author: JENKINS, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. FRELES.
    (No. 5297.)
    (Court of Civil Appeals of Texas. Austin.
    March 4, 1914.
    Rehearing Denied April 15, 1914.)
    1. Master and Servant (§ 180) — Liability eor Injuries — Negligence of Vice Principal.
    Under Rev. St. 1911, art. 6641, providing that all persons engaged in the service of a railroad company intrusted with the authority to direct any other employs in the performance of any duty are vice principals and not fellow servants with their coemployes, a railroad company’s foreman having authority to direct a boiler maker to assist in moving a boiler in the roundhouse was a vice principal.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.]
    2. Negligence (§ 1) — Acts or Omissions Constituting — “Actionable Negligence.”
    To constitute “actionable negligence” the act done or omitted must be one which a person of ordinary prudence would not have done or omitted and from which it ought reasonably to have been anticipated that injury would result.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 1, pp. 148, 149; vol. 8, p. 7563.]
    3. Master and Servant (§ 125) — Liability for Injuries — Unanticipated Dangers.
    A master’s ignorance of the probable danger from an act or omission is not necessarily an excuse, as it is his duty to know what he could learn by exercising such diligence as the circumstances reasonably demand.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    4. Master and Servant (§ 125) — Liability for Injuries — Unanticipated Dangers.
    Where an employer did not know of a danger and could not reasonably have discovered it by the exercise of such diligence as the, circumstances reasonably demanded, he is not liable for an unforeseen injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    5. Master and Servant (§ 97) — Liability for Injuries — Unanticipated Dancers.
    Plaintiff, an expert boiler maker and repairer, was directed to and did prepare a boiler for moving; the only practical method of moving it being by rolling it. While assisting in rolling it rapidly over soft ground covered by cinders by direction of the foreman, _ his glove caught in one of the studs of the boiler, a bolt projecting at least three-fourths of an inch, thereby throwing him over the boiler and in front of it resulting in injuries. Held, that the injuries were due to an inevitable accident, and not to the employer’s negligence, since the foreman owed no duty to plaintiff to inspect the boiler, and,- even had he inspected it and discovered the bolt, he was not as an ordinarily pi'udent man required to anticipate danger therefrom, especially as no superior or technical knowledge or experience was required to know whether or not there was danger, and plaintiff therefore was as capable of estimating the danger as the foreman.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by W. C. Freles against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. John Love joy and Presley K. Ewing, both of Houston, and J. D. Williamson, of Waco, for appellee.

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

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

   Findings of Fact.

JENKINS, J.

1. Appellee was a boiler maker and repairer, and was engaged in that business as an employé of appellant. Appellant’s foreman ordered appellee to dismantle an upright boiler, which had theretofore been in use by appellant for the purpose of moving the same out of the way. Appellee testified: “In order to dismount it there was a bunch of pipes and several different things on it that had to be taken off; the fire door, the injector, and I don’t know what all there was on it. I undertook to disconnect every piece of iron or pipe or anything of that kind that was attached to the boiler, and undertook to disconnect it before I took it down from its place. I undertook to disconnect all of the pipes and pieces of machinery of every kind that was attached to the boiler in any way that would prevent rolling, take it loose from it before we began to mov'e the boiler. We took everything from it that would prevent rolling.”

2. As thus prepared for being moved, the boiler consisted of a round piece of steel or casting, 10 or 15 feet long and about feet in diameter, weighing'about four tons. Appellant’s foreman ordered appellee and ten other employes to move this boiler to the place where it was intended to leave it, some 10 or 12 feet beyond the turntable; this space was covered with cinders. The boiler was turned onto its side, rolled on the iron rails leading to the turntable, a distance of about 125 feet. The turntable was turned so that its side upon, which was the boiler was next to the cinders, and the foreman then gave orders, the intent of which was that the employés should roll the boiler off of the turntable and across the cinders, to the place where it was to be deposited. There was a bolt, about % of an inch in diameter, and extending out of the boiler about 2y2 inches. This bolt caught in appellee’s leather glove, and jerked him over the boiler and in front of it. The boiler rolled upon and injured him as alleged in his petition. He recovered judgment for -$10,000 damages. It is not contended by appellant that the damages are excessive.

3. Appellee alleged: “That it was desired by defendant to remove a certain boiler, upright when in position, but which had then been taken down, out of the roundhouse, in which roundhouse there was a turntable probably 60 feet or more long, the boiler being about 10 feet long and about 4% feet in diameter, and weighing about 4 tons. That said Miller (appellant’s foreman) in the course of his authority for defendant of superintendence, control, and direction as aforesaid, then and there commanded, ordered, and directed plaintiff and his co-workmen, being ten in number, to move said boiler out. of said roundhouse, first onto the turntable, and, after turning the turntable so as to avoid rolling the boiler across the rails (which could not be done), then to roll it over cindered or soft ground to the place at which it was intended to be put, outside of the roundhouse, so as to get it out of the way. That after the men had rolled said boiler onto the turntable and it was ready to be moved off the turntable, or about that time, Miller then and there commanded, ordered, and directed the men, including plaintiff, in substance to apply all their strength to the movement of such boiler, so that it would have velocity enough to cross-the soft ground over which it had to pass, saying in substance, if not in exact words, ‘Boys, get her to going good and hard, so that we can get her across that soft ground,’ and after same had started, saying in like manner again: ‘Give it to her boys! Come on with her!’ That pursuant and in obedience to said commands, directions, and orders so-given, the men pushed the boiler as hard as they could, the ten of them with great velocity, at and about which time, being within a few seconds after obedience to such requirement so begun, plaintiff’s glove or sleeve caught in one of the studs of the boiler, being a bolt with threads on it, projecting about % of an inch, and probably about 2% inches thick, whereby he was thrown over the boiler, it moving with great velocity as aforesaid, and fell on his head and right hip and other parts of his body, and the boiler rolled over his arm and his head and body down to the lower part of his breast plate, before it could be stopped, by means whereof he was caused to suffer serious and permanent injuries.”

The evidence sustains these allegations. Appellee further alleged:

"That plaintiff is informed and believes, and so states, that the usual and proper method to have pursued in the moving of said boiler, which was entirely practicable, was to put planks down over the soft earth, which planks were there available for the purpose, so as to avoid the great velocity so directed to be applied to said boiler, as aforesaid, and to this method no objection could be urged except that it would take a little more time.

5. “That the defendant, by its said agent, Miller, was negligent towards plaintiff in giving aforesaid orders, and each of them for the moving of said boiler, and in adopting the method he did in moving same, and in not adopting said usual and proper method of moving the same, and such negligence was a proximate cause of aforesaid injuries to plaintiff, without which same would not have happened.

6. “That plaintiff’s regular and usual work was that of a boiler maker, as aforesaid, but he was under duty by his employment to do whatever he might be told to do by his said superior, Miller, or suffer discharge, although outside of his regular and usual employment ; and thereof said defendant, through said Miller, knew.

7. “That plaintiff had previously aided in the moving of boilers for short distances by other methods, and he had rolled smaller boilers; but he was inexperienced in boiler moving by the method adopted on the occasion in question, and he had never before taken part in the moving of a boiler that way. That he was called upon to act in a few seconds when said orders were given, and obeyed the same without time for forethought or calculation, wearing his gloves and sleeves as he was accustomed to do, and as it was necessary for him to do in his work, to avoid hot engines, etc., and as he and others similarly engaged always did, and the danger of doing the work in which he shared at the time of said casualty was, under the circumstances of his environment at the time, not so glaring or obvious to him, particularly in view of his inexperience, that a man of ordinary prudence would have declined and suffered discharge, which would have been the penalty.

8. “That the method pursued on the occasion in question, of moving said boilers, was not reasonably safe, but threatened dangers in many ways or directions, so that the defendant by its said agent, in pursuing that method, might -reasonably have anticipated or foreseen injury of some sort to employes engaged thereat, as a natural and probable consequence, or as likely to ensue.”

