author: RAINEY, C. J.

text:
    WOOD v. PRIDDY.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1914.
    Rehearing Denied March 21, 1914.)
    1. EXECUTORS AND ADMINISTRATORS (§ 437)— Foreclosure — Death oe Mortgagor.
    A suit to foreclose a deed of trust securing a note of defendant’s grantor, and which defendant signed upon conveyance of the land to him, will not be abated for 12 months, on the ground that the foreclosure was the assertion of a claim against the estate of defendant’s grantor, of which defendant had been appointed administrator, and could hot be maintained within a year, under Rev. St. 1911, arts. 3362, 3363, even though an action to set the conveyance aside was pending.
    [Ed. Note. — For other cases, see Executors and Administrators, Gent. Dig. §§ 1729-1761, 1764; Dec. Dig. § 437.]
    2. Abatement and Revival (§ 18) — Matters of Abatement.
    That defendant signed his name to the note declared on by plaintiff, uader a mistake of law, is no ground for abatement of the suit; being, at most, a matter of defense.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. § 139; Dec. Dig. § 18.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Mrs. M. M. Priddy against Joshua Wood. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    R. M. Vaughan, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.

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

   RAINEY, C. J.

This suit was brought by appellee against appellant to recover on a note executed to D. C. Wood and appellant to foreclose a deed of trust executed by D. C. Wood on certain land situated in Hill county, Tex. The defendant filed a plea in abatement to plaintiff’s action, seeking to abate the suit for 12 months, on the ground that the claim was a debt against the estate of D. 0. Wood ; that appellant had been appointed independent executor; and that since said appointment and probating of the will of D. C. Wood 12 months had not expired. Plaintiff filed a supplemental petition consisting of a general demurrer and general denial. A demurrer was sustained to the plea in abatement, and a trial without a jury resulted in a judgment against the appellant for the defendant, and a foreclosure of the lien on the land, and the appellant appeals.

There is only one assignment of error presented, and that is in effect, that the court erred in sustaining plaintiff’s demurrer to appellant’s plea in abatement.

Said plea in abatement alleged, in substance: That on November 10, 1910, D. O. Wood executed the note sued on, and, to secure its payment, he executed his deed of trust on the land mentioned in plaintiff’s petition, and conveyed the same in trust to R. E. L. Priddy. “That on or about the 18ti. day of March, 1912, the said D. C. Wood by his instrument commonly called a general warranty deed, executed, on and of date March 18, 1912, to this defendant as grantee, conveyed to this defendant, together with other property hereinabove described, and after the due execution and delivery by the said D. O. Wood to this defendant of the deed of date March 18, 1912, above referred to, this defendant, thinking that it was proper and right for him to do so, signed his name to the note described in plaintiff’s said petition, he having purchased the property from the said D. O. Wood incumbered with the indebtedness evidenced by said note. This defendant further alleges that at the date of the execution of said note he was in no wise indebted to the plaintiff, or liable for the indebtedness for which said note was executed; but that the indebtedness for which said note was executed was the indebtedness solely due by the said D. O. Wood to the plaintiff.” On April 9, 1912, D. C. Wood made his will, which provided for the payment of his debts, and bequeathing to appellant all his property, real and mixed, and constituting appellant his executor without bond, and without any action of the courts other than such as the statutes required. That D. 0. Wood died June 14, 1912, and appellant filed his will for probate, and that he be appointed executor. That on August 19, 1912, the application was heard, and it was decreed that the will be probated, and that letters testamentary be issued to him as executor upon his taking the oath required, etc. That an appeal was perfected from said probate judgment, and same was still pending in the district court. That certified copies of the proceedings in the probate court mentioned were attached to and made exhibits to the plea. That on August 17, 1912, Oliver Wood and others filed a suit against appellant et al. in the district court of Hill county to set aside and cancel the deed made by D. O. Wood to appellant to land in controversy and other property, and reinvest the title in the heirs of D. O. Wood, and in his estate to be partitioned under law between the next of kin of D. O. Wood. “That said suit is now pending on the dockets of this honorable court undetermined, and this defendant alleges' that in the event the plaintiffs should prevail in said cause No. 9120 on the dockets of this honorable court, that the title to all of the property described in the deed of conveyance executed by the said D. C. Wood to this defendant on the 18th day of March, 1912, would be reinvested in the estate of said D. O. Wood, subject to be administered on under the will executed by the said D. G. Wood, as hereinbefore alleged, in the event the probate of same should be sustained. That the proceedings including the petition in said cause No. 9120 are here referred to and for all legal purposes made a part of this plea.”

Articles 3362 and 3363, R. S. 1911, were pleaded, which, in effect is for the enforcement of debts or claims against an independent administrator, and that such executor shall not be required to plead to any suit for money until the expiration of 12 months from the probating of such will. “This defendant alleges that plaintiff’s suit against this defendant is, in fact, against him as such executor, and seeks to recover judgment on a note executed by the said D. G. AVood in the manner and under the circumstances as here-inbefore alleged, and to enforce and foreclose a deed of trust lien executed by the said D. G. Wood on real estate owned by him at the date that the note and deed of trust described in plaintiff’s petition were executed; that, under and by virtue of all the facts herein-before alleged, this defendant respectfully rep-represents that he should not be required to plead to this suit until after the expiration of 12 months from the date of the final order admitting the will of the said D. O. Wood to probate,” and praying that said suit be abated, etc.

We think the demurrer to the plea in abatement was properly sustained. The appellant was not sued as executor of the estate of D. C. Wood, but in his individual capacity as one of the makers of the note. There was no effort on the part of plaintiff to subject any part of the; estate of D. G. Wood to the payment of her claim. The land on which a lien was sought to be foreclosed had been conveyed by D. C. Wood before his death to the appellant, and constituted no part of D. G. Wood’s estate, and therefore appellant as executor was in no way interested therein. Bradford v. Knowles, 86 Tex. 505, 25 S. W. 1117; Schmeltz v. Garey, 49 Tex. 49; Hanrick v. Gurley, 48 S. W. 998; Haney v. Brown, 46 S. W. 58.

Appellant contends that: “The fact that appellant, laboring under a mistake of law, signed his name to the note declared on by appellee, appellant not being in any respect indebted to appellee or liable for the indebtedness for which said note was executed, would not subject appellant to any legal liability for the indebtedness evidenced by said note, and destroy the legal effect of same as a valid liability and demand against the estate of D. 0. Wood, deceased.” We do not think this contention, if said fact alleges a good defense to the note (and we do not think it does), could avail appellant as presented by the plea in abatement, which plea is as follows: “Now at this time comes Joshua Wood, defendant in the above styled and numbered cause, and appears herein solely for the purpose of presenting this, his plea in abatement, to plaintiff’s suit and cause of action as stated in her petition filed herein on the 22d day of April, 1913.” This was presented as a ground for the abatement of the suit, for which it was inefficient, and not as a ground of defense upon which to defeat liability. There was no plea to the merits of the suit, and we can only consider it in passing upon the sufficiency of the plea in abatement.

The judgment is affirmed.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    WHEELER v. McVEY et al.
    (Court of Civil Appeals of Texas. Dallas.
    March 7, 1914.
    Rehearing Denied March 28, 1914.)
    1. Highways (§ 159) — State Courts — Jurisdiction of District Court of Texas.
    Where the commissioners’ court revoked an order changing the course of a road, such revocation left the matter as if no order had ever been entered, and the district court has jurisdiction to entertain a suit to enjoin obstructions of the road.
    [Ed. Note. — For other cases, see Highways, Gent. Dig. §§ 430, 431, 435; Dee. Dig. § 159.]
    2. Dedication (§ 16) — What Constitutes.
    Where plaintiff’s predecessors in title and the adjoining owner gave strips of land for a l'oad which was used by the public for more than 30 years, there was a valid dedication and acceptance.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 15-49; Dec. Dig. § 16.]
    3. Highways (§ 6) — Acquisition of Highway-Prescription.
    Where the public used a way over the land of defendant’s predecessors in title for more than 30 years, the public acquired a highway by prescription.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 8, 9; Dec. Dig. | 6.]
    Appeal from District Court, Delta County; A. P. Dohoney, Judge.
    Action by Z. T. McVey and others against J. W. AVheeler. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    Sturgeon & Beauchamp, of Paris, Tex., and Bennett & Lane and Aubry T. Stell, all of Oooper, for appellant. Newman Phillips, of Oooper, and L. L. Wood, of Dallas, for appellees.

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

   RASBURY, J.

Appellees filed suit in the court below alleging that appellant had obstructed a public road in Delta county at three separate places by erecting a fence across the, same in as many places where the lands of appellees on the west and the lands of appellant on the east abutted upon said road, thereby depriving appellees of the use of same. Appellees prayed for a temporary mandatory writ of injunction, requiring the immediate removal of the fences and restraining appellant from interfering with the use of the road, etc., pending suit and for like permanent relief upon trial on the merits. Appellant met the averments of the petition by plea in abatement, reciting that the commissioners’ court of Delta county in the exercise of its authority in such cases had discontinued' the road between the points- named in the petition, which left the district court without authority in the premises. The plea in abatement was followed by the general issue and special plea averring that the road was never legally laid out and accepted as such, but that if it had been so laid out and accepted it had been discontinued and abandoned and a shorter route adopted. At trial, after the evidence had all been developed, the district judge peremptorily directed the jury to return verdict for appellees, which was done, and upon which judgment was entered permanently enjoining appellant as prayed, and from which this appeal was taken.

