author: BOYCE, J.

text:
    FT. WORTH & D. C. RY. CO. v. BROWN.
    (No. 1378.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 26, 1918.)
    1. Carriers •«==>247(2) — ‘ ‘Passenger. ’ ’
    One who goes to railway depot a reasonable time before scheduled departure of train, with intention in good faith of paying his fare and boarding such train, is a passenger during interim between his arrival and that of the train, even prior to his actual purchase of the ticket.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Passenger.]
    2. Carriers «=>246 — Injuries to Passengers —Payment of Fare — Presumptions.
    One intending to become a passenger, who was injured in the depot while waiting for his train, and who subsequently boarded the train, , must be presumed to have paid the regular fare.
    3. Appeal and Error «=>1064(2) — Harmless Error — Instructions—Assuming Facts.
    Where the evidence was conclusive that the injury to an intending passenger while in the station waiting for his train was within a reasonable time prior to the departure of the train, there was no harmful error in assuming in an instruction that plaintiff was a passenger when injured.
    4. Carriers «=>280(1) — Duty to Persons in Stations.
    In the treatment of passengers awaiting trains in the depot the carrier owes that high degree of care that a very cautious and prudent person would exercise under the same or similar circumstances.
    5. Carriers «=>347(3) —Injuries to Passengers — Seats in Depots — Contributory Negligence — Questions for Jury.
    An intending passenger, waiting in the station for a train, who was injured when, in sitting down between two other passengers in what appeared to be a seat, he fell because of the absence of a bottom in the seat, was not negligent as a matter of law.
    6. Trial «=>351(2) — Submission of Issues— Specific Requests.
    In action for injuries by intending passenger who was injured when he attempted to sit in a defective seat, submission of the issue, “Was plaintiff himself guilty of contributory negligence in sitting in said seat as he did?” was not erroneous, in the absence of a correct request for a more specific submission, as being restricted to the manner in which he sat, but embraced the element of negligence in not ascertaining that the bottom of the seat was out.
    7. Damages '«=>216(3) — Injuries to Passengers — Instructions on Damages.
    In passenger’s action for injuries, instruction, authorizing recovery for physical injury and suffering in the past and for damages to health in the future, was not erroneous.
    8. Damages «=>216(3) — Injuries to Passengers — Instruction.
    Where injured passenger sought general damages, but not damages for loss of time or diminished earning capacity, and testified he could no longer work because of injuries received, instruction, submitting what amount would compensate him, should have been followed by limitation, precluding consideration of whether plaintiff sustained damages by loss ®f time or diminished earning capacity; the evidence being insufficient to sustain recovery for damages for loss of time.
    9. Carriers «=>286(1) — Duty to Intending Passengers.
    It is the duty of a carrier of passengers to-provide and maintain safe and suitable premises for passengers to occupy while waiting for trains.
    10. Carriers ©=>318(2) — Injuries to Passengers — ¡Sufficiency of Evidence.
    When it is shown that a seat in a railway depot is in an unsafe condition, and that plaintiff, an intending passenger, was injured thereby, a finding of negligence was justified without further evidence as to the length of time the condition had existed and the carrier’s knowledge thereof.
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by W. M. Brown against the Ft. Worth & Denver Dity Kaiiway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. A. Clarke, of Quanah, and Thompson, Barwise & Wharton, of Ft. Worth, for appellant. E'd Yarbrough, of Electra, for ap-pellee.
   BOYCE, J.

Appellee, W. M. Brown, recovered of appellant, the Ft. Worth & Denver City Railway Company, damages for personal injuries alleged to have been sustained while a passenger on said railway company, and while in its depot at Chillicothe, waiting for a train. The appellee was traveling by rail from Blackwell, Tex., to Electra, Tex., and changed cars from the Kansas City, Mexico & Orient Railway Company to the appellant railway company at Chillicothe. He had to wait at Chillicothe several hours for a train to Electra, and spent this time in appellant’s depot at Chillicothe. The appellee was- an old man about 74 years old, and his sight was not very good. While waiting at the depot he engaged in conversation witn another person sitting in one of the seats in said depot, and attempted to sit down in the seat next to such person. The bottom of the seat was out, leaving only the frame work, and the appellee fell partly through the seat, and sustained injuries for which he recovered this judgment.

A number of assignments contend that the evidence was insufficient to warrant a finding that appellee was a passenger, and that the court below erred in not so holding. Error is also assigned on the ground that the court assumed in his charge that appellee was a passenger. Appellee’s petition negatives the fact that he had a through ticket, it being alleged that he purchased a ticket over appellant’s line of road at Chillicothe. The evidence does not show whether appellee had purchased a ticket at the time of the injury or not; in fact, it is silent as to whether he ever had a ticket over appellant’s road or paid his fare from Chillicothe to Electra. He did, however, board the train at Chillicothe, and was transported by appellant to Electra, and it is to be presumed, we think, that he either purchased a ticket or paid Ms fare on the train. It does not appear definitely just bow long after the accident before the arrival of such train; the witnesses describing the interim between the time of the accident and the boarding of the train by appellee as “just a little while” and “a few minutes.” One who goes to the depot of a carrier within a reasonable time before the time scheduled for the departure of a train on which he intends to take passage, with the intention in good faith of paying his fare and boarding such train, is to be deemed a passenger during the interim between Ms arrival and that of the train, even prior to the time of Ms actual purchase of the ticket entitling him to transportation. Texas Midland R. R. Co. v. Griggs, 106 S. W. 411; 4 R. C. L. 1033. The evidence here is conclusive that appellee was in defendant’s depot, intending to board its train, and that he did subsequently do this, and, as we have already stated, we think it is to be presumed that he paid the regular transportation charges.

We are also inclined to think that the evidence is so conclusive that 'the injury occurred within that reasonable period of time prior to the departure of the train referred to in the rule stated as that, under the circumstances, there was no harmful error in the action of the court in assuming that appellee was a passenger, and we would not be disposed to reverse the case on this assignment. The facts will probably be developed more fully on this phase of the case on another trial, and the court will be controlled in its action in reference to the submission of this issue by the rule stated.

Complaint is made of the charge of the court which imposed upon the appellant company “in the treatment of their passengers awaiting trains in their depots * * * that high degree of care that a very cautious and prudent person would have exercised under the same or similar circumstances,” on the ground that the rule requiring the exercise of that high degree of care as stated applies only to those duties in connection with the actual transportation of the passenger, and that only ordinary care is required in reference to the condition of its station and premises ' occupied by its passengers preliminary to or upon termination of the actual transportation. There are some authorities which sustain this proposition. C. J. vol. 10, p. 910. But it seems to be settled by the decisions of this state that the rule of high degree of care is applicable alike in both situations stated. St. Louis & S. W. Ry. Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; M., K. & T. Ry. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S. W. 254 (writ of error denied); S. A. & A. P. Ry. Co. v. Turney, 33 Tex. Civ. App. 026, 78 S. W. 256 (writ of error denied); Texas Pacific Railway Co. v. Cameron, 149 S. W. 709 (writ of error denied); G., C. & S. F. Ry. Co. v. Butcher, 83 Tex. 309, 18 S. W. 583; R. C. L. vol. 4, p. 1222, § 644.

Appellant contends that appellee was guilty of contributory negligence as a matter of law in sitting down in the seat without ascertaining that its bottom was out. The seats were located along the wall in a row. The seats to each side of this one were occupied, and tMs seat was complete with arms and framework. Its appearance to the casual glance of a person having no reason to anticipate a condition of this kind, especially one whose sight was not good, might be such as to invite repose therein, and such person, accepting its invitation without the particular examination necessary to disclose that it was not really what it appeared and was meant to be, is not, we think, to be conclusively held to be guilty of contributory negligence. Appellant also contends that there was error in the submission of the issue of contributory negligence in this language:

“Was plaintiff himself guilty of contributory negligence in sitting in said seat as he did ?”

The contention is that tMs language applies only to the actual manner of the sitting down, and does not cover the principal contention that appellee was guilty of negligence in not .discovering that the seat had no bottom and was thus negligent in sitting down at all under such circumstances. We think the general language “sitting in said seat as he did,” would embrace this element of negligence; that is, sitting down as he did without ascertaining that the bottom of the seat was out. We think the submission of the issue was sufficient, at least in the absence of a correct request for a more specific submission. The special issue requested by appellant in this connection was incorrect, and there was no error in refusing it. G., C. & S. F. Ry. Co. v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80.

