author: DUNKLIN, J.

text:
    MENEFEE v. BERING MFG. CO.
    (No. 7876.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 7, 1914.
    Motion for Leave to File Motion for Rehearing Denied April 11, 1914.)
    1. Evidence (§ 178) — Telegram — Admissibility.
    A telegram received by a party in response to a letter addressed and mailed to the adverse party is properly received in evidence as against the adverse party who purported to have signed the telegram without other evidence that he had signed it except that disclosed by the face of the telegram, where the original telegrams of the company transmitting them had been destroyed pursuant to orders of the Interstate Commerce Commission.
    {Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 580-594; Dec. Dig. § 178.]
    2. Money Paid (§ 9) — Persons Liable — Contracts — Evidence.
    Where an action for money paid for freight, unloading, and demurrage charges, was based on defendant’s implied promise to reimburse plaintiff, and the undisputed testimony of a witness showed that defendant had agreed to pay the same and that he never questioned his liability, a judgment for plaintiff was authorized, though a telegram from defendant to plaintiff directed unloading and promised reimbursement for “freight charges,” which term must have been intended to include all the charges sued for.
    TEd. Note. — For other cases, see Money Paid, Cent. Dig. §§ 27-29; Dec. Dig. § 9.]
    3. Trial (§ 139) — Peremptory Instructions —When Authorized.
    Where plaintiff under all the evidence was entitled to a recovery of a part of the sum demanded, if not the entire amount demanded, a peremptory instruction for defendant was properly denied.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. ‘ 139.]
    Error to District Court, Tarrant County; R. H. Buck, judge.
    Action by the Bering Manufacturing Company against O. R. Menefee. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Wray & Mayer, of Ft. Worth, for plaintiff in error. Gillespie & Altman, of Ft. Worth, for defendant in error.

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

   DUNKLIN, J.

The Bering Manufacturing Company entered into a contract with O. R. Menefee for the purchase from him of a lot of railroad ties to be shipped to a certain place. Menefee shipped some 17 cars of ties in excess of the amount ordered by the purchaser, who declined to receive them. The ties contained in the excess shipment were held by the railroad company at the place of destination awaiting delivery and the payment of freight, unloading, and demurrage charges. Finally, the Bering Manufacturing Company paid those charges to the railroad company and instituted this suit to recover the same of Menefee, alleging the facts above recited, and further that it paid the charges not only for the use and benefit of Menefee, for which he impliedly agreed to reimburse it, but also at his special instance and request and upon his express promise to reimburse plaintiff for such expenditures. From a judgment in favor of the plaintiff for $2,231.50 freight, $167.25 demurrage charges, and $95.-21 expenses for unloading, aggregating $2,-493.97, the defendant has prosecuted this writ of error.

The' principal controversy upon the trial was whether Menefee was liable for the de-murrage and unloading charges, or whether his liability wag confined to the amount paid by plaintiff for freight only.

It seems that prior to the payment by plaintiff of the charges in controversy there had been considerable correspondence between the parties relative to the payment of the charges in controversy. What purported to be a part of this correspondence was a telegram addressed to plaintiff’s manager at Dallas, Tex., dated-at Ft. Worth, Tex., with defendant’s name signed thereto, reading' as follows; “Unload our ties. Will reimburse you freight charges.” This telegram was admitted in evidence over defendant’s objection that there was no proof other than appears on the face of the telegram that Mene-fee sent it. The telegram was dated December 22,1909, and the manager who received it testified that it was a reply to the following letter written by him as manager for plaintiff December 21, 1909: “Menefee Bros., Fort Worth, Texas — Gentlemen: Referring to conversation had with you about the- ties rejected by Gulf, Texas & Western Ry., beg to state we have been working continually on this matter since we saw you, and now have the matter where we can get the ties unloaded and held for adjustment, provided the freight and unloading charges are immediately refunded the Ry. Co. — that is, they will draw on- us for the amount. This seems to be the best adjustment that can be reached, and if it is agreeable to you, we want you to give us your written authority to have the cars unloaded and lielot for further adjustment and your statement that we shall immediately draw on you for the charges for unloading, and freight, demurrage, etc. Unless you wish to do this, we shall simply have to return you invoices for all cars refused and charge same back to you, and you can refund amounts we may over paid you. Please let me hear from you at once, as this matter cannot be allowed to drag further. I think there is small doubt the adjustment above suggested will be the easiest way out as by unloading the cars we will stop charges, and when the matter is finally adjusted we will then pay for the ties. Bering Manufacturing Company.”

Dixon, plaintiff’s manager, testified without contradiction that, shortly before he wrote the letter above referred to and received the telegram, he had a conversation with the defendant, during which conversation the latter promised to pay the charges for unloading and for demurrage as well as for freight, and that after those charges had been paid Menefee never questioned his liability therefor; defendant did not testify upon the trial at all.

It further appears that the manager of the telegraph office from which the telegram was sent to plaintiff’s manager at Dallas testified that the original of that telegram had been destroyed in obedience to a regulation established by the Interstate Commerce Commission requiring the destruction of all original telegrams more than one year old. Under the circumstances recited above, we are of the opinion that there was no error in admitting the telegram. International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93; Ullman-Lewis Co v. Babcock, 63 Tex. 68.

It is insisted that the manager, Dixon, did not testify expressly that he mailed the letter copied above in the United States mail, properly stamped and addressed to the defendant, and that therefore the letter could not be considered in determining whether or not a proper predicate had been laid for the introduction of the telegram. A sufficient answer to this is that it does not appear that any objection was urged to the introduction of the letter, and further that it was quite apparent from Dixon’s testimony that the letter was in fact sent through the mail according to the usual custom.

The court charged the jury as follows: “If you find and believe from a preponderance of the evidence in this case that on or prior to December 22, 1909, the defendant requested the plaintiff or requested Wm. Dixon, as manager of the plaintiff, Bering Manufacturing Company, to pay the freight charges on 17 cars of ties shipped the Gulf, Texas & Western Railway Company, by said defendant, and in the name of and for the benefit of plaintiff, and that said defendant, O. R. Menefee, promised and agreed to reimburse said plaintiff for the amount so paid out by it, then your verdict will be for the plaintiff as follows: For per diem or de-murrage charges 8167.25; for freight $2,-231.51; and for cost of unloading, §95.21— making a total of $2,493.97. But if you do not so find and believe from' a preponderance of the evidence, your verdict will be for the defendant.” Under an assignment of error addressed to the charge is the following proposition: “If it be conceded that the telegram was properly in evidence, then the basis of the plaintiff’s suit was its contents, and inasmuch as it only contained a proposition to reimburse the defendant in error in the payment of freight, the submission of the item of demurrage and charges for unloading was error.”

The cause of action alleged in plaintiff’s petition was as indicated above; it was not based upon the contents of the telegram. In view of the letter to which the telegram was a reply, the undisputed testimony of Dixon that the defendant shortly prior to the date of the telegram agreed to pay the demurrage and unloading charges, as well as the freight, that defendant never at any time after the same were paid questioned his liability therefor, and the further fact that those charges were owing by the defendant and not by the plaintiff, we are of the opinion that the language “freight charge,” used in the telegram, was meant to Include all of the charges for which the suit was instituted.

A further assignment is presented to the refusal of the court to give a peremptory instruction in favor of the defendant. This assignment must be overruled, for, if the telegram had not been Introduced, then, under the undisputed testimony of Dixon that defendant had agreed to pay all of the charges, plaintiff would have been entitled to a peremptory instruction for a verdict in its favor for all of those charges; and, even if the telegram be construed as a limitation of Menefee’s agreement to pay the freight charges only, the plaintiff would at least have been entitled to a recovery to that extent.

The judgment is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    ST. LOUIS, S. F. & T. RY. CO. et al. v. ARMSTRONG.
    (No. 7,878.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 7, 1914.
    Rehearing Denied April 11, 1914.)
    1. Appeal and Error (§ 742)—Questions Reviewable—Instructions—Statement.
    Where the statement, under an assignment complaining of an instruction on the measure of damages for delay in the transportation of live stock, consisted of the instruction, but did not point out anything to indicate that the jury awarded excessive damages, the record did not show that the error, if any, in the instruction objected to as allowing double damages was prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.J
    2. Appeal and Error (§ 750) — Questions Reviewable — Objections to Insteuctions —Pleadings.
    Where the court sustained an exception to allegations of the answer, but error was not assigned to the ruling, assignments of error could not be based on the refusal of a special charge submitting the defense presented by the allegations.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074r-3083; Dec. Dig. § 750.]
    3. Caeeiebs (§ 213) — Delay in Teanspoetation oe Live Stock — Justification.
    An unreasonable delay in the transportation of live stock is not justified by the maintenance .by the carrier of a schedule resulting in such delay.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.]
    4. Evidence (§ 543%) — Opinion Evidence-Competency OE EXPERT.
    A witness who knew the market value of cattle, and who was qualified by reason of his wide experience to give his opinion of the rate of decline in value of cattle because of their stale and drawn condition, caused by a delay in their transportation, was competent to give his opinion of the aggregate amount of damages caused by delay in transporting cattle for the market.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2359; Dee. Dig. § 543%.]
    5. Caeeiebs (§ 228) — Carriage of - Live Stock — Delay—Damages—Evidence.
    Where, in an action for delay in the transportation of cattle for sale at stock markets, market reports covering the time involved were received in evidence without objection, and the shipper testified to the classes and conditions of the cattle in the several shipments, and gave market prices at several periods, stating that the shipments would be included in the range of such prices, a prima facie case of market values was shown to justify the jury in awarding damages for decline in market price.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by George W. Armstrong against the St. Louis, San Francisco & Texas Railway Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Andrews, Ball & Streetman, Thompson & Barwise, J. M. Chambers, W. H. Francis, and Lockett & Rowe, all of Ft. Worth, for appellants. Alexander, Power & Ridgway, of Ft. Worth, for appellee.

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

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

   CONNER, C. J.

At various dates, beginning December 10, 1910, and ending June 9, 1912, appellee delivered in separate lots to the St. Louis & San Francisco Railroad Company and the St. Louis, San Francisco & Texas Railway Company some 1,312 head of cattle for transportation to cattle markets of the country. Nine of the shipments were from Scullin, Okl., to the National Stockyards, Ill., two from Roff, Okl., to the same place, three from Roff to Kansas City, and two from Roff to Ft. Worth, Tex.; there being 16 separate shipments in all. Appellee alleged unreasonable delays in the several shipments, resulting in loss in weight, depreciated- value in appearance, and a 10 per cent, decline in market price as to several shipments. E'aeh shipment was separately presented, showing the number in the lot, the loss in weight, the amount of depreciation in value, and the entire damage to the shipment. The total damage so claimed to the 16 shipments aggregated $3,691.06. A trial before a jury on the issues presented in the court’s charge resulted in a verdict for ap-pellee. The verdict in assessing the damages followed the plan of the plaintiff’s pleading; that is, the verdict specified the several shipments on account of which the jury assessed damages, and stated the amount of the damage thereto. On 3 of the shipments it was found there was no damage. On 11 of the remaining shipments the several amounts found and assessed against the appellant St. Louis & San Francisco Railroad Company aggregated $2,584.91. On the remaining 2 shipments the aggregate amount of damage found was $134.43, which was assessed against appellant St. Louis, San Francisco & Texas Railway Company. The judgment followed the verdict, and both railway companies appeal.

In the third paragraph of the court’s charge the jury were instructed that if they found negligent delay in the shipment from Roff to Ft. Worth, and that “thereby said cattle were caused to lose flesh and depreciate in market value,” then the finding should be for the plaintiff and his damage, measured by “the difference in the market value of such cattle in the condition when they reached the market” and the market value in the condition the cattle would have arrived but for such delay. And further charged that in event of such negligent delay, and that the cattle thereby arrived at the market a day later than they would otherwise have arrived, and there was a difference in the market price in favor of the first day, “and that plaintiff was caused to receive for said cattle a lower price by reason of such delay, if any, than he would have received had he sold on the day previous, then you will allow the plaintiff such sum of money as in your judgment will be a fair and reasonable compensation for such loss, if any, to cover such decline in the market value of said cattle.”

The fifth paragraph of the court’s charge is substantially the same as the third paragraph except that it related to the shipments to Kansas City and St. Louis, and error is assigned to both paragraphs on the ground that thereby the jury were authorized to find “double damages to the extent of any decline in value as the jury might find to have occurred.”

The plaintiff’s petition is very explicit in describing the elements of his damage. As alleged, they were loss in weight, depreciated value because of stale and drawn appearance, and decline in market value as to some ■of the shipments, in view of which we are not inclined to think that the charges are to be construed as urged. The jury most probably understood the charges as the court evidently intended, that is, that in measuring the damages the increased loss in weight and the depreciated value in appearance caused by negligent delays should be allowed, to which might be added loss by reason of a decline in market price, if any, in the few instances in which a decline in the market was alleged. But if mistaken in this view, there is nothing in the statement under the assignments raising the question that indicates a prejudicial result. The statement consists wholly of the charges objected to. If there was any evidence of a decline in market on any occasion involved, or if the verdict included, or probably included, damages in any amount on this ground, the statement fails to point it out. Moreover, the consequences could but unduly augment the damages by adding loss by reason of a fall in market price on the few occasions alleged, and the amount of the excess, if any, is not shown, so that in no view of the question that we have been able to take do we think a reversal of the judgment should be ordered.

Error is assigned to the refusal of the following special charge, viz.: “Gentlemen of the jury, if you find that the defendants had a schedule covering the movement of its live stock trains between Roff and Schul-lin, Okl., and Kansas City, Mo., and between Rof£ and Scullin, Okl., and St. Louis, Mo., and if you find and believe that such' schedules were reasonable, and that any of the shipments in question reached their destination within the time limit of such schedules, then the plaintiff cannot recover anything as damages for delay as to any of such shipments so reaching destination.” The court sustained an exception to all that part of the answer alleging reasonable schedules for its trains, and error has not been assigned to this action of the court, so that there is now no effective basis in the pleading for the special defense presented in the rejected charge.

Moreover, the material question relating to the time occupied in the several trans-portations was not one of train schedule, but one of negligence vel non. If the time consumed was not unreasonable, the jury un-. der the court’s charge were not authorized to find for plaintiff. If it was, no schedule would justify. All assignments raising the question so presented must therefore be overruled. See City of Dallas v. Beeman, 23 Tex. Civ. App. 315, 55 S. W. 762; H. & T. C. Ry. Co. v. George, 60 S. W. 313; G., C. & S. F. Ry. Co. v Porter, 25 Tex. Civ. App. 491, 61 S. W. 343; Tex. & Pac. Ry. Co. v. Currie, 33 Tex. Civ. App. 277, 76 S. W. 810.

The witness Gibson who sold a number of the shipments in question was permitted | to testify that the cattle sold by him were stale, gaunt, and drawn, which condition rendered1 them less valuable on the market, and that in his opinion the cattle were damaged at least 10 cents per hundred pounds, stating the aggregate amount of damages to each shipment. This was objected to on the ground that the witness had not stated the market value of cattle at the several times about which he testified, and that his answer invaded the province of the jury. Neither objection is maintainable. The witness testified that he knew the market prices, and was shown to have wide experience and was qualified as an expert to give his opinion of the rate of decline in value because of a stale and drawn condition of cattle. The rate of decrease manifestly applied whatever the state of the market, and his opinion of the aggregate amount of damages was but a short rendition of the circumstances in each particular case. See Railway v. Woods, 31 S. W. 237; Railway v. Halsell, 35 Tex. Civ. App. 126, 80 S. W. 140; Railway v. Richards, 105 S. W. 236; Railway v. Knox, 151 S. W. 902; 17 Cyc. p. 53.

The remaining assignments in one form or another question the sufficiency of the evidence. The evidence relating to the several shipments and to the case as a whole is entirely too voluminous to recite, but it has been considered with all of the care we have been able to devote to it, and our conclusion is that the evidence warranted the charges submitted and sufficiently supports the verdict and judgment. The evidence of negligent delays and consequent loss in weight and of depreciated value because of a stale and drawn appearance of the cattle is abundant. On the question of market prices and value many, if not all, of the witnesses failed to state market prices on the several days the several lots of cattle were sold, but many market reports were read in evidence, without objection, which covered in a general way the time involved, and some of which were for particular days of particular sales. Appellee also testified to the classes and conditions of the cattle in the several shipments, and gave market prices at several periods, stating that the shipments “would be included in the range of the prices quoted by him,” all of which, it seems to us, sufficiently make a prima facie case, of market values. That is, we think the general range of prices given should be held to apply to all shipments questioned, in the absence of evidence tending to show that on any one or more occasions market prices were variant from those shown. There is no such evidence. If the jury in any case assessed damages for loss in weight, depreciated value, or decline in market price without evidence to support the assessment, it has not been pointed out. On the whole, we think all assignments involving a consideration of the evidence must be overruled.

The judgment is affirmed.


author: PHILLIPS, J.

text:
    STATE v. GALLARDO et al.
    (No. 2296.)
    (Supreme Court of Texas.
    April 29, 1914.)
    1. Public Lands (§ 210) — Mexican. Grants —Powers of Governor — Presumption.
    ' Where land in Texas, formerly within the Mexican state of Tamaulipas, was sold under the authority of the governor of that state, and the title was thereafter acquiesced in by the Mexican government as to the portion of such land remaining in Mexico, and not controverted by Texas as to the portion over which that state extended its sovereignty, it will be presumed that the sale by the governor had the previous approval of the supreme government, as required by regulation No. 13, decreed by the Mexican president ad interim under the provisions of the act of the Mexican assembly of October 3, 1835.
    [Ed. Note. — For other eases, see Public Lands, Cent. Dig. §§ 659-665, 704; Dec. Dig. § 210.]
    2. Judgment (§ 710) — Conclusiveness—Title to Real Estate — Claimants under the Same Grant.
    A judgment against one claiming land under a sale by the Mexican state of Tamaulipas, in special proceedings brought under the Act Aug. 15, 1870, c. 83 (Paschal’s Dig. art. 7068, etc.), is not conclusive against other claimants under the same sale who were not parties to those proceedings or in privity with such parties.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 710.]
    3. Public Lands (§ 221) — Disposal—Statutes— Construction — Return of Surveys.
    Act Feb. 10, 1852 (Laws 1851-52, c. 69), requiring the field notes of surveys made prior to the passage of that act to be returned to the General Land Office, does not relate to nor affect Mexican titles or surveys, but only refers to. surveys made under the laws of the republic or state of Texas.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 685-697; Dec. Dig. § 221.]
    4. Public Lands (§ 209) — Spanish Grant-Donation to Town — Abandonment.
    Whatever rights were acquired by towns under grants of “ejidos” from the Spanish king, such grants did not convey an indefeasible title, and, _ when the town was removed to another locality and the public use of the lands was abandoned, the lands reverted to the sovereignty and did not vest in the future inhabitants of the town who remained upon the site originally occupied by it.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 658; 3?.ec. Dig. § 209.]
    5. Public Lands (§ 198) — Mexican Grants —Protection by Treaty.
    In relation to property rights in that part of the Mexican state of Tamaulipas over which the state of Texas extended sovereignty on December 19, 1836, acquired before such sovereignty was extended, the treaty of Guadalupe Hidalgo has the force of law in Texas.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 198 ]
    6. Public Lands (§ 198) — Mexican Grants —Protection by Treaty.
    That treaty protects all titles to land within such territory which were good against the Mexican government at the date the sovereignty of Texas was extended over the territory.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 198.]
    7.Public Lands (§ 223) — Mexican Grants —Sifficiency.
    Where lands between the Nueces and Rio Grande rivers had been sold by a description sufficient to identify them, under the authority of the governor of the Mexican state of Tamaulipas, and the purchase price had been paid and a survey ordered, prior to the extension of the sovereignty of Texas over such territory, the purchasers had acquired a perfected right to. the legal title, which was good against the Mexican government, and it will be protected by the Texas courts, even though the survey and actual conveyance of the legal title were not made until after the declaration of the sovereignty of Texas to such territory had been made, but before the extension of the sovereignty was accomplished.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 705-719, 721-725; Dec. Dig. §223.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Trespass to try title by the State of Texas against Jose L. Gallardo and others. A judgment of the trial court for the defendants was affirmed in part and reversed and rendered in part by the Court of Civil Appeals (135 S. W. 664), and the plaintiff brings error.
    Judgment of the Court of Civil Appeals affirmed.
    Jewell P. Lightfoot, Atty. Gen., John L. Terrell, Sp. Asst. Atty. Gen., and Jas. D. Walthall, Asst. Atty. Gen., for the State. Frank C. Pierce, of Brownsville, Duval West, of San Antonio, Jas. B. Wells, of Brownsville, Don A. Bliss, of San Antonio, and Judge V. L. Brooks, amicus curiae, of Austin, for defendants in error.

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

   PHILLIPS, J.

The suit was an action by the state in trespass to try title against Jose L. Gallardo and numerous other defendants, to recover two leagues of land in Hidal-go county, referred to in the petition as all of the certain tract, known as “Los Ejidos,” that lies on the north side of the Rio Grande river. W. A. Boswell, L. D. Brooks, J. P. McDonald, and F. Spaeth were included as defendants under an allegation that they were asserting some character of claim to the land, which, according to their answer, was a claim of right to have the land awarded them by the state based upon applications to purchase. Against several of the defendants who had not answered, an interlocutory judgment by default was rendered. On the trial judgment was rendered against the state and in favor of all the defendants except Boswell, Brooks, McDonald, and Spaeth, as to whom the suit was dismissed upon the court’s finding that the state had never had any title to the land, and accordingly there was no issue between them and the state to be determined. On the appeal of the state the judgment was in all respects affirmed by the honorable Court of Civil Appeals, except as to the defendants who had not answered ; the judgment being reversed in that respect and rendered for the state.

The findings of the Court of Civil Appeals set forth in the able and exhaustive opinion of Chief Justice Key (135 S. W. 664), reveal a history of the title that may be summarized as follows:

The land in controversy is the portion lying on the north side of the Rio Grande river of four leagues granted by the government of Spain in 1767 to the town of Reynosa as “ejidos,” or town commons; the town being upon the south .side of the river, and the “ejidos” extending across it and lying in part upon its northern side. At a time not definitely shown, but' probably in the year 1801, on account of the danger from floods of the river, upon petition of its citizens the municipality of Reynosa was removed by the government to another place about six leagues away that became known as “New Reynosa.”

On August 31, 1836, when the land was within the territorial boundaries and under the political jurisdiction of the Mexican state of Tamaulipas, the alcalde of New Rey-nosa addressed 'a letter to the governor of Tamaulipas, recommending the sale of the ‘“ejidos” of Old Reynosa, stating, among other reasons therefor, that disputes had arisen among the owners of certain tracts adjacent thereto as to their respective boundaries ; that, upon the removal of the town, the “ejidos” had been abandoned and left to the exclusive use of the few who remained living there and could be easily sold to the owners of abutting porciones which had no river front on account of such location. The letter was referred to the departmental junta at the city of Victoria, which body recommended the sale by public auction to the highest bidder. On October 5, 1836, such sale was ordered by the governor of Tamaulipas. Pursuant to his order the sale of the “ejidos” was made, on November 9, 1836, at public auction by the alcalde to Eruto de Cardenas, the highest bidder, for $210, which was paid on the same day. In making the purchase, Cardenas was acting for 96 inhabitants of Old Reynosa. On November 10, 1836, the al-calde who made the sale ordered that a deed of conveyance be made to the 96 purchasers. On July 24, 1837, the alcalde ordered the land surveyed before the issuance of title. After the survey, and payment of the surveyor’s fees on September 23, 1841, a testimonio of title was issued on September 24, 1841, by the alcalde to the 96 purchasers, for whom Cardenas had acted in bidding in and paying for the land. It is conceded that Gallar-do and his associates hold title under this sale.

In the year 1871 Noberto Garza, holding a title under this sale and relying upon it, brought a suit against the state for confirmation of such title under the act of August 15, 1870, in which judgment was rendered for the state and later affirmed by this court. 64 Tex. 670. This judgment was made the basis .of a plea of res judicata urged by the state against the defendants’ title.

While no occupancy of the land at the time of the sale of November 9, 1836, was established, the proof showed that many of the defendants, Gallardo and others, had been paying taxes each upon a specified number of acres of the land, ranging from 10 to 1,500 acres, from 1879 to the time of the trial in 1909; that some of them, and their ancestors under whom they claimed, had been in possession of the land, some on the Texas side and others on the Mexican side of the river, for 40 or 50 years; that for many years two or three villages had been upon the land composed largely of claimants under this sale and their families; and that there was a tradition in the locality that the ancestors of these defendants had, from the date of the sale, claimed and held possession of the land under it.

An official map of Hidalgo county, dated April, 1880, designates the land involved as “Los Ejidos de Reynosa,” with delineation of the various porciones granted to individuals and adjacent to it, and also designating the old town of Reynosa immediately across the river on the Mexican side. Another official map of the county, dated April, 1896, contains substantially the same designations, with certain characters indicating that at some time certificates had been filed on the land. Both maps are on file in the General Land Office of the state.

The Court of Civil Appeals has further found that there was proof tending to show the Commissioner of the Land Office for 1903-09 had treated the land as titled land; that in 1905 the defendants Brooks, Boswell, McDonald, and Spaeth had each made application to purchase four sections of the land from the state; and that the county survey- or of Hidalgo county had made surveys upon each application and returned them to the Land Office, but the Commissioner had taken no action on the claims asserted under these applications.

Other than its resistance through its Attorney General of the suit filed against it by Noberto Garza in 1871, seeking confirmation of a title to land asserted under the sale of November 9,1836, the state had never contested the validity of the title held under this sale until the institution of the present suit in 1908.

As affecting the validity of the sale of November 9, 1836, under the Mexican law, the Court of Civil Appeals has further found as a fact that at that time the old town of Reynosa had been abandoned and the municipality of that name removed and established at a different place, which is supported by the proof; and that there was evidence affirmatively showing that the Mexican government had acquiesced in the validity of the title under the sale as it is related to that part of the “ejidos” lying on the Mexican side of the Rio Grande river. The land is a part of the territory lying between the Nueces and Rio Grande rivers, originally within the Mexican state of Tamaulipas, over which the Congress of the republic, as a consequence of the Revolution, asserted its sovereignty by the act of December 19, 1836, defining the Rio Grande as the southern boundary of the republic, and with respect to which the historic fact is that the jurisdiction of Texas was not in fact established or exercised, except along and near the Nueces river until after its annexation to the United States in 1845; the Mexican state of Tamaulipas continuing, during such period, to exercise its jurisdiction over that part of the territory on and near the Rio Grande, including this land. State v. Sais, 47 Tex. 307.

The main proposition upon which the state rests its claim is that the title to the land in fee was in the Mexican government, and the land passed to Texas as a part of the public domain acquired by the Revolution. This position controverts both of the propositions upon which the defendants Gallardo and others base their claims, viz.: (1) That the effect of the Spanish grant of 1767 to the town of Reynosa was to vest in its inhabitants such title or right to the “ejidos” included within it as to entitle the defendants, as their descendants and present inhabitants of the town, as against the state, to a continuance of the public use and benefit to which the “ejidos” as town commons was originally dedicated under the grant. Or, in other words, as descendants and present inhabitants of Old Reynosa, they have succeeded to the title to the “ejidos” held by the original inhabitants, which was a right to their public use incapable of divestiture by either the Spanish crown or Mexican government, and enforceable against Texas as the succeeding sovereignty on the cession of the territory.' (2) That under the sale of November 9, 1836, the purchasers, under whom they claim and hold, acquired title to the land before the sovereignty of Texas attached to the territory, to which the courts should give effect.

Apart from other questions in relation to the character of title conferred by the sale of November 9, 1836, the state urges the invalidity of that sale under the Mexican law upon the ground, it is said, of the want of any authority in the governor of Tamaulipas to order it, in the absence of affirmative evidence of a previous approval by the supreme government. This contention is based upon provisions of the law of October 3, 1835, enacted or decreed by the Mexican assembly and certain regulations decreed by the president ad interim in its connection, particularly regulation No. 13, to this effect: “Until the attributes of the government and departmental boards in what relates to the treasury are declared by law (which was not done until April 17, 1857), said governors shall mate no sale of lands (fincas) or property (bienes) nor contracts nor extraordinary expenses for said departments, without the previous approval of the supreme government.” It is further said that the governor of Tamaulipas was without authority to make the sale under the treasury regulations of the Mexican government of July 20, 1831. It was this law of October 3, 1835, which reduced the Mexican states to the rank of departments, and transformed the federal system into a centralized government, denounced as an act of usurpation in the Texas Declaration of Independence. At this period Santa Anna had and used the power of a dictator in Mexico. The act of assembly continued the governors of the different states in office, subject to the supreme government of the nation. Whatever may have been the effect of the treasury regulations of 1831, if any force be given to the regulations decreed by the president ad interim under the law of October 3, 1835, as is urged should be done, it must be conceded, we think, that under regulation No. 13, above quoted, the power of the governors of the states to make sales of land was distinctly recognized, with only the limitation that, until the attributes of the government and the departmental boards in relation to the treasury were declared by law, the power should be exercised only upon the previous approval of the supreme government. In ordering the sale in question, the governor of Tamaulipas acted in his official capacity and under purported authority. His act was but the exercise of a power, not denied to him but recognized by the regulation quoted. The previous approval of the supreme government was necessary, it is true, to its exercise under the provisions of the regulation. But the question that here arises is: Should it not be presumed after this long lapse of years, in the light of our knowledge of the conditions that then obtained in that country, that such previous approval of the sale by the supreme government was given? We think so, under established principles in relation to the acts of public officers in their official capacity under purported authority, as to which legitimate rather than usurped authority is presumed. United States v. Peralta, 19 How. 343, 15 L. Ed. 678; Strother v. Lucas, 12 Pet. 410, 9 L. Ed. 1137; Railway v. Jarvis, 69 Tex. 541, 7 S. W. 210. It would seem, from the terms of the law of the assembly and the edict of the president ad interim, that during this period that official was himself the supreme government of the nation; and, as is well observed in the opinion of Chief Justice Key, it does not appear but that such approval was subject to be given in a purely informal manner. It is familiar knowledge that, subsequent to the time in question, al-caldes, acting under .the direction of the governors, issued titles in various states of Mexico, and the validity of such titles has been recognized by that government; and, as we have before said, there was evidence in this case tending to show affirmatively that it had acquiesced in the validity of the title under this sale to that part of the land sold, lying on the southern side of the Rio Grande. The notorious claim under the title,’ the long-continued possession of the land in virtue of it, and the acquiescence in its validity by distinct governments for the period of time here shown, all combine to warrant the presumption that such approval by the Mexican authorities, as was necessary to the validity of this sale, was given. In one of his opinions in regard to the presumption of the issuance of a grant, Lord Kenyon speaks of a case being such as to justify the presumption of 100 grants, if necessary to sustain the right; and that observation might justly be applied here, so far as the case involves the question of the approval of this sale by the Mexican government.

Two further propositions advanced by the state will be briefly discussed before passing to what we regard as. the more important question in the case. One is that the judgment in Garza et al. v. State, by which the confirmation of a title to land resting upon this sale was denied, is conclusive of the validity of the title as to all land held under it, and binding upon these defendants. That suit was brought .under an act making special provision for suits of that nature. There is nothing in the act that suggests that judgments rendered in such suits should affect the title of others than the parties to them and their privies, whose rights alone were put in issue, or that the effect of an adverse adjudication in respect to any certain title upon such proof as the particular plaintiff might offer was to invalidate it as to all other persons claiming thereunder, though not before the court and therefore without opportunity to be heard. As illustrating the injustice of such a holding the claimants in the Garza Case were denied a confirmation of their title because, as appears from the opinion, they failed to show any sale of the land prior to December 19, 1836, which, if shown together with payments of the purchase money, would have created a perfect title according to the opinion, whereas in this case the fact of the sale and such payment, both before December 19, 1836, was "clearly established. It is sufficient to say that that judgment could have no effect upon the defendants here, between whom and the plaintiffs in that suit there is no privity.

The other proposition of the state is that the title of the defendants, if ever valid, was rendered null and void because the field notes to the land were not returned to the Land Office on or before August 31, 1853, as required by the act of February 10, 1852 (Laws 1851-52, c. 69), which provided: “That the field notes of all surveys made previous to the passage of this act, shall be made out and returned in the manner now required by law, to the General Land Office, on or before the thirty-first day of August, 1853, 'or they "shall become null and void, and the said surveys shall become vacant land,” etc. We do not think this act indicates any purpose of the Legislature to deal with titles issued by a former government, which upon just principles were entitled to be upheld by the courts of the state. It plainly has reference in our opinion to surveys made under authority of laws enacted by the republic or the state. Had the purpose of the act been to thus destroy titles issued under a former sovereignty and deserving of recognition under our own, it would have been written in broader terms, we think, than those having relation only to the field notes of surveys.

We do not subscribe to the view that the title of the defendants should be upheld under the Spanish grant to the town of Reynosa of the “ejidos” in question. Under the Spanish law the title in fee to such lands granted to a town and dedicated to a public use remained in the crown, never vesting in the municipality or its inhabitants. It may be difficult to state with precision the exact nature of the title conferred upon towns under such grants, as said in Townsend v. Greeley, 5 Wall. 336, 18 L. Ed. 547; but it was clearly not an indefeasible title, and there was no ownership of the lands in the towns or their inhabitants. Id. The most that can be said for the title of the towns or their inhabitants under such a grant of land for town commons is that they acquired such right as to withdraw the land from commerce and render it inalienable by the king so long as it remained dedicated to an essentially public use. Dittmar v. Dignowitty, 78 Tex. 22, 14 S. W. 268. Upon the question of the nature of the right or title acquired by towns or their inhabitants under the Spanish law to lands of this character, no more than this is affirmed in New Orleans v. United States, 10 Pet. 662, 9 L. Ed. 573, or in Lewis v. San Antonio, 7 Tex. 317, and San Antonio v. Lewis, 15 Tex. 388, which quote from the decision of New Orleans v. United States with approval, and no further right in the municipalities or their inhabitants to “ejidos” or town commons under Spanish grants, as it existed Under the Spanish sovereignty, can be grounded on the doctrine announced in those cases. It may be observed that the later decisions of the United States Supreme Court in United States v. Santa Fé, 165 U. S. 675, 17 Sup. Ct. 472, 41 L. Ed. 874, and United States v. Sandoval, 167 U. S. 278, 17 Sup. Ct. 868, 42 L. Ed. 168, announce a different rule as deduced from the Spanish law upon this question as related to outlying lands, such as would seem to necessarily include town commons for pasturage, to which it might be considered a town was entitled under its grant, from that declared in New Orleans v. United States. In these cases it is said that under the Spanish law the power of the crown to dispose of such lands was unlimited so long as they were not affected by individual rights; a statement from the opinions being to the effect that “the unquestioned power (was) lodged in the king of Spain to exercise unlimited authority over the lands assigned to a town and undisposed of and not the subject of private grant.” The effect of these decisions is a plain denial of the proposition that under Spanish grants there is in such towns or their inhabitants such character of title to such lands as, in the absence of confirmation by its political authority, may be successfully asserted against the succeeding sovereignty. The legislation by Congress and of this state, in various instances, expressly confirming to such towns their ancient commons under these grants, in addition to this authority, indicates this conception of the'nature of their title and that their possession of any other than such right as was at best imperfect has never been recognized either by the United States or Texas. We are advised of no holding in this state to the contrary. In Lewis v. San Antonio it will be noted that by an act of the Congress of the republic the city of San Antonio had been expressly confirmed in its commons held under the original grant, an act of the political authority which undeniably foreclosed any contention that thereafter they could constitute any part of the public domain of the state. There is nothing in the opinion of Judge Lipscomb in that case which supports the view that in the absence of confirmation the city or its inhabitants would have had an absolute title to the lands as against the state.

Under any view the control and regulation of the use of such lands was in the government; and it is clear, we think, that upon the abandonment of their public use they reverted to the sovereign. We have in tais case a distinct finding of the Court of Civil Appeals, supported by the proof, to the effect that, upon petition of its inhabitants, the location or situs of the original town of Rey-nosa was abandoned, the town removed and established by the government at a different place. This necessarily terminated the public use of the lands and relieved them of their former character. The fact that a few of the inhabitants clung to the old site and remained behind could not have the effect to preserve the public use for their benefit.

The claim of the defendants, therefore, must necessarily rest upon such title as was acquired under the sale of November 9, 1836, authorized by the governor of Tamaulipas. Upon this feature of the case we do not deem it necessary to reopen the question urged by the able counsel for the state as to whether property rights within the territory, over which the sovereignty of Texas was extended,’were within the protection of the treaty of Guadalupe Hidalgo. That, in relation to such rights, that treaty has the force of law in Texas has been repeatedly affirmed by this court. State v. Sais, 47 Tex. 307; Clark v. Hills, 67 Tex. 141, 2 S. W. 356; Haynes v. State, 100 Tex. 426, 100 S. W. 912.

We furthermore regard it as established in this state, under these decisions and' others and in the light of the state’s legislation, that a title to lands within the original Mexican state of Tamaulipas and the present boundaries of Texas that was good as against the Mexican government on December 19, 1836, the date of the act of the Congress of the republic defining the boundaries of Texas so as to include that territory, is within the protection of the treaty and entitled to recognition in the courts. The rights of the defendants should be determined, therefore, by the character of the title under which they claim as it existed on December 19, 1836.

A thorough consideration of this question in the case has convinced us that, in a court of law and right whose duty it is to administer the justice of the law, no sound reason can be urged why a title shown to have been matured by acts of the sovereign government and conduct of parties in reliance upon such acts to the extent this title was on December 19, 1836, should not be protected and upheld. The application of the alcalde that the land be sold was made to the governor on August 31, 1836. This application was referred by him to the departmental junta for their approval, the status of' the state being then that of a department of the general government, and that body recommended the sale. Upon this recommendation it may be assumed the governor ordered the sale, on October 5, 1836. It was conducted in the manner ordered, and completed on November 9, 1836. The subject-matter of the sale was a body of land having a distinct identity under the law and in fact, with a survey only necessary to define its exact boundaries. The purchase was made by those under whom the defendants claim, acting through Cardenas, who bid in the land. The purchase money was paid on November 9, 1836, and on November 10, 1836, the alcalde making the sale ordered that a deed of conveyance be made to the purchasers. Everything necessary to make up and complete the right of the purchasers to receive the absolute legal title was done both by them and the government through its officials prior to December 19, 1836, and upon that date nothing was left undone by either that could constitute the substance of the right

On December 19, 1836, the purchasers under this sale stood invested with a clear right to receive from the sovereign government the legal title to the land, not as a matter of grace, but of right, unless it be denied that individuals in the purchase of public domain from a government in the manner both authorized and pursued by it in the transaction can acquire any rights against it until its conveyance of the title, a proposition to which no court would give tolerance, much less its sanction. Unless importance be attached to the fact that no survey of the land had been made prior to December 19, 1836, what possible element was wanting to perfect the right of the purchasers under this sale to receive the full legal title? As has been said, the land had its distinct identity as four leagues, and its general extent was known and recognized, and it was capable of having its exact boundaries defined, as was thereafter done. The direction for a survey in the order of the alcalde of November 10, 1836, wherein the conveyance was ordered to be made, plainly deals with the survey only as an incident of the sale rather than as in any manner affecting the right of the purchasers to the land, or to receive the deed of conveyance. The same is true in respect to his direction that the names of the purchasers be furnished. In Fremont v. United States, 17 How. 542, 15 L. Ed. 241, where a grant of a Méxican governor of California was simply of ten square leagues of land within a certain district, the same objection was urged that the grantee acquired no vested interest until the land was surveyed and the part to be granted severed by lines or known boundaries from the public domain; but it was held that, as between the grantee and the government,' he had a vested interest in the quantity of land mentioned in the grant, and that the right to so much land, to be afterwards laid off by official authority in the territory described, passed from the government to him under the instrument. The description in this order is more definite than the description in that grant. The order directs the conveyance of “the four leagues which served as ‘ejidos’ to Old Reynosa,” identifying the land by location as well as defining its quantity. If a grant in such terms would have passed a vested interest in the land, as against the government, notwithstanding there had been no survey, the right of these purchasers to receive the legal title from the government was not affected by the mere lack of a survey. In other words, the survey was not a condition precedent to the maturing of their right to the land. It was something to be done before the legal title passed, but it was not a condition to be performed before the vesting of the right to receive the legal title. Such right was matured by the purchase and the payment of the purchase money. That in virtue of such acts these purchasers were, on November 10, 1836, entitled to receive a deed of conveyance is evidenced and confirmed by the alcalde’s order of that date that the deed be made. There is nothing in the order indicating anything less than a plain recognition of their right to receive the. legal title, or, in respect to the survey and the listing of the names of the purchasers, anything more than a provision for the execution of a proper and sufficient deed for the conveyance of such title.

B’ollowing these acts in relation to this sale, as has been previously stated, on July 24, 1837, the alcalde ordered the land surveyed before the issuance of the title. Whatever construction he placed upon this order, it could have no bearing in the case, since, prior to that time, the republic had asserted its sovereignty over the territory by the act of Congress of December 19, 1836. One of the contentions of the state is that the sovereignty of Texas over this territory attached at even an earlier date. To affirm the sovereignty of Texas over this territory on July 24, 1837, is, of course, to deny any effect to the order of that date of a Mexican official in relation to land within it, as the order could be of no force in respect to the title to land then under the sovereignty of Texas. However, the survey was made, the fees of the surveyor were paid on September 23, 1841, and a testimonio of title was issued to the purchasers on September 24, 1841, during which time the territory was in the actual possession of the Mexican government and under the administration of its political authority; the sovereignty of Texas over it not being accomplished in fact until the year 1846. There is presented, in other words, a case where prior to the assertion by Texas of its sovereignty, there was such perfection of the right as entitled those under whom the defendants claim to the legal title to the land, and where, prior to the accomplishment of its sovereignty in fact, the legal title was actually acquired.

It may be well doubted whether this title, as it stood on December 19, 1836, should be regarded as imperfect, even under a rigorous application of the rule that such titles are without standing in the courts of the succeeding sovereignty and must depend upon its political authority for recognition. It is clearly such a title as the Mexican government was in right bound to recognize, and as ought to have secured the full legal title at its hands but for the interruption of its sovereignty as the- result of the act of the Texas Congress of December 19, 1836, and such as did in fact secure- the full legal title from its accredited authorities before its sovereignty was actually supplanted; and unless it be true that under the rule referred to any title, however perfect in right an'd good in conscience, is imperfect and not entitled to judicial cognizance unless it be a full legal title, which may be questioned, we think a court would be slow in the use of its power to destroy a title of. this character under the supposed sanction of such rule of decision. But if, in the strictest sense, it be treated as an imperfect and unconfirmed title, is not the question presented here under such conditions as lay within the prophetic vision of Chief Justice Hemphill, when, in 1 Tex., discussing the rule for which the state contends, he said: “It is not necessary, in this case, to express any opinion as to the equities which may arise from long possession under incomplete titles, or where the boundaries are sufficiently defined by description or survey, etc., and how far, and under and against what claims it might be in the power of the courts of justice to afford any protection, wliere action has not been taken by the political authority. Such questions can be determined when distinctly presented for review and decision.” Trimble v. Smithers’ Adm’r, 1 Tex. 809.

The court was confronted with the question in Haynes v. State, 100 Tex. 426, 100 S. W. 912, and determined it as we think it ought to be determined here. There citizens of this same Mexican state had, prior to December 19, 1836, done all that was necessary to acquire the right to have the legal title issued to them, but it had not been issued at that date, as is here the case. The legal title was issued in 1848, when Tamaulipas had lost actual sovereignty over the lands, whereas here it was issued while the actual jurisdiction of Tamaulipas endured. The same element of long possession under the claim of right was presented. In the suit by the state for the land it was held: “If, therefore, the evidence introduced upon the trial shows that Antonio Zapata was, on the 19th day of December, 1836, entitled to have a grant issued, the state ought not to recover the land in controversy, because silch title would be protected by the treaty of Guadalupe Hidalgo. It is true that the Attorney General insists that the facts do not establish such a title' as would be embraced in the terms and protection of that treaty, but we are of opinion that the position is not .well taken. * * * The facts of this case established that Zapata, under whom the plaintiff in error claims, had, on the 19th day of December, 1836, done all that the law required of him, and was entitled under the laws of Tamaulipas to receive from the governor of that state a grant for the live leagues of land. It follows from this conclusion that we must reverse the judgments of the district court and of the Court of Civil Appeals.”

There is no substantial difference between the two eases. The title there considered, resting upon a right acquired before the date of the assertion of Texas sovereignty over the territory, had received no connrmation from the political authority of the state, and, under such application as the state here contends should be made of the doctrine we have above referred to, could have had no better standing in the courts than the title involved in this case. This is in one respect the stronger title, as here the payment of the purchase money for the land was clearly established, whereas in that case such payment was not shown but it was held should be presumed. That title was less than a full legal title on December 19, 1836, as is- true in respect to this title on that date, though resting, as does this title, upon a perfected right to the legal title. Upon the same considerations that are present in this case, the considerations of good conscience, right and simple justice, and a faithful observance of the obligations proceeding from a solemn treaty, this court held plainly and directly that such a title should not be destroyed by the courts but should be given effect. The ruling there announced cannot be regarded as other than conclusive of the vital question in this case.

We have given the case the careful consideration that we have felt it deserved. We are convinced that the judgment of the Court of Civil Appeals should be affirmed; and it is so ordered.

Affirmed.

HAWKINS, J., did not participate in this decision.


author: BROWN, C. J.

text:
    GLASS et al. v. POOL et al.
    (No. 2617.)
    (Supreme Court of Texas.
    Feb. 18, 1914.)
    1. Constitutional Law (§ 48) — Statutes— Construction Favoring Validity.
    If a statute is not manifestly in conflict with some provision of the Constitution, it must be sustained by the courts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.]
    2. Constitutional Law (§ 48) — Construction in Favor or Constitutionality.
    In testing the constitutionality of a statute, the language must receive such construction as will conform it to any constitutional limitation or requirement, if it be susceptible of such interpretation.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.]
    3. Constitutional Law (§ 70) — Judicial Powers — Validity or Statutes.
    Statutes cannot be declared invalid on the ground that they are unwise, unjust, unreasonable, immoral, or because opposed to public policy or the spirit of the Constitution, and hence, as. Acts 33d Leg. c. 35, § 7, creating the Clifton, independent school district does not conflict with any specific provision of the Constitution, it is not invalid, though its passage was procured by fraud, and it is unfair.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.]
    4. Statutes (§ 96) — Public Schools — Statute.
    Acts 33d Leg. e. 35, § 7, creating the Clifton independent school district, and providing for the management of the affairs of the district by trustees, is not in violation of Const. art. 3, I 56, prohibiting local or special laws creating offices in. school districts; school trustees being provided for by general statutes.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 107; Dec. Dig. § 96.]
    5. Schools and School Districts (§ 99*)— Public Schools — Powers of Districts— Purchase of Sites.
    Under the constitutional provision authorizing an additional tax within the school districts for the erection and equipment of buildings, Rev. St. 1911, art. 2857, authorizing the purchase of sites and the issuance of bonds for that purpose, is valid; the right to build schoolhouses carrying with it, the authority to purchase sites.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 233, 234; Dec. Dig. § 99.]

      Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by Tom M. Pool and others against J. T. Glass and others. From a judgment for plaintiffs, defendants appealed to the Court of Civil Appeals,- which certified questions to the Supreme Court.
    Questions answered.
    S. P. Sadler, of Gatesville, and James M. Robertson, of Meridian, for appellants. H. J. Cureton and B. J. Word, both of Meridian, and W. F. Ramsey and C. L. Black, both of Austin, for appellees.

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

   BROWN, C. J.

We copy the statement submitted by the Court of Civil Appeals to this court:

“Tom M. Pool and the other appellees in this case filed their petition before the Hon. O. L. Lockett, judge of the Eighteenth judicial district, complaining of J. T. Glass and the other appellants, seeking to prevent by the aid of a writ of injunction the issuance and sale of certain bonds by the Clifton independent school district, and, from- a judgment granting such relief, the defendants have appealed.
“Briefly stated, the complainants’ petition alleges that the defendants Glass, Clements, Nelson, Olsen, Butler, and Parks are the acting trustees of the Clifton independent school district; the defendant Thomas is tax assessor of Bosque county; the defendant Moorland tax collector of Bosque county; defendant Looney is Attorney General and the defendant W. P. Lane comptroller of the state of Texas, respectively; that during the regular session of the Thirty-Third Legislature of Texas a special or local law was passed without the constitutional notice in advance creating the Clifton independent school district in Bosque county, Tex., with field notes as set forth in that act; that the complainants are owners of real estate subject to taxation situated within the boundaries of said proposed school district; that, id gross disregard of plaintiffs’ rights and of the rights of other citizens of Bosque county, Tex., similarly situated, the Legislature in creating said district formed a district in an irregular, oblong shape of an average width of 1 to 1% miles, extending north of the town of Clifton, which is situated within such district, for a distance of approximately 4 miles and south approximately 5 miles; that the lines of the district are so run as to follow approximately the contour of the rich valley of the Bosque river, including therein the valuable farming lands of the' complainants and others, and carefully excluding therefrom the rough cheaper uplands upon which the plaintiffs reside, thereby excluding them from the benefits of the Clifton public free school and of the taxes to be raised by. assessment on their property. The complainants allege, further, that many of those whose residences are situated within the district are at a distance so remote from the Clifton public school building that it is impossible for them to patronize the same, and that, by reason of the narrow and irregular shape of said district, many other resident citizens of Bosque county who are just outside the territorial limits are yet so near to the Clifton school and so inconveniently and remotely situated from other school districts and schools as that it will be necessary for them to transfer annually to the Clifton independent school district, in which event such parents transferring their children will, lose the benefits of such special taxes as may be levied upon their farm lands included in the district. They further allege that, by reason of the fact that the most valuable portions of their lands have been included in the Clifton independent school district, that it will be impossible for them to raise by taxation any reasonable sum for the maintenance of schools in any other independent or common school district which is in existence or may be created to include their residences. In short, upon this point the substance of the complaint is that a ‘few citizens residing within the corporate limits of Clifton, conspiring to lay out a district solely for the benefit of the school children in the town of Clifton, and in high-handed and negligent disregard of any rights that scholastic populations within the local district had, willfully, and falsely, and knowingly represented to the Legislature, and willfully, falsely, and knowingly represented to the Governor, that the great majority of the people affected by said district were favorable to the same, and in so doing they caused the Legislature to perpetrate a legislative fraud, and have caused the same to attempt to create a district in violation of the rights of the school children of the farmers whose lands are taken into the district and attached to the town of Clifton for the selfish purpose of building up a school for the children of Clifton only.’ The special act creating the Clifton independent school district is pleaded in hrec verba as it appears in the Local and Special Laws of Texas, Regular Session, Thirty-Third Legislature, p. 107.
“The complainants allege that the defendants named as trustees are making an effort to issue coupon bonds of said district in the sum of $25,000, payable 40 years after date, with 5 per cent, interest, for the purpose of purchasing a site and erecting a school building in the town of Clifton; that an election for such purpose has been held and the result declared favorable; and that, unless a writ of injunction is issued restraining them and the Attorney General and the state comptroller, such bonds will be approved and registered and sold, and a lien thereby created for the full period of 40 years against complainants’ land. The complainants attack the validity of the act of the Legislature creating the Clifton independent school district upon the ground that the same violates the following provisions of the state Constitution, to wit: Section 1 of article 7, section 56 of article 3, section 3 of article 7, as well, also, as those provisions of the federal and state Constitutions against depriving any citizen of property, privileges, or immunities except by due course of law of the land. Const. U. S. amend, art. 5; State Const. § 19, art. 1. The complainants allege that, in the event the said special act creating the Clifton independent school district is not invalid, yet the attempt of the defendant trustees to issue bonds and thus create a lien upon complainants’ property for the purpose for which such bonds are proposed to be issued, to wit, the purchase of a site for a public school building in said town of Clifton, is without authority in law and void, and they therefore are entitled to the relief sought. For a fuller statement of the issues and of the facts bearing upon them, your honors are referred to the pleadings and the agreed statement of the facts contained in the transcript which will accompany this certificate.
“The case was tried before the honorable district court upon appellants’ demurrers and motion to dissolve upon an agreed statement of the facts, and, as already stated, judgment was entered perpetually enjoining the defendants from proceeding further in their efforts to procure and cause said bond issue. The agreed facts found in the record abundantly support the allegations of complainants’ petition. The ease is regularly before this court on appeal, and, in view of the importance of the questions involved affecting, as they do, not only the validity of the Clifton independent school district, but probably many others as well, we deem it proper to certify to your honors the following questions:
“First. Is the special act of the Thirty-Third Legislature creating the Clifton independent school district (Local and Special Laws of Texas, Thirty-Third Legislature, p. 107) invalid under the facts alleged and proved in this case? And,
“Second. If not, did the trial court err in perpetually enjoining the appellants from the issuance of the proposed bonds of the Clifton independent school district for the purposes named?”

We answer that the act referred to in the first question was and is valid. And we further answer the trial court erred in granting and in perpetuating the injunction, thereby preventing the officers of the Clifton school district from issuing the bonds of the district, as authorized by the votes of qualified voters of that district.

We will discuss the two questions together, as both depend upon the validity of the statute incorporating the district which authorized the bond issue.

If the statute is not manifestly in conflict with some provision of the Constitution, then we must sustain and construe it as we find it expressed. In testing the constitutionality of the statute in question, the language must receive such construction as will conform it to any constitutional limitation or requirement, if it be susceptible of such interpretation, and the law here brought into question must be^sustained, unless it be clearly in conflict with some provision of the Constitution.

In the form of counter propositions counsel for appellee present these grounds of invalidity of the law creating the Clifton independent school district: (1) The form of the district which excludes appellees from its benefits. (2) That the act does not provide an efficient system of free schools, and is void. (3)The Legislature has no power to create a school district in such form as to destroy adjacent districts, etc. Many decisions of other states are cited; but none of them is more pertinent than the case of Junction City School Incorporation v. Trustees of School District No. 6, 81 Tex. 148, 16 S. W. 742. That district was created by the county court, which had no authority except what the law granted; but in the present case the Legislature had all power not denied to it by the Constitution. The case of Parks v. West, 102 Tex. 11, 111 S. W. 726, is not in point, for there the Legislature formed a district embracing territory in more than one county, which this court held to be forbidden by the Constitution. Neither of the cases cited are in conflict with the validity of the act involved in this proceeding.

Before discussing the provisions of the act creating the district which are assailed as rendering the act void, we will consider the charge of unfairness to plaintiffs and others in the creation of the district. The following statement of the law answers the plaintiff’s attack fully, and needs no argument to show its conclusiveness: “Statutes cannot be declared invalid on the ground that they are unwise, unjust, unreasonable or immoral, or because opposed to public policy, or the spirit of the Constitution. Unless a statute violates some express provision of the Constitution, it must be held to be valid.” 1 Lewis’ Sutherland, Statutory Construction, § 85.

The law in this respect has not been shown to be in conflict with the Constitution in any particular; therefore no court in this state has power to right that wrong, if it be such. This conclusion ' embraces all of the objections which relate to the unfairness, injustice, and wrong to the complainants, whether they occurred through fraud, inadvertence, or want of information; all of these matters were settled by enacting the law. We will not discuss them in detail.

Article 3, § 56, of the Constitution provides: “The Legislature shall not, except as. otherwise provided in this Constitution, pass, any local or special law, * * * creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts.”

Counsel for appellees insist that the act creating the district violates that provision in that -it creates offices and names officers. The school trustee was not a new office within the meaning of the clause of the Constitution copied above. The aot simply adopted the name and provided for the management of the affairs of the district by trustees, which office existed, being named in the general law and in many special acts. Neither did the Legislature appoint any officer, but within the authority to create the district continued the existing trustees in office until those provided for in the bill should be elected.

With much earnestness counsel urge the proposition that the proposed bond issue is void, because the act provides: “That the Clifton independent school district shall have and exercise, and is hereby invested with all the rights, powers, privileges and duties granted under and by the General Laws of this state, to independent school districts for free school purposes only, and the board of trustees of said Clifton independent school district shall have and exercise, and are hereby invested and charged with all the rights, powers, privileges and duties conferred and imposed by the general Laws of this state upon the trustees of independent school districts.” Special Laws, Regular Session, 1913, i 7, p. 109.

The general law regulating free schools contains this provision: “Art. 2857. Local Taxes; Bonds. — Trustees of a district that has been, or may hereafter be, incorporated under general or special laws, for school purposes only, shall have power to levy and collect an annual ad valorem tax not to exceed fifty cents on the one hundred dollars valuation of taxable property of the district, for the maintenance of schools therein, and a tax not to exceed twenty-five cents on the one hundred dollars for the purchase of sites and the purchasing, construction, repairing or equipping public free school buildings within the limits of such incorporated districts; provided that the amount of maintenance tax, together with the amount of bond tax of the district, shall never exceed fifty cents on the one hundred dollars valuation of taxable property. Said trustees shall have power to issue coupon bonds of the district for building purposes, to be made payable not exceeding forty years from date, in such sums as they shall deem expedient, to bear interest not to exceed five per cent, per annum; provided, that when such buildings are to be wooden the bonds herein provided for shall not run for a longer period than twenty years; provided, that the aggregate amount of bonds issued for the above named purpose shall never reach such an amount that the tax of twenty-five cents on the hundred dollars valuation of property in the district will not pay current interest and provide a sinking fund sufficient to pay the principal at maturity; and provided, further, that no such tax shall be levied and no such bonds issued until after an election shall have been held, wherein a majority of the taxpaying voters voting at said election shall have voted in favor of the levying of said tax, of the issuance of said bonds, or both, as the case may be; provided, that the specific rate of tax need not be determined in the election.”

Counsel assert that the law which authorizes the trustees of school districts, general and independent, to purchase “sites” for school buildings is void, because it is not authorized by this provision of the Constitution: “And the Legislature may authorize an additional ad valorem tax to be levied and collected within all school districts, heretofore formed or hereafter formed, for the further maintenance of public free schools, and the erection and equipment of school buildings therein.”

The literal construction of the Constitution insisted upon would destroy the bonds heretofore issued by school districts and create confusion in the management of the public free schools. But we have no hesitancy in holding the granting of the authority to build schoolhouses implies the authority to purchase the land on which it is to be erected. 2 Lewis’ Sutherland, Statutory Construction, §§ 502, 503, and 504.

There can be no controversy as to the power under that provision to purchase “sites,” the land on which to erect the buildings. The plain words quoted answer the objection so earnestly pressed upon the court. Argument would be superfluous.


text:
    BOTSFORD, DEATHERAGE, YOUNG & CREASON v. HAMNER.
    (No. 7868.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 7, 1914.
    Rehearing Denied April 18, 1914.)
    1. Attorney and Client (§ 145) — Breach-Forfeiture.
    A judgment debtor pledged notes of third persons with defendant, the attorney of the judgment creditor, to secure the judgment, and thereafter transferred his equity to secure a debt which he owed plaintiffs, and subsequently transferred the notes to the judgment creditor, under an agreement between plaintiffs and the attorney that the latter should collect the notes and, after retaining his compensation, divide the balance between the judgment creditor and plaintiffs. The attorney sued in the name of the judgment creditor on the notes, and judgment was obtained on the original pleadings. Held, that the failure of plaintiffs to serve process in the action on request of the attorney did not justify the attorney in claiming a forfeiture of plaintiffs’ rights under the contract, especially where proper service was procured in due time.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 334, 335; Dec. Dig. § 145.] .
    2. Attorney and Client (§ 129) — Contract of Employment — Breach—Forfeiture.
    Where an attorney contracted to collect notes transferred to his client to secure a judgment in her favor, and divide the proceeds between his client and plaintiffs after deducting his compensation, and the attorney collected the notes by action in the name of the client, but failed to pay to plaintiffs their share of the proceeds, an action by plaintiff's was properly brought against the attorney, and not against his client.
    [Ed. Note. — For other cases,, see Attorney and Client, Cent. Dig. §§ 284-291; Dec. Dig. § 129.]
    Appeal from District Court, Nolan County ; W. W. Beall, Judge.
    Action by Botsford, Deatherage, Young & Creason against Ed J. Hamner. From a judgment for defendant, plaintiffs appeal.
    Reversed and rendered.
    Crane & Bondies, of Sweetwater, for appellants. Geo. T. Wilson, of Sweetwater, for appellee.

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

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

   DUNKLIN, J.

This suit was Instituted by Botsford, Deatherage, Young & Creason against Ed J. Hamner, and from a judgment in favor ‘of the defendant, plaintiffs have appealed.

The defendant, as attorney for Mrs. Bettie F. Smith, recovered a judgment in favor of Mrs. Smith against R. B. Pyron, who, in order to secure payment of the same, hypothecated with Hamner three promissory notes, two for $1,000 each and one for the sum of $2,000, payable to the order of Pyron and executed by Sidney P. Allen and W. A. Rule. Pyron then transferred his equity in those notes to the plaintiffs, who were residing in Kansas -City, as security for the payment of certain indebtedness which he owed to them. A correspondence then ensued between plaintiffs and Hamner, who resided in Colorado City, Tex., relative to the collection of the Rule and Allen notes held by Hamner, the face value of which was in excess of the judgment in favor of Mrs. Smith against Pyron; plaintiffs’ purpose being to realize any amount that might be collected on those notes over and above the amount of Mrs. Smith’s judgment. The correspondence began with a letter from plaintiffs to the defendant, dated July 8, 1908, calling attention to the fact of the assignment by (Pyron to plaintiffs of his equity in the notes to secure his indebtedness to the plaintiffs, stating that Rule had assured plaintiffs that he would pay the notes in the near future, and requesting Hamner that he would remit to the plaintiffs any balance remaining after the payment of Mrs. Smith’s judgment. A reply to this letter was written by defendant and dated July 10th, suggesting that plaintiffs make certain investigations relative to the notes, and inclosing copies of letters he had written to Rule and Allen relative thereto. On July 25th defendant wrote plaintiffs another letter, stating that the writer was of the opinion that the notes could be collected by suit, but that in order to do so it would be necessary for Py-ron to transfer the title of the notes to Jack M. Smith, plaintiff in the judgment for the payment of which the notes had been hypoth-ecated, and that, if Pyron would execute such a transfer, the writer would proceed to collect the notes and, after deducting from the amount collected the expenses of collection, including all costs incurred and 10 per cent, attorney’s fees, asAo of the balance remaining would be applied to the judgment in favor of Jack Smith and V40 would be applied to the debt which Pyron owed the plaintiffs. In this letter the defendant re1 quested plaintiffs to see Pyron at once and have him execute such a transfer and to report to the writer promptly. It was shown beyond controversy that in this and all other letters from defendant to plaintiffs reference to the judgment as being in favor of Jack M. Smith was a clerical error; that the judgment was in fact owned by Mrs. Bettie F. Smith.

Thereafter numerous letters passed between the parties, indicating an effort on plaintiffs’ part to get Rule and Allen to pay the notes without suit and a willingness on the part of plaintiffs to accede to the proposition made by the defendant in his letter of July 25th, in the event a suit should become necessary to collect the notes. On August 17th defendant addressed another letter to plaintiffs, insisting that Pyron exéeute the transfer of the notes, with an agreement to divide the proceeds as suggested in his letter of July 25th. On September 2d he wrote plaintiffs another letter, inclosing a transfer to be- signed by Pyron in accordance with the proposition already made, and requesting that plaintiffs have Pyron execute the same, and that, when executed, it be returned to the writer. Plaintiffs replied to this letter, stating that the transfer had been forwarded to Mr. Pyron, with the request that he execute it at once. On October 8th Pyron did execute and acknowledge the transfer, and on October 13th plaintiffs inclosed the same in a letter to the defendant, reading as follows: “Bob Pyron arrived here two or three days ago, and while here he signed and acknowledged the instrument which you wanted in order to institute suit against Rule and Allen on the notes, and we herewith inclose the same. I saw Mr. Rule twice last week, and each time he made promises to pay the interest, bnt somehow he has never succeeded in paying over any money, and I don’t know of anything to do, or that can be done, except to follow your line.”

The transfer so executed reads as follows:

“State of Texas, County of Mitchell.
“Whereas, the undersigned, R. B. Pyron, is indebted to Bettie F. Smith, plaintiff in cause No. 1111, in the district court of Mitchell county, Texas, against R. B. Pyron, wherein the said plaintiff on June 28, 1907, recovered judgment against said defendant for the sum of $3,343.35, together with interest on said amount from that date until paid at the rate of 10% per annum; and, whereas, heretofore said defendant R. B. Pyron placed with Ed J. Hamner, Esquire, three (3) certain promissory notes • executed by Sidney P. Allen and W. A. Rule on the 1st day of July, A. D. 1907, all of which said notes matured one year after date thereof, each being payable to.R. B. Pyron or order at the National Bank of Commerce, Kansas .City, Missouri, with interest from date thereof at the rate of six (6%) per cent, per an-num, interest payable semiannually, said interest to be compounded if not paid as specified in the face of said notes, said notes being indorsed by me. The two notes for $1,-000.00 each have a credit on .each note of $30.00, and the one note for $2,000.00 bears a credit of $60.00, being the interest paid thereon for the first six months after their date, said credits being made on January 2, 1908. Said notes were given to said Ed J. Hamner by me as security for the Judgment of said Bettie P. Smith, above mentioned. And, whereas, said notes have not been paid off nor satisfied, and it will be necessary to take proceedings to secure their payment:
“Now, therefore, I, R. B. Pyron, the owner of said notes, for and in consideration of one ($1.00) dollar cash in hand paid by said Bettie F. Smith, and the agreements herein contained, do hereby sell, transfer, assign, and set over said notes to the said Bettie P. Smith, upon the following terms' and conditions, to wit:
“First: Said Bettie F. Smith is to use due diligence to collect said notes, and after the payment of ten (10%) per cent, attorney’s fees, and all expenses necessarily incurred in the exercise of due diligence to collect said notes, is to retain thirty-three fortieths (ssAo) of the proceeds of said notes, and is to remit to Botsford, Deather-age, Young & Oreason, attorneys, at Kansas City, Missouri, the remaining seven-fortieths (T/40) •
“Second. The said Botsford, Deatherage, Young & Oreason are to assist the said Bettie F. Smith with information, and in all other reasonable manner, to collect said, notes, and so am I.
“Third. The • said Bettie F. Smith is authorized to accept in lieu of said notes other notes to be executed 'by said Sidney P. Allen and W. A. Rule, payable on or before December 1, 1908, if the said Sidney P. Allen and W. A. Rule will execute the same and pay the interest due on said notes to that date. R. B. Pyron.”

After the receipt of the transfer, defendant instituted a suit in the name of Bettie F. Smith as plaintiff against Rule and Allen upon the notes so transferred by Pyron. After the institution of the suit defendant addressed a letter to plaintiffs, of date December 2, 1908, inclosing citations to he served upon the Boatmen’s Bank of St. Louis, C. H. Kohler, Sidney P. Allen, and W. A. Rule, of Kansas City, all of whom were made parties defendant in the suit, and requesting that plaintiff have the citations served upon those parties. On December 4, 1908, a letter was written to the defendant by one of the plaintiffs returning the citations and stating that, by reason of the fact that plaintiffs were attorneys for the Boatmen’s Bank in quite a number of other important matters, it would be improper for plaintiffs “to act in this case in any manner whatsoever.” On December 9th defendant wrote plaintiffs the following letter: “I have yours of the 4th inst., returning service on the Boatmen’s Bank, etc. I regret very much the course you have pursued. It occurs to me that inasmuch as you are interested in the collection of these notes that it would have been entirely proper and would not have hurt you to turn this matter over to an officer, so that it could have been attended to and service not diverted. As it is now the parties have been advised that the suit is filed and will no doubt be trying to avoid service and defeat trial of this case in January. However, the damage has been done, if done- at all. There is no use crying over spilt milk. Had you simply turned the papers over to an officer and let him serve them and return to me, it would have been a great deal better.” On December 16th another letter was written to defendant, with the plaintiffs’ name signed thereto, in reply to the letter last mentioned, stating that plaintiffs’ letter of December 4th had been written by Mr. Botsford, who was ignorant of the particulars of the deal concerning’ the Rule notes, and that Mr. Bots-ford had written thé letter without awaiting an opportunity to consult the other member of the firm, who was then out of the city. On December 18th defendant wrote to plaintiffs the following letter: “I have your favor of December 15th, and beg to advise that I obtained legal service upon all parties to the suit, returnable to the January term, 1909. My attachments are complete and I will obtain judgment. I understand, however, that Bush & Tillar will proceed to foreclose their vendor’s lien against this land unless this suit is paid off and dismissed. Of course, if that foreclosure takes place, it leaves us nothing to attach, in which event I will proceed to put Allen ‘and Rule in bankruptcy; but it occurs to me that the Boatmen’s Bank will be very glad to pay this debt off to protect itself in the amount of money it is already out. If it does not, of course, when the bankruptcy proceeding is instituted, which I will do immediately, the bank will either have to back off from the entire indebtedness it holds, or come in and have to return to Rule the amount it has collected. At any rate, I think we are in a position to make your bank either settle this debt or back off, as they should do.”

On January 5th a judgment was rendered in favor of Mrs. Bettie F. Smith against Rule and Allen upon the notes so transferred by Pyron for the sum of $4,244 and costs of suit. Thereafter the judgment was collected in full, amounting to $4,345.30, out of which was deducted $80.30, costs of suit, leaving a balance in defendant’s hands of $4,265, which represented the amount of the judgment, $4,244, and interest accrued thereon from the date of the judgment to the date of its collection. Of this amount, on February 8, 1909, defendant remitted to plaintiffs $107.26 in a letter reading as follows: “Herewith find my check for $107.26, covering the balance due R. B. Pyron for payment on the Allen and Rule notes after deducting the Bettie F. Smith judgment therefrom, which amount I send you as per instructions from Mr. Pyron.” At the time that judgment was collected, there was due upon the judgment in favor of Mrs. Bettie F. Smith against R. B. Pyron the sum of $3,521.66, which judgment was satisfied in full by the defendant out of the money collected upon the Rule and Allen notes, and- for his services in procuring the judgment against Rule and Allen defendant retained less than the 10 per cent, provided therefor in the transfer of the notes from Pyron to Mrs. Bettie F. Smith. The amount remitted by defendant to plaintiffs being less than the amount that plaintiffs were entitled to receive according to the terms of the transfer of the Rule and Allen notes by Pyron, they instituted -this suit for the balance, alleging the transfer and claiming a right to a division of the amount collected according to its terms.

Among other defenses, the defendant alleged the failure of plaintiffs to procure service of citation in the suit instituted by Mrs. Bettie F. Smith upon the Rule and Allen notes, as shown in the correspondence above noted, claiming that by reason of their failure so to do they were not entitled to recover under the terms of said contract— in effect, that by the failure to perform that service plaintiffs had forfeited all rights under the contract.

• One of the instructions given by the court to the jury was, in effect, that if plaintiffs refused in any material respect to aid the defendant Hamner in the collection of the Rule and Allen notes when called upon to do so by Hamner, and that by reason of such refusal Mrs. Bettie F. Smith, or her attorney, Hamner, rescinded the contract evidenced by the transfer of the notes to Mrs. Bettie F. Smith by Pyron, and proceeded to collect the notes under the former contract with Py-ron, then plaintiffs could not claim any benefits under the contract evidenced by the transfer of the notes by Pyron to Mrs. Bettie F. Smith. Error has been assigned to this charge, and also to the refusal of a peremptory instruction that plaintiffs’ .failure to procure the service of the process in the suit did not work a forfeiture of their rights under the contract.

- The entire, negotiations between plaintiffs and defendant were by correspondence which appears in the record, and there is nothing indicating any failure by plaintiffs to aid in the collection of the Rule and Allen notes in every manner possible, save and except their failure to procure the service of process, as shown in the correspondence noted. Nor is there any suggestion in that correspondence of any intention on the part of Mrs. Bettie F. Smith, or her attorney, to claim a forfeiture of plaintiffs’ rights by reason of their failure to perform that service. It further appears from defendant’s letter of December 18th that he had procured the service of process in time for the term of court during which he desired to try the case, and there is no suggestion- in the correspondence, or otherwise in the evidence, that plaintiffs’ failure to render the service requested had worked any hardship or loss whatsoever to Bettie F. Smith or • her attorney, Hamner. Furthermore, the suit to collect the Rule and Allen notes, which had been instituted in her name under and by virtue of the transfer of the notes executed by Pyron to her, proceeded to judgment without any change in the pleading so far as shown in this record. There is no suggestion in the record of any notice to plaintiffs nor to Pyron of any rescission of, or attempt to rescind, the contract under which that suit was instituted; neither does the contract contain any stipulation indicating a right of forfeiture of plaintiffs’ interest thereunder for such a minor breach of performance by plaintiffs as their failure to procure service of citation when requested so to do by the defendant. Ryan v. Porter, 61 Tex. 106.

In fact, in appellee’s brief no attempt is made to defend the charge given by the court upon the plea of rescission of the contract and forfeiture of the plaintiffs’ rights thereunder; but it is insistéd by the appellee that as the transfer from Pyron placed the title to the notes against Rule and Allen in Mrs. Bettie F. Smith, in whose name the judgment was recovered, the cause of action, if plaintiffs have any under the contract, would be against Mrs. Bettie F. Smith, and hot against appellee, who acted for Mrs. Bettie F. Smith as attorney only. With this contention we are unable to agree. By the terms of the transfer of the notes the balance remaining after the payment of the expenses of collection was to be divided between plaintiffs and Mrs. Bettie F. Smith in the proportion stated. The effect of the transfer was to place title in ss/40 0f such balance in Mrs. Bettie F. Smith and V40 in plaintiffs. In collecting the interest of plaintiffs in that balance, defendant necessarily did so as agent or attorney for plaintiffs, and not as attorney for Mrs. Bettie F. Smith, who had no title thereto. Under the- undisputed evidence, judgment should have been rendered in favor of plaintiffs in accordance with the terms of that contract. From the amount collected on the judgment, $4,265, defendant was entitled to deduct 10 per cent, attorney’s fees, $426.50, which would leave a balance of $3,838.50. Of this balance, Mrs. Bettie P. Smith was entitled to 33/4o, or $3,166.7614, while plaintiffs were entitled to V*o, or $671,73%. Deducting from the sum last named $107.26, which- defendant remitted to plaintiffs, we have a balance of $564.-47, for which judgment should have been rendered in favor of plaintiffs.

Accordingly, the judgment of the trial court is reversed, and judgment is here rendered in favor of appellants against appellee for the sum of $564.47, with interest thereon at the rate of 6 per cent, per annum from February 2, 1909, the date of the collection of the judgment, up to the present date, together with costs of suit in the trial court, as well as the costs of this appeal.