The first assignment of error relates to the refusal of the trial court to sustain appellant’s plea in abatement. The evidence offered by appellant upon the hearing of the plea in abatement was a nunc pro tunc order of the commissioners’ court of Delta county entered November 13, 1912, for an order that should have been entered February 12, 1900, changing the course of the road as claimed by appellant. As bearing on the plea, however, appellees offered the original order .of February 12, 1900, which had in fact been recorded, but overlooked by appellant, and the commissioners’ court, as well as another erder entered February 17,1900, revoking the first order changing the route of the road, thus leaving the matter as if no order of the commissioners’ court affecting the road had ever been entered. Therefore, waiving all ■discussion of the soundness of appellant's contention, as well as any reference to collateral issues that would have a bearing upon the issue, the point is immaterial in view of the subsequent action of the commissioners’ court, and presents no valid reason why the district court could not, in the exercise •of a jurisdiction peculiarly its own, proceed as it did in the instant case if the facts warranted the same.

The second assignment of error attacks the action of the court in directing the verdict, asserting that the facts developed ■on trial in reference to the controversy were sharply conflicting and for that reason entitled to go to the jury for their determination. We shall not attempt to recite the testimony adduced by the various witnesses upon trial, but state in our own language the substance of the essential facts shown thereby. Approximately 30 years ago the road closed by appellant was in existence, being the road or route traveled by the public between the towns of Cooper and Pecan Gap, in Delta county; the road running northwest from Cooper. About midway between the towns is appellant’s farm, which is in the ■shape of a square and which squares, as well, with the points of the compass (except that u. small square of same out of the S. E. corner is now owned by Dock Harrison). Originally the road on its route from Cooper northwest to Pecan Gap touched appellant’s land, now Harrison’s, at the southeast corner, crossed it in a northwesterly direction, and left it at the northwest comer; the land at that time being uninelosed and belonging to Dan Jackson. About 25 years ago Jackson fenced the land. When he did so, he and the owners of the land adjoining and west of his tract (predecessors in title of appellees) agreed to give -20 feet off their respective tracts for road purposes, rendered necessary by fencing the Jackson tract. Acting upon the agreement, Jackson set his fence back 20 feet from his line, as did those west of him, and the trees, etc., occupying the space so dedicated were cut down and cleared away, and from that time the road has run the full length of the east side of the Jackson land from its southeast comer to its northeast corner, at which points it turns abruptly west until it reaches the point where it originally emerged from the Jackson land before it was fenced. When appellant bought the land from Jackson, the same was fenced, and the road was being used by the public for the purposes for which it was dedicated, though it does not appear that he knew, or did not know, that the road comprised part of the land he bought from Jackson. In 1900, appellant and others petitioned the commissioners’ court of Delta county to disestablish the road, and in lieu of its then route arrange for same to run west from Jackson’s southeast corner to his southwest comer, and thence north along his west line to his northwest corner, going in short south and west of the land to its northwest corner, instead of east and north to the same point. As we have said at another place, the commissioners’ court did order the change, but rescinded the order five days later, as the result of protest. From the time of the dedication of the road by Jackson and his neighbors on the east, the road has been recognized by the public and the authorities of the county as a public highway, although most of the travel between the points named has recently gone the road south and west of the Jackson land, notwithstanding those abutting upon the road as originally dedicated have used same continuously in traveling to and from either Cooper or Pecan Gap, and to local points such as the community churches near the point where the road was obstructed. Appellant did, at the time and in the manner charged in the petition, obstruct and fence the road. The only testimony adduced contrary to the facts stated was of a negative character and at most only tended to show that, since the new road had been laid out, the greater portion of the travel went that way, the old road being used largely by those residing contiguous thereto, and that the county authorities had failed to appoint overseers for the same, etc., and that the citizens failed to request such appointments.

Under the facts stated, it occurs to ns there was no issue of fact to be determined by the jury, and that in applying the law to the undisputed facts the court committed no error. The facts related will support the action of the court and the judgment on the ground that there was a dedication of the road by the abutting property owners, including appellant’s predecessor in title, followed by such continuous use by the public as bound all subsequent purchasers with notice thereof. Also, that the evidence is sufficient, if necessary to invoke that rule, to support the action of the court and the judgment on the ground that the public had acquired the road by prescription; and had done so before appellant acquired his land.

There being in this appeal no question of the correct application of the law relating to dedication or prescriptive use, it is unnecessary for us to cite authorities.

The judgment is affirmed.


author: CARL, J.

text:
    HAMMERS v. WOLFERTZ.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.
    Rehearing Denied April 1, 1914.)
    1. Sales (§ 61) — Construction oe Contract —Executory or Executed Contracts.
    Where, at the time a contract of sale of certificates of stock was made, the purchaser already had possession of the certificates, the contract was an executed- contract; it being fully performed on the part of the seller.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 162-170; Dec. Dig. § 61.]
    2. Appeal and Error (§ 1040) — Harmless Error — Pleading.
    Error in overruling an exception to an immaterial portion of a petition was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    3. Appeal and Error (§ 1046) — Remarks and Conduct oe Judge.
    A remark of the trial judge, made in reference to an immaterial matter which was not submitted to the jury, was not prejudicial, and hence did not justify a reversal, under Courts of Civil Appeal rules 62A (149 S. W. x).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. § 1046.]
    Appeal from District Court, Bexar County; R. H. Ward, Judge.
    Suit by C. H. Wolfertz against O. S. Lam-mers. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    George M. Mayer and W. H. Lipscomb, both of San Antonio, for appellant. A. E. Heilbron and C. L. McGill, both of San Antonio, for appellee.

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

   CARL, J.

C. H. Wolfertz filed suit against O. S. Lammers and O. S. Lammers Company, a corporation, and alleged that on or about March 20, 1912, he was induced by O. S. Lammers, who owned 248 of the 250 shares of the stock of the O. S. Lammers Company, to buy 12 shares of said stock, which was of the par value of $100 per share, and that he paid $1,200 therefor, and, further, that Lammers agreed, as a part of the consideration, to place Wolfertz on the board of directors, but that Lammers never delivered the stock, and failed to place him on the board of directors. There was also an allegation that the stock had earned $807.30 in dividends, to which Wolfertz claimed he was éntitled. It is further alleged “that on January 25, 1913, defendant entered into a verbal agreement with plaintiff to repurchase from plaintiff the aforesaid 12 shares of stock, theretofore owned by plaintiff! in said company, and then and there, to wit, on the aforesaid 25th day of January, 1913, promised to pay plaintiff, cash, at the time of said repurchase, the aforesaid sum of $1,200 for said 12 shares of stock so owned by plaintiff in the corporation as aforesaid, to all of which plaintiff then and there consented and agreed.” The petition sets out the original purchase of the stock, failure to deliver same, and then the agreement of sale January 25, 1913, above quoted, and prays for judgment for the value of the stock and dividends amounting in all to $2,007.30, or, in the alternative, against the O. S. Lammers Company for $807.30, with legal interest (dividends) and against O. S. Lammers for $1,200, the repurchase price of the stock with legal interest. The answer contained general demurrer, special exceptions, and general denial, except that Wolfertz bought and was entitled to 12 shares of stock, which was tendered to him. The court charged the jury upon the issue as to whether defendant bought the plaintiff’s stock January 25, 1913.

Paragraphs 1 and 2 of the charge follow r
“First. If you believe from the evidence that on or about January 25, 1913, that the plaintiff was the owner of 12 shares of the capital stock of the O. S. Lammers Company, a corporation, and if you further believe from the evidence that on or about said date defendant O. S. Lammers bought said stock from plaintiff and agreed to pay him therefor the sum of $1,200, and if you further believe that no part of said $1,200 has been paid to plaintiff, then you will return a verdict in favor of plaintiff against defendant O. S. Lammers for said amount and interest from said date at the rate of 6 percent. per annum.
“Second. If you do not find in favor of plaintiff under the preceding paragraph of this charge, then you will return a verdict in favor of plaintiff against both defendants for the recovery of the said certificates of' stock tendered herein by defendants to plaintiff.”

This charge is commendable for its brevity and clearness.

The jury found in favor of the plaintiff for the value of said stock, which it was testified was agreed apon at $1,200, and O. S. Lammers lias appealed.

The first assignment raises the question that the sale of the stock was an executory contract, and, that being true, the court erred in submitting the measure of damage at the agreed price of the stock, instead of the measure that would apply to an execu-tory contract, which would be the difference between the market value and agreed price of the stock; and it is contended that the issue was not made by the pleadings as to whether Lammers “bought” the stock. It will be noted that the pleadings set out that on January 25, 1913, the defendant, Lam-mers, agreed to buy the 12 shares of stock for $1,200 and then and there agreed to pay for same, and, further, that he had possession of the stock. It is not disputed that Wolfertz never had the stock in his possession; for Lammers says that no stock had been issued, and he tendered the stock to Wolfertz on the trial. The plaintiff’s testimony supported the allegations as to a sale, and the jury has found in his favor on that issue that he did sell the stock back to Lam-mers.