By the fifth assignment appellant complains that the charge of the court is erroneous, in that it authorizes a recovery both for “physical injury and suffering” and “damages to health.” The instruction is so drawn as that the physical injury and suffering is referred to as that having already been sustained, and the damage to the appellee’s health is such “that may, with reasonable probability, hereafter result from such injury.” We do not think that this assignment should be sustained, though the charge in this respect is not as clear as it might be.

We are of the opinion, however, that we must sustain the sixth assignment. Appellee did not seek damages for loss of time or diminishment of his earning capacity or power to work, but only set out his injuries and the consequent physical suffering and condition, and concluded that “his health has been damaged to such an extent that he is entitled to the sum of $3,000.” The court submitted tbe issue of damages in this language:

“What sum of money, if now paid, would fairly compensate plaintiff for the injury and damage to his health, etc.?”

The appellant requested the court to instruct the jury in this connection “that you will not consider as to whether plaintiff has sustained any damages by reason of loss of time in the past or time that he may lose in the future for the reason that there is no evidence showing or tending to snow what his services were reasonably worth in the past or would be reasonably worth in the future;” and the refusal to give this instruction is made the basis of this assignment. There was considerable testimony as to ap-pellee’s ability to work and the actual work done by him for several years prior to his injury and as to his inability to work thereafter. It was shown that he had made a crop for several years preceding the injury, and was intending to do so during the year of the injury and the trial, but had been unable to do so on account of his condition, which was claimed to be the result of the injury. At the very beginning of appellee’s testimony he stated:

“One reason I brought this suit is that I went to sit down on that seat and got hurt so bad I just ain’t able to work; I am done work now, gentlemen.”

No testimony was offered as to the value of the work that appellee would have been able to perform, or as to his earning capacity; in fact, we understand that it was not ap-pellee's purpose in offering this testimony to claim compensation for the loss of time and diminished earning capacity, but that such facts were offered for the purpose of showing the actual physical result of the accident. The evidence was insufficient to have sustained a recovery for damages on account of loss of time, even if the pleading was sufficient. I. & G. N. Ry. Co. v. Simcock, 81 Tex. 503, 17 S. W. 47; T. & P. Ry. Co. v. Goldman, 51 S. W. 275. Loss of time and diminished capacity to work are, however, consequences of ill health as well as physical pain and suffering. Since there was evidence before the jury that time had been lost, though on account of the lack of pleading and evidence as to the value of this time it could not properly form an element of the recovery, the jury should have been instructed not to consider it. While we are not prepared to hold in accordance with, appellant’s contention that the verdict is excessive, even if only legal elements of recovery are considered, yet we cannot say that the jury did not consider this element of damages in coming to its conclusion, — it would be natural for it to do so. Under these circumstances we think the refusal of the charge requested was error.

We overrule the thirteenth assignment. It was the duty of the appellant to provide safe and suitable premises for its passengers to occupy while waiting for its trains. When it was shown that the seat was in an unsafe condition, this fact we think would be sufficient to justify a finding of negligence by the jury, without further evidence as tor the length of time this condition had existed and appellant’s knowledge thereof. The appellant had charge of the premises, and had better opportunity than any one of knowing the' facts and meeting the imputation of negligence that might be drawn from this condition itself.

This disposes of all the questions raised on the appeal. For the reasons • stated, the judgment is reversed, and the cause1 fe- ■ manded.

HUEE, C. J., not sitting, etc.
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source: Caselaw Access Project

license: Public Domain

text:
    WATTS et al. v. McCLOUD et al.
    (No. 1278.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 29, 1918.
    Rehearing Denied June 26, 1918.)
    1. Limitation of Actions <§=>85(3) — Statute —Suspension.
    If subsequent grantee from common source, claiming title by adverse possession under five-year statute, was a resident at time deed to him was recorded, the operation of the statute would be suspended during his absence from the state, under Rev. St. 1911, art. 5702, although during such time grantee 'became a nonresident.
    2. Limitation of Actions <§=>87(4) — Statute —Suspension.
    If subsequent grantee from common source, claiming title by adverse possession under five-year statute, was a nonresident at time his deed was recorded, mere visits to the state on business or pleasure would not bring the suspensory statute (R. S. 1911, art. 5702) into operation.
    3. Limitation of Actions ’@=>197(1) — Statute— Suspension.
    In trespass to try title, evidence held to warrant jury finding that subsequent grantee from common source was a resident at time of recording his deed, so that his subsequent absence from state would suspend statute of limitations, under Rev. St. 1911, art. 5702.
    4. Limitation of Actions @==>87(4) — Statute —Suspension.
    Rev. St. 1911, art. 5702, suspending statute of limitation in case of absence from state, applies to one who at time of accrual of cause of action had a “residence” as distinguished from a “domicile” within the state.
    5. Evidence <@=>271(21) — Declarations as to Residence — Affidavit.
    In trespass to try title, the principal issue being whether deceased grantee was at time of accrual of cause of action a resident, so that his absence from the state would, under Rev. St. 1911, art. 5702, suspend statute of limitations, a statement of said grantee in an affidavit that his postoffice address was a named place within the state was admissible as a circumstance tending to establish residence.
    6. Trial <@=>194(2) — Erroneous Requests — Refusal.
    Requested instruction to effect that declarations made by a party with reference to making testimony in his favor or subserving his interests should be rejected, held a comment on weight of evidence and properly refused.
    • 7. Judgment <@=>253(1) — Sufficiency of Pleading to Support.
    In trespass to try title, petition which expressly alleged value of use of premises to be $250 per annum, and asked for judgment for damages, rents, and costs of suit, was sufficient to support judgment for $381 for use of premises for two years prior to beginning of suit.
    8. Pleading <@=>384^Set-Off — Trespass to Try Title.
    In trespass to try title, where there was no pleading on the part of defendants of the payment of specific taxes and no prayer for any set-off, the court did not err in refusing to set off against the damages awarded plaintiffs’ taxes paid by defendants, in view of Rev. St. 1911, art. 1907, as to necessary steps to entitle defendant to prove set-off.
    9. Trespass to Try Title <S=>41(1) — Bona Fide Purchase — Evidence.
    In trespass to try title, facts held not to warrant submission of issue whether deed from common source to a son whose heirs are plaintiffs was a bona fide sale and purchase or a conveyance in trust to subserve the convenience of the parties.
    10. Deeds @=>194(5) — Delivery—Evidence. Recording of a deed is presumptive evidence of its delivery.
    11. Fraudulent Conveyances <@=>210 — Right of Subsequent Grantee.
    Although conveyance was for the purpose of defrauding creditors, it would be good as to a subsequent grantee having constructive notice thereof. ,
    12. Trusts <@=>44(3) — Parol Trust — Evidence.
    A parol trust cannot be ingrafted upon a legal title except by clear and satisfactory evidence.
    13. Estoppel <§=>119 — Question for Jury.
    In trespass to try title, evidence held not to warrant submission of issue whether plaintiffs were estopped by their predecessors’ acquiescence in or consent to a subsequent conveyance by his grantor to another.
    Appeal from District Court, Garza County;1 W. R. Spencer, Judge.
    Trespass to try title by James M. McCloud and others against Mary Parkes Watts and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Beall <& Douthit, of Sweetwater, and Thompson, Knight, Baker & Harris, of Dallas, for appellants. Bean & Klett, of Lubbock, for appellees.
   BOYCE, J.

This suit in trespass to try title was brought by appellees James McCloud and others, heirs of James W. McCloud and his wife, deceased, against appellants, Mary Parkes Watts and Emma Parkes Watts, surviving wife and daughter, respectively, of W. W. Watts, to recover a section of land in Garza county. Defendants, in addition to a plea of not guilty, pleaded the 5 and 10 years statute of limitations. The plaintiffs, in reply to the plea of limitations, alleged that W. W. Watts, the husband and father of appellants, and under the deed to whom they claim, was at the time of the accrual of plaintiffs’ cause of action a resident of Texas, and thereafter was without the limits of the state from time to time, and limitations were suspended so that, counting out such periods of suspension, the said W. W. Watts and the defendants had not been in adverse possession of said land for a sufficient length of time to support their plea of limitations. The trial resulted in judgment for plaintiffs.

James McCloud is the common source of title. He conveyed the property to his son James W. McCloud by deed dated November 5, 1891, and recorded in January, 1892. The appellees are the heirs of the said James W. McCloud and his wife, who is also dead. By deed dated August 2, 1898, James Mc-Cloud conveyed the land to W. W. Watts. This deed was recorded in Garza county on February 26, 1903. W. W. Watts at the time of conveyance to him entered possession, and he and appellees have been in possession, paying taxes thereon, up to the time of the institution of this suit.

