author: WALTHALL, J.

text:
    REINHARDT v. BORDERS et ux.
    (No. 531.)

    (Court of Civil Appeals of Texas. El Paso.
    March 23, 1916.
    Rehearing Denied April 13, 1916.)
    1. Damages <&wkey;78(6) — Liquidated Damages —Note Guaranteeing Delivery of Title.
    Where the seller of a hotel, in exchange for personalty and notes, executed a note which stated that it represented a forfeiture to the amount mentioned, the mortgage securing it providing that it was a forfeit put up to guarantee delivery of title, upon the seller’s failure to convey good title the buyers could recover on the note, the stipulation for the forfeiture of the amount expressed having been intended as agreed or liquidated damages, while the intention of the parties in regard to such a matter is controlling.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 157, 159; Dec. Dig. <&wkey;78(6).]
    2. Damages <&wkey;78(2) — Liquidated Damages —“Forfeit.”
    The expressions, “he agrees to forfeit the sum of one thousand dollars,” “this note, to the extent of the amount herein mentioned, represents a forfeiture put up,” and “said note being a forfeit put up,” mean something different from the word “penalty.”
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 157; Dec. Dig. &wkey;78(2).
    For other definitions, see Words and Phrases, First and Second Series, Forfeit.]
    3. Damages <&wkey;163(l) — Breach of Contract —Presumption of Damage.
    Damages, which must be actual or liquidated, are presumed to flow from a breach of contract.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 454, 455; Dec. Dig. <&wkey;163(l).]
    4. Damages <&wkey;79(l) — Liquidated Damages or Penalty.
    Where no approximation between actual and stipulated damages for breach of contract can be made, the stipulated damages must control.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 164; Dec. Dig. <&wkey;79(l).'J
    Appeal from District Court, Ward County; 5. J. Isaacks, Judge.
    Suit by W. F. Borders and wife against Marvin Reinhardt. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    W. A. Hudson, of Pecos, for appellant. B. W. Baker, of Barstow, and Jno. B. Howard, of Pecos, for appellees.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

On the 24th day of March, 1914, appellant and appellees entered into a contract for the sale and exchange of properties, the several provisions of which are substantially as follows: (1) In consideration of $6,500 Reinhardt agreed to convey to the Borders within 60 days, free of in-cumbrance, except as to the unpaid purchase money, certain town lots in Barstow, Tex., ■on which the Pearle Hotel was situated. (2) The consideration was to be paid as follows: $3,600 was paid by a sale and delivery of certain horses, wagons, and harness. The balance of the consideration was to be evidenced by promissory notes due one in November, 1914, and one in each year following, until all were paid, and secured by vendor’s lien. (3) Reinhardt could convey the property directly from himself or from the record owner, including the hotel furniture, the Borders to keep the property insured to the extent of the amount of the unpaid notes. (4) If a release of the lien on the hotel property then existing could not be procured and placed of record before the execution of the Border notes, Reinhardt should procure such a release and place the same in escrow in some bank, to be agreed on, the release to be delivered to the Borders with the deed, Reinhardt to furnish complete abstract, showing title in the party executing the deed. (5) The Borders agreed to accept deed within 60 days from date of contract and to execute the notes, and to then give bill of sale to the personal property. (6) Possession of the personal property was delivered at the time of the making of the contract. (7) The Borders should have possession of the hotel property from the signing of the contract, and had the right to the possession of the personal property until the delivery of the deed to them. In the event the Borders should fail or refuse to comply with the terms of the contract, they agreed to surrender possession of the hotel. (8) The Border notes should also be secured by chattel mortgage on the hotel furniture and to execute the mortgage on delivery of the notes.

On the 25th of April, the same parties, in the same matter, entered into a supplemental contract. After several whereases, reciting the provisions in the first contract, the supplemental contract provides substantially as follows:

(1) Tbe amounts and dates of payment of some of the notes are changed. (2) The title to tho live stock given by the Borders as part consideration shall remain in the Borders until Reinhardt delivers a good and merchantable title to the hotel property. (3) (We quote the verbiage.) “It is further agreed that should the said party of the first part (Reinhardt) fail or refuse to deliver good and merchantable title to said hotel property, as contracted, he agrees to forfeit the sum of one thousand dollars, said amount to be paid to the parties of the second part (Borders) in such event. However, it is agreed that in the event of any objection to title to the said property on the part of the parties of the second part, then the party of the first part shall have a reasonable time from the date of such objection in which to correct such defects, if any, as are objected to, and, to secure the payment of the said sum, the party of the first part agrees to execute deed of trust to a certain section of land situated in Ward county, Texas, and being all of section 190, block 34, H. & T. O. Ry. Co. survey.”

Reinhardt executed and delivered the $1,-000 note, and also executed and delivered a mortgage on the said section of land to secure its payment. The note is for $1,000, and is dated April 24, 1914, and made payable to W. F. Borders 60 days after date. After the formal statement of the note, these words occur in the body of the note:

“This note, to the extent of the amount therein mentioned, represents a forfeiture put up by said Marvin Reinhardt in accordance with a contract of even date,” etc.

The mortgage contains the following:

“$1,000.00. Said note being a forfeiture put up to guarantee delivery of title to certain property described in contract of even date between Marvin Reinhardt and Mr. and Mrs. W. P. Borders, with interest from maturity until paid at the rate of eight per cent, per annum, said interest payable as it accrues, at the office of W. E. Borders, then this conveyance shall become null and void and these presents shall be released in due form at my expense.”

The mortgage makes provision, for the sale of the mortgaged property “in ease of default or failure to observe and keep any of the covenants hereof” by the grantor.

Appellees brought this suit against appellant to recover on the $1,000 note and for a foreclosure of the mortgage lien; alleged a breach of the contract to convey the hotel; alleged that the $1,000 note represented' agreed or liquidated damages; alleged ap-pellees’ readiness and willingness to perform their part of the contract; alleged damages to the personal property while in the hands of appellant; and asked judgment for such damages.

Appellant denied that he had breached the contract, and pleaded his ability and willingness to perform his part .of it; alleged that appellees had never pointed out any defect in the title to the hotel property, nor had given him an opportunity to correct such defects; pleaded refusal to perform the contract on the part of appellees; alleged that the note with the deed of .trust sued upon was executed for the sole purpose of guaranteeing delivery of title to the hotel property, and to become void upon a tender of a good and merchantable title thereto, and was a penalty and not agreed or liquidated damages, and that appellees were not the owners and holders of said note and mortgage. Appellant asked for specific performance of the contract; prayed for the agreed value of the personal property given in exchange for the hotel, converted by appellees; asked that a lien ’be decreed against the hotel property to secure the unpaid balance of the purchase money; and prayed for a cancellation of the $1,000 note and mortgage.

On special issues submitted, the jury found that there had been liens of record against the hotel property at all times since March 24, 1914 (the date of the first contract); that Reinhardt knew of the existence of such liens; that prior to April 6, 1915, Reinhardt had never tendered to the Borders a warranty deed to the hotel property with a release of such liens, nor placed the same in escrow to be delivered to the Borders upon the execution by them of the vendor’s lien notes, called for in the contract, nor had Reinhardt, prior to said date, told the Borders that he would secure a release of the said liens and place same in escrow, to be delivered contemporaneously with the notes should the Borders execute the vendor’s lien notes and place them in escrow for delivery; that the Borders did not at any time, prior to the filing of the suit, agree with Reinhardt that they would assume the outstanding vendor’s lien notes against the hotel property in lieu of executing the notes, as agreed in the original contract; that Reinhardt did tender to the Borders a warranty deed in which the Borders were to assume the payment of the outstanding vendor’s lien notes, but that the Borders refused to accept that deed; that the time elapsing between the date of the refusal to accept the said tendered deed and the 6th day of April, 1915, was an unreasonable length of time for Reinhardt to have to procure the release of liens and tender same with a deed to the hotel property.

On the above findings of the jury, judgment was rendered in favor of appellees on the $1,000 note, less $346.66, the rental value of the hotel, and a foreclosure of the mortgage lien on the section of land. Appellant presents ten assignments of error, but we think the fourth and fifth are the only ones that we need discuss. By the fourth assignment, appellant insists that the $1,000 note sued on, with the mortgage given to secure it, is a penalty and not agreed or liquidated damages. And by the fifth assignment appellant insists that no actual damages are shown to have been sustained by the appellees; that, while a sum is named as liquidated damages, the courts will not so treat it unless it bears such proportion to the actual damages that it may reasonably be presumed to have been arrived at, upon a fair estimation by the parties, as the compensation to be paid for the prospective loss. By other assignments, appellant insists that the proof shows that appellees breached the contract, and that on that account they should not be permitted to recover on the note. We need not state the evidence here, but a careful examination of it convinces us that such contention is not sustained. The facts found by the jury in our opinion are well sustained by the evidence, and show that appellant not only breached the contract, but totally disregarded the obligations he had assumed to clear the hotel property of liens of which he well knew, and tender to appellees a good and sufficient merchantable title, if not within the 60 days, at least within a reasonable time. The jury found that he did neither. The court did not submit to the jury for their finding whether the appellees had sustained any actual damages arising from a breach of the contract by appellant. The court construed, as a matter of law, the $1,000 note sued on to be agreed or liquidated damages independently of any question of damages actually suffered, or question of intention of the parties in making the note other than is expressed in the writing.

