author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. VOGT.
    (No. 5522.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.)
    1. Waters and Water Courses <&wkey;119 — Obstruction — Right of Way — “Act of God.”
    A flood not shown to have been higher than previous floods, hut which plaintiff claimed injured his premises because the defendant railroad company had partially filled in trestles of a dirt embankment causing the water to back up, is not an act of God excusing the railroad company from liability.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 131-134; Dec. Dig. <&wkey;>119.
    Por other, definitions, see Words and Phrases, First and Second Series, Act of God.]
    2. Waters and Water Courses <&wkey;12G — Obstruction — Right of Way — Damages.
    In an action against a railroad company for destruction of plaintiff’s crops which he claimed resulted from an embankment partially filling railroad trestles, which caused flood waters to back up and inundate his land, evidence held, insufficient to show that the fill caused the damage.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 139, 141, 142; Dee. Dig. &wkey;>126.]
    3. Waters and Water Courses <&wkey;125 — Verdict — Conjecture.
    Where plaintiff’s crops would have been inundated in any event, but fills under a railroad trestle caused the waters to stand longer on plaintiff’s land, an award for destruction of crops cannot stand, being based on pure speculation, there being nothing to show what part of the damage resulted from the fills holding the water.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 140; Dee. Dig. &wkey;125.]
    4. Evidence &wkey;>472— Opinion Evidence — Conclusion.
    Where plaintiff claimed that fills under a railroad trestle prolonged the inundation of Ms farm and resulted in the destruction of his crops, testimony that the water on plaintiff’s land was backwater, is admissible, but the witness cannot testify that such backwater was caused by the fills, that being a question for the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. &wkey; 472.]
    •5. Trial <&wkey;85 — Objections—Sufficiency.
    Where part of the answer was admissible, the overruling of an objection to the entire answer was not error, but part of it was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;85.]
    6. Evidence <&wkey;472 — Opinion Evidence.
    Where it was claimed that fills under railroad trestles caused flood waters to back up and inundate plaintiff’s land, testimony that the water was higher on the upper side of the fills than it was on the lower, is not subject to objection that the witnesses attributed the depth of water solely to the fills.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. '&wkey; 472.]
    7. Appeal and Error <&wkey;1048 — Review — Harmless Error.
    Where the witness had already testified to a fact assumed in a question, the assumption is harmless error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. <&wkey;>1048.]
    8. Evidence <&wkey;471 — Opinion Evidence — Conclusions.
    Where plaintiff’s land was inundated by flood waters and fills under the railroad trestles retarded the escape of the waters, testimony that plaintiff would have lost only part of his crops had there been no fills, is improperly received, being a conclusion of the witness on a matter for determination by the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <§==>471; Witnesses, Cent. Dig. §§ 833-836.]
    9. Trial <&wkey;252 — Instructions—Refusal.
    Where it was claimed that fills under a railroad embankment caused waters to back up, prolonging the inundation of plaintiff’s land, and there was no evidence showing other obstructions; which caused the backing up of the water, the refusal of a charge requiring a verdict for defendant if the jury should be unable to determine what portion of the damages was caused by defendant’s fills and what part by other obstructions, is proper. ;
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252J
    Appeal from District Court, Victoria County; John M. Green, Judge.
    Action by Herman Vogt against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. Fly & Ragsdale, of Victoria, for appellee.
   MOURSUND, J.

Appellee, Vogt, sued appellant to recover $3,000 as damages for the destruction of certain crops of corn and cotton in the field and certain farm products gathered, alleging that such damages were occasioned by negligence on appellant’s part in partially filling in certain trestles with a dirt embankment, which Vogt contended caused a certain overflow of the Guadalupe river to inundate his premises on October 5, 1913. Plaintiff alleged that the overflow was not unprecedented nor of greater magnitude than ordinary in previous years, but that if it was unprecedented the waters would still not have reached his land and crops had it not been for defendant’s obstruction of the natural and ordinary passageways; that if the waters had reached his crops only a small amount of his produce would have been destroyed, and of nominal value; that in any event the damming up of said passageways under said trestles prolonged the inundation of plaintiff’s crops, and in the absence of said obstructions the crops would not have been destroyed or damaged. The damages to the crop are fully set out. The petition is lengthy, but the above statement is sufficient to show what the issues were.

Defendant by its answer put plaintiff upon proof as to every essential allegation of his petition, and pleaded specially that the damages were in no manner caused by any act of negligence of defendant, but were caused solely by an act of God, in that the overflow of the Guadalupe river, which caused the same, was unprecedented and so great and sudden that it could not be expected or guarded against; that the flood continued for many days and maintained its highest point for several days; that the extent of the openings under the trestles did not contribute to cause the overflow of plaintiff’s land, because when the overflow water reached said trestles plaintiff’s land and crops were already overflowed to a great depth; that when the flood reached said trestles the earth which had been placed thereunder began to crumble away, and within a few hours ail of same had been practically washed away, and, notwithstanding that fact, the flood continued to rise on both sides of the track to a great height, of such depth as to entirely overflow the crops on the upper side of the track, including that of plaintiff, and the lands and crops on the lower side of the track; that after said earth had been so washed out the overflow on the upper side of the trestles was of great depth over the entire western valley of the river, and was standing at a great depth over appellee’s land, wholly overflowing his crop, and continued at said height for several days before the water' began to recede; that the water receded slowly, and after it began to recede stood at great depth for several days entirely submerging plaintiff’s crops; that the damage to appellee’s crops would have occurred whether the trestles had been partially filled in or not. Defendant also pleaded fully in regard to a subsequent flood which took place in December, 1913, and at a time when the earth had not been replaced under the trestles, with the view apparently that such pleadings .were necessary to admit evidence of the comparative extent, depth, and effect of the two floods; such evidence going to the issue whether plaintiff’s crops would have been entirely overflowed and destroyed by the October flood had the earth dump not been placed under the trestles.

By supplemental petition plaintiff denied all the material allegations of the special pleas of defendant.

The trial resulted in a verdict and judgment'in favor of plaintiff for $1,208.15, with interest at 6 per cent, per annum from October 6, 1913, to date.

The evidence shows that the Guadalupe river flows in a southerly direction through Victoria county, and that the city of Victoria is situated on the east bank thereof; that the valley of the river on the west side and opposite the city of Victoria is about 2% miles wide for 3 or 4 miles above and below the city; that in such territory the western banks of the river are higher than the western portion of the valley near the foot hills; that when the floods are s'o great as to fill and overflow the bed of the river the water runs out into the western valley at the Power levee, which is about 3 or 4 miles above the trestles, at the Smith place, right below the Power levee, at the Marshall place, which is about a mile above the trestles, at the Mitchell place and at the Wilden place, about 150 yards ab'ove the Guadalupe bridge. There is a bayou or slough leading from the Marshall levee down towards the trestles, which runs through the Randall 40-acre tract, the Urban tract, the Webber tract, on which Vogt had part of his crops, then into the Newton Dudley tract and strikes the gravel road about 500 yards ab'ove and west of the Poindexter trestle. When it crosses the road it loses its identity as a slough or bayou, the ground being level and the topography such as to cause the water to divide, and part to go through the Poindexter trestle while the other part goes through the Goldman trestle. At the place where such slough strikes the road it is about 40 feet wide and its banks about 5 feet high. La Nue testified to a width of 40 feet and banks 7 feet high at one place, but did not make clear at what place.

There is also a swag through the Joe Urban and Cash Jones fields, which ends at the Poindexter trestle. The water from the Power levee, which is situated almost due north of the trestles, finds its way through a slough in the western part of the valley, running through the Sloan, the Casten, the Gonti, the Bianchi, and the Goldman tracts. The water from this slough joins that from the Marshall place before the trestles are reached and flows through both trestles.

The two trestles are designated by the railroad company as 93-E and 93-H, but are commonly known as the Poindexter and Goldman trestles. The Poindexter trestle (93-E) is about 1% miles west of the railroad bridge across the Guadalupe river leading into the city of Victoria, while the Goldman trestle is between a quarter and a half mile west of tlie Poindexter trestle. The two trestles are joined together by a dirt embankment. The Poindexter trestle is about S10 feet long, and the other one 900 feet. Earth was dumped in under said trestles at both sides until Only 150 feet of open space remained under each. After the October flood, the Poindexter trestle had 183 feet of earth fill left, and the other one had 70 feet of fill left under it. The land is level where the trestles are.

The statement of facts is unnecessarily long. Much irrelevant testimony was introduced by defendant over plaintiff’s protest, relating to flood conditions at such distance from Victoria as to east no light upon the extent and duration of the flood at that place. We shall briefly state testimony which bears m'ost directly upon the questions of fact involved.

The testimony supports a finding that in 1869 there was an overflow considerably greater than that of October, 1913, which inundated the valley where the trestles are situated to a greater extent than occurred in October, 1913; that in 1889 and in 1900 and 1903 there were overflows of about the same magnitude as the one in October, 1913. Two witnesses testified that the 1889 overflow wás probably a little higher than the one in October, 1913. The testimony shows that during these overflows the water came down into the valley where the trestles are situated and inundated such valley.