9.It will thus be seen that the alleged grounds of negligence were: (a) That appellee was inexperienced in moving boilers by the method attempted; (b) that the danger was unknown to him, and under the circumstances was not obvious to him; (c) that the method used in moving the boiler was not the usual method; (d) that it was not a proper or safe method; and (e) that appellant’s agent was negligent in giving the haste orders.

(a) As to appellee’s experience, he testified: “I never in my life moved a boiler that way before. My general employment was boiler maker. I had never had any experience in moving a boiler that way.” This testimony was not contradicted.

(b) The evidence sustains the allegation that the danger was unknown to him, and that it was not obvious to him.

(c) There was no testimony that the method adopted was not the usual method. The only evidence on this point was that of the foreman, who testified: “I had assisted in moving several boilers before this one. All of the boilers that I have ever seen moved and helped to move were just rolled right on the ground. Rolled them anywhere we wanted to; you can roll a round boiler on the ground.”

(d) As to the method employed being a safe one (apparent safety) appellee testified: “I knew we were going to shove it over those cinders after we got started. * * * I did not have any idea or the least suspicion in the world that I was likely to have an accident, or there was any danger to me by reason of rolling that boiler fast. I never had time to think of it. It didn’t occur to me at all until I was whirling over the boiler.” Appellant’s foreman testified: “It did not at any time before the injury occur to my mind that it was at all likely or probable that a man might be thrown over the boiler, and the boiler run over him. » * * That there was the slightest danger of any one connected with the handling of the boiler getting hurt in any way.” No one testified that the danger was apparent or suspected. As to there being a safer method, appellant’s foreman testified: “If I had put a plank down over the cinders and had ordered the boiler rolled over the plank; the cinders would not have given way so much. I think we'could have rolled it along over the planks very much like we rolled it over the rails. That would have been a slow way of doing it. Tes, it is reasonable that we could have stopped the boiler, if for any reason it had been necessary, if we had been rolling it slow. There wasn’t any particular rush about moving that boiler off. * * * If planks had been placed on those cinders and elevated as high as the edge of the pit, and the boiler had been rolled over slowly, it would not have been as likely to hurt any one.” This testimony was not contradicted.

(e) Appellant’s foreman gave the haste order, as alleged by appellee.

10. Appellant alleged contributory negligence on the part of appellee in wearing leather gloves, while assisting in moving the boiler. The evidence does not show that ap-pellee was guilty of negligence in so doing.

11. Appellant’s foreman, Miller, had authority to direct appellee to assist in moving the boiler m the manner in which he undertook to move it, and therefore, under R. S. art. 6641, was the vice principal of appellee.

Opinion.

In view of the disposition which we make of this case, i.t is unnecessary for us to pass upon any of appellant’s assignments of error, except the first, which is as follows: “The court erred in refusing to give to the jury defendant’s special charge No. 1, as follows: ‘Gentlemen of the jury, you are charged that the plaintiff having failed to show any act or combination of acts sufficient to constitute negligence upon the part of the defendant railway company, acting through its foreman, you will therefore return a verdict for the defendant.’ ”

In our opinion, appellee’s injuries were received through inevitable accident, and that the facts as above stated fail, as a matter of law, to show negligence on the part of appellant, for which reason we sustain said assignment. By “negligence” as is here used we mean culpable negligence. It is not the doing of every act which results in injury to another, or the failure to do everything that could have been done to avert such injury, that is negligence in a legal sense. . To constitute negligence the act must be one which a person of ordinary prudence would not have done, or would not have omitted to do, as the case may be; and from which act or omission it ought teasonably to have been anticipated that injury would result. Ignorance of the master as to the probable danger is not necessarily an excuse, for it is his duty to know whatever he could have learned by the exercise of such diligence as the circumstances reasonably demanded of him. But when he does not know of. the danger and could not reasonably have discovered the same by the exercise of such diligence, and an unforeseen injury occurs, it is not by his negligence, but upon pure accident.

We do not think that it can be said, generally speaking, that rolling an iron cylinder 10 or 15 feet long and 4% feet in diameter, on a turntable and over ground covered with cinders, is a dangerous business. What fact was known to appellant’s foreman, or could have been known to him by the exercise of ordinary diligence, that rendered such act dangerous in this case? Was it his duty to inspect the boiler?' As to the other ten employés, perhaps so; but as to appellee, who was an expert boiler maker and repairer, and who had been instructed to prepare the boiler to be moved, and who must have known that it was to be rolled, as that was the only practical method of moving it, did not the foreman have the right to presume that appellee had removed everything that would interfere with safely rolling the boiler to the place where it was to be deposited? Had the foreman inspected the boiler ever so carefully, would he have discovered anything to suggest to the mind of a reasonable man that some of the employés might be injured in rolling the boiler? He might have discovered the. bolt. Would that have suggested danger? Evidently the ap-pellee knew that the bolt was there. He testified that it did not suggest any danger to his mind. Presumably he was a man of ordinary prudence. It is not always true that the master will not be responsible where the facts are equally as well known to the servant as to him, for, in some instances, though the servant knows the facts, he may not realize the danger which the master, by reason of his superior knowledge, ought to apprehend. But in the instant ease it required no superior or technical knowledge or experience in .rolling boilers to know whether or not there was danger in rolling this particular boiler in the manner and under the circumstances that it was rolled. It does not appear that the foreman knew that appellee was wearing his gloves. That fact was known to appellee, and he did not anticipate any danger therefrom; nor do we think as an ordinarily prudent man he was required to do so. If the danger was apparent, we do not see how appellee could escape the contention of appellant that he was guilty of contributory negligence, he being in possession of all the facts, and as capable of estimating the dangers as was the foreman. We do not think that the injury was the result of negligence upon the part of either the foreman or of the appellee. Of course, if there had been no bolt on the boiler, and if the foreman had not ordered it to be rolled rapidly, and if appellee had not had on gloves, the injury would not have occurred in the manner that it did. But, as said in Nolan' v. Shickle, 3 Mo. App. 300, “probably scarcely- a mishap occurs where the wisdom which comes after the event cannot suggest some expedient by which, through the exercise of more abundant caution, the accident might not have been prevented.”

For the reasons stated, the judgment of the trial court is reversed, and here rendered for appellant.

Reversed and rendered.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    THE HOMESTEADERS v. BRIGGS.

    (Court of Civil Appeals of Texas. Dallas.
    April 11, 1914.)
    INSURANCE (§ 723) — Mutual Benefit Insurance — Warranties — Statements as to Health.
    Where the application for mutual benefit insurance warranted that the answers concerning the health of the applicant were proper, that the truth thereof should be a condition precedent to the contract, and that the certificate issued thereon should be void if the answers were untrue or evasive, and the certificate contained a warranty of good health and made the application a part thereof, the answers relating to the applicant’s health were warranties, and if they were untrue the beneficiary cannot recover on the certificate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.]
    Appeal from District Court, Limestone County; H. B. Daviss, Judge.
    Action by S. S. Briggs against The Homesteaders. Judgment for the plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Locke & Locke, of Dallas, for appellant.

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

       Application for writ of error pending in Supreme Court.

   RAINEY, C. J.

Simeon Singleton Briggs sued The Homesteaders to recover on a certificate insuring the life of appellee’s wife, Angie O. Briggs, for his benefit. The order defended on the ground that various misstatements were made in the application for the certificate by Mrs. Briggs, as to her physical condition, etc. The trial resulted in a verdict and judgment in favor of appel-lee, from which this appeal is taken.

The defendant requested a charge to the effect that under the evidence the plaintiff was not entitled to recover and the jury should find for defendant.

In the written application for insurance made by Mrs. Briggs, she made statements in answer to certain interrogatories as follows :

“1. A. Are you in strong, robust health and free from disease? Yes. B. How long have you been so? Most life. * * *
“3. * * * B. Has any physician ever giyen an unfavorable opinion of your physical condition with reference to life insurance or otherwise? No. (Who and when?) No. * * *
"5. Have you now or have you ever had any of the following diseases or symptoms? (The examining physician will require the person being examined to answer the following separately and explain the meaning of the terms used so that the answers may be true and correct.) A. * * * bronchitis, * * * chronic cough, consumption, la grippe, • * * * pneumonia, spitting blood, or any other disease of the throat or lungs? No. * * * e. * * * Shortness of breath? * * * No. * * * G. * * * malaria, * * * or any disease not mentioned? No. I
“6. Have you consulted or been under the care of a physician any time within the past ten years? Yes. (Explain fully, giving cause of illness, dates and names and addresses of all physicians consulted.) Dr. Herring, Mexia, Texas. If any of the above have been answered ‘yes’ please explain fully in the following form:
“13. Is there any fact relating to your physical condition, personal or family history or habits which has not been stated in the answers to the foregoing questions and with which the society ought to be made acquainted? No.
“14. Have you reviewed each and all of the above questions and answers to the same, and are you sure they are correct? Yes.”