In the third paragraph of the supplemental contract, it will be observed that the parties agreed that should Reinhardt “fail or refuse to deliver a good and merchantable title to the hotel property as contracted, he agrees to forfeit the sum of one thousand dollars.” The note states: “This note, to the extent of the amount herein mentioned, represents a forfeiture.” The deed of trust provides: “$1,000.00. Said note being a forfeit put up to guarantee delivery of title.” Prom the words used in the contract, in the note, and in the mortgage given to secure the note, and from the nature of the contract itself and all the facts and circumstances attending the making of the contract, note, and mortgage, we think it clear that the stipulation for the forfeiture of the amount expressed by the note was intended as agreed or liquidated damages. It is the intention that controls. The damages incident to appellees’ leaving their former place of residence in Tarrant county and moving to Ward county, and in surrendering to appellant for 60 days the possession and use of their personal property agreed to be worth $3,600, would hardly be capable of being definitely ascertained. But independently of the question as to whether the damages could be definitely ascertained on a breach of the contract by the appellant, the very language used in the contract, note, and mortgage is sufficient to clearly express the intention of the parties. As said by the Supreme Court in Eakin v. Scott et al., 70 Tex. 442, 7 S. W. 777, the expressions, “he agrees to forfeit the sum of one thousand dollars,” “this note, to the extent of the amount herein mentioned, represents a forfeiture put up,” and “said note being a forfeit put up,” mean something different than the word “penalty.” In that case, the expression was, “shall act as a forfeiture,” and the court held that the parties meant that the defendant; in the event he abandoned the trade, should pay absolutely to the plaintiffs the sum named as their agreed damages.

In this case, the jury found that appellant did not comply with his contract. The contract being broken, damages will be presumed to flow from its breach. Halfi! et al. v. O’Connor, 14 Tex. Civ. App. 191, 37 S. W. 238. These damages must be either actual or liquidated. No approximation is made to appear by the evidence between the actual and the stipulated damages. This not appearing, the actual damages, under the rule stated by the Supreme Court in Collier v. Betterton, 87 Tex. 440, 29 S. W. 468, cannot be the measure of recovery; hence the basis of the recovery must be the damages stipulated in the contract. Halff et al. v. O’Con-nor, supra.

Appellant’s assignments must be overruled.
      igsaFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    DONADA v. POWER.
    (No. 5579.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.
    On Motion for Rehearing, April 12, 1916.)
    1. Landlord and Tenant <&wkey;22 (2) — Leases— Constbuction — Supplemental Agreement.
    A lease of irrigated land providing, “in case lessees take more than 20 acres within six months, the parties to enter into a supplemental contract to evidence same,” construed to be an offer to lease, and not effective as a contract until accepted.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 55; Dec. Dig. <&wkey;22(2).]
    2. Landloed and Tenant &wkey;>25(5) — Leases— ■Validity — Acceptance.
    Taking possession of land by the lessee after an offer to. lease it to him is an acceptance of the offer as binding on him as an express verbal acceptance.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 73-75; Dec. Dig. &wkey;>
    3. Limitation op Actions &wkey;>27 — Lease Not IN WRITING.
    Under the statute of limitations the right to remit under a lease not in writing is barred if suit is not commenced in two years after it accrues.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 132, 133; Dec. Dig. i&wkey;>27.]
    4. Appeal and Ebbob <&wkey;1151(2) — Disposition — Modification — Amount of Recovery.
    Error in allowing damages barred by a statute of limitations may be corrected by an appellate court without remanding the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4503^1505; Dec. Dig. <&wkey;>1151(2).]
    5. Appeal and Ebbob <&wkey;843(2) — Disposition —Modification.
    Where a judgment must be reversed in any event, an appellate court will not itself undertake to estimate the amount of excess damages in the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331, 3338; Dec. Dig. <&wkey; 843(2.] .
    6. Appeal and Ebbob &wkey;>882(12) — Review— Parties Entitled to Allege Ebbob — Ebbob Committed.
    One is precluded from urging error in a charge which is almost a literal copy of a special charge asked by him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. &wkey;> 882(12).]
    7. Damages <&wkey;214 — Proceedings fob Assessment — Instructions — Reduction of Damages.
    An instruction precluding recovery of any damages if plaintiff could have diminished them is error.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 542; Dec. Dig. &wkey;>214.]
    On Motion for Rehearing.
    8. Limitation of Actions <&wkey;24(2) — Particular Actions — Written Contracts.
    A suit for the rent of acreage over 20 acres where a lease provided, “in case lessees take more than 20 acres within six months, the parties to enter into a supplemental contract to evidence same,” and within the six months the lessees accepted the offer of more land by parol, but made no written contract tlierefor, held a suit “where the indebtedness is evidenced by or founded upon any contract in writing” within the statute of limitations permitting' such suits to be brought within four years.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 113; Dec. Dig. 24(2).]
    Appeal from District Court, Refugio County; John M. Green, Judge.
    Action by J. E. Power against B. J. Do-nada. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Dougherty & Dougherty, B. D. Tarlton, Jr., and H. S. Bonham, all of Beeville, for appellant. Wilson, Dabney & King, of Houston, and J. Turner Vance, of Refugio, for appel-lee.
   MOURSUND, J.

Appellee, Power, sued appellant, Donada, to recover rents alleged to be due under a written contract which reads as follows:

“The State of Texas, County of Refugio.
“Know all men by these presents that we, James F. Power, of the one part, and C. P. Fox and B. J. Donada, of the other part, wit-nesseth:
“The party of the first part is preparing for irrigation purposes about thirty-seven acres of land hereinafter described, and he does hereby lease to the said parties of the second part twenty acres of the same with the privilege to the said second parties to lease all of said thirty-seven acres or any amount of same in excess of twenty acres that they may choose, provided they exercise said privilege of taking more than twenty acres within six months from this date: the rental of said twenty acres to begin when party of first part is ready to furnish sufficient water to irrigate the same; and in case second parties take more than twenty acres within said time (six months from date hereof), the parties hereto to enter into a supplemental contract to evidence the same. Said land is situated on the west side of the Mission river on the town tract of the town of Refugio, in said county of Refugio, about two and one-half miles below the said town of Refugio, the same being part of farm lots Nos. 57, of twenty-three acres, and 4, of twenty acres, and it is thought that said twenty acres or more may embrace parts of other farm lots belonging to party of the first part adjoining said lots 57 and 4. To further identify the land embraced in said twenty acres or more the same is declared to be the twenty acres or more adjoining the said Mission river, now cleared of brush and being prepared for irrigation purposes by party of first part.
“This lease is made for the period of five years from the date hereof, with the privilege to the parties of second part to renew this lease at the expiration of said five years for any period of time therefrom not to exceed five years from said date of the expiration of said first five years lease. Said parties of second part agree to pay a rental for said land at the rate of thirty dollars per acre per annum, payable semiannually.
“Party of first part, in consideration of said sum, agrees to furnish the following:
“(1) Having purchased suitable irrigation machinery, he agrees to have same placed in position at once and to furnish sufficient water at, any and all times to irrigate said twenty acres or more.
“(2) To inclose said twenty or more acres with a substantial fence with twenty-four inch wire netting (to exclude all small animals) and two barbed wires stretched at top of fence, and to maintain the same during the period of this lease in good repair.
“(3) To furnish one or more main canals, as may be necessary, for the perfect irrigation of said land.
“(4) A substantial tenant house and suitable dwelling for extra workmen to be employed on the farm.
“(5) A substantial warehouse 20 feet by 40 feet, well ventilated.
“(6) A substantial pen for work animals, a proper shed in which to feed the same, and suitable place to store feed for said animals, and shed to protect machinery and implements.
“(7) The use of the pasture in which said farm is located to graze the necessary animals employed on the farm.
“(8) Parties of the second part are to have the use of all water supplied by said irrigation plant, and water shall not be furnished to others, or for other purposes, unless there is a surplus of water; that is, more water than said second parties need for their purposes of irrigation.
“Said parties of the second part bind themselves as follows:
“(a) They agree to admit said party of first part to partnership to the extent of one-third interest after the expiration of one year from date of this lease, in consideration of the total amount of the lease money to be paid as herein-before provided; that is, party of the first part shall become a full partner if he so desires, provided he makes no charge to parties of second part for lease of said land from the date he so enters said partnership. It being understood-that in case the party of the first part elects to become a partner he is to share equally one-third interest without any expense for tools, etc., on hand at the time of his entrance to such partnership, but thereafter to furnish his pro rata for such tools, etc.
“(b) Parties of second part agree to pay the rental for said land promptly semiannually as it accrues, unless party of first part elects to become a partner, as before provided, when all further rental for this lease shall cease.
“(c) Parties of second part agree to furnish the necessary gasoline and lubricating oil with which to pump the necessary water for irrigation, but to. be at no other expense in running or maintaining the irrigation machinery in repair, unless party of first part elects to become a partner as before provided, in which case all expenses of maintaining the irrigation plant are to be borne by all three partners.
“The par-ties of the second part shall have the first privilege to lease any other body of land that may be cleared and prepared for irrigation adjoining the said above thirty-seven acres.
“This lease is transferable, but should either of the parties of the second part, or of all the parties, should the said James F. Power become a partner as hereinbefore provided, desire to sell and transfer his interest, he binds himself to give his partner or partners the preference to purchase his said interest, provided the other partner or partners pay as much for such interest as is offered by any other bona fide prospective purchaser.
“A bona fide sale of his interest shall release such party selling his said interest from further liability under this lease.
“Witness our hands this 11th day of September, 1907.
“[Signed] James F. Power,
“Party of the First Part.
“B. J. Donada,
“C. P. Fox,
“Parties of the Second Part.”

