author: HIGGINS, J.

text:
    WICHITA SOUTHERN LIFE INS. CO. v. ROBERTS.
    (No. 554.)

    (Court of Civil Appeals of Texas. El Paso.
    May 4, 1916.
    Rehearing Denied May 25, 1916.)
    1. INSURANCE <&wkey;665(3) — Actions—Evidence —Waiver.
    In an action on life insurance policy, which was extended by notes for the premium until a short time before the death of insured, evidence held not to show an agreement to extend the payment of premium note and the policy insurance during the month in which insured died.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1711-1716; Dec. Dig. &wkey;>GG5(3).]
    2. Insurance <&wkey;384r-WAivER — Acceptance oe Note eor Premium.
    A letter of insurer to insured that a note would be accepted “as settlement of premium” did not alter the legal effect of provisions in note and policy that on nonpayment of note at maturity, the policy insurance would cease.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1019; Dec. Dig. &wkey;384.]
    3. Insurance &wkey;>384 — Written Waiver.
    Formal notice that if a policy were in force on a day (its annual premium date), a certain premium amount would be payable, having written on the back that it was not a waiver of any default, sent out by a subordinate employe having no authority to extend time of payment of notes for premiums, did not waive right to forfeit the policy on nonpayment of note given for premium.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1019; Dee. Dig. <i&wkey;384.]
    4. Insurance <&wkey;3G5(2) — Rights oe Beneei-ciary — Incorporating New Conditions.
    After a life policy has lapsed by its terms for nonpayment of premium, the act of insured in executing a note, containing a new forfeiture condition in order to obtain a reinstatement of the policy, is binding on the beneficiary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 933; Dec. Dig. &wkey;365(2)J
    Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.
    Action by Mary’ B. Roberts against the Wichita Southern Life Insurance Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and judgment rendered for defendant.
    Carrigan, Montgomery & Britain, of Wichita Falls, H. G. McConnell, of Haskell, and J. F. Woodson, of El Paso, for appellant. W. H. Murchison, of Haskell, and Theo. Mack, of Ft. Worth, for appellee.

       Application for writ o£ error pending in Supreme Court.

   HIGGINS, J.

On October 14, 1912, appellant issued its policy of insurance No. 1147 upon the life of Percy P. Roberts in the sum of $2,500, payable to Mary E. Roberts, wife of the insured. The policy contains two provisions, which read:

“This policy is issued in consideration of the payment at or before its delivery of a premium of seventy-one dollars and 33 cents, for one year’s term insurance beginning with the date below mentioned, and in consideration of the payment on or before the 14th day of each October, of a renewal premium of seventy-one dollars and 33 cents during the continuance in force of the policy. * * * Failure to pay any premium or any note given for any premium, in full, within the time allowed for such payment by the policy or the note, shall cause all insurance hereunder to cease and determine ipso facto and immediately, save as herein otherwise provided.”

The insured defaulted in the payment of the premium which was due October 14, 1913. On December 12, 1913, the appellant wrote him a letter, which reads:

“Your premium in the sum of $71.33 was due October 14th, and the last day of grace in which to make payment of same expired November 14th.
“If you are not in position to make settlement in cash, we will accept your note for the greater part of this premium, together with a small cash payment.
“For that purpose, I inclose you herewith note in the sum of $60,00, dated October 14th, due April 14th, 1914, which if you will sign and return with your check for $11.33, will be accepted as settlement of your premium.
“Also sign the reinstatement blank inclosed, as the company reguires each policy holder to give evidence of good health after the expiration of the grace period allowed in which to take-care of the premium. Fill out this blank carefully, have your signature witnessed and return with the note and check.
“Trusting you will avail yourself of this opportunity to put your policy in force, I am, “Yours truly, E. P. Greenwood,
“Vice Pres, and Gen’l Mngr.”

The insured complied with the terms of this letter, and the policy was reinstated. The note which he signed and returned to appellant contains the following provisions, viz.:

“This note is given on account of the premium due October 14th, 1913, on said company’s policy No. 1447, insuring my life; and if it shall not be paid in full at its maturity, all insurance under said policy shall cease and determine ipso facto and immediately, save as therein otherwise provided. In such event this note shall cease to be binding except for the amount of the premium unpaid and earned at the date of default, together with interest thereon; but for that amount and interest it shall remain a valid obligation.”

The insured was unable to pay this note at its maturity, whereupon appellant accepted a renewal note signed by the insured in sum of $60, dated April 14, 1914, due September 1, 1914. In all other particulars this note was the same as the note dated October 14th. Default was made in the payment of this note. The insured died September 10, 1914. This suit is by Mrs. Roberts to recover upon the policy. The company defended upon the ground that the policy of insurance had lapsed by reason of the failure to pay the premium due October 14, 1913, and the notes subsequently accepted in settlement thereof, basing its position upon the terms quoted in the policy and notes. The case was tried before a jury, to whom this issue was submitted:

“Did Percy P. Roberts receive a letter from the Wichita Southern Dife Insurance Company, signed by some officer of said Company authorized to grant extensions on premium notes, to the effect that he would be granted an extension until October 1, 1914, in which to pay the premium note due said Wichita Life Insurance Company September 1, 1914?”

—which issue was answered in the affirmative. Judgment in appellee’s favor was thereupon rendered.

Error is assigned to the refusal of a peremptory' instruction to find for defendant, and the assignment is sustained.

As is indicated by the issue submitted, it was contended by the plaintiff that appellant had agreed with the insured to extend the payment of the note last given by him to October 1, 1914, which agreement was evidenced by a letter from the company received prior to his death. All of the evidence bearing upon this issue is here quoted. Mr. W. H. Murchison, plaintiff’s attorney, testified:

“In the latter part of August, 1914, Mr. P. P. Roberts came to my office with this letter (letter of August 22, 1914, from the company) for the purpose of borrowing the amount duo on his note. I was not in position to loan it to him. At any rate, at his request-in my office, upon my letter head, I wrote a letter to the Wichita Southern Life Insurance Company, stating therein, in substance, that he was not at that time, and would not be, able to pay the note at its maturity; that he was on a deal for the exchange of Mr. Hallmark’s land in Haskell county for a livery stable property, at Corsicana, I believe, and that he had every assurance that the deal would be closed, and that if they would agree to extend the note to October 1st, he would be in a position to pay the note. I wrote the letter on my typewriter, and ho signed it in my office. I furnished him an envelope, and he left there with it. Of course, I could tell you what he told me afterwards, but I understand they object to it.”

Tbe letter of August 22, 1914, mentioned by Mr. Murchison, was from appellant’s secretary, A. B. Huff, was addressed to the insured, and reads:

“Tour note for §60.00 and interest amounting to §1.25, which note was given in settlement of renewal premium on your policy No. 1447, will be due September 1, 1914, without grace. Tour policy will lapse on that date if this note is not taken care of, and we trust that you will give this matter your prompt attention.”