The application signed by Mrs. Briggs also stipulates: “I declare and warrant that ,* * * the above statements, together with the statements and answers made, or to be made, by me in other parts of this application are literally true. I further agree that any untrue statement or answer, or any concealment of facts, intentional or otherwise, in this application (including the succeeding parts hereof) * * * shall forfeit the rights of myself and my beneficiary, or beneficiaries, to any and all benefits to be derived from my membership in said society. I do hereby declare and warrant that the above are fair and true answers to the foregoing questions and agree that the truth of the answers to the said questions shall be a condition precedent to any contract or certificate issued upon the faith of said questions and answers; and it is acknowledged and agreed by the undersigned that this application shall form a part of my contract with this society and that if there be, in any of the answers herein made, any untrue or evasive statements or any "misrepresentations or concealment of facts, then any certificate granted hereon or membership obtained in this society shall become null and void and all payments made by me or for me on account of said membership shall be forfeited to the society. I further agree that * * * if any answer or statement made in this application * * * is not literally true, * * * then any- benefit certificate issued on this application * * * shall become immediately void and of no effect, and all money paid thereon shall be forfeited to said society.”

The benefit certificate contains the following provision: “I hereby warrant that I am in good health and that no change has occurred in any condition or respect as set forth in my application, which application is made a part of this certificate and I accept this benefit certificate and agree to all the conditions therein contained, and I also understand and agree that the constitution and by-laws of the society as the same now are or ruay be hereafter enacted, together with the application and this certificate, shall constitute my contract with this society.”

The evidence shows that Mrs. Briggs at the time of signing the application for insurance was not in strong, robust health, but that she was delicate and sickly. In the application when questioned as to havin'g certain diseases, among them, pneumonia, and a cough, she answered, “No,” when in fact the evidence conclusively shows that she had a hacking cough and had had pneumonia several times. In answer to the question if she had been under the care of a physician in the last ten years and if the recovery was complete, she answered that she had pneumonia in 1906, and that recovery was complete, when the evidence shows that she had a spell of pneumonia in 1909, and was seriously ill, and after which she gradually drifted into consumptión, from which she died in November, 1910. The evidence also' shows that if she had answered said questions truthfully it would have shown her physical condition such as that she could not have procured insurance.

The answers of Mrs. Briggs relating to her health were material to the risk and constituted warranties, and, said answers being untrue, the appellee has no right to recover. Insurance Co. v. Pinson, 94 Tex. 553, 63 S. W. 531; Sup. Lodge v. Payne, 101 Tex. 449, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277.

The judgment is reversed, and judgment is here rendered for appellant.


author: RICE, J.

text:
    BIXLER v. RINN.
    (No. 5317.)
    (Court of Civil Appeals of Texas. Austin.
    March 18, 1914.)
    1. Sales (§ 53) — Actions by Seller — Evidence — Fraud.
    In an action for the purchase price of a stock of jewelry, evidence held insufficient to take to the jury the question of fraudulent misrepresentations by the seller as to the quality of the jewelry.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. § 53.]
    2. Appeal and Error (§ 1175) — Disposition oe Case — Rendering Judgment — Insufficient Defense.
    Where plaintiff proved his case in the lower court, and the defendant failed to establish any defense whatever, so that plaintiff was entitled to a directed verdict, judgment will be rendered for plaintiff in the Court of Appeals on appeal from a judgment for the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Action by Miles F. Bixler against P. W. Rinn. From a judgment in the county court upon appeal from a justice of the peace in favor of the defendant, plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    Sam D. Ware, of Belton, for appellant. M. E. Monteith, of Belton, for appellee.

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

   RICE, J.

This suit was brought by appellant originally in the justice court, to recover the purchase price of certain jewelry sold by him to appellee, wherein he recovered judgment, but on appeal to the county court judgment went in favor of appellee, from which this appeal is taken.

It appears from the evidence that on October 30, 1911, appellee signed a written order for said jewelry, which was accepted by appellant, which described the character, kind, and quality thereof, containing a stipulation that delivery to the carrier constituted a delivery to him, agreeing to pay freight charges thereon. It also contained a stipulation to the effect that the order was not subject to countermand. Later the goods of the kind, character, and quality mentioned therein were delivered to the carrier, and went forward in due course to appellee. Upon their arrival at his station he, without opening them, returned same to appellant by the same carrier, with a statement to the effect that he was unable to pay for them, and could not procure insurance on his store, and therefore would not take them out. Appellant refused to receive them, but finally, to prevent their sale for freight charges, paid the same, notifying appellee that he would hold them subject to his.order.

After a general demurrer and general denial, appellee sought to rescind the sale, chiefly on the ground of fraud, alleging that he was induced to sign said written order or contract for the goods by reason of false representations on the part of plaintiff’s agent, to the effect that said goods set out therein were merchantable jewelry of the quality capable of being sold to appellee’s customers, when as a matter of fact they were mere sham jewelry, trinkets, or junk of quality not capable of being sold to his customers, which representations, were alleged to be material and false, were known to be such to plaintiff’s agent at the time they were made, and that if he (appellee) had known that said representations were false, he would not have signed said instrument; further, that it was agreed between him and* said agent taking said order that he should not receive said goods unless he could obtain insurance on his stock of merchandise; and that, after making diligent effort to obtain insurance, he failed to procure same, and on account of such failure the contract was vitiated. There was absolutely no evidence to sustain the allegation of fraud; but, on the contrary, it appeared that the goods shipped conformed in every respect to those ordered; and by evidence offered in ap-pellee’s behalf- it appeared that they were merchantable and could be sold, while an expert witness in behalf of appellant testified that if the company shipped the class of goods described in the order (about which there was no controversy), it was a remarkable bargain. The defendant did not even open the goods, much less offer them for sale, and therefore it was impossible for him to have shown that they could not have been sold to his customers. Under the contract a delivery to the carrier was in law a delivery to appellee. See Specialty Furniture Co. v. Kingsbury, 60 S. W. 1030.

We sustain the first assignment, urging that the court erred in submitting the issue of fraud to the jury. The court likewise gave a charge to find in favor of defendant if they believed that the jewelry was purchased on condition that he could get insurance on his stock of merchandise, which he failed to procure. It is unnecessary, however, to discuss this feature of the ease, since appellee confesses that such charge was error. This, therefore, left appellee without any defense whatever. The plaintiff, having proved his case, was entitled to judgment, and the court erred in not instructing a verdict in his behalf, for which reason judgment is now here rendered for him.

Reversed and rendered.


author: RASBURY, J.

text:
    HAMILTON v. GREEN.
    (No. 7056.)
    (Court of Civil Appeals of Texas. Dallas.
    April 4, 1914.
    Rehearing Denied April 25, 1914.)
    1. Limitation of Actions (§ 19) — Equitable Actions — Reformation of INSTRUMENTS.
    An answer seeking affirmative relief, which was indorsed as directed for suits in trespass to try title, and which alleged that the land in controversy had been partitioned by agreement between the heirs of a former owner, but that, by mistake, the deed to plaintiff’s grantor had included more land than was agreed upon and that defendant received less than he should, and that the plaintiff’s grantor had agreed to a repartition, of which fact plaintiff had knowledge, shows merely an equity to reform the'partition deed, and not title to the land, and therefore was, within the contemplation of the statute of limitation, a suit for the reformation of a deed, which was barred in four years by Rev. St. 1911, art. 5690, and not a suit to recover the shortage in land.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73-S5; Dec. Dig. § 19]
    2. Trespass to Try Title (§ 32) — Action-Title.
    The facts alleged did not support a suit in trespass to try title; since, if true, they did not amount to an allegation of title.
    [Ed. Note. — For other cases, see Trespass to Try ^ Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32 ]
    3. Limitation of Actions (§ 170) — Effect on Other Remedy.
    While a suit to reform a deed and one in trespass to try title may be determined in one proceeding, yet if the title depends upon the reformation of the deed, and the right to such reformation is barred by the statute of limitations, the right to proceed with the suit in trespass to try title also fails.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 656; Dee. Dig. § 170.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by W. J. Green against J. P. Hamilton. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Callicutt & Call and Jack & Jack, all of Corsicana, for appellant. Woods & Kerr, of Corsicana, for appellee.