On this contract is .written an agreement reciting that it is supplemental to said contract, wherein it is stated that the rental of the 20 acres mentioned began on October 1, 1907. This agreement is dated February 20, 1908. Eox transferred Ms interest in the lease to Donada. Power never exercised his option to become a partner. Plaintiff alleged that Donada elected to use the entire 37 acres, and entered thereon, used and enjoyed the same under said contract; that the rentals under the contract amounted to 85,700; that on or about January 1, 1908, defendant, by verbal contract, leased from plaintiff 77 acres additional for a term of one year beginning January 1, 1908, and agreed to pay $6 per acre therefor, payable semiannually; that defendant paid plaintiff $1,500, the items and approximate dates being set out; that plaintiff in the beginning operated the machinery and pumped the water, but later on agreed with defendant that the latter should do so, and be paid by plaintiff for such work. Plaintiff alleged that under such agreement defendant was entitled to certain credits. The parties agreed upon this matter, the agreed credits being allowed, and therefore it will receive no further notice.

Defendant admitted the execution of the contract, but insisted that he was liable to plaintiff for rent on only 20 acres by virtue of such contract He further alleged that he was liable for only the reasonable rental value of so much of the land as he actually used, and that this liability was subject to various set-off and counterclaims due him by reason of payments and by reason of work' done and labor performed by defendant for plaintiff, and by reason of damages suffered through plaintiff’s failure to comply with the obligations imposed upon him by the terms of said contract. Plaintiff denied the material allegations of defendant’s cross-action, and pleaded the two and four year statutes of limitation. Defendant by supplemental answer invoked the two and four year statutes of limitation, and pleaded the existence of ambiguity in the contract.

The court construed the contract above copied as one for the lease of the 37 acres at the rate of 830 per acre per annum, payable semiannually, with a provision that the lessees need not take more than 20 acres under the lease, and submitted only the issues:

(1) “How much of the 37-acre tract contracted by the plaintiff to the defendant under the contract referred to above over 20 acres did the plaintiff furnish to the defendant, on the defendant’s request, under and in accordance with the terms of this contract, and when?”
(2) “What amount of damage, if any, did the defendant suffer by reason of any breach by plaintiff of any obligation of his, imposed by the contract herein involved, on the plaintiff (if there was any such breach), to wit: (A) By his failure (if there was any failure) throughout the periods hereinafter stated to supply suitable machinery to furnish sufficient water as was necessary at all times to carry on the irrigation enterprise; (B) by his failure (if failure there was) throughout the periods hereinafter stated to furnish and inclose said land with a suitable fence, and maintain the same in good repair, with 24-inch wire netting, to exclude all small animals, and two barbed wires stretched at the top of the fence; (G) by his failure (if failure there was) to furnish one or more main canals as was necessary for the perfect irrigation of the land? — it being claimed by the defendant that the canals furnished were insufficient for the proper irrigation of the land; that is to say, damages within the following periods: (a) Between March 23, 1910, to March 1, 1911; (b) between March 1, 1911, and September 11, 1912.”

In connection with these issues the court gave certain instructions which will be stated when the assignments of error relating thereto are discussed. The jury found that plaintiff furnished to defendant at Ms request, under the terms of the contract, 17 acres in excess of 20 acres out of the 37-acre tract, not later than January 1, 1908, and that defendant suffered no damages by reason of the matters alleged by him and submitted to them.

The court entered judgment in favor of plaintiff for 84.400, with interest thereon from March 26, 1915, at the rate of 6 per cent, per annum.

The contract above copied is a contract for the lease of 20 acres of land for five years upon the terms and conditions therein stated, with an option to the lessee to take all or any part of 17 acres adjoining the same, upon the same terms and conditions, the lease thereof to expire when the lease of the 20 acres should expire, which option, it was provided, must be exercised within six months from date of said contract. The provision that, “in case second parties take more than 20 acres within said time (six months from date hereof), the parties hereto to enter into a Supplemental contract to evidence the same,” must be construed as a provision for an express acceptance of the offer, which acceptance would make a contract between the parties. To construe it as meaning that the lessor was merely contracting to enter into a contract without defining the terms upon which he was to be bound would be equivalent to eliminating from the contract all that was said with respect to the 17 acres; for an agreement to enter into a contract upon terms to be thereafter agreed upon would be a nullity.

Plaintiff alleged that the defendant entered upon the property “on or before the first day of October, 1907, and elected and agreed to use the whole 37 acres, and has been occupying, using and enjoying the same under this lease, and in accordance with its terms as stated above.” In a supplemental petition it was alleged that such agreement and election was made within six months from date of contract. The allegation shows that a contract was made with regard to the 17 acres, whereby the same terms would apply thereto as applied to the 20 acres. Assignments Nos. 2 and 6 are therefore overruled.

The stipulation that the lessee could within six months elect to take the 17 acres was a continuing offer on the part of the lessor, based upon a valuable consideration, to include said 17 acres within the terms of the lease contract for the 20 • acres, conditioned that acceptance be made within six months. The lessee, by verbally notifying the lessor of his acceptance of the offer within the stipulated time, could make it a valid contract, subject to such difficulties with regard to its enforcement as might be encountered if the statute of frauds should be invoked. We think that taking possession of the land by the lessee would be equivalent to an acceptance equally as binding on him as an express verbal acceptance. In the case of Patton v. Rucker, 29 Tex. 408, the court said:

“In order to their enforcement by the courts, contracts for the sale of land must be evidenced by writing. When the writing relied on contains within itself all the particulars of a concluded contract, it is sufficient if it be signed by the party against whom it is sought to be enforced; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other party only by his acceptance of it in writing. A proposal by one party and an acceptance of that proposal according to the terms of it by the other constituted a contract.”

In the case of Foster v. hand Co., 2 Tex. Civ. App. 514, 22 S. W. 260, the Court of Civil Appeals of the Galveston District followed the Patton v. Rucker Case, but recognized the fact that there is strong reason and high authority to sustain the opposite view. The same court has recently adhered to its holding in said case. Daugherty v. Leewright, 174 S. W. 841. See, also, Lanz v. McLaughlin, 14 Minn. 72 (Gil. 55). The following cases reannounce the rule that, when the memorandum contains within itself all the particulars of a concluded contract, it need only be signed by the party against whom it is sought to be enforced: Morris v. Gaines, 82 Tex. 255, 17 S. W. 538; Morrison v. Dailey (Sup.) 6 S. W. 427; Ragsdale v. Mays, 65 Tex. 256; Hazzard v. Morrison, 130 S. W. 244, affirmed by Supreme Court 104 Tex. 5S9, 143 S. W. 142. If the rale announced in the case of Patton v. Rucker is applicable to contracts for the lease of land, it is clear that no action could have been maintained by appellant against appellee based upon the theory that there was a written contract for the lease of the 17 acres, unless he could show a written acceptance made within the six months.

But, whether this could be done or not, it is clear that, in the absence of a written acceptance of the continuing offer to include the 17 acres within the terms of the lease contract for the 20 acres, there is no memorandum in writing of any contract for the lease of the 17 acres signed by appellant. It is true that, although appellant pleaded the statute of frauds, he does not upon this appeal urge any contentions based upon such defense, but he does urge assignments interposing the statute of limitation of two years. We think it is clear that the suit against appellant as to the rents for the 17 acres is based upon a contract not in writing, for a written contract cannot be shown by proof

only of an offer in writing, and that therefore the two-year statute of limitations is applicable to the demand for such rents. Assignments Nos. 4, 5, and 21 relate to limitation as to the rents of the 17 acres, and must be sustained. The error in allowing that portion of said rents which became due more than two years before the suit was filed could be corrected by this court, but, as the judgment must be reversed on another ground, it will be unnecessary to undertake to estimate the amount of excess in the judgment.

As no issue is raised with regard to the statute of frauds, we will decide all questions submitted in appellant’s brief upon the theory that there was an enforceable parol contract for the lease of the 17 acres for the period sued for by plaintiff. It follows that no error was committed by the court in sustaining an exception to that part of appellant’s first supplemental petition in which he undertook to plead that he was only due plaintiff the reasonable rent on various portions of said 17 acres for small periods of time during which he alleged that he used the same. Assignment No. 1 is overruled.

Appellant admitted that he took possession of part of the 17 acres under the option given him, and the only issue was as to the number of acres he elected to take. This issue was submitted to the jury, and they found he took the entire 17 acres. While the court’s description in his charge of the provisions of the lease contract is not correct, and is confusing in that it describes the contract as one for the lease of 37 acres, with provision that lessees need not take more than 20 acres, but if they should take more than 20 they should within six months exercise the privilege of taking more, and the first issue assumes there was a contract for 37 acres, still, as the jury was required to find only one fact, namely, how many acres appellant elected to take, we think the errors in the portions of the charge referred to would not require a reversal of the judgment. We do not see how it could be prejudicial to appellant, leaving out of consideration, as we must, all issues relating to the statute of frauds, if the court had instructed the jury specifically that there was a verbal contract between plaintiff and defendant as to such acreage out of the 37 acres which defendant elected to take, and for them to find, in addition to the 20 provided for in the contract, the number of acres in the additional tract so taken. Assignments 7 to 11, inclusive, are overruled.