The principal question in the case is as to whether W. W. Watts was, at the time of or subsequent to the accrual of plaintiff’s cause of action, such a resident of Texas as that the provisions of article 5702, R. S., would apply so as to suspend the running of the statute during his absences from the state, it being undisputed that if said article is to apply the plea of limitations was not good. The five-year statute of limitations would begin to run upon the recording of the deed to W. W. Watts in Garza county in February, 1903.

If W. W. Watts was a resident of Texas at that time, absences from the state thereafter would, during the continuance thereof, suspend the statute, although during such time he became a nonresident. R. S. 5702; Ayres v. Henderson, 9 Tex. 539; Bemis v. Ward, 37 Tex. Civ. App. 481, 84 S. W. 292; Dignowity v. Sullivan, 49 Tex. Civ. App. 582, 109 S. W. 428; Huff v. Crawford, 88 Tex. 308, 30 S. W. 546, 31 S. W. 614, 53 Am. St. Rep. 763.

On the other hand, if he were a nonresident of Texas, mere visits to the state on business or pleasure would not be sufficient to bring the suspensory statute into operation. Wilson v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766.

By various assignments appellants assert that the evidence is insufficient to show that W. W. Watts was a resident of Texas during the year 1903; they also assail the method of the submission of the issue of residence to the jury. The evidence shows that W. W. Watts came to Texas soon after the Civil War. He acquired a large plantation in Robertson county and lived with his family on it. In 1883 he also acquired a large ranch, in Garza county. Until some time in 1884 or 1885 unquestionably both his domicile and residence were in Texas. In 1884 or 1S85 he built an expensive residence in Richmond, Ky., which he occupied with his family until his death, but the principal part of his property and business interests continued to be located in Texas. He farmed the plantation, in Robertson county until 1899, when he leased it out. He also ran the ranch in Garza county until he leased it in June, 1903. His wife and daughter, appellants, both testify that until he leased out these properties he spent the greater part of each year in Texas; that during this time he claimed Texas as his legal residence and voted here. His wife and daughter accompanied him to Texas at times, but spent very little of their time here, remaining for the most part in the Kentucky home. Even after both properties were leased out he made several trips each year to Texas, but after the leasing of the plantation in 1899 the time spent in Texas began to lessen, and this was still further shortened after the leasing of the ranch in 1903. The testimony is somewhat conflicting as to the amount of time spent in Texas about the year 1903, and as to whether at that time he was still voting in Texas; but, using the word “residence” as it is distinguished in meaning from “domicile,” the evidence is sufficient to warrant the finding of the jury made in response to a special issue, that the said “W. W. "Watts was a resident of Texas from the time he began ranching in Texas, in 1883, until he leased the ranch to Dittlefield, in (June), 1903.” So that we overrule those assignments, which complain of the sufficiency of the evidence to support this finding.

Appellants’ assignments on the method of the submission of the issue of residence are based principally on the contention, in effect, that “residence,” as the term is used in those decisions, which hold that article 5702 does not apply to absences from the state of “nonresidents,” is used in the meaning of “domicile.” In determining whether this is true it is, in the first place, to be observed that article 5702 does not itself use the word “resident” or “nonresident,” but simply provides that:

“If any person against whom thei’e shall be cause of action shall be without the limits of this state at the time of the accruing of such action or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the state, and the time of such person’s absence shall not be accounted or taken as a part of the time limited by any of the provisions of this title.”

The Supreme Court in an early day field tfiat, on account of tfie use of tfie word “return,” tfie statute did not apply to one wfio was not and never had been in tfie state at tfie time of tfie accrual of tfie cause of action, because tfie “return” of such a person to tfie state was a physical impossibility. Snoddy v. Cage, 5 Tex. 106. So the courts have come to announce tfie proposition generally that tfie statute does not apply to persons wfio were nonresidents of the state at tfie time of the accrual of tfie cause of action, and the statute was field to apply to real as well as personal actions. Huff v. Crawford, 88 Tex. 368, 30 S. W. 546, 31 S. W. 614, 53 Am. St. Rep. 763; Wilson v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766. This history of tfie development of tfie'law convinces us tfiat tfie statute applies to one wfio at tfie time of tfie accrual of tfie cause of action fiad a residence, as disf tinguisfied from a domicile, in Texas, although fie might have a domicile in another state. It can properly be said of such person tfiat fie may “return” after an “absence.” Tfie person having such a residence, though, bis domicile be elsewhere, is subject to tfie jurisdiction of our courts; he comes within tfie provisions of our venue statute ;■ is not a “nonresident,” as tlie term is therein used, and may claim the privilege of being sued in the county of his “residence.” Taylor v. Wilson, 99 Tex. 651, 93 S. W. 109. The court’s charge drew the distinction between “domicile” and “residence,” giving the definitions thereof as quoted and adopted by the Supreme Court in P. & N. T. Ry. Co. v. Thompson, 106 Tex. 456, 167 S. W. 803, col. 1. The jury were also informed that “a person may have a domicile in one state and residence in another. A person can have but one domicile, but may have more than one residence.” The statement and definitions thus made in the charge are fully supported by the decisions of the Supreme Court. P. & N. T. Ry. Co. v. Thompson, supra; Pearson v. West, 97 Tex. 243, 77 S. W. 944; Taylor v. Wilson, supra. And if this conception of residence is properly applicable to this hind of case, there was no error in the charge. The charge, in connection with the special charges that were given, was sufficiently full, and we find no error in those assignments which complain of the charge given and the refusal of charges requested on this issue. We do not thinh the form of the submission of the issue was leading, as complained of.

. This general discussion disposes of the first, second, fourth, sixth, seventh, eighth, tenth, and twelfth assignments.

We do not think the admission of the statement in an affidavit made by W. W. Watts on October 10, 1898, that his post office address was Mumford, Bobertson county, Tex., was error. The statement made at this time was admissible as a circumstance tending to establish the fact- of residence of W. W. Watts in Texas at such time. Robertson v. Ephraim, 18 Tex. 124; Davis v. State, 75 Tex. 420, 12 S. W. 960.

In connection with the admission of this testimony the appellants requested an instruction to the effect that declarations made by a party with reference to making testimony in his favor or subserving his interests should be rejected, and assigned error on the refusal of such charge. In this connection there is a suggestion that under the law only a resident of Texas could lease convicts, and, since it was shown that W. W. Watts was farming his Bobertson county plantation by leased convict labor, it might be inferred that this declaration was a self-serving one and not a true statement of the facts. We think the requested charge would have been on the weight of the evidence, and that it was properly refused. H. & T. C. Ry. Co. v. Runnels, 92 Tex. 305, 47 S. W. 972; Read v. Allen, 63 Tex. 158; Castleman v. Sherry, 42 Tex. 59. This disposes of the fifth and ninth assignments.

The third assignment complains of the action of the court in rendering judgment for plaintiffs for damage for the sum of $381 as compensation for the use of said premises for a period of time beginning two years prior to the institution of the suit and continuing to the time of the trial, it being claimed that the pleadings were insufficient to support such recovery; the evidence was insufficient to warrant the finding; no issue was submitted to ■ the jury; no demand was made for such rents, and no offset allowed for the amount of taxes paid by defendants on said land. The plaintiffs in their petition expressly allege the value of the use of said premises to be $250 per annum, and asked for judgment for “damages, rents, and costs of suit.” We think this was sufficient. We do not think a demand for the payment of said rents, other than that made in the petition, was necessary. The undisputed evidence of defendants’ own witnesses and the admissions upon the trial fixed the value of the use of the premises, and, there being no’ request for the submission of the issue to the jury, we think this evidence was sufficient to warrant the judgment of the court.

There was no pleading on the part of the defendants of the payment of specific amounts of taxes, and no prayer for any offset, and it was not error for the court, under these circumstances, to refuse to offset the damages by taxes paid by defendants. Article 1907, R. S.; Lipincott v. Taylor, 135 S. W. 1070. We overrule, therefore, appellants’ third assignment.