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

   RASBURY, J.

Appellee sued appellant in the court below, alleging that appellant was interfering with appellee and his tenants in the possession, use, and enjoyment of certain lands in Navarro county, of which he was the owner in fee simple. Injunction restraining appellant from his alleged unlawful acts pending a trial was sought, with prayer that it be made perpetual upen a hearing on the merits. Temporary writ of injunction was issued as prayed. No motion was made to dissolve same, and the case remained on the docket in the condition stated for probably two years, when appellant filed answer seeking affirmative relief, wherein it was alleged that the lands described in appellee’s petition were a portion of the lands which' descended to the heirs of Jesse L. Hamilton according to the law of descent and distribution. The answer, which was also indorsed as directed for suits in trespass.to try title, then alleged as basis for the relief, sought the following facts: When Jesse L. Hamilton died, those entitled to his estate believed one of the tracts of land owned by him contained 199% acres. This tract, by agreement of all concerned, was set aside to appellant and Lola Beauchamp, son and daughter, respectively, of Jesse L. Hamilton; Lola Beauchamp to have 72 acres thereof, and appellant the remaining 127% acres. Lola Beauchamp’s 72 acres were surveyed and set off to her; appellant taking the balance, supposing it to contain 127% acres. As a matter of fact, the tract contained approximately 30 acres less than supposed, due to the error or mistake of a third person to whom the parties referred the division of the land and the preparation of the deeds of partition ; the result being that Lola Beauchamp received more land out of said tract than she was entitled to, based upon the proportion or ratio indicated by the figures stated. Appellant, after discovering the mistake, the date of which discovery is not shown, demanded of his sister, Lola Beauchamp, a resurvey and repartition of the land and a correction of the deed. She agreed to do so, but, in fact, did not. She subsequently died, and those entitled to do so sold the land to appellee. Appellee had notice of the facts alleged, and, after his purchase, agreed to repartition the land and correct the deed. The prayer of appellant was, in substance, that evidence be heard, the land ordered resurveyed and repartitioned, and the deed from the appellant to Lola Beauchamp and the one from Lola Beauchamp’s heirs to appellee be corrected so as to conform to the agreement of repartition between appellant and his sister.

Appellee, in his reply to appellant’s answer seeking a resurvey and repartition of the land' and a correction of the deed, set out as defensive matter the following facts: The heirs of Jesse L. Hamilton did, in fact, partition the land in controversy in the year 1896, and made deed to Lola Beauchamp, née Hamilton, therefor, appellant joining in same, said deed being recorded in Navarro county January 11, 1897. Mrs. Beauchamp went into visible, actual, and complete possession of the lands upon execution of the deed, fenced it from the other portion of the tract, continuing such possession until her death in 1900. After her death her husband and her children continued such possession until May 18,1907, at which time her husband, Joe E. Beauchamp, who had acquired the land by purchase from his children for valuable consideration, conveyed same to appel-lee by general warranty deed, which deed was, on May 22, 1907, recorded in Navarro county. Appellee purchased the land in good faith for value, without notice, actual or constructive, of any fact concerning any mistake relating to the quantity of land received by Lola Beauchamp or her right under the partition to hold the amount described in her deed. Appellant did not give appellee notice of any such claim, nor did appellant at any time agree to a resurvey and repartition thereof, nor' did appellant make any .claim of mistake in the partition of the land or ask or demand a repartition thereof, or make any claim to any of the land held by ap-pellee on account of such mistake, until January 1, 1911.

Other facts supporting other rights and defenses were urged by both parties, but it is unnecessary, as indicated, to particularize them in order to determine the issue presented.

There was a trial before jury. Verdict was for appellee, followed by judgment quiet-' ing appellee in the permanent and undisturbed possession, use, and enjoyment of his premises, and making the temporary writ of injunction permanent.

On demand of appellee, and on the theory that the suit was one to correct a mistake in a deed and reform the same, and not for the recovery of lands, the court instructed the jury that, depending upon their finding upon certain conflicting facts, the cause of action would be barred, because not commenced and prosecuted within four years from the time of the accrual of the right to sue. Article 5690, R. S. 1911. It is contended by appellant that the charge should not have been given, because it appears from the pleading that the purpose of the suit was to recover lands by suit in trespass to try title. The contention is, in our opinion, unsound. The case made by appellant is that he and his sister were mistaken in the number of acres contained in the tract of land which they divided between them, and that, as a result, his sister got more land than she should have received. If appellant’s sister did, in fact, receive more land in the division than she was entitled to, the result, in law, was that, as between themselves, appellant had an equitable interest, not title, in the land deeded to his sister, in the ratio of whatever the shortage was shown to be bore to the basis upon which they had agreed to divide. His interest was but an equity, capable of being ascertained and enforced only by a direct proceeding to set aside the deed or correct it upon proper pleading and evidence, and was not, in contemplation of the statutes of limitation, a suit to recover land. McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315.

Further, the facts alleged by appellant will not support an action of trespass to try title, for the reason that such allegations, if true, do not constitute title, a necessary ingredient in such suits. As said in Gilmore et al. v. O’Neil et al., 139 S. W. 1162: “Until a court of equity had acted upon the pleading and facts, and granted a correction of the instrument to make it read as was intended by the parties, he had no title by virtue of it that he could use as a defense.” In short, until it was ascertained, by a hearing upon the very facts urged by appellant in his amended answer, that there was a mistake in the deed and a correction or reformation of the same had, suit in trespass to try title could not be maintained, and hence the four-year statute was applicable, and, the jury having found against appellant on all conflicts relating to notice, etc., a finding under said statute should be sustained.

We do not mean to say that a suit to cancel or correct deed and one in trespass to try title may not be determined in one proceeding. We think it can. Before the land may be recovered in such proceeding, however, the correction or reformation of the deed is an essential preliminary step, and if, in the progress of the' suit, the four-year bar is pleaded, and the facts raise the issue which is resolved by the jury for the one in possession, the fact that such dual relief is sought is immaterial; since a favorable finding upon the questions of limitation destroys the right to sue in or proceed with the suit in trespass to try title.

Other assignments of error are urged, but they become immaterial, in view of our conclusion that the facts pleaded by appellant show the suit was one to correct and reform a deed, and which suit was by the verdict of the jury filed approximately 14 years after adverse possession of the land commended.