Mrs. Roberts, the beneficiary, testified:

“My name is Mary E. Roberts. I am the plaintiff in this case. P. P. Roberts was my husband. He was residing here in Haskell county at the time of his death, where I am residing now. My husband was 44 years old at the time-of his death. Tes; I did read a letter addressed to my husband from the Wichita Southern Life Insurance Company in regard to extending the time of payment of a note until October 1st. That was about the last of August or the first of September, 1914. Well, I remember that it (the letter) said they would extend the payment until the 1st of October. Tes; I saw the letter myself. I read it. My husband gave the letter to me to read. I didn’t notice who signed it, particularly; I just remember the heading of the letter. It was from the Wichita Southern life Insurance Company. I don’t know what became of that letter; Í looked for it, but I have not been able to find it. He put it back in his pocket, and of course, I supposed he brought it back and put it in his desk at the office. Seems to me like Mr. Roberts and I talked about it, discussed it, but I do not remember just what.”

Cross-examination:

“I did not notice whose name was signed to the letter, particularly. I just noticed the head of the letter. Tes; I just noticed the letter head of the Wichita Southern. That’s all I know. I don’t know in particular who signed it. Tes; I think it was signed, but I do not remember about it, just how. I do not remember just the date it was, either the last of August or the first of September, somewhere along there. I don’t know whether anybody ever did see that letter or not. The last I knew of it, my husband put it back in his pocket. Tes; my husband had an office here in town. Tes; he kept all of his papers in his office, in his desk. My son had the key to the desk after his death. I believe my son had the key. Tes, sir; he most usually kept it locked. I do not know that anybody else ever saw that letter. No; I can’t quote the words of the letter. No; I cannot quote the substance of what was set out in it; I just remember that we were talking about it. and that they would extend to the 1st of October, the payment. Tes, sir; it seems to me that there was something in the letter said about if he would give a note, they would extent it; if he would give a new note and make a new application, they would extend it. Well, I know that they said they would extend it to the 1st of October. I don’t remember about the— No; I do not remember all of the letter at all. All I remember about this letter is that I got the impression, and it is my recollection it said something about they would extend it to the 1st of October. No; I cannot give the date of the letter any nearer than the last of August or the 1st of September.”

It is quite apparent that Mrs. Robert’s testimony is insufficient to show with any degree of certainty that the company made any definite agreement to extend the payment of the note to October 1, 1914. Viewing it in its most favorable aspect, it shows no more than a conditional offer to extend if a new note was given, and no pretense is made that there was a compliance with such condition. The only officers of the company authorized to grant extensions were Greenwood, its vice president and general manager, . and Huff, the secretary. Both of these parties testified that the letter which Murchison wrote for Roberts was never received by the company and that they had never written any such letter to Roberts as was testified to by Mrs. Roberts. The appellee, however, asserts that Greenwood and Huff were interested witnesses, and the jury therefore authorized to disbelieve their testimony relative to tlie letters. This is quite true. But the jury’s disbelief of the testimony of Greenwood and Huff does not supply the want of some affirmative evidence of such an agreement. The burden rested upon appellee of proving such an agreement, and unless some affirmative evidence thereof was offered, no issue in respect thereto arose.

In passing upon this phase of the case, it may be further remarked that it is to be gravely doubted whether Mrs. Roberts’ testimony is sufficient to show that the letter concerning which she testified was signed by any officer of the company authorized to agree to an extension. But it is not necessary for us to base our decision upon the insufficiency of her testimony in this respect, and for the purpose of this decision it may be assumed that the letter was signed by a duly authorized representative of the company.

It is also insisted by appellee that the letter of December 12, 1913, stated that the chock for $11.33 and the note dated October 14, 1913, due April 14, 1914, would be accepted “as settlement of your premium,” and that therefore the check and note were accepted by the company in full settlement of the premium, which fell due October 14, 1913. It is true that the same was so accepted, but such acceptance did not alter the legal effect of the provisions in the policy and note that, if the note was not paid at maturity, all insurance under the policy would immediately cease and determine ipso facto.

It is further insisted that the evidence is sufficient to show a waiver by the company of the forfeiture of the policy by reason of the nonpayment of premium which became due October 14, 1913. Undoubtedly the original right of forfeiture was waived by the acceptance of the note dated October 14,1913, and the reinstatement of the policy. And the right of forfeiture accruing upon April 14, 1914, when default was made in the payment of said note, was waived by the acceptance of the note, which matured September 1,1914. So upon the issue of waiver we must inquire whether there was a waiver of the right of forfeiture which accrued upon September 1, 1914, when the last accepted note matured. Upon this issue reliance is placed upon a notice from the appellant mailed and addressed to the insured, which reads:

“If policy No. 1447 shall bo then in force, $71.33 for annual premium will be due October Í4, 1914, and may be paid in accordance with the terms of said policy and notice indorsed on back hereof to the company’s duly authorized Collector. A. B. Huff, Secretary.”

Upon the back of this note is the following ¡

“The sending of this notice is not a waiver of any default or ground of forfeiture now existing, or a precedent for the future. It is merely a business courtesy extended for this one time.
“The policy stipulates that payment of the premium may be made at any time within one calendar month after the date indicated by this notice subject to an interest charge at the rate of five per cent, and that if not made within the time so allowed, the insurance will cease and determine ipso facto and immediately save as may be otherwise provided by this policy. No agent has power to waive these conditions, and they will be strictly enforced.”

In view of the language of this notice, it would seem clear that it alone is insufficient upon which to predicate a waiver. But if there be any doubt in this respect, it is resolved when the circumstances attending the mailing of the notice are considered. Walter Wilson, an employs of the company, testified:

“My name is Walter Wilson; live at Wichita Falls, Tex.; am at present in the employ of the Wichita Southern Bife Insurance Company, and have been for 3 years and a little over. During 1914, my duties with the insurance company were first as stenographer and as renewal man; that is, I make out the notices and write the letters. The custom of the company is to send out to every person who appears to have a policy in the company a notice of the maturity date of their premium — about 30 days before such date, or maturity, falls due. We send out those notices twice a month. I make out the notices that are sent out, and did so in 1914. I make out those notices from our card index. These notices are sent out each month on the 10th and the 25th. The notices sent out on the 10th of the month cover all maturities between the 1st and the 15th, inclusive, of the following month. Those sent out on the 25th of the month cover all those falling due from the 16th to the 31st of the following month, inclusive. This notice that has been introduced in evidence here, that is the form we use. I made out this particular notice, but I did not send it out. These notices that are to be mailed out on the 10th of September, like this one was, were made out shortly after the 1st of September, on the 1st or shortly thereafter. I made this notice in question out some time about the 1st of September, 1914. After I made out this notice, and all others to be sent out on the 10th of September, I left it at the office there to be mailed out on the 10th of the month. I just left these notices there, and whoever was taking the mail in my absence took those notices down and mailed them on the 10th of September. I was not there at the time this notice was mailed, as I had gone off on a vacation. I left for my vacation on the 4th day of September, 1914. So this notice was made out before the 4th of September. No, sir; I had no other, or exercised no other authority with the company, and had no authority to extend the time of the payment of notes that were due the company. * * * I made this notice out some time between the 1st of September, 1914, and noon of the 4th, for I left on my vacation on the noon Denver on the 4th. It was mailed after I left. Yes, sir; that is Mr. Huff’s printed signature that appears on this notice. He is the secretary of the Wichita Southern Bife Insurance Company. Yes; I made this notice out from the card index. Mr. Huff and the bookkeeper are supposed to keep the card index. Mr. J. A. Griffin is the bookkeeper. I have nothing to do with keeping the books of the company. Yes, sir; the company keeps a policy register, but I do not have anything to do with it. The particular card that has on it the record of Percy Roberts’ policy is in our files at Wichita; it was not brought down here with us, that I know of. Yes, sir; I consulted that card index between the 1st and the 4th of September, 1914, and from that I made out this notice. Yes; I was authorized to do that; that is my duty. I was authorized by Mr. Huff to do that. I make out the notices from the cards each month.”