By the eleventh and thirteenth assignments it is urged that the facts are sufficient to require the submission of issues as to whether the deed from James McCloud to James W. McCloud was “the result of a bona fide sale and purchase between the parties, or was it done to convey the land in trust, or for some other purpose to subserve the convenience of the parties to the transaction”; or whether the deed by James McCloud and wife to W. W. Watts was acquiesced in or consented to by James W. McCloud or subsequently ratified by him? In connection with the consideration of these two assignments, we make the following additional statement: After the execution of the deed to James W. McCloud by James McCloud, in 1891, James McCloud continued to pay the taxes on the land until it was conveyed by him to W. W. Watts, and the said W. W. Watts and the appellees thereafter paid the taxes until .the time of the filing of this suit. James W. McCloud died March 8, 1903; his wife died June 24, 1909; James McCloud died in February, 1904, and his wife died in April, 1910. The parties lived during a great part of the time in the same place and the relations between them were cordial and affectionate. The Texas property was not listed as belonging to the estate of any of these persons upon their decease, and no claim was made to the land until after the year 1911, when an abstracter of Garza county, having discovered a discrepancy in the Watts title,- made some inquiries of the McClouds in reference to the matter. The ap-pellees appear to have had some difficulty in securing the deed from their guardian, in whose possession it was, and took no steps to recover the land until some time in the year 1915. There is a mere suggestion that James McOloud was in financial difficulties sometime prior to the date of the deed of James W. McOloud, and that the land may have heen conveyed to him while in this condition, and with a view of obtaining a settlement from his creditors.

The recording of the deed is presumptive evidence of its delivery. Williams v. Neill, 152 S. W. 693; Belgarde v. Carter, 146 S. W. 964. The subsequent possession of the deed by the guardian of the children of James W. McCloud still further confirms this presumption, and, as there is no evidence to the contrary, the record does not, therefore, raise an issue as to the execution and delivery of the deed. The deed was in terms a warranty deed, reciting a consideration, and conveyed the title to James W. McCloud. This title could only be divested by some mode of conveyance recognized by law. Van Hook v. Simmons, 25 Tex. Supp. 324, 78 Am. Dec. 573.

Even if the purpose of the deed was to defraud the creditors, the conveyance would be good as to W. W. Watts, since he had constructive notice of the deed. Monday v. Vance, 51 S. W. 346; Sikes v. First State Bank, 197 S. W. 227.

A parol trust cannot be ingrafted upon a legal title except by clear and satisfactory evidence. Certainly there is nothing in the record that would satisfy this requirement.

Neither do we think the evidence sufficient to raise an issue of estoppel or ratification. It does not appear that James W. McCloud knew anything of the deed to W. W. Watts, nor that he did anything that in any way influenced said Watts to buy the land. Thomas v. Groesbeck, 40 Tex. 530; Pierce v. Texas Rice Development Co., 52 Tex. Civ. App. 205, 114 S. W. 857.

We have found no assignments which present reversible error, and the judgment will be affirmed.

HUPE, C. J., not sitting, being absent in Austin, sitting with Committee of Judges passing on writs of error for the Supreme Court.
      <@E»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    HEIDENHEIMER, STRASSBURGER & CO. v. ALEXANDER & BAIRD.
    (No. 5847.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 6, 1918.)
    1. Customs and Usages <Ssw20 — Proof.
    In an action by seller of oranges, a finding of the court that the custom of Texas jobbers in buying perishable goods only subject to inspection at destination, was not shown by the testimony to be so general and notorious that the seller might be presumed to have had knowledge of it, held against the weight of the evidence.
    2. Customs and Usages <®=»12(1) — Knowledge of Parties.
    When it is'shown that both parties to a sale were engaged in the same kind of business, and one of them relied upon a custom in that particular line of business, it is not necessary to show that other party had knowledge or notice of the existence of such custom.
    3. Customs and Usages @==312(1) — Delivery —Right of Inspection.
    When merchandise is ordered from another state or distant point, and the 'contract is silent as to where delivery shall be made, it is permissible for the buyer, in order to show that he did not intend to contract for delivery of the property elsewhere than at the place of its destination, to show that it was the custom and usage at the latter point for final delivery to be made, and that purchaser had right of inspection and rejection, although seller was ignorant of the custom.
    4. Sales <®=>79 — Place of* Delivery.
    Where the contract is silent, delivery . by seller to carrier'is prima facie evidence of the delivery to the purchaser, but is not conclusive evidence of that fact.
    Appeal from District Court, Travis County; Ireland Graves, Judge.
    Suit by Alexander & Baird against Heiden-heimer, Strassburger & Co. Judgment for plaintiffs,) and defendants appeal.
    Reversed and remanded.
    Fiset, McClendon & Shelley, of Austin, for appellants. Thelbert Martin and A. S. Phelps, both of Austin, for appellees.
   KEY, C. J.

Appellees, Alexander & Baird, brought this suit against appellants, Heiden-heimer, Strassburger & C'o., and sought judgment for $962.80, the purchase price of two cars of oranges shipped by appellees to appellants; the destination of one car being Austin, and the other Giddings, Tex. Appellants filed an answer, the particulars of which need not be stated, as it will sufnce to say that the pleadings of each party were sufficient. The case was tried without a .jury, judgment rendered for plaintiffs, and the defendants are prosecuting this appeal. The trial judge filed the following findings of .fact and conclusions of law:

“Findings of Fact.
“(1) The plaintiffs are residents of De Soto •county, Fla., where they are engaged in the business of growing and selling oranges at wholesale. The defendants are grocery, fruit, and produce jobbers residing in Travis county, Tex.
“(2) On or about October 25, 1913, through the means of letters and telegrams, defendants purchased from plaintiffs two cars of oranges to be shipped from Wauchula, Fla., about November 25, 1913, one car to Giddings, Tex., and the other to Austin, Tex., for which defendants agreed to pay plaintiffs the sum of $902.80 f. o. !b. the cars at Wauchula, Fla. The date for shipment as well as the delivering carrier was designated by defendants, but no agreement was made with respect to the date when the cars were to reach their destinations.
“(3) The agreement contemplated that payment should be effected by a draft drawn by plaintiffs on the defendants through the Austin National Bank in Austin, Tex. The contract is silent as to whether the shipments should be billed ‘open,’ by which is meant that the purchaser is named as the consignee in the bill of lading, and the latter sent through the mails direct to the purchaser, or whether the bill of lading should be drawn to ‘shipper’s order, notify purchaser (naming him),’ and sent through the bank attached to the draft for the purchase money. The evidence is that while the latter is the method more generally employed in Texas, yet ‘open’ shipments are sometimes made; in this instance the shipment was ‘open.’
“(4) The plaintiffs, in the negotiations leading up to the sale, represented that the quality of the oranges would be first-class and that they would be properly packed. I find that two cars of such oranges as were contemplated by the contract, and properly packed, were delivered by the plaintiffs to the carrier, consigned to defendants, one car on November 25 and the other on November 26, 1913.
“(5) The Giddings car arrived about December 2d, and defendants were promptly notified. Date of arrival of Austin car is not shown, but on December 5th, after having inspected the Austin ear, the defendants sent to plaintiff the following telegram:
“ ‘Austin car shows twenty per cent, decay now presume Giddings likewise will you protect us.’
“After which the following telegrams were exchanged between the parties on the dates shown thereon:
“ ‘Deland, Fla., Dec. 5, 1913.
“ ‘Heidenheimer-Strassburger Go., Austin, Texas: Oar went out of shipping point in fine condition weather was very favorable here we offer you a reduction of thirty cents a box, which makes us a heavy loss quick reply desired. Alexander & Baird.’
“ ‘Dec. 6, 13.
“ ‘Alexander & Baird, Deland, Fla.: Your offer seems liberal but prefer having car repacked and pay you accordingly otherwise handle Califor-nias with which no trouble same applies to Gid-dings car, answer quick.
“ ‘Heidenheimer, Strassburger Co.’
“ ‘Beresford, Fla., December 7th, 1913.
“ ‘Heidenheimer, Strassburger & Go., Austin, Texas: We must make immediate settlement weather conditions your end cause of decay perfect condition leaving us sold f. o. b. Florida we made you very liberal offer causing us heavy loss answer quick.
“ ‘Alexander & Baird.’
“ ‘Dec. 8th, 13.'
“‘Alexander & Baird, Beresford, Fla.: We buy all perishable goods subject inspection unless otherwise contracted at, cannot buy cat in bag, will substitute with Californias today unless you accept our proposition quick.
“ ‘Heidenheimer, Strassburger Co.’
“ ‘Beresford, Fla., Dec. 9-13.
“‘Heidenheimer, Strassburger Co., Austin: If cannot accept car at-reduction offered advise what -amount you must have off as we must know for settlement name best figure shipping point answer quick. Alexander & Baird.’
“ ‘Dec. 9th, 13.
“ ‘Alexander & Baird, Beresford, Fla.: Answering yours, forced refuse both cars bought elsewhere.
“ ‘Hei'denheimer, Strassburger & Co.’
“(6) The weather conditions at Austin and Giddings from about December 1st to 10th, inclusive, were unfavorable for keeping oranges in cars. The weather at Wauchula, Fla., when the cai's left there was favorable for shipping. The Austin car showed about 20 per cent, decay on December 5th, and the Giddings car, when inspected by defendants for the first time on December 19th, showed a higher percentage of decay.
“(7) The railroad company, being unable to make delivery of the cars, disposed of them for the purpose of collecting the freight, and no part of the proceeds is shown to have been received (by either party to this suit. The plaintiffs drew on defendants through the Austin National Bank, and the drafts were permitted to go to protest, for which plaintiffs paid out the protest fees, as alleged. No part of the purchase price or protest fees has ever been paid to plaintiffs.
“(8) It is shown that the Texas jobbers are in the habit of buying fruit and other perishable goods subject to inspection and rejection or acceptance at destination. While it does not affirmatively appear, it may be fairly inferred from the evidence that the practice of inspecting the fruit before accepting the car is invariably pursued by the Texas jobbers. Under this practice, if the fruit is found to be in unsatisfactory condition the shipper is so notified, and unless an adjustment can be reached the car is rejected ; if once accepted, no objection can thereafter be considered.
“(9) At the time the contract was made, and prior to the time of the rejection by defendants of the two cars of fruit, plaintiffs are not shown to have had any actual knowledge of such practice in Texas.
“(10) In the several letters and telegrams leading up to and constituting the contract, no reference to such practice was made; but to hold that such custom was an unexpressed part of the contract would not require the elimination of any of the express terms of the agreement.
“(11) This contract was not made through a local broker, and the evidence fails to show that the custom above referred to was so general, long established, and notorious that plaintiffs may be presumed to have had knowledge of it at the time the contract was made.
“Conclusions of Law.
“(1) There being neither an expressed nor an implied agreement to deliver the fruit at destination, delivery to the carrier at Wauchula, Fla., was delivery to the defendants; and since it appears from the evidence that the fruit when so delivered, as to quality, quantity, and meth■od of packing, met the requirements of the contract, defendants should be required to pay for same.”