The judgment is affirmed.


author: MOURSUND, J.

text:
    LUCKENBACH et al. v. THOMAS et al.
    (No. 5199.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 1, 1914.
    Rehearing Denied April 29, 1914.)
    1. Evidence (§ 417) — Parol Evidence — Admissibility.
    Where a grantor sues on notes given for the price and for a foreclosure of the vendor’s lien retained in the deed, the notes and deed evidence a completed written contract, and all prior negotiations and agreements are merged therein, so that they cannot be proved by parol.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. § 417.]
    2. Vendob and Purchaser (§ 274) — Foreclosure of Vendor's Lien — Defenses.
    A grantee resisting the payment of notes for the price and the foreclosure of a vendor’s lien retained by the deed cannot go behind the notes and deed; and a pleading relying on the omission of a stipulation in the prior contract of sale is insufficient.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 769-771; Dec. Dig. § 274.]
    3. Reformation of Instruments (§ 16)— Grounds — Fraud—Accident—Mistake.
    A deed cannot be reformed by the addition of a stipulation therein, unless the stipulation was omitted by fraud, accident, or mistake.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. § 16.]
    4. Evidence (§ 419) — Pabol Evidence — Consideration.
    Where a guaranty of a vendor that water was obtainable on the land was part of the consideration for the purchase-money notes executed by the purchaser, the guaranty was a contractual one, and could not be proved by parol in a suit on the notes and for the foreclosure of the vendor’s lien retained in the deed.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1912-1928; Dee. Dig. § 419.]
    5. Reformation of Instruments (§ 18)— Mistake of Law.
    Where the parties to a contract discovered before its execution that a stipulation was omitted therefrom, but they believed, on the advice of an attorney,- that the stipulation was, nevertheless, binding, the .contract would not be reformed so as to include the stipulation, unless either party was misled by the other or by the intentional misrepresentation of the attorney.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 72, 73 ; Dec. Dig. § 18.]
    6. Vendor and Purchaser (§ 110) — Contracts — Executed Contracts — Effect.
    Where there was a breach of warranty contained in a contract of sale before the delivery of the deed, the purchaser, accepting the deed containing the warranty with knowledge of the breach, could not rescind, but could merely recover damages for the breach.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 196, 197; Dee. Dig. § 110.]
    7. Fraud (§ 23) — Acts Constituting.
    Where a purchaser could determine the facts of sufficiency of a water supply for irrigation as well as the vendor, and he refused to buy from an agent because he would not guarantee the water supply and he investigated the water supply in the county before the purchase, he did not rely on the vendor’s representations as to the permanency of the water supply, and could not recover on the theory that the vendor’s representations were fraudulent.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 20, 23; Dec. Dig. § 23.]
    8. Vendor and Purchaser (§ 114) — Fraud-Rescission.
    Where a purchaser, with knowledge that a well, guaranteed by the vendor to supply the necessary water for irrigation, flowed so poorly that irrigation on all but a small part of the land had to be abandoned, made improvements on the premises and partial payments of the price and interest without objections, he elected not to repudiate the sale, and he could not compel a rescission.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 202-204; Dec. Dig. § 114.]
    9. Vendor and Purchaser (§ 284) — Fraud —Rescission—Delay—Instructions.
    In an action on purchase-money notes and for the foreclosure of a vendor’s lien retained in the deed, .defended on the ground of fraud and breach of warranty, an instruction submitting the .issue of unreasonable delay in complaining of the fraud or the breach as a defense, and stating that a finding of unreasonable delay would not prevent a finding for the purchaser, if otherwise entitled to recover, and an instruction that, if the jury found for a rescission, and found the facts presented in the instruction submitting the issue of fraud, the jury should allow such damages as were sustained by the purchaser, were objectionable, as failing to make the jury understand that unreasonable delay in complaining of the fraud was an absolute defense to a demand for .rescission.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 796-799; Dec. Dig. § 284.]
    10. Cancellation of Instruments .(§ 50)— Repudiation of Contract Within Reasonable Time After Discovery of Fraud —Question for Jury.
    Whether one complaining of fraud inducing a contract repudiated the contract within a reasonable time after discovery of the fraud, so as to justify rescission, is frequently for the jury, and in such cases the court must submit the issue.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 105, 106; Dec. Dig. § 50.]
    11. Appeal and Error (§ 237) — Questions Reviewable — Instructions—Objections.
    Where a party did not challenge the sufficiency of the evidence to raise an issue by asking a peremptory instruction, he could not, on appeal, complain of a charge submitting the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1302%; Dec. Dig. § 237.]
    12. Covenants (§ 130) — Fraud—Damages.
    The rule that the measure of damages which a purchaser may recover is the difference between the consideration given for the land and the value thereof applies only in cases where the vendor was guilty of fraud inducing the purchase, and does not apply in cases of the vendor’s breach of a warranty.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 245-253, 255, 256, 257; Dec. Dig- § 130.]
    13. Appeal and Error (§ 1068) — Harmless Error — Omission in Instructions.
    Where the jury found that a purchaser was entitled to rescind on the ground of the vendor’s fraud, the failure to submit any measure of damages for fraudulent representations, in the event the purchaser had delayed for an unreasonable time before complaining of the fraud, or had approved the purchase after knowledge of the fraud, was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    14. Vendor and Purchaser (§ 127) — Rescission — Recovery.
    A purchaser cannot, after repudiating the purchase on the ground of the fraud of the vendor, continue to make improvements and recover therefor in a suit to rescind the purchase.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 231; Dec. Dig. § 127.]
    15. Fraud (§ 52) — Reputation eor Truth and Veracity — Admissibility.
    Where the issue of fraudulent representations, made by a vendor to a purchaser, could only be determined by virtue of the credit to be given to the testimony of the parties as to whether representations were made and whether they were true or false, evidence of the general reputation of the vendor for truth and veracity was inadmissible.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 48; Dec. Dig. § 52.]
    16. Trial (§ 25) — Right to Open and Close —Admissions by Defendant.
    Where, in a suit on purchase-money notes and to foreclose a vendor’s lien retained in the deed, the purchaser admitted the execution of the notes and liability thereon, but did not admit the execution and delivery of the deed, the vendor had the right to open and close the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.]
    Appeal from District Court, Bexar County ; R. B. Minor, Judge.
    Action by C. A. Luckenbach and others against M. S. Thomas and another. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    J. F. Carl, of San Antonio, for appellants. Taliaferro, Cunningham & Birldiead, R. P. Coon, and F. R. Williams, all of San Antonio, for appellees.

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

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

   MOURSUND, J.

Appellants, C. A. Luckenbach, A. J. Luckenbach, Adolph Wendler, Bruno Wendler, Henry Wendler, and John F. Nooe, sued M. S. Thomas and Ira Paxton upon four promissory notes dated November 19, 1909, payable to plaintiffs, executed by M. S. Thomas, due respectively on the 20th day of September of the years 1910, 1911, 1912, and 1913,.the first three being for $1,466.67 each, and the fourth for $660, all bearing 7 per cent, interest per annum, payable annually, and providing for 10 per cent, attorney’s fees if placed in the hands of an attorney for collection after maturity, and further providing that failure to pay interest on any note when due should, at the option of the holder, mature all notes. Plaintiffs alleged that said notes were given in part payment for 200 acres of land out of survey 79, grantee J. H. Gibson, certificate 348, in Dimmit county, the field notes of said land being given, and sought' a foreclosure of the vendor’s lien retained in the deed executed by them to said Thomas for such land. It was further alleged that default had been made in the payment of interest and the principal of the note first maturing, for which reason all notes had been declared due; that no payments had been made, except $260 upon note No. 1 on November 19, 1909; that the land had been conveyed by Thomas to Pax-ton, who had assumed the payment of the notes. The case was dismissed as to Paxton.

