author: TALBOT, J.

text:
    COCHRAN v. TAYLOR.
    (No. 8053.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1919.
    Rehearing Denied Eeb. 22, 1919.)
    1. Contracts <§=>323(1) — 'Questions for Jury*
    In an action for a balance due under a contract whereby plaintiff agreed to cut and bale hay grown on defendant’s farm, held that defendant’s peremptory instruction was properly refused.
    2. Appeal and Error <§=>715(1) — Review-Record.
    The appellate court can only consider evidence incorporated into the statement of facts, in determining the facts of the case, and cannot consider an account book which by agreement of the parties was sent to the court for its consideration.
    3. Trial <§=>169 — Peremptory Instructions-—Giving of.
    Where, under the evidence, plaintiff was entitled to some recovery, a general peremptory instruction denying any recovery was properly refused, even though plaintiff was not entitled to recover as to all of the amounts claimed.
    4. Appeal and Error <§=>209(1) — Review-Questions Presented.
    Where plaintiff sought to recover a balance due for cutting and baling hay under a contract whereby defendant was to pay $3 per ton for the fi,rst cutting and more for the second, held that where no special charge that, independent of plaintiff’s right to recover for the balance due on the first cutting, he could not recover the amount claimed on the second cutting was requested, and there was no assignment of error presenting that matter, the question of the sufficiency of the evidence to authorize a recovery for the second cutting was not presented.
    5. Contracts <§=>28(3) — Evidence as to Making of Contract.
    In an action for the balance due on a contract for the cutting and baling of hay, evidence held insufficient to show that the second cutting of hay was cut and baled under a contract with one other than defendant.
    6. Trial <§=>296(9) — Instructions—Weight of Evidence.
    In an action for a balance due for the- cutting of hay, a charge stating that plaintiff sue.d defendant for the sum of $181.65, the balance due upon a sworn account for cutting and baling hay, held, in view of the rest of the charge, not erroneous as on the weight of the evidence.
    7. Work and Labor <§=>24(1) — Actions—Reasonable Value.
    Where plaintiff, who sued to recover a balance due on a contract for the cutting of hay, set up claims for loading the hay, etc., but no contract was shown as to the amount to be paid for such service, recovery cannot 'be allowed without proof of the reasonable value of the service.
    8. Contracts <§=>322(2) — Actions—Evidence.
    In an action for a balance due under contract for the cutting and baling of hay which-provided a stipulated price per ton, evidence that plaintiff arrived at the weight of the hay by weighing several bales different times a day, and averaging the weight, is admissible to show the weight.
    9. Appeal and Error <S=»882(8) — Right to Allege Error.
    Where the testimony objected to was first given on direct examination of a witness by one of defendant’s attorneys, defendant cannot complain.
    10. Appeal and Error <S=s1050(1) — Review— Harmless Error.
    The admission of evidence is harmless where other evidence of the same character was received without objection.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Action by W. A. Taylor against B. B. Cochran begun in justice court and appealed by defendant to the county court. Prom a judgment there for plaintiff, defendant appeals.
    Affirmed on condition that .plaintiff enter remittitur; otherwise reversed and remanded.
    Dupree & Crenshaw, of Hillsboro, for appellant.
    J. E. Clarke, of Hillsboro, for appellee.
   TALBOT, J.

The appellee sued the appellant in the justice court of Hill county to recover the sum of $181.65 alleged to be due as the balance on a contract whereby appellant agreed to pay appellee, for cutting and baling hay grown upon appellant’s farm, the sum of $3 per ton for the first cutting, .and $3.25 per ton for the second cutting. The appellee also sued to recover specified amounts, aggregating $51, for services performed in storing, hauling, and shipping said hay at the special instance and request of appellant. Appellee filed at the institution of the suit an itemized account purporting to show that ap-pellee had cut and baled ⅞£ the first cutting 3,789 bales, and of the second cutting 1,745, of an average weight of 62 pounds per bale. The account so filed showed items for services performed in storing, hauling, and shipping hay of $5, $36, and $10, the total amount due under the contract being $602.70. The account also showed items of credit, aggregating $421.05, leaving a balance of $181.65, the amount appellee sought to recover. The appellee, in giving the nature of his demand in the citation issued by the justice of the peace, after stating the amount to be $181.65 due upon an account for cutting and baling, storing in barn, and shipping same, charged that he entered into a contract with the appellant for baling and cutting hay whereby appellant agreed to pay appellee $3 per ton for the first cutting, and $3.25 per ton for the second cutting; that each and all of the items set out in said account are true and correct, and that appellee performed the labor and services therein stated at the special instance and request of the appellant, and upon the date and for the amounts therein set forth; and, further, that all of the charges for services rendered as set out in said citation are reasonable compensation for such services. The appellant answered by a general demurrer and general denial. A trial in the justice court resulted in a judgment in favor of appellee for $181.65, and appellant appealed to the county court. The pleadings in the county court were the same as in the justice court, and a jury trial in the county court, as in the justice court, resulted in a verdict and judgment in favor of appel-lee for the sum of $181.65. Appellant’s motion for a few trial having been overruled in' the county court, he prosecuted this appeal.

The first assignment of error complains of the court’s refusal to give, at the conclusion of the evidence, a special charge requested by appellant directing the jury to return a verdict in his favor. The proposition urged is that the amount sued for being based upon the number of tons of hay baled for appellant by appellee under the alleged contract, and upon the reasonable value of the services alleged by him to have been performed, the burden was upon appellee to establish by a preponderance of the evidence the number of tons of hay baled, and that the services alleged to have' been performed by appellee were reasonably worth the sums claimed by him therefor, and, the ■ evidence failing to show the number of tons baled or the reasonable value of the services rendered, the court should have given the requested peremptory charge.

We think the requested charge was correctly refused. No witness testified to the number of tons of hay cut and baled, but the evidence does show the number of bales cut and baled, and from this the number of tons may be arrived at by a mere mathematical calculation. The evidence is also sufficient to show that the average weight of the bales of hay designated as the first cutting was 62 pounds per bale, and that appellant, by the terms of the contract entered into between him and appellee, agreed to pay for the cutting and baling of the first cutting $3 per ton. It is also sufficient to show that appellant contracted to pay appellee the $5 item of the account filed, and charged for “hauling hay into the bam.” The testimony of appellee is to the effect that in his first cutting he cut and baled 3,789 bales of hay under the contract alleged, and that the average weight of these bales was 62 pounds per bale. By the statement of facts he is made to say that the average weight of said bales was “62 tons and a fraction,” but evidently this is a clerical error of the official stenographer or person who prepared the statement of facts. It may be said that it is a matter of common knowledge, that no ordinary bale of hay, such as the witness referred to, would weigh 62 tons, and that what he really stated was that the average weight of the bales was 62 pounds. Besides,, at another place in his testimony he referred to the weight of the bales of hay as being 62 pounds per bale. As to the $5 item charged for hauling hay into the barn, he testified, in effect, that this service was performed at the request of appellant; that by the terms of their contract he was to fill the old barn and granary and the old house on the place; that appellant was to pay half the expenses of putting the hay into these houses; that the labor cost $10, and that he charged appellant $5. Appellee sued to recover a balance alleged to be due him for cutting and baling the hay of the first cutting, which, together with the item of $5 charged for hauling, hay into the barn, he says amounts to $67.37. His suit to recover the balance is not based alone upon allegations of the performance of the services rendered and the reasonable value thereof, but in the citation issued in the justice court, which is admitted to be a part at least of his pleadings in the county court, he alleged, in effect, among other things, that he performed the labor and services stated in the account filed at the request of appellant upon the agreed compensation of $3 per ton for the first cutting of hay. The additional allegations, “that all of the charges for services rendered as set out in said account are reasonable compensation for such service,” do not destroy the preceding allegations, which, in effect, declare that said service was rendered upon the express promise of appellant to pay $3 per ton for the first cutting. The pleadings and evidence were sufficient to warrant a recovery for the balance due ap-pellee for the first cutting and baling of hay, and the court would have erred to the prejudice of appellant had the peremptory instruction requested by appellant been given. We have discovered no direct testimony of the weight of the bales of hay constituting the second cutting, but appellee testified, in substance, that after he had cut and baled the hay, and while in Hillsboro on one occasion, he “ran up the account” with appellant; that he figured the amount appellant had paid and the balance he owed, and stated to appellant the number of bales, the number of pounds, the balance due for the second .cutting, and that appellant did not refuse to pay him on the ground that he did not owe it, but that, on the contrary, appellant paid him some more on the account. There is also testimony to the effect that appellant, before casting up the account as just stated, had agreed • or contracted to sell to Gaines B. Turner the farm upon which the hay cut and baled by appellee was grown, together with the hay; that later Turner refused to take the farm and hay, and a controversy arose between him and ’ appellant in regard thereto; that during the existence of this controversy appellant said to appellee that if hé (appellant) took the place back he would pay appellee for the cutting and baling of the hay.

There is testimony to the effect that entries made in a book kept by appellee show the average weight of all the bales of hay, and by agreement of the parties this book was sent to this court for its consideration of said entries as evidence of said weight; but this cannot be done. This court can consider only the evidence incorporated into the statement of facts in determining the facts of the case. Lingo Lumber Co. v. Garvin, 181 S. W. 561.

But whether the testimony was or was not sufficient to show the weight of the bales of hay of the second cutting, which was necessary in order to determine the number of tons of hay cut and baled by ap-pellee of said cutting, still as appellee showed himself entitled to recover the balance due for the first cutting, and the requested charge refused directed absolutely a verdict for appellant regardless of this right of recovery, the special charge should not have been given. There does not appear to have been requested any special charge to the effect that, independently of any right the ap-pellee had to recover the balance claimed to be due for the first cutting, he, for lack of sufficient evidence to authorize it, was not entitled to recover the amount alleged to be due for the second cutting, nor is there any assignment of error specifically asserting that the evidence was insufficient to authorize a verdict and jhdgment in favor of ap-pellee for the amount alleged to be due for the second cutting and baling of the hay. This being true, the question of the insufficiency of the evidence to authorize a recovery for the cutting and baling of the hay of the second cutting is not raised, and we would not be warranted in reversing and remanding the case for a new trial on the ground that the evidence does not support the judgment rendered for the amount claimed for said second cutting. As indicated, such a reversal is not authorized under the assignment of error complaining of the refusal of the court to give the special charge requested directing unqualifiedly a verdict for appellant. The only question raised by that assignment is whether or not the evidence was sufficient to justify a verdict and judgment in favor of appellee for any amount, and, as it was sufficient to authorize a recovery for the amount alleged to be due for the first cutting and baling of hay, the question must -be answered favorable to appellee, which effectually and fully disposes of the assignment.

The second assignment of error is as follows: •

“The court erred in failing to give to the jury special charge No. 2 which instructed the jury that plaintiff could not'recover for the hay baled in what is known as the second cutting, because the proof showed that said hay was baled under a contract with Gaines B. Turner, and not with B, B. Cochran.”

The proposition is, in substance, that ap-pellee having pleaded and relied solely upon an alleged contract with appellant, whereby appellant was to pay appellee the sum of $3.25 per ton for baling the hay of the second cutting, and the proof showing without contradiction that before said contract was •executed appellee abandoned said contract, to which abandonment appellant assented, and that whatever hay was baled by appellee on the second cutting was baled by appellee under a contract with Gaines B. Turner and not under a contract with appellant, the court should have instructed the jury that appellee could not recover on account of any services rendered in baling the hay of the second •cutting. In this construction of the testimony we do not concur. There is testimony to the effect that, after contracting with ap-pellee to pay him $3.25 per ton for cutting and baling the hay of the second cutting, appellant contracted to sell his farm and the hay to Gaines B. Turner; that he informed appellee of that fact, and said to him that he would get him the “job” of cutting and baling that hay; that he had told Turner that he (appellee) “would put up the hay for him”; that in a few days afterwards appel-lee got a letter from Mr. Turner, and that appellee replied that he would bale the hay for $3.25, and that Turner wrote saying, “Go ahead and put up that hay,” but upon a fair analysis and construction of all the testimony bearing upon the matter it is clear to us that neither appellee nor appellant understood that the original contract entered into between them for the baling of the hay was to be abrogated or abandoned, and that if the hay was baled by appellee he was to look to Mr. Turner for compensation therefor. On the contrary, it seems manifest to us from all the testimony that appellant believing that the title of the property would be changed from him to Turner, and that in the •event it would be to his pecuniary advantage or benefit to have Turner pay for the cutting and bailing of the second cutting of hay, and appellee being willing that appellant should secure such benefit in his trade with Turner, but in no sense understanding that in the event the sale by appellant to Turner was not consummated his contract with appellant was to be of no effect, he (ap-pellee) consented that Turner should pay for the cutting and baling of the hay. Appellee testified that appellant told him that, if the pending trade with Mr. Turner “fell through,” he (appellant) would pay for the cutting and baling of the hay, and that as soon as he ascertained that Turner had not traded with appellant he called on appellant to make good his contract and pay him for cutting and -baling the hay. It is undisputed that the contemplated sale to Mr. Turner failed of consummation, and that -appellant, as the owner of the farm and hay, remained in possession of the hay after it was cut and baled by appellee, and sold it. It is plain to us from the whole testimony that appellee took the matter of cutting and baling the hay up with Turner solely because of the contemplated sale of the property to him, and that it was in the minds of both appellant and appellee that only in the event such sale was made, and the property passed from appellant to Turner, was the latter to become paymaster. The assignment is therefore overruled.

In stating the nature of the appellee’s demand in his charge to the jury the court used the following language:

“In this case plaintiff sues the defendant for the sum of $181.65 balance due upon a sworn account for cutting and baling hay.”

This language of the court is assigned as error, the contention being that it is upon the weight of the evidence. We believe there is no merit in the contention. The language appearing in the preliminary statement of the nature of appellee’s suit, and the court having required the jury in another paragraph of the charge to find from the evidence the existence of the facts essential to appellee’s light of recovery, it is not at all probable that appellant was prejudiced by the language of which complaint is made.

The fourth assignment of error complains of that portion of the court’s charge wherein the facts are grouped and the jury told that if they should find the existence of said facts to return a verdict in favor of appellee for the cutting and baling of the hay of the second cutting at $3.25 per ton. The propositions contended for under this assignment are; (1) That appellee having pleaded and relied solely upon an alleged contract with appellant, whereby appellant was to pay him the sum of $3.25 per ton for the baling of the hay of the second cutting, and the testimony establishing without dispute the abandonment by appellee, with the consent of appellant, of such contract, and that whatever hay of the second cutting was baled by appellee was baled under a contract with Gaines B. Turner, and not under a contract with the appellant, it was error for the court to submit to the jury the issue as to appellant’s liability under said contract for the baling of the hay of the second cutting”; (2) appellee having alleged that the amounts claimed by him to be due for services rendered were a reasonable compensation for such services, it was error for the court to authorize the jury to return a verdict for any amount other than what they found from the evidence to be a reasonable compensation for the services performed.

The first contention has been decided against appellant in discussing and disposing of his second assignment of error. The second proposition, we think, should be sustained as to the item of $10 charged for “changing hay from old barn into new barn, Dec., 1915,” and the item of $36 charged for “loading 4 cars of hay at Blum shipped to Ft. Worth.” There is no evidence in the record showing that appellee’s services in removing the hay from the old barn and placing it in the hew barn were reasonably worth the amount charged therefor, nor is there any evidence showing that his services in loading the four cars were reasonably worth the amount charged therefor. Neither is there any evidence showing that these services were rendered upon an express agreement that appellant would pay therefor the respective amounts charged for the same and sought to be recovered in this action. In this state of the evidence appellee was not entitled to recover said items, and a recovery therefor should not have been authorized by the court’s charge.

The appellee was permitted to testify, in substance, that it was his custom, in ascertaining the weight of the hay, to weigh a portion of the hay at different times during the day, and then estimate from that the weight of the bales of hay for the day. The admission of this testimony is complained of and made the basis of appellant’s fifth assignment of error. The proposition under this assignment is as follows:

“The appellee not having pleaded custom with reference to the manner of arriving at the average weights of the bales of hay, it was error for the court to permit appellee to prove, over objection of the appellant, the custom prevailing with reference to such matters among men engaged in the business of cutting and baling hay.”

The testimony related to the method of ascertaining the weight of the bales of the second cutting of hay, the method as to determining the weight of the bales of the first cutting being different and agreed to by appellant. Our conclusion is that the testimony was admissible, but, if not, the answer to appellant’s objection to it is (1) that it appears from the statement of facts that this character of testimony was first given on direct examination of the witness by one of appellant’s attorneys of record; (2) that similar testimony respecting the method of arriving at the average weight of the bales of hay given by the witness Geo. W. Thurs-ton was introduced without objection. During said direct examination of the witness, as shown on page 8 of the statement of facts, he testified:

“I came to measure my second cutting by the field weights, and the first by the public weighers’ weights, because that was the customary way of arriving at the weight of the number of tons X baled at a time whenever I baled. That is the way we arrived at an average, by weighing in the field and getting the average weight. I figured that way wherever I baled. That’s how we got the average.”

Then on cross-examination of the witness by counsel for appellee, according to the statement of facts as appears on pages 15 and 16, the witness testified:

“I know the custom with reference to getting weights of the hay that is cut in the field by those who cut and mow it. The customary way of arriving at the number of tons of hay was to weigh it in the field and get the average. That was the custom. The customary way of arriving at the amount of hay you bale for any one was by weighing in the field a quantity of hay and averaging the total of the bales from that. That’s how we averaged the total.”

This last statement of the witness is quoted in appellant’s brief as being the testimony objected to and the admission of which is assigned as error in this court. No objection appears to have been made to the testimony of the witness given on direct examination. On the contrary, the clear inference is that it was elicited by appellant’s counsel, and, since the testimony complained of is practically the same as said testimony so elicited, appellant is in no position to complain of its admission. Again, the witness Geo. W. Thurston testified in reference to the second cutting, in substance, that the way he arrived at the average weight of the bales of hay was that he would weigh two or three times a day three or four bales at a time, and “add them up and divide them by the number of bales weighed, and' thereby get the average weight of the bales.” At another place in the statement of facts it appears that this witness testified as follows:

“I figured up what these bales weighed. The bales I weighed I averaged by weighing two or four bales three or four times a day and averaged the rest from those weights. I don’t think it came to a guess. I have been baling a long time and always averaged weights that way.”

The testimony admitted without objection being practically the same as that objected to the latter must be regarded as harmless. So often has this been held by appellate courts of this state that the rule has become a familiar one, and authorities need not be cited in support of it.

The question raised by the sixth assignment of error has been disposed of against appellant by our disposition of the fourth, and need not be discussed.

Our conclusion that appellee under the evidence was not entitled to judgment for the $10 item and $36 item charged in the account does not1 necessarily require that the case be remanded for another trial. This may be obviated by a remittitur of these amounts. If, therefore, appellee sees fit to enter such remittitur in this court within 10 days from the date of the filing of this opinion, the case will be affirmed; otherwise the Judgment of the lower court will be reversed and the cause remanded.
      <®=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BRADY, J.

license: Public Domain

text:
    LANHAM et al. v. WEST et al.
    (No. 6019.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 5, 1919.)
    1. Vendor and Puechasee ®=>245 — Peremp-TOET INSTRUCTION.
    In a suit to foreclose vendor’s lien on lands, where a conveyance of two incumbered parcels on its face spread the vendor’s lien on both, held that a peremptory instruction in favor of successors in interest of a grantee and against plaintiff, the holder of notes, secured by the vendor’s lien, was properly denied.
    2. Trial <⅞=>143 — Instructions—Peremptory Instetjctions.
    Where the evidence on an issue was conflicting, it was properly submitted to the jury, and a peremptory instruction denied.
    3. Trial ⅞=>140(1) — Jtjey—Province.
    It is the exclusive province of the jury to pass on the credibility of witnesses and the weight to be given their testimony.
    4. Trial <⅜=>351(5) — Special Issues — Submission.
    The refusal of the court to submit special issues, where such issues had already been submitted in substance, though the form of such special issues was different, is not error.
    5. Vendor and Purchaser <§=3259 — Deeds— Construction.
    Where two parcels of land, one of which was subject to vendor’s lien notes, were conveyed to a single grantee, and the habendum clause of the deed recited that it was agreed that the vendor’s lien should be retained until all the notes were paid, held that the lien was spread over both parcels.
    6. Vendor and Purchaser <⅞=>267 — Release of Vendor’s Lien — Construction.
    Where the receiver of a corporation which had conveyed lands, retaining lien to secure the discharge of vendor’s lien notes by the grantee, executed a release to which the holder of the vendor’s lien notes was not a party, such release is not binding on the holder of the vendor’s lien notes, and does not constitute evidence of the intention in the minds of the parties to the conveyance.
    7. Evidence <S=43 (2) — Judicial Notice.
    In an action in the same court in which a receivership proceeding was pending, that court may take judicial notice that no order had been procured authorizing the receiver to execute a release, etc.
    8.Evidence <§=370(5) — Release—Burden op Proof.
    Parties relying on a release executed by the receiver of an insolvent corporation have the burden of showing the receiver’s authority.
    Appeal from District Court, Bell County; E. M. Spann, Judge.
    Suit by D. M. West and others against E. E. Lanham and others. Prom a judgment for plaintiffs, the named defendant and certain other defendants appeal.
    Affirmed.
    Sam D. Snodgrass and J. B. Talley, both of Temple for appellants.
    Tyler, Hubbard & Tyler, of Belton, J. H. Evetts, of Temple, and M. E. Monteith, of Belton, for appellees.
   BRADY, J.

Appellee D. M. West filed this suit against W. G-. Bryant, Smith & Peyton Hardware Company, R. L. Henderson, receiver of said company, and appellants, alleging that on November 18, 1914, R. L. Dockum conveyed to Smith & Peyton Hardware Company,, which will hereinafter be called the'Hardware Company, 109 acres of land in Bell county, Tex., and on the same day conveyed to it 54½ acres of land; that, as a part of the consideration for the 109 acres, the Hardware Company assumed a note for $2,000, payable to Amicable Life Insurance C'ompany, and executed its note to Dockum for $160, secured by a second lien on the 109 acres; that, as a part of the consideration for the 54%-acre tract, the Hardware Company executed to Dockum six notes, aggregating $1,750, secured by the 54%-acre tract only; that on August 26, 1915, by deed recorded March 11, 1916, the Hardware Company conveyed both of said tracts of land to W. Q. Bryant for $9,715 cash and the assumption by said Bryant of all the above-described notes; that the appellee was the legal and equitable owner and holder of the six notes, aggregating $1,750; that on or about the 3d day of February, 1916, E. F. Lanham purchased the $160 note, and on the same date Bryant executed an extension agreement with Lanham, extending the time of payment of said note to February 10, 1916; that on February 4, 1916, Bryant executed to Sam D. Snodgrass, trustee for Lanham, a deed of trust on the 109^acre tract to further secure the payment of said note for $160, and that on March 8, 1916, the trustee conveyed to Lanham the 109-acre tract, under the power conferred in the deed of trust, for $210, which was alleged to be grossly inadequate; that neither the extension agreement between Lan-ham and Bryant, nor the deed of the trustee, was recorded until after the trustee’s sale, and that appellee had no notice of any such matters until long after the execution and delivery of the trustee’s deed to Lanham; that on March 26, 1916, Lanham conveyed the 109-aere tract to C. D. Shepperd, one of the appellants, who now claims to be the owner of said tract.

Appellee, West, further alleged that as the owner of the sis notes, aggregating $1,750, on July 4, 1916, he purchased the 54%-aere tract at trustee’s sale for $408, which he credited on said notes; that, by reason of Bryant’s assumption of the notes in the deed from the Hardware Company to Bryant, the vendor’s lien was spread over both tracts; and that by reason thereof he (West) became the holder of the third lien on the 109-acre tract to secure the $1,750 notes herein sued upon. Ap-pellee, West, prayed for judgment, declaring the trustee’s deed to Lanham to be void as to him, and for judgment again Bryant and the Hardware Company on the notes, for foreclosure of his lien on the 109-acre tract as against all the parties defendant, for sale, etc.

Appellants and also Bryant filed exceptions to the averments of appellee’s petition, reciting the spreading of appellee’s lien over the 109-acre tract by virtue of the deed from the Hardware Company to Bryant, which exceptions were all overruled by the court, of winch action appellants make no complaint by any assignment in this court.

Appellants also pleaded a certain release, executed by It. E. Henderson, receiver, and W. W. Stockton, vice president of the Hard^ ware Company, hereinafter referred to, to which appellees excepted, and which exception was sustained by the court.1 No complaint is here made of this action by any of the appellants.

Appellants Shepperd, McCelvey, Lanham, and McCelvey Loan & Investment Company answered, alleging, among other things, that in the assumption by Bryant of the notes in the deed from the Hardware Company neither Bryant nor the company intended to create a blanket lien on both tracts for the security of the note sued on by plaintiff; that neither said assumption by Bryant nor the retention of the vendor’s lien in the deed created any lien on the 109-aere tract, for the further reason that on or about March 29, 1916, the Hardware Company, acting through its receiver and its vice president, executed and delivered to Bryant a release of the lien on the said 109 acres, if it had any lien created by the assumption of Bryant to pay the notes sued on, which was filed for record on the same date; that appellant Shepperd, present owner of the 109-acre tract, had no notice that appellee West was claiming a lien on that tract, until served with citation herein, and that said release operated to release any lien that appellee West ever had arising out of Bryant’s assumption of his notes; that Lanham, by the trustee’s deed, became invested with the fee-simple title to the 109-acre tract, subject only to the lien to secure the $2,000 note payable to Amicable Life Insurance Company.

Bryant adopted the answer of appellants, and, among other things, alleged that, when he purchased the two tracts from the Hardware Company, it was distinctly understood and agreed that the liens, as they had previously existed on each tract, should remain as before, and that said liens were not to be affected, enlarged, or changed by his assumption of the notes; that if the deed by its terms should be construed to create a lien on the 109 acres in favor of appellee West, then that the stipulations providing for said lien were inserted in the deed through fraud and deceit practiced on him by the Hardware Company, and that said stipulations were inserted as the result of mutual mistake as to a proper construction of the deed; and he alleged that the deed by its terms was ambiguous, and should be reformed to express the true intention of the parties; -which answer was, in turn, adopted by appellants.

The case was submitted to the jury on special issues, upon which the jury found in favor of appellees, and upon the verdict entered judgment, construing the deed from the Hardware Company to Bryant as retaining the vendor’s lien on both tracts to secure the notes in suit, and foreclosing the lien, and ordering the land sold to satisfy the judgment in favor of appellee West for the balance due on the notes.

Defendant Bryant did not appeal, nor did the Amicable Life Insurance Company, nor the Hardware Company, nor the receiver of said company; the two latter defendants joining the appellee West in his brief, and asking for an affirmance of the judgment.

The special issues submitted to the jury, together with the answers of the jury, are as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that Charles B. Smith, acting for the Smith & Peyton Hardware Company in the execution of the deed from Smith & Peyton, Hardware Company to W. G. Bryant, practiced fraud upon the said W. G. Bryant, as the same has hereinbefore been defined, as to whether said deed by its terms had the effect in law to create a lien on the 109-acre tract of land described in plaintiffs’ petition, in favor of the holder of and securing the six notes herein sued on? Answer this question ‘Yes’ or ‘No.’ ’’
To which the jury answered: “No.”
“Special Issue No. 2: Was it agreed by and between Charles B. Smith, who represented the Smith & Peyton Hardware Company,' and W. G. Bryant that the liens on the 54*4-acre tract and the 109-acre tract should remain separate and as they existed prior to the execution of the deed by Smith & Peyton Hardware Company to W. G. Bryant? You will answer this question ‘Yes’ or “No.’ ”
To which the jury answered: “No.”
“Special Issue No. 3: Did said deed from Smith & Peyton Hardware Company to W. G. Bryant, as written, executed, delivered, and accepted by the parties thereto, truly state their agreements and contracts, and truly represent their intentions as to the effect of the liens upon the lands therein conveyed? Answer ‘Yes’ or ‘No.’ ”
To which the jury answered: “Yes.”
“Special Issue No. 4: At the time the defendant E. E. Lanham purchased the said 109-acre tract at the trustee’s sale, March 7, 1916, did E. F. Lanham or H. M. MeCelvey, or either of them, have any knowledge or actual notice of the recitals contained in the deed from Smith & Peyton Hardware Company to W. G. Bryant? Answer ‘Yes’ or ‘No.’ ”
To which the jury answered: “Yes.’’

Appellants’ first assignment of error complains at the refusal of the trial court to give a peremptory instruction for appellants. The deed on its face is, in our opinion, unambiguous, and purports to-and would have the legal effect to spread the vendor’s lien over both tracts of land sought to be foreclosed upon in this suit; and, therefore, in any event, could not, as a matter of law, have authorized the trial court to give a peremptory instruction for appellants. Tex. Land & Loan Co. v. Watkins, 12 Tex. Civ. App. 603, 34 S. W. 996.

Appellants sought to avoid the effect of the language and recitals in the deed by pleading fraud, deceit, and mutal mistake in the writing of the deed, by the inclusion of the terms and stipulations providing for the lien, and that such recitals and stipulations did not evidence the true intention of the parties. These issues were, over the objection of appellees,. substantially submitted to tíre jury, and the evidence thereon was conflicting. The jury found against appellants upon each of these issues, and for these additional reasons the trial court did not err in overruling appellants’ request for peremptory instruction in their favor. It follows that the first assignment of error must be overruled.

Appellants’ second, third, and fourth assignments of error present the claim that the trial court erred in not setting aside the verdict because the jury’s answers to special issues No. 1, 2, and 3, above quoted, are contrary to the undisputed evidence.

We are unable to agree with appellants. An examination of the evidence in the statement of facts shows that the same was conflicting upon these issues. It was the exclusive province of the jury to pass upon the credibility of the witnesses, and the weight to be given to their testimony, and, in our opinion, the evidence on these issues was not only not undisputed, but sufficient to sustain the findings of the jury thereon, and these assignments are all overruled.

Appellants’ fifth, sixth, and seventh assignments of error complain at the action of the trial court in refusing to submit certain special issues requested by appellants. We do not deem it necessary to set out in detail these requested issues, but they all relate to the plea of fraud and deceit on the part of the Hardware Company in executing the deed to Bryant as written, and to the understanding of the parties as to the construction and effect of said deed, and as to whether the liens on the two tracts of land should remain as they existed prior to the execution of the deed from the Hardware Company to Bryant.

While presented in different form, and perhaps not as specifically as in .the questions presented and requested by appellants, the trial court substantially submitted all these issues to the jury, and it was not error for the trial court to refuse to again submit the questions. Therefore we overrule these three assignments.

The eighth assignment of error is to the effect that the trial court erroneously construed the deed from the Hardware Company to Bryant as having the effect of creating a lien on the 109-acre tract in favor of the holder of the notes in suit, because the deed read as a whole, and construed in connection with the evidence as to the intention of the parties, compels the construction that the liens as they existed before the execution of said deed were to remain and continue upon the land separately.

As pointed out in discussing the first assignment of error, the deed appears to be unambiguous on its face, and as written had the effect to extend the vendor’s lien over both tracts of land. Tex. Land & Loan Co. v. Watkins, supra. The habendumi clause in this deed reads as follows:

“But it is expressly agreed and stipulated that the vendor’s lion notes above mentioned are retained against all of the above-described land and premises and improvements until the above-described notes and all interest thereon are fully paid, according to their face and tenor, effect ■ and reading, when this deed shall become absolute.”

None of the other recitals in the deed are in conflict with, but are consistent with, this clause, and we think it is clear that the lien was thereby expressly reserved upon all the land to secure the payment of the notes in suit.

The testimony, while conflicting upon the issue of fraud and mistake,- is sufficient to support the findings of the jury that there was no fraud practiced, and that the deed as written correctly stated and conformed to the agreement and intention of the parties. Therefore the court did not eim in rendering judgment upon the verdict in favor of appel-lee, West, and the eighth assignment of error is overruled.

The last remaining' assignment to be considered is the ninth assignment of error, which presents the point that the trial court erred in sustaining the objection of appellee West to the introduction in evidence of the release from, the Hardware Company and Henderson, receiver, above referred to, because the said release relinquished the Hardware Company’s rights under the implied lien retained on the 109 acres of land, and precluded plaintiff from asserting any right thereunder; and, further, because the release constituted a representation and declaration of the party executing the deed that it was not intended to retain a lien on the 109 acres to secure the notes in suit, and that the said company, and plaintiff claiming under it, are estopped to now claim such lien. This' release was executed subsequent to the deed from the Hardware Company to Bryant, and the assumption therein by Bryant of the payment of the notes in suit. ’West was not a party to such release, and we do not think it could bind West and affect his rights, nor constitute any legal evidence of the intention present in the minds of Smith and Bryant at the time of the execution and acceptance of the deed. It was not executed by the Hardware Company, except by the receiver, who was not shown to be authorized to execute it, and he was joined in by the vice president of the company only “pro forma.” Furthermore, we are of the opinion that its recitals do not purport to state the original intention of the parties or to correct the deed, but are, at most, a statement of the construction that might be placed upon the deed and a release of the lien under such construction.

It also seems that the appellees excepted to the plea setting up the execution and delivery of said release, which exceptions were by the trial court sustained, and of which action appellants do not complain in any of their assignments. The court excluded the release on these grounds, which were: (1)/Because the receiver was not shown to have authority to execute the same; (2) because none of the parties to this instrument had any right or authority to execute a release of any of West’s rights. Appellants did not show, or offer to show, that the receiver had any authority to execute the release, and it seems to be conceded that the receivership was pending in the same court which tried this case, in' which event the trial court was authorized to take judicial notice that no order had been procured authorizing the receiver to execute the instrument. The burden was upon appellants to show such authority before the instrument would, in any event, be admissible as a release from the corporation, or as showing the original intention of the parties to the deed, to which the receiver, Henderson, was not a party. As above stated, we do not think the receiver could bind West, or impair his rights by the release. We conclude that the court did not err in excluding the release, and therefore this assignment should be overruled.

Finding no reversible error in the record, the judgment will be affirmed.

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


text:
    AUKERMAN v. BREMER.
    (No. 5978.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 2, 1919.
    On Rehearing, Feb. 26,1919.)
    1. Appeal and Error <®=»846(6) — Failure to Make Findings — Filing Statement oe Facts.
    Where statement of facts has been filed containing all the testimony introduced on the trial, court on appeal may determine the issues Of the case from such statement, notwithstanding lower court’s failure to file findings and conclusions.
    2. Appeal and Error <§=31075 — Failure to File Findings and Conclusions — Waiver by Appellant.
    Case will not be reversed because of court's failure to file findings and conclusions upon appellant’s request, where appellant filed statements of facts containing all the testimony, and in his brief concedes that the testimony is practically undisputed, and expresses the belief that the appellate court can act upon the statement of facts and determine the issues from such statement.
    3. Brokers <©==>82(1) — Action for Commissions — Sufficiency of Petition.
    In a broker’s action for commission for procuring a buyer for real estate, petition alleging exclusive right by broker to sell property until certain date, and sale by owner, subsequent to such date, to purchaser procured by broker, but failing to allege that purchaser was procured by broker within the period during which he had exclusive right to sell, failed to state cause of action.
    4. Brokers <&=>56(3) — Commission for Real Estate Sale — Procuring Cause.
    Where broker was given exclusive contract to sell property until certain date, and during such time tried to make sale with certain buyer, but failed and abandoned efforts, owner was not liable for commission upon sale to such buyer effected after the broker’s exclusive contract had expired, broker not having been the procuring cause of the sale.
    On Rehearing.
    5. Brokers <S=>86(4) — Procuring Cause — Sufficiency of Evidence.
    In real estate broker’s action for commission upon sale to buyer by owner, evidence held to support court’s conclusion that broker’s negotiations and efforts to sell to such buyer were unsuccessful, and that broker had abandoned such efforts.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by O. L. Aukerman against George Bremer. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    E. C. Street, of Waco, for appellant.
    John B. McNamara, of Waco, for appellee.
   BRADY, J.

Appellant instituted this suit against appellee to recover commissions for making a sale of real estate for appellee. He alleged that on July 12, 1916, appellee listed with him 160 acres of land for sale, with the agreement that appellant should have the exclusive right to sell said land up to the 15th day of November, 1916; that he undertook to find, and did find, a purchaser for said property, one N. O. Boethel, which fact was known to appellee; that shortly after the 15th day of November, 1916, appellee sold said land to Boethel for the price of $7,000>. Appellant averred that by reason of having found and procured said Boethel as a purchaser for the land, and by reason of the sale made by appellee to appellant’s said customer, appellee became bound to pay appellant the reasonable value of his services, which were alleged to be 5 per cent., the usual and customary commission.

Appellee answered by general demurrer and general denial. The case was tried without a jury, and judgment was rendered for appellee, the defendant below.

The court below was requested by appellant, in writing, to file his findings of fact and conclusions of law within the 'time required by law, which the trial court, through oversight, failed to do. Appellant preserved a proper bill of exceptions, and presents this us one of his grounds for asking a reversal of this case. However, appellant did not rest upon his legal right to have the trial court file findings of fact and conclusions of law, as provided by statute, but has filed in this court a statement of facts which contains all the testimony introduced on the trial.

In his brief appellant concedes that the evidence in this case is practically undisputed, and expresses the belief that this court can act upon the statement of facts and determine the issues of this case from said statement, in which we concur.

Under these circumstances, we do not think the case should he reversed because of the mere failure of the trial court to file his findings and.conclusions. Jacobs v. Nussbaum, 63 Tex. Civ. App. 520, 133 S. W. 484; Sutherland v. Kirkland, 134 S. W. 851.

In the other assignments of error appellant substantially presents the proposition that appellee is bound to pay him a commission for making the sale to Boethel, because the undisputed evidence shows that plaintiff was the procuring cause of the sale of the land by the appellee, and that he is entitled to such commission, notwithstanding the sale was not made until after the time limit had expired within which appellant was employed to sell the land, and he further claims that the said time limit was waived by ap-pellee’s having conveyed the property to a purchaser procured by appellant before the expiration of such time limit.

We beljeve the trial court might well have disposed of this case by sustaining a general demurrer to appellant’s petition, because the same, in our opinion, states no cause of action. After averring the listing of the land for sale, appellant alleged that his exclusive right of selling the property was limited to the 15th day of November, 1916. It is true that he alleges that he undertook to find a purchaser, and did in fact find and interest one N. O. Boethel, which fact was known to appellee; but he alleges that the sale by appellee to Boethel was not made until after the time limit had expired, namely, after the015th day of November. He did not allege any further facts which would show a liability on the part o'f appellee to him for commissions. There was no allegation that while the contract was in force .he found a purchaser, ready, willing, and able to buy the land upon the terms of the owner. The gravamen of his claim seems to be that appellee was liable to him for his commissions merely because he had found and interested Boethel in the land, and because appellee sold the land directly to Boethel after the expiration of appellant’s agency.

We do not think these averments sufficient to state a good cause of action; but the court below overruled the general demurrer, and appellee has not cross-assigned error thereon.

Even if appellant’s proposition should be abstractly correct, we do not think it is sustained by the facts in this case. There is no controversy that appellee listed the land with appellant for sale, and that he named a price of $8,000, or $50 an acre, for the land. It is also undisputed that the agreement was that he was to pay appellant a commission of $250 if he sold the land for $8,000, or all over $50 an acre for which he might sell the land. It is also admitted that appellant, with the consent of appellee, listed the land at $52.50 per acre. There was a controversy over the time limit fixed in the contract, appellant contending that he was to have until November 15, 1916, in which to sell the land, and appellee insisting that the time limit was October 15, 1916. There was testimony tending to support either contention, hut, in the light of all the facts, we deem this point practically immaterial.

A few days after the land was listed with appellant, Mr. Casey, who sometimes worked with appellant, learned of this land being listed, and undertook to interest Dr. Boethel in the same. It is undisputed that he went to see Dr. Boethel, took him over the land, and named the price at which the same was for sale by himself and appellant, namely, $52.50 per acre. On the same day appellee was advised by appellant that he and Mr. Casey were figuring with Dr. Boethel on the land. It is not disputed that Mr. Casey and appellant were unsuccessful in negotiating a sale with Di\ Boethel. Mr. Oasey testified tliat Dr. Boethel said he would think-about the trade, and several days later informed him that he was not interested in the trade. Mr. Casey testified that he did not have any further negotiations with Dr. Boethel in reference to the land, and it is not claimed by appellant that he or Casey did anything further to make the sale.

Appellant testified that in October he heard that Dr. Boethel had practically bought the. land from appellee, and that he went to ap-pellee and asked him this question: “Is your deal too near closed with the doctor for you to consider another man’s bid for $1,000 more for the-farm?” that appeliee replied, “I don’t know; I didn’t put any forfeit in the bank;” that appellee indicated, however, that the deal was practically closed. According to appellant's testimony, nothing further occurred- until November 26th, when he saw a notice in a Waco paper of the transfer of the land from appellee to Dr. Btaethel.

Dr. Boethel testified that he did not have any conversation with appellant about this land until after he had made his trade with Mr. Bremer, which was about the beginning of December; that the deed was made and delivered to him the first week in December, and it was agreed by the parties that the deed was signed and acknowledged December 4, 1916, and filed for record January 8, 1917. Dr. Boethel further testified that he did have •some negotiations with Mr. Casey about the land, and that he went over the trade with him, and looked at the land, but that he told him that he was not interested at the figure of $52.50 per acre. He denied that he ever talked to Mr. Aukerman, the appellant, about the land until after he had bought it from ap-pellee, which was after November 15, 1916.

Dr. Boethel further testified that.he first mentioned the matter of buying the land to appellee about September, and that appellee told him the real estate men had the property for sale, and that he had given them a definite time in which to sell the property; that the next time he discussed the matter with appellee must have been a month after the time in which appellant had to dispose of the property.

Appellee testified substantially as did Dr. Boethel, but in addition stated that, when Dr. Boethel first came to see him about the land, he told him it was in appellant’s hands, but if appellant did not sell his land within his limit he would sell it to him if he wanted it; that the question of price was not discussed at all at that time, and that he did not renew negotiations with Dr. Boethel until after appellant’s time limit had expired; that he did not have any time arranged with Dr. Boethel to renew negotiations, but expected the doctor to come back to see him if interested.

He further testified that, when appellant came to ask him if he had closed the deal with Dr. Boethel, he told him that he had another man who would buy the place for $8,000, and that appellant also told him Dr. Boethel did not want the place.

The above are substantially the material facts in the case, and we do not think they are sufficient to show that appellant was the procuring cause and efficient means of making the sale to appellee, nor do we think they show any waiver on the part of appellee to insist upon the terms of the agreement which limited appellant’s agency to November 15/⅞ 1916, according to his own, testimony, after which date the sale was made and consummated.

We think the rules of law governing this case are very well stated by Chief Justice Phillips in the case of Goodwin v. Gunter, 185 S. W. 295, as follows;

“It is a general doctrine that, in order for a broker to be entitled to commissions under a contract stipulating for their payment in the event of his sale of given property upon stated terms, a purchaser must have been produced through his efforts, ready, able, and willing to buy the property upon the contract terms; otherwise the contract is not fulfilled upon the broker’s part, and the commissions are therefore not earned. But the commissions are earned and the broker is entitled to their payment according to the contract if, while it is in force, he procures a purchaser to whom the owner directly makes a sale upon terms which are satisfactory to himself, though different from those limited to the broker, and yielding the owner a less amount than that for which the broker was empowered to sell.”

He further states the rule in the same case as follows:

“A different rule prevails where the broker’s effort with a particular buyer has, after fair opportunity and without any fault of the owner, come to naught, resulting in the failure and termination of his negotiation; and, later, the owner, 'by direct and independent negotiation, effects a sale to the same buyer, though upon the same terms originally authorized to the broker. Under such circumstances 'the broker cannot be justly considered the procuring cause of the owner’s sale, and the latter incurs no liability to him on that account.”

Applying these rules to the facts of this case, we think the trial court was justified by the evidence in rendering judgment for appellee. There was evidence to support the conclusion that appellant did not, while the contract was in force, procure a purchaser for the property. Indeed, under practically the undisputed evidence, his efforts to sell the land to Dr. Boethel, who afterwards purchased from appellee, were unsuccessful» There is no issue made by the pleadings that there was any collusion between Dr. Boethel and appellee for a sale of the land while •the contract was in force with appellant and to evade the payment of commissions ⅛> appellant.

The uncontroverted evidence also shows that appellee refused to negotiate with Dr. Boethel while the land was in the hands of appellant for sale. There was ample evidence to support the theory that appellant was not the procuring cause of the sale by appellee, and that the latter incurred no liability to appellant on that account, and therefore sufficient evidence to support the judgment of the court below. Furthermore, the practically undisputed evidence shows that the sale by appellee was not made until after the expiration of the time limit, fixed by the agreement, in which appellant was required to sell the land in order to earn his commissions. There were no facts alleged or proven to show either an extension or a waiver by appellee of the time limit, and upon this ground also the judgment below finds support in the evidence.

We do not believe any of the authorities cited by appellant in his brief are in point in this case, and we cite the following cases in support of our holding: Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959; Goodwin v. Gunter, 185 S. W. 295; Neal v. Lehman, 11 Tex. Civ. App. 461, 84 S. W. 153; Hardesty v. Cavin, 149 S. W. S67; English v. William George Realty Co., 55 Tex. Civ. App. 137, 117 S. W. 990; Newton v. Conness, 106 S. W. 892; Duval v. Moody, 24 Tex. Civ. App. 627, 60 S. W. 269.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.

On Rehearing.

Appellant has filed a motion for rehearing challenging the correctness of our opinion in this case, and, in addition to the grounds theretofore presented in his brief, makes the following proposition of law under his first assignment of error:

“Where one makes a sale of property to a purchaser found by his agent, he is bound to pay a commission, even though the sale may have been concluded after the termination of an exclusive agency.” ■ ⅝

Several authorities are cited under this proposition, including the leading case of Hancock v. Stacy, 198 Tex. 219, 125 S. W. 884.

Conceding that this proposition is a correct statement of the law, and that the authorities cited support it, we do not think it is applicable to the facts of this case, as fully pointed out in our original opinion. The facts and the findings in Hancock v. Stacy, and other cases along that line, are so radically different from the facts disclosed by the record in the instant case that we think it is apparent none of them are in point.

In our original opinion we cited the case of Goodwin v. Gunter, 185 S. W. 295, mainly for the purpose of adopting the rules of law therein announced as applicable to this case. Our attention has been directed to the fact that in a later opinion in the same case, reported in 195 S. W. 848, the Supreme Court set aside the former judgment of affirmance, and remanded the case to the district court for further trial. However, in the later opinion thd Supreme Court did not renounce, or even qualify, the rules of law announced in the former opinion. In our opinion we quoted from that case the following:

“A different rule prevails where the broker’s effort with a particular buyer has, after fair opportunity, and without any fault of the owner, come to naught, resulting in the failure and termination of his negotiation; and, later, the. owner, by direct and independent negotiation, effects a sale to the same buyer,, though upon the same terms originally authorized to the broker. Under such circumstances the broker cannot be justly considered the procuring cause of the owner’s sale, and the latter incurs no liability to him on that account.”

We applied this rule to the facts of the present case, and concluded that there was evidence in the record justifying the trial court in rendering judgment for appellee, under the theory embodied in the doctrine just stated. We do not think it necessary to again review the evidence, but adhere to our view that it was ample to sustain the theory that appellant was not the procuring cause of the sale by appellee.

There is evidence in the record strongly supporting the conclusion that appellant did not procure Dr. Boethel as a purchaser for the property while the contract was in force, but, on the contrary, that his negotiations and efforts were unsuccessful, and that prior to the termination of his agency he had virtually abandoned all efforts to sell the land to Dr. Boethel, and had approached appellee with a proposition to sell to another purchaser. This latter fact is shown by the appel-. lant’s own testimony; and it is disclosed by the record, without dispute, that appellee refused to negotiate with Dr. Boethel for a sale of the land while the contract with appellant was in force.

Being of the opinion that we correctly decided the case in our original opinion, the motion for rehearing is overruled.
      <gr3?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    ATCHISON, T. & S. F. RY. CO. et al. v. ABRAHAM.
    (No. 926.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1919.
    Rehearing Denied March 6, 1919.)
    1. Adverse Possession <⅜=>57 — Continuity oe Possession — Evidence.
    Evidence held to show continuity of possession for the necessary 10 years.
    2. Adverse Possession <§=85(3) —Hostile Possession — Evidence.
    Evidence held to support finding that possession was hostile to claim of all others.
    3. Adverse Possession @==>60(1) — Hostile Possession.
    As regards hostility of possession, it is enough that those in possession hy themselves or tenants are claiming for themselves in hostility to all others.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Nicholas Abraham against the Atchison, Topeka & Santa Fé Railway Company. Judgment for A. S. Thurmond and another, who intervened, having purchased from plaintiff after suit was begun, and defendant appeals.
    Affirmed.
    Turney, Culwell, Holliday & Pollard, of El Paso, for appellant.
    Seymour Thurmond and Winter, McBroom & Scott, all of EpPaso, for appellees.
   HIGGINS, J.

Abraham brought this suit in trespass to try title against appellant to recover a parcel of land in block 72 in the city of El Paso. The tract is 25.7x70x26x70 feet. Upon trial before the court judgment was rendered in favor of A. S. Thurmond arid Mrs. Annie E. Mitchell, who intervened as parties plaintiff, having purchased from Abraham subsequent to the institution of the suit. The .record title was vested in appellant. Appellees claimed title under the 10-years statute of limitation. By deed dated May 11, 1887, filed for record May 25, 18S7, John Watts conveyed to Thomas Gugerty a portion of block 72, described as follows:

“In Block 72, Campbell’s addition to El Paso: Beginning at S. W. corner thereof, thence running eastward along S. line of said block 70 ft., thence at right angles northward to reservation of the Rio Grande & El Paso Railway Company, thence along line of said reservation in a general S. W. direction to beginning.”

The record discloses that the property was held in trust by Gugerty for E. Y. Berrien and wife. Prior to May 13, 1901, Gugerty died, and by his will all of his property passed to his wife, Elizabeth Gugerty. By deed filed for record May 13, 1901, Elizabeth Gugerty conveyed the above-described premises to Mrs. Berrien. By warranty deed dated July 25, 1906, filed August 1, 1906, Mr. and Mrs. Berrien conveyed to Abraham the following:

“In block 72, Campbell’s addition to said city: Beginning in ¡3. line of said block 25.7 ft. more or less E. of S. W. corner of said block, thence running eastward along S. line of said block 44.3 ft. more or less, thence at right angles northward to reservation of Rio Grande & El Paso R. R. Co., thence along line of said reservation in a general S. W. direction to place of beginning.”

By quitclaim deed dated August 28, 19.06, filed August 31, 1906, the Berriens conveyed to Abraham:

“In block 72, Campbell’s addition to the city of El Paso, Texas: Beginning at the S. W. corner thereof, thence running easterly along the said S. line of said block 25.7 feet to a point on the S. line of said block, said point being the S. W. corner of a tract of land conveyed by Eliza B. Berrien and E. V. Berrien to Nicholas Abraham by warranty deed dated July 25, 1906, recorded in Bk. 84, p. 439, deed records of El Paso county, Texas, thence northeasterly along the westerly line of said tract 70 ft. more or less to S. line of the right of way aforesaid 26 ft. to the westerly line of said block, thence at right angles southwesterly a distance of 80 ft. more or less to the place of beginning.”

Abraham was dispossessed by appellant in 1910, and this suit was filed by him on April 12, 1911.

Mr. Berrien testified:

“I made no examination of the property just prior to buying it, but did right after, because the point came up, as I said, it was going to be a magnificent piece of warehouse property, and when I had it surveyed, which I did at once, because I wanted to see just how much it was, I found that the Atchison-Topeka had moved their line down south. That is what I was told at the time, that they had moved their line south of the line as shown in the Hart’s map and on the Campbell addition old map. I found that instead of being a very magnificent piece of property I had bought at a very cheap price, I did not have very much. But in examining the thing in going down there I found there was already ■ a tenant on the property. I immediately staked the thing out and gave it to Jesus Gonzales, and told him to see if he could get some more tenants at a dollar per month for ground rent. There were several adobes built on it. Perhaps it was a month or two months, maybe three months, after I bought the property until I got tenants in possession of it, because there were different tenants there. There was one, to the best of my recol-. lection, there was a little house that was partially on the property then. I rented to another party, and another party on the front, and then another one back here (witness referring to a sketch or plat of the ground then being shown him).
“Then when those different tenants move off I did not know, but the property was staked out to show me where I got — Jesus there showed these stakes to me.
“It was run out according to the field notes in the description given in the deed from Watts to Gugerty and was surveyed by a city surveyor. I then placed Jesus Gonzales in charge of it according to the survey as made of the property described in my deed. That was shortly after the execution of the deed from Watts to Gugerty.
“I continued in possession of the property and to occupy it by tenants until I turned the property and tenants over to Mr. Abraham. It was in my possession continuously from year to year until I turned it over to Mr. Abraham. I collected rent every month, except such months as they did not pay me, and they got new tenants. * * *
“I saw the property irom time to time, prior to my selling to Abraham. I was down there and saw the property. I had to go down once in a while. When I was there, there were houses on the property. Ouring the time I had those tenants there I was claiming the property. I rendered it for taxation and paid the taxes up to the time Mr. Nicholas Abraham got it from me. ⅜ * *
“I think the property was pointed out to Mr. Abraham at the time I sold to him, just pointed out this way (referring to map ° on the ground). There were people living on it then; they and different ones had been living on it since 1887 as tenants of mine. * * *
. “I did acquire from John Watts, in the name of my father-in-law, the triangular piece of land adjoining the Santa Fé reservation; that is, the piece I put the houses on. The triangular piece described in the deed from Watts to my father-in-law is all the property I claimed down there; it was not worth fussing about, you see. My impression was, of course, the Santa Fé had gone down too far, down that way (referring to map); but it was not for me to bring a $1,000 or $1,500 suit to prove that.
“I think it was a triangular piece I deeded to Abraham in 1906. I don’t remember making a quitclaim deed to the property involved in this suit.
“I don’t know anything about whether or not there was no house on this piece 25 by —. I do know there was a house on my triangular piece; that is as far as I go. I don’t remember anything about others.
“When I bought the property and had the deed put in my father-in-law’s name it was not my purpose or intention to try to get'any Santa Fé property.
“It never was my intention to get the Santa Fé — private individuals are not like corporations in that way. I don’t know whether there was a house, or any house, a fence, or other improvements on the property described in this quitclaim deed when I sold it to Abraham. I don’t want to be misunderstood by saying that there was not any there. I don’t remember of there being any there.
“Whether I conveyed to Abraham by quitclaim deed or warranty, I remember that tenants were paying me rent and living on the property that I conveyed to Abraham.
“The only agent I ever had was old Jesus Gonzales. * * * After I bought the property I discovered that the Santa Fé had pushed the line further south than the Hart survey.
“When I found this out I abandoned the idea of building a warehouse on the property, for the reason that it decreased the size of the property. A warehouse has got to have a certain size. This was to be a warehouse with a ground basis, to the best of my recollection, of about twelve' thousand square feet. It would not measure up to that with the Santa Fé encroaching on it down there the way it did.
“It was then my intention to lease to tenants through Jesus Gonzales, to hold possession of it, and get money to pay taxes until I could sell it.
“The perfection of my title had something to do with it. I intended to claim it as mine. I did not know but what the Santa Fé would take another move. ⅜ ⅜ *
“I claimed no more than what Watts sold m'e. If you put it that way, that is, that I did not want any of the Santa Fé property, that all I wanted to do was to keep them from encroaching on me, as I said before, I did not want to spend any thousand or fifteen hundred dollars in a lawsuit in order to prove that was not the Santa Fé’s; because I imagine that the thing involved a great deal of surveying around the town, beginning at this point (referring to map), and going down there, and by the time I got through the property would cost me a great deal of money, even if I got the original warehouse piece of property. I contemplated, though, I felt, that the piece of property probably was mine, but I was not strong enough financially to throw away fifteen hundred dollars to find out. * * *
“My reason for putting tenants on the property was that I felt it was mine. * ⅜ *
“I cannot tell you anything about this triangular piece from this map. The property I had abuts on Santa Fé street. There was a dispute sprung up after I had this property a number of years about the right of way. All that time I held possession of that property for a certain period of time — that is, the triangular piece of property described in Watts’ deed — but the Santa Fé came forward after-wards, and tried to push the line down. If tiie triangle shown me on this plat correctly describes the land I acquired from Mr. Watts, that is all the property I was claiming, and that is the property I put in charge oi Gonzales. It was never my intention to claim any property except what I got in that deed. * * * I was claiming the property that those houses were on in this depression, and that was the property that myself and Mrs. Berrien sold to Abraham. ⅜ ⅜ ⅜ .It was not at any time my intention to quitclaim any property belonging to the railroad company. * ⅜ ⅜ I did not and could not acknowledge the railroad company’s right to property I sold to Abraham.”

Mr. Abraham testified:

“I know the property involved in this suit and claim the property as my land. I had possession; tenants of mine renting from me at $20 per-month for ground rent. I rented the land to Jose Laguna, he had "a good many people on it. I bought the property from E. V. Berrien and wife. There were people living on it when I bought it; there were Mexican shacks on the ground. I had known the property for about two or three years before I bought it. There were people living on it then; there were some Mexican shacks there on the ground. In 1910 there was some sickness among the people living on the ground, and the city authorities ordered the houses torn down. I was claiming the property then. After the shacks were torn down I put a fence on the line where the shacks were. A day or two after I put the fence up employés of the Santa Fé Railroad Company tore it down. Then the next day they came to survey their line, and I went to see what they were doing. I told them they had no business there, and that they had torn my fence down. They replied that they had orders to do it, and said to me, ‘If you make any claim you go to court and file suit; there is no use making any argument; you cannot do anything to us, because we have orders to do what we have done.’ I went a few days afterwards and told my attorney, Mr. Thurmond, about it. The fence that the Santa Fé employés tore down was mine. ■ It was built after the houses had been torn down by order of the city. I put the fence there because I claimed the ground where I put it. I thought the houses there were mine. When Berrien and wife sold it to me they told me, ‘We will give you a quitclaim deed for two lots or more, because we have ^had possession there for a long time.’ They (Berrien and wife) told me they would give me a warranty deed, but would give me a quitclaim deed to this ground. I was in possession, either by fence inclosure or tenant, all the time from the time I bought from the Berriens until the employés of the Santa Fé tore down the fence. I knew the property for two or three years before I bought it and people were living on it then. I leased it to Jose Laguna.”
Cross-examination: “I was not attempting by the claim I was asserting to take any part of the Santa Fé reservation grounds and do not want any Santa Fé reservation. It was not my purpose when I leased to Jose Laguna to claim any property belonging to the railroad company. I was not then, and am not now, claiming any land belonging to the railroad company. When I made the lease to Laguna I was not intending to lease any part of the land claimed or owned by the railroad company. I never lease somebody else’s land.
“There was no intention on my part to have any house built by Laguna or anybody else on the railroad’s property. I do not know that there was any mistake either by me or Laguna as to where the boundary line was when Laguna put his house on the railroad property. I understood, when I bought it, I bought two lots, more or less, nobody claiming it. I understood that if one got possession for some time it was his. I thought when I bought it it was mine, but there was no intention on my part when I made the lease to Laguna to take or claim any railroad company’s land. I did not know at the time Laguna went in on this land that he got on the railroad company’s property; I do not know that now.”
Redirect examination: “I claimed the property where the shacks were that I rented to Jose Laguna as my property. The piece that the railroad took the possession of from me I claimed as my property. If I had not claimed it I would not have put a fence around it. That is the property I leased to Laguna.
“I thought the property belonged to me. After the houses were tom down the Santa Fé Railroad Company, or its employés, told me it was theirs. I told them, ‘No; it was mine;’ that raised the question, I did not know it before.
“I told them I claimed it; that was in 1910. They tore the fence down which I had put up, some three or four days after I put it up.”

Appellant presents three assignments, all of which relate to the sufficiency of the evidence to support the judgment rendered, the propositions submitted in support of the assignments being as follows:

“It is the universal rule that the possession of the party claiming under the statute of limitation must be hostile against the world, including the true owner of the property.”
“Adverse possession is.to be taken strictly, and every presumption is in favor of a possession in subordination of the rightful owner.”
“In order that possession under the statute of limitation may vest title to property in the possessor, it must be hostile to the true owner, must be continuous and uninterrupted under a claim of right to such property.”

As we understand the question presented by the assignments and propositions, the contention is that the evidence discloses the possession was not hostile to the claim of appellant, and therefore not adverse as required by the 10-year@ statute of limitation; further, that, if it was, the same was not continuous for a period of 10 years.

The land conveyed by Watts to Gugerty was in the shape of a triangle with a base line of 70 feet. The description in the quitclaim deed from the Berriens to Abraham is not altogether clear, but it seems that this deed, and the warranty deed by the Berriens to Abraham, conveyed all of the triangular tract covered by the Watts deed. At any rate, upon the trial it seems to have been so regarded, and that the tract now in controversy was the premises conveyed by the quitclaim deed.

As to the continuity of possession, it seems very clear that Mr. Berrien in 1887 took possession of the triangular tract purchased from Watts, and remained continuously in possession by tenants until he conveyed to Abraham in 1906, and that Abraham immediately succeeded him in like possession until dispossessed in 1910. This is quite apparent from the quoted testimony.

As to the other question presented, we think the evidence sufficient to support the finding of the trial court that the possession of both Berrien and Abraham was hostile to the claim of appellant and all others, and therefore adverse.

At the time of Berrien’s purchase the property was staked off and a survey made. It is true the testimony of both Berrien and Abraham 'is that they were not attempting, during the period of their possession, to acquire any land which they thought belonged to appellant, but at all times they were claiming this particular property as then-own and repudiating title in appellant. Berrien testified: “My reason for putting tenants on the property was that I felt it was mine.” Again: “I intended to claim it as mine. I did not know hut what the Santa STS would take another move.” Abraham testified that he was not trying to take the railroad’s land, and was not intending to lease to Laguna the railroad’s land, but at the same time he testified that he thought this land was his; that he did not know when he leased it to Laguna it was the railroad’s property and does not know that now. He further testified that when the company’s employes tore down his fence in 1910 he protested and insisted that the land was his.

We think the evidence sufficient to support a finding that Berrien and Abraham were claiming for themselves in hostility to appellant and all others. This is sufficient. Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153; Charle v. Saffold, 13 Tex. 112; Craig v. Cartwright, 65 Tex. 413. In questions of this kind each case in large measure depends upon its own facts, but, in support of the view that the evidence discloses possession adverse in its character, see Daughtrey v. N. Y. T. & Land Co., 61 S. W. 947; Jayne v. Hanna, 51 S. W. 296; Mann v. Schueling, 68 S. W. 292; Bisso v. Casper, 14 Tex. Civ. App. 19, 36 S. W. 345; Hand v. Swann, 1 Tex. Civ. App. 241, 21 S. W. 282.

Affirmed.
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author: MOURSUND, J.

text:
    INTERNATIONAL DRY GOODS CO. v. LYMAN DRUG CO.
    (No. 6152.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1919.)
    1. Landlord and Tenant <⅜^>79(2), 79(3)— Assignment oe Lease — Efeect.
    Assignment of lease to third person with landlord’s written consent made him landlord’s tenant and released original lessees from their contractual relations with landlord.
    2. Landlobd and Tenant <§=79(1) — Assignment oe Lease — Sublease.
    Where assignee of lease did not reassign to one of original lessees, but merely permitted it to use building with consent or acquiescence of landlord, such original lessee was only a sub-lessee or subtenant.
    3. Landlobd and Tenant <®=>S0(3) — Bbeach oe Lease Covenant — Recovery by Subtenant.
    A sublessee or subtenant, not an assignee of a lease, could not recover damages for breach of one of the lease covenants.
    Appeal from Maverick County Court; E. H. Schmidt, Judge.
    Suit by the Lyman Drug Company against the International Dry Goods Company. From judgment for plaintiff, defendant appeals.
    Reversed, and judgment rendered for defendant.
    Sanford & Wright, of Eagle Pass, for appellant.
   MOURSUND, J.

This is a suit by Lyman Drug Company, a corporation, to recover damages caused to a stock of goods owned by it, and kept in the basement of a building owned by appellant; such damage being caused by overflow water which entered the basement through windows on the sidewalk. Plaintiff alleged that the building had been leased to it and W. L. Lyman, and that the latter had, on or about January 9, 1915, with the consent of appellant, assigned his interest in the lease to plaintiff. The lease contract.was made November 24, 1914. The lease-was to begin March 15, 1915, and end on March 14, 1919. The contract contained a clause binding the lessor to repair the windows on the sidewalk fronting Main street so that overflow water cannot enter the basement; such repair to be made on or before April 15, 1915. Plaintiff alleged that defendant failed to comply with such clause, and that on July 8, 1916, rainwater came through such openings into the basement and damaged the goods of plaintiff to the extent of $322.08.

The defendant answered by a general demurrer and a general denial.

The case was submitted on special issues, in answer to which the jury found that appellant offered to make the repairs set forth in a certain letter of February 3, 1915, by Vaughan to White, which had been introduced in evidence; that such offer was not acceptable to White as an offer to comply with the clause of the lease contract; that such offer was not one to substantially comply with the lease contract; that, from what had taken place between the parties relative to repairing or closing the openings, plaintiff had good reason to believe and was justified in believing at the time the goods were flooded that the defendant intended to and would make such repairs as would be acceptable to plaintiff as a compliance with the lease contract; that defendant was not kept from making the repairs agreed on by any act of plaintiff.

Upon this verdict judgment was entered for plaintiff for the amount sued for, there being no dispute concerning the extent of the damage to the goods.

Appellant contends that at the time the damage to the goods occurred plaintiff was at most a subtenant, and not an assignee ot the lease, and that a subtenant cannot recover damages for breach of a covenant in a lease.

The evidence discloses that on January 9, 1915, plaintiff and W) L. Lyman assigned the lease to J. B. White with the written consent of appellant. White became the owner of most of the stock in the Lyman Drug Company, and permitted said company to use the building with the consent or acquiescence of appellant; the rent being paid by the company to appellant.

The assignment of the lease to White made him appellant’s tenant, and released the original lessees from their contractual relations with appellant. White did not assign the lease to the company and it became only a sublessee, so there was no contractual relation between it and appellant, and therefore it could not recover damages from appellant for breach of a covenant in the lease ■contract. Ruling Case Law, vol. 16, Landlord and Tenant, § 381; Doyle v. Scott, 134 S. W. 828; Davis v. Vidal, 105 Tex. 444, 151 S. W. 290, 42 L. R. A. (N. S.) 1084.

The judgment is reversed, and judgment rendered in favor of appellant. ,
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author: HARPER, C. J,

text:
    HART COTTON MACH. CO. v. GRAHAM GIN CO.
    (No. 935.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 20, 1919.)
    Appeal and Erro® @=>387(5) — Filing op Appeal Bond — Time—Statute.
    Under Rev. St. 1911, art. 2084, requiring filing of appeal bond within 20 • days after adjournment of term at which judgment was rendered, where trial term must have adjourned September 29th, transcript showing it began September 3d, but not showing date of adjournment, or any order extending term, and appeal bond was not filed until October 26th, court had no jurisdiction of appeal.
    Appeal from District Court, Young County; Wm. N. Bonner, Judge.
    Action by the Hart Cotton Machine Company against the Graham Gin Company. From a judgment for defendant, plaintiff appeals.
    Appeal dismissed.
    C. W. Johnson and Thos. G. Binkley, both •of Graham, and Miller & Miller, of Ft. Worth, for appellant.
    Marshall & King, of Graham, and Sil Stark, of Jacksboro, for appellee.
   HARPER, C. J,

This action was instituted by the Hart Cotton Machine Company against the Graham Gin Company to recover the price of machinery sold and delivered, .and judgment was rendered at the September term that plaintiff take nothing by its suit. Motion for new trial was overruled. Notice of appeal was given and entered, but it does not appear that the appeal bond was filed in time to give the Courts of Civil Appeals jurisdiction.

By Revised Civil Statutes 1911, art. 30, subd. 30, the county of Young is in the Thirtieth judicial district, and the term of court in said county is fixed at four weeks, beginning upon the first Mondays in March and September. The transcript shows that the term began September 3d, but does not show the date of adjournment; so, unless the term was extended by order of the court, and no such ord.er appears, it must have adjourned September 29th. The appeal bond was filed October 26th, which is not within 20 days after adjournment as required by statute (Article 2084, Rev. St. 1911); therefore not filed in time to confer jurisdiction upon this court.

The appeal is therefore dismissed.


author: DEVY, J.

text:
    CAMPBELL v. LANCASTER et al.
    (No. 2046.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 30, 1919.)
    Master and Servant <g=>302(3) — Tort of . Servant — Liability of Master.
    If defendant railway’s guard, who had authority to detain persons going into and out of yards inclosing shop grounds of defendant railway, wrongfully detained and shot plaintiff, defendant’s employé, defendant would be liable, although the particular act and detention was unauthorized.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by A. J. Campbell against J. L. Lancaster and another, receivers. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    The shops and shop grounds of the Texas' & Pacific Railway at Marshall, Tex., are fenced, and a guard armed with a pistol is kept at each gate in the fence. The circumstances all show that for several years there had been a number of incendiary fires in the shops, and a great deal of valuable property stolen by outsiders. To stop these depredations the company employed a number of guards, who were authorized to prevent persons from entering or leaving the shop grounds, trespassing, theft, and other undesirable conduct. The appellant and John Green, both employes, had a personal difficulty during work hours. Fighting was against the rules of the railway company. Appellant’s foreman advised him to go at once to town and surrender himself to peace officers. Sam Green, father of the person assaulted, went to Cole, the guard at the south gate and told him not to let Campbell pass out. Sam Green then telephoned for the sheriff to come down, and told the watchman, Cole, that the sheriff was coming. When the appellant got to the south gate, which was the proper one to use in going to town, the guard, Cole, stopped him. According to appellant’s evidence the following occurred:
    “He, the guard, asked me where I was going. I told him I was going home. He said, ‘Do you know anything about that fight?’ I said, ‘No, sir.’ He said, ‘You stay and wait until the sheriff comes.’ I said, T am going'back to the shop to get my clothes^ and you can go with me.’ He said, ‘No.’ I started off, and he shot me.”
    Sam Green stated that the appellant started to run after the guard detained him, and then the guard shot him. That the guard shot the appellant on the premises of the company is not a contested point.
    The suit was hy the appellant to recover damages for the injury. The defendants pleaded that the injury was not inflicted in the course of employment of the guard. The case was tried on special issues, and upon the findings of the jury the .court entered judgment for the defendants. The appellant insists by assignments of error that findings Nos. 2, 3, and 4 are contrary to the evidence.
    T. W. Davidson, of Marshall, for appellant.
    F. H. Prendergast and Brown & Hall, all of Marshall, for appellees.
   DEVY, J.

(after stating the facts as above). The jury decided that the guard had authority to detain persons going into and out of the yards of the defendants. Assuming this finding to he true, then if the guard, Cole, wrongfully detained and shot, and caused injury to, the appellant, the defendants would be liable, although the particular act of detention was unauthorized. Rucker v. Barker, 151 S. W. 872; Railway Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857; Portland Cement Co. v. Reitzer, 135 S. W. 241. And it appears from the evidence that the guard shot the appellant solely for the purpose of compelling him to stay under his detention, and not escape from his custody. It conclusively appears that the guard at the gate was not a peace officer clothed with authority as such to arrest and detain the appellant, and the detention and consequent shooting was, in the circumstance, it is concluded, in virtue of the position of guard. Green’s appeal to Cole to act and detain the appellant at the gate for the offense of assaulting was referable entirely to Cole’s position as guard at the gate.

The second and third findings are merely mixed questions of fact and law; but finding of fact No. 4, that no damage resulted to appellant, is contrary to the evidence, and should, we conclude, he set aside. The fact that appellant was shot and seriously injured is not a contested point in evidence. This ruling necessitates a reversal of the judgment.

Judgment reversed, and the cause re<-manded.
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text:
    MORROW et al. v. PRESTON et al.
    (No. 2049.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1919.
    Rehearing Denied Feb. 27, 1919.)
    1. Gifts <⅜=49(4) — Real Pkofeety.
    In trespass to try title, evidence held sufficient to show parol gift of part of property involved.
    2. Teespass to Tby Title <@=59 — Impbove-ments — Pleading.
    In trespass to try title, defendant will not be allowed to recover value of improvements, where "he did not plead any valuable and permanent improvements.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Trespass to try title by B. H. Preston and others against J. H. Morrow and others. Judgment for plaintiffs, and defendants appeal.
    Modified, reformed, and affirmed.
    T. D. Rowell, of Jefferson, for appellants.
    Armistead & Benefield, of Jefferson, for appellees.
   DEVY, J.

The suit is brought by the appellees in trespass to try title to 576 acres of land, a portion of three headrights in Marion county. The defendants claim an equal undivided interest with the plaintiffs in the land, and they ask that such interest be decreed to them, and for partition of the land.

The land originally belonged to Mrs. Emblem Taggart, who is the alleged and proven common source of title in this case. She had two sisters — Mrs. Preston and Mrs. Stin-son. Mrs. Taggart died prior to Mrs. Preston, and Mrs. Preston, died in 1904. The plaintiffs (Ben, Archie, and Tom Preston) are sons of Mrs. Preston, and the defendants (Mrs. Morrow and Mrs. Baldridge) are daughters of Mrs. Preston and full sisters of the plaintiffs. The plaintiffs set out in their petition that Mrs. Emblem Taggart in the year 1896 gave 140 acres of the land in suit by parol to their mother, Mrs. Preston, and that at her deatli it was to go to the three boys — Ben, Archie, and Tom Preston; the remaining 436 acres of 1;he land was, as alleged, given direct from Mrs. Tag-gart to the said three boys, and they entered into possession, fencing and making permanent and valuable improvements upon the land. The defendants claim and plead in their answer that the land was given by parol from Mrs. Emblem Taggart to their mother, Mrs. Preston, and that she entered into possession and had valuable improvements made on it, and that at the death of their mother the plaintiffs and the defendants all inherited it in equal portions of one-fifth each.

The court made the finding of fact that no parol gift of the land was ever made by Mrs. Emblem Taggart to her sister, Mrs. Preston, or to either of the plaintiffs, but that at the death of Mrs. Emblem Taggart her two sisters, Mrs. Preston and Mrs. Stin-son, as only heirs, each inherited one-hglf of the land. The court further found that the plaintiffs, having procured a deed from Mrs. Stinson for her entire undivided interest, were entitled to recover the whole one-half of the land, and that, each of the plaintiffs and the defendants was entitled to have one-fifth of the other half, which they inherited from their mother, Mrs. Preston, and partition of the land was accordingly directed.

Both the appellants and the appellees assail the court’s finding of fact that there was no parol gift. We conclude that the evidence warrants, as a matter of law, the findjng that Mrs. Taggart made a parol gift of about 140 acres of the land to her sister, Mrs. Annie M. Preston. The letter of September 21, 1895, shows an intended gift by Mrs. Taggart to Mrs. Preston of 100 acres and 40 across the railroad; and the long-continued possession, the use and occupancy, and valuable improvements made in virtue of the letter by Mrs. Preston, in connection with and through her sons for her, and the notoriety of the possession, are perfectly consistent with her holding of the land under ■ the gift evidenced by the letter. And Mrs. Stinson, the only surviving sister of Mrs. Taggart, admits that “I never claimed any interest in this land, because I understood that my sister, Mrs. Emblem Taggart, had given it to my other sister, Mrs. Annie Preston.” Mrs. Stinson’s husband makes the same admission. But we believe the letter above mentioned, in connection with the other circumstances, limits the gift to the 140 acres of land. This gift, though, we conclude from the letter, was intended by Mrs. Taggart to be absolute and unqualified to Mrs. Preston, and was not a life interest to Mrs. Preston as