There is testimony by several witnesses that on Sunday afternoon, October 5, 1913, the water on the north side of the dump came a great deal higher on the dump and trestles than on the south side, the greatest difference being testified to by the witness Markham, who placed it at 5 or 6 feet. Herman Goldman estimated it at 5 feet, or more, and testified that it came within less than 2 feet of the t'op of the embankment on the upper side. The distance from the ground to the trestles was about 12 feet. The testimony shows that in the afternoon of October 5th the dump washed away to such an extent as to materially decrease the difference in height between the water above and below the dump. The dump caved in and washed away in large chunks that afterno'on, but the exact extent cannot be determined from the testimony. The witness Mitchell testified that about two-thirds of the fill at the east end of the Poindexter dump had washed away between 4 and 5 o’clock, when he took the picture marked Exhibit E. This picture shows that a large part of the fill had washed away. His testimony 'on this point is not disputed. His testimony with regard to the other portions of the fills is as vague as that of the other witnesses. Johnston testified that •he viewed the water flowing through the Goldman trestle from about 10 o’clock Sunday morning until 4 or 5 in the afternoon; that it got deeper and deeper until it rose over the road; that the gravel road and railroad dump held it back; that when the water got 5 or 6 feet deep the fill began to wash away at b'oth <nds of the Goldman trestle, and washed away more and more; that when he left whole chunks would go out. The height of the gravel road is not testified to. County Judge Pool testified it was purposely left low so as t'o offer little resistance to overflows. He testified that during the October overflow most of it was washed out 2 to 3 feet deep. Herman Goldman testified that the fill gave way about 3 o’clock; later he said it gave way towards evening. On cr'oss-examination he again placed the time at 3 o’clock. Seiler testified that the dirt was washing out Sunday afternoon, and when he returned the next morning most of it had washed away. Marklin testified that he was on the wagon road at about 2 o’clock Sunday afternoon-, and then saw a big bulk, ab'out 30 feet, of the dump wash out at one time; that it went more while he was on the wagon road than it did at about 3 or 4 o’clock, at which time he viewed the flood from the railroad dump, but now and then a chunk would go during all the time he was there; at the time he left, lots of the dirt on both sides of the opening under the trestle was gone. Helpesky testified that the dump began to wash away before he got to the Goldman trestle Sunday at a little before 11 a. m.; that it continued to wash away in great quantities while he was there; that he left at 3 p. m., or later. He did not think practically all of it had washed away by the time he left; that he went to the Poindexter trestle on Tuesday, at which time the water was probably a foot higher on the north side of the dump than on the south side; that the dump was still washing out. Jaynes, in behalf of defendant, testified that the fill on the Goldman side washed out pretty rapidly; that when he left at about 6 p. m. there were several “bents” left; that a bent was about 15 feet. He also testified that on Monday morning there were four or five “bents” left on the Goldman end of the trestle. Lipske testified the fill was giving way at 2 or 3 o’clock Sunday when he arrived, and was still giving way when he left at about 6 o’clock; that the difference in height of water above and below the track was about the same Sunday and Monday, his estimate there'of being from 6 inches to 1 foot. Triplett testified that he went out to the dump after 3 p. m. Sunday, and the dirt, as far as it did wash out, was practically all gone before he got there. The testimony fails to show with certainty when the flood reached its greatest height at the trestles.

Johnst'on testified the water began falling before he left; that it had fallen on the upper side and risen below. H. Goldman testified the water above the track began to fall when the fill gave way, and in two or three hours it began to get level with that below the trestle; that in an hour and a half after the fill gave way the water began to recede on the north side of the embankment. He did not go back to the trestle that evening. Ernst testified the water came up higher all Sunday evening on the upper side of the track; that about 6 o’clock on Sunday afternoon it came within 2 inches of flowing over Eiek’s d'oorsill; that during Monday night it fell a little, a “couple of inches or a foot”; that at Eiek’s store it had not fallen much, but at witness’ house, which was near Vogt’s house and on the same tract, it had fallen about a foot. Joe Urban testified the valley was full of water fr'om the river west to the hills at 12 noon on Sunday, there being some land out next to the river bank; that the overflow continued until Monday and Tuesday, and then began falling; that it began falling on Monday; that on Sunday and Monday it was deep over the Vogt land; that the water covered Vogt’s- land entirely on Monday. Seiler testified the water had fallen about 2 feet at his place Monday morning. His place is north of the track near Vogt’s, a little east of Vogt’s, and across the gravel road which forks right after passing Vogt’s. He also testified that the water began to rise some, late Sunday afternoon. He left at about “6 o’clock or dark.” Geo. Goldman testified he thought the water kept getting higher until about 4 p. m. on Sunday; that the water was about 8 to 10 feet deep over the valley at about 11 or 12 o’clock; that “in the low places in the land he supposed it got over 6 or 7 feet.” He did not testify how long he stayed at the trestle. Plaintiff, Vogt, testified:

“It was Sunday afternoon it got to rising. The water rose up to Monday morning and then began going down; it had gone down some early Monday morning. This corn I have testified about was torn out of the field by this terrible eddy that came there between Sunday night and Monday. I could not say whether it was Sunday night or Monday morning, but it was during that time it knocked it all down; when the water got its force it pulled it all down, but I could not tell you the exact minute.”

Malitz testified, in behalf of defendant, that he and Weisiger went in an automobile to Eiek’s on Monday or Tuesday about 6 p. m., passing through water flowing over the road, and when they arrived at Eiek’s they would have had to wade to the house, had there not been a plank resting on a box and extending to the sidewalk; that the water had fallen an inch or two, as shown by the mark on the door above the sidewalk. Jaynes testified in behalf of defendant that he viewed the flood from the wagon road and railroad embankment on the Goldman side of the valley; that he stood there all afternoon watching the water and watching drift coming down; that the water kept rising and ■was still rising when he left, which was about 6 p. m.; but when he came back Monday morning it had fallen a little, about 4 inches, and was only about a foot higher above than below the trestle, while on Sunday the difference was about 2 feet. Eipske, •witness- for- defendant, testified that the water was rising at about 6 p. m. Sunday when he left the dump; that next morning there was not much difference, it looked the same to him, but it was falling slowly. John Dawarak testified that the water kept rising until some time Monday; that he was on the Casten place, about one-half mile from the Huff Power place at the time; that the water was not'confined to bayous, but spread out over the whole ground, and was spread out when it struck Vogt’s land. Wright testified that all day Monday the water was up pretty near the top of the dump; that it began falling on Monday, but fell slowly. Jones testified that on October 5th, the water was within a couple of feet of the trestles in the valley, and that he sent telegrams to the effect that at 6 p. m. the river was still rising at the bridge and the water was one foot from the Goldman Hill. Malitz testified that the river rose at the railroad bridge until Monday morning, and remained practically at a standstill for about a day; that in December it was about two inches higher at the bridge.

Vogt’s premises comprised the folio-wing tracts of land: (1) The Gash Jones 80-acre tract, which was about 250 yards northwest of the Poindexter trestle; (2) the Ellen Randall 40-acre tract, which is northwest of the Gash Jones tract, but with the Urban 40-acre tract intervening between; (3) the Ellen Randall 10-aere tract, which adjoins the Randall 40-acre tract on the northwest; (4) the Ellen Randall 20-acre tract, which adjoins the Randall 40-acre tract on the southwest; (5) the Charles Webber 40-acre tract which corners in the Goliad road and is bounded by the J. Urban 40 acres on the northeast. He had in cultivation all of this except 5 acres of the Webber land. In the Webber field he had about 30- acres planted in corn, and the rest in cotton. The Gash Jones field was all planted in cotton, and in the Randall fields 60 acres in cotton. The evidence fails to show the location of the crops on the Webber and Randall lands, there being about 13 acres of land unaccounted for. Vogt testified his corn had a yield of 50 or 60 bushels per acre, worth 80 cents to $1 per bushel, and that the expense of harvesting and marketing same would be -10 to 15 cents per bushel; that he had about 18 or 20 bales of cotton on the stalks, worth $60 per bale, and the expense of gathering and marketing would be about $12 to $15 per bale; that the cotton seed would amount to 9 tons, worth $20 per ton; that -he lost 9,000 pounds of cotton seed he had housed for planting purposes worth $25 per ton; and that he lost about 3 tons of sorghum cane worth $15 per ton. The evidence does not show where the seed was housed. The cane was stacked in the field, but the evidence does not show in which field.

The evidence on the issue, whether the destruction of the crops was proximately caused by the fills, consists largely of conclusions: Several witnesses .testified to the fact that the water was backed up above the railroad embankment on Sunday afternoon. Vogt testified that he would only have lost the corn lying on the ground, not exceeding 100 bushels, and only two or three bales of cotton, that hanging within 4 to 6 inches of the ground, had it not been for the fills under the trestles. He said:

“When the water reached the trestle it rose on the upper side and backed up over the farms; there was not outlet enough to lot it through. The water was on the same side as my field and residence. When the water reached the trestle it raised and spread back over the fields from the dump; I mean the fields that I cultivated and the rest of them that cultivated the neighboring fields there. Previous to the making of these fills the water would pass on through. The water in 1900, 1903, and in May, 1914, did not do any damage to my fields to amount to anything, but went on through the trestles. The October overflow took the biggest portion of these fills out, and the December overflow took the rest. They were, not there in the May overflow of this year, neither were they there in the overflow of 1900 and 1903. When the waters in the October flood reached these fills under the trestles and rose and spread back over my fields, after the enbankment gave way it got such a current that it knocked my crops down and swept them along. Before the water went down in my field it rose up so high that it got nearly everything under the water, and when the embankment gave way the current then took it along. I lost everything in there; it destroyed my entire crop.”