M. S. Thomas answered by general demurrer, general denial, and for special answer said: That plaintiffs in August, 1909, composed the “Wendler-Luckenbaeh Land Company,” and A. M. Delcambre was their agent; that defendant was desirous of buying and developing an irrigable farm in Southwest Texas, and authorized and instructed T. C. .Thomas to look at lands in that section, and, if he could find a tract upon which there was, or could be procured, a flowing well of permanence and sufficient strength to irrigate the entire tract, and such tract could be obtained for a reasonable price, then to purchase the same for defendant; that such desire on the part of M. S. Thomas, together with the authority of T. C. Thomas, was made known to said Delcambre; that Del-cambre told T. C. Thomas he had a tract of land for sale such as M. S. Thomas wanted, and showed him the land described in plaintiff’s petition; that T. C. Thomas there met C. A. Luckenbach, of the Wendler-Lucken-baeh Land Company, and told him that M. S. Thomas wanted only land upon which a flowing well of abundant strength could be had; that Luckenbach represented that defendant could get a well on said land as strong as a certain well on other lands owned by said company, which well was then flowing at the rate of 1,209 gallons per minute, and then and there, before defendant had invested any money in said land, guaranteed that, if defendant purchased said land, defendant would get such a well on said land as the one shown him, and that such well would continue to flow such stream for all time to come, and, further, that such well would be sufficient to put water on every part of said land without the necessity of pumping; that said Luckenbach advertised the lands of said company, stating that the flowing wells on the same were guaranteed by him, and the firm of Delcambre, Jones & Co., agent for plaintiffs, advertised said lands, with plaintiffs’ knowledge and consent, as being in the “Carrizo Springs artesian belt, where irrigation is accomplished by drilling wells through an impervious cap rock to tap a limitless supply of purest water that is forever driven by natural pressure high above the surface,” and described a well on the lands of said company as having been completed eight years prior thereto by A. Eardley at a cost of $850, and as having a flow of 1,260 gallons per minute, which it had retained for eight years without any sign of weakening, and represented that such a well, with a reservoir to store the water, would easily irrigate 400 acres oí land, and that lands upon which a well could be procured could be sold by said Delcambre, Jones & Co. at from $35 to $50 per acre; that said advertisements and literature, and the representations contained therein, were brought to the attention of T. C. Thomas in the fall of 1909, and before the contract was made to purchase, any of said lands for defendant; that such representations were made for the purpose of inducing T. C. Thomas to purchase said land for defendant, and that they were material, and were believed and relied upon by T. C. Thomas, and, but for the mating thereof and his belief therein, said Thomas would not have purchased said land for defendant; that said representations were not true; that T. C. Thomas, relying upon said representations, on September 20, 1909, entered into a written contract to purchase 160 acres- of plaintiffs’ land for defendant, and later, to wit, in December, 1909, a 40-acre tract was verbally added to said contract, the 200 acres thus contracted for being the land described in plaintiffs’ petition; that T. C. Thomas had no knowledge of the flow of water necessary for irrigation purposes, and relied upon Luckenbach' for such information, which fact Luckenbach knew; that it was the'intention of all parties to the written contract that the same should, by its terms, guarantee that the well to be drilled on the land therein described should furnish a flow of water sufficient to irrigate the entire tract, and that the flow should be permanent, and, if such contract does not express such intention, or if it- expresses an intention not in harmony with the same, then the failure to express such intention, or the expression of such contrary intention, is the result of fraud on the part of the Wendler-Duckenbach Land Company, or accident, or mistake on the part of the scriveners, or on the part of the parties to said contract; that said contract was consummated by delivery of deed conveying the land in question signed by plaintiffs, dated November 19, 1909, and the payment by defendant of the first payment of $1,800, and the execution by this defendant of the notes sued upon herein; that in October, 1909, defendant, acting by T. C. Thomas, let the contract for the drilling of a well on .said land, and in November, 1909, the well was completed; that in January, 1910, defendant had 35 acres of land cleared and ready for water, but, part of same being above the level of the well, it became necessary to pipe the water to the higher ground, a distance of 400 feet, and the water was turned into said pipe line in the latter part of February, and by March 1, 1910, the flow was so weak that the 4-inch pipe was only two-fifths full where it discharged into the ditch; that by the last of April, 1910, the well flowed so poorly that irrigation had to be abandoned on all but 35 acres of land, and on July 1, 1910, the well had ceased to flow through the pipe line, and that summer it entirely ceased to flow. Defendant further alleged that he had spent various sums in developing and improving the land, the items aggregating $4,407, and had paid interest on deferred payments of purchase money, $336, also interest on amount due for drilling well, $52.80, and had lost a feed crop on 20 acres of land, to his damage $100; also that his time and labor for one year was worth $600, and that he still owed $660 for the drilling of the well; that said expenditures w(ere made .and obligations incurred before defendant had knowledge of the fraud on the part of the plaintiffs. Defendant further alleged that, if said representations were not fraudulent, then that plaintiffs believed the water supply was adequate and permanent, and the contract was entered into under a mistake of fact material to the transaction under which all parties were laboring. Defendant, further, by verified plea, alleged that the abundance and permanency of the flow of water in the well to be drilled upon said land was the material part of the contract for the sale of said land and of the contract represented by the deed thereto, and was a material part of the consideration, and the failure of the flow of water was a material failure of consideration; that the falsity of the representations was not discovered by the defendant or his agent until after the delivery of the deed and execution of the notes, such failure not being brought to their notice until the fall of the year 1911. Defendant prayed that plaintiffs take nothing by their suit; that the sale be rescinded, the notes canceled, and that he recover of plaintiffs his damages by reason of expenditures, improvements etc., and, in the alternative, for his damages, should the remedy of rescission be denied him. He tendered a re-conveyance of the land.

Plaintiffs filed a supplemental petition containing a general demurrer to the answer, various special exceptions, a general denial, and a special plea 'as follows: That, if they ever made a contract as alleged by defendant, the defendant accepted a deed under and by virtue of the terms of the contract, after he had satisfied himself that plaintiffs had carried out their part of the agreement, and that he expressed himself as satisfied, and is estopped to deny that plaintiffs carried out their agreement; that, at the time the well came in, they were ready to abide by their contract and repay to defendant his earnest money and the costs of the well, if the well was not satisfactory, but defendant was highly pleased with the well, and thereupon the land was conveyed to him and the notes executed, whereby defendant estopped himself from denying that plaintiffs had complied with their contract, and he thereby waived any action for breach of contract or warranty; further, that defendant was guilty of laches in failing to complain of the alleged fraud until this suit was filed.

Defendant filed a trial amendment, alleging that, when the contract before referred to was read, said T. 0. Thomas and 0. A. Luck-enbach discovered that a material stipulation agreed upon by the parties had been omitted; that both parties, believing that such stipulation could be ingrafted upon and added to the contract, and being advised by the attorney who drew the contract that, when so ingrafted upon and added to the contract, the same would be a binding part of the contract, and both parties believing such to be the effect thereof, in order to avoid rewriting the contract, again agreed to such stipulation in the presence of the subscribing witnesses to said contract; that defendant would not have signed the contract had it not been for such belief; that the stipulation so agreed to was that plaintiffs guaranteed the flow of the water from the well in question to be adequate to irrigate the entire tract purchased, and that same would continue to flow an adequate stream for ten years from the date of said contract. Wherefore defendant prayed that effect be given to the agreement as actually entered into by the parties.

Plaintiffs filed three exceptions to the trial amendment, and denied all the allegations thereof.

The trial resulted in a verdict and judgment granting defendant a rescission of the sale and a cancellation of the notes, also a recovery upon his cross-action for damages in the sum of $2,896, of which $660 was to be applied to paying the balance due for drilling the well. Plaintiffs appealed.

Appellants have briefed a large number of assignments of error, many of which present, in different ways, the same questions of law, and we shall not undertake to discuss them in regular order. It will be noted from our statement of the pleadings that, while the petition contains averments sufficient to constitute allegations that fraudulent representations induced the acceptance of the deed and execution of the notes, defendant relying upon the representations which induced the execution of the preliminary contract as sufficient to set aside the general warranty deed and notes, dated November 19, 1909, but, in fact delivered five months after the execution of the contract of sale, it is further alleged in a general way that a verbal guaranty was made by plaintiffs to the effect that a flowing well could be obtained on the land sold, which, for all time to come, would furnish ample water to irrigate all of said land, and that such guaranty induced the purchase by defendant of the land described in plaintiffs’ petition. However, on the third day of the trial, defendant filed a trial amendment, alleging 'that such guaranty was only for ten years, and that it was omitted from the written contract, dated September 20, 1909, on account of a mutual mistake of law.

The contract sued upon by plaintiffs was evidenced by the deed and notes described in plaintiffs’ petition, which evidenced a completed written contract. Earle v. Marx, 80 Tex. 42, 15 S. W. 595. The deed and notes constituted the final contract between the parties, into which all previous negotiations and agreements became merged. Milliken v. Callahan Co., 69 Tex. 214, 6 S. W. 681; Johnson v. Clarkson, 30 S. W. 71; Walker v. Brosius, 90 S. W. 655; Shenandoah Valley R. Co. v. Dunlop, 86 Va. 346, 10 S. E. 239.