Opinion.

Without referring in detail to the assignments of error, it is sufficient to say that they present the questions hereafter discussed, which may be summarized as follows:

(1) Were appellants entitled to have judgment rendered in their favor upon the facts found by the tidal court?

(2) Did that court err in its eleventh finding of fact, to’ the effect that the usage and custom referred to in the eighth, ninth, and tenth findings was not shown by the testimony to be “so general, long established, and notorious that plaintiffs may be presumed to have had knowledge of it at the time the contract was made”?

(3) When it is shown that both parties to the contract were engaged in the same kind of business, and one of them believes and relies upon a custom or usage in that particular line of business, is it necessary to show that the other party had knowledge or notice of the existence of such custom, before it will be considered in determining the rights of the parties?

(4) When merchandise is ordered from another state or distant point, and the contract is silent as to where delivery should be made, and title passes to the purchaser, is it permissible for the latter, in order to show that he did not intend to contract for delivery of the property elsewhere than at the place of its destination, that it was the custom and usage at the latter point for final delivery to be made there, and that the purchaser had the right of inspection and rejection for noncompliance with the contract, although the seller may have been ignorant of the custom referred to?

We have reached the conclusion that an affirmative answer must be given to all of these questions, except the third, which is answered in the negative, and therefore the appeal must be decided in favor of appellants.

Some doubt may exist as to appellants’ right to a judgment upon the trial court’s findings of fact, but we feel compelled to hold that so much thereof as is quoted above is so contrary to the overwhelming weight of the testimony that it ought not to be permitted to stand, and for that reason, if for no other, the case should be reversed.

The testimony bearing upon that subject is substantially as follows:

“The witness Frank F. Finks testified as follows: T live in Austin. I have lived here twelve years. My business is merchandise broker-. We handle canned goods, dried fruits, beans, potatoes, apples, oranges, etc. I have been in that business for twelve years. * * * I know the custom in regard to the sale and shipment of oranges and other perishable produce. * * * I handle during the orange season about thirty or forty cars of oranges. * * * I handle Florida oranges — Florida and California both. I have been handling Florida oranges five years; California ten years. I know the firm of Alexander & Baird only by reputation; I know they are in the business. They are large shippers. I am acquainted with the custom in Texas with regard to sales and purchases of oranges and other perishable produce — the custom existing where the shipper sells to Texas jobbers. * * * The seller has to make good the condition of their fruit on arrival at destination. I won’t say positively about being irrespective of how the shipment is made, or how it is billed, because on all sales we make — we make f. o. b. and delivered sales 'both — and if a car comes in showing decay we wire some shippers that cars have arrived in decayed condition, and how much decay we must allow to make delivery, and for other shipments we have authority to make settlements ourselves. The custom when the shipment is made f. o. b. point of origin, when it arrives in bad condition, is the consignee .won’t accept unless he gets paid for the loss of decay; in other words, he must have delivery made in good condition. That is whether it is shipped f. o. b. point of origin or shipped delivered, whether you ship open or ship notify consignee, it doesn’t make any difference — 99 per cent, of the shipments are made f. o. b. with bill of lading attached. * * * If a party makes an order f. o. h. shipment of fruit or other perishable property, he would expect to get it shipper’s order bill of lading attached, that would be the custom, and it is the exception where it is shipped open. As to whether it is the duty of the buyer in that case to accept the oranges, I will say, if you can get together and agree on it, the buyer usually takes it. * * * Supposing that purchaser made claim of twenty per cent, damage, and I communicated with my client, the party I was representing, that there was a twenty per cent, damage, and the purchaser was claiming that, and my firm then authorized me to allow it, the purchaser then would be under obligation to accept the settlement. * * * If I say, “This car shows twenty per cent, decay and we will allow you twenty per cent.,” and they would say, “All right, we will take it,” and we collect on that basis.’
“The witness further testified that it is the usual custom, where the customer claims twenty per cent, damage on account of rot, that it is communicated to the seller and he accepts or rejects. And that the purchaser inspects the property, and if he then offers to settle on a basis of a certain percentage of rot, and such an offer is accepted by the seller, a settlement is .made on that basis; but if the proposition is not acceptable to both parties, the purchaser is not bound to accept the settlement. ‘As to the purchaser having the right to reject the entire shipment and throw the loss entirely on the shipper, I will say as long as the buyer and the seller hadn’t gotten together and agreed on an adjustment, why there is no obligation on the part of the buyer until they do adjust; when they do adjust, of course the buyer should accept at those damages. If you order or ship a carload from here, f. o. b. cars Austin, shipped to San Antonio, direct, upon — direct to you, consigned direct to you, and then you put in another order for another car and I ship it with the draft and bill of lading attached — that is to say, to myself, direct the bill of lading to myself and instruct the bank to notify consignee, notify you — ordinarily there would be a difference between those two kinds of shipments; but in perishable stuff the seller has to invariably guarantee the arrival of stuff in good condition, whether he has quoted the price so much f. o. b. delivered or open; in fruits, potatoes, and everything of that kind you have to make good on arrival. I testified previously that it was the duty of the shipper to protect the buyer to the extent of any damage or rot. As to why it is necessary then for a buyer to telegraph to a seller in these words, “Will you protect me?” when the buyer knows that the seller is 'bound to protect him, I will say that when a shipment is made either open or bill of lading attached to a consignee, and he goes into the car and accepts it without advising the shipper of the condition, and making a settlement on the actual condition of the stock at that time, then the buyer is obligated for the full amount of the invoice. On account of the produce arriving in otherwise than a perfect condition, you have then got to make a new contract, a new trade; the seller had to make a new contract; that is the way the produce business is handled.’
“The witness B. W. Randolph testified as follows: T live in Austin, and have lived here forty years. I am in the fruit and produce business-wholesale business. It will be twenty-two years next month that I have been in that business, here in Austin all that time. I have handled Florida oranges off and on ever since I have been in business, when they could ship. Regarding whether there is any custom or usage among produce buyers and sellers — that is, the shippers and the jobbers — with regard to inspection at destination and rejection on account of not being in good condition on arrival at destination, well, the custom is everything had to be delivered in good condition. As to what is the custom about paying or making payment for perishable property, either f. o. b. or bill of lading attached, I will say most of it is bill of lading attached, and after you accept it then you have to pay it. The custom I think is generally cash — you don’t get any time on that stuff to amount to anything, but you certainly have the privilege of inspecting it. It is not the usual custom to ship perishable produce and fruit open, it is the exception when it is done, and the usual thing is to ship it with bill of lading attached. * * * With reference to whether I have had the same experience to other perishable property, well, nearly all Florida oranges I have bought were with bill of lading attached; that is the general custom. It is not customary for produce jobbers to keep accounts with the shippers. We do not keep any accounts at all; we simply pay for it when we get it. Whenever it shows up good we pay for it, and our books merely show merchandise bought. It is all cash when it arrives. I mean to say if shipment is made to me f. o. b. cars shipping point, or loading point, that that would mean inspection here in Austin; that I could refuse to take it; that is the custom.’
“The witness further testified that in any shipments with bill of lading attached to draft, and the bill of lading which doesn’t show that inspection is'allowed,'if the bill of lading fails to show this, the purchaser, before accepting the shipment, has the shipper to wire the carrier to allow inspection. ‘It is my understanding that “f. o. b.” means “free on board.” Now, if this car, or a car of stuff is ordered, and on. those terms, I mean to say that there is a custom here that would allow inspection and rejection at this end of the line; no question about that at all. I have received a good many cars f. o. b. loading point, and have received them for the last twenty-one years. There is no shipper that don’t understand he is going to deliver that stuff in good condition. Delivered means delivered here at Austin. F. o. b. don’t mean Austin; it means f. o. b.; that is, shipping point. I say “goods delivered”; that means here. As to what is the difference between goods delivered and f. o. b. loading point, a shipment of that kind, well, the only thing is this: I don’t believe there is a shipper you buy from that don’t expect to deliver good stuff. If you order from me some produce shipped to San Antonio, and say, “Mr. Randolph, ship me a box of oranges delivered to San Antonio,” that means delivered to San Antonio. As to whether it means that you could inspect them, well, it would with me if I was going to buy it. If I would send you that bill of lading all you would have to do would be to pay the freight, but if bill of lading attached you would have to pay the whole thing. * * * Everything of that kind (Oranges) is supposed to come to you in good condition, or you don’t have to take it. In the quotations on produce and fruit, etc., the quotations are not all the time f. o. b. point of origin, but they do come either way. The custom about quotations I should say is probably half quoted one way and the other half another. When I wire for it, I ask for delivered price. It is the custom is the reason why the quotations are both ways. I should judge it would be about half and half. I don’t know why they quote it f. o. b. point of shipment; I am not in that business at the other end of the line; I buj^ it here ; I -buy it to be shipped f. o. b. There is absolutely no difference, according to the custom and usage, about those quotations, except with regard to the freight; so far as shipments are concerned, it is the same. * * * In both cases I -would pay the freight at point of destination. If you accept the stuff you pay the freight, and they deduct it from the amount of the draft.’
“The plaintiff I. Heidenheimer, Jr., testified as follows: T am a partner of Heidenheimer, Strassburger & Co. We are in the wholesale grocery and produce business. We have been in that business 28 years, here in Austin. I think I am familiar with the custom and usages of the produce business in Austin, in Texas, and generally throughout the country. * * * The custom about shipments of produce has been ever since I have been in business, and is today, that they are subject to inspection on arrival of goods. If the bill of lading does not signify —give permission to inspect — the agent has to wire the shipper for p-rmission to inspect, and upon receipt of that permission we go into the car and inspect the goods. The result of the examination determines whether the car is then accepted or rejected — be it an open shipment or bill of lading attached, it makes no difference, the goods are either accepted or rejected. * * * I am familiar with the custom generally throughout the country with regard to the sale of perishable property. This custom I refer to is a general custom throughout the country, and is a custom which is followed by all shippers of produce of any magnitude. I know the firm of Alexander & Baird by reputation only. I knew them before we made this purchase from them, we had business with them before. They had been doing business in Texas prior to the time we gave them this order. I could not say for sure whether they had any other business in Texas or not. * * * I will say they were pretty fair size shippers. I have bought Florida oranges before; lots of them. With reference to whether Florida oranges are shipped all over the United States, I will say I know they are shipped into Louisiana and Texas. They are handled generally throughout the state of Texas. * * * There was a time when Florida had a very severe frost once, and that put them out of the business for a few years; that has been about ten years ago. With that exception, they have been in the market ever since and before. I have been handling them all the time. In my dealings in Florida oranges I have found no difference .whatever in the custom between the shipment of Florida oranges than I found in the shipment of any other perishable produce.’
“This witness further testified, on recross-examination, that in the conduct of his wholesale produce business for some years he consigned goods both bill of lading attached and f. o. b. shipments, and that where produce is received by the consignee or purchaser, and it is not the fault of the railroad company in keeping the goods beyond a reasonable time, the jobber makes good the loss. ‘If I ship oranges open to one of my customers, and they are damaged by the railroad company, I don’t charge the whole thing to my customer, and he don’t stand the loss; we have to stand the loss.’ ”

