any judgment.

For these reasons the judgment is reversed, and the cause remanded.
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author: CONNER, C. J.

text:
    RHEA v. COOK.
    (No. 8081.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 23, 1915.
    Rehearing Denied March 6, 1915.)
    1. Evidence ©=563 — Handwbiting Expeet —Qualification .
    Where an alleged handwriting expert testified that he was not an expert, but also testified that he had worked for 1 ½ years as a bank clerkj and had been engaged for a number of years in teaching in writing schools and commercial and business schools, where he had been required to study handwriting in signatures, such witness’ testimony was admissible on the point of the genuineness of a signature; the determination of his qualifications being solely for the court, and his declaration on the point being without effect.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2347, 2383, 2384; Dec. Dig. ©= 563.]
    2. Witnesses ©=3374 — Inteeest — Impeaching Evidence.
    In an action on a note, evidence that defendant had frequently secured liquors from witness’ saloon without paying therefor was admissible, as showing that defendant owned the saloon, that the witness was merely her employs, and that his testimony was therefore interested.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. ©=374.]
    3. Witnesses ©=374^-Inteeest — Impeaching Evidence.
    In an action on a note, where the officers of a bank had testified for defendant to the effect' that the signature of the note was a forgery, evidence that defendant was indebted to the bank in a large sum, and that defendant’s testator, who had executed the note, had left an insolvent estate, was admissible, as showing the interest of the bank officers for defendant in the controversy.
    [Ed. Note. — For other case, see Witnesses, Cent. Diig. §§ 1201, 1202; Dec. Dig. ©=374.]
    4. Appeal and Ekboe ©=1046 — Haemless Eebor — Remarks of Judge.
    In an action on a note, where certain returned checks of the maker were being exhibited for comparison, where the judge said, on objection by defendant’s counsel: “In testing the witness, I can understand a return check paid by the bank and ratified and approved by him, and now then he claims to know Maxey’s [the maker’s] signature, and I think he [plaintiff] ought to have a right to determine whether he does know it or not. He wouldn’t have to determine that if he cashed the check, and returned it to Maxey, and Maxey accepted it. I wouldn’t admit in evidence at all before the jury a signature that is not accepted as Maxey’s genuine signature for comparison; but he is testing the witness’ knowledge of the signature, and I presume they will follow up that, and, acting on that phase, I am permitting them to do that” — although it is advisable for the judge to confine himself to a simple negative or affirmative in his rulings in the presence of the jury, such remarks were not error, where both signatures and letters in evidence were shown conclusively to be those of the maker of the note.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. <§==>1046.]
    6. Depositions <®=>90 — Admissibility — Deponent Within Counts'.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3649, providing that the deposition of a ■witness may be taken in all civil suits, whether or not the witness resides in the county where suit is brought, and article 3677, providing that depositions may be read in evidence subject to all legal exceptions which might be made if the witness were personally giving evidence, in a suit on a note, depositions of a witness residing in the county of trial were admissible in evidence.
    [Ed. Note.—Eor other cases, see Depositions, Cent. Dig. §§ 248-255, 258-260; Dec. Dig. <§=>90.]
    6. Bills and Notes <§=>501—Testimony as to Drunkenness oe Plaintiee—Admissi-bility in Evidence.
    In an action on a note, evidence was properly excluded that plaintiff drank considerably, and sometimes got drunk, while working for the maker of the note.
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1698-1707; Dec. Dig. <§=> 501.]
    7. Bills and Notes <§=>504—Note to Secure Loan—Evidence Showing Possibility oe Loan.
    Where plaintiff had worked for the maker of the note in suit, evidence that his employer had been in the habit of giving him all his old clothes was admissible in rebuttal of evidence tending to show that plaintiff’s family were so numerous that all his salary must' have been consumed in supporting them, so that he could not have made the loan which he alleged the note in suit was given to secure.
    [Ed. Note.—Eor other cases, see Bills and Notes, Cent. Dig. §§ 1719-1727; Dee. Dig. <§=> 504.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Action by B. L. Cook against Mrs. Annie W. Bkea. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Gross & Gross and W. H. Penix, all of Mineral Wells, for appellant. Moyers & Creighton and Ritchie & Cousins, all of Mineral Wells, for appellee.
   CONNER, C. J.

Appellee instituted this suit against Annie W. Rhea, appellant, as independent executrix of the estate of J. H. Maxey, deceased, to recover upon a promissory note purported to have been given by J. H. Maxey on the 1st day of December, 1908. The note was for the sum of $2,200 and due on the 1st day of February, 1912. Appellant, who is the surviving wife of J. H. Maxey, defended upon the ground that the note was a forgery; but a trial before a jury resulted 'in a judgment against her, and she has appealed.