Appellee sought to resist the payment of the notes and the foreclosure of the lien retained by the deed, and his defenses, if he has any, should be directed at the contract evidenced by such instruments. The trial amendment contains no allegation that said verbal guaranty was omitted from the deed by any mistake of law or fact, and it would be difficult to maintain such a contention, in view of the fact that five months intervened between the execution of the contract of sale and the delivery of the deed. The court should have required defendants to direct their pleadings at the deed and notes, and therefore should not have considered the trial amendment as sufficient to allege any defense. Plaintiffs had filed a special exception to defendant’s second amended answer, seeking to have the court require defendant to elect whether he sued for damages on the contract of September 20, 1909, or the contract evidenced by the deed, which exception was overruled, the court d.oubtless considering the allegations of fraud with respect to the contract as going to the deed also, because it was alleged that such fraud was not discovered until after the deed was delivered, and inferentially that it induced the acceptance of the deed and execution of the notes. In this, we think, there was no error, and assignment of error No. 40 is overruled. Plaintiffs did not demur generally to the trial amendment, nor except on the ground that it alleged no defense to the contract evidenced by the deed and notes, but did except on the ground that it sought to vary the terms of a written contract by parol, and that it was in contravention of the statute of frauds, in that it sought to set up and assert a verbal warranty extending for more than one year.

Had it been pleaded that such guaranty was omitted from the deed, in the absence of fraud, accident, or mistake, the deed could not be reformed so as to include such guaranty therein, because it would vary the same in a material .manner. Earle v. Marx, supra; Lynch v. Ortlieb, 70 Tex. 730, 8 S. W. 575; Belcher v. Mulhall, 57 Tex. 20; Rubrecht v. Powers, 1 Tex. Civ. App. 282, 21 S. W. 318; Weaver v. City of Gainesville, 1 Tex. Civ. App. 286, 21 S. W. 317; Willis & Bro. v. Byars, 2 Tex. Civ. App. 134, 21 S. W. 320; Loonie v. Tillman, 3 Tex. Civ. App. 334, 22 S. W. 524; Kansas City Packing Box Co. v. Spies, 109 S. W. 432; Beard v. Gooch, 130 S. W. 1022; Byars v. Byars, 11 Tex. Civ. App. 565, 32 S. W. 925.

If it be considered that the guaranty was a part of the consideration for the notes, it is a contractual one, and therefore cannot he proved by parol. Coverdill v. Seymour, 94 Tex. 8, 57 S. W. 37; Boone v. Mierow, 33 Tex. Civ. App. 295, 76 S. W. 772; Finn v. Krut, 13 Tex. Civ. App. 36, 34 S. W. 1013; Southern Building Ass’n v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 827.

Defendant alleged that, when the contract was read, both parties discovered that the guaranty had been omitted, but both of them, believing that the guaranty could be ingrafted upon the instrument by parol, and being so advised by tlie scrivener, in order to avoid rewriting the instrument, again agreed upon such guaranty. It is not contended that any mistake was made as to the terms of the written agreement, or the legal effect thereof. Both parties knew exactly what it contained, and its legal effect, but it is alleged that they made a mistake of law in believing that the verbal guaranty would be binding. The question, then, is whether an agreement shall be binding and enforceable in law because both parties believe it to be binding and enforceable, when neither party was misled by the other, or by the intentional misrepresentation of an attorney. We think, in such a case, the mistake of law cannot be invoked to reform or rescind the written contract. To permit it would be to open the gates for Interminable litigation, and to practically repeal the statute of frauds. When parties ■are making a written contract, which is read over, and they discover that an important clause is omitted, no excuse should be received as to why such clause is not inserted therein, and we may say further that, if appellee’s contention be true, he was grossly negligent in not having the few words interlined in the contract which would express the provision that plaintiffs were to guarantee the flow of water therein provided for to be adequate to irrigate all of such land, and to remain adequate for that purpose for ten years. Lott v. Kaiser, 61 Tex. 672; Ins. Co. v. Hill, 127 S. W. 286; Meier v. Kelly, 20 Or. 86, 25 Pac. 74; Pomeroy’s Equity Jurisprudence, § 839.

The same rules would apply to the contract of September 20, 1909, had. no deed been made, and suit been brought on the contract, and therefore we sustain assignments of error Nos. 23 and 24, which complain of the overruling of such exceptions, and also assignment No. 41, which complains of the admission of evidence in support of the plea of a verbal guaranty.

The court, by his charge, authorized the jury to find for a rescission of the sale, if they found that the guaranty set up in the trial amendment was established, and that it had not been complied with. Had such guaranty been embraced in the deed, or a separate written contract of even date with the deed been made to that effect, we fail to see how the failure to comply therewith could be ground for rescission, in the absence of an express agreement to that effect. If it had been embraced in the contract dated September 20, 1909, and the well had failed before delivery of the deed, defendant would have been released from the obligation to take the land, but, after the trade is closed, the deed delivered, and the consideration in money and notes has passed, such a provision, if embraced in the deed, would be a mere warranty, the breach of which would not entitle appellee to rescission, but merely to damages. Jones v. George, 61 Tex. 350, 48 Am. Rep. 280; El Paso & S. W. Ry. Co. v. Eichel & Weikel, 130 S. W. 926; Harroll v. McDuffie, 128 S. W. 1149; Simkins on Contracts, pp. 912, 913. The tenth, twelfth, and thirteenth assignments, which complain of the court’s charge which authorized a rescission for breach of the guaranty set up in the trial amendment, are therefore sustained.

Passing to the issue of fraud made by the pleadings, it appears that some matters of fact are alleged, but that much of the plea is based upon representations of permanency of water supply, a matter that defendant could .determine, with the facts before him, equally as well as plaintiffs, and, judging by the allegations that a guaranty was required and the testimony that it was exacted, as well as that defendant refused to buy from another agent, because he would not guarantee the supply of water, and defendant’s testimony that he had used due prudence to investigate the water supply in that county, it seems clear that defendant did not rely upon any allegations that a permanent water supply could be obtained. Lynch v. Ortlieb, 70 Tex. 727, 8 S. W. 515.

It is alleged by defendant that by. the last of April, 1910, the well flowed so poorly that irrigation on all but 35 acres had to be abandoned; that by the latter part of May, 1910, it was necessary to irrigate day and night and Sundays to save the crop; that on July 1, 1910, it ceased to flow through the pipe line; and in the summer of that year entirely ceased to flow. T. C. Thomas, defendant’s agent, who bought the land and conducted all business with reference thereto, lived on the land until June, 1910, at which time the water got so low that he left the land and went into the real estate business. He admitted that he knew in July, 1910, that the well was “not any good,” and that he had been “buncoed.” He paid plaintiffs $336 interest in the fall of 1910, and in December, 1910, conveyed to Paxton 80 acres of the land for $11,200, of which $2,600 was paid by the conveyance of property in Illinois. Upon the advice of his attorney, he sued Paxton, and recovered the land because of Paxton’s failure to make payments. He built two tanks, one of which never became filled, because there was no flow of water after he got it completed. They were completed in September, 1910. Thereafter the reservoirs were connected by piping, which was paid for in November, 1910. His personal labor in improving, harrowing, and developing the land extended over a period of 15 months. He made no complaint until June, 1912, after suit was filed in January, 1912, and did not demand a rescission until he filed his answer; in fact, as late as June, 1911, he wrote letters to plaintiffs stating that he was trying to raise money to pay interest and also to make a payment upon the principal of defendant’s notes, and stating that he expected to sell some of the land in Kansas City. This appears to be a clear case of the defendant making an election not to repudiate the sale, as he dealt with the property as his own, after discovery of the fraud, if any fraud existed, and failed to promptly tender reconveyance and demand a rescission. Wells v. Houston, 23 Tex. Civ. App. 653, 57 S. W. 584; Guthrie v. Lyon & Sons, 98 S. W. 432; Railway v. Cade, 100 Tex. 37, 94 S. W. 219; Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Railway v. Jowers, 110 S. W. 946.