Wherein is it shown that this is an ex-ecutory contract? Lammers had the stock in his possession, and when he and Wol-fertz agreed upon the terms of the sale, there remained nothing to be done except for Lam-mers to pay for the stock. There remained nothing further for Wolfertz to do. Judge Simkins defines an executed contract “as one wholly performed on one side and not on the other, as where property has been sold and delivered and the purchase money not paid.” Simkins’ Contracts and Sales (3d Ed.) p. 48, and authorities cited. “An executory contract is one unperformed by both parties, or there remains something to be done on both sides, as a promise for a promise, neither party having performed or fully performed his part.” Same authority as above. In so far as Wolfertz was concerned, there remained nothing to be done to complete the transaction, except to collect his money. He had delivered the stock, for it had alwáys been in Lammers’ possession. The agreement on the sale price was all that was necessary. When they agreed upon that, as the jury has found they did, the contract was an executed one. The first assignment is overruled, and this will likewise dispose of the second assignment, which is based upon the same subject-matter.

The court overruled a special exception to that part of the petition which charged that Lammers further “bound and obligated himself and promised unto him that he would have and cause plaintiff to be named as a director on said company’s board of directors,” because it did not appear how the breach of such agreement affected plaintiff. If there was any error in this it was harmless, because that phase of the ease was not submitted to the jury. Upon an action for rescission of the original contract that would probably be material, but this case was submitted upon the sole theory as to the resale of the stock to Lammers. Therefore this ruling was on an immaterial matter, and harmless. The assignment is overruled. Kalteyer v. Wipff, 92 Tex. 673, 52 S. W. 63; Railway Company v. Beene, 47 Tex. Civ. App. 585, 106 S. W. 456; Joy v. Ins. Co., 32 Tex. Civ. App. 433, 74 S. W. 822, affirmed in 97 Tex. 638; Railway Company v. Pate, 113 S. W. 994; Railway Company v. Wallace, 152 S. W. 875.

When the exceptions were being argued, before the jury was impaneled, the court stated in the presence o'f the jurors, “It is very important for a stockholder in a corporation to be on.the board of directors. He is in much better fix to look after his interest if he is on the board,” and exception was reserved to such remark because it was on an important issue made by the pleadings. The court did not submit to the jury the matters about the original sale agreement and agreement to put Wolfertz on the board of directors, and no complaint is made as to that. The sole issue was as to whether Wolfertz sold Lammers his stock in January, 1913. In 38 Cyc. p. 1316, it is said: “Nevertheless, not every unguarded remark of the trial judge, in the presence of the jury, is ground for reversal. To be so, it must be shown to be prejudicial to the right of the party complaining, or at least appear probable that prejudice resulted. It is not enough that there is a probability that the remarks were prejudicial.” This is amply supported in Trezevant v. Rains (Sup.) 19 S. W. 567; Conner v. Littlefield, 79 Tex. 76, 15 S. W. 217; Fleming & Son v. Pullen, 97 S. W. 109. The remark being made in reference to a matter which was not submitted to the jury, and no injury being shown, we do not think it would justify a reversal. Rule 62A for Courts of Civil Appeals (149 S. W. x).

The assignment is overruled, and the judgment is affirmed.


author: JENKINS, J.

text:
    GAMESON v. GAMESON et al.
    (Court of Civil Appeals of Texas. Austin.

      Feb. 25, 1914.)

      1. Husband and Wife (§ 272) — Sufficiency of Evidence — Community Property.
    In a suit for partition of community property, evidence held sufficient to sustain a verdict finding that a certain tract of land was purchased after the marriage, and not before, as claimed by the husband.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 1003-1007; Dec. Dig. § 272.]
    2. Appeal and Error (§ 742) — Assignments of Error — Propositions.
    A proposition that the court erred in sending the jury back for a fuller answer is not germane to an assignment that the answers of the jury showed that they were prejudiced against appellant.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Appeal and Error (§ 742) — Assignments of Error — Grouping Assignments.
    The Court of Appeals may refuse to consider an assignment of error which embodies two points of law, and under which no proposition is submitted.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    On motion to pass assignments.
    Motion granted, and assignments overruled.
    For former opinion, see 162 S. W. 1169.

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

   JENKINS, J.

On a former day of the present term of this court we reversed and remanded this cause for error in the charge of the court on the burden of proof as to whether two notes executed by appellant for $100 each were paid out of the separate property of appellant or the community property of appellant and appellee; the jury having found under said charge in favor of appellee, that is to say, that the payment was made with community funds. Subsequently appel-lee filed in this court a remittitur of said amount. We reformed the judgment so that appellee should take nothing as to said notes, and, as thus reformed, we affirmed the judgment of the trial court.

Appellant has filed a motion requesting us to specifically pass on his assignments from 13 to 21, inclusive. We grant said request, and overrule each and all of said assignments.

The thirteenth assignment is to the effect that the evidence does not support the finding of the jury that the 51% acres consisting of three small tracts adjoining the 50-acre tract was purchased after marriage. The only deed that appellant had to this tract was executed, as stated in our findings of fact, 4 years 6 months and 26 days after marriage. Appellant testified that he bought this land from McMillan at the same time that McMillan deeded to him the 50-acre tract, about a year before his marriage. 1-Ie said: That McMillan “had a contract with Goodrich for the 51% acres. It was in writing.” That the same has been lost. Five and a half years after this appellant bought this land from Hanrick and Goodrich; whether by purchase at that time or in fulfillment of the Goodrich contract does not appear. Appellant does not claim that he got a deed from McMillan to this 51% acres. Why he should not have obtained a deed from McMillan to this land, as well as to the 50 acres, is not accounted for. The date of the deed made a prima facie case in favor of appellee. The appellant’s evidence as to his having purchased McMillan’s “claim” possibly required the issue to be submitted to the jury, and it was submitted. We cannot say, as a matter of law, that the verdict was not supported by the evidence.

The fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth assignments all relate to the sufficiency of the evidence to sustain the findings of the jury. The twentieth assignment is that the answers of the jury show that they were prejudiced against appellant, and therefore he did not have a fair trial. The proposition under this assignment that the court erred in sending the jury back for a fuller answer is not germane to the assignment.

The twenty-first assignment embodies two points of law, and no proposition is submitted under it. For this reason, we might have refused to consider it; but we have duly considered it, and find it without merit.


author: RICE, J.

text:
    GARRETT v. GREEN.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1914.
    Rehearing Denied March 18, 1914.)
    Fraud (§ .11) — Misrepresentation—Expression of Opinion.
    A statement by vendor as to what he thought his lots were worth, connected with a statement that he had never seen them and did not know their actual value, would not constitute a fraudulent misrepresentation, nor would a statement by him that some one had told him the lots were worth a certain sum, but that he had not seen them and did not know their value.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 12, 13; Dec. Dig. § 11.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by William Green against W. T. Garrett. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Davis & Cocke, of Waco, for appellant. W. L. Eason, of Waco, for appellee.

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

   RICE, J.

This suit was brought by appel-lee, who is a real estate agent, to recover of appellant the sum of $750 as commissions claimed to be due him from appellant for effecting an exchange of certain properties between him and one Sid Post, alleging that both of said parties employed him to make such exchange; that in accordance with said employment, he brought about an exchange of said properties so listed with him by said parties, and that after the closing of such deal, and the consummation of such transaction by the mutual execution and delivery of conveyances to each other, it was ascertained that appellant owed him the sum of $750 for his services, but, being unable to pay the same in cash, he offered to give appellee in lieu thereof three certain lots situated in Robertson & Hunter’s addition to the city of Ft. Worth, representing that he had paid $250 apiece therefor, including the incum-brances thereon, and that they were worth the sum of $300 each; that he had never seen said lots, but believed said representations, and relying thereon, agreed to receive the same in satisfaction of his claim; that thereafter, upon investigation, he found said lots to be practically worthless, and so informed appellant, stating that he had been deceived and refused to accept them; that appellant either knew the value of said lots at the time of such offer, and fraudulently misrepresented the facts to him, or else was himself mistaken as to their value, and made such representations whereby, both of them being ignorant of their value, he was induced to agree to accept them in payment of his claim; but that in either event, he was entitled to recover his commissions, which were of the reasonable value of $750. After a general demurrer and general denial, appellant specially answered, admitting the exchange of properties between himself and Post, but denied that he had employed appellee to represent him in such exchange, claiming that he. represented himself therein, for which reason he was not due appellee commissions as sued for, but in compromise of such claim he finally offered to give appellee the lots mentioned in full satisfaction thereof, denying, however, that he made the representations charged by appellee, but, on the contrary, expressly told appellee that he had never seen the lots and did not know what they were worth; that he had given $250 apiece for them in trade, assuming a $50 vendor’s lien note against each, and so informed appellee; that he has at all times been and is now willing to convey said lots to appellee in satisfaction of such claim, but appellee has heretofore refused and still refuses to accept them; that he tendered performance of his portion of the contract by the execution of warranty deeds to him for said lots, and prayed to be discharged with his costs. A jury trial resulted in a verdict and judgment in behalf of appellee for the sum sued for, from which this appeal is prosecuted.