Joe Urban testified he did not believe Vogt would have lost 200 bushels of corn had the fills not been there, and might have lost a bale or two of cotton. He testified further that the floods of 1900, of December, 1913, and May, 1914, passed right on and did not harm anything, but in October, when the fills were there, they were drowned out; that the water “filled up about 4, and pretty near 5, feet higher than it used to”; that on Monday it entirely covered Vogt’s land, and that it was deep on Vogt’s land Sunday and Monday and remained longer than three days. Ernst testified that on Monday morning the water was still over Vogt’s land in places— he did not think it was over the whole place. Goldman testified that the water remained for two, three, or four days north of the trestles; that Vogt’s land was about midway in that line, so the water stayed all over this country and remained naturally over the Vogt land, and it was several days before it ran off. Seiler testified:

“I observed some difference in the conduct of the water at those trestles as between the 1900 overflow, the 1903 overflow, and the overflow of October, 1913, and the difference was that the water on the north side of the track was a heap higher in October, 1913, than it was in previous overflows. I know what caused it to he higher ; the trestle filled up a great deal and the water could not get through; the openings had been closed with these fills.”

Seiler, recalled, testified that if there had been no dump the water would have gone through in low places; that he was “willing to swear to a certain extent” that if it had not been for the railroad embankment the water would have gone only in the low places through the fields. In some places where it was probably 4 or 5 feet deep it might have gotten a couple of inches or 6 inches deep. If the dump had not been there the water would only have gotten over the fields 1 or 2 inches deep in places, where it was 4 or 5 feet deep. That the overflow of October, 1913, would not have covered that river valley above the Goldman place north and west of the railroad if it had not been for the fill. Pickering testified the water from the Power levee ruined his crops on the land over which it passed; that it laid the corn down on the Depine, Smith, Possi, and Elummer lands, all situated in the vicinity of the Huff Power place, and destroyed all fences. Dawarak, whose place was about a mile above the Goldman trestle, testified the flood swept over 20 acres of his land, taking all crops along, and that it covered his ground about 6 feet deep.

The elevations on the Cash Jones land range from 51 feet to 57.3 feet above the sea level. In the west corner there is a small portion of which the elevation is 51, then going east it gradually rises, the tract being divided practically in half by the contour line marked 54. It continues to rise as you go east, there being two small portions of which the elevation is greater than 57 feet. One of these faces the gravel road just back of Eiek’s store, while the other is along the northeast line of said Cash Jones’ tract, near the east comer thereof.

The elevation of the Webber tract is from 52 to 5'4.9, about two-thirds thereof lower' than 54.

The Ellen Randall 29-acre tract has elevations ranging from 52 to 54.9, the highest point being adjoining the highest point of the Webber land; that is the north corner of the Webber land. The house on the Web-ber land is in the south comer.

The Ellen Randall 40-acre tract has elevations ranging from 52 to 58 and 59, only a very small part being as low as 52, but fully two-thirds is below 56. About one-sixth of it is between 58 and 59.2 feet elevation, only a very small part being above 59. It slopes upward from the west corner towards the northeast line.

The elevations upon the Ellen Randall 10-acre tract range from 53 to 56.7.

Yogi’s residence was upon the Cash Jones land at an elevation of 55.5 feet. There is no testimony with regard to high-water marks at this place on Sunday and Monday. On the Webber tract, and near the south corner thereof at the elevation of 52.5 feet, there is a house at which the high-water mark of the October, 1913, flood is at an elevation of 57.47 feet, showing that the water rose 4.97 feet at that place. During the December, 1913, flood it rose 2.26 feet higher at this place than during the October flood.

There is a house upon the Ellen Randall 40-acre tract, situated near the east corner, at an elevation of 57.1 feet. At this place the high-water mark during the October flood shows 2.4 feet rise. In December it rose 1.3 feet higher. The' distance to the Poindexter trestle is about 3,000 feet. The difference in elevation between the bottom of both trestles and this place is 8.1 feet.

On the Charles Jones land, situated about 10,600 feet north of the trestles, the water rose 1.3 feet in October, and in December rose .4 of a foot higher. The difference in elevation between this place and the trestles is 16.8 feet.

At the Huff Power place 8,0000 feet in a northwesterly direction from the trestles the water was 4 feet high during the October flood, and in December was 1.1 feet higher. The difference in elevation between that place and the trestles is 10.6 feet.

The elevation at the front of Eiek’s store is 57 feet. Ernst testified that at Eiek’s store the water lacked two inches of coming “into the floor” during the October flood, and during the December overflow it was 16 inches deep in the house. The elevation at Seiler’s house, as shown by the map, is between 57 and 57.3 feet. The elevation under each of the 2 trestles is 49 feet, and the ground between them rises 2 feet next to the trestles. The elevation at the bank of the river, at the wagon bridge, is 60 feet; that at the base of the foothills on the north side of the track is 61 feet. A contour map was introduced in evidence, but it, as well as the other maps, is too large to be copied and made part of this opinion, so we content ourselves with stating the most important facts regarding elevations and height of water testified to by Da Nue and shown by his map.

Appellant challenges the sufficiency of the evidence to sustain the verdict and judgment. The first contention is that the flood was of such magnitude and extent as to constitute an act of God within the legal meaning of such term. We find no merit in this contention. Railway v. Pomeroy, 67 Tex. 498, 3 S. W. 722; Railway v. Madden, 46 Tex. Civ. App. 597, 103 S. W. 1195; I. & G. N. Ry. v. Penney, 178 S. W. 971.

The second contention under the first assignment of error, which is announced in propositions 2 and 3 and the subsidiary propositions thereunder, may be briefly stated to be that the evidence fails to show any causal connection between the partial filling in of the trestles and the destruction of plaintiff’s crops. This contention is made in two ways: First, that the evidence conclusively establishes that the damage would have been wrought whether any portion of the trestles had been filled in or not. Second, that if it does not conclusively establish that fact, it does establish such a state of facts as to make it evident that it is at most the purest surmise, speculation, and conjecture whether the partial fills contributed in any wise to cause the damages to ap-pellee’s property. The fifth proposition may profitably be considered with the second and third, for by it the contention is made that the court should have instructed a verdict for appellant—

“because the damages sought are for the total destruction of fully matured crops and farm produce, and the uncontradieted evidence shows that same would in any event have been flooded and damaged whether the Jills had been under the trestle or not, and in any event it is_ therefore pure surmise, speculation, and conjecture as to what particular part or amount of the damages, if any, was caused said matured crops and produce by the presence of the partial fills during a few hours at the inception of the flood ; and therefore any verdict in favor of appellee would necessarily be based on pure speculation, conjecture, and surmise.”

The testimony most favorable to appellee shows that the water was backed up on Sunday afternoon until it was 5 or 6 feet higher on the upper side of the dump than on the lower. This does not mean that the water on the upper side was 5 or 6 feet higher than its natural level would have been, for necessarily, by withholding the water from below, the natural level of the water below the dump was decreased. It is therefore a matter of conjecture to what extent the level of the water was raised by reason of the fills, and this uncertainty is heightened by the fact that in great overflows the dump, one-quarter to one-half mile long, between the trestles, concerning which no complaint is made, would obstruct the flow of the water and so would the trestles themselves to a slight extent. During the December flood, when the fills were gone, the high-water mark at the Webber house was 2.26 feet higher than during the October flood; at the Randall house 1.3 feet; at the Huff Power place 1.1 feet; at the Ghas. Jones place .4 of a foot. At the Eiek store the difference was about 18 inches. These differences are inconsistent with the theory that the greatest depth over plaintiff’s land during the October flood was caused by backwater. The difference increases as the water approached the trestles, instead of decreasing when it came within the zone in which the backwater was supposed to mark the highest point. The Huff Power place was entirely above where any backwater could possibly have reached, yet the water was 4 feet high at such place as compared to 2.4 feet at the Randall house and 4.97 feet at the Webber house, and the difference between the December and October floods was less than at the Randall and Webber houses. These figures emphasize the importance of determining the exact time when the water was highest during the October flood, for if it was highest at 6 p. m. on Sunday, as several witnesses testified, or some time Sunday night, as Vogt appears to think, it might well be that it reached its highest mark at a time when the backwater no longer existed, but had passed through the trestles after they had been almost restored to their former condition. That the high-water mark was reached at a time when-the water was Sowing instead of backed up is indicated by the fact that at the Randall place, which is 8.1 feet above the level at the trestle the water was 2.4 feet high, which would make it 10.5 feet at the trestle if it was backwater, while at the Webber place, which is 3.5 feet higher than at the trestle, it was 4.97 feet high, making only 8.47 feet at the trestle if it was backwater. But if it be conceded that the water reached its highest level at a time when it was restrained by the partial fills, and we think there is testimony to that effect, though it is inconsistent with the evidence just discussed, still we cannot escape the conviction that the evidence leaves it a matter of surmise and speculation as to what amount of damage to plaintiff’s crops can be attributed to the backwater. It is easy enough to say that if the fills cause the water to back up to a depth of 5 or 6 feet more than its natural level, it caused it to cover all of plaintiff’s fields. But, as has been stated, we know that evidence of its being 5 or 6 feet higher on the upper side than the lower does not show that the fills backed the water so it was 5 or 6 feet deeper than it would have been had they not. existed. But aside from this the evidence shows that plaintiff’s fields to a large extent lay right in the depression through which the water must come. It shows that such an enormous quantity came down through the depression leading from the Marshall levee that it was backing away from the trestles when it was joined by the water from the Power levee. It shows that from Sunday at noon until Monday morning water was pouring through that valley to such an extent that two openings, each of which was 150 feet wide to start with, and each of which increased rapidly in width, were filled to a depth of about 8 or 10 feet,' and the whole valley was a sea of water from the foot hills on one side of the river to those on the other side, Between 4 and 5 o’clock the Poindexter fill at the east end had disappeared to the extent of two-thirds, and .it had gone out in chunks at the west end. The evidence is convincing that most of the fill which disappeared during the flood was gone by 6 o’clock on Sunday, and on Monday morning practically all that washed out had gone. It is inconceivable that all of this water should pass along the puny sloughs and cover plaintiff’s crops only to the extent of 4 or 6 inches. The slough from the Marshall place was 40 feet wide and 7 feet deep. The one from the Power place was broader and shallower. The testimony is exceedingly meager on the issues relating to the exact depth of the water above the trestles during Sunday night and Monday morning. Jaynes and Lipske, both witnesses for defendant, both of whom looked at the water at the trestles late Sunday and again on Monday morning, testified that there was very little difference. Jaynes said it was about 4 inches lower, while Lipske testified it looked the sanie to him, but was falling slowly. Ernst, a witness for plaintiff, testified it had fallen a couple of inches or a foot; that at Eiek’s store it had not fallen much, but at his, Ernst’s, house it had fallen a foot. His house is close to Vogt’s house and "on the same side of the gravel road. Seiler, another witness for plaintiff, testified the water had fallen about 2 feet at his place Monday morning. His place is across the gravel road from Ernst’s place, Eiek’s place, and the valley in which the. two trestles are situated, and the water which would reach his place would have to pass over the gravel road or come from the Wilden place, a little above the railroad bridge. It appears that defendant’s employes opened up the cattle guards in the dump close to this place, and the water between the road and the track could flow through same. It is strange that it was not considered important to fix the time when these witnesses viewed the flood on Blonday morning. Because there may have been a difference in time when it was viewed by the witnesses, and on account of the facts above stated, there is not necessarily as great a conflict in the testimony as it first appears. Joe Urban, who has a suit against defendant, based upon the same theory as this one, testified the water began falling on Monday, and that it was deep all over Vogt’s land on Monday. Vogt testified it rose up to Monday morning. But taking the testimony most favorable to plaintiff, we find that the water was slightly lower on Monday morning than on Sunday afternoon, this difference being most probably from 4 inches to a foot, as the conditions at Seiler’s are such as to make the water at his place hardly a fair test of conditions across the road in the valley where the great flood was passing through. Vogt’s land had elevations ranging from 51 to 58 feet, and yet on Monday his whole place was under water, and some of his witnesses say it was under water on Tuesday. It is evident so much water came down the valley that a very large part of his crops, if not all, would have been washed out regardless of the existence of the fills. What is a conclusion to the effect that the fills caused the loss worth in the face of the testimony in this record? What is a conclusion to the effect that the water would have only damaged cotton from 4 to 6 inches from the ground worth when measured by the evidence relating to the elevations upon his fields and of the enormous amount of water which swept down through them on Sunday afternoon, Sunday night, and all day Monday? If it be conceded that the fills caused the water to be 2 feet higher on Sunday than on Monday, the fact remains that all of the Web-tier land is lower than 55 feet above the level of the sea; two-thirds of the Cash Jones tract; nearly all of' the Randall 20-acre tract; about half of the Randall 40-acre tract; also, about two-thirds of the Randall 10-acre tract. If the water was all over Vogt’s land on Monday, which is not denied, it was from 2 to © feet deep upon about two-thirds of the land.

We conclude that the second contention stated by us as being made under propositions 2 and 3 should be sustained, and that the contention asserted in the fifth proposition must also be sustained. The fourth, sixth, and seventh propositions are without merit. The first assignment is sustained for the reasons above stated.

The second and twenty-ninth assignments relate to the same matter as the first, and need not be considered.

By the third assignment complaint is made of the admission of certain testimony of Herman Goldman as follows:

“The water on the Vogt farm was backwater, and not flowing water. The water had backed up-from the railroad track on account of that embankment under the trestle.”

This testimony was objected to as a conclusion' of the witness, and one at that which related to.the sole issue to be determined, and also because it was not alleged that the railroad embankment caused the water to back up, the allegations being directed only at the fills. We think it was permissible for the witness to testify that the water was backed up, which follows necessarily from obstructions thereof. G., C. & S. F. Ry. v. Locker, 78 Tex. 279, 14 S. W. 611. The statement that such backing up was on account of the portions of the 3-mile émbankment made by fills under the trestles was a conclusion of the witness upon a matter upon which the jury was in as good a position to pass as the witness. The water would necessarily, if obstructed, back up first at the lowest part of the embankment, namely, the fills under the trestles; but whether those fills alone were responsible for the backed up condition of the water standing 8 or 9 feet high against them and from 6 to 8 feet against an embankment between them, the length of which was a quarter to a half mile, as well as other portions of embankment, was one of the vital questions to be detérmined, and we do not think it was permissible to establish it by conclusion. However, as part of the answer was admissible and it was objected to as an entirety, the court did not err in overruling the objection, and the assignment must be overruled.

There is no merit in the fourth, fifth, and sixth assignments of error. The witnesses merely testified that the water was higher on the upper side because of the fills under the trestles. If it was backed up it is evident from the other testimony that the fills contributed to cause the condition, and the jury would necessarily so conclude. The testimony is not subject to the construction that the witnesses were undertaking to attribute the depth of the water solely to the fills.

The seventh assignment is well taken. The witness should not have been permitted to state the conclusion that the fills caused the water to fill the whole valley up.

There is no merit in the eighth assignment. While the question assumed a fact, that fact had been testified to by the witness, and the error, if any was committed, was harmless.

The ninth and eleventh assignments are sustained. It was not permissible for Vogt and Urban to testify that Vogt would only have lost certain portions of his crops had the fills not existed. These conclusions went to the most vital issue in the case, namely, whether the fills were the proximate cause of the destruction of any part of plaintiff’s crops, and, if so, what part. T. & P. Ry. v. Slator, 102 S. W. 156; Taylor v. Butler, 168 S. W. 1005; Gate City v. McGuire, 112 S. W. 439.

Assignments 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 28 are overruled.

We have held that the peremptory instruction should have been given for the reason that the testimony was of such a character that it left it altogether a matter of surmise and speculation as to what extent the damage to plaintiff’s crops was caused by the fills, if they were the proximate cause of any part of such damage. If this could not be said of the testimony as a matter of law, it would have been proper to submit the issue which defendant sought to have submitted in the special charge mentioned in the twenty-sixth assignment of error, namely, that if the jury was unable to determine from the evidence with reasonable certainty what portion of the' damage was proximately caused 'by the existence of the fills, they would have to find for the defendant.

The twenty-seventh assignment complains of the refusal of a special charge, which would have required the jury to find for defendant if it was unable to determine what portion of the damages was caused by the fills and what portion by other obstructions if they found there were other obstructions. The evidence shows that there was a gravel road at the south corner of the Webber land, between it and the railroad track, which road also runs along the south line of the Gash Jones tract; it also shows that a gravel road ran along the southwest side of the Webber tract. No testimony is pointed out in the statement, nor have we found any, from which the jury could find that-the roads in the vicinity of Vogt’s land alone would have caused any water to back upon his land, the drainage conditions and size of bridges not being shown. There is some testimony of the road obstructing water in front of the Goldman trestle. The assignment is overruled.

The judgment is reversed, and. the cause remanded.
      <5&wkey;For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    L. C. MALONE LUMBER CO. v. DAVIS CO.
    (No. 20.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 11, 1915.
    On Motion for Rehearing, Dec. 9, 1915.)
    1. GARNISHMENT <&wkey;127 — RIGHT OR GARNISHEE.
    Where money of a judgment debtor comes into the hands of a garnishee, it may apply the funds to debts due it.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. § 252; Dec. Dig. &wkey;127.]
    2. Garnishment <&wkey;191 — Proceedings—Answer.
    Vernon’s Say les’ Ann. Civ. St. 1914, art. 307, provides that, where the garnishee is discharged upon his answer, the costs, including a reasonable attorney’s fee, shall be taxed against plaintiff, while article 308 provides that it shall be a sufficient answer to any claim of defendant against the garnishee found on any indebtedness of such garnishee, or on possession by him of effects, for the garnishee to show that such indebtedness was paid or such effects were delivered in accordance with the law. The garnishee’s answer showed that at the time of the service of the writ nothing was due the judgment debtor, while a large sum was due the garnishee. The answer further showed that after the service of the writ funds to a considerable amount came into the hands of the garnishee, and that they were applied to payment of debts of the judgment debtor. IXeld that, where the answer was not controverted by plaintiff, judgment for the surplus only could be rendered against the garnishee which was entitled to its costs.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. §§ 372-379; Dec. Dig. <&wkey;>191.]
    Error from Tyler County Court; A. G. Reid, Judge.
    Action by C. M. Davis, doing business as the Davis Company, against E. E. Jeanes and another, in which the L. C. Malone Lumber Company was garnished. Prom a judgment against the garnishee, it brings error.
    Reversed and rendered.
    Mooney & Shivers, of Woodville, for plaintiff in error. J. W. Thomas, of Lufkin, for defendant in error.
   MIDDLEBROOK, J.

This appeal grows out of a suit by C. M. Davis, composing the Davis Company, against E. E. Jeanes and John Jeanes, a partnership composing the Jeanes Lumber Company; the original suit being upon debt The original debt was upon open account, but had been closed up by notes, and the suit was filed and garnishment proceedings had upon plaintiff in error before the notes became due, and the plaintiff laid his cause of action upon the original account. Before the cause was tried the notes became due, and the plaintiff amended and pleaded in the alternative upon the notes. The suit was filed August 25, 1914.

On September 12, 1914, plaintiff filed its amended pleadings, and pleaded the three notes, two for $200 each, and one for $150, dated August 19, 1914, and due and payable 30, 60, and 90 days, respectively, from date, and again on December 14, 1914, plaintiff amended his petition and pleaded the notes.

On the 25th day of August, 1914, plaintiff made application for and secured a writ of garnishment against the L. C. Malone Lumber Company, alleging that it was a company doing business in Et. Worth, Tarrant county, Tex., which garnishment was duly served upon the garnishee; and on the 5th day of September, 1914, the said Malone Lumber Company answered, after the formal or introductory part of the answer, as follows:

“I. That at the time the writ of garnishment was served upon the L. C. Malone Lumber Company, in Tarrant county, Tex., to wit, August 26, 1914, 8:55 a. m., the L. C. Malone Lumber Company was not indebted to the E. E. Jeans Lumber Company, but, on the contrary, the E. E. Jeans Lumber Company was indebted to the L. C.. Malone Lumber Company in the sum of $l,38i.36, in that the E. E. Jeans Lumber Company had a credit on the books of the L. C. Malone Lumber Company of $569.68 and a debit on the books of the L. O. Malone Lumber Company of $1,951.04.
“II. That at present time (wherein answer is made, September 5, 1914) the L. C. Malone Lumber Company is indebted to the E. E. Jeans Lumber Company in the sum of $52.83, in that the E. EX Jeans Lumber Company has a credit on the books of the L. C. Malone Lumber Company of $2,346.84, and the E. E. Jeans Lumber Company has a debit on the books of the L. C. Malone Lumber Company of $2,294.01.
“III. That, other than above stated, the garnishee, L. C. Malone Lumber Company, was not at the time said writ of garnishment was served upon it, or at present time (time answer is made), in possession of any effects belonging to the said E. E. Jeans Lumber Company, and that it does not know of any person or persons who are indebted to the said E. E. Jeans Lumber Company or having effects belonging to the E. E. Jeans Lumber Company in their possession.
“IV. This garnishee, L. C. Malone Lumber Company, said that it has had to employ an attorney to write this answer for it, at the reasonable cost of $25.
“Wherefore garnishee, L. C. Malone Lumber Company, prays that it be discharged from any liability under said garnishment, other than the sum of $52.83, answered for herein, with its costs and attorney’s fees, and each other and further relief and decrees of the court that it may be justly entitled to. Thompson & Bar-wise, Attorneys for Garnishee, L. C. Malone Lumber Co.
“The State of Texas, County of Tarrant.
“Before me, the undersigned authority, on this day personally appeared L. C. Malone, who, after being by me first duly sworn, upon oath deposes and says: That he is the Sec. of the L. C. Malone Lumber Company, garnishee herein; that he has read the above and foregoing answer, and affiant avers that the answers therein contained to the several matters inquired of in the said writ of garnishment are true answers.
“L. C. Malone.
“Subscribed and sworn to before mo on this 5th day of September, 1914, by L. C. Malone.
“Geo. E. Miller, Jr.,
“Notary Public: in and for Tarrant County, Texas.”

This answer was never controverted by the plaintiff.

On the 31st day of December, 1914, the trial court entered judgment in said cause against the Malone Dumber Company,' garnishee, in favor of the Davis Company, in the sum of $395.80, and costs, with 6 per cent, interest per annum thereon, and did not render any judgment for attorney’s fee for the Malone Lumber Company. The case is before this court on writ of error.

It will be seen by investigation of the record that the garnishee filed its verified answer, as is required by law, showing at the time the amount of its indebtedness to the Jeanes Lumber Company. This answer is not controverted by the plaintiff.

Article 308, Vernon’s Say les’ Civil Statutes, reads as follows:

“It shall be a sufficient answer to any claim of the defendant against the garnishee founded on any indebtedness of such garnishee, or on the possession by him of any effects, or where the garnishee is an incorporated or joint stock company, in which the defendant was the owner of shares of stock or other things therein, for the garnishee to show that such indebtedness was paid, or such effects were delivered, or such shares of stock or other interest in such company was sold under the judgment of the court, in accordance with the provisions of this chapter.”

Article 307, Vernon’s Sayles’ Statutes, provides :

“Where the garnishee is discharged upon his answer, the costs of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against the plaintiff; where the answer of the garnishee has not been controverted and the garnishee is held thereon, such costs shall be taxed against the defendant and included in the execution provided for in this chapter; where the action is contested, the costs shall abide the issue of such contest.”

The only question for us to decide is: Is there fundamental error upon the face of the record? The garnishee, in our opinion, is entitled to a judgment upon its answer and whatever said answer shows, if anything, to be due the judgment debtor at the time of the service of the writ of garnishment, and on the date of the filing of the answer. The answer shows that at the time of the service of the writ of garnishment nothing was due said judgment debtor; on the other hand, the said judgment debtor was due the garnishee $1,300. The answer further shows that after the service of the writ funds to the amount of $2,300 came into the hands of the garnishee, and that said garnishee applied said money to payment of all debts due the judgment debtor, as it had a right to do (Ellison v. Tuttle, 26 Tex. 285), leaving a balance due the judgment debtor of $52.83 in its hands.

The judgment is therefore reversed, and here given for appellee against the appellant for $52.83, and the garnishee is allowed the sum of $25; same being his reasonable attorney’s fee.

This cause is therefore ordered reversed and rendered in accordance with the above views.

On Motion for Rehearing.

Appellant’s counsel so earnestly insists that this court has erred in its decision of this ease in his motion for rehearing we have taken the case under consideration again, and in accordance with supposed errors presented in his motion for rehearing. In his motion for rehearing appellee insists that he is entitled to a judgment on the answer of appellant', garnishee, for the sum of $395.-80, plus $569.80. We have no hesitancy in saying that he is as justly entitled to such sum as he is entitled to the sum of $395.80.

There is nothing in this record to show how it came about that the Malone Lumber Company, in its dealing with the Jeanes Lumber Company, was able, after garnishment was served upon it, to get its debt of $1,300 plus against the Jeanes Lumber Company settled, and, in addition thereto, save $52.83 on the garnishment for the Davis Company. Eor all this court knows, it may have been' a thousand transactions, or it may have been one transaction. Suppose it grew out of fifty-three transactions, and on each transaction the Malone Lumber Company was able to save to the garnishee $1; would counsel contend that when the Malone Lumber Company had settled its own debt business must cease, or all that came into the hands of the Malone Lumber Company from the Jeanes Lumber Company must be held by the Malone Lumber Company for the Davis Company, regardless of cost to the Malone Lumber Company? If such be the contention of counsel, and if such were the law, it is safe to say the Davis Company would never have gotten anything in consequence of its garnishment.

Suppose the $52.83 is the result of one transaction between the parties, would ap-pellee’s counsel contend that more could be demanded? We think not. Vet, so far as this record discloses, it may have been one transaction, and, as we understand the law, the only way for appellee to have found out whether the garnishee was answering back to him, fairly, if he believed such was not the case, was to controvert his answer, and at least give the garnishee opportunity to answer such contest.

The statute quoted in the original opinion in this case as to attorney’s fees is clear, and we see no reason for mistake of the intention of this court on this matter.

The motion for rehearing is overruled.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON OIL CO. OF TEXAS v. DAVIS et al.
    (No. 50.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 16, 1915.
    Rehearing Denied Jan. 20, 1916.)
    1. Appeal and Error &wkey;>1097 — Former Appeal — Questions Decided — Review.
    Where, on a former appeal of an action to try title, the court held that the judgment upon which one of the parties based his title was void, such decision was not res judicata, preventing the review of the question of the validity of such judgment on a subsequent appeal, since the subsequent review of questions decided on a former appeal is within the discretion of the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427; Dec. Dig. &wkey;1097.]
    2. Trespass to Try Title <&wkey;6 — Right to Rely on Inconsistent Grounds.
    In an action to try title, a claimant may rely, both on title of record and title by adverse possession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. <&wkey;6.]
    3. Adverse Possession <&wkey;115 — Exclusive Possession — Ootenants—Nonassertion of Title — Presumption—Question for Jury.
    Where one claiming land under muniments of title duly recorded pays taxes for more than 10 years, and uses the land as his own to the exclusion of all others, and persons claiming to be his ootenants exert no rights, nor meet any obligations with respect to the land during such time, a presumption of the ouster of such coten-ants arises, and the issue as to whether claimant has acquired title by adverse possession becomes a question for the jury.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. &wkey;115.]
    4. Adverse Possession &wkey;jll5 — Buying Outstanding Claims — Adverse Rights — Recognition.
    Where defendant, occupying land under a claim of title, derived from a tax deed, bought in the claims of persons claiming to be cotenants with him as heirs of the delinquent, he did not thereby as a matter of law recognize the coten-ancy of such heirs, since one claiming the fee in land may properly buy in outstanding claims to quiet his title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. c&wkey;>115.]
    Appeal from District Court, Newton County ; A. E; Davis, Judge.
    Trespass to try title by E. M. Davis and others against the Houston Oil Company of Texas and others. Judgment for plaintiffs, and the named defendant appeals.
    Reversed and remanded.
    See, also, 162 S. W. 913.
    Parker & Kennerly and J. J. Lee, all of Houston, for appellant. Holland & Holland, of Orange, for appellees.
   MIDDLEBROOK, J.

This is a suit in trespass to try title by the appellees against the appellant, Houston Oil Company of Texas. Appellant answered by plea of not guilty, and pleaded specially the three, five, and ten year statutes of limitation, and in addition thereto pleaded over against its war-rantors. The case was tried in the district court of Newton county, Tex., before a jury, on the 3d day of March, 1915; the trial court peremptorily instructing a verdict for plaintiffs against the defendant, Houston Oil Company of Texas, and also against the warrantors to the Houston Oil Company; but the Houston Oil Company of Texas is the only party appealing, the other defendants having adopted the answer of the Houston Oil Company. So there is nothing presented for determination by this court as to the warrantors.

Briefly stated, the facts pertinent to the issues presented to us are substantially as follows:

It is agreed that appellant has the title to two-thirds of the 640-acre Nancy Cooper survey of which the land sued for is a part. It is also agreed that appellees are the only heirs of Nancy Cooper, deceased, who have not conveyed their interest to the appellant, or to those under whom it claims, and that Nancy Cooper is the common source.

Appellant introduced in evidence a judgment in favor of H. C. Fuller against the unknown heirs of Nancy Cooper, deceased, decreeing the land to H. C. Fuller, rendered in the district court of Newton county, Tex., April 5, 1899; also a deed by the sheriff of Newton county, Tex., of date June 4, 1878, executed by C. A. Hancock, tax collector of Newton county, Tex., being a tax title, and which deed was duly recorded July 8, 1878, conveying the entire 640 acres of land to W. R. Fuller, and a deed from Stephen Gilchriest and wife to W. R. Fuller, conveying all their right, title, and interest in the Nancy Cooper survey of date June 19, 1878, which deed was duly recorded in the real estate records of Newton county, Tex., July 5, 1878 (and the facts show Gilchriest and his wife to be heirs of Nancy Cooper), and a deed from J. W. Cloud and wife, dated January 25, 1882, and a deed from E. M. Lyons dated September 12, 1883, and a deed from G. W. Roberts, of date November 23, 1878, to W. R. Fuller, each of which deeds were duly recorded, and conveyed their right, title, and interest in the Nancy Cooper 640-acre survey (these were also heirs of Nancy Cooper, deceased) ; also a deed from W. R. Fuller to H. C. Fuller, of date February 22, 1888, conveying 160 acres of the Nancy Cooper 640 acres, and a deed from W. R. Fuller to G. W. Fuller, of date October 15, 1894, conveying 160 acres of said land, both of the last-mentioned deeds being full warranty deeds, and duly recorded immediately after the execution thereof. H. C. Fuller and G. W. Fuller are sons of W. R. Fuller,- deceased. Then follows the introduction of full warranty deeds from the heirs of W. R. Fuller to John H. Kirby, ranging in date and record from about the 1st of July, 1899, to the latter part of December, 1899, and from John H. Kirby on down to the appellant in direct chain. He also introduced in evidence the original petition in the suit of H. 0. Puller v. Unknown Heirs of Nancy Cooper.

I-L C. Puller testified: That he moved onto the 640-acre tract of land at the request of his father, W. R. Puller, to perfect the tax title. That he began to build a log house on the land in the fall of 1880, and moved into the house and lived on the land from January, 1881, to October, 1889. That he had two fields on the land which he cultivated, one consisting of about 5 acres and the other 10 or 12 acres, and that later he built a good box house on the land, and lived in that, and also built a cotton shed on the land, and that after he moved off of the land, in 1889, he cultivated the land for two years following, and then his brother, Ab Puller, lived on it, and cultivated it a year, and a man by the name of Dosier lived on and cultivated it a year, and then it was rented to a man named Mayes, who cultivated the land, but did not live on it. That he rented the land to these parties, and that he was looking after the land for his father, W. R. Puller. That his father claimed the land as his own from the time he bought it at tax sale, and that his father, to his own knowledge, paid the taxes on the land from the time he bought it till his death in 1895, and that he had had all of the tax receipts in his possession for those dates, except one (the missing receipt was shown by another witness to be for the year 1891). That he heard that •one Gilchriest was claiming an interest in the land as an heir of Nancy Cooper, and that he went to see Gilchriest, he thought in the year 1889, to buy his interest in the land for himself, but he did not buy it, and Gilchriest came to see his father, and his father bought him out, paying him $10 or $15. That just before they sold to Mr. Kirby he wrote Mr. Ed Davis. That he wrote him because he had been told that he was an heir of Nancy Cooper, and Homer Howard was wanting to buy the land for Kirby, and he said it would be best to get all the heirs in to avoid a lawsuit, and he wrote Mr. Davis, if he was an heir of Nancy Cooper, to come up and we could settle it up without a lawsuit, but Davis never answered his letter. That he filed a suit against the Un'.known Heirs of Nancy Cooper, “to get the title perfected, get a good title to it, so we could sell the land, or keep it, just as we liked. We didn’t think we could sell the land unless we had a regular chain of title to it, a perfect chain of title to it. At the time I wrote that letter, and at the time I brought the suit, I wasn’t trying myself to sell the land. Some of the heirs wanted to sell it; they were trying to sell it to Mr. Homer Howard. I suppose he was buying it for Mr. Kirby.” That the suit and his writing to heirs of Nancy Cooper all took .place after the death of his father, W. R. Puller. That he found out from Mr. Dyons who the heirs of Nancy Cooper were, and where they were.

P. P. Puller testified that, during the time H. C. Puller lived on the Nancy Cooper 640 acres, his father, W. R. Puller, claimed the land, and that he claimed it against everybody, the entire world.

G. W. Powell testified that no one claimed the land but Mr. Puller; that he heard H. C. Puller’s father say he bought the land and gave Henry a place, and the place had been known as the Henry Puller old place since 1880.

A certificate from the comptroller’s office showed that the taxes on the 640 acres of land had been paid by the Pullers and those claiming under them from 1879 to and including 1914.

There is an array of testimony along' the lines already indicated; but what we have set out is deemed sufficient for an intelligent view of the case.

Appellant’s first assignment of error is very lengthy, and really presents two assignments in one, which should not be done; but no objection is urged to it, and we consider it as submitted. It is to the effect that the trial court erred, first, in instructing a verdict for appellees, because the judgment in favor of H. C. Puller against the unknown heirs of Nancy Copper, deceased, precluded their recovery in this case; and, second, because the evidence showed that the defendant and those under whom it claimed had prefected title under the three, five and ten year statutes of limitation, as pleaded by it.

This case has been twice before in the Courts of Civil Appeals, and is reported in 132 S. W. 808, and 162 S. W. 913; and the late Justice Reese of the Pirst Court of Civil Appeals found under the facts that the judgment in favor of H. C. Fuller v. Unknown Heirs of Nancy Cooper was a void judgment. Appellees contend that such finding is res ad judicata of that matter, and it is not subject for review now, and cite Campbell v. Elliott, 151 S. W. 1180, Moore v. Chamberlain, 152 S. W. 195, Pease v. State, 155 S. W. 657, and Harris v. Wagnon, 162 S. W. 2; and the case of Moore v. Chamberlain seems to hold just what appellees’ counsel contend. The other cases are more moderate in expression of this viewpoint. We do not believe such arbitrary rule can be sanctioned, but, on the contrary, that the proper rule is laid down in Kempner v. Huddleston, 90 Tex. 182, 37 S. W. 1066, and authorities therein cited.

However, upon investigation of the record, we find the same facts deduced on this issue upon the later trial, as is fully set out in Judge Reese’s opinion in 132 S. W. 810; and we too find the judgment to be a nullity, and adopt the findings of Judge Reese upon this issue. Appellant’s first assignment as to this issue is therefore overruled.

This disposes of the case, except as to title by limitation. Appellees contend that we cannot consider the limitation title, because appellant relied upon his title as de-raigned through the judgment in favor of H. C. Fuller against the unknown heirs of Nancy Cooper, deceased; and, this having failed, appellant is precluded from showing title through W. R. Fuller by limitation. We do not understand that appellant relied solely on such title, but, on the contrary, that it, as is usual in such cases, was relying on everything it could show favorable to itself, and everything it could show adverse to the appellees. Then the question is: Do the facts of this case present such probative force as to require a submission of them to the jury for its consideration and determination? We think they do. The trial court evidently adopted the theory of counsel for appellees quoted above, when he decided to peremptorily instruct a verdict for the plaintiffs.

The evidence raises the issue that the appellant and those under whom it claimed had perfected its title under the statutes of limitations as pleaded by it. _ Such being true, it was for the jury to determine, and not the court. Vernon’s Sayles’ Statutes, tit. 87, c. 1: Bracken v. Jones, 63 Tex. 184; Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 706; Church v. Waggoner, 78 Tex. 200, 14 S. W. 581. Again a tenant in common may, in addition to his possession, set up claim adverse to his cotenants for all or a part of the land occupied by him. Mayes v. Manning, 73 Tex. 44, 11 S. W. 136; Byers v. Carll, 7 Tex. Civ. App. 423, 27 S. W. 190; Lewis v. Terrell, 7 Tex. Civ. App. 314, 26 S. W. 754; Madison v. Matthews, 66 S. W. 803. If a tenant in common takes adverse possession of all the land and claims it as his own, it is for the jury to determine, under all of the facts as to whether he has matured his title under the statute of limitation. Portis v. Hill, 3 Tex. 279; De Leon v. McMurray, 5 Tex. Civ. App. 280, 23 S. W. 1039; Alexander v. Kennedy, 19 Tex. 496, 70 Am. Dec. 358; Humphreys v. Edwards, 89 Tex. 512, 36 S. W. 334; Stubblefield v. Hanson, 94 S. W. 408.

One who claims land under muniments of title duly recorded and pays taxes on it for many years, more than 10 years, and uses the land as his own, to the exclusion of all others, and those who claim to be cotenants during such time, has nothing to do with such land, such claim, possession, and payment of taxes raises the presumption of ouster of his cotenants, and the issue of fact as to whether or not he acquired title to all of the land under the statute of limitation, as against his cotenants, is subject-matter for determination by the jury. Mayes v. Manning, 73 Tex. 44, 11 S. W. 136; Carr v. Alexander, 149 S. W. 223; Stubbelfield v. Hanson, 94 S. W. 408. See, also, the above-cited authorities as to acts of adverse claimants, such as building houses, clearing and cultivating land, etc., as acts signifying adverse claims. The tax deed to W. R. Fuller, and the deed from the heirs of Nancy Cooper to W. R. Fuller conveying entire interest in the land, and not an undivided interest, and these deeds being duly and properly recorded, was sufficient to raise the issue of title by limitation to all of the land in controversy, and the issue should have been submitted to the jury. Lewis v. Terrell, 7 Tex. Civ. App. 314, 26 S. W. 754; Alexander v. Kennedy, 19 Tex. 496, 70 Am. Dec. 358.

Appellant’s second assignment of error is to the effect that the court erred in holding as a matter of law that the evidence showed that the act of W. R. Fuller in purchasing the interest of the heirs of Nancy Cooper was a recognition of the title of the heirs of Nancy Cooper and of the plaintiffs, and of the cotenancy of plaintiffs. As we understand the law, there is no vice in a man’s going out and purchasing his fee, and thereby quieting title to land he claimed as his own; and whether or not W. R. Fuller was doing this in buying out Gilchriest and other heirs of Nancy Cooper, or whether he was recognizing them as cotenants, was matter for the jury to determine. Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705; Gordon v. Hall, 29 Tex. Civ. App. 230, 69 S. W. 220; Word v. Oil Co., 144 S. W. 334.

The third, fourth, fifth, and sixth assignments of error are as to improper testimony, admitted by the court during the trial, as to statements and transactions after the death of W. R. Fuller. Appellant having introduced in evidence the judgment in favor of H. C. Fuller against the unknown heirs of Nancy Cooper, we are not prepared to say that the court committed error in admitting such evidence.

Under our view of this ease, the honorable trial court should have submitted the issues to the jury under proper instructions, and his failure to do so requires a reversal of the case.

Reversed and remanded.
      <§=pFor ether cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    J. I. CASE THRESHING MACH. CO. v. WEBB.
    (No. 7002.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Sales t&wkey;38—Action for Price—Defense —False Representations.
    That one buying an automobile was not damaged by the false statements made by the seller’s agent to bring about the sale that the buyer’s wife desired him to make the purchase did not prevent the buyer from setting up such statements as a defense in an action on a check and notes given in payment and the mortgage securing the same; the rule that fraud, to be the basis for recovery of damages, must have resulted in some pecuniary injury not applying in sucia case.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. ©=538.]
    2. Evidence ©=5434 — Action eor PRICE — MISREPRESENTATIONS 03? AGENT — EVIDENCE.
    In an action on a check and notes given in payment for an automobile, evidence that plaintiff’s agents represented to defendant prior to the purchase that defendant’s wife told the agents to get defendant to make the purchase, and that she was pleased with the machine, was properly admitted, notwithstanding a provision of the sale contract that plaintiff would not be responsible for any undertakings, promises, or warranties made by their agents beyond those expressed in the contract; such provision not operating to prevent defendant from showing that the contact was procured by false representations of the agents.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. ©=5434.]
    3. Evidence ©=5317 — Hearsay—Sales.
    In an action for the price of an automobile, wherein the defense was that plaintiff’s agents had falsely stated that defendant’s wife desired him to buy the machine, defendant’s testimony as to what his wife told him relative to what she said to the agents, being hearsay, was improperly admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174=1192; Dec. Dig. ©=5317.]
    4. Appeal and Erbob ©=51050 — Harmless Error — Hearsay Evidence.
    The admission of such evidence was harmless, however, where defendant’s wife testified fully to the same facts.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. ©=51050.]
    5. Sales ©=52 — Action jpor Price — Evidence.
    Where, in an action on instruments given for the price of an automobile, the defense was that the sale was procured by false representations as to statements made by defendant’s wife to plaintiff’s agents, defendant’s wife was properly permitted to detail the conversation between herself and such agents when they showed her the car with a view of selling it to defendant.
    [Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 118-144, 1045; Dec. Dig. ©=552.]
    6. Trial ©=525 — Argument—Right to Open and Close — Pleading.
    Under Rules of Practice in the District and County Courts, rule 31 (142 S. W. xx), relative to the right to open and close the argument, where in an action on instruments evidencing the price of an automobile defendant admitted execution of the instruments, and in avoidance thereof pleaded fraud of plaintiff’s agents, and further pleaded “that but for the facts set out in this answer the plaintiff would be entitled to recover, * * * and defendant assumes the burden of proving his defense, and claims the right of opening and closing the argument,” defendant was entitled to open and close the argument.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-74; Dec. Dig. ©=525.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the J. I. Case Threshing Machine Company against J. E. Webb. From judgment for defendant, plaintiff appeals.
    Affirmed.
    A. B. Wilson, of Houston, for appellant. Cole & Cole, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

The J. I. Case Threshing Machine Company brought this suit against J. E. Webb to recover $665 upon a check given by defendant to plaintiff, and upon nine promissory notes aggregating $1,200 and to foreclose a chattel mortgage executed by defendant to plaintiff upon an automobile as security for the payment of said notes.

Appellant, in its brief, makes the following statement of the' issues made by the pleadings of the parties, which we adopt:

Plaintiff alleged that on July 29, 1914, it sold and delivered to defendant one automobile, defendant executing and delivering to plaintiff in payment therefor his check on the Humble State Bank for $665 and nine promissory notes, due and payable monthly, beginning September 1, 1914, for the aggregate sum of $1,200, said notes bearing interest at 8 per cent, per annum from date, and providing 10 per cent, attorney’s fees if suit was brought thereon, or if placed in the hands of an attorney for collection; that defendant executed and delivered to plaintiff a chattel mortgage of the same date to secure the payment of the balance of the purchase price of the automobile; that defendant instructed the Humble State Bank not to pay said cheek, which was returned unpaid; that defendant is further indebted to plaintiff in the sum of $10 a month for the storage of the automobile since August 1, 1914; that plaintiff placed said notes in the hands of its attorney for collection and is entitled to recover the 10 per cent, attorney’s fees. Plaintiff prayed for judgment for its debt evidenced by the check, notes, for the storage charges, for attorney’s fees, foreclosure of the-chattel mortgage, and general relief.

For answer defendant alleged that he executed the chattel mortgage, check, and notes by reason of the misrepresentations of plaintiff’s agents, said misrepresentations consisting of the statement by plaintiff’s agents to defendant that they (plaintiff’s agents) had exhibited the automobile to defendant’s wife, that she had ridden in it, and that she desired same, and had told them (plaintiff’s, agents) to persuade defendant to purchase, the automobile for her; that said representations were untrue, were material, and, without the same having been made to defendant by plaintiff’s agents, he would not have executed the notes, check, and chattel rnort--gage; and that he believed the statements and representations made to him by plain-, tiff’s agents to be true. Defendant prayed, for the cancellation of the check, notes, and. chattel mortgage.

Plaintiff by supplemental petition alleged that defendant executed and delivered to it an order in writing July 29, 1914, for said, automobile, which order stipulated that no; ■branch, house manager, salesman, or local dealer had any authority to make any different contract, representations, or warranties, and that they were not authorized to bind the company by any act, statement, or representations, and that it was not responsible to the purchaser for any promise, undertakings, or warranties made by the representations beyond those expressed in the order; that, in pursuance of said order, plaintiff delivered to the defendant the automobile, defendant executing and delivering to the plaintiff the check, notes, and chattel mortgage as alleged.

Defendant denied the defenses set up in plaintiff’s first supplemental petition, and alleged that they executed the order by reason of the fraud and misrepresentations of the plaintiff’s agents as set forth in defendant’s answer.

The case was submitted to a jury upon special issues, and upon a return of their answers thereto the court entered judgment for the defendant canceling the check, notes, and chattel mortgage, and against plaintiff for costs, from which judgment the plaintiff has appealed.

Appellant, under appropriate assignments of error, urges the following proposition:

“Plaintiff sold and delivered to the defendant an automobile, in consideration of which defendant executed and delivered to plaintiff his check for $665, nine promissory notes for the aggregate sum of $1,200, and a chattel mortgage upon the automobile securing the payment of the notes; the automobile being delivered to plaintiff by defendant. Defendant stopped payment of the check, refused to pay the notes, and plaintiff filed suit to recover the amount of the check and notes, foreclosure of the mortgage securing same, and for storage of the car. Defendant pleaded, and introduced evidence to support said plea, that plaintiff’s agents induced him to enter into said contract for the purchase of said automobile and to execute his check, notes, and chattel mortgage by falsely representing to defendant that defendant’s wife had ridden in the car and was pleased with it, and wanted plaintiff’s agents to get defendant to purchase said automobile, but did not allege any pecuniary damage to him. Such a defense is unavailable in law or equity, and did not constitute any legal defense to plaintiff’s cause of action, and the court erred in not instructing a verdict for the plaintiff for the amount sued for.”

As we understand, the above proposition, it is the contention of appellant that the fraud of appellant’s agent alleged in the appellee’s answer, which induced the appellee to buy the automobile and to give his check and notes for the purchase money, did not constitute any defense to plaintiff’s cause of action, for the reason that the defendant did not allege that he had suffered any pecuniary damage as the result of the fraud so practiced upon him. It seems to be admitted by the appellant in its proposition that the fraud was proved as charged in appellee’s answer. At any rate, we find from the evidence in the record that the allegation of fraud was proved as charged. It is elementary that fraud, in order to be the basis for the recovery of damages, must have resulted in pecuniary injury to the party complaining; but this rule applies generally to only those cases where the injured party is seeking to recover damages from the wrongdoer as indemnity against the injury which he has sustained by reason of the fraud, and has no just application to a case like the present, where the fraud is relied upon as a defense to the enforcement of an executory contract. In cases such as this, if the false representations relate to a material fact, the law implies that the defrauded party has suffered an injury sufficient to defeat a recovery. Kanaman v. Hubbard, 160 S. W. 304; Stewart v. Lester, 49 Hun, 58, 1 N. Y. Supp. 699; MacLaren v. Cochran, 44 Minn. 255, 46 N. W. 408; Smith v. Countryman, 30 N. Y. 655; Brett v. Cooney, 75 Conn. 338, 53 Atl. 729, 1124; Harlow v. La Brum, 151 N. Y. 278, 45 N. E. 859.

The rule is thus stated in 14 Am. & Eng. Ency. p. 140:

“It has been held that pecuniary damage is not necessary to entitle a person to relief by way of rescission; but that it is enough for him to show that he has been induced by material, false, and fraudulent representations to enter into the contract which he would not have entered into but for such representations.”

We think that the fraud alleged in the petition, and which admittedly was proved induced the defendant to enter into a contract which he otherwise would not have made, and that his contract, being executory, was voidable for the fraud as a defense to the plaintiff’s suit for the enforcement thereof, and that the issue of pecuniary injury has no place in this case in view of the remedy sought by defendant. The assignments are overruled.

The second assignment complains of the action of the court in permitting the defendant, over its objection, to testify that plaintiff’s agents had made statements and representations to defendant prior to the purchase by him of the automobile to the effect that defendant’s wife had told plaintiff’s agents to get defendant to purchase the automobile, and that said agents represented to defendant that the defendant’s wife was pleased with the automobile.

At the time plaintiff contracted with the defendant’s agents for the purchase of the automobile, and executed his check and notes for the consideration, he signed a contract which contained the following provision:

“The company is not responsible to the purchaser for any undertakings, promises, or warranties made by their representatives beyond these expressed herein. The undersigned hereby acknowledges to have received a full, true, and correct copy of this order, and that no promises, representations, or agreements have been made not herein contained. No branch house, manager, salesman, expert or local dealer, unless authorized in writing by an officer of the company, has any authority to waive, alter, or enlarge this contract, or to make any new or substituted or different contract, representation, or warranty.”

Appellant makes tlie contention under this assignment, in effect, that in view of the provision of the contract above quoted, the testimony of plaintiff which was objected to was inadmissible, the defendant having notice of the limitation of the agents’ authority, and there being no allegations of any fraud in the preparation and execution of the contract as expressed by the contract.

With this contention we cannot agree. The provision of the contract above did not operate a denial of defendant’s right to show that false representations had been made to him by appellant’s agents to induce him to enter into the contract, since it would be permissible for defendant to show facts extrinsic of the contract which prevented the contract from ever taking effect as a binding obligation. A principal cannot gain immunity from the consequences of his fraud by the insertion in the contract of a provision such as is contained in the contract in question, nor can he in that manner evade responsibility for the fraud of his agents which inured to his benefit.

In Kirby v. Thurmond, 152 S. W. 1102, the plaintiff brought suit to rescind a contract for the sale of goods made by him with the defendant on the ground that the defendant misrepresented the value of the goods to him. The defendant pleaded the following provision of the bill of sale in bar of plaintiff’s right to rescind:

“It is understood that said stock is sold as it now stands, and the grantor does not warrant as to quantity.”

In deciding the case Chief Justice Rainey, of the Dallas Court of Civil Appeals, uses-this language:

“It was alleged that plaintiff was induced by fraudulent misrepresentations to enter into the contract of purchase, and but for such misrepresentations he would not have done so, stating what the misrepresentations were, and that they were made willfully and with intent to deceive, etc., were sufficient to state a good cause of action, and, if proven, warranted a verdict by the jury. The provision in the bill of sale that ‘it is understood that said stock is sold as it now stands, and the grantor does not warrant as to quantity,’ does not preclude plaintiff from showing that he was induced to make the trade, and in so doing relied on the representations of the defendant. This does not violate the well-known rule that parol evidence is not admissible to contradict or vary the terms of a written contract, as the action in this case sounds in tort, and not in contract. French v. Nolan, 38 Tex. Civ. App. 395, 85 S. W. 821; Rhode v. Alley, 27 Tex. 443; Ranger v. Hearne, 37 Tex. 30; Id., 41 Tex. 258; Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43; Routh v. Caron, 64 Tex. 289. Fraud on the part of defendant having been alleged, the representations and circumstances surrounding the transaction as alleged were such that it was a question for the jury to determine whether or not plaintiff was justified in signing the contract, believing that the representations made by plaintiff were true. Fraud vitiates contracts, and, if plaintiff perpetrated a fraud that induced defendant to make the trade and sign the contract, it is not binding.
“In the case of Davis v. Driscoll, supra, Mr. Justice Fly, quoting from Mr. Greenleaf, says: ‘This rule is not infringed, however, by the admission of parol testimony showing that the instrument is void, or never had any existence or binding force, either by reason of fraud, or for want of the execution and delivery, or for the illegality of the subject-matter.’ Id. § 284. He then says: ‘It follows, then, that if the proof tended to establish fraud upon the part of appellant in inducing the execution of a contract, the evidence was admissible. It is well settled in this state that it is competent to prove fraud, although the written contract is silent on the subject to which the fraudulent representations refer. Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Henderson v. Railroad Co., 17 Tex. 560, 67 Am. Dec. 675; Rhode v. Alley, 27 Tex. 448; Ranger v. Hearne, 41 Tex. 258.’”

In United States Gypsum Co. v. Shields, 106 S. W. 724, the appellant was represented in a trade by its agents, Watson, and the written contract contained this clause:

“It is agreed that this written order and printed terms hereon constitute the entire contract between the parties, and that there are no verbal statements or agreements varying the same.”

The court, in disposing of appellant’s1 attempt to invoke the above provision to the exclusion of extrinsic evidence of fraud upon the part of the agent, Watson, uses this language:

“These assignments are followed in appellant’s brief by propositions of law so elementary that no one can gainsay any of them. The gist of them is that parol evidence is inadmissible to vary the terms of a written contract. This rule, however, has no application to extrinsic evidence, when used to attack the validity of a contract, as in this case, by showing fraud in its inception. If a party were denied the right to show facts which prevent a writing from constituting a contract, such a writing would be free from all defenses, and outside of all rules which determine the validity of contracts. Parsons on Contracts (9th Ed.) 708; Barrie v. Miller, 104 Ga. 312, 30 S. E. 840, 69 Am. St. Rep. 171; Howie v. Platt, 83 Miss. 15, 35 South. 216. The evidence objected to was not introduced for the purpose of varying the terms of the writing sued upon, which it did not tend to do, but to the end of showing that defendant was induced to sign the paper by the fraudulent representations of the plaintiff. On this issue it was clearly admissible.”

We think the decisions1 of the Texas courts above cited are decisive of the question now under consideration, and are amply sustained by courts of other states. Barrie v. Miller, 104 Ga. 312, 30 S. E. 840, 69 Am. St. Rep. 171; Tiffany v. Times Square Automobile Co., 168 Mo. App. 729, 154 S. W. 865; Bridger v. Goldsmith, 143 N. Y. 425, 38 N. E. 458. The assignment is overruled.

A portion of the testimony of the defendant, the admission of which over plaintiff’s objection is complained of in the third assignment of error, was hearsay, and the objection to it on the ground should have been sustained. He was entitled to state whether his wife was pleased with the car, and that she declined to receive it, but should not have been allowed to testify what she had told him that she had said to plaintiff’s agents at the time they showed the automobile to her, or what she said they had said to her. However, all the same matters were proved by the testimony of defendant’s wife when upon the witness stand; and we cannot say that the admission of defendant’s testimony in the regard stated amounted to such a denial of the rights of appellant as was reasonably calculated to cause and did probably cause the rendition of an improper judgment in the case. The assignment is overruled.

We are of the opinion that there is no merit in the fourth assignment, which complains of the action of the court in admitting in evidence over the plaintiff’s objection the testimony of plaintiff’s wife as to the conversation between herself and plaintiff’s agents at the time they showed her the car with a view of making sale of it to her husband, and the assignment is overruled without further comment.

The fifth assignment complains of the action of the court in allowing defendant’s counsel to open and conclude the argument to the jury.

The defendant in his answer admitted the execution by. h'im of the check, promissory notes, and chattel mortgage sued upon, and in avoidance thereof pleaded the fraud of appellant’s agents as hereinbefore set out. Defendant further in his answer pleaded as follows:

“Defendant, further answering, says that but for the facts as set out in this answer the plaintiff would he entitled to recover on its suit as plead in plaintiff’s amended petition; and the defendant assumes the burden of proving his defense, and claims the right of opening and closing the argument.”

We think that this was such an admission of the plaintiff’s cause of action as entitled the defendant to open and conclude the argument. See rule 31 (142 S. W. xx), governing the practice in the district and county courts. Atkinson v. Reed, 49 S. W. 260.

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

Affirmed.
      tgrroFor other eases «ee same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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