Surely the waiver of a valuable right cannot be predicated upon a premium notice sent out under such circumstances. The duties of Wilson were in no wise executive, and waivers by a corporation of substantial contract rights can be made only by its authorized representatives.

There is nothing in Insurance Company v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625, to support the view that any waiver has been shown here. The distinguishing characteristics of that case are so apparent that it would be a matter of supererogation to undertake to point them out.

We regard as without merit the further contention that the interest of Mrs. Roberts under the policy was such that the insured could not affect the same by the giving of notes to cover the premium containing the forfeiture conditions which were contained therein. As to this, it is sufficient to say that the policy lapsed when default was made in the payment of the premium due October 14, 1913, and the company might lawfully impose, as a condition of its reinstatement, the giving of a note containing the clause of forfeiture which appears in the note.

We have carefully considered the numerous propositions urged by appellees’ able counsel in support of the judgment rendered in her favor, and regard them as being all without merit. The facts have been fully developed, and it is our duty to finally dispose of the case. The peremptory instruction in favor of appellant should have been given.

Accordingly, the cause will be reversed, and judgment here rendered for appellant; and it is so ordered.
      igsoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. SCHWETHELM.
    (No. 5664.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 17, 1916.)
    1. Railroads &wkey;>446(10) — Injuries to Animal Near Track — Question eor Jury as to Precautions Taken.
    Whether defendant railway company used all available means to avoid a collision between its train and plaintiff’s horse and wagon which were awaiting- freight at a station, after discovering' the damage of such a collision, held, on the facts, to be a question for the jury.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1637; Dec. Dig. <&wkey;446(10)J
    2. Railroads &wkey;>419(4) — Injuries to Animal Near Track — Duty to Stop.
    Where the engineer saw that a horse attached to a wagon and awaiting freight at a station was frightened by the approaching train, he should have stopped the train to avoid injury, and this duty would exist even if plaintiff’s horse and wagon had been trespassers, instead of invitees, on the station grounds.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1496; Dec. Dig. <&wkey;419(4).]
    3. Appeal and Brrob &wkey;3931(4) — Finding by Court Presumed.
    It will be presumed the court itself determined there was no general market for such articles as plaintiff’s horse and wagon at place of collision with defendant’s train, where there was evidence supporting such a conclusion and the question of market value was not submitted to the jury.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3764; Dec. Dig. &wkey;>931(4).]
    4. Appeal and Error <&wkey;216(l) — Objection to, and Request eor, Instruction Necessary to Preserve Grounds for Appeal.
    Where defendant neither objected to the lack of, nor requested, an instruction submitting the question of market value to the jury, as required by statute, objection to the court’s action will be considered waived.
    [Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. 4&wkey;216(l); Trial, Cent. Dig. § 627.]
    5. Appeal and Error &wkey;>1062(2) — Harmless Error — Failure to Submit Question oe Market Value to Jury.
    Where the market value of plaintiff’s property, according to the evidence, was at least equal to its intrinsic value as found by the jury, the defendant was not prejudiced by the court’s failure to submit the question of market value to the jury.
    [Ed. Note.- — Eor other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. &wkey;1062(2).]
    6. Evidence &wkey;113(l) — Facts Tending to Prove Intrinsic Value of Property Admissible.
    Where the real value of plaintiff’s property was proper to be determined, there was no error in submitting testimony of facts and conditions tending to prove the intrinsic value.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 259; Dec. Dig. &wkey;113(l).]
    Appeal from District Court, Kendall County; R. H. Bumey, Judge.
    Action by Emil Schwethelm against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Taliaferro, Cunningham & Birkhead, and Williams & Hall, all of San Antonio, for appellant. W. C. Linden and Joe H. H. Graham, both of San Antonio, for appellee.
   SWEARINGEN, J.

Appellee sued for $530 damages, caused by appellant’s train destroying a set of harness, a spring wagon, and killing a blooded mare at appellant’s depot in Boerne.

The mare, harnessed to the wagon, was in charge of appellee’s servant alongside and near the track waiting to receive freight, before dusk, about 5:30 p. m., at the usual place furnished by appellant for receiving freight shipped in on appellant’s trains. Soon afterwards appellant’s freight train approached the depot. When distant 400 or 500 feet, there was whistled the usual road crossing signal. The mare was restless, moving backwards and forwards, and was rendered more restless by the whistling and the approach of the train. Appellant’s Boerne station master realized the apparent peril and undertook to control the mare, failing in which, or as a further precaution, he signaled the engineer of appellant’s on-coming train, warning him of the peril. The engineer saw the mare acting strangely, understood the warning of peril when 50 to 75 feet away, and reduced the speed of tie engine in an effort to heed the warning. The engineer could have stopped the engine after being warned before reaching the place of injury. Appellee's servant could not drive the mare away, which he tried to do by striking her with the lines. The engineer did not stop the engine, but passed by the mare. The mare backed the wagon against the moving train and was drawn under the wheels of the train, resulting in the destruction of the wagon and harness and the death of the mare.

Appellee alleged that the proximate cause of the injury was appellant’s servants’ neglect to use the means at hand to avoid the injury after discovering the peril. The jury answered special issues in favor of appellee, found the intrinsic value of the mare, wagon, and harness to aggregate $360.

Appellant’s first and second assignments urge that the refusal of a requested peremptory instruction for appellant was error :

Because it appeared “from the testimony of the plaintiff’s witnesses that the plaintifñs agent, Otto Eritz, in charge of the mare, wagon, and harness shown to have been destroyed by defendant’s train, had voluntarily placed himself in the position he was in at the time of the accident, with full knowledge of the then existing conditions and that the train that caused the destruction of the plaintiff’s property was then approaching along the track near which he had stopped said vehicle. Because said animal and wagon was at the usual place teams are driven to receive freight, was standing clear of the track, in charge of a driver alleged to have been competent, and there being nothing in the testimony remotely tending to show that the said driver, the engineer, or any other person had cause to believe that said mare would back the wagon into the train.”

The court very properly refused the peremptory instruction for appellant. There was evidence that, after the peril became apparent to the servants of appellant and ap-pellee, appellee’s servant would avoid the injury, but could not, while the appellant’s servants could, but would not. Whether or not appellant’s' servants used the means at hand to avoid the injury after discovering the peril was an issue of fact properly submitted to the jury.

Even had the mare been trespassing, appellant owed the duty to avoid the injury if the peril to the mare was discovered in such time that by the use of the means at their command the servants of appellant might have avoided the injury. Texas & P. Ry. Co. v. Corn, 102 Tex. 194, 114 S. W. 103. The opinion in this last-cited case was rendered by Chief Justice Gaines, who also rendered the opinion in the Hargis Case, cited by appellant. Hargis v. Railway, 75 Tex. 19, 12 S. W. 953. The distinction is: In the Har-gis Case there was no evidence that the servants of the railway company discovered the peril while in the Corn Case there was evidence that the servants did discover the peril. In the case at bar there was evidence that the servants discovered the peril in time to have avoided the injury had they stopped the train, which they could have done. And, further, in the ease at bar appellee was not a trespasser, but had the right, was expected, and was even invited to have his mare at the place when and where she was. Certainly no less degree of care was required of appellant to avoid injuring one invited than a trespasser. Railway v. Tolbert, 90 S. W. 508; Railway v. Diaz, 156 S. W. 907; Railway v. Josey, 95 S. W. 688.

The first and second assignments are overruled.

The third, fourth, fifth, and sixth assignments complain of various errors of the trial court in the admission of testimony for the purpose of proving the intrinsic value of the mare, wagon, and harness at the time and place of injury.

There was positive testimony that there was no general market for such things at Boerne at the time of the injury. There was some general testimony that there was, at that time, a market about 40 miles from Boerne for mares similar to the one killed. The issue of whether there was or was not a market at that time at Boerne presented a fact to be determined. It must be presumed that the trial court determined this issue itself, for it submitted to the jury the question of intrinsic value only. Appellant did not object to the omission from the special instructions the question of market value, and did not request the submission of the issue of market value, as required by the statute, hence this court must hold that appellant waived the question of market value. Railway v. Kerr, 184 S. W. 1058 (5-7).

It, however,- happens in the present case that the evidence of market value is as much or more than the value found by the jury. If there was error, the appellant was not injured and cannot complain.

Neither was there any error in the admission of any of the testimony of facts and conditions tending to prove the intrinsic value, as this testimony only tended to prove the real value.

The judgment of the trial court is affirmed.
      @a»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    HODGES v. MOORE et al.
    (No. 993.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1916.)
    1. Refobmation of Instbuments <®=»16 — Na-TUBE.
    A correction of mutual mistake in description of property in a conveyance does not create a new contract, but merely makes the written evidence of the contract speak the truth and conform to the intention of the parties.
    [Ed. Note. — Eor other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. <&wkey;>

      2. Deeds &wkey;>43 — Contents—Amendment by CORRECTION Deed.
    Where a deed fails to properly describe the land conveyed, it may be corrected by the grantor giving a correction deed properly describing the property.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 59; Dee. Dig. &wkey;s43.]
    3. Execution &wkey;>115— Dien — Property Affected — Property Transferred — Judgment Creditor with Notice.
    A correction deed may be given by grantor when a levy has been made on the land before correction, if the creditor had notice o£ the rights of the original purchaser.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 257-265, 377; Dec. Dig. <&wkey;> 115.]
    4. Judgment &wkey;682(l) — Dien — Property Transferred.
    The title of a grantee of land is not affected by subsequent judgment against his grantor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1203; Dec. Dig. &wkey;082(l)J
    5. Judgment <&wkey;96 — Default Judgment— OONCLUSIVENESS AGAINST SURVIVING DEFENDANTS.
    Rev. St. 1911, art. 7750, as to judgment of title on default without proof by plaintiff in trespass to try title, does not purport to prescribe the rights of defendants who do answer, and their rights are controlled by article 1937 as to answering and defaulting defendants.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 155-158; Dec. Dig. &wkey;96.]
    6. Trespass to Try Title <&wkey;44r-QuESTioNs for Jury — Right to Correction Deed.
    In trespass to try title, the question whether a defendant had paid purchase money to another defendant to plaintiff’s knowledge and was entitled to a correction deed, describing the land as against plaintiff and such other defendant, held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 66; Dec. Dig. <&wkey;44.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by Ira T. Moore against A. D. Hodges and others. From a judgment for plaintiff, the named defendant appeals.
    Reversed and remanded.
    Read, Dowrance & Bates, of Dallas, for appellant. D. W. Bowser, B. F. Ward, and Charlton & Charlton, all of Dallas, for appel-lees.
   HUFF, C. J.

Ira T. Moore instituted suit in the nature of trespass to try title against A. D. Hodges, O. H. Coyle, and W. S. San-derson, and also sued S. D. Dale and W. D. Williams on their warranty, in the same action alleging that Hodges, Sanderson, and Coyle unlawfully entered into possession of lot 1, block 1, G. W. Daws addition to the city of Dallas, being a part of block 354, in the city of Dallas. Hodges answered by plea of general denial, plea of not guilty, 3, 5, and 10 years’ statute of limitation. He alleges, also, that Sanderson conveyed the land to Coyle and Coyle to him, but through mistake of the party drawing the deeds, the lot was misdescribed, describing an entirely different lot to the one sued for, but in fact, Sander-son sold the lot in question to Coyle and placed him in possession; that Coyle sold to Hodges, placing him in possession of the lot in question, but the deeds misdescribed the lot through a mutual mistake. Thereafter, these original deeds were corrected by correction deeds, properly describing the lot. He alleges that the lot in question was the lot so purchased and paid for and intended to be conveyed by Sanderson to Coyle, and from Coyle to Hodges. He prayed for judgment correcting the deeds, in accordance with the intention of the parties. The petition was filed January 26, 3914. Hodges, by his original answer, admitted that the plaintiff had title to the lot unless defeated by the statute of limitation. Sanderson executed a deed to Coyle the 20th day of April, 1906, but this deed does not describe the land in controversy. On September 12, 1914, Sanderson executed his deed to Coyle, describing the land in question, and reciting therein that the purpose of the deed was to correct the deed above set out in the description of the property, and in the last deed correctly described the land in question. There is a deed in the record from Coyle to Hodges dated January 23, 1914, but not acknowledged for record until March 7, 1914. The evidence shows that Hodges bought the land from Coyle some time in 1913, and took a deed thereto, but did not record it, and went into possession of the land at that time, and afterwards erected a rent house on the property. For the purpose of this opinion, without intending absolute accuracy, we state the evidence shows that Sanderson took possession of this lot some 24 years before suit was filed, fenced and occupied it by tenant during those years, receiving the rent therefor; that Coyle went into possession when he purchased, as did also Hodges when he purchased. On September 4, 1914, an interlocutory judgment was entered by default against Sanderson, as of May 7, 1914, reciting simply that plaintiff have an interlocutory judgment. On September 24, 1914, judgment was entered as of September 8, 1914, on Coyle’s answer, disclaiming any interest in the property, reciting that plaintiff have an interlocutory judgment. Final judgment was entered March 18, 1915. On September 4, 1914, Coyle filed his answer to the effect that he did not own, or pretend to own, the lot in question, or any interest therein, and disclaimed all right, etc. The trial court instructed the jury to return a verdict for the plaintiff Moore, and for the defendants, S. D. Dale and W. D. Williams, and a verdict was returned in accordance therewith, upon which judgment was entered.

The 10 years statute was invoked in this case, and in so far as this record shows, established title by limitation to the property in question in Sanderson, which is conceded by the appellee, and, in fact, it is urged as a reason showing no title in fact vested in appellant. This is on the theory that the deed from Sanderson to Coyle and from Coyle to Hodges does not describe the land, and therefore under the statute of frauds the title to the land did not pass to Hodges. This, of course, is true if the deeds were alone relied upon. It is urged by appellees, under the rule, that a patent ambiguity, which renders the deed void as a conveyance of land, cannot ho explained by parol testimony, citing several authorities to that point. The description in the deed is not an ambiguity at all appearing on the face of the deed. It simply described one piece of land when, as a matter of fact, another is claimed under it. The pleadings allege the lot in question was in fact purchased and paid for, but by mistake of the draftsman, the wrong lot was written into the deed. All the parties to the deed say this is the land actually sold, paid for, and intended to be conveyed. The petition prays for a correction of the deed in accordance with the intention of the parties.

When a conveyance has been properly executed, a correction of the mutual mistake in the description of the property therein contained does not create a new contract, but merely makes the written evidence of the contract which had been legally executed speak the truth and conform to the intention of the parties in order that injustice and fraud may be prevented. Silliman v. Taylor, 35 Tex. Civ. App. 490, 80 S. W. 651. The above case is stronger than this: The deed therein described one lot when it was the purpose to give the lien on another, the separate property of the wife. The lien was foreclosed, the property sold and purchased at foreclosure sale. The purchaser thereat, brought suit to correct the deed so as to give the correct description. This, the court held, could be done, and the exercise of this power to require the correction of a married woman’s deed to her separate property or homestead did not conflict with the Constitution, prescribing the manner in which such conveyances should be executed.

“The general rule that a court of equity will correct a mistake in the description of property in a deed, and make the instrument conform to the intention of the parties and evidence the real contract made by them, is too well settled to require citation of authority.” Openshaw v. Rickmeyer, 45 Tex. Civ. App. 508, 102 S. W. 467; Avery v. Houston, 23 Tex. Civ. App. 353, 56 S. W. 210-212; Harry v. Hamilton, 154 S. W. 637.

It is the rule in this state, where a deed fails to properly describe the land conveyed, it may be corrected by the grantor giving a correction deed, properly describing the property, and this may be done when a levy has been made on the land before correction, if the creditor had notice of the rights of the original purchaser. Milby v. Regan, 16 Tex. Civ. App. 352, 41 S. W. 372.

If Hodges purchased and paid for and received a deed conveying the. interest of Sanderson and Coyle to the land, but by mutual mistake the wrong lot was described, he had a right to have corrected the deed so as to make it speak the truth. He could do this in court, or if the parties voluntarily corrected the deed, it would not be a new contract, but simply be correcting the writing of the original contract made. When Sanderson was sued, he had no interest, and had none when the default was taken. Coyle simply filed his plea that he had no title to the lot, and when ho did so this was consistent with the facts adduced upon the trial. The title was in neither Sanderson nor Coyle. They had placed ITodges in possession of the right land under a deed which they mutually believed to convey it, but by mutual mistake,, it did not. Before Sanderson executed his correction deed, a default was taken against him, and an interlocutory judgment entered. This is not a decree, adjudicating that the title was in him and not in Hodges. At most, it was a decree that as to the plaintiff, Sander-son could not in that suit set up any interest against the plaintiff. This did not affect Hodges’ right to have the deed corrected, according to the contract and the truth of the matter. It was and is no estoppel as to Hodges; it did not adjudicate his rights, and could not affect him. I-Iis rights remained intact, unaffected by the nonaction of Sander-son. Atkinson v. Shelton, 160 S. W. 316; Boles v. Linthicum, 48 Tex. 220.

Article 7750, R. C. S., simply dispenses with proof where the defendant in trespass to try title fails to answer and default is taken. It does not purport to prescribe the rights of a defendant who does answer in that suit. This will, we think, be eontrolléd by article 1937, R. O. S. If. Hodges had not been made a party, or if he had been dismissed from the suit, it would not be contended that a final judgment would have affected his rights' to correct the deed. If there was a misdescription by mutual mistake in the deed, of which the appellees had notice, or facts which would have led to such knowledge, then they are not concerned in the matter of correction. Their rights will be determined by whether they are bona fide purchasers without notice, or whether the transaction was bona fide between Sander-son, Coyle, and Hodges. Of course, if there never was any conveyance out of Sanderson or Coyle into Hodges, a judgment, when final, would divest out of appellant, and vest apiiellee with title, but these are issues which, under the facts, must be determined •by the jury from the facts in the case. Hodges, therefore, having answered, setting up his right, that he had the title of Sander-son and Coyle, had the right to have these questions adjudicated as to him. The default of Sanderson, or Coyle’s answer that he had no title, did not estop Hodges, and the court, for that reason, should not have taken the case from the jury.

In this case it is alleged there was a mistake in the description of the land. The petition, however, should more specifically allege a mutual mistake; that the lot in question was actually bought and paid for, and that it was intended to be conveyed by the deeds, and that the description was thereafter corrected by new deeds. The evidence is positive by all the parties to the deeds that this is true. A judgment then against the vendor will not estop the vendee, who bona fide purchased the land. We believe Hodges could sue, even after judgment against them, to correct the deed and make it speak the truth. This was the prayer of the petition. The question whether, under the evidence, Hodges had a contract which vested him with title upon a condition precedent is a question which should be determined under the facts by the jury, and under appropriate instructions by the court as to the law applicable to the facts.

The trial court, we think, was in error in taking the case from the jury, and the case will therefore be reversed and remanded.
      (gs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gnn>For other cases'see same topic and KEY-NUMBEli. in all Key-Numbered Digests and Indexes


text:
    MERCHANTS’ ICE CO. v. SCOTT & DODSON.
    (No. 5604.)

    (Court of Civil Appeals of Texas. San Antonio.
    April 26, 1916.
    Rehearing Denied May 31, 1916.)
    1. Attorney and Client <&wkey;165 — Actions for Compensation — Stjeeiciency oe Complaint.
    A petition in an action 'by plaintiff to recover attorney fees from a corporation in which he was a stockholder, held to state a cause of action.
    [Ed. Note. — Eor other cases, see Attorney and Client, Cent. Dig. §§ 365-367; Dec. Dig. <§=» 165.]
    2. Corporations <&wkey;177 — Officers and Agents — Compensation for Attorney’s Pees.
    That an attorney is an officer or stockholder of a corporation does not preclude him from recovering the value of professional services rendered the corporation outside the scope of his duty as such officer or stockholder.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 653; Dec. Dig. <&wkey;>177.]
    3. COR)PORAT<IONS <&wkey;>425(5) — Liability for Unauthorized Acts — Estoppel.
    Express assent by corporation shareholders to unauthorized acts of its president is not necessary to bind the corporation which may be estopped to deny the unauthorized acts by failure to promptly condemn them and seek judicial redress.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1706; Dee. Dig. t&wkey;425(5).]
    4. Corporations <&wkey;426(10) — Liability for Unauthorized Acts — Acceptance of Benefits.
    A corporation which accepts the benefits of unauthorized employment of counsel by its president is estopped to deny the authority of the president to make such contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1702, 1704, 1714; Dec. Dig. &wkey; 426(10).]
    5. Attorney’ and Client &wkey;>166(l), 167(2)— Trial — Evidence—Jury Question.
    In an action by plaintiff to recover attorney fees from a corporation in which he was a stock-. holder, evidence held not to require a directed verdict for defendant, but on the contrary to sufficiently support verdict for defendant.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 368, 374; Dec. Dig. &wkey;> 166(1), 167(2).]
    6. Trial <&wkey;232(2) — Instructions — Special Findings.
    Under Rev. St. 1911, art. 1985, providing that a special verdict must find the facts and not the evidence establishing such facts, an instruction requiring the jury to state specifically upon what evidence it based its findings should be refused.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. &wkey;232(2).]
    7. Trial <&wkey;261 — Instructions —Requests En Masse.
    Instructions requested en masse should be refused if any one of them is improper or has been substantially given in the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. &wkey; 261.]
    8. Evidence <&wkey;553(2) — Hypothetical Questions — Facts Included.
    A hypothetical question embracing counsel’s theory of the case is not objectionable because it does not cover the full range of the evidence and embrace facts contended by opposing counsel to be established by the evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2370; Dee. Dig. &wkey;553(2).]
    9. Attorney and Client <&wkey;167(2) — Value of Services — Jury Question.
    In an action for attorney fees, the value of the services rendered is peculiarly within the province of the jury.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 374; Dec. Dig. <&wkey; 167(2).]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Scott & Dodson against the Merchants’ Ice Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
    Affirmed.
    Denman, Franklin & McGown, of San Antonio, for appellant. John Sehorn, S. Engel-king, and T. H. Ridgeway, all of San Antonio, for appellee.

       Application for writ of error pending in Supreme Court.

   SWEARINGEN, J.

Appellees sued appellant, a corporation, to recover $7,300 for professional services rendered in behalf of appellant, and alleged in the alternative an express or an implied contract, or on a quantum meruit. Appellees alleged that the president of the corporation incurred the liability for attorneys’ fees, and that all the stockholders concurred therein; that their services were necessary and resulted in substantial benefits to the corporation; that all the stockholders and the president accepted all the benefits for the corporation, with full knowledge of appellees’ professional services, and this appropriation of the fruits of appel-lees’ services was made with full knowledge of appellees’ services and claims for compensation ; and, further, that at the time of this appropriation appellees were neither stockholders, nor directors, nor otherwise connected with the company in any official capacity.

Appellant pleaded a general exception, that the petition was insufficient in law because no promise to pay, express or implied, was averred in such way as to render the appellant liable to appellees. After denying appel-lees’ cause of action, appellant affirmatively answered that it paid appellees for all services rendered. That at the time the services were rendered appellees were officers and directors of the corporation, and it was their duty as such officers to render all the services for which compensation is claimed by appel-lees. Further, that appellees had claimed only $300 for professional services which appellant had paid. That the contract of employment, if any, was made by the board of directors, consisting of three members, of whom appellees were two. That such a contract so made was null and void.

After appellees had testified as witnesses at the trial, appellant filed a trial amendment, answering in effect that appellees’ evidence showed that the liability for attorney’s fees was contrary to public policy, and therefore void. At the close, of appellee’s testimony the case was submitted to a jury upon special issues. The jury rendered its verdict in favor of appellees for $6,500, upon which verdict, and law and facts found by the court, judgment was rendered for appellees. Appellant’s amended motion for new trial was overruled.

Appellant, in its first assignment, on page 6 of its brief, says the court erred in overruling the following exception:

“It generally and specially demurs and excepts to all of said petition and says that same is insufficient in law and shows no cause of action against this defendant, because no agreement or promise to pay, express or implied, is averred therein as made by this defendant in such way as to render this defendant liable unto plaintiffs, either upon a special contract of employment for attorney’s fees or upon an implied contract of .employment for attorney’s fees.”

This assignment is overruled, because we are of the opinion that the petition sufficiently alleged a legal cause of action.

Appellant’s assignment numbered “5a” assigns that the trial court erred in its refusal to peremptorily instruct a verdict for the defendant (appellant) as requested, as follows:

“The court erred in refusing to submit to the jury special charge No. 1, asked by defendant prior to the submission of the cause, and to the refusal of the court to give said charge, defendant excepted at the time of such refusal and prior to the submission of the cause to the jury, viz.: ‘The jury are instructed that there is no evidence in this case legally sufficient to support a verdict for plaintiffs, and you are therefore instructed to render your verdict herein in favor of defendant.’ ”

The assignment is submitted as the only proposition. Whether required by this proposition or not, we have made a very careful examination of the record evidence, and find therefrom the facts to be:,

Appellees were experienced practicing lawyers, and were partners. On September 11, 1912, the stockholders of the Merchants' Ice Company met in room No. 316, Alamo Bank Bldg., San Antonio, Tex., at which all the stock of 1,400 shares was voted, and resolved to execute bonds for an amount not to exceed $1510,000, and to secure payment of same to execute a deed of trust on all its property. The stockholders present in person or by proxy were the following: Adam Vogt, in person; E. H. Wedekind, in person; George B. Marshall, in person; C. W. Eichtner, in person; J. H. Kirkpatrick, by proxy; Henry Vogt, by proxy; Soren Thurs-tensen, by proxy; W. S. Montz, by proxy; Gi A. Heuser, by proxy; B. Wedekind, by proxy; George G. Montz, by proxy.

On the same day, September 11, 1912, the directors of the company held a meeting and resolved to execute the bonds for $150,000 and to secure the payment of same by executing a deed of trust upon all corporate rights, franchises, and physical properties of the corporation. The directors were E. I-I. Wedekind, Chairman, C. W. Fichtner, Adam Vogt, and Geo. B. Marshall.

On the 15th day of January, 1913, the Merchants’ Ice Company, by E. H. Wedekind, vice president, executed the deed of trust, the Central Trust Company of San Antonio, Tex., being the trustee. The certificate of acknowledgment of the deed of trust .was dated January 15, 1913. The deed of trust was filed for record in the deed of trust records of Bexar county, Tex., January 15, 1913.

On January 18, 1913, all the persons who owned stock on January 15, 1913, sold all their stock to Mr. Eugene Nolte and Chas. A. Zilker and to friends or associates of Nolte and Zilker, in the following proportions :

Eugene Nolte. 41 per cent
Postlewaite . 3.15
Zilker . 22.75
Cable . 10.5
Mrs. Castleman . 5.25
Dodson . 10.
H. L. Guenther. 6.15
Freeborn. 1.2
100 per cent.

The capital stock purchased was $140,000, though there was $20,000 unissued stock for which some of the selling stockholders had subscribed. Mr. Zilker was the experienced owner of ice companies, who, through agents, negotiated the purchase of the stock by himself and Nolte and their friends. Without money consideration Zilker transferred one share of stock to appellee Scott, who immediately indorsed and delivered the certificate to Zilker. Dodson borrowed the money for his stock from a bank, on a note signed by Zilker. Postlewaite, Freeborn, and II. L. Guenther were associated with Zilker in other ice plants. Zilker represented Cable and Mrs. Castleman.

The price paid by the buyers for the $140,-000 stock to the selling stockholders was $50,000 cash. The sellers represented to the buyers that the value of the property of the corporation was $200,000, and that its annual net earnings had been and were at the date of sale $40,000, and to verify the statement of value and earning capacity promised to furnish the boohs of the corporation. The domicile of the corporation was San Antonio, Tex., and the books should have been in San Antonio, Tex.

The $140,000 stock was duly transferred by sellers to buyers on January 18, 1913, the $50,000 was paid to the sellers, and the sellers retained the $150,000 bonds, secured by the deed of trust on the corporation’s property. After the transfer of the stock to Nolte and Zilker, and their friends, Nolte was duly elected president of the corporation, and he, Scott, and Dodson were elected directors. The new stockholders demanded the books of _ the corporation from the selling stockholders after discovering that the books had been removed from the company’s office. The selling stockholders had removed the books to Louisville, ICy. The sellers finally replied to the buyers that the books could not be produced and furnished; that the books had been burned in Louisville, Ky. The corporation then found it necessary to, employ an expert to appraise the value of the property of the corporation in order to know its real value. The expert appraised the property at much less than $200,000, viz., not over $149,963 when built. The outstanding stock and bonds amounted to $290,000.

At this stage of matters, which was after January 18, 1913, all the stockholders were gotten together. Besides appellees, there were present Nolte, Postlewaite, and Zilker, and all the others were represented at the meeting by Mr. Zilker. At this meeting of all the stockholders it was determined that the company must have lawyers and legal advice to safeguard the company. Mr. Nolte, the president of the company, at this meeting, and also Mr. Zilker told appellees to go to work, to go ahead and represent the company in a legal capacity and protect the company, so that the amount of the indebtedness represented by the bonds in the hands of the sellers could be reduced in the same ratio that the real value of the property bore to the misrepresented value. The represented value was $200,000, the real value was $115,566 at the time of appraisement, several days after the trade, though the expert was of the opinion that the property when new had been worth $149,963.

Nolte, the president, at the meeting of all the stockholders, those not present in person being represented by Zilker, said to ap-pellees:

“That is up to you boys; go ahead and take care of that. * * * Get the petition, ready and prepare to file that suit.”

Appellees proceeded to prepare for the legal steps.

On February 17, 1913, a directors’ meeting passed a resolution, the purport of which was to repudiate the bonds and deed of trust because of the fraud on the part of the sellers, made apparent by the discovery that the real value of the corporation was much less than the misrepresented value. This resolution was suggested by appellees in pursuance of their previous employment as lawyers to protect the company with their legal services.

Appellees, after February 17, 1913, proceed» ed to thoroughly prepare the law and evidence as they had been employed and instructed to do by the president in the presence of all the stockholders. After investigating, as attorneys, appellees told all the stockholders assembled, Nolte, Postlewaite, appellees, and Zilker being present in person, and all the other stockholders being represented, that they had reconsidered the question of filing suit for the corporation, to cancel the bonds, though the petition was prepared and everything was ready to file the suit. Appellees advised waiting for the bondholders, who were the sellers, to sue the corporation to enforce payment of the interest on the bonds and then answering that suit, to foreclose the deed of trust for $150,-000 and interest, by setting up the fraud of the selling stockholders in overvaluing the property. Appellees then exhaustively prepared to defend such a suit. The president, Nolte, at this meeting was solicitous about the probability of a receivership of the corporation in the event suit was filed for default of interest. Appellees, as attorneys, investigated the law bearing upon this question, suggested by Mr. Nolte, the president.

The stockholders rested the entire responsibility of the legal situation upon appellees as attorneys. From February until November, 1913, appellees, under instructions from the president, Mr. Nolte, and with the acquiescence of all the other stockholders, gave practically the entire time of appellee Dodson to the preparation of the law and facts for the corporation in its expected suit for foreclosure of the $150,000 bonded indebtedness.

The president of the corporation, Mr. Nolte, wanted a clear understanding of the cost for the legal services of appellees, for their employment to protect the corporation in the matter of the fraudulent valuation by the sellers, and said to appellees that certainly he understood that appellees were to be paid for legal services, such as defending the expected suit for foreclosure, which was expressly mentioned. It is true that the president, Mr. Nolte, consulted Judge Denman and expressed.himself as uneasy about the result of the foreclosure suit. At the instance of Mr. Nolte, appellees consulted with Judge Denman in the presence of President Nolte and Mr. Zilker, and gave Judge Denman the views of appellees and also furnished authorities to Judge Denman. The president, Mr. Nolte, notwithstanding the counsel of appel-lees, expressed his belief that the suit could not be successfully defended by the corporation.

About the middle of July, 1913, the first interest coupons became due. The coupons reached San Antonio. Different banks presented the coupons to the corporation for payment. Appellee Dodson got President Nolte,' Zilker, and the stockholders together, and notified them to decide whether to pay the interest or face the suit for foreclosure. At a meeting, Nolte, the president, said he was sure he could not reduce the bonds in the suit. Zilker replied that Nolte had “cold feet.” Appellees were instructed by Nolte, Postlewaite, and Zilker to turn down the payment of the coupons. Payment of coupons was refused. Appellees then proceeded with preparation for the impending suit.

Appellees discussed, after this, with Mr. Nolte, the president of the company, and also with Zilker and Postlewaite, the compensa-tion appellees would receive from the corporation for legal services necessary for defense of the foreclosure suit, and requested an agreement. The president, Mr. Nolte, and Zilker and Postlewaite said the corporation would pay liberally if they got it out of the bondholders. Next in order of time came letters from the bondholders and a letter from Judge Clamp, of San Antonio, Tex., dated July 28, 1913, advising the Merchants’ Ice Company that if interest coupon was not paid within 60 days suit would be filed for the entire amount of the bonds to enforce pajunent. After receipt of the foregoing notices, Zilker told appellees he thought Nolte, the president, had already agreed upon the compensation to be paid to appellees for their legal services incident to the threatened foreclosure suit. Appellees replied that the amount of the compensation had not been definitely agreed upon. Zilker replied that he would see Nolte and send him up to appel-lees, and that Nolte would agree upon the amount of the compensation. The , next morning, following this conversation, Nolte, the president, went to the office of appellees and told them that he was willing and to continue with their legal services in connection with the foreclosure suit. Appellees retained all papers in connection with this matter, which they had on this occasion tendered in one bundle to Mr. Nolte and which he had declined to receive. Appellees continued their work as attorneys for the corporation on the threatened foreclosure suit.

Shortly after the expiration of the 60 days mentioned in notices from the bondholders, the bondholders suggested a conference looking to a compromise. Representatives of the bondholders came to San Antonio and met the president, Mr. Nolte, Mr. Zilker, and ap-pellees. Appellee Dodson was selected to personally conduct the compromise negotiations for the corporation, which, after many meetings and great haggling through several days, resulted in a reduction by the bondholders of $39,000 from the amount of the bonded indebtedness. The reduced indebtedness was novated, the form of the evidence of indebtedness and the deed of trust securing the indebtedness were all recast in different form. After the reduction of $39,000 had been agreed upon by the president, Mr. Nolte, Mr. Zilker, and the other stockholders present or represented, appellees asked Mr. Nolte what arrangements the corporation would make for the payment of appellees’ fee for legal services, in this matter, and were informed for the first time by the president, Mr. Nolte, that nothing would be paid to them. Appel-lees replied they certainly expected to be paid for their professional services in this case, Appellee Dodson promptly sold the stock in his name. Appellee Scott had disposed of the stock in his name immediately upon receipt of it.

On January 2, 1914, all the stockholders of the Merchants’ Ice Company (appellees were not stockholders not in any way connected with the company) held a formal stockholders’ meeting, whereupon ail the stockholders appeared and participated in said meeting, either in person or by proxy, and proceeded to officially carry into effect the agreement effected through the professional services of appellees. And to that end, after noting the resignations of appellees, which were of record, and electing James T. Holmes and Walter -Nolte as directors in the place of appel-lees, Scott and Dodson, and after the new directors qualified, there was a joint meeting of all the stockholders and all the directors, who thereupon, by appropriate resolution, completed the said compromise agreement, by which the corporation saved the $39,000, brought about by the said professional services of appellees. It will be remembered that neither of the appellees was either a stockholder in or a director of the corporation at the date of this joint meeting held January 2, 1914.

The real value of the property of the corporation was approximately $150,000. Expert witnesses testified that the professional services of appellees rendered on behalf of the corporation in the matter of the foreclosure suit were reasonably worth from $5,000 to $10,000. The jury found the value of same to be $6,500.

The principles of law applicable to the facts of the case at bar have been so often and so ably stated that we feel it unnecessary to do more than briefly refer to them:

(a) “ * * * An attorney who is also director, secretary, and treasurer of a corporation may recover the value of his special personal services rendered it strictly in the line of his profession and entirely outside the scope of any of his official duties, if such services were rendered under such circumstances as to raise a fair presumption that the parties intended and understood they were to be paid for, or ought to have so intended and understood.” 7 R. C. L. p. 465; Taussig v. St. Louis R. Co., 166 Mo. 28, 65 S. W. 969, S9 Am. St. Rep. 674; Bankers’ Trust Company v. Cooper, Merrill & Lumpkin, 179 S. W. 542; Cold Storage Company v. Crawford, 18 Tex. Civ. App. 180, 44 S. W. 875.

(b) “An express assent * * * is not essential on tlie part of the stockholders to operate as an equitable estoppel upon them. It may be inferred from the failure to promptly condemn the unauthorized * * * act and to seek judicial redress.” Ft. Worth Pub. Co. v. Hitson, 80 Tex. 228, 14 S. W. 846. 16 S. W. 551; Cold Storage Co. v. Crawford, 18 Tex. Civ. App. 180, 44 S. W. 875; Peach River Co. v. Ayers, 41 Tex. Civ. App. 334, 91 S. W. 387.

(c) Where contract inures to benefit of corporation and corporation accepts the results thereof the corporation is estopped from denying that the president was duly authorized to make the contract. Bankers’ Inv. Co. v. Cooper, Merrill & Lumpkin, 179 S. W. 542; Scott v. Nat. Bank, 97 Tex. 46, 53, 75 5. W. 7, 104 Am. St. Rep. 835.

Appellant argued extensively eight reasons for the giving of the peremptory instruction, all of which have been studiously considered and carefully compared with the facts of the case at bar, with the result that we conclude that this assignment is not well taken and is overruled.

Appellant’s assignments, numbered 2, 1, 4, 6, 13, 14, 15, 16, 17, 18, 20, 21, 11, and 19, presented in the order mentioned on pages of brief from 86 to 105, are all in violation of rule 29, provided by the Supreme Court for Courts of Civil Appeals, because the assignments are not numbered in consecutive order. Rule 29 (142 S. W. xii). In this connection, we call attention to the fact that there is a first assignment in appellant’s brief on page 88, based on the third ground of appellant’s motion for a new trial, and also a first assignment on page 6 of appellant’s brief based on the first ground of appellant’s motion for new trial. Grisham v. Connell Lumber Co., 164 S. W. 1107; Barron v. White, 155 S. W. 590; Taylor v. Butler, 168 S. W. 1004.

Furthermore, each assignment complains that the trial court erred in refusing various special issues and special instructions requested by appellant. From the record it appears that all of the issues and charges requested by appellant were contained en masse together with others, the refusal of which is not assigned as error. All were contained in one volume. The sheets consecutively numbered were securely branded together and bound in one wrapper. At the top of the front sheet was the style and number of the case and a designation of the court, after which followed the only request made in connection with said special issues and charges, as follows:

“Defendant asks the court to submit tlie following special issues to the jury with the charges accompanying same.”

Following this, in due order, appeared the requested special issues and charges, each of which was preceded by its appropriate number or description, but without a preceding designation or description of the court or cause, and without signature of defendant or its attorneys except at the conclusion of the last requested issue, No. 11.

It further appears from the record that special requested issue No. 1 required the jury to collate evidence, and not find a fact as required by the statute, and the issue of fact was submitted in its main charge.

Special issue No. 2 was contained in the main charge.

Special requested issue No. 9 required the jury to state specifically upon what evidence in the case it based its findings. This should have been refused. R. G. S. art. 1985; Selden-Breck Const. Co. v. Kelley, 168 S. W. 985; Guffey Petroleum Co. v. Dinwiddie, 168 S. W. 439.

It is a well-settled rule that instructions réquested en masse should be refused by the trial court if any one of them has been substantially given by the court in its main charge, or if any one of those requested en masse should have been refused. Hovey v. Sanders, 174 S. W. 1025; Longworth v. Stevens, 145 S. W. 259; I. & G. N. Ry. v. Neff, 26 S. W. 784; Yarborough v. Weaver, 6 Tex. Civ. App. 215, 25 S. W. 468. The trial court did not err in refusing to submit the special requested instructions contained en masse, and the foregoing assignments cannot be considered upon their merits.

By assignments 22, 23, and 24 appellants claim it was error of the trial court in allowing a hypothetical question to be propounded to A. B'. Storey, J. B. Lewright, and J. F. Ryan, experienced lawyers, and to permit witnesses to answer. The hypothetical question had been reduced to writing and was read to each of the witnesses. The question is very long and its insertion here would needlessly lengthen this opinion. Suffice it to say that the question embraced appellees’ theory of the case and embraced the facts in evidence sufficiently to enable the jury to form an intelligent opinion of what experienced lawyers considered a proper fee under the facts pleaded and proven in this case. That it may not have covered the full range of the evidence did not render the question and answer inadmissible in evidence. “Counsel have the right to embody in their questions the facts which in their judgment the evidence proves, and are not compelled to embrace therein the facts that the opposing litigant contends to be those established by the evidence.” Order of United Com. Trav. of Amer. v. Roth, 159 S. W. 179.

The twenty-fifth, twenty-sixth, and twenty-seventh assignments complain that the verdict of the jury in response to special issues 1, 2, and 3, respectively, is without any evidence to support it. We have already stated the facts in this case, in considering appellant’s assignment No. 5a, and deem it unnecessary to repeat our conclusion of facts. The evidence was uncontradicted, and ample to sustain the answer of the jury to each of the three special issues.

By assignments 28, 29, and 30 appellants complain that the verdict of the jury is contrary to the law and the. evidence in answer to special issues Nos. 1, 2, and 3, respectively. What has been said of the facts in considering assignments 25, 26, and 27 applies with equal force to these assignments. Therefore assignments 25, 26, 27, 28, 29, and 30 are overruled.

Appellant’s thirty-first assignment complains that the verdict for $6,500 is excessive. The value of the professional services of ap-pellees was peculiarly within the province of the jury. There was evidence to support their verdict. Assignment 31 is accordingly overruled.

The trial court did not err in entering the judgment upon the verdict as complained of in appellant’s thirty-second assignment, and the same is hereby overruled.

Finding no error in the record presented in the numerous assignments of error of appellant, the judgment of the trial court should be and is affirmed.
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