The court refused to give a peremptory charge in favor of appellant, which is assigned as error. There was a conflict in the testimony as to whether or not plaintiff was employed by defendant to effect a sale or exchange of the latter’s property, and it is admitted in the brief that the testimony offered by appellee tended to prove the employment under such circumstances as would have entitled him to claim of appellant reasonable compensation for effecting such exchange. On the other hand, it is stated therein that the testimony offered by appellant tended to prove that appellee was representing Post alone, and that appellant was representing himself in the deal, under a distinct understanding that he was to pay appellee no commission. Besides this, there was evidence requiring the submission of the issue to the jury on the question of mutual mistake, for which reasons we think the court very properly declined to give such charge.

We sustain the several assignments, however, urging that the court erred in submitting the issue of fraud to the jury, for the reason that the evidence, to our minds, fails to show that any fraudulent representations were made by appellant for the purpose of inducing appellee to accept the lots in satisfaction of his claim for commissions. Appellant merely stated his opinion with reference to the value of the lots, telling him at the same time that he had never seen the lots, and did not know their value. It is true he stated that he gave in trade $250 apiece for the lots, including the incumbrance tliei’e-on, but this statement is shown to have been true; and, even if he had stated that some other person had told him that the lots were worth said amount, yet he said at the time that he did not know their value and had not seen them. Under such circumstances, we do not think fraud is shown. See Boles v. Aldridge, 153 S. W. 373; 14 Am. & Eng. Ency. Law, p. 102 et seq.

The ninth, tenth, and eleventh assignments are overruled, for the reason that the special charges therein referred to were properly refused, as they were upon the weight of the evidence.

We think, however, the jury might have been misled by the expression “impliedly employed,” used in the charge complained of in the eighth assignment; and, while it does not constitute reversible error, we suggest, in view of another trial, that the issue be differently submitted.

It is asserted by appellee, however, that if the contract of settlement was not supported by any consideration, which he claims was shown by the uncontradicted evidence, then the court should not have submitted to the jury in any form the issues raised by his defensive pleas setting up fraud and mistake therein, but should have peremptorily instructed a verdict in his behalf on the ground of failure of consideration. Conceding that his pleading was sufficient to raise the issue of failure of consideration, still we disagree with appellee, for the reason-that the evidence was contradictory on this issue; appellant having testified that he sold the remaining lots for $200.

. Believing that the court erred as above indicated, the judgment herein is reversed, and the cause remanded.

Reversed and remanded.


author: ELY, C. J.

text:
    MAY v. WANIGER.
    (Court of Civil Appeals of Texas. San Antonio.
    March 18, 1914.)
    1. Appeal and Error (§ 285) — Presenting Errors in Lower Court — Motion eor New Trial — Review oe Rulings on Pleadings.
    A motion for a new trial is not necessary to present to the Court of Appeals error in the sustaining of exceptions to the answer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1690; Dec. Dig. § 285.]
    2. Guaranty (§§ 64, 65) — Discharge oe Guarantor — Discharge op Principal.
    Where a note and contract of guaranty were parts of the same transaction, and showed that the defendant was liable on the note only as guarantor! the substitution as principal payor of the note of an insolvent corporation for the original payor, which was solvent, released the guarantor, even though the contract of guaranty authorized the change of the name of the payor corporation.
    [Ed. Note. — Eor other cases, see Guaranty, Cent. Dig. § 75; Dec. Dig. §§ 64, 65.]
    3. Evidence (§ 423) — Parol Evidence — Nature op Liability — Guaranty.
    Where a contract of guaranty which was part of the same transaction as a note does not show on its face that the liability of the defendant on the note was only that of guarantor, that fact may be shown by parol if it was known to the payee.
    [Ed. Note. — Eor other cases,, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. § 423.]
    Appeal from Hidalgo County Court; J. H. Edwards, Judge.
    Action by J. T. Waniger against 'Harry May. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Chapin & Brown, of Mission, for appellant. R. J. Swearingen, of McAllen, and Graham, Jones, West & Dancy, of Brownsville, for appellee.

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

   ELY, C. J.

This is a suit on a joint and several promissory note for $1,000, payable to appellee, executed by the John Gowdy Manufacturing Company, Harry May, and E. S. Short. Only May was sued, and it was alleged that he had guaranteed the payment of the note by signing a contemporaneous written contract. Appellant answered that he had signed the note as a guarantor with E. L. Short for the John Gowdy Manufacturing Company, that appellee knew that he had signed the note only as a guarantor, and that the People’s Manufacturing Company had .been substituted for the John Gowdy Manufacturing Company, as payor, without the knowledge or consent of appellant. Exceptions were sustained to the answer, and the jury was instructed to find for appellee for $629.42, and interest, being the balance unpaid on the note.

Appellant excepted to the action of the court in sustaining the exceptions, and it was not necessary to file a motion for a new trial in order to present error on the action of the trial court on his appeal to this court. Railway v. Beasley (Sup.) 155 S. W. 183; Davis v. Parks, 157 S. W. 449; Stein Tire Co. v. Fulton, 159 S. W. 1013. This is said in view of objections made by appellee to the assignments of errors being considered because no motion for new trial was filed.

The note and contract were parts of the same transaction, and clearly indicate that appellant was bound only as a guarantor of the payment of the note. In the contract of guaranty it was recited that it was proposed to change the name of the corporation, and that the liability of the guarantors was not. to be affected thereby; but it is not alleged in the petition that the name of the corporation was changed, but merely that the “People’s Manufacturing Company” was the successor to the John Gowdy Manufacturing Company. It was alleged in the answer that the People’s Company, which was a bankrupt, had been substituted as payor in the note for the John Gowdy Company, which was solvent, and able to pay the note. That allegation presented a good defense. The guarantor can only be held for the debt of his principal, and any release of his principal by substituting another principal, or otherwise, releases the guarantor.

If it did not appear from tlie contract that appellant was merely a guarantor of the payment of the note, he could show it by parol if the fact was known to the payee. Brandt Sure. & Guar. §§ 29, 30; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39; Lemp v. Armengol, 86 Tex. 690, 26 S. W. 941.

The judgment is reversed, and the cause remanded.


author: HARPER, C. J.

text:
    GRISHAM v. CONNELL LUMBER CO.
    (Court of Civil Appeals of Texas. El Paso.
    March 12, 1914.
    Rehearing Denied April 2, 1914.)
    1. Appeal and Error (§ 913) — Presumptions AS TO PARTIES.
    Where there was no plea in abatement raising the question and no evidence that plaintiff was a company, it would be presumed, as against the objection first made on appeal, that the judgment was void because rendered for a company without naming the parties composing it, that plaintiff was a corporation.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3699-3692; Dec. Dig. § 913.]
    2. Appeal and Eeeoe (§ 758) — Beiees—As-signments oe Eeeoe — Numbering.
    Where an assignment of error was not in its order in the brief as required by rule 29 for Courts of Civil Appeals (142 S. W. xii), which provides that the assignments shall be numbered in their consecutive order, the court was not required to consider it.
    [Ed. Note. — For other cases, see Appeal'and Error, Cent. Dig. § 3093; Dee. Dig. § 758.]
    3. Bills and Notes (§ 491) — Actions—Burden of Proof.
    In an action against the maker of a note, if a pencil notation that it was secured by a deed of trust, and that G. had assumed its payment, written thereon by some one, was in any way a defense, it was incumbent on defendant to plead and prove it.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1643-1648; Dee. Dig. § 491.]
    4. Bills and Notes (§ 459) — Actions—Parties.
    In an action on a note which bore a pencil notation, reciting that C. had assumed its payment, C. was not a necessary or proper party¡ in the absence of any showing that he was liable as maker or indorser. '
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1424-1433; Dec. Dig. § 459.]
    5. Justices of hie Peace (§ 164) — Appeals —Trial—Evidence.
    Where a sufficient transcript of the proceedings in a justice’s court was on file with the clerk of the county court when the cause was tried there, this was sufficient to give such court appellate jurisdiction without introducing the transcript from the justice court in evidence.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 607-636; Dec. Dig. § 164.]
    Appeal from Martin County Court; A. C. Eidson, Judge.
    Action by the Connell Lumber Company against M. A. Grisham. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    R. N. Grisham, of Sweetwater, for appellant. Jno. B. Howard, of Midland, for ap-pellee.

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

   HARPER, C. J.

The Connell Lumber Company filed this suit in the justice court of Martin county against M. A. Grisham, on a promissory note for $150 interest and attorney’s fees. Grisham impleaded J. C. Chambers, and- alleged that said Chambers had assumed the payment of the note. Upon motion of J. C. Chambers filed in justice court, suit dismissed as to him and cause there tried between the lumber company and M. A. Grisham, the original maker of the note. Plaintiff asked judgment for the face of the note, interest, and attorney’s fees. Defendant Grisham pleaded general demurrer, special exceptions: (a) That, the note showing upon its face that it was secured by lien on land, therefore the justice court had no jurisdiction; (b) the note shows upon its face that J. C. Chambers assumed the payment — was therefore a necessary party to the suit. Pleaded payment, etc., and other matters of defense not necessary to detail in the present condition of the record.

The appellant suggests as fundamental error and urges under his first assignment that a judgment is void when rendered for a company without naming the parties composing same. The record before the court does not support the proposition. The record reveals the fact that the appellee is a corporation. There is no plea in abatement raising the question, and no evidence that the plaintiff is a company. It will be presumed that plaintiff is a corporation where the question is raised for the first time on appeal. Hunter v. W. J. Lemp Brewing Co., 46 S. W. 371.

The sixth assignment being out of its order in the brief as required 'by rule 29 (142 S. W. xii), we are not required to notice it; but, since it complains of the peremptory charge of the court to find for plaintiff, and refers this court to the propositions and statements under first assignment, it is disposed of by what has been said next above.

The second assignment of error charges that the trial court erred in overruling defendant’s special exceptions, to the effect that the note sued on shows upon its face that it is secured by deed of trust on land, therefore the justice court was without jurisdiction, and that the note shows upon its face that J. O. Chambers has assumed the payment of it. The facts as they appear in the record are: That appellant, M. A. Grisham, was the original maker of the note, i. e., he is the only person whose signature is attached to it. Upon the face of the note, it appears, some -person had written with lead pencil, “This note is secured by a deed of trust. J. C. Chambers has assumed payment of same.” The record does not reveal by whom this was written, nor whether, in fact, it is legally any part of the note. If this notation was in any • way a defensive matter to the collection of the note as against defendant, it was incumbent upon him to plead and prove it.

The trial court, therefore, did not err in instructing a verdict in favor of the plaintiff as against the appellant, who was the maker of the note; for, ther.e being nothing to show that Chambers was liable on it, either as maker or indorser, he was not a necessary or proper party to the suit.

The other assignments complain that appellee failed to introduce transcript from justice court in evidence as a preliminary step to giving jurisdiction. The transcript hied in this court shows that a sufficient transcript of the proceedings in the justice court was on file with the clerk of the county court when this cause was tried, which was sufficient to give such court appellate jurisdiction.

It is unnecessary to pass upon appellee’s cross-assignment.

Affirmed.


text:
    KILBORN v. JOHNSON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    Rehearing Denied April 1, 1914.)
    1. Vendor and Purchaser (§ 116) — Failure of Title — Rescission—Balancing of Equities.
    On rescission of a sale of land for failure of title, the rule that the vendor is entitled to a restoration of the land, without profits, and that the purchase money shall be returned to the vendee, without interest, does not apply where valuable improvements have been made by the vendee, nor where the sum paid is not in proportion to the value of the use of the property.
    I Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 205-208; Dec. Dig. § 116.fj
    2. Vendor and Purchaser (§ 351) — Contract ■ —Rescission—Balancing of Equities.
    In March, 1908, plaintiff purchased certain gin property from defendants for $2,500, paying $500 cash, and agreeing to give four notes for the balance, one payable each year, with 8 per cent, interest. Plaintiff occupied a dwelling and storehouse on the premises and operated the gin until March, 1910, when, defendants having been unable to make title, the sale was rescinded. It appeared that the rental value of the gin for the period plaintiff used it was $500, that the dwelling house was worth $10 a month, and the store $15 a month. Held, that a decree finding that plaintiff was entitled to $580 for the cash payment and interest, and that defendants were entitled to a like sum for the use of the property, and balancing the one against the other, was proper.
    [Ed. Note. — For other oases, see Vendor and Purchaser, Cent. Dig. §§ 1017, 1047-1058; Dec. Dig. § 351.]
    Appeal from Bexar County -Court for Civil Cases; John H. Clark, Judge.
    Action by L. B. Kilborn against B. F. Johnson, Sr., and others. Judgment for defendants, and- plaintiff appeals.
    Affirmed.
    W. W. Walling and Augustus McCloskey, both of San Antonio, for appellant. Geo. Powell, of San Antonio, for appellees.

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

   CARL, J.

About March 19, 1908, L. B. Kilborn, appellant, made a contract with B. F. Johnson, Sr., C. M. Thompson, Mrs. W. B. Adams, and Otis Cook, and the Lytle Gin Company, a partnership composed of. the parties last named, whereby he agreed to buy a certain three acres of land, more or less, in Atascosa county, for a consideration of $2,500. He paid $500 in cash, and was to give four notes for $500 each, to be .made to the Lytle Gin Company, and payable on or before November 1st each of the years 1908, 1909, 1910, and 1911, said notes to be executed when acceptable title and abstract were delivered to Kilborn. The contract further provided that, if appellees were unable to make good and sufficient title to said property within a reasonable time, the-$500 cash payment, with interest thereon at 8 per cent, per annum from date of contract, was to be refunded. The notes were to be executed and delivered when acceptable deed and abstract were delivered by the gin company. The property consisted, as to improvements, of a dwelling house, store, gin equipped, etc. The gin was capable of an output of 18 to 20 bales of cotton per day, and Kil-born. ran the gin through the seasons of 1908 and 1909, and.ginned about 1,530 bales of cotton. He lived in the six-room house, and used the storehouse for conducting a general merchandise store; it being 25 by 65 feet in size. Kilborn made no demand, he says, for an abstract until he got up a trade for the property in September, 1909, at which time he was contemplating a sale to Britton Bros. Then all parties met, and Britton Bros, objected to the title. O. M. Thompson, for the gin company, said he could not then make a perfect title, but would give a bond for title. This Kilborn declined. Thompson told them there was some trouble about the title, and they were working on it. A few weeks later Kilborn says he notified the gin company he would wait no longer, and was holding the property subject to their order. He made no demand for abstract of title till the meeting in September, 1909, when he was trying to sell to Britton Bros. At the time of the contract C. M. Thompson told him it would take some time to perfect title, as there must be administration upon the estate of A. G. Cook, deceased, and letters of guardianship in the estate of J. F. Cook, deceased, so as to pass title from said estates. Thompson, for the company, offered Kilborn a deed and bond, -which he refused. C. M. Thompson says he fully acquainted Kilborn with the difficulty of making the title at the time of the contract, that he offered him a deed and bond for title in September, 1909, which he refused, and a short while after that got the abstract in shape and tendered same to Kilborn to examine, but he refused. He further proved the amount of cotton ginned as 1,530 bales, and that the average price therefor was $3 per bale, and that the net receipts or profits were $1 per bale; the expense not exceeding §2 per bale. He said they turned the property over to Kilborn in good condition, and that the use of the gin was worth $500 annually net, and that the dwelling house was worth $10 per month, and the storehouse $15 per month, and that he demanded rent, and Kil-born refused. He says, further, that after the meeting in September, 1909, Kilborn stayed there until March 19, 1910. B. F. Johnson, Sr., says that Kilborn understood the conditions of the title' at the time he went into possession. The abstract was not tendered Kilborn until after he had moved off the property; but the abstract showed good title in Lytle Gin Company.

Appellant brought this suit to recover the $500 cash payment and interest, and appel-lees answered by general demurrer, special exceptions, and counterplea for the rental value of the property while appellant had it, and offered to deed the property and carry out the contract. The cause was tried before the court, who found that Kilborn was entitled to $580 for the cash payment and interest, but that appellees were also entitled to $580 for the use of the property. He therefore balanced one against the other, and adjudged the costs against Kilborn, who has appealed.

The assignments of error raise the question that, inasmuch as this was a sale, and the title failed, appellant is not chargeable with rent. In short, that he can use a valuable property for two years and make a good margin of profit from it, then demand his cash payment back, and pay nothing for the use of the property, when appellees were doing what they could to carry out the contract in good faith. This is in the nature of an action for rescission, and, since it is such, appellant must himself do equity when he expects to receive it. The authorities cited by appellant do not apply to the facts of this case because, in an action to rescind an executory contract, the equities growing out of the transaction must be adjusted. This is ordinarily accomplished, where the purchase money has been paid, by permitting the vendee to receive his money back, without interest, and the vendor to receive his land back, without rents. This is upon the theory that the value of the use of the property will offset the use of the purchase money. The general rule is thus stated in Patrick v. Roach, 21 Tex. 255: “Where the purchase money is paid, and there has been no manifest injustice or fraud by either party, and the vendor is unable to make title, the rule is to restore the land to.the vendor, without profits, and the purchase money to the vendee, without interest.” This would not apply, however, to the case of valuable improvements made by the vendee, nor to a case like this, where the sum paid is not in proportion to the value of the use of the property.

In McCarty v. Moorer, 50 Tex. 287, the vendor sued for the land as the holder of the superior title, and the vendee had paid part of the purchase money, and had made valuable improvements. Chief Justice Moore, speaking for the court, says; “The failure on the part of appellant to comply with the contract warranted appellees demanding the land; but it is equally clear that the court may deny them possession of it until they satisfy all the equities growing out of the contract in favor of appellant. This seems to have been the view, in part at least, taken of the case in the court below; but the judgment fails to carry it into effect. The court, we think, correctly held appellant entitled to pay for his improvements in excess of the value of the use of the land; but it erred in not so framing its judgment that it would not be a mere nominal recovery by appellant of the amount adjudged him.”

Judge Stayton said, in State v. Snyder, 66 Tex. 698, 18 S. W. 109: “Cases arise in which the use and occupation of land sold under circumstances which justify rescission will equal in value the sum paid by the vendee, and in such cases it would not be necessary to tender or repay the purchase money so paid, and a court of equity would adjust the equities of the respective parties. Terrill v. De Witt, 20 Tex. 260; McCarty v. Moorer, 50 Tex. 287; Clay v. Hart, 49 Tex. 436. The petition alleges the annual rental value of the land, and claims other damages, all of which the plaintiff, so far as the pleadings show, is attempting to recover. It also alleges that the defendants have paid to the state certain money; but it does not appear that the sums claimed by the state are less than the sum of the moneys paid by the defendants. In view of this state of the pleadings, it does not appear that a case exists in which it would be necessary for the state, H the general rule stated be applicable to it, to offer to repay any part of the purchase money paid by the defendants; and the demurrer should have been overruled. The defendants, by their answer, might have set up their equities, if any they have, growing out of the transaction, with a view to the adjustment of the equities between the parties.” Mr. Justice Stayton, in this case, quotes with approval from Mr. Pomeroy: “It may be regarded as a universal rule governing the court of equity in the administration of its remedies that, whatever may be the nature of the relief sought by the plaintiff, the equitable rights of the defendant growing out of, or intimately connected with, the subject of the controversy in question will be protected; and for this purpose the plaintiff will be required, as a condition to his obtaining the relief which he asks, to acknowledge, admit, provide for, secure, or allow whatever equitable rights, if any, the defendant may have, and to that end the court will, by its affirmative decree, award to the defendant whatever reliefs may be necessary in order to protect and enforce those rights.” Pom. Eq. Jur. § 388.

In line with this view, we cite Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290, and Moling v. Mahon, 86 S. W. 957. This last case is by Judge James, formerly of this court.

Under the authorities laid down, we think the trial court was clearly justified in adjusting the equities as was done; and the judgment is affirmed.


author: RAINEV, C. J.

text:
    LEONARD v. KING et al.
    (Court of Civil Appeals of Texas. Dallas.
    March 7, 1914.
    Rehearing Denied March 28, 1914.)
    1. Vendor and Purchaser (§ 38) —Deception Constituting Fraud — Injury prom Fraud.
    Where, the better to enable her agent to perfect a sale of land, a vendor executed to him a contract of sale which the agent on the same day assigned to the purchaser, the fact that, at the time of the execution of such contract, the agent represented that he already had an offer from the prospective purchaser could not be the basis of a charge of fraud to avoid the contract, since the vendor was in no way injured.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 61-65; Dec. Dig. § 38.]
    2. Brokers (§ 102) — Fraud op Broker — Rights Acquired by Purchaser.
    The fact that the agent of a vendor, in perfecting a sale, made misrepresentations to the vendor could not affect the purchaser, who had no knowledge of such misrepresentations.
    • [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 146; Dec. Dig. § 102.]
    3. Vendor and Purchaser (§ 143) — Construction op Contract.
    A clause in a contract of sale providing that the vendor was to have a reasonable time in which to perfect her title, and, should she be unable to do so, the contract was to be void, was for the benefit of the vendee, and the vendor could not insist that the contract was void, where the vendee was willing to accept the title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 267-270, 311; Dec. Dig. § 143.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit for specific performance by S. W. King, Jr., and others against Mrs. M. L. Leonard. From a decree for complainants, defendant appeals.
    Affirmed.
    See, also, 135 S. W. 742.
    N. G. Turney, W. L. Crawford, and J. C. Muse, all of Dallas, for appellant. Dabney & Townsend, M. D. Gano, and W. M. Coombes, all of Dallas, for appellees.

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

   RAINEV, C. J.

This is a suit for specific performance of a contract of sale of a certain lot in the city of Dallas, brought by ap-pellee S. W. King, Jr., against appellant, Mrs. M. L. Leonard. The trial court instructed a verdict for appellee, which was accordingly done, and judgment rendered for appellee.

On November 12, 1909, the following contract was entered into, to wit;

“The State of Texas, County of Dallas.
“This contract made and entered into this 12th day of November, 1909, by and between Mrs. M. L. Leonard, hereinafter styled seller (acting herein by herself) and J. S. Kendall, hereinafter styled purchaser, witnesseth:
“Seller hereby sells to purchaser and purchases from seller for the price of one hundred thousand ($100,000.00) dollars, and upon the terms and conditions hereinafter set out, the following described property, to wit: In the city and county of Dallas, state of Texas, being the two-story building and 50 by 100 feet on which it is situate at the southeast corner of Ervay and Commerce streets, fronting 50 feet on. the south line of Commerce and 100 feet on the east line of Ervay street.
“1. Said purchase price is payable as follows: One thousand dollars paid by purchaser upon the execution of this contract, the receipt of which is hereby acknowledged; twenty-four thousand ($24,000) dollars to be paid by purchaser upon the execution and delivery of a general warranty deed, to said premises, and the remainder of said purchase price to be paid according to the following terms: In six notes, five in the sum of $5,000 each, due one, two, three, four and five years after date of deed, and one in the sum of $50,000, due six years after date of deed; said notes bearing interest at the rate of six per cent, per annum, interest payable semiannually. (Executed in duplicate; one copy to purchaser, one copy and deposit of $1,000 left with J. W. Thompson, according to terms of this contract.) Such deferred payments to be evidenced by vendor’s lien notes executed by purchaser and secured by a vendor’s lien expressly retained in said deed and by a deed of trust containing power of sale, together with the usual covenants as to default, taxes, insurance, etc., upon said property.
“2. Seller is to furnish purchaser an authentic abstract showing good title in seller to the property to be conveyed. Should said abstract not show good title in seller, seller is to have a reasonable time (not to exceed thirty days) in which to perfect said title. Should seller not be able to perfect said title within said time, then this contract is to be void and the purchase money paid at the time of the execution of this contract to be returned to purchaser. ($2,500 commission to be paid by seller to Hann & Kendall upon completion of this sale.)
“3. Purchaser agrees that should abstract show good title in the seller, purchaser shall within thirty days from delivery of said abstract pay the balance of the cash pay-rnent and execute the notes for the deferred payments and the deed of trust hereinabove provided for to secure the deferred payments, at which time seller shall deliver to purchaser a general warranty deed conveying to purchaser the said property in fee simple. Taxes for the year 1909 to be paid by seller.
“Witness our hands in duplicate this 12th day of November, A. D. 1909.
“[Signed] M. L. Leonard, Seller,
“J. S. Kendall, Purchaser.
“Rec’d of S. W. King, Jr., the sum of one thousand dollars ($1,000) and the within contract is hereby transferred to him.
“J. S. Kendall.
“Accepted: S. W.- King, Jr.”

The assignment of said contract by Ken--dall to King was made on the same day that the contract was executed. On the following day, to wit, November 13, 1909, Mrs. Leonard executed a general warranty deed, conveying the property to King, and King executed the notes and deed of trust evidencing and securing the deferred payments, and, the said deed, notes, and deed of trust, together with King’s check for $24,000, were delivered to the American Exchange National Bank, with a joint letter as follows:

“November 13, 1909.
“American Exchange National Bank, City —Gentlemen: We herewith hand you deed from M. L. Leonard, a feme sole, to S. W. King, Jr., conveying 50x100 feet at the southeast corner of Commerce and Ervay streets, known as lot 4 in block 136 of Smith, Murphy & Martin’s addition to the city of Dallas, Texas, for a consideration of $100,000, payable as follows: $25,000 in cash and six notes, five for the sum of $5,000 each, and one for the sum of $50,000, due and payable one, two, three, four, five and six years, respectively, after date, all bearing interest at the rate of six per cent, per annum, payable semiannually and secured by vendor’s lien and deed of trust on said property. We also hand you herewith notes and deed of trust from S. W. King, Jr.; all of these papers, that is, deed, notes and deed of trust, are properly executed and acknowledged by the proper parties; we also hand you herewith S.’ W. ICing, Jr’s., check for $24,000, payable to your order, being the balance of the cash payment to be made in this sale, Mrs. Leonard having $1,000 already as a deposit. It is understood that you are to hold deed, notes and deed of trust and check in escrow until abstract can be made and furnished Mr. King, and until Mr. King can have the title examined by his attorney, not to exceed time granted in hereinafter mentioned contract. Upon the approval of the title to the above-described property, you are to deliver to Mr. King the deed herewith, and to Mrs. Leonard the notes and deed of trust herewith, together with $24,000 cash, and the contract entered into between M. L. Leonard and J. S. Kendall and assigned by said Kendall to S. W. King, Jr., shall be carried out according to its terms and conditions.
“[Signed] S. W. King, Jr.
“Mrs. M. L. Leonard.
“You are hereby authorized to pay out of the cash received in the above transaction the sum of $2,500 to Hann & Kendall, as commission upon the consummation of the above transaction.
“[Signed] Mrs. M. L. Leonard.”

Said contract was extended for the pur pose of ■ giving Mrs. Leonard time to clear her title, once until January 12, 1910, and again until February 12, 1910. On February 3, 1910, King brought this suit against Mrs. Leonard for specific performance of said contract, and prayed for the appointment of a receiver. A judgment was entered appointing a receiver, from which Mrs. Leonard took an appeal, and said judgment was affirmed.

On March 10, 1913, by his third amended petition, King alleged that he was satisfied with the title, and, in the event Mrs. Leonard only owned a portion of said land, that he have specific performance to said part, and that the purchase price be proportionately abated. He also made the American Exchange National Bank and James Spillers parties, and that the bank be directed to deliver the abstract to him, and that all interest to said land be divested out of Spillers.

Mrs. Leonard, by amended answer, February 15, 1911, alleged that the contract sued on was procured by fraud on the part of J. S. Kendall, who, while pretending to act as her agent, procured the contract in his own name, representing that he had an offer from King, etc.; that she did not have a good title, in that she was holding it for herself and her two sisters, Mrs. Spillers and Mrs. Anderson, having inherited it from her deceased mother; and that King was charged with notice of the fraud alleged. J. W. Thompson and J. S. Kendall were made parties, and answered by pleading the general issue. The bank answered that it was holding the papers in escrow, and offered to deliver them in accordance with the order of court. James Spillers answered that he held one-third interest in said land as heir of his mother, and one-third by conveyance from Mrs. Anderson.

King, by first supplemental petition in replication to Spillers, alleged that Spillers had no interest in said property, having deeded it to Mrs. Leonard on February 6, 1889, and that Mrs. Leonard held title to said land by limitation.

Spillers replied that in 1897 he had re-conveyed to Mrs. Leonard, and that there was no consideration for either conveyance. King then replied that said plea of Spillers should not be heard, as he had bought without notice of said matters, and bought for a valuable consideration.

Mrs. Leonard then filed a supplemental answer, claiming rents, and that by her letter of November 13, 1909, she did not intend to substitute a new contract for the original contract between herself and J. S. Kendall, etc., and that King did not waive any infirmities in the contract, etc.

Judgment was rendered against Mrs. Leonard and Spillers.

Complaint is mhde by appellant that the court erred in giving a peremptory instruction for the plaintiff King.

The contention is that the contract of sale was made with J. S. Kendall, who was acting as her agent, and who committed a fraud on her, in that he represented to her that King had made an offer of $100,000 for the land, when, in fact, King had made no such offer, and that, by reason of such representation, she was induced to make the contract to sell to Kendall.

Mrs. Leonard pleaded and testified that Kendall was her agent, and that the contract was made as it was the better to enable the sale to be consummated with King. The uncontradieted evidence shows that on the same day she made the contract Kendall took it over to King’s office and there transferred it to King, who paid Kendall $1,000 as earnest money, which Kendall had put up with Thompson, who was acting as Mrs. Leonard’s attorney, and on the next day Mrs. Leonard and King executed the joint letter to the American Exchange National Bank, which, with $24,000 in cash and the escrow papers, were delivered to the bank. The undisputed testimony shows that Kendall was not King’s agent, received no commissions from him, and never ha'd any interest in the property, nor in the contract, further than the commission he was to receive for consummating the sale.

Kendall did with the contract just what Mrs. Leonard intended he should do with it — that is, he made a sale to King, for the price she understood from Kendall that she was to receive — and we are unable to see how Mrs. Leonard was in any way injured by the transaction. Besides, it is undisputed that King knew nothing of the representations of Kendall to Mrs. Leonard, and acted in good faith with Kendall in the transaction, and there is no such fraud as. will invalidate the contract. Mrs. Leonard, by signing with King the letter of instruction to the bank, ratified the acts of Kendall. Such acts being in accord with her desire, and in accord with her intentions when executing the contract to Kendall, it would be Inequitable to King to hold the contract void on the ground of fraud.

Mrs. Leonard further contends that the proviso in the contract that, if she could not furnish an authentic abstract showing good title or a perfect one, within a reasonable time, said contract to be void, etc., renders the contract void, as she did not show such a, title, therefore she is not liable on said contract. We think said proviso in the contract inures only to the benefit of King, and, when he is willing to accept the .title, Mrs. Leonard cannot claim that the contract is void for her failure to furnish an abstract showing a perfect title.

Before the last extension of time agreed upon for perfecting the title had expired, King, in company with his attorney, demanded of the bank a delivery of the deed to him, which was refused, because Mrs. Leonard had instructed it not to deliver the deed, and King brought this suit before the time of extension had expired, and alleged that he was willing to accept the title. Leonard v. King, 135 S. W. 743; Hunt v. Smith, 139 Ill. 296, 28 N. E. 809; Otto v. Young, 227 Mo. 193, 127 S. W. 10; Hale v. Cravener, 128 Ill. 408, 21 N. E. 534; Roberts v. Wyatt, 2 Tamton, 268; Pomeroy (2d Ed.), §§ 39-424.

In the case of Otto v. Young, supra, where this question was involved, the court said •that: “In what we have said in our discussion of those cases, we have not intended to 'say or imply that, if the defect in the title of defendant in this case had been such that he could not remedy, he would have had the right to declare the contract rescinded, and have escaped all liability. That clause was for the benefit of the buyer, not of the seller. The buyer could have refused to complete the purchase if there was an incurable defect, but he could have waived it if he had seen fit, and have been entitled to a specific performance with that exception.” To hold otherwise would give the seller ground for failure to make any effort to perfect the title, whether the defects were curable or not, and, if for any reason he did not desire to comply with the contract, declare the same void and refuse to comply with its terms.

Mrs. Leonard purchased the lots in controversy in the year 1879, and paid the purchase price therefor, and she has possessed and controlled the same ever since, except possibly two or three years, when Mrs. Stull lived on the place, just after the purchase, until she died in 1SS2. It is true she had the deed made to Mrs. Stull, her mother. Mrs. Stull left surviving her three daughters, Mrs. Leonard, Mrs. Spillers, and Mrs. Anderson. Neither of the last two ever made any claim to the lots, but left it in Mrs. Leonard’s possession and control. Nora Spillers died, and her interest, if any she had, descended to James Spillers, her son, and who was a party to this suit, and who claimed a two-third interest in said land, one-third by inheritance from his mother, Nora Spillers, and one-third interest by deed from Mrs. Anderson. Judgment was rendered in' favor of King against James Spillers, from which judgment Spillers has never appealed. We take it that Spillers’ claim to the land was not made in good faith, and that Mrs. Leonard had good title to the land, or could have perfected the title, and, if not, that she had a perfect title by limitation. Sbe was tbe owner of tbe land when sbe entered into tbe contract of sale and should bave no fear of being called upon to respond to ber warranty.

We see no fact wbieb should have been passed upon by tbe jury, and there was no error in refusing appellant’s special charges.

Tbe judgment is affirmed.


text:
    GULF REFINING CO. v. PEGUES MERCANTILE CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.
    Rehearing Denied April 1, 1914.)
    1. Appeal and Eeeoe (§ 743) — P>eiefs—As-signments of Eeeoe — Refeeence to Motion fob New Teial.
    Tbe requirement of rule 25 for Courts of Civil Appeals (142 S. W. xii) that the assignments of error must refer to that part of the motion for new trial in which the error is complained of was repealed by Rev. St. 1911, art. 1(512, as amended by Acts 33d Leg. e. 13(5, providing that, where a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of assignments; and, while this amendment does not affect the rules relating to the method of briefing assignments, consideration of an assignment would not be denied, though neither it nor the statement referred to the paragraph of the motion, where pages of the transcript were referred to which pages contained the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Sales (§ 72) — Construction—Quantity.
    A contract for the sale of oil and gasoline to a company engaged in the retail business to supply its local trade provided for the sale of stipulated quantities of each or such quantity thereof as the buyer might require during 12 months for its own consumption. The seller supplied the oil and gasoline needed for the buyer’s own use and its local trade; but the buyer demanded the balance of the stipulated quantities, intending to sell it as a speculation to dealers outside its local trade. Held, that it did not appear that the balance of the stipulated quantities was required for the buyer’s own consumption, and hence it was not entitled thereto.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 197-202; Dec. Dig. § 72.]
    Appeal from Zavala County Court; H. O. Stubbs, Judge.
    Action by the Pegues Mercantile Company against the Gulf Refining Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    D. Edward Greer, of Beaumont, G. B. Fen-ley, of Uvalde, M. L. I-Iarkey, of Crystal City, and Claude Lawrence, of Uvalde, for appellant. Wm. H. Davis, of Crystal City, and John D. Hartman, of San Antonio, for appel-lee.

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

   CARL, J.

This suit originated in the justice’s court, precinct No. 3, of Zavala county, Tex., where the plaintiff obtained a judgment, whence it was appealed to the county court of that county, and there the plaintiff below again prevailed. The Gulf Refining Company has appealed to this court.

The controversy grows out of a contract made between the parties, the material parts of which, so far as we are concerned, are as follows; “This contract made and entered into this 15th day of January, 1912, between the Gulf Refining Company of Port Arthur, Texas, first party, and Pegues Merc. Co., of Crystal City, Texas, second party, witnes-seth: That first party sells and agrees to deliver to second party, and second party agrees to purchase and receive from first party, during the period of twelve months, commencing Jany. 15, 1912, 5,088 gallons of Sunburst oil at 9 cts. per gallon, 3,816 gallons of stove gasoline at 14 cts. per gallon, 1,272 gallons of engine naphtha at 10 cts. per gallon, or such quantity of the above products as second party may require during that time for its own consumption.”

The Pegues Mercantile Company claimed that from January 15, 1912, to December 30, 1912, it had ordered and used only 3,173 gallons of Sunburst oil under the contract and 1,060 gallons of gasoline. No naphtha was used, and no claim made on account of that part of the contract. The claim was based on 2,915 gallons of Sunburst oil and 2,756 gallons of gasoline, which it is claimed the Gulf Refining Company refused to furnish, and the damage is laid at the difference between the contract price for same and the market price at the time the contract expired, amounting to $197.69, the exact amount of the judgment rendered.

Appellee objects to the consideration of appellant’s assignments, because they do not refer to the paragraphs of the motion for a new trial, and because the statement does not contain a reference to a motion for a new trial having been filed. But the page of the transcript is referred to, and an inspection of those pages shows that it is the motion for a new trial. Among other cases, Fahey v. Benedetti, 161 S. W. 896, decided by this court, is cited, in which it was held that a ground of insufficiency of evidence not embraced in the motion for new trial could not be assigned as error; also that assignments not briefed in accordance with the rules need not be considered. We did not hold that absence of reference to motion for new trial in both assignment and statement would alone be sufficient to justify us in refusing to consider the assignment, but merely called attention to these defects existing under rules applicable before amendment of article 1612.

Article 1612, as amended by Acts 33d Leg. (chapter 136, p. 276), repeals that part of rule 25 (142 S. W.. xii) requiring that the assignment refer to paragraph of motion for new trial in which the question was raised. Conn. v. Rosamond, 161 S. W. 76; Texas Co. v. Veloz, 162 S. W. 377. This amendment, of course, does not affect tlie rules relating to method of briefing assignments; but we will not refuse to consider assignments where the only objection pointed out to the brief is that it fails to refer to the motion for new trial. Chicago, R. I. & G. Ry. Co. v. Pemberton (Sup.) 161 S. W. 3.

The contract haying specified a certain number of gallons of gasoline, oil, etc., and having followed that specification in the same sentence with this qualifying clause: “Or such quantity of the above products as second party may require during that time for its own consumption” — we are here concerned with an interpretation of that clause.

Mr. J. E. Pegues was the only witness who testified, and he is a member of the Pegues Mercantile Company. He proved up the contract, which was introduced, and said that up to December 30, 1912, his company had only used 3,173 gallons of Sunburst oil under the contract and 1,060 gallons of gasoline. On that date he wrote the appellant, demanding that it furnish him the balance of the oil and gasoline he claimed was due him under the contract; same being 2,915 gallons of Sunburst oil and 2,756 gallons of gasoline. The Gulf Refining Company refused to furnish same, but continued to supply appellee from its local agent at Crystal City about the same amount of such products as it had been furnishing. Before the contract expired, about two or three weeks, appellee notified the appellant, both by letter to the company and to its local agent at Crystal City, that they would demand the balance coming under said contract, and to ship same. This the appellant refused to do, but did supply such demands as appellee made for its own use and local trade up to the time the contract expired. No demand was made for the naphtha, and no claim is made by reason thereof. Mr. Pegues said he had the oil and gasoline sold before the date on which the contract expired, and was only prevented froiji making deliveries by reason of the fact that defendant refused to deliver the oil and gasoline ; but on cross-examination he admits that he had reference to a telephone conversation with Merchants Wholesale Company at Uvalde, Tex., who called him up and told him they would take all the gasoline and oil he had on hand, “provided my price was right.” “No; they did not state how many gallons or how much oil or gasoline they would take, nor was any price agreed upon or mentioned; they merely saying they would take all I had, provided my price was right.” “Between January 1 and 15, 1913, I got oil and gasoline from the local agent of the defendant, for my local trade, some ten times, and got in all about 20 barrels from the defendant’s agent during the last.two weeks of the life of the contract.”' The average amount of gasoline and oil consumed by ap-pellee from January 1, 1912, to December 30, 1912, was 21 barrels per month, and this included what appellees bought from the Texas Company. The witness says that, if the defendant had delivered this oil, he intended to have sold it on the market, and made a profit on it. The statement of facts says that the witness made proof that there was a rise in the market price of oil and gasoline to such an extent that on December 30, 1912, and up to January 15, 1913, the difference between the contract price and such market price on the unfurnished oil and gasoline would amount to $197.69. This witness further says: “No; we do not hold ourselves out to the public as a wholesale house. Fully nine-tenths of our business is retail, supplying our local trade.” It is admitted that the witness and local agent of appellant knew at the time the contract was entered into that appellee was engaged in a retail business, and that the contract was to supply the local trade, and that appellee desired the products for no other purpose than their local trade.

There are two assignments of error, the first that the verdict of the jury is contrary to the overwhelming evidence, and the second that the court erred in. overruling defendant’s motion for an instructed verdict. These assignments will be treated together, for both of them raise the question that under the qualifying clause in the contract the defendant below could not be required to furnish more gasoline and oil than was reasonably necessary during the life of the contract, and that the mercantile company could not demand same simply to sell as a speculation to dealers outside of its local trade.

When a contract such as this is made for a certain number of gallons, “or such quantity of the above products as second party may require during that time for its own consumption,” what construction will be placed upon the qualifying clause, and what effect does it have upon the mentioning of a certain amount? These are the matters we are called upon to investigate. This construction has been made in a number of cases which we shall notice.

In Loeb v. Winnsboro Cotton Oil Co., 93 S. W. 515, a contract was made for the sale of cotton linters, stipulating that the seller confirmed the sale to the buyer of “the season’s output of linters, estimated at 200 to 250 bales.” It was held in that ease that the contract was for the output, regardless of the number. Chief Justice Rainey held that the output there governed, regardless of the number of bales, and the Supreme Court denied a writ of error.

In Laclede Construction Co. v. T. J. Moss Tie Co., 185 Mo. 25, 84 S. W. 76, there was a contract to furnish 1,000,000 ties, or so many as the railway company might need. The court held that this was binding only in so far as the company needed ties, and, if the road was not built at all, the company was not bound to take any ties. In short, the needs should govern the specification as to numbers.

The United States Supreme Court held, in Brawley v. U. S., 96 U. S. 168, 174, 24 L. Ed. 622, that, where a wood contract stated that 880 cords of wood shall he delivered, more or less, as shall he determined to be necessary by the post commander, the quantity designated is to he regarded as merely an estimate of what shall be necessary, to be determined by the post commander.

In the case of Moore v. Paris Oil & Cotton Co., 29 S. W. 821, Moore made a contract with the Oil Mill Company whereby it was to furnish “sufficient hulls and meal to feed 1,000 head of cattle,’.’ subject to certain conditions. Moore did not furnish any cattle to be fed as agreed, nor did he desire the feed for the purpose of feeding cattle. But, as hulls had advanced in price, he desired same for speculation. The trial court denied a recovery, Moore appealed, the case was affirmed, and the Supreme Court denied a writ of error.

A case very similar to this one came before the Dallas Court of Civil Appeals in Cullinan v. Standard Light & Power Co., 65 S. W. 689. A contract was there made to sell oil to the company during a certain period as it might need same as fuel oil in the operation of its plant, at a fixed price per barrel, and defendant (the company) ordered and obtained oil not for use in its plant, and sold the same at an advance over the contract price. The court held that CuIIinan could recover the profits so made by the company.

A Kentucky case on this point is Hettiger v. Davenport Malt & Grain Co., 145 Ky. 39, 139 S. W. 1072. The brewery contracted for 6,000 bushels of malt to be delivered as needed, and an option was given to get 2,000 bushels more if needed in the business at the same rate. The market advanced, and, when it was not shown that the brewery needed the malt, they could not claim the additional amount in order to sell the malt at a profit. The court says that “needed” was not used in the sense of a “desired” or “wanted,” but meant such as was required for the brewery.

It is not contended in this case that the Pegues Mercantile Company wanted this gasoline and oil in their regular retail business; but they claim they had a sale made to a TJvalde wholesale house of the entire quantity. The facts do not bear this out, for there is a total absence of anything which would show a sale at a certain price. The wholesale company told Mr. Pegues __ they would take all he had on hand, if his "price was right. What his price was has not been shown, nor has it been shown that his price would have been accepted. The market price was not shown, so far as the record is concerned. It is nowhere shown that a price was agreed on between Pegues and the Uval-de wholesale house. He probably had his price at which he would sell; but this might not suit the other party. They might not consider his “price right.”

Then the evidence fails to show that the Pegues Mercantile Company required the balance of the oil and gasoline mentioned in the contract for its own consumption.

What we have said makes it necessary for us to sustain the assignments, and the judgment is reversed and here rendered in favor of the appellant.

Reversed and rendered.