Appellant objects to the second issue on the ground that it submits in one complex, intricate mass practically the entire ease, so far as made by the cross-action, and urges that this constitutes error in view of the fact that he requested that the case be submitted on special issues. It appears from the qualification of the bill of exceptions that the court had before him the defendant’s exceptions to Ms proposed charge as well as all of defendant’s special charges when he drew Ms charge. The contents of Ms proposed charge are not disclosed by the record. It appears that defendant requested a special charge couched in almost the identical language of the charge given by the court. The bill of exceptions shows that defendant excepted to such charge in spite of the fact that it was almost a literal copy of the special charge asked by him. We conclude that under the circumstances he is precluded from in insisting that the court erred in the method adopted in submitting the matters covered by the second issue. Assignments 12 and 13 are therefore overruled.

Appellant also assigns error upon that portion of the court’s charge which reads as follows:

“The defendant cannot recover damages (if any) by reason of any default of the plaintiff in regard to the matters complained of and mentioned above (if any there were) in any case to any extent where the accrual of such damages could have been prevented or diminished by reasonable exertions and by the use of ordinary care and reasonable expense on the part of the defendant.”

TMs charge was excepted to in the trial court on various grounds. One was that it denied the defendant the right to recover the amount it would reasonably, have cost Mm to prevent or dimimsh the injuries complained of. Another was that it did not allow defendant to recover such damages less the diminution that defendant could have brought about. It appears that defendant requested the court to give a special charge on this issue, which was not subject to the two objections above set out, made by him to the court’s charge. We conclude that the court erred in giving the charge, and that such error is a very material one; for the charge precluded any recovery if defendant could have diminished the damages. The fifteenth assignment of error therefore is sustained.

Appellant by Ms fourteenth assignment contends the court erred in giving the charge above copied and held to be erroneous, because the plaintiff failed to plead that defendant by the exercise of reasonable care could have prevented or diminished the damages. He contends that, although he did not object to the charge on such ground, and in fact asked a charge on the subject, he can take advantage of the giving thereof as a fundamental error. Having held it was an erroneous charge, it becomes unnecessary to say anything in regard to whether it was fundamental error to give the same in the absence of pleadings raising the issue. But in view of another trial we call attention to the fact that this court has recently held that such an issue cannot be raised under a general deMal, but must be specially pleaded by the party who has breached the contract. World’s Special Films Corporation v. Fitchen-berg, 176 S. W. 733.

Appellant contends that Ms exception urging the statute of limitations to that portion of the petition in which plaintiff sought to recover rent due under a verbal contract for the lease of 77 acres of land should have been sustained, and by another assignment contends that the court erred in rendering judgment for such rent. Appellee virtually admits that he is not entitled to judgment for such sum, and answers the assignments with a denial that such sum entered into the judgment of the court. The judgment recites that plaintiff should recover rent for 74 acres at $6 per acre, with interest thereon at the rate of 6 per cent, per annum from January 1, 1969, to date of judgment; but, after summing up the various amounts due plaintiff, said judgment contains a proviso to the effect that the allowance of all of such sums is subject to the limitation pleaded and the deductions to be made on account thereof, as well as the credits admitted. It is further recited that after making such deductions and credits plaintiff is found entitled to recover $4,400, and said sum is awarded, with interest.;. The court fails to explain how he arrived at this amount, and neither side has undertaken an analysis of the matter with the view of showing what items were finally allowed. We have gone over the matter, with the result that we are unable to find any basis for awarding $4,400-without allowing rent for said 74 acres. As the judgment must be reversed on another ground, and the case remanded, it would be profitless for us to explain how we arrived at such conclusion. Assignments Nos. 3 and 20 are sustained.

Assignments of error Nos. 16 and 17 are overruled.

In view of what has been said with regard to assignments 14 and 15, it becomes unnecessary to discuss assignments Nos. 18 and 19.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee contends that we erred in holding that the suit for rent, in so far as it relates to the 17 acres found by the jury to have been taken possession of by appellant in addition to the 20 acres covered by the original written contract, was for a debt “evidenced by or founded upon any contract in writing.” Much is said about the statute of frauds, but it will be seen from -our original opinion that the application of the statute of frauds was not sought by any assignment of error, and that what we had to say had reference solely to the question whether the two-year statute or the four-year statute of limitation applied to the claim for rent of the 17 acres. We find in Cyc. vol. 25, p. 1038, the following statement:

“The statutory description of an action as ‘founded on an instrument in writing’ refers to contracts, obligations, or liabilities growing, not remotely or ultimately, but immediately, out of written instruments. Parol acceptance of an offer in writing does not give rise to an agreement or contract in writing, within the meaning of statutes relating to limitations governing actions on contracts in writing.”

In this case appellee sued appellant to recover the amount of lease due for the 20 acres covered by the written contract copied in our previous opinion, and also for the amount alleged to be due for lease of 'the seventeen acres. While it is true that the written contract is a proposal to rent to appellant such part of the 17 acres as he may elect to take, it is also true that it is more than that; for it is a contract signed by appellant, in which he binds himself to pay at the rate of $30 per acre per annum for the 17 acres if he elects to take same, or for such part thereof as he may elect to take. The contract was completed as to the 17 acres by appellant’s taking possession thereof. It may be stated that the suit for rent for the 17 acres is founded upon a written agreement to pay $30 per acre per annum for such part of said 17 acres as appellant should agree to take. It has been held in this state that a suit to recover the value of goods delivered pursuant to a written order is founded upon á contract in writing. Page v. Payne, 41 Tex. 143. And it was so held by this court, even though the order contained no promise to pay. JOaredo Electric Light & Mach. Co. v. U. S. Electric Lighting Co., 26 S. W. 310. A view not in accord with the holding in the last-mentioned case may be deduced from the opinions in the case of Voeleker v. McKay, 61 S. W. 424; Voelker v. McKey, 60 S. W. 798.

It has been held that, where a change was made by verbal agreement in the quality of iron to be used in an iron fence contracted in writing to be erected, the suit nevertheless was upon the written contract, the court explaining its holding as follows:

“It was evidently intended that the services rendered should be controlled by the terms of the written agreement, and that the subsequent agreement changing the quality of the material should not have the effect to destroy the written contract.” Hughes Bros. v. Smith, 83 Tex. 499, 18 S. W. 955.

It has also been held that a suit for the price of extras provided pursuant to a building contract which stipulated a certain price to be paid for the completion of the building according to specifications and for the payment “for all extras above the contract aud for all changes that might be made in the plans and specifications” was governed by the four years statute of limitation. The court said:

“The fact that the extent of extras and changes in' the plans were subsequently agreed to would create no new right or contract that was not fully provided for in the written contract. The making of such changes and extras is simply putting into operation a contingency that the parties contemplated might occur when they executed the contract, and for which they provided in this written agreement.” Wilkinson v. Johnson, 83 Tex. 392, 18 8. W. 746.

See, also, Stringfellow v. Elsea, 45 S. W. 418; Sanborn v. Plowman, 20 Tex. Civ. App. 484, 49 S. W. 639; Fidelity & Casualty Co. v. Callaghan & Graham, 104 S. W. 1073. When the parties executed the written contract, they contemplated the contingency that appellant might take more land than the 20 acres, and provided in such contract for the payment of rent for such additional land, and also for obligations with reference thereto by appellant. The above cases indicate a tendency upon the part of our courts not to give a strict construction to the words “contract in writing” such as would classify all contracts as oral contracts which are partly written and partly oral, and we therefore hold that in this case the suit for rent of the 17 acres is governed by the four-year statute of limitations, and overrule assignments of error Nos. 4, 5, and 21. We realize that the question is one upon which legal minds may well differ, but believe that our decision thereof is in line with the views expressed in the cited cases.

The letter and advertisement relied upon by appellee speak for themselves. We cannot find therein any evidence that appellee accepted the offer to take the 17 acres. The same may be said concerning the cross-action, if, indeed, it can be considered.

We are unable to agree with appellee in his contention with reference to the other assignments of error sustained by us. The judgment reversing the judgment of the trial court and remanding the cause for another trial must therefore be permitted to stand. Our former opinion is modified as above indicated, but the motion for rehearing is overruled.
      ©seEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    LUTEN et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 7450.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 5, 1916.
    On Motion for Rehearing, April 8, 1916.)
    1. Railroads <&wkey;309 — Persons on Track-Duty of Road.
    A railroad company is guilty of actionable negligence in failing to exercise ordinary care to discover and avoid injuring persons upon the track at such places and upon such occasions as one of ordinary prudence would expect to find them, and whether such persons are trespassers or rightfully upon the track makes no difference in the determination of the issue of the road’s negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 981; Dec. Dig. <&wkey;>309.]
    2. Railroads &wkey;>350(13) — Use of Crossing— Negligence.
    The act of a person going upon a railroad track at a public crossing or where the railroad has expressly or impliedly licensed the act, as by permitting the use of the place as a crossing, is not negligence per se.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13).]
    3. Railroads <&wkey;350(32) — Injuries at Cross- ■ ing — Questions for Jury.
    In a widow’s action against a railroad for death of her husband at a crossing, issues whether deceased was killed at the crossing and whether the train operatives in striking him were guilty of negligence which was the proximate cause of his death, held for the jury under the evidence.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1190; Dec. Dig. @=>350(32).]
    4. Trial @=>139(1) — Direction oe Verdict.
    To authorize the court to take a material question from the jury, the evidence must be of such a character that there is no room for ordinary or reasonable minds to differ as to the conclusion to be drawn from it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333,338-341; Dee. Dig. &wkey;139(l).J
    5. Negligence @=>136(2) — Question oe Fact and Law.
    Negligence, whether by plaintiff or defendant, is generally a question of fact, and is a question of law for the court only when the act done is violative of some law or the facts are undisputed and admit of but one inference.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 279, 281; Dec. Dig. @=>136(2).]
    6. Railroads @=>350(7) — Injuries on Track —Negligence—Question eor Jury.
    In a widow’s action against a railroad for death of her husband at a crossing, whether the servants of the road in charge of its train failed to ring the bell or blow the whistle of the locomotive or otherwise give warning of its approach to the crossing, was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1161; Dee. Dig. &wkey;350(7).]
    7. Railroads @=>350(7) — Injuries on Track — Question eor Jury — Question of Fact and Law.
    In a widow’s action against a railroad for death of her husband at a crossing, whether the train was being run without h headlight was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1161; Dec. Dig. &wkey;350(7).]
    8. Railroads @=350(7) — Injuries at Crossing — Question for Jury.
    In a widow’s action against a railroad for death of her husband at a crossing, the question whether the road’s servants kept a proper lookout for persons about to use the crossing was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1161; Dee. Dig. @=>350(7).]
    On Motion for Rehearing.
    9. Railroads @=>348(1) — Injuries at Crossing-Circumstantial EIvidence.
    It may be established by circumstances that a person was killed by a railway train at a public crossing through the negligence of the road’s servants, and that the person killed was at the time in the exercise of due care.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138, 1140, 1141; Dec. Dig. @=> 348(1).]
    10. Evidence @=>54 — Circumstantial Evt-’ dence.
    Circumstances establishing that a person was killed by a train at a public crossing through the negligence of the railroad’s servants must be shown by direct evidence and cannot be inferred from other circumstances.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 74; Dec. Dig. @=>54.]
    11. Evidence @=>53 — “Presumption of Fact.”
    A “presumption of fact” is a probable inference which common sense, enlightened by human knowledge and experience, draws from the connection, relation, and coincidence of facts and circumstances with each other, being always to be drawn by the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 73; Dec. Dig. @=>53.
    For other definitions, see Words and Phrases, First and Second Series, Presumption of Fact.]
    12. Railroads @=>348(2) — Injuries at Crossing — Direction of Movement of Train-Sufficiency of Evidence.
    In a widow’s action against a railroad for death of her husband at a crossing, evidence held sufficient, to warrant the conclusion that the train which killed decedent was moving north.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1139; Dec. Dig. &wkey;34S(2).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit by Mrs. E. E. Luten and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for defendant, plaintiffs appeal.
    Judgment reversed, and cause remanded.
    Wear & Frazier, of Hillsboro, for appellants. Walter Collins, of Hillsboro, and Chas. B. Braun and Spell & Sanford, all of Waco, for appellee.
   TALBOT, J.

The appellant Mrs. Luten, for herself and as next friend of her minor children, brought this suit against the appel-lee, the Missouri, Kansas & Texas Railway Company of Texas, to recover damages sustained on account of the death of her husband, and' the father of said children, E. E. Luten, who it is charged was killed by the negligence of appellee’s servants on or about the 1st day of April, 1914. It is alleged, in substance, that th’e deceased, E. E. Luten, was struck and killed by one of appellee’s trains at the intersection of its railroad track with a dirt road crossing; that said crossing had been constructed and maintained by the appellee, and commonly used by the public with the knowledge of appellee, a great many years next preceding the accident causing the death of the deceased, for travel; that the deceased resided near the said crossing, and while traveling along said dirt road and in the' act of crossing the appellee’s line of railway where it intersects said road he was negligently and with great violence struck by a rapidly moving train of appellee and instantly killed. The acts of negligence alleged are that appellee’s servants in charge of said train carelessly and negligently failed to blow the whistle or ring the bell of the locomotive in approaching the crossing; that the servants in charge of said train negligently ran the train in approaching and passing over said crossing at a reckless and dangerous rate of speed and negligently cut off the steam and permitted the train in approaching the crossing to run without steam by reason of which it failed to make the usual and ordinary noise incident to the running of a train; that said servants negligently failed to keep a lookout for persons about to cross or passing over the railroad at said dirt road crossing; that on the morning of the accident in which the deceased, Luten, lost his life a dense fog prevailed, and the said servants of appellee negligently failed to provide the locomotive drawing the train that struck and killed the said Luten with a headlight. It was alleged that for a long distance in approaching the crossing there was nothing to obstruct the view of ap-pellee’s servants, and that had they exercised proper care to discover persons about to pass over the crossing they could and would have seen the deceased in time to have avoided striking and injuring him by the use of ordinary care. The appellee answered, practically admitting that there was a dense fog the morning the deceased was killed, and that he was struck by one of its trains and knocked from the railroad track, receiving injuries thereby, from which he immediately died. Appellee denied, however, that it was guilty of any of the acts of negligence charged, and alleged that the deceased’s death was due to his own negligence. When the evidence offered by the appellant was concluded, the court, upon motion of appellee, instructed the jury to return a verdict in its favor, which was done, and judgment entered in accordance therewith. From this judgment, the appellant has appealed.

The assignments of error complain of the action of the court in instructing a verdict for the appellee, and the sole question raised is whether the evidence adduced was sufficient to take the case to the jury. The deceased lived west of the appellee’s railroad and about 400 yards northwest of the crossing in question. A short time before the accident causing his death he left home carrying a shotgun. The railroad where it intersects the dirt road leading from the deceased’s house runs practically noi'tli and south, and the dirt road practically east and west. At this intersection of said roads the railway company had constructed and maintained for many years prior to the death of the deceased, Luten, the crossing in question, and the same had been commonly and habitually used by the public for travel during all those years. About 9 o’clock of the morning the deceased left home with his gun a train operated by .the appellee’s servants passed over the road crossing going north. At this time two reports of a gun at or near the crossing were heard by some of the witnesses who testified in the case, and immediately thereafter a train whistle and the sound of a bell was heard at or about the same point. In perhaps an hour or less time after this the body of the deceased, Luten, was found at the estimated distance of 40 or 45 feet north of the crossing and about 15 feet east of the railroad track. When found Mr. Lu-ten was dead, his gun broken, and both barrels had been discharged. There was a wound on his right side below the arm and shoulder blade,' as described by the witness, “as big as your hand, just a cave-in, and the skin was broken farther around.” The right leg was broken between the knee and ankle. The wound on the leg was “not exactly on the outside nor inside; more nearly on the outside than behind.” He had some wounds on his face near his nose, on the right side of his face, also a cut place “kind of above his right ear.” The deceased’s hat was found on th'e ground about 15 feet north of the crossing and on the east side of the railroad bed. About 30 or 35 feet from the crossing and on the east side of the railroad track and bed and northeast of the road crossing, blood was found on the ground and at two or three places on the weeds. There was also at one place where blood was found an indentation in the ground as if some object had fallen there. There was another such place about 40 feet from the crossing. “The ground was awful wet and soggy,” and there was mud and blood on the deceased’s clothing.” H. V. Ad-derhold, an undertaker, testified that he removed the clothing from the body of the deceased and examined the wounds on it. He said the deceased “had one wound on the right side, under the right arm on the right side, that it looked like something had struck it and made a wound there; that he noticed some wounds on the head, more in the temple, above the right ear and was in the hair running along the edge of the hair, and that he noticed another wound on his body, between the knee and the ankle; that his right leg was broken.” The railroad bed or dump at the crossing was 10 or 12 feet high, and on the morning of the accident there was a very dense fog. Mrs. Luten heard the noise of the train as it passed and looked from the window of her house, but on account of th'e fog could not see the train. She saw no headlight. The deceased was a sober, industrious farmer. His hearing was defective, but if spoken to in a clear and distinct tone of voice he could carry on a conversation with another person a few feet away. No witness testified that he saw the accident or that he saw the deceased alive after he left home on the morning he was killed. No member of the train crew testified, and there is no direct or positive evidence showing that the presence of the deceased at or near the place of the collision was discovered by any one of them before the collision occurred.

It has been held more than once in this state that:

“A railroad company is guilty of actionable negligence in failing to exercise ordinary care to discover and avoid injuring persons upon the track at such places and upon such occasions as one of ordinary prudence would expect to find them; and whether such persons are trespassers or rightfully upon the track makes no difference in the determination of the issue of the company’s negligence in that respect, considered separately and apart from issues of contributory negligence of the person injured.” Railway Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; Railway Co. v. Malone, 102 Tex. 269, 115 S. W. 1158; Railway Co. v. Shiflet, 98 Tex. 326, 83 S. W. 677; Railway Co. v. West, 174 S. W. 287.

It is also well settled that the act of a person going upon a railroad tract at a public crossing, or where the railroad has expressly or impliedly licensed the act, is not negligence per se. Railway Co. y. Matthews, 99 Tex. 160, 88 S. W. 192; Washington y. Railway Co., 90 Tex, 314, 3S S. W. 764; Lee y. Railway Co., S9 Tex. 583, 36 S. W. 63; Railway Co. v. Crosnoe, 72 Tex. 79,10 S: W. 342; Railway Co. y. West, supra. The crossing in question in the case at bar had not been laid out or worked by authority of the commissioners' court of the county, and if it was not a public crossing in that sense, it was, it seems, recognized by the railway company as such, and, if not so recognized, it was, beyond controversy, a place where persons habitually crossed the railroad with the knowledge, and, so far as the record shows to the contrary, without objection of appellee, and where its employes operating its trains oyer such crossing might expect persons to be at any time of the day. That the deceased was struck by one of appellee’s trains and his death caused thereby is placed beyond dispute, and if at the time he was so struck he was attempting to pass over the crossing he was not a trespasser.

But did the facts and circumstances in evidence call for a submission of the issues of whether the deceased at the time of the collision was at the crossing and whether the operatives of the train in striking him were guilty of negligence which was the proximate cause of his death for the determination of the jury? We have reached the conclusion they did. From the location of the wounds found upon the body of the deceased and the proximity of his hat and body to the crossing, together with other circumstances in evidence to be considered, it may reasonably be inferred that he was at the crossing when struck by the train. The conclusion is warranted that he traveled east after leaving his home along the road leading to the crossing until he reached the railroad, and that he was going straight across the track from the west to the east side thereof when the collision occurred, and not walking north in the direction the train was moving, is a reasonable, and not an improbable, deduction from the facts and circumstances proved. The serious wounds, if not all of them, that were inflicted upon the deceased were on his right side. This is a strong fact or circumstance tending to how that he was standing facing the east or moving directly across the railroad track when struck. It is clear that if he was walking north along the railroad track when struck, the wounds inflicted upon him would have been more directly on his back, and the back part of his leg. The fact that the wounds were on his right side is entirely consistent with the idea that he was standing or walking with that side of his body toward the approaching train when the col-lision that cost him his life happened. True, it is possible or even-probable that he may have turned his right side towards the train just before the collision, but that he did so is no more to be inferred from the established facts and circumtances than that he was going straight across the track. And while it is possible it is not very probable, it occurs to us that the deceased attempted to cross the railroad track north of the dirt road crossing, at or near where his body was lying when found. The railroad bed or dump at that point was 10 or 12 feet high, and evidently more difficult to pass over than at the road crossing, and there is nothing to indicate why he may have left the traveled road to cross the track at such a place. Moreover, his hat, as has been stated, was found within 15 feet of the crossing and his body at the greater distance of 35 or 40 feet therefrom, indicating that after being struck by the train he was carried, before being cast to the side of the tack, a distance of 20 or 25 feet. For it is an exceedingly fair inference that the deceased’s hat was caused to fall from his head by the collision, and if it fell directly to the ground the location of the deceased’s body indicates that it was pushed or thrown thereafter by the train the distance of 20 or 25 feet mentioned. Again, it is not without the range of probability that after the deceased was struck, his hat, after being dislodged from his head, was carried by the suction or agitation of the air produced by the running train some distance in the direction the train was moving, and this would suggest that he might have been at the. crossing, or at least nearer to it than at the point where his hat was found when the collision occurred. At all events we think it cannot be said, from the facts and circumstances shown as a matter of law, that the deceased was hot at the crossing when struck by the railway train.

It has been repeatedly held in decisions of this state, that to authorize the court to take a material question from the jury, the evidence must be of such a character that there is no room for ordinary or reasonable minds to differ as to the conclusion to be drawn from it. Such was not, in our opinion, the character of the evidence adduced in this case. Whether the deceased, Luten, was at the road crossing when the collision causing his death occurred was an issuable fact for the determination of the jury.

Likewise, whether the collision in question was the result of negligence on the part of the agents and servants of appellee in the operation of the train and the proximate cause of the death of E. E. Luten were also questions of fact for the decision of the jury.

“Negligence, whether of the plaintiff or defendant, is generally a question of fact, and becomes a question of law to be decided by the court only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question.” Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63.

Now, “while the naked fact that an accident has happened may be no evidence of negligence, yet the character of the accident and the circumstances in proof attending it may be such as to lead reasonably to the belief that without negligence it would not have occurred”; and “where the particular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.” Washington v. Railway Company, 90 Tex. 314, 38 S. W. 764. The train causing the death of Mr. Luten was under the management of appellee’s servants. Some one of them may have seen the accident, but if so no explanation of how it occurred was made or attempted to 'be made. The crossing at which appellants claim it happened was from long-continued use a public crossing, or, if not, it was a place where the people in the neighborhood were constantly passing over appellee’s road with the consent or without its objection, and where the injury to the deceased, or some injury of like character to some other person similarly situated, ought to have been foreseen by the agents operating its trains over said crossing, as a probable consequence of their negligence in failing to keep a lookout to discover and avoid injuring those about to pass over the crossing or otherwise to use proper care to prevent injury to them. At the time of the accident resulting in Luten’s death a dense fog prevailed, and it is not unreasonable to conclude from the evidence that the train was being run without a headlight to enable the operatives thereof to discover objects on the railroad track. Mrs. Lhten’s testimony is to the effect on clear days trains passing over the crossing can be seen from her house; that on the day her husband was killed she looked but could not see the train on account of the fog, and that she did not see any headlight. The facts and circumstances in evidence also warrant the inference that the agents and servants of appellee in charge of the train failed to ring the bell or blow the whistle of the locomotive, or otherwise give notice or warning of its approach to the crossing. There was no testimony that the bell was rung or whistle blown before the train reached the crossing and two or three witnesses testified that if any such signal or warning of its approach was given they did not hear it. That they were in a position to have heard either the ringing of the bell or the blowing of the whistle at such time, if rung or blown, is conclusively shown by their testimony to the effect that they did hear the ringing of the bell and whistle of the locomotive ifr mediately after hearing the report of a gun, which the evidence clearly tends to show was the gun of the deceased, and that it was not discharged until the collision occurred. These were all questions, we think, for the jury, as was also the question whether the appellee’s servants kept a proper lookout for persons about to use the crossing. The trial court was not authorized, under the facts and circumstances shown, to take either of them from the jury. In other words, we conclude that the evidence as a whole was sufficient on all material questions involved to require the submission of those questions for the decision of the jury, and therefore the trial court erred in directing a verdict for the appellee. We must not be understood, however, as intending that the jury, if the questions had been submitted to them, ought to have resolved either of the controverted issues in favor of the appellant. We regard the facts calling for a submission of the case to the jury as cogent, as were those in the case of Washington v. Railway Co., supra, and it is mainly upon the authority of that case that we base our conclusions in this ease. That the case is strongly analogous to Washington’s Case, and distinguishable from those cited and relied upon by appellee, is clear to us.

The judgment of the court below is reversed, and the cause remanded.

On Motion for Rehearing.

A careful reconsideration of this case upon appellee’s motion for a rehearing has failed to convince us that we erred in holding that the evidence adduced was sufficient to require the submission of the issues presented by the pleadings to the jury impaneled for its trial for determination. The case, in our .opinion, differs in important particulars from the case of Missouri Pac. Ry. Co. v. Porter, 73 Tex. 304, 11 S. W. 324, and is not ruled thereby, nor by either of the cases cited by counsel for the appellee. The well-settled rule that it may be established by circumstances that a person was killed by a railway train at a public crossing through the negligence of the railway company’s servants, and that the person killed was, at the time, in the exercise of care for his own safety, • is expressly recognized in the case mentioned. Such is simply the effect of our holding in the case at bar. That in such a ca§e the circumstances must be shown by direct evidence, and cannot be inferred from other circumstances, and that “it is not admissible to go into the domain of conjecture, and to pile one presumption upon another, is not and has not by this court been questioned.” The circumstances shown by the positive or direct testimony found in the record were sufficient, we think, to take this ease to the jury on all material issues made by the pleadings. In other words, we hold that the probative force of the evidence is not so weak that it only raises a mere surmise or suspicion of the existence of the facts sought to be established, but that the existence of such facts may be reasonably inferred from the circumstances shown. A presumption of fact is a probable inference which common sense, enlightened by human knowledge- and experience, draws from the connection, relation, and coincidence of facts and circumstances with each other. If the fact in evidence usually accompanies the fact in issue, it gives rise to a probable presumption of the existence of the fact to be proved, and presumption of fact must always be drawn by the jury. United States v. Searcey (D. C.) 26 Fed. 435; Kent v. People, 8 Colo. 563, 9 Pac. 852; Sears v. Vaughan, 230 Ill. 572, 82 N. E. 881. It cannot be said as a matter of law that -the existence of the facts essential to appellant’s right of recovery cannot reasonably be deduced from the facts and circumstances shown on the trial of this case. This being true, it was error to withdraw the case from the jury.

In our original opinion we stated, in effect, that a short time before the accident causing the death of E. E. Luten he left home carrying a gun, and appellee insists that such conclusion is not supported by any evidence. In carefully reviewing the testimony again, we fail to find any direct testimony to that effect; and if such conclusion is not a fair inference from the circumstances in evidence, then there is no evidence to support it. The absence of such evidence, however, is not of sufficient importance to require a change in the disposition we have made of the appeal.

It is also contended that there is no evidence showing that th-e train which caused the death of the said Luten was going north. This is incorrect. The facts and circumstances in evidence make it very clear that it was. In addition to the facts pointed out in the original opinion it appears that the train that struck and killed the deceased carried his body to the town of Abbott. The witness T. E. Morgan testified that he lived at or near Abbott; that he knew Mr. Luten; that he passed the depot at Abbott the day Luten was killed; that he saw his body that day at Abbott; that the railroad company had it when he first saw it at the depot and that he assisted in unloading it. The witness PI. H. Humphries testified that he lived south of Abbott in the neighborhood of and pretty close to where Mr. Luten lived; and that appellee’s railroad track ran north and south at the point where the accident occurred is conclusively shown. The foregoing testimony, aside from other testimony in the record disclosing the facts and circumstances detailed in the original opinion, is amply sufficient to warrant the conclusion that the train in question was moving north.

We believe the proper disposition of the appeal has been made, and, so believing, the motion for a rehearing is overruled.

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author: RICE, J.

text:
    WOELFEL v. ROTAN GROCERY CO. et al.

    (No. 5605.)
    (Court of Civil Appeals of Texas. Austin.
    March 8, 1916.
    Rehearing Denied April 5, 1916.)
    1. Guaranty i&wkey;38(2) — Construction of Contract-Continuing Guaranty.
    ■In a written guaranty by the stockholders of a mercantile corporation, unconditionally guaranteeing the payment of any indebtedness of the corporation to a wholesaler, made within certain time limits, not to exceed a certain sum, the limitation of amount clearly applies to the indebtedness, not to the payment, and therefore the guaranty is a continuing one and renders the guarantors liable for a balance due the wholesaler less than the limited amount, though the corporation had, since the execution of the-guaranty, paid to the wholesaler more than that amount.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 47; Dec. Dig. <&wkey;38(2).]
    2. Guaranty <&wkey;38(2) — Construction of Contract — Continuing Guaranty.
    The liability under a guaranty will be construed as continuing when it is evident the object was to give a standing credit to the principal debtor to be used from time to time.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 47; Dec. Dig. @=»38(2).]
    3. Guaranty &wkey;>61 — Discharge of Guarantor-Extension of Credit — Taking Additional Security.
    One who signed a written guaranty expressly authorizing the extension of time for payment is not released by the taking of additional security as a consideration for such extension, since that is to his benefit.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § -71; Dec. Dig. <&wkey;61.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by the Rotan Grocery Company against Nick Woelfel and others. Judgment for the plaintiff, and the named defendant appeals.
    Affirmed.
    Wallace & Moore, of Cameron, for appellant. J. D. Williamson, of Waco-, for appellee.

      Application for writ of error pending in Supreme Court.

   RICE, J.

Prior to the 12th of April, 1912, the Rotan Grocery Company, who was engaged in the wholesale grocery business at Waco, had as one of its regular customers the German Mercantile Company, a corporation doing business at Thorn-dale and at Thrall, Tex. Hermann Un-nasch, Ernst Richter, John Woelfel, John Sehiwart, J. T. Johnson, F. W. Schwartz, A. E. Moerbe, J. C. Leschber, and Nick Woelfel were stockholders in the last-named company, and, desiring to secure appel-lee in the payment for merchandise to be sold to the German Mercantile Company, did on said date execute and deliver to the Rotan Grocery Company the following guarantee, to wit:

“In consideration of the sale of merchandise by the Rotan Grocery Company, to German Mercantile Company of Thorndale, Texas, I, we or either of us guarantee unconditionally the payment to the Rotan Grocery Company, at Waeo, Texas, any indebtedness of said German Mercantile Company to it made prior ’to November 1, 1912, and thereafter until further notice in writing, not to exceed the sum of $12,000. And I, we or either of US' consent to any extension of payment made between said parties, and that the form of such indebtedness may be changed from account to note, bill or other commercial paper, waive notice, protest and suit. And I, we or either of us agree to pay the rate of interest said parties agree upon, and 10 per cent, attorney’s fees if said debt is sued upon, or placed in an attorney’s hands for collection.”

During the course of business appellee company sold to the German Mercantile Company certain merchandise, aggregating the sum of' $18,652.36, upon which there had been paid on January 20, 1913, the sum of $7,652.36, leaving a balance of $11,000, for which said company and guarantors, except Nick Woelfel, executed their promissory notes, one for $6,000 and the other' for $5,000, and said Mercantile Company becoming insolvent, this suit was brought by appellee against all of said guarantors upon said notes, purporting to be signed by appellant and the other guarantors, as well as upon the written guarantee, to collect an unpaid balance thereon, amounting to $5,792.91.

The appellant answered denying liability upon the notes, on the ground that his signature thereto was forged; and while admitting the execution by him of the guarantee, averred that he is not liable thereon for the reason that the guarantee had been exhausted by payment; and, in the alternative, that he had been released by reason of the extension of the time of payment of the indebtedness, without notice to him, in consideration of additional security.

The case was tried by the court without a jury upon an agreed statement of facts, who found against appellant upon all the issues submitted, except that of forgery, and rendered judgment against him' jointly and severally with the other defendants by reason of the guarantee, for the sum of $5,792.91, which was an agreed/ balance, with 10 per cent, interest thereon- from date of judgment, from which judgment this appeal is taken.

The principal controversy in this ease on the part of appellant grows out of the fact that during the continuance of its business the Mercantile Company, who had purchased goods in excess of said guarantee, had paid during - the progress of' the business, from time to time, on its account with appellee more than the sum of $12,000, the limit of said guarantee, whereby it was contended the guarantee had. been exhausted, and appellee was not entitled to recover thereon. While appellee contends that the guarantee in question was a continuing one, and appellant became liable, notwithstanding such payments, for any balance' that might be due " thereon, not to exceed the sum of $12,000.-

In the case of Hill Mercantile Co. v. Rotan Grocery Co., 127 S. W. 1080, this court construed a guarantee in every respect similar to the one under consideration (except as to the names of the parties and the amount involved) to be a continuing guarantee. So that if the guarantee was a continuing one, as contended by appellee, then appellant became liable and judgment was properly rendered against him. But appellant insists that, under the authority of Lemp v. Armengol, 86 Tex. 691, 26 S. W. 941, the guarantee sued upon is not a continuing one, for which reason the court erred in rendering judgment against him thereon. In that' case the following guarantee was given:

“Know all men by these presents, that we, J. Armengol, Raymond Martin, and Fred Werner, of the county of Webb and state, of Texas, in consideration of goods sold and to be delivered to A. E. Krempkau, of the city of Laredo, by William J. Lemp, of the city of St. Louis, state of Missouri, do hereby guarantee full payment to said William J. Lemp of the value of all goods sold and delivered since the 1st day of March, 1889, or that may be hereafter sold and delivered to said Krempkau, not to exceed, however, the sum of $3,000.”

Judge Gaines, in construing that instrument, held it to be ambiguous, and therefore that it was competent to offer parol testimony to explain its meaning on the ground that it was not evident whether the limitation “not to exceed, however, the sum of $3,000” qualified the words “full payment” or “value,” saying, in discussing the case:

“Was it the' intention to qualify the word ‘payment’ ¿s found in the contract, or the word ‘value’? If the former, then the writing should be construed as if it read, * * * We * * * hereby guarantee full payment, not to exceed, however, the sum of $3,000, to William J. Lemp, of the value of all goods sold and delivered. since the 1st day of March, 1889, or that may be hereafter sold ánd delivered to said Krempkau.’ If the latter, then the contract would read, * * * ‘We * *■ * hereby guarantee full payment to William J. Lemp * * * not to exceed, however, the sum of $3,000 of all goods sold and delivered since the ist day- of March, 1889, or that may be hereafter sold and delivered to said Krempkau.’ According to the latter construction, the guarantee would apply only to the first $3,000 of indebtedness contracted by Krempkau under the contract ; and when the indebtedness was paid, the obligation would have been discharged. The former construction would limit the amount of the liability to be incurred by the guarantors, but would leave no limitation upon the amount of the sales with reference to which the promise was made. This would make the contract a continuing guarantee.”

The instant case is distinguishable from, that in that it is clear that the expression in the present guarantee, “not to exceed, however, the sum of $12,000” was intended to qualify the word “payment,” and not as a limitation upon the amount of goods to be purchased and meant that appellant and his coguarantors unconditionally bound themselves for the payment of any indebtedness of said German Mercantile Company to the appellee, not to exceed the ■ sum of $12,000. It is evident, from the course of dealing of the parties, that this guarantee contemplated covering more than one transaction; and it was not limited in time, but provided for its continuance until further notice by the guarantors.

In Cyc. vol. 20, p. 1440 et seq. it is said:

“When the amount of a liability is limited and the time is not expressly limited, the courts lean towards construing the guaranty as a continuing one. The liability under the guaranty will be regarded as continuing when by the terms of the contract it is evident that the object is to give a standing credit to the principal debtor, to be used from time to time, either indefinitely, or until a certain period. So a guaranty may be construed as continuing where attendant circumstances strongly indicate that more than a single transaction was contemplated, especially if the right to recall the guaranty is expressly reserved. So, words guaranteeing payment for ‘any goods’ which-may be purchased by the third person, or the payment of any debt which may be contracted up to a certain amount, are almost invariably held to indicate that the liability is intended to be continuing.”

See; also, notes thereunder and authorities. Also Trustees v. Gilliford, 139 Ind. 524, 38 N. E. 404; Peoria Savings, Loan & Trust Co. v. Elder, 165 Ill. 55, 45 N. E. 1083; Dumont v. Ery (C. C.) 14 Fed. 293.

There is no merit in appellant’s contention that the taking of additional security and the extension of time of payment in consideration thereof, without notice to appellant, released him from liability thereon, because the guarantee itself authorized the extension of payment; and certainly the taking of additional security, as was held in Hill Mercantile Co. v. Rotan Grocery Co., supra, could work no injury to appellant, but was beneficial to him.

After a careful consideration of the réc-ord, we find no reversible error, for which reason the judgment of the court below is in all things affirmed.

Affirmed. '
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text:
    PALOMAS LAND & CATTLE CO. v. GOOD et al.
    (No. 545.)
    (Court of Civil Appeals of Texas. El Paso.
    March 30, 1916.)
    1. Appeal and Erboe. <&wkey;608(l) — Transcript —Copy op Proceedings — Statute.
    Kev. St. art. 210-9, provides that the transcript shall contain a full and correct copy of all the proceedings had in the case, and article 2110 provides that, if the pleadings or the judgment show an appearance of the defendants in person or by attorney, the citation and return shall not be copied in the transcript. A transcript showed the filing of the petition contained in the record, the jurisdiction of the trial court over the cause ot action, that defendant was a nonresident, that its vice president could be found in one of three counties, and a prayer for citation and for an attachment against the property of the defendants and a judgment by default showing that defendant was duly served,that the affidavit for attachment was made and an attachment issued and returned, and the property replevihed by defendants on the re-plevin bond, the introduction of evidence to support. the allegations in the petition, with the recital that they were proven to the court’s satisfaction, but did not show the affidavit for the attachment, the writ, levy, or return of the attachment, or bringing up the replevin bond. Held not to show the facts necessary to authorize the default judgment against the sureties 'on the replevin bond, and hence made no case on appeal.
    ■ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2673-2681, 2683, 2684; Dec. Dig.- &wkey;>608(l).]
    2. Appeal and Eeror <&wkey;598 — Transcript— Substitute.
    Such statutory requirements that the proceedings must be shown by the transcript cannot be .supplied by the recitation in the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2639-2644; Dec. Dig. <&wkey;
    Appeal from. District Court, Pecos County; W. C. Douglas,' Judge.
    Suit by Walter Good and another against the Palomas Land & Cattle Company. Judgment for plaintiffs, and defendant appeals.
    Beversed and remanded.
    Turney & Burges, of El Paso, and O. W. Williams, of Ft. Stockton, for appellant. Jno. B. Howard, of Pecos, and Howell Johnson, of Ft. Stockton, for appellees.
   WALTHALL, J.

.Walter Good and Ed Good, Jr., as plaintiffs, filed this suit in the district court of Pecos county, Tex., against the Palomas Land & Cattle Company, defendant, in which cause plaintiffs alleged that they wer,e resident citizens of said Pecos county, and that the defendant “is a corporation created and existing by law, and has its principal place of business in Los Angeles, Cal., and with an office in Columbus, N. M.” They further alleged:

“That the defendant is a foreign corporation and has no agent within the state of Texas; that one H. S. Stephenson is a vice president and general manager of said corporation; that the said Stephenson is now temporarily within the confines of this state, to wit, in Foard county, or Pecos county, or El Paso county, Tex., upon, whom service may be had herein” — and ask citation to each of said counties.

Plaintiff’s cause of action is based upon, or rather grows out of, two contracts; one of date November 18, 1913, between plaintiffs and defendant, for pasturing cattle in plaintiff’s pasture near Monahans. The other, of date 20th of May, 1914, provides for the sale of cattle by defendant to plaintiffs in plaintiff’s pasture, stating terms, etc. Both of said contracts are executed on the part of the corporation by said Stephenson as its vice president and general manager. Under the first contract, this stipulation occurs:

“The parties of the first part (plaintiffs) agree to receive the cattle at Monahans, Texas, and to return them back to Monahans, Texas, or to the nearest shipping point on the Orient Bail-road, free of any and all charges to the party of the second part' (defendant) at times designated by said party of the second part.”

The second contract shows agreement to sell all of these cattle hy the cattle company to the Goods, but the title to remain in- the company until the cattle were delivered and paid for.

The petition alleges that on the 15th day of March, 1914, the cattle company informed the Goods that the cattle then being pastured had been sold, and that the company employed the Goods to round up the cattle about the 21st of April, 1914, and agreed to pay them for said service a reasonable compensation; that the plaintiffs, at their own costs, erected pens, cut the cattle into the several classes to which they belonged, and delivered them at Monahans, as provided in the first contract ; and that to perform said service it required more time and expense than would have been necessary to have delivered said cattle in a body as contemplated and agreed in the first contract, and it was for the said additional services and expenses incurred that this suit was brought. They alleged demand and refusal to pay. Plaintiffs prayed for and procured an attachment to be issued and levied on certain cattle and horses, property of the cattle company. They prayed for citation to the counties named, judgment for their debt, foreclosure of the attachment lien, and general and special relief. The company made no answer to the suit, and judgment by default was entered in plaintiffs’ favor on September 29, 1915. The judgment is quite lengthy, and we will state it only in outline and substance. It recited that defendant, “though duly cited to appear according to law, wholly made 'default.” It recited the introduction of the evidence to prove the plaintiffs’ claim. It stated that:

“It is ordered, adjudged, and decreed by the court that plaintiffs, Walter Good and Ed Good, Jr., do have and recover of and from the defendant, Palomas Land & Cattle Company, a corporation, the sum of $2,275 and interest on the same at the rate of 6 per cent, per annum from the 1st day of January, 1915, to date of the rendition of this judgment and for all costs in this behalf incurred, of which recovery may be had upon the replevin bond as hereinafter provided, but otherwise execution shall not issue therefor.”

It further recited the making of the affidavit for the attachment “so that the court might have jurisdiction over the person of the said Palomas Land & Cattle Company, a foreign corporation, without a permit to do business in the state of Texas”; stated the giving of the attachment bond, the issuance of the attachment writ, the levy of the writ and its return. It further recited:

“Therefore it is ordered, adjudged, and decreed by the court that the attachment lien be and the same is hereby foreclosed in satisfaction of said lien, and that an order of sale be issued, directed to the sheriff of Pecos county, Tex., to sell said property as under execution, if to be found in Pecos county, Tex., and that the proceeds of said sale, if any, be used and paid to the said plaintiffs, Walter Good and Ed Good. Jr., in satisfaction of their judgment and said lien and in satisfaction of all costs accrued herein.”

The judgment further recited the replevin of the property by appellant, and the delivery of the property to appellant. The judgment further decreed that plaintiffs have and recover of and from the sureties, naming them, the amount of the judgment, and authorized execution against them.

On October 15, 1915, defendant cattle company filed- its motion to set aside the judgment, and, same being overruled, defendant excepted and gave notice of appeal.

Article 2109, Revised Statutes, is as follows:

“The transcript shall, except in the cases hereinafter provided, contain a full and correct copy of all the proceedings had in the case.”

Article 2110 provides:

“If the pleadings or the judgment show an appearance of the defendant, in person or by attorney, the citation and returns shall not be copied into the transcript.”

The transcript shows the filing of the ap-pellees’ original petition, and the petition itself is contained in the record. The jurisdiction of the trial court over the subject-matter of the cause of action is manifest from the petition and the exhibits made a part of the petition. The cause of action stated in the petition is upon an unliquidated demand. The petition shows the appellant to be a nonresident of this state, alleges that the vice president and general manager, Stephenson, can be found in one of the three counties named, and prays for citation, and for an attachment against the property of the appellant. The judgment entered shows a judgment by default, that defendant was duly served but wholly made default, the making of the affidavit for the attachment, the issuance of the writ of attachment, the levy and the return of the writ, the replevin of the property by appellant, the giving of the replevin bond and the names of the sureties on the replevin bond, the introduction of the evidence to substantiate the allegations in plaintiffs’ petition, and that the allegations were proven to the satisfaction of the trial court. The court thereupon entered the judgment set out above. The record before us does not conform to the two articles of the statute above recited, in that it does not contain “a full and correct copy of all the proceedings had in the case.” It does not show the affidavit for the attachment, the writ, levy, or return. Nor does the record bring up the replevin bond nor show the release of the attached property on the giving of the replevin bond, other than the recitation in the judgment. Judgment is entered against what purports to be the sureties on the replevin bond. All of the attachment proceedings, and the replevin of the property, the giving of the replevin bond, were necessary parts of the proceedings had on the trial of the case. The citation and return, under the statute, must be shown unless the pleadings or judgment show appearance of the defendant. The courts have uniformly held that the recitation in the judgment of proceedings had is not sufficient to supply the requirement of the statute that the proceedings must be shown by the transcript. It must be remembered that a judgment by default is an ex parte proceeding. In Baum v. McAfee, 117 S. W. 883, Chief Justice Rainey, speaking for the Fifth Court of Appeals, said that parts of the proceedings, although unnecessary to a disposition of the case, cannot be omitted from the record, unless the parties agree in writing with the approval of the judge, as provided in article 2112, R. S.

In Glasscock v. Barnard, 58 Tex. Civ. App. 369, 125 S. W. 615, Justice Speer for the Ft. Worth Court of Civil Appeals said that, where the record shows there was no appearance or waiver, the transcript should contain a copy of the citation duly served on the defendant, aside from the recitation in the judgment. To the same effect is the ease of McMickle v. Texarkana National Bank, 4 Tex. Civ. App. 210, 23 S. W. 428; Daugherty v. Powell, 139 S. W. 625. In Bomar et al. v. Morris et al., 59 Tex. Civ. App. 378, 126 S. W. 663, the court held that a judgment by default will be reversed unless the record shows a service of citation or appearance by defendant, even though the judgment contains a recital that the defendant was duly served with citation. To the same effect is Mayhew & Co. v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 959. If it is necessary to show jurisdiction over the person of the defendant, it is equally necessary to show jurisdiction over the property secured by attachment where the trial court enters judgment to foreclose the attachment lien. The same is true as to the replevin bond, where judgment is entered against sureties on the bond. The transcript must show the facts necessary to authorize the judgment entered against the sureties on the bond. B. & B. Co. v. Moore Bros. (Tex. Cr. App.) 16 S. W. 780; Insurance Co. v. Friedman, 74 Tex. 56, 11 S. W. 1046. The case on appeal is tried on the record, and the transcript. must show the proceedings had in the trial court.

For the reasons stated, the case is reversed and remanded.
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