The court, by paragraph 4 of his charge, sought to submit unreasonable delay in complaining of the fraud or of the breach of guaranty as a defense against rescission, but stated that such a finding would not prevent a finding' for defendant under paragraphs 5 or 6, if they believed from the evidence that defendant was entitled to recover under either of said paragraphs. Paragraph 5.is to the effect that, if the jury find for "a rescission, and therefore find for defendant on plaintiff’s cause of action, and find the facts supported’and presented in paragraph 2 (which submitted the issue, of fraud), then to allow such damages, if any, as were sustained by defendant on account of such fraudulent representations. When paragraphs 4 and 5 are considered together, it occurs to us that the jury could not have understood that unreasonable delay in complaining and repudiating constituted an absolute defense to the action, in so far as rescission was sought. In paragraph 6 the jury is told, in effect, that, ff 'they find against the rescission of the sale and cancellation of notes, and if, nevertheless, they find.all the facts supposed and presented for their determination in paragraph 3 (wherein the issue of verbal guarantee was submitted as a ground for rescission), and further find that, by reason of such guaranty and nonfulfillment of guaranty, if any, and of the sale of the land under such guaranty, the defendant sustained any of the injuries or losses complained of in his answer and cross-action, then to find in favor of defendant for such damages as would reasonably, compensate him for the injuries or losses sustained by him, in which they may include only the'difference in value of-the land with well thereon, if of the character verbally guaranteed, and its actual value, with' interest thereon at 6 per cent, per annum from date of contract until time of trial. It was the intention of the court by this paragraph to submit the issue of damages for breach of the verbal guaranty, in the event that, under paragraph 4, the jury found that defendant had lost his right of rescission.

Appellants, by assignment No. 27, object to the charge as a whole, on the ground that it permits the jury to determine whether to rescind the contract or recover damages. So far as the issue of breach of the guaranty is concerned, we have already held that it would not entitle defendant to rescind had it been made a part of the deed. As to the issue of fraud, we need only say that cases frequently arise in which the question whether the party complaining of fraud has repudiated within a reasonable time after discovery of the fraud becomes a question of fact to be determined by a jury, and in such cases the court submits the question whether the facts are such as to show that the remedy of rescission has been lost. Railway v. Cade, 100 Tex. 37, 94 S. W. 219; Railway v. Jowers, 110 S. W. 948.

The court took the view that this case contained such an issue, and it does not appear that appellants challenged the sufficiency of the evidence to raise such issue by asking any peremptory instruction to find against defendant as to his plea for rescission. We-therefore cannot sustain said assignment, which, in a general manner, complains of the charge without questioning the sufficiency of the evidence ,to raise the issues submitted.

Paragraph 6 is attacked on the ground that it submits an erroneous measure of damages; appellant contending that the measure of damages is the difference between the consideration given for the land and the value of the land, citing George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. The rule laid down in that case-applies to fraud cases, and not to those for breach of a warranty.

In this case the court failed to submit dny measure of damages for 'fraudulent representations, to be applied if defendant had delayed for an unreasonable time in complaining, or had recognized and approved the-sale after knowledge of the fraud, and therefore lost his right of rescission under paragraph 4 of the court’s charge. Appellant complains of this omission in the proposition' under the seventeenth assignment, but, as the jury found for rescission, we would not reverse the judgment if this was the only error complained of.

Paragraph 5 of the court’s charge permits a recovery for all expenditures pleaded' by defendant in the event the jury finds defendant entitled to a rescission, and fails to-limit the recovery; to such items as were incurred prior to tlie discovery of the fraud. This is erroneous. Defendant cannot, after repudiating his purchase, continue to improve the place and recover for such improvements. In his answer, defendant failed to itemize his expenditures by stating when and to whom they were paid. Special exceptions were directed by plaintiffs at the answer on this account, which should have been sustained. Assignment No. 3 complains of such ruling, but we do not think it is briefed so as to merit consideration, and only pass upon same because the case will be reversed on other grounds.

The special charge complained of in the twentieth assignment was erroneous, as pointed out, but we think the jury, in view of the general charge, and of expressions contained in the special charge, were not misled thereby to believe that representations, though true, could be the basis for fraud. The assignment is overruled.

By assignment 42 complaint is made of the court’s refusal to permit plaintiffs to prove their general reputation for honesty and fair dealing. Our courts have been very liberal in permitting testimony of general reputation for truth and veracity, where an attack has been made upon parties by showing contradictory statements made by them or by testimony of circumstances constituting an attack upon their credibility. See Houston Electric Co. v. Faroux, 125 S. W. 922, and cases therein cited. It has also been held by this court that, where a party is charged with fraud in procuring an insurance policy upon which he brought suit, and with procuring the property to be burned, his character for truth, honesty, and fair dealing was directly assailed, and it was competent for him to prove that his general reputation for truth, honesty, and fair dealing was good. Fire Ass’n of Philadelphia v. Jones, 40 S. W. 44. Testimony that a boy’s reputation for honesty was good was held admissible in a case where he was charged with embezzlement. Largeant v. Beard, 53 S. W. 90. See, also, Word v. Houston Oil Co., 144 S. W. 334; Cudlipp v. Cummings Export Co., 149 S. W. 447. In the case of Roach v. Crume, 41 S. W. 86, it was held, however, that a defendant sued upon a claim that he held land in trust, and who testified he was the sole owner thereof, could not prove his good reputation for honesty and fair dealing. Our courts have been more liberal in permitting such evidence than the weight of authority appears to warrant. See Ohamberlayne on the Modern Law of Evidence, §§ 3273, 3281, 3282. We are unwilling to extend the doctrine further, and to apply it in a case where fraud is charged, especially where such charge is not based upon circumstances from which different inferences might be drawn, but it is to be determined by virtue of the credit to be given to the testimony of the witnesses as to whether or not certain statements were made, and whether or not they were true or false. If the party charged with making false representations, even though it is charged that same were made knowingly, can be permitted to strengthen his testimony by proof of his good reputation for honesty, it appears reasonable that the other party, who is sought to be put in the attitude of seeking to unjustly mulct his opponent in damages to which he is bound to know he is not entitled, should also be permitted to bolster his testimony by proof of his good reputation for honesty. Thus a large number of witnesses would be called, and the controversy resolved into one to determine which could establish the best reputation. We overrule the assignment. Chamberlayne Mod. Law of Ev. § 3282; Greenleaf on Ev. § 54; Underhill on Ev. § 10.

The seventh assignment is sustained. The error, however, is one which would not require a reversal.

The thirty-ninth assignment is sustained. The admission made by appellee for the purpose of being permitted to open and. close the case was not. sufficient. It was not made in the language of rule 31 for the district and county courts, but was carefully limited to an admission of the execution of the notes and liability thereon. Appellee contends no reservation was made, but the very expression he cites in support of his contention, which expression- occurs near the end of the admission, is qualified by a reference to the cause of action therein before set out which related merely to the notes. All question of the execution and delivery of the deed, containing the reservation of the vendor’s lien, is carefully avoided. It appears that appellee deemed it unwise to admit the truth of the allegation with respect to the execution of the deed, which constituted a portion of the contract sued upon by appellants, and therefore it was still incumbent upon appellants to make such proof in order to establish their cause of action as claimed in their petition. If there be one affirmative fact important to a recovery by plaintiffs not admitted by defendant, plaintiff has the right to open and conclude. Steed v. Petty, 65 Tex. 490; Sanders v. Bridges, 67 Tex. 93, 2 S. W. 663; Dry Goods Co. v. Bank, 31 Tex. Civ. App. 238, 71 S. W. 604; Taylor v. Reynolds, 47 Tex. Civ. App. 344, 105 S. W. 65; Meade v. Logan, 110 S. W. 188; Cockrell v. Ellison, 137 S. W. 150; Ins. Co. v. Baker, 10 Tex. Civ. App. 525, 31 S. W. 1072; Berry Bros. v. Fairbanks, Morse & Co., 51 Tex. Civ. App. 561, 112 S. W. 429; Smith v. Bank, 74 Tex. 541, 12 S. W. 221.

Assignments 6, 8, 9, 10, 21, 22, 25, 30, 31, and 32 are overruled.

The assignments not hereinbefore disposed of will not be considered because not sufficient or not briefed in accordance with 'the rules. Most of them relate to matters already discussed, while others relate to questions which will not arise upon another trial.

The judgment is reversed, and the cause remanded.

CARL, X, being of counsel, did not sit in this cause.