On the trial M. E. Adams was permitted to testify that the note in question, and the signature thereto, were written in an easy, natural hand, and therefrom he gave it as his opinion that the signature was a genuine one. He was further permitted to testify that in his opinion the signature to the note was the same as the signature to certain checks exhibited to the witness for the purpose of a comparison. To the witness so testifying it was objected that it had not been shown that he was qualified as an expert. While it is true the witness testified that he was not an expert, it further appeared, on questions relating to his qualification, that he had served as a clerk in a bank for 1½ years, and thereafter for a number of years had been engaged in teaching in writing schools and commercial business schools, during all of which time it had been part of his business to observe and study handwriting and signatures and the manner in which they were made, and we think the court was correct in his conclusion that the court, and not the witness, was the judge of whether or not he manifested such knowledge of the subject as to authorize the introduction of his testimony. The objections, in the light of the evidence, go rather to the weight of his testimony than to its admissibility, and we see no reason to disturb the discretion exercised by the court in the ruling. The first, second, and third assignments are accordingly overruled.

Objection was also urged to the testimony of one Garrison. Garrison, among other things, testified that he was the present owner of the saloon formerly owned and operated by the deceased, Maxey, and further testified to the effect that, at a date subsequent to the date of the note, Cook, who had been one of Maxey’s barkeepers, stated to Maxey in the witness’ presence that he (Max-ey) was not indebted to him in any sum. Thereafter, upon cross-examination, he was required to testify, over appellant’s objection that the testimony was “irrelevant, immaterial, and incompetent,” that she and Mr. Rhea, with whom she intermarried after Maxey’s death, frequently got liquors out of the saloon and took them home; that they were neither paid for nor charged. As appears from the trial court’s explanation to the bill of exception, the testimony was admitted merely on the issue of the witness’ interest; the plaintiff in the suit endeavoring to show that as a matter of fact the witness Garrison was not the owner of the saloon, but merely an employs of defendant. We think the testimony was relevant to the issue stated by the court, and the fourth assignment, raising the question, must be overruled.

The fifth assignment will be overruled, for the same reason as the fourth; the objection there raised being to the court’s action in requiring appellant to testify on cross-examination that she was indebted to the Mineral Wells Bank in an amount something over $4,000. As appears from the court’s explanation of the bill of exception, it was admitted in open court by counsel for appel- The fifth assignment will be overruled, for the same reason as the fourth; the objection there raised being to the court’s action in requiring appellant to testify on cross-examination that she was indebted to the Mineral Wells Bank in an amount something over $4,000. As appears from the court’s explanation of the bill of exception, it was admitted in open court by counsel for appel-

- In the sixth assignment it appears that objection was made to certain remarks of the court. It appears that O. M. Smith, an officer or employé of the bank referred to in the fifth assignment, testified that he knew J. H. Maxey’s signature, and identified numerous checks of Maxey that had passed through the bank, and which were presented in court as instruments of comparison. The counsel for appellee, on cross-examination, was permitted to exhibit one or more of the checks with the signature alone apparent, or with perhaps a letter of the signature alone apparent, and the court certifies that to- this action counsel for appellant in a heated and earnest manner was making objection, and that in explanation of his ruling the remarks in question were made. The remarks of the court were:

“In testing the witness, I can understand a return check paid by the bank, and ratified and approved by him, and now, then, he claims to know Mhxey’s signature, and I think he [plaintiff] ought to have a right t'o determine whether he does know it or not. He wouldn’t have to determine that if he cashed the check, and returned it to Maxey, and Maxey accepted it. I wouldn’t admit in evidence at all before the jury a signature that is not accepted as Max-ey’s genuine signature for comparison; but he is testing the witness’ knowledge of the signature, and I presume they will follow up that, and, acting on that phase, I am permitting them to do that.”

While it is perhaps in most instances advisable for the trial court to follow the scriptural injunction of “yea, yea,” and “nay, nay,” in his communications in the presence of the jury, yet we fail to find in the remarks now under consideration any such comment on the weight of the evidence as urged, or any such prejudicial result as we think under the circumstances should require a reversal of the case. The court further certifies that after the cross-examination permitted, and after the witness had pronounced one or more of the signatures and one or more of the letters of the signature submitted to him not to be Maxey’s, both signature and letters were shown conclusively to be his, and that after the removal of the obstruction of the other writing accompanying the signature the witness so admitted. In this connection, and for like reasons, we overrule the complaint made of the court’s remarks as shown in the tenth and eleventh assignments of error.

We think it was within the discretion of the court to admit the deposition of H. D. Arnold, notwithstanding the fact of his residence in the county of the trial. See Vernon’s Sayles’ Tex. Civ. Stat. arts. S649 and 3677, and notes. We also think the court properly excluded as immaterial the testimony of E’d Haman, to the effect that appellee “drank considerably, and sometimes got drunk, while working for John Maxey.” The same witness’ testimony, to the effect that “Maxey gave Mr. Cook his old clothes all the time,” seems unobjectionable, in view of the court’s explanation, to the effect that it was admitted in rebuttal of evidence in behalf of appellant tending to show that from the numbers constituting Cook’s family, from the amount of his salary, etc., that all of his earnings were consumed in living expenses.

The twelfth, thirteenth, and fourteenth assignments are so manifestly without merit that we will not discuss them.

It is accordingly ordered that all assignments be overruled, and the judgment affirmed.
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