Fradk E. Lane, who was not in appellees’ employ in October, 1913, when the contract was made, but who entered their service November 1, 1913, testified as follows:

“Regarding whether there is any custom known at Wauchula, Fla., to Alexander & Baird that where a shipment is made f. o. b. loading point that those goods can be inspected before they are received by the buyer, I will say we have conducted our business, and are still conducting it, along the lines of business principles, and are not conversant with customs either here, there, or anywhere. We were not aware of any custom in Austin when this shipment was made. The right of inspection is allowed the buyer when shipments are made on delivered business, or with bill of lading and shipper’s order, notify consignee. By delivered is meant that if we accept a price from the customer indicating that the order is to be delivered at destination, we feel that we are responsible for those goods until they arrive at the destination and they are in their ownership; but if we ship them f. o. b. point of loading, the rule is that the title to the goods becomes vested in the buyer at the time the bill of lading is issued by the railroad company covering that shipment, and our responsibility ceases; and it is just exactly the reverse when the bill of lading attaches. In Cincinnati or Cleveland, or places where I have lived, I only know of a custom existing there of the right of inspection in case of shipments being made with bill of lading attached or on a delivered price, but not on an open bill, on a sale f. o. b. shipping point basis. Open shipment puts the title in the buyer; bill of lading attached shipment or delivered, that invests the title in the seller until they are delivered and accepted; that is, the bill of lading taken out and draft paid. We did not know of any local custom with reference to shipments of this character. As to how I know that Alexander & Baird did not know of any local customs in Texas that existed at and prior to 1913, I will say I am not familiar with what they know at and prior to November, 1913, but I am familiar and do know how they felt about customs; and I am familiar with what they knew about customs to November 1st, during that season. The members of that firm when I went to work for them were James A. Baird, N. M. ánd F. J. Alexander’. As to whether they ever sat down and told me what they knew about customs, I will say that Mr. Baird and I conversed about those things very fully. They did not recognize customs; we do not do business by customs, we do business by legitimate business principles. With reference to their knowing there were customs in different localities, I will state they might have recognized that customs were assumed by people in different localities, and recognized they were contrary to business principles.”

The testimony of the witness Lane was too general and unsatisfactory to entitle it to consideration for the purpose of disproving the usage and custom testified to by the other witnesses as prevailing in Texas, and the findings of the trial court indicate that little, if any, importance was attached to it. The testimony of the other three witnesses, two of whom appear to have been disinterested, shows that the custom referred to not only existed in Austin, but throughout the state, and perhaps elsewhere, and that it was well established and of long standing. Such. being the case, and both parties being engaged in the same line of business, and the property being perishable, authorities are not lacking which hold that it will be conclusively presumed that each party either knows, or should know, of the existence of the custom. Lawson on Usages and Customs, p. 54; Z. T. Fort Produce Co. v. Dissen, 45 Tex. Civ. App. 403, 101 S. W. 477; Bowles v. Driver, 112 S. W. 440; Holder v. Swift, 147 S. W. 691; Dwyer v. City of Brenham, 70 Tex. 30, 7 S. W. 598; Continental Lbr. Co. v. Miller, 161 S. W. 927; Goodenow v. Tyler, 7 Mass. 36, 5 Am. Dec. 22; Bailey v. Bensley, 87 Ill. 556; Lonergan v. Stewart, 55 Ill. 44; Dannemiller v. Kirkpatrick, 201 Pa. 218, 50 Atl. 928.

In Orient Ins. Co. v. Reymershoffer, 56 Tex. 234, our Supreme Court said:

“If a course of business is so constant and general that all persons engaged therein cannot, with a due regard to their own interests, be ignorant of it, they are presumed to have knowledge of it, and it may then be looked to for the purpose of determining the intention of the parties when contracting within the line of such business. A course of business which brings such knowledge is, within the meaning of the law, certain, uniform and general; for those elements of usage are only required to authorize, from the common experience of men, the presumption that the party pursuing the given pursuit has knowledge of the usual course of business. Notoriety of a 'course of business is the true inquiry, and this is presumed if it be established and general.”

We think the overwhelming weight of the testimony brings this case within the rule announced by our Supreme Court in the excerpt quoted. While we do not hold that it was necessary for the proof to show that appellees had knowledge of the existence of the custom referred to, still we do hold that the testimony tended strongly to show that in making the contract the parties did not agree that absolute title to the property was to pass to appellants upon its delivery to the carrier by the shipper. The contract was made by written correspondence, and it contained no specific stipulation as to what should constitute, delivery of the property, or when title should pass to the extent of placing all subsequent risks upon appellants. The correspondence referred to consisted, first, of a communication from appellees to appellants soliciting business; to which appellants replied, requesting appellees to “name us your best price on oranges, stating freight rate, shipment about November 24th.” Appellees replied:

“We will make you a price on oranges, shipment about November 24th, of $1.60 per box, f. o. b. loading point. Freight the past season was 90.20 per box to Austin, and presume will be the same rate this season, but we have not yet received new tariff from R. R. for this season. We handle nothing but first-class fruit, and our packing is strictly high-class. Feel quite sure we can please you, both as to quality of fruit and pack, and hope you will favor us with your order, which we assure you will have our best attention.”

Appellants replied to that letter, stating, among other things:

“We note that you are naming price of $1.60 per box, f. o. b., with 90.20 freight rate. The price, however, seems to us a little high for this late shipment. We would be -willing to give you an order for three cars at $2.40 delivered, and hope that you will see your way clear to accept it. Please wire.”

To that letter appellees replied by wire, that the price. quoted was the lowest they could offer. Appellants then wrote a letter to appellees, regretting the stand they had taken, and in effect stating that they would accept another offer made by another dealer, unless appellees should reconsider. To that letter appellees replied, and, among other things, stated:

“We could not accept lower price than quoted, viz. $1.60 f. o. b.+90.2 frt” •

Three days later appellants wrote appellees a letter, stating that the party who had offered them oranges at $1.55 had in effect withdrawn Ms offer, and — -

“we have therefore concluded to give you the order. We want two ears to be shipped about November 25th, one to Austin, Texas, the other to Giddings, Texas, both via. H. & T. C. Please give us good sizes in each car, Nos. 126 to 216, none smaller, and a few 90’s. Draw through Austin National Bank. Please confirm.”

To that letter appellees replied, acknowledging receipt, and asking for advice as to exact shipping date of order. They also replied by wire, saying:

“Booked your order two cars oranges Giddings and Austin.”

Thereafter appellants wrote to appellees designating November 25th as the time to make the shipment, and stated that they then had an offer of $2.40 delivered, but did not feél like switching the order from ap-pellees, and expressing the hope that the latter would do the right thing by complying with appellants’ request for large sizes.

Thus it will be seen that the correspon-dente, which constituted the contract, did not specifically specify when the title to the property should pass, nor who should bear the loss, if any, resulting from deterioration in transit.

AYe are not unmindful of the general rule to the effect that when the contract is silent upon the subject, delivery by the seller to the common carrier is prima facie evidence of delivery to the purchaser. But it is not conclusive evidence of that fact, and it may be shown by other circumstances that such was not the intention of the parties, or, if it was the intention of the seller, that the purchaser did not so understand it, and therefore it was not embraced in the contract.

In the case at bar the undisputed testimony of Mr. Heidenheimer, which seems to be confirmed by the connection in which that language was used in the correspondence between the parties, shows that the words and figures, “1.60 per box f. o. b. loading point,” referred alone to the question of price, and were not intended to indicate when title to the property would pass. As indicating that appellants did not intend that delivery to the carrier would constitute a delivery to them, and cut off their right of inspection before receiving and paying for the property, we refer to the fact that in two of their letters, one written before and one sent after the contract was made, they mention a price of $2.40 delivered. In the first letter in effect they offer to pay $2.40 per box for the fruit delivered, and in the other one they said that another party had offered to deliver for that price. It is quite clear that the word “delivered,” as used in those letters, did not have reference to delivery to the carrier at the place of shipment, but to delivery at Austin and Giddings, Tex., the destinations of .the shipments. We say tliis Is clear, because it would be absurd to suppose that, when the fruit was offered to them at $1.60 per box at the place of shipment, they would offer to pay $2.40 per box at the same place and under the same conditions, and in each instance pay in addition thereto the freight charges. And it is, we think, of note that in reply to that offer made by appellants, appellees stated that they could not accept a “lower price than quoted, viz. $1.60 f. o. b.+90.2 frt.”

In other words, a fair implication from the correspondence referred to is that both parties understood that delivery was to be made at the places of destination, in accordance -with the prevailing custom at those points; that appellants offered to pay $2.40 per box for such delivery, and appellees, in effect, offered to make such delivery for $2.50Vio per box. At any rate, it is quite clear that such was appellants’ understanding; and therefore, as the contract was silent upon that subject, it ought not to be held that they contracted otherwise. A contract to deliver f. o. b., in the absence of any additional proof, is prima facie a contract that delivery to the carrier shall constitute delivery to the purchaser; but such is not al-waj'S the case. The rule upon that subject is correctly stated in 35 Cye. p. 174, as follows:

“Ordinarily, when goods are to be shipped by the seller and at his expense, to the place of business of the buyer, such place is the place of delivery; but the prepayment of freight by the seller does not conclusively show that the place of delivery is the buyer’s place of business. Similarly, if the agreement is to sell goods ‘f. o. b.’ at a designated place, such place will ordinarily be regarded as the place of delivery ; but the effect of the ‘f. o. b.’ depends on the connection in which it is used, and, if used in connection with the words fixing the price only, it will not be construed as fixing the place of delivery.”

We have been strongly inclined to reverse the action of the trial court, and render judgment for appellants, hut have finally concluded to reverse and remand the case for another trial; and it is so ordered.

Reversed and remanded.

       — .Ti-nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J..

text:
    LADD et al. v. WHITLEDGE et al.
    (No. 1355.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 15, 1918.
    Rehearing Denied June 19, 1918.)
    1. Trial <@=>308 — Conclusions of Law — Conformity to Findings of Fact.
    In suit for partition, involving construction of item of will, if trial court did not consider facts set out in its findings in its conclusion of law in construing item as to whether it contained a latent ambiguity requiring extrinsic evidence to explain, its failure was error.
    2. Wills <@=>487(2) — Construction — Parol Evidence.
    Parol evidence of circumstances surrounding testator is admissible that his will may be read ' in the light of the conditions existing around Mm.
    3. Wills <S=>489(1) — Construction — Parol Evidence.
    If consideration of parol evidence tending to explain the expression whereby testatrix designated devisees was necessary in order to enable the court to reach a proper understanding of the item of the will, the court was required to consider it.
    4. Wills <@=>531(4) — Construction—Persons Entitled — Per Stirfes.
    Where testatrix devised in equal parts to E. W. and the living children of D. A., deceased, “or their heirs,” testatrix being adopted daughter of sister of D. A., and having inherited from her adoptive mother, F. W. and living children of D. A.’s four children, and heirs of D. A.’s deceased children were each entitled to a fifth per stirpes.
    5. Descent and Distribution <@=>21 — “Heir.”
    “Heir” means the person applied by law to succeed to a decedent’s estate in the case of intestacy.
    [Ed. Note. — For other definitions, see Woi’ds and Phrases, First and Second Series, Heir.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action for partition by C. F. Ladd and others against Fannie G. Whitledge and another. From judgment for defendants, plaintiffs appeal.
    Reversed, and remanded, with instructions.
    Cook & Hall, of Montague, and D. A. Haggard, of Cheyenne, Wyo., for appellants. Bryan Stone & Wade, of Ft. Worth, for appel-lees.
   HALL, J..

This action was brought by appellants against Fannie G. Whitledge and Henry Avery, and involves the construction of item 7 of the will of Mrs. Emma E. De Pew. The prayer is for partition of certain real estate in Montague county, Tex. Plaintiffs alleged that they are entitled to a three-fifths undivided interest in the land jointly with defendants under item 7 of the will. The substance of the findings of fact filed by the trial court is asi follows: Testatrix, Emma B. De Pew, of Indianapolis, Ind., executed her will on the 30th day of December, 1911, item 7 of which is as follows:

“I give and devise to Fannie C. Whitledge and to the living children of Daniel Avery, deceased, or their heirs, said Fannie G. Whitledge and said children to share alike in equal proportional parts, three hundred and twenty (320) acres of land in Montague county, Texas, known on the map of the Texas Immigration & Land Company’s survey as survey No. 2863.”

Testatrix died April 24,1913. Her will was duly probated in Indiana, and a copy of the will, with all orders, duly filed and recorded in Montague county, Tex. Daniel Avery, mentioned in item 7, had four children, as follows: Mrs. Sarah Avery Ladd, Mrs. Frances Avery Haggard, Daniel Avery, Jr., and Henry Avery. All except Henry Avery were dead when Mrs. De Pew made her will, but each left children surviving them who are plaintiffs in this causje. The testatrix was the adopted daughter of Mrs. Prances Avery Ely, and that Mrs. Ely was a sister of Daniel Avery, deceased. That testatrix inherited the Montague county land from her adoptive mother, and that , testatrix is not related to any of the parties in this suit, except as the adopted daughter of Mrs. Prances Avery Ely. The children and grandchildren of Daniel Avery, deceased, lived in different states, and none of them lived in Indiana. That Daniel Avery, Jr., died 2 years before the date of the will of testatrix, hut that she did not know he was dead at the time the will was written. That Henry Avery was practically unknown to testatrix. That she had no personal acquaintance with any of the grandchildren of Daniel Avery, deceased, but had corresponded with Miss Daura Haggard, one of the grandchildren of Daniel Avery, and the daughter of Prances Avery Haggard, in terms of friendship and. affection, from July 18, 1907, until the death of testatrix. That during this period the correspondence was continuous, letters passing about once a month between them, usually addressing each other as “My dear cousin” and closing the letters with “Lovingly your cousin.” That on Christmas last before the death of testatrix she sent Miss Laura Haggard a booklet, in which she had written, “With love to my dear cousin from Emma B. De Pew.” That Miss Laura Haggard now has in her possession two miniature paintings of the adoptive mother and father of testatrix, given to her by the executrix of the will, one framed in gold and the other in silver. That Prances Avery Haggard was the namesake of the adoptive mother of testatrix. That testatrix and Prances Avery Haggard had corresponded, for at least 5 or 6 years before the death of the latter, in friendly and affectionate terms. That testatrix had directed that at her death the miniatures above mentioned should be given to Prances Avery Haggard, and that said executrix, knowing the fondness of testatrix for Prances Avery Haggard, and her daughter Miss Laura Haggard, had sent these miniatures to the latter. That testatrix was 76 years of age at the time she executed her will, hut there is no evidence that she did not possess all of the necessary faculties to make a will, and no evidence that she did not make the will as she wished. Upon these facts the court concluded that the will is plain and unambiguous, and that the living children and the heirs of Daniel Avery should recover und.er item 7, and that Henry Avery, being the only living child of Daniel Avery, deceased, should share the land in question equally with Frances) G. Whitledge. It appears that Mrs. Emma De Pew, testatrix, lived in Marion county, Ind., at the time of the execution of her will; that she died on the 24th day of April, 1918; that she was the adopted daughter of Prances Avery Ely, and the latter was a sister of Daniel Avery, deceased. There is no statement of facts in the record. The will copied in the record disposes of an estate amounting to about $50,000, to a great many different people, one item providing for the erection of a fountain in the city of Indianapolis.

The first assignment is that the court erred in its construction of item 7 of the will, and in refusing to consider plaintiff’s testimony tending to explain the expression, “the living children of Daniel Avery, deceased, or their heirs,” which appellant contends is uncertain, creating a latent ambiguity, requiring extrinsic evidence to explain. The court found the facts set out above. In the conclusions of law the court said:

“I conclude as a matter of law that the will is plain and unambiguous, and that this court would have to travel too far away from the wording thereof to give it any other construction than that the living children and heirs of Daniel Avery should recover under item 7,”' etc.

We are unable to determine whether the court considered the facts set out in the findings or not. If they were not considered, we think this was error, and if they were considered the court’s conclusion of law is error. As said in the early case of Hunt v. White, 24 Tex. 652:

“It is competent to admit parol evidence, as it is sometimes, though not very accurately expressed, to explain a will (or other written instrument) by showing the situation of the testator in his relation to persons and things around him, or, as it is often expressed, by proof of the surrounding circumstances, in order that his will may be read in the light of the circumstances in which he was placed at the time of making it. His intent must be ascertained from the meaning of the words in the instrument, and from those words alone; but, as he may be supposed to have used language with reference to the situation in which he was placed to the state of his family, his property, and other circumstances relating to himself individually, and to his affairs, the law admits extrinsic evidence of those facts and circumstances to enable the court to discover the meaning attached by the testators to the words used in the will, and to apply them to the particular facts of the case. Por this purpose, every material fact that will enable the court to identify the persons or things mentioned in the instrument is admissible, in order to place the court, whose province it is to determine the meaning of the words, as near as may be, in the situation of the testator, when he used them in making his will.”

As said in 40 Oye. p. 1439:

“Where a beneficiary under a will is not designated with precision, parol evidence is generally admissible to show who was intended. * * * So also in a case of latent ambiguity parol evidence is permissible to explain who the testator meant by a particular expression of relationship, or to show who was included in a class named in a will.”

See 3 Jones on Evidence (Horwitz) § 477; Schouler on Wills (5th. Ed.) § 588 et seq.

If the consideration of this evidence was necessary in order to enable the court to arrive at a proper understanding of this item of the will, the rules above quoted required the court to consider it, but we are not so sure that any evidence was necessary. The devise is to Fannie G-. Whitledge and to the living children of Daniel Avery, deceased, or their heirs. If the word “living” had not been used it would have been clear that the heirs of the deceased children of Daniel Avery would have shared per stirpes. It was stated in argument by the attorneys representing both parties that the will was drawn by an expert in such matters. Bouvier’s Law Dictionary (3d Revision) vol. 1, p. 1432, in defining the word “heir” says:

■ “In its strict and technical import, applies to the person or persons applied by law to succeed to the estate in case of intestacy. * * * No person is heir to a living person. A person occupying a relation which may be that of heir-ship is, however, called heir apparent or heir presumptive. 2 Bla. Com. 208.”

Construing the language of this item strictly, the devise is to the living children of Daniel Avery and the heirs of his deceased children. The direction of the testatrix that Fannie G. Whitledge and said children are to share alike in equal proportional parts must be construed as meaning that Fannie G. Whit-ledge and living children of Daniel Avery shall each take one-fifth of the tract of land, and that the heirs of Daniel Avery’s deceased children shall inherit per stirpes. We think the evidence introduced settles beyond question the correctness of this holding. The testatrix had inherited the property, as an adopted daughter, and it may be inferred that she was desirous of placing the property in the possession and ownership of all parties related to her adoptive father and mother. No reason is shown why she should give the entire estate to Henry Avery to the exclusion at least of Laura Haggard, the daughter of Frances Avery Haggard, with both of whom it is shown she had for years kept up a regular correspondence, and with whom she was upon terms of real intimacy and affection. The court found that Henry Avery was practically unknown to the testatrix. It was not shown that he was in indigent circumstances, or that appellants were well supplied with this world’s goods. In order to exclude the appellants from participating in the property the court must necessarily have substituted the word “and” for the word “or,” resulting in construing the word “heirs” as one of limitation, or else he must have excluded altogether the clause “or their heirs.” The remaining assignments raise practically the same question, and am extended discussion of the rules governing the construction of the language in wills similar to that under consideration now may be found in the following authorities: Linton v. Laycock, 33 Ohio St. 128; Travers v. Reinhardt, 205 U. S. 422, 27 Sup. Ct. 563, 51 L. Ed. 865; 30 Am. & Eng. Enc. of Law, 815; Baldwin v. Tucker, 61 N. J. Eq. 412, 48 Atl. 547; Jarmon on Wills (5th Ed.) pp. 777, 778; Hayward v. Barker, 113 N. Y. 366, 21 N. E. 142; Bronson v. Est. of Phelps, 58 Vt. 612, 5 Atl. 552; 1 Redfield on Wills, 486.

No good purpose can be subserved in prolonging this opinion. We think the court is clearly in error in construing item 7. The judgment is reversed, and remanded, with instructions that Mrs. Fannie G. Whitledge and Henry Avery each take one-fifth of the land in controversy, and that one-fifth be partitioned to the heirs of each Sarah Avery Ladd, Frances Avery Haggard, and Daniel Avery, Jr., the appellants herein, said appellants taking per stirpes. Reversed and remanded with instructions.

HUFF, C. J., not sitting, serving on committee of judges assisting the Supreme Court.
      <g^>For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes