author: LANE, J.

text:
    NORTHERN IRR. CO. v. WATKINS et al.

    (No. 7056.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 11, 1916.
    Rehearing Denied March 2, 1916.)
    1. Watebs and Watee Coueses ©==>261 — ^ Supply — Gonteacts — Nonperformance— ( Act oe God — Reservation in Conteact.
    \ Where the defendant agreed to furnish the plhintiff an amount of water, which, with the natural rainfall, would be sufficient to grow his crop of rice on land which he rented from the defendant, and the contract provided for damages if the water supply was insufficient, the defendant was liable notwithstanding an unusual drought caused a deficiency in the water supply.)
    [Ed./Note. — For other cases, see Waters and Water Courses, Dec. Dig. ©==>261.]

      2. Contracts <S=3l47 — Construction — Powers or Court.
    I A court, under its duty to construe a contract cannot make a contract which the parties did hot contemplated
    [Ed. Note — For other cases, see Contracts, Cent. Dig. §§ 730, 748 ; Dec. Dig. ⅜=>147.]
    3. Contracts <S=^303 — Actions — Defenses— Impossibility or Performance.

      f Where the law creates a duty and the party Us disabled to perform it without his fault, ana has no remedy, the law will excuse him, and he will noiMie held liable in damages for nonperformance. }
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. ⅞=^303.]
    4. Contracts <S^303 — Nonpbrrormance—De-fenses.
    A contractor is not liable in damages when the law intervenes to prevent the performance of his contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. <®^>303.]
    5. Contracts <§=3303 — Nonperformance—Defenses.
    While the promisor cannot be compelled to perform an undertaking impossible of performance through an act of God, he cannot, on the ground of hardship or impossibility, escape liability in damages, in the absence of a reservation covering such impossibility of performance.
    IEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. <&=>303.]
    6. Contracts ⅞⅝=>322 — Nonperformance—Defenses — Evidence—Admissibility.
    In such case, evidence that the contract was impossible of performance was inadmissible; that being no defense.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1306, 1307, 1339, 1347, 1348,1465, 1492, 1534r-1542, 1754, 1768, 1772, 1801, 1802, 1804-1808, 1815, 1816; Dec. Dig. <§=3322.]
    7. Contracts <§=3323 — Nonperformance—Defenses — Questions for Jury.
    In such case, no question was presented for the jury on the issue of impossibility of performance.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1311, 1349, 1466, 1543-1548, 1827, 1827½ ; Dec. Dig. <§=3323.]
    8. Waters and Water Courses <S=3263 — Supply — Contracts — Conditions — Performance-Necessity or Demand.
    Where the defendant agreed to furnish a sufficient supply of water for irrigating lands for plaintiff’s rice crop, the contract requiring the plaintiff to demand water, in writing, before the time at which he expected to use it, and there was an unusual drought and all parties knew well that the water could not be furnished if demanded, it was no defense to plaintiff’s suit for damages on account of failure to furnish water that he failed to demand it as required by the contract.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 324; Dec. Dig. <⅞^> 263.]
    9. Waters and Water' Courses ®=^232 — Irrigation Companies — Ultra Vires Acts— What Constitutes.
    It is not an ultra vires act for a corporation, organized for the purpose of irrigating certain lands which it held, to contract to supply its lessee sufficient water, which, with the natural rainfall, would produce a rice crop on the land, without any reservation to cover impossibility of performance through act of God.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 321, 322; Dec. Dig. <®=>232.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by E. Watkins and others against the Northern Irrigation Company. From a judgment on a directed verdict for the plaintiffs, the defendant appeals.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellant. Holland & Murphy and Krause & Wilson, all of Bay City, for appellees.

      Application for writ of error pending in Supreme Court.

   LANE, J.

For the purposes of this opinion we deem the following statement sufficient:

The Northern Irrigation Company, a corporation, appellant herein, was, on the 28th day of December, 1909, the owner of a large body of land in Matagorda county, Tex., upon which and adjacent thereto it owned .and operated an irrigation plant, consisting of all things necessary for the purpose of irrigating said land. On said date the said Irrigation Company, as party of the first part, entered into a written contract with appellees, E. Watkins and Sam Watkins. In said contract,, among other things not necessary to be stated, it is, in substance, provided:

That the party of the first part, for and in consideration of the covenants, promises, and agreements hereinafter undertaken to be kept, and performed by the party of the second part, has devised and leased to the party of the second part 500 acres of its land for the year 1910.

That the party of the first part agrees to furnish to the party of the second part all the seed rice necessary to properly plant said land.

That said party of the first part further agrees to furnish water for the proper irrigation of the rice crop to be planted on said land from its canal or pumping plant,_ it being well understood and agreed between 'the parties hereto, that said party of the first part is to furnish water from its canal qr pumping' plant, which, together with the natural rainfall, will be sufficient to properly irrigate said land. It is understood, however, that should the party of the first part fail to furnish enough water, which, together with the natural rainfall, will be sufficient to make a crop-of rice on the above-described premises, or should the natural rainfall, in case the first “party fails to furnish enough water or any water, fail to be sufficient to make a crop of rice on said premises, then the-first party shall forfeit, as damages to the second party, a sum not exceeding $4 per acre for the land not irrigated or supplied with water, either by said first party or the natural rainfall. But in no case shall said company be liable for a greater amount of damages than the amount actually sustained and suffered by party of the second part, and in no event to exceed the sum of $4 per acre for the land planted iA rice which did not receive sufficient water, and party of the first part shall not be liable for any damages if the crop yields as much as fire sacks per acre, nor if the land is not properly planted, cultivated, and a good stand secured. When party of the second part desires any land watered, he shall apply therefor in the manner hereinafter provided and shall call upon the canal superintendent of the party of the first part to go upon the land, before the time for watering the same, after such notice arrives, and they shall together examine all lead ditches, check levees, all outside levees, and all connections, and shall then determine and agree whether or not they are in such condition as is necessary to hold the water and properly cover said land; and if it is agreed that they are, this fact shall be reduced to writing, dated, and signed by each of them, and if it is agreed that they are not, this fact and the extent of such unreadiness shall be reduced to writing, dated, and signed by each of them. The foregoing provisions must be fully complied with before any claim for damages for not watering said land can be asserted or claimed. When any request for water is made, the land for which the water is demanded and the crop thereon shall be examined by the farm superintendent of party of the first part, upon written request of party of the second part, filed with the party of the first part at the time that the request for water is filed, and both of said notices shall be delivered and filed in the office at headquarters on the farm. When such request is so filed and written five days thereafter such superintendent shall go upon said land and examine the stand of rice and determine whether or not the same is sufficiently good to justify the watering of same, and unless there is at least three-fourths of a perfect stand on said land, the same shall not be watered, except at the option of the party of the first part. The decision of such superintendent as to the stand of rice shall be final and conclusive between the parties hereto, and the fact of such examination by such superintendent and his decision as to the kind of stand he finds shall, at the time, be reduced to writing, dated, and signed and filed in the office of the party of the first part; and until these conditions shall be complied with there shall be no obligation on the part of the party of the first part to water said land, and no claim for damages for not watering the same shall ever be made. The fact that the party of the first part does furnish water, in whole or in part, to water any land, shall not be considered as a waiver of the conditions named herein, nor any of them, and shall not make the party of the first part liable to furnish any more water to said land, nor for damages in any amount whatsoever. Before any land is planted it should be properly prepared for planting, and before it is planted the superintendent of the farm shall be called upon to examine the same, and shall then decide whether or not it is so prepared, and, if not, it shall, by party of the second part, be put in good condition under the direction of such superintendent and the fact of such examination and approval shall be reduced to writing, dated, and signed by both parties, and until this is done no obligation to water the same shall rest upon party of the first part, but it may water the same at its option.

That said party of the second part further agrees that they will properly and in due time plow and prepare that portion of said land which is to be planted in rice, and that they will, before the 20th day of May, 190 — , have said land planted.

That when party of the second part shall want water, they shall make application in writing, addressed to the manager of party of the first part, and shall name and give as near as possible the number of acres to be irrigated, and whenever water is wanted by the party of the second part they shall give five days’ notice of such desire so that the distribution may be properly regulated.

.That in consideration of the leasing and renting of said land above described, by the party of the first part to the party of the second part, and in consideration of the furnishing of all seed rice necessary to properly plant the land above described, and in consideration for furnishing water as herein specified, and in consideration for other undertakings herein assumed by party of the first part, the party of the second part agree and bind themselves to deliver to the party of the first part, after said crop of rice has matured, first, one-half of the entire rice crop grown on the land above described, said one-half to be delivered to the party of the first part at threshing machine, at each setting of the separator, sacked in good new 9-ounce 64-ineh sacks, properly sewed up, as soon as threshed. The delivery here mentioned means the setting apart and piling of every other sack as it comes from the machine. Said party of the first part, however, is to pay 10 cents per-sack as threshing charges for its share of said crop; and, second, the remaining balance of said crop shall belong to party of the second part.

Appellees, E. Watkins and Sam Watkins, filed this suit in the district court of Mata-gorda county, on the 1st day of April, 1912, and in their petition they -allege a compliance with the terms of said contract on their part and a breach of the same on the part of said Northern Irrigation Company, in that said company failed to furnish them sufficient water, together with the rainfall, to mature their rice crop, and that by reason of such failure they made no crop, to their damage in the sum of $9,000, for which they pray judgment, as well as for all such other and further relief, both in law and equity, to which they may be found justly entitled. The Northern Irrigation Company answered admitting the execution of said contract, and that it failed to furnish water for appellees’ crop as it had contracted to do, and that by reason of such failure no crop was grown on the land leased by it to appellees, and further specially i>leaded, ⅛ avoidance of appellees’ demand: Eirst, that the plaintiffs were the tenants of defendant under a written contract, and that the only rights they had, or to which they were entitled, were those acquired under said contract, which written contract, among other provisions, contains the following:

“Said party of the first part further agrees to furnish water for the proper irrigation of the rice crop to be planted on the above-described land from its canal or pumping plant, it being well understood and agreed between the parties hereto, that said party of the first part is to furnish water from its canal or pumping plant, which, together with the natural rainfall, will be sufficient to properly irrigate said land. It is understood, however, that should the party of the first part fail to furnish enough water, which, together with the natuial rainfall, will be sufficient to make a crop of lice on the above-described promises, or should the natural rainfall, in case the first party fails to furnish enough water or any water sufficient to make a crop of rice on said premises, then the first party shall forfeit as damages to the second party a sum not exceeding $4.00 per acre for the land not irrigated or supplied with water either by said first party or the natural rainfall. But in no case shall said company bo liable for a greater amount of damages than the amount actually sustained and suffered by party of the second part, and in no event to exceed the sum of $4.00 per acre for the land planted in rice which did not receive sufficient water, and party of the first part shall not be liable for any damages if crop yields as much as five sacks per acre, nor if the land is not properly planted, cultivated, and a good stand secured.”

That the contract between the parties provided that when the parties of the second part (plaintiffs) shall want water they shall make application in writing addressed to the manager of the party of the first part (defendant), and shall name and give, as near as possible, the number of acres to be irrigated, and that such notice shall be given five days in advance. It is further alleged that plaintiff never made written demand for water, and that the necessity for such written •demand was never waived by the defendant, and therefore there was no obligation on the part of defendant under the terms of said contract to furnish plaintiff any water, and that therefore they cannot recover in this action.

The defendant further specially pleaded as follows:

“This defendant says that if there was ever shortage of water, and if this defendant did not furnish or deliver to the plaintiffs water which, together- with the natural rainfall would be sufficient to irrigate plaintiffs’ rice crop, that failure so to do was occasioned by act of God, to wit, an unprecedented drought and lack of water in the Colorado river.
“That during the current crop year of 1910, and at all times during said year when the rice crop of the plaintiffs was in need of water for its irrigation, an unprecedented drought prevailed in Matagorda county, Tex., and likewise in that section of the country from the drainage of which the headwaters of the Colorado river were fed.
“That the plaintiffs well knew and it was by both parties contemplated and intended, at the time of the signing of said agreement to- water said land, and at all times during the period of contractual relationship between the parties, that the defendant was to furnish water from the Colorado river, through its canal and pumping plant, which, together with the natural rainfall, would be sufficient to irrigate the plaintiffs’ rice crop; that the plaintiffs and defendant never contemplated or intended that water for irrigation of said rice crop was to be procured by the defendant from any other source than the Colorado river; that the pumping plant of the defendant was located on the banks of the Colorado river, and the canals of the defendant immediately adjoined and connected with the pumping plant, and is adjacent to the Colorado river; that the plaintiffs well knew that it was impossible and impracticable, and not contemplated, that the defendant should procure water for the proper irrigation of the rice crop of the plaintiffs elsewhere or otherwise than from the Colorado river.
“That the Colorado river, during the entire rice watering season of 1910, and especially during the months of May, June, July, August, and September, adjacent to the pumping plant of the defendant and at nearby points, contained less water than was ever before known in the history of Matagorda county ; that the drought, which prevailed both at the source of the Colorado river, and through the intermediate tier of counties from said source to Matagorda county, and in Matagorda county, during said period, was unprecedented, and the like had never previously occurred in the record history of Matagorda county.
“That there was not sufficient water in the Colorado river to enable the defendant to pump water and furnish the same to the plaintiffs; that the defendant made every possible effort to procure water and furnish the same, and expended large sums of money in so doing, and was ready at all times, both day and night, to procure and distribute what water might he available, and made every effort so to do, but that no water sufficient in volume or quantity to enable the defendant to operate its pumping plant was available, and no water could be procured by the defendant from any source, and it was a physical impossibility for the defendant to furnish any more water than was furnished to the plaintiffs for the irrigation of plaintiffs’ rice crop, and that the plaintiffs well knew and contemplated at the time of the making of the contract with the defendant that - if water could not be procured by the defendant from the Colorado river, that it was a physical impossibility for the defendant to procure the same, and the plaintiffs never intended that the defendant should procure water from any other source than the Colorado river.
“That the failure of the defendant to furnish water to the plaintiffs, if it failed to do so, sufficient to irrigate said rice crop, was due solely to causes over which the defendant had no control, and due solely to the unprecedented drought prevailing, and to the unprecedented low stage of water in the Colorado river, and was due solely to an act of God or nature, and said act of God was the proximate cause of the damage suffered by the plaintiffs.
“That the contract between the parties provided that in event the water furnished by tins defendant and the natural rainfall were insufficient to make a crop of rice, the defendant should forfeit damages to the plaintiff for the land not irrigated.
“That said agreement of forfeiture was made contemplating the continuous and normal flow and supply of water in the Colorado river opposite the pumping plant of the defendant, and in the making of said agreement for irrigating said rice crop- the plaintiffs and the defendant intended and expected that the water to be furnished by the defendant was to he procured from the Colorado river, and not elsewhere, and contemplated the continued existence of said water in said river; that the unprecedented drought in Matagorda county, .as before set forth, destroyed the normal flow of the Colorado river in Matagorda county, and opposite the defendant’s pumping plant, and as a result of such unprecedented drought, which had never before occurred in the recorded history of Mat-agorda county (which was an act of God and beyond the control of this defendant), and the destruction of the water supply in the Colorado river, the defendant, Northern Irrigation Company, was discharged from the performance of said contract, and its obligations thereunder terminated.
“That there was an implied condition in the contract of irrigation between the parties that the water in the Colorado river should continue to be in existence in sufficient quantity at the time irrigation was necessary, and the plaintiffs and the defendant so contemplated the continued existence of the water in the Colorado river;' that said water was destroyed and made unavailable by the unprecedented drought in Matagorda county, opposite the defendant’s pumping plant, and thereby all obligation on the part of the defendant to furnish water to the plaintiffs was terminated, and the defendant discharged from performance of the contract.
“That this defendant is not an insurance company, and its only charter powers are as follows: ‘For the purpose of constructing, maintaining and operating canals, ditches, flumes, laterals, reservoirs, dams, lakes and wells and of conducting and transferring water to all persons entitled to the same for irrigation, mining, milling, to cities and towns for waterworks and for stock raising, and for the purpose of building storage reservoirs, for the collection and storage of water for the purposes before mentioned.’
“That this defendant could not, under its charter, insure the supply of water to the plaintiff when such water was not, as in the present instance, obtainable from the contemplated source of supply, to wit, the Colorado river, and that plaintiffs well knew, at the time of the making of said contract between the parties, the power and extent of defendant’s charter powers, or, if the plaintiff did not know the extent of such charter powers, they were charged with knowledge thereof, and had constructive knowledge thereof.
“That an effort on the part of the defendant to insure the furnishing of water to the plaintiff, especially, as in the instant case, when the defendant furnished the land and seed and was making every effort to furnish the water, would be clearly an ultra vires act.”

It is admitted by the answer of the defendant, and shown by the undisputed evidence, that no water, together with the natural rainfall sufficient to mature plaintiffs’ crop of rice, was furnished by defendant, as provided by said contract, and that by reason thereof plaintiffs’ crop was an entire failure, and that no rice crop was made by them; that it was apparent to all parties that because of a want of a sufficient flow of water in the Colorado river, it was impossible for defendant to furnish such necessary water; that one of the provisions of said contract is that it is understood, however, that should the party of the first part (defendant) fail to furnish enough water, which, together with the natural rainfall, will be sufficient to make a crop of rice on the leased land, or should the natural rainfall, in case first party fails to furnish enough water, or any water, sufficient to make a crop of rice on said premises, then the first party shall forfeit as damages to the second party, a sum not exceeding $4 per acre for the land not irrigated or supplied with water, either by said first party or the natural rainfall. It is also shown by the undisputed evidence that plaintiffs had 409 acres planted in rice on said leased premises; that there was an unprecedented drought in 1910, and that by reason thereof there was a shortage of water in said river.

Under the foregoing pleadings and undisputed evidence the trial court instructed the jury, which had been selected by the parties to the suit, to return a verdict for plaintiffs for the sum of $1,636 and upon the return of such verdict judgment was accordingly rendered. From this judgment the Northern Irrigation Company has appealed.

By appellants’ first and third assignments it is insisted: Eirst, that the trial court erred in refusing to permit defendant to prove by witnesses A. M. Anderson, manager, B. J. Jones, engineer, and August Kelke, canal superintendent of the defendant company, that the Northern Irrigation Company had been in operation for about 10 years, and that at all times prior to the season of 1910 they had procured water from the Colorado river through the intake provided for the supplying of water for the year 1910, and that at no time prior to such season had there been a failure of the water supply in the Colorado river, or a failure of the crops on the canal; that the contract entered into by the plaintiff and the defendant was entered into on the faith of being supplied from the usual and customary source — that is, from the Colorado river and through the intake, to be raised by its pumping plant into its canal — that as a matter of fact, it did supply all the water that was needed up to and including the 10th to the 15th of June, 1910; that at such time there was a complete failure of the water supply in the Colorado river, and no water could be procured from said river for the irrigation of plaintiffs’ rice, or for the irrigation of the rice crop of the other farmers on the canal of the defendant company; that no rice was grown or harvested on the canal of the defendant company for that season, and that the sole reason for the failure to do so was the failure of the water supply in the Colorado river; that the manager of the defendant company kept his crew on said canal, kept fuel on hand, and kept the machinery in perfect condition, and ready to pump and supply water at any moment that water could be obtained from the Colorado river, and if there had been a rise in the river or an increase of the water from any source, it would have been able to have supplied it to the plaintiffs. The court refused to permit or consider such testimony on the ground that the failure of the water supply in tite Colorado river did not exempt the defendant from liability for failure to supply water to the plaintiff, because there was no provision in the contract sued upon limiting the liability for such cause, to which action of the court the defendant excepted. Second, that the trial court erred in refusing to permit the defendant to prove by Y. L. Le Tulle, A. J. IIarty, O. E. Baker, and E. L. Savage, old residents of Matagorda county, Tex., and thoroughly familiar with conditions of the Colorado river at all times during the past 10 years (and the said Savage having been in charge of the pumping plant of the Gravity Irrigation & Power Company, directly across the river from the Northern Irrigation Company), as to the failure of the water supply in the Colorado river; the court declined to permit such testimony to be offered, or to consider the same, on the ground that the failure of the water supply in the Colorado river did not exempt the defendant from liability for failure to supply water to the plaintiffs, because there was no clause in the contract limiting liability for failure to supply water, to which action of the court the defendant excepted.

It must be conceded that by the contract between the parties appellant agreed, without reserve or exception, to furnish ap-pellee sufficient water, together with the natural rainfall, to mature a rice crop on said leased premises, and that it was in contemplation at the time said contract was executed by the parties thereto that conditions or events might arise which might render it impossible for appellant to furnish the water contracted for, because they inserted in said contract the following clause:

“It is understood, however, that should the party of the first part fail to furnish enough water, which, together, with the natural rainfall will be sufficient to make a crop of rice on the above-described premises, * * * then the first party shall forfeit as damages to second party a sum not exceeding ⅞4 per acre for the land not irrigated, or supplied with water”

—thus limiting appellant’s liability in case such anticipated events should happen. It must also be conceded that the leased premises was the property of appellant; that it was under no obligation to lease the same to appellees, and to assume the obligation to furnish water to irrigate said premises, by said contract, but that such obligation or undertaking was a voluntary obligation which appellant bound itself to perform by the unequivocal terms of its voluntary contract. Such being the case, the sound maxim that as a man binds himself so shall he be bound is applicable, and this court is charged with the duty to so hold. The appellees may or may not have been willing to contract to cultivate appellant’s land without payment of damages, if appellant’s failure to furnish water should be by reason of an unprecedented drought, but we do know that in this case they did not do so, and we are not at liberty to make a contract for them which they did not make for themselves. Where the law creates a duty or imposes a charge, and the party is disabled to perform it without his fault, and has no remedy, then the law will excuse him, and in such case he will not be held liable in damages for nonperformance. Nor can he be held liable for a breach of his voluntary contract when the law intervenes to prevent its performance, but we have no such case before us.

“If the parties to a voluntary contract make no provision for a dispensation, the law gives none. It does not allow a contract, fairly and voluntarily made, to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated. The promisor may not be compelled to perform the undertaking, but he cannot, on account of hardship or the _ impossibility of performance of the undertaking, relieve himself from the liability incurred. by the contract. Accordingly one who voluntarily enters into an absolute contract, without qualification or exception”

—to furnish water to another, sufficient to mature his nice crop, must abide by his contract and perform his undertaking, and cannot be heard to say that he was prevented from such performance by reason of an unprecedented drought. Ruling Case Law, vol. 6, §§ 364, 365, 367, 368, pp. 977-1006; Northern Irrigation Co. v. Dodd, 162 S. W. 946; Moore-Cortes Canal Co. v. Gyle, 36 Tex. Civ. App. 442, 82 S. W. 350.

The case of Northern Irrigation Co. v. Dodd, supra, was one in which the suit was based upon a contract executed by appellant in this case, and is almost identical in its terms with the contract involved in this case, and the same questions were presented in that case as in this, and decided adversely to the contention of appellant. The fact that appellant was unable to furnish water which he had contracted to furnish by reason of an unprecedented drought is no defense to appellees’ suit, and it follows that proof of such fact was not admissible, and therefore the trial court did not err in excluding the same.

Assignments 2, 4, and 5 complain of the refusal of the trial court to submit to the jury appellant’s defense of unprecedented drought. From what has already been said it is clear that we think that the fact that an unprecedented drought prevailed in 1910, which made it impossible for appellant to perform its part of said contract, was no valid defense to appellees’ cause of action, and it follows that we think such defense should not have been submitted to the jury. Said assignments are overruled.

The fifth assignment insists that the court erred in refusing to instruct a verdict for appellant. There is no merit in said assignment, and we therefore overrule the same.

The seventh and eighth assignments insist that the trial court erred in instructing the jury to return a verdict for appellees for $1,-636 (same being $4 per acre for 409 acres, shown by the undisputed evidence to be the number of acres planted in rice by appellees on said rented premises), and in not instructing a verdict for appellant. We overrule these assignments. We think the evidence was such that made it the duty of the court to instruct the jury as it did, as no other verdict could have been sustained under the undisputed evidence.

Appellant also 'insists that a verdict should have been instructed for it because the evidence fails to show that appellees had properly prepared its land for planting; that they took proper care to prevent the waste of water; that they maintained the necessary ditches; and that they failed to show by the evidence that they made a demand for water in writing, as they were obligated to do under the terms of their contract. We think the undisputed evidence shows that appellees properly prepared 409 acres of the leased land for planting; that they planted their rice on said 409 acres; that there was a good stand of rice; that had sufficient water been furnished to irrigate it, it would have produced about 11 to 12 sacks per acre; that they made no rice whatever because of their inability to get water; and that the average market value of rice in September, 1910, was $2.50 per sack, and in October of that year it was about $2.50 per sack. There was no contention in the trial court that ap-pellees failed to perform their part of said contract, except in that they did not demand water in writing. Appellant pleaded, and the undisputed evidence shows, that appellant could not furnish the water contracted for, and from all the facts pleaded and proven it is apparent that all the parties knew that no water could be furnished appellees by appellant, sufficient to mature their rice crop, upon demand therefor, either in writing or otherwise; and therefore to make such demand under such circumstances would liave been an idle thing, and the legal maxim “that the law does not require any one to do a thing vain and fruitless” applies. Northern Irrigation Co. v. Dodd, 162 S. W. 946.

We overrule appellant’s contention that the making of the contract in this case was an ultra vires act on the part of appellant, without comment.

We think the undisputed evidence shows that axipellees’ loss by reason of the failure of appellant to furnish the necessary water to mature their rice crop was largely in excess of the judgment rendered in their favor, and therefore overrule appellant’s contention that the verdict was unauthorized under the contract.

While we have not separately discussed all of appellant’s assignments, what has been said disposes of all of them.

We find no error in the trial of this case in the lower court, nor in the judgment there rendered; therefore said judgment is affirmed.

Affirmed.
      ig^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    CLARK v. STATE.
    (No. 3953.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.
    Rehearing Denied March 8, 1916.)
    Criminal Law <§==>448 — Evidence—Opinions —Identity oe Persons.
    Where a witness testified that at the time of seeing two persons leave a building he formed no opinion _ who they were, refusal to permit Mm to testify as to his conclusion subsequently formed was not error, where the court found that such subsequent conclusion was formed from a process of reasoning and belief based on information subsequently received by the witness.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1035-1039. 1041-1043, 1045, 1048-1051; Dec. Dig. <§=>44&]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Claude Clark was convicted of burglary, and appeals.
    Affirmed.'
    Wynne & Wynne and S. J. Osborne, all of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary.

The evidence was amply sufficient to sustain the verdict. Appellant claimed and testified that he was in the house alleged to have been burglarized at the time, and stole therefrom certain articles, but he claimed that the brother of the owner of the house admitted him therein, and that they by agreement went therein to gamble. The effect of his testimony and claim was that at the time he entered the house he had no intention to commit any theft or do anything other than gamble with the brother of the owner of the house. The state’s case positively disputed the appellant’s defense. The court, in a correct, full, and apt charge, submitted all the questions raised to the jury for a proper finding.

Mr. Crittenden in appellant’s behalf testified that on the night of the burglary he passed said house, returning from church with his wife, and saw two persons come out of the back of said house, and he was permitted properly to describe these persons fully and how they were dressed. The effect of his description was to describe appellant as one of these parties, and the other as Ben Harris, the brother of the owner of said house. In his direct examination he stated positively that at the time he saw these persons he did not then form any opinion as to who they were. The appellant sought to prove by him that since then he had come to the conclusion of whom they were, and that he would now testify that they were appellant and said Ben Harris. The state objected to this, and the court went into the matter thoroughly, both before the jury and with the jury retired. He attaches as a part of his qualification the whole testimony of the witness in question and. answer form. From it it is clear that the judge was authorized to conclude, as he did, that it was by a process of reasoning from what he afterwards heard, and not what he then knew at the time he saw them, from which he formed his opinion that it was said two persons. And the court, in his qualification, says he excluded the answer of the witness because he did not recognize the parties at the time, and reached the conclusion later that it was them from a process of reasoning or believing based on information subsequently received by him. We think the authorities cited by appellant are inapplicable. This is the only question for decision. The court ruled correctly.

The judgment is affirmed.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    CHAMBERLAIN v. STATE.
    (No. 3951.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1916.)
    1. Criminal Law <g^543(l) — Evidence—Testimony at Former Trial — Absent Witness.
    "Upon proof that a witness who testified at a former trial was no longer a resident of the state, his testimony at such former trial was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig'. 543(1).]
    2. Criminal Law ®^G14(2) — Continuance-Absent Witnesses — Cumulative Testimony.
    In a prosecution for robbery, where it appeared from the trial court’s approval of a bill of exceptions to the court’s overruling of defendant’s second application for a continuance to secure the attendance of an absent witness to prove that a witness testifying at the former trial was no longer a resident of the state so as to make his former testimony admissible that the testimony of such nonresident was but cumulative of the testimony of defendant’s wife and another witness who were in court and neither of whom defendant placed on the stand, it was not error to refuse a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Doc. Dig. 614(2).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Stanley Chamberlain was convicted of robbery, and he appeals.
    Affirmed.
    C. A. Pippin and J. J. Fagan, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Oen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

The only bill of exceptions in the record relates to the action of the court in overruling appellant’s second application for a continuance. On a trial at a former term of the court Elmer Looper appeared as a witness and testified to facts which would tend to support appellant’s plea that he was not in Dallas at the time the robbery occurred, but was in Ft. Worth that night. Since that trial appellant says he has learned Looper has left the state permanently, and he could prove that fact by one Floyd Fox. Upon proof that Looper was no longer a resident of this state, then the testimony of Looper given at a former trial would become admissible. It is on account of the failure to secure the attendance of Fox to make this proof the application to continue is based. It is not stated it was expected to prove any other fact by Fox than that Looper was no longer a resident of the state. So that the application must be considered as an insistence on the testimony of Looper. It is extremely doubtful if the diligence used was sufficient. A subpoena was first issued for “George” Fox. Upon the return of the officer showing that no such person lived in Tarrant county, appellant, on the day the case was called for trial, said he was mistaken as to the name of the witness, that the witness was named “Floyd” Fox, and had a subpoena then issued for Floyd Fox. This witness was not secured. But, regardless of diligence, we do not think the bill as qualified by the court presents error. The court says in approving the bill:

“This case was tried at a former term of this court. The defendant was convicted, and a motion for new trial granted. Among other matters set up as ground for new trial in said motion were the absence of one G. E. Wagner, whom the defendant averred would testify that the said Wagner.left the city of Dallas with the defendant prior to the date alleged in the indictment, and remained with the defendant, not being separated from him at any time for a period of more than 30 minutes in the city of Ft. Worth until a day or two subsequent to the time alleged in the indictment that said offense was committed. In support of said allegations the defendant attached to said motion for a new trial the affidavit of C. E. Wagner, which states, in effect, the substance relied upon by the defendant as one of his grounds in said motion for new trial. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, and 15 of defendant’s motion for new trial in said cause, together with a copy of the affidavit of the said C. E. Wagner which' was attached to said motion for new trial, are attached to this qualification, marked Exhibit A, and made a portion hereof. That said motion for new trial was sustained, and at the trial of this cause, which resulted in the conviction from which defendant now appeals, the said O. E. Wagner was by bench warrant of this court produced in the courtroom from the county jail of Grimes county at the time announcement in the case was made, was sworn in as a witness, and remained in attendance upon court as a witness during the entire trial of this cause.
“That the wife of the defendant, Edna May Chamberlain, testified upon habeas corpus trial filed by the defendant in this cause, hearing of same being held May 13, 1915, in substance as follows: ‘That the defendant was at the house of his wife, who is a keeper of a house of prostitution in the city of Ft. Worth, Tex., on the night the offense alleged in the indictment in this cause was committed; that he remained in the city of Ft. Worth and at her place in said city until a period later in the night than the testimony in this cause shows the offense was committed in the city of Dallas.’
“That the testimony of the witness Elmer Looper could have only been cumulative of the testimony of the defendant’s wife and of the testimony of said C. E. Wagner, and was not the only testimony available to defendant by which to establish an alibi. That the defendant during the trial of the case, which resulted in the conviction from which this appeal is taken, did not introduce either his wife or the witness C. E. Wagner upon the stand in an attempt to establish an alibi in this cause. That, when the state rested its case, the defendant introduced no testimony, but closed his case; no attempt being made by the defendant to establish an alibi or to establish any other defensive matters; the defendant relying upon the supposed failure of the state to make out its case against the defendant.”

It is thus made to appear that this was the second application for a continuance, that the testimony of Looper would be but cumulative of the testimony of appellant’s wife and the witness Wagner, who were in attendance on court, and that appellant placed neither of them on the witness stand; and it has always been the rule in this court that, if witnesses are in attendance on court who would testify to the same facts as it is alleged in the application the absent witness would testify to, and they are not placed on the stand, there is no error in refusing to continue the case. Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247, and cases cited in section 644, White’s Ann. Proc.

The only other ground is the alleged unsatisfactory evidence. We have carefully reviewed the entire record, and we are of the opinion the evidence will and does support the verdict.

The judgment is affirmed.
      ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SUMMERVILLE v. STATE.
    (No. 3965.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    Criminal Law ®=>1159(3) — Appeal — Evi-DEN CE — V ERDICT.
    On appeal from conviction in a criminal case, the verdict will not be set aside where the evidence, while conflicting, is sufficient to sustain the verdict.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <S=>1159(3).]
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    R. L. Summerville was convicted of wantonly killing a horse, and he appeals.
    Affirmed.
    Word & Walker, of Lampasas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted in two counts, one for willfully and maliciously killing a horse, the property of Sir. Lockhart, with the intention to injure the owner. The other was for unlawfully and wantonly killing a horse. He was convicted under the latter count and fined $25.

The sole question in the case is whether the evidence is sufficient to sustain the verdict. It was unquestionably shown that appellant shot and killed the said horse which was a stallion. He claimed that he did so to protect his own horse from an attack of the horse which he killed. The evidence, while conflicting, we think, was sufficient to sustain the verdict. We can see no necessity or good in detailing the testimony. The court, upon the whole, gave a correct charge requiring the jury to believe every fact essential before they were authorized to convict him. On the other hand, he told the jury expressly that, if appellant killed the horse to protect either himself or his property, to acquit him. We have carefully read the record and the statement of facts; also appellant’s extensive brief and argument. We would not be authorized under the law to set the verdict aside on the ground that it was insufficient to sustain the conviction.

The judgment will therefore be affirmed.


text:
    BLACK v. STATE.
    (No. 3970.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    1. Larceny <®=>55 — Evidence—Sufeiciency.
    Evidence that a witness was the only coal dealer in town, that he had missed no coal, but that defendant had sold some coal, which looked like New Mexico coal, in which the witness dealt, where no witness knew where defendant got the coal, was insuffleient to show that the accused was guilty of larceny of the coal.
    [Ed. Note. — Por other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. <®=»55.] •
    2. Criminal Law <®=>380, 722(2) — Evidence-Admissibility — Comments.
    In a prosecution for larceny, evidence that the accused was unduly intimate with one witness, or comment upon such fact, was inadmissible, where the accused had not placed his reputation in issue.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 843, 845, 1674; Dec. Dig. <S^3S0, 722(2).]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Lee Black was convicted of larceny, and he appeals.
    Reversed and remanded.
    W. H. Pears, of Waxahachie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of some coal alleged to have been stolen.

W. H. Parker testified he was the sole dealer in coal at Milford, Tex.; that Joe Frierson came to him and told him his wife had bought some coal from appellant, and he wanted him to come and look at it; that he did go and look at it, and from its appearance he took it to be New Mexico coal; that there was a little pile, about 25 cents worth. He said he dealt in New Mexico coal, but he had missed no coal, and if any had been stolen from him he was not aware of it. The only facts relied upon by the state to prove that appellant had stolen Parker’s coal were that he had sold some small quantities of coal to Lula Frierson and Eva Hart. Neither they nor any witness for the state knew where appellant got the coal, and in the absence of Mr. Parker missing any coal this testimony is wholly insufficient to prove that appellant had stolen the coal from Mr. Parker. Appellant explained where he got the coal he sold to the women, and there is no testimony contradicting his explanation.

There are other questions raised, but, deeming the testimony wholly insufficient to sustain the verdict, we hardly deem it necessary to discuss them. However, should the state be able to strengthen its case on another trial, it should not seek to inquire into whether or not appellant was unduly intimate with Lula Frierson, nor comment thereon in argument. Appellant admitted he sold the coal to Lula Frierson, and his relations with her would be wholly immaterial on the issue of whether or not he had stolen the coal from Mr. Parker; and as appellant had not placed his reputation in issue, it was not the subject to bo commented on in argument.

The judgment is reversed, and the cause is remanded.
      (gc^jPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    HERNANDEZ v. STATE.
    (No. 3967.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    1. Criminal Law <§=^665(5) — Evidence—Admissibility.
    Since the statute authorizes the introduction of evidence of a material character at any time before conclusion of the arguments, where the defendant did not know of the presence of a material witness in the courtroom, in violation of the rule, and did not know of the testimony which such witness could give, but on discovering it had the witness called, it was error to exclude the testimony offered, which tended to show bias of the prosecuting witness and possible motive in the prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1560-15G2; Dee. Dig. 665(5).]
    2. Witnesses <®=^323 — Impeachment — Motive.
    Evidence that goes to bias, ill feeling, ill will, and motive of a witness is not impeaching evidence, but original testimony of a material character, so that evidence showing motive of the prosecuting witness was admissible, in spite of the testimony of the prosecuting witness that he had no ill feeling against the defendant.
    [Ed. Note — For other cases, soo Witnesses, Cent. Dig. § 1096; Dec. Dig. <⅜=>323.]
    3. Witnesses <®=o323 — Effect oe Recalling-.
    That the defendant recalled the prosecuting witness did not constitute him' defendant’s witness, and his testimony might nevertheless be impeached by defendant’s further evidence.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1096; Dec. Dig. <®=^323.]
    Appeal from District 'Court, Caldwell County; Frank S. Roberts, Judge.
    Sylvestre Hernandez was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    Monroe & Richards, of Lockhart, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law, and allotted one year in the state penitentiary.

After the state had rested its case, and defendant had introduced a part of his testimony, the defendant called the witness David Hernandez, by whom he expected to prove that about a year prior to the beginning of this prosecution the prosecuting witness, Calletano Montegudo, had a difficulty with the defendant, at said prosecuting witness’ house, which ended in hard feeling and unfriendliness between said witness and defendant, and subsequently, about six months prior to the beginning of this prosecution, this same witness had a difficulty with defendant, which ended in a row, and that said prosecuting witness has been unfriendly to and an enemy of defendant ever since that time. The purpose of this testimony was to show a bad motive on the part of the prosecuting witness in his testimony against appellant, and show bad motive also on the part of Jose Foster, brother-in-law of prosecuting witness, in testifying against appellant. Objection was urged by the state, on the ground that the witness had been in the courtroom and had heard other witnesses testify, and had not been under the rule, and upon the ground that said witness’ testimony was immaterial to any issue in the case. These objections were sustained and the witness was not permitted to testify. He would have proved these facts by the witness, had he been permitted to testify, and the bill makes that clear. It will be noticed, so far as the bill is concerned, it does not show as a matter of fact that witness was in the courtroom ; but that is merely stated as a ground of objection. The judge qualifies this bill by stating:

“On page 24, statement of facts, the witness Montegudo was recalled by defendant, and by him proven that said witness and defendant had never had any trouble, and in this respect the proposed testimony of Hernandez would have been impeaching testimony of defendant’s own witness.”

Then follows a copy of the stenographer’s notes in questions and answers by the district attorney and attorney defending, which in substance shows that Mr. Lowrey, the district attorney, said he understood that witness had been in the courtroom. Appellant’s counsel stated he would not testify to anything that occurred at the ball game. Mr. Lowrey then objected to witness testifying to any material issue in the case; he had heard eight or ten other witnesses testify; and that he had been in the courtroom, and not under the rule. Appellant’s counsel replied:

That he did not know he was in the courtroom; that he is a brother of the defendant. “We didn’t have him summoned, and we didn’t know of him being in the courtroom, and he will not testify to anything that occurred out at the ball game, but merely as to this difficulty between the defendant here and this prosecuting witness.”

The district attorney again stated:

“Anything that is not material to the issue in this case I object to.”

The court sustained the objection, and ordered witness to stand aside, whereupon appellant noted this exception:

“We except, your honor, with the understanding that we want to show by this witness that this difficulty did occur at this prosecuting witness’ house, with the defendant and the prosecuting witness, and that this witness was present at the time.”

We think this testimony ought to have been permitted to go to the jury. If, as a matter of fact, the rule had been invoked, which is stated as a ground of objection, and this witness had been in the courtroom, and it became known to defendant that he was there and would testify to the evidence offered, he should have been permitted to do so. The statute authorizes the introduction of evidence of a material character at any time before argument has concluded.

It has been held by all the authorities evidence that goes to the bias, ill feeling, ill will, and motive of a witness is not impeaching, but original testimony, and of a material character. The fact that a witness was in the courtroom may make no difference, if his testimony is of a material character in the due administration of justice. This was not impeaching testimony; it was original testimony, and the fact that the prosecuting witness was called back by the defendant, as shown by the bill, did not constitute him defendant’s witness. It was a matter for the jury to decide, but the motive, ill will, and bad feeling of a witness towards the defendant on trial is not impeaching, but original testimony, as we understand the decisions in Texas. Defendant explains that he did not know the witness was in the courtroom; that he had not had him summoned, and did not know this was a material question in the case; but as soon as he discovered the presence of the witness he sought to elicit the testimony.

There is another bill of exceptions, which is set out at considerable length, deemed unnecessary here to discuss, which embodies a colloquy between court and counsel, and remarks of the court and counsel with reference to certain questions asked the prosecuting witness. This will not occur upon another trial, and is not further discussed.

The other matters we think have been decided adversely to appellant, and it is unnecessary now to go over the questions again.

The judgment, however, will be reversed, and the cause remanded.

      £=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    PATRICK v. PIERCE.
    (No. 2441.)
    (Supreme Court of Texas.
    March 8, 1916.)
    1. Appeal and Eeeoe <0=5512 — Recobd — Tbansokipt.
    The finding by the trial judge on appeal from a justice of the peace that the suit was filed and tried in the justice court and an appeal duly perfected to the county court does not supply the omission of the transcript of the proceedings on appeal to the Court of Civil Appeals, except where, because of some unusual condition, it is not possible or practicable for appellant to obtain such a transcript.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2336; Dee. Dig. <§=>512.]
    2. Appeal and Eeeoe <§=>635(2) — Recoed— Cobbection — Conflict op Rules.
    Under Court of Civil Appeals rule 1 (142 S. W. x), providing that, on receipt of the transcript by the clerk of the court, he shall examine it to determine whether jurisdiction of the court is shown, and, if not, notice to that effect shall be given the attorney of record for the appellant or plaintiff in error, who shall have a reasonable time in which to amend the record, and rule 22, as amended (142 S. W. xii), making it incumbent on the appellant to prepare the transcript in accordance with the rules, the appellant should be notified of the omission of the transcript of proceedings in justice court on an appeal to the county court and given an opportunity to correct the record; the conflict in rules being resolved in favor of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2776, 2829; Dec. Dig. <§=> 635(2).)
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial. District.
    Action between F. Patrick and T. E. Pierce. Heard on certified questions from the Court of Civil Appeals.
    Questions answered.
    Stennis & Wilson, of Weatherford, for plaintiff. Hood & Shadle, of Weatherford, for defendant.
   PHILLIPS, C. J.

The suit originated in the Justice Court, and from the judgment rendered in the County Court an appeal was perfected to the Court of Civil Appeals. There, the judgment was reversed and the cause remanded because of the absence of a transcript of the proceedings in the Justice Court, as required by article 2396, Revised Statutes of 1911, this being necessary, in the opinion of the Court of Civil Appeals, to evidence the jurisdiction of the County Court. In the findings of fact of the trial judge it was recited that the suit was filed and tried in the Justice Court and an appeal duly perfected to the County Court.

A motion for rehearing having been filed, also a motion for writ of certiorari, joined in by both appellant and appellee, for the bringing before the court of a certified copy of the Justice Court transcript, the original of which was alleged to be on file in the County Court, the Court of Civil Appeals has certified, among others, the following questions :

1. Is the finding of fact by the trial judge that the suit -was filed and tried in the Justice Court and an appeal duly perfected to the County Court, a sufficient showing that the County Court acquired appellate jurisdiction?
2. If the above question be answered in the negative, was it erroneous for the Court of Civil Appeals to consider the appeal without first suggesting to the appellant the absence of any showing that the County Court had acquired appellate jurisdiction of the suit, and according to him an opportunity to correct the record ?

In Wells v. Driskell, 105 Tex. 77, 145 S. W. 333, Mr. Justice Dibrell, speaking for the court, recognizes that in cases originating in the Justice Court the established, rule of practice is to require that a transcript of its proceedings be embodied in the record in the Court of Civil Appeals to the end that the jurisdiction of the intermediate court and, therefore, of the Court of Civil Appeals may be affirmatively evidenced; and holds that it must be observed except where, because of some unusual condition, it is not possible or practicable for the appellant to obtain such a transcript for the purposes of the record. Nothing is disclosed here which brings the case within the exception. The finding of the trial judge did not, therefore, supply the omission of the Justice Court transcript; and the first question is so answered.

On the second question, in the then state of the rules for the government of the Courts of Civil Appeals, we think the appellant should have been given an opportunity to perfect the record before it was ruled that the court had no jurisdiction of his appeal. Rule 1 (142 S. W. x) reads:

“The clerks of the Courts of Civil Appeals shall receive the transcripts delivered and sent to them, and receipt for the same if required, but they shall not be required to take a trans-script out of the postoffice, or an express office, unless the postage or charges thereon be fully paid. Upon receipt of the transcript it shall be the duty of the clerk to examine it in order to ascertain whether or not, in case of an appeal, notice of appeal and a proper appeal bond or affidavit in lieu thereof (whore bond is required) have been given; and in case of a writ of error, whether or not the citation in error appears to have been duly served, and error bond or affidavit in lieu thereof (where such bond is required) appears to have been filed. If it seem to him that the appeal or writ of error has not been duly perfected he shall note on the transcript the day of its reception and refer the matter to the court. If, upon such reference, the court shall be of opinion that the transcript shows that the appeal or writ of error has been duly perfected, they shall order the transcript to be filed as of the date of its reception. If not, they shall cause notice of the defect to issue to the attorneys of record of the appellant or plaintiff in error, as the case may be, to the end that they may take steps to amend the record, if it can be done, for doing which a reasonable time shall be allowed. If the transcript does not show the jurisdiction of the court and if after notice it be not amended, the case shall be dismissed.”

By this rule it is plainly provided that upon its receipt the clerk of the Co.urt of Civil Appeals shall examine the transcript for the purpose of seeing whether the jurisdiction of the court is shown; and if it is not, notice to that effect shall be given the attorney of record for the appellant or plaintiff in error, who shall have a reasonable time in which to amend the record, if that can be done, so as to evidence the jurisdiction.

On March 15, 1911, in Houston & Texas Central Railroad Company v. Parker, 104 Tex. 162, 135 S. W. 369, this court, without abrogating or modifying Rule 1, amended Rule 22 (142 S. W. xii), effective on the same day, so as to read as follows:

“A cause will be properly prepared for submission only when a transcript of the record exhibits a cause prepared for appeal in accordance with the rules prescribed tor the government of the district and county courts, and filed in the court under the rules, with briefs of one or of both the parties, in accordance with the rules for the government of the court. All parties will be expected, before submission, to see that the transcript of the record is properly prepared, and the mere failure to observe omissions or inaccuracies therein will not be admitted, after submission, as a reason for correcting the record or obtaining a rehearing.”

This amendment, as stated in the opinion of Associate Justice Ramsey, was for the purpose of meeting the court’s departure in a number of cases from the rule originally announced in Ross v. McGowen, 58 Tex. 603; and under it, when read in connection with the opinion, it is plain that no correction of the record for any purpose is permissible after the submission of the cause.

The judgment of the County Court in the present case was rendered July 28, 1911, at a time, therefore, when both rules were in force. It is evident that the two rules are in conflict. As applied to this case, the appellant, under Rule 1, was entitled to an opportunity to perfect the record so as to evidence the court’s jurisdiction before his appeal was disposed of (Wells v. Driskell) ;• whereas under Amended Rule 22- it was incumbent upon him to discover the omission, and his right to supply it was lost upon the submission of the case.

Under this state of conflict in the rules we think the question should be resolved in favor of the appeal. It is therefore held that the appellant should have been given an opportunity to bring the Justice Court transcript before the court by means of a writ of cer-tiorari before the appeal was acted upon and the cause remanded on account of the jurisdiction of the court not being shown; and the writ should now be allowed.

This determination of the second question renders unnecessary the consideration of the other questions certified.

This is the first occasion we have had to note the conflict between the two rules, and we will relieve it by proper action.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, X

text:
    TEXAS & P. RY. CO. v. McMILLEN et al.

    (No. 520.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 17, 1916.
    Rehearing Denied March 9, 1916.)
    1. Carriebs <&wkey;228 — Carriage of Live Stock — Actions—Evidence.
    ■Testimony as to the condition of horses when received at their destination is admissible in an action for damages for rough handling and undue confinement against a railroad company, which carried the animals only part of their journey, and which limited its liability to carriage on its own line, for in such case the damages must be determined with reference to depreciation in value to the horses at point of destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;228.]
    2. Carriers &wkey;>219 — Carriage oe Live Stock — Actions—Damages.
    In such case, though the defendant railroad company limited its liability to damages occurring on its own line, and though the shipment was an interstate one, it was liable for'damages caused by its negligence, though such damages did not develop until after the animals were delivered to the connecting carrier.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. &wkey;>219.]
    3. Carriers <&wkey;228 — Carriage of Live Stock — Actions—Evidence.
    In such case, evidence that the shipment had a good run after being delivered by defendant to the connecting carrier is admissible, tending to show that the lo^s occurred while the horses were in defendant’s custody.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <&wkey;228.]
    4. Carriers <&wkey;228 — Carriage of Live Stock — Actions—Evidence.
    In an action for damages for injuries to a shipment of live stock conveyed in several cars, where the animals, after delivery to destination, were commingled and the condition of all was about the same evidence of the condition of animals,in a car as to which no written notice of damages was served, though such notice was a condition precedent to recovery, is admissible to show the condition of the animals in the other cars.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dee. Dig. <&wkey;228.]
    5. Appeal and Error <&wkey;882(8) — Waiver of Errors — Evidence.
    Where appellant’s own witness testified as to the condition of the animals in the car, as to which no notice was filed, any error in receiving such evidence was waived.
    [Ed. Note. — Por other cases, see Appeal and Error. Cent. Dig. §§ 3597, ’3598; Dec. Dig. &wkey;882(8).]
    6. Appeal and Error &wkey;»1053 — Beview — Harmless Error — Evidence—Odre by Instructions.
    Where the jury were expressly instructed not to award damages for injuries to the animals in the car as to which no notice of damages was filed, any error in receiving such evidence was harmless.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. &wkey;> 1053.]
    7. Carriers &wkey;>228 — Carriage of Live Stock — Actions—Market Value.
    In an action for injuries to a shipment of horses, evidence of their actual value at the point of destination is admissible, where it did not appear that they had any market value at such point.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;228.]
    8. Appeal and Error <&wkey;1050 — Beview — Harmless Error.
    AVhere the actual value of horses injured in transit was the same as their market value at destination, the erroneous receipt of evidence of their actual value was harmless.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <3&wkey;1050.] .
    9.Limitation of Actions <&wkey;21 — Shipment of Live Stock — Bunning of Statute.
    The four, instead of the two, years’ statute of limitations applies to an action for injuries to a shipment of horses in transit.
    [Ed. Note. — Por other eases, see Limitation of Actions, Cent. Dig. §§ 90-99; Dec. Dig. &wkey;>
    10. Carriers &wkey;>218 — Carriage of Live Stock — Notice of Claim.
    Where a bill of lading required the shippers to serve notice of claim for injuries to live stock, the consignee, though he was part owner of the animals and joined in an action to recover for damages, need not serve such notice; it having been served by the shipper.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <®=u218.]
    11. Carriers <&wkey;>218 — Carriage of Live Stock — Actions—Notice.
    Where a contract for the shipment of live stock required the shipper, as a condition precedent to any right of action for loss or injury to the animals, to serve written notice, setting out in detail a full statement of losses or injuries and the amount thereof, which was for the avowed purpose of enabling the carrier to investigate and settle such claim before suit, the shipper may, in an action for injuries to live stock, recover .damages in excess of the amount claimed in the notice; the notice being merely to afford the carrier an opportunity to investigate.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 674^696, 927, 928, 933-949; Dec. Dig. <®=»218.]
    12. Carriers <&wkey;211 — Carriage of Live Stock — Confinement of Animals.
    The federal acts, declaring that, save under specified circumstances, a shipment of live stock shall not be confined to the cars for more than 28 consecutive hours, did not abrogate the duty of the common carrier to feed, water, and rest the animals as reasonable necessity might require, but merely provided a maxim beyond which stock could not be confined; therefore a carrier cannot justify its act, in confining stock without food and water for an unreasonable period of time, on the ground that it was within the maxim prescribed by statute.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 926-92S; Dec. Dig. &wkey;211.]
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Action by E. D. McMillen and another against the Texas & Pacific Bailway Company. Prom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Bussell & G-illett, of El Paso, and B. S. Thompson, of Dallas, for appellant. Jno. L. Dyer, C. W. Croom, and A. B. Grambling, all of El Paso, and B. P. Barnes, of Albuquerque, N. M., for appellees.

       Application lor writ of error pending in Supreme Court.

   HIGGINS, X

Appellees brought this suit against appellant to recover damages to four carloads of horses, shipped from Silver City, N. M., to Live Oats, Fla., via El Paso, Tex., and New Orleans, La. The shipment moved from Silver City to El Paso over the line of the Atchison, Topeka & Santa Fé Railway Company; thence to New Orleans over the line of appellant; thence over the Seaboard Air Line to Live Oaks. The shipment moved from El Paso to Live Oaks under a separate contract issued by appellant, whereby it agreed to transport the shipment from El Paso to New Orleans, en route to Live Oaks, and which limited its liability to its line of railway, and provided that its part of the contract would be fully performed upon delivery or tender to its next connecting carrier. It was alleged that the shipment was handled roughly by defendant between the stations of Boyce and New Orleans in Louisiana, in consequence whereof the animals were injured; that defendant confined the animals in cars for more than 28 hours without unloading for rest, water, and feed, in consequence whereof they were injured; that in consequence of the injuries so received, from rough handling and confinement for more than 28 hours, 50 of the grown animals and 13 colts died in transit, or when delivered at Fair Oaks, or within a short time thereafter, and 66 head were delivered by the connecting carrier at Fair Oaks in a weakened, emaciated, bruised, and wounded condition. Recovery was sought only of damages alleged to have resulted to the animals by reason of the rough handling while in appellant’s possession and the confinement of them by it in cars for more than 28 hours. The charge of the court so limited the recovery.

Error is first assigned to the admission of testimony showing the condition of the animals upon delivery at Live Oaks by the Seaboard Air Line. The evidence was properly admitted. The contract under which the shipment was made showed its ultimate destination to be Live Oaks, and the measure of damage was controlled by the condition and value of same upon delivery at Live Oaks. The evidence was proper for the purpose of determining the measure and extent of the damage. If goods are marked and known to the carrier to be destined to a point beyond the terminus of its route, and such carrier becomes liable for a loss thereof or damage thereto, the damages will be estimated with reference to the market value at the ultimate destination. 3 Sutherland on Damages (3d Ed.) §§ 918, 932; Railway Co. v. Webb, 20 Tex. Civ. App. 431, 49 S. W. 530; Railway Co. v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 768; Railway Co. v. White, 35 Tex. Civ. App. 521, 80 S. W. 641; Railway Co. v. Stanley, 89 Tex. 43, 33 S. W. 109; Railway Co. v. McCarty, 82 Tex. 608, 18 S. W. 716.

Appellant having accepted the shipment to be delivered to its connecting carrier at New Orleans for transportation, thence to Live Oaks, it became liable for any damages proximately resulting from its negligence, although the loss may not have developed until after the goods were delivered to the connecting carrier, and this is true although the contract between the consignor and the initial carrier provides that such carrier shall be responsible only for losses or injuries occurring on its own lines, and shall be relieved from liability of every kind after the property transported by it has left its line. Railway Co. v. Herring, 24 S. W. 940; Railway Co. v. White, 35 Tex. Civ. App. 521, 80 S. W. 641; Bilby v. Railway Co., 184 Mo. App. 644, 171 S. W. 41; Whitnack v. Railway Co., 82 Neb. 464, 118 N. W. 67, 19 L. R. A. (N. S.) 1011, 130 Am. St. Rep. 692; 4 Ruling Case Law, 332.

The admissibility of the testimony for this purpose is not affected by the fact that it is an interstate shipment, and the contract limited defendant’s liability to damages occurring upon its own line. The damages in question did occur upon appellant’s line, and it is liable therefor. It does not occur to us, that its liability in this respect would be, in any wise, affected by the fact if it was, as appellant contends, an intermediate carrier. However this may be, it appears that the shipment to El Paso from Silver City was an independent transaction, and upon a distinct and separate contract, and under the contract by which the shipment moved from El Paso to Live Oaks, the appellant was the initial carrier, as is shown by the statement of the contract as above made. What is said above disposes likewise of the fifth and ninth assignments.

Under the third assignment, complaint is made of the admission of testimony, showing that the shipment had a good run between New Orleans and Live Oaks. In this there was no error. The evidence showing that the horses were transported only on the lines of the railway belonging to the defendant, from El Paso to New Orleans, and from New Orleans to Live Oaks, Fla., over the Seaboard Air Line, and plaintiffs having predicated the cause of action on account of the negligence of the defendant operating its train beyond Boyce, La., and New Orleans, La., in order to prove that the injuries of said horses were proximately due to the negligence of the defendant while the shipment was in its possession, it was proper to prove that the only other carrier handling the shipment exercised due care and handled same without negligence.

Error is also assigned to the introduction of evidence showing the condition of the animals in Texas & Pacific car No. 5339. The bill of lading covering the shipment contained a clause requiring written notice of any claim for damage to be given in 120 days. No such notice was given as to car No. 5339, and for this reason a demurrer was sustained as to that portion of the petition seeking recovery of damages to the animals in this oar. While it is true the court sustained a demurrer to plaintiff’s petition seeking to recover damages for the injuries to the horses and colts in the Texas & Pacific car No. 5339, yet the evidence showed this car, together with three other cars, was transported by the defendant from El Paso, Tex., to Addis, La.; that thereafter all four cars were delivered to plaintiffs at Live Oaks, Pla. They were there mingled, and, all' horses having been mingled, it was impossible to segregate the horses in the Texas & Pacific car from the horses in the other cars.

Witness Oousland testified that the condition of the horses in all four cars was about the same. 'Various witnesses testified that the class of horses in all four cars were the same, with the exception of the colts ■which were in the Texas & Pacific car. For the purpose of shedding light on the condition of the horses in the remaining three ears, which condition was the same as that in the Texas & Pacific car, it was proper for the court to admit testimony tending to show the general condition of all of the stock without reference to which car transported them. The defendant placed upon the stand its only witness with reference to the condition of the horses and their values when they arrived at Live Oaks, Fla. It proved by the witness McGregor the condition of all the horses, including those in the Texas & Pacific car, as well as the value of all the horses at Live Oaks. Should it be held that the court erred in permitting testimony concerning horses in the Texas & Pacific car, the appellant has waived such' error by going into detail with its witness McGregor as to the condition of all of the horses, including the Texas & Pacific car after it arrived at Live Oaks, Fla.

Furthermore, the court, in its charge to the jury, instructed them to find for the defendant in reference to the horses shipped in the Texas & Pacific car, and also expressly instructed them not to consider any evidence with reference to animals in said car or the cause of injuries to animals in said car. So, if there was error in the admission of this testimony, it was cured by this instruction.

The error, if any, in admitting the testimony relating to the Texas & Pacific car, made the basis of the sixth and seventh assignments, was harmless. Furthermore, it was cured by the instruction just noted above.

The testimony complained of in the eighth assignment is not subject to the objection which was urged against it, as shown by the bill of exception taken to its admission.

The witness was qualified to testify as to the market value of the animals at Live Oaks for which reason the tenth assignment is without merit.

The eleventh assignment complains of the .admission of testimony of the witness Taylor as to the intrinsic value of those animals at Live Oaks which arrived in a badly damaged condition, assuming that there was no market value for them in that condition. Under the evidence, it was doubtful whether the animals had a market value at Live Oaks, and in view of this uncertainty, it would seem proper to admit evidence of their intrinsic value. Railway Co. v. Powers, 54 Tex. Civ. App. 168, 117 S. W. 459; Express Co. v. Lothrop, 20 Tex. Civ. App. 339, 49 S. W. 898; Railway Co. v. Jackson, 99 Tex. 343, 89 S. W. 968.

Furthermore, Taylor testified both as to market and intrinsic value; and, since it was to the effect that the intrinsic value was the same as the market value, it would seem that appellant could not have been injured in any way by his testimony as to intrinsic value.

It is next assigned that the court erred in permitting plaintiffs to make R. H. Boulware a party plaintiff to this suit, over the objection of defendant, for the reason that the right of the said Boulware to recover damages in and to the property involved in this suit was barred by the statute of limitations of two years; and for the further reason that if the said Boulware was a necessary party to this suit, and had an interest in the horses at the time the same were shipped, then it was incumbent upon him to file his claim for damages to the said horses within the period of 120 days after their arrival at the point of destination, as provided for in the special contract of shipment under which the said horses were carried, and having failed to file such a claim, Boulware was precluded from recovering any damages by the terms of the contract of shipment.

As to the issue of limitation it has been held that in actions such as this, the four, and not the two, years’ statute of limitation is applicable. Elder, etc., v. Railway Co., 105 Tex. 628, 154 S. W. 975. Other reasons might f)e mentioned in connection with this phase of the assignment, but it is unnecessary to do so, as the cited case forecloses the question against appellant.

Neither is there any merit in the contention that it was necessary for Boulware to file a notice with defendant of his claim for damage within 120 days after arrival of shipment at its destination. The contracts required the shippers to give the notice. A. S. Cousland was the shipper named in one of the contracts, and E. D. MeMillen was so named in the other. Notices given by such shippers were all that was required.

In the notice given defendant, the amount claimed was $2,000. The verdict and judgment is for $3,250, with Interest from January 1, 1912. Complaint is made of the refusal of an instruction limiting recovery to $2,000. The clause in the contract requiring notice is as follows:

“It is further agreed that as a condition ■precedent to any right of action for damages for .loss or injury to said stock, or for delay in transporting same, or decline on the market, the ■said shipper will give notice in writing to the •carrier, setting out in detail a full statement of the losses, injuries, delays arid decline in market, :fo’r which damages are claimed, and the amount thereof, within one hundred twenty days after ■same shall have been occasioned, which notice •shall be given to some traffic officer, station agent or other convenient local agent of the •carrier, and the filing of suit for such damages shall not be a compliance with this requirement. 'The purpose of requiring this notice is to enable the carrier to investigate and settle such claims before suit is instituted, and no action for any such damages shall be brought or maintained, unless the notice in writing mentioned in this paragraph be given within said one hundred and twenty days.”

The object of the provision in bills of lading requiring notice to the railroad when stock have been injured is to afford the railroad an opportunity to investigate the fact •of injuries as well as the extent of damages, if any, that has been sustained by the shipper. When a notice is sufficient in terms to advise the railroad company of any injury, then the railroad company can use its facilities in ascertaining and investigating the character of damages sustained, the cause of damage, and the extent of the damage. Appellant can claim no rights growing out of its bill of lading in reference to notice other than as contained in said paragraph of contract providing:

“The purpose in requiring this notice is to enable the carrier to investigate and settle such claims before suit is instituted”

—and when the notice above set forth wa's given by McMillen and Oousland, the evident purpose of this provision in the contract was carried out and satisfied. When they received that notice they had ample information which would enable them to investigate and settle the claim before suit was instituted, had they been inclined so to do. This question was before the court in Railway Company v. Holmes, 177 S. W. 507, where it is said:

“The fact that the claim filed with the notice of damages, with appellant, is not as large as the amount sued for, would not defeat his right to sue because no notice was given. The notice was given, but the claim for damages was less than sued for. Appellees were not confined to any special amount by the contract, but it required notice in order that appellant might investigate before the witnesses or evidence were beyond its reach.”

The special instruction was properly refused for the reasons indicated,

The fifth paragraph of the court’s charge reads:

“By the contract of shipment, plaintiffs agreed to feed and water the horses, in this suit, and it was their duty to do so, and not the duty of the defendant, and if the defendant gave the plaintiffs a reasonable and proper opportunity to water, and feed the horses, after they were received by defendant, defendant would not be liable for any failure to feed and water them; but if the defendant negligently failed to give or furnish reasonable and proper opportunity for feeding and watering the horses, and if on that account the plaintiffs were unable to feed and water the horses for an unreasonable length of time, under all the circumstances of this case, and if thereby the horses were injured, as alleged by plaintiffs, the defendant would be liable for such injury.”

Error is assigned to this portion of the charge, based upon this proposition:

“This suit being based upon an interstate shipment of horses, the liability of defendant is controlled by the provisions of the federal laws, and thereunder defendant was permitted to confine said horses in its cars for the period of 28 consecutive hours, and the reasonableness or the unreasonableness of so doing was not a question to be determined by the jury.”

We do not understand the law to be as contended. Upon the contrary, the correct rule is that the federal statute does not change the common-law duty of the carrier ■with respect to live stock except to place a time limit within which such stock shall be watered, fed, and rested, unless prevented by certain contingencies. At common law, it was the duty of carriers transporting live stock for long distances to feed, water, and rest them as reasonable necessity required. The statute only makes certain when and where such common-law duty shall be exercised. The object of the statute being to prohibit the confinement of animals longer than the time specified, it is not to be construed a's a grant of privilege to the carrier, authorizing it to confine stock for the length of time therein specified, irrespective of the question of negligence in so doing. 4 Ruling Case Law, p. 985; Railway Co. v. Ivy, 79 Tex. 444, 15 S. W. 692. Under this view of the law, this paragraph of the charge cannot be considered as conflicting with paragraph 6' thereof.

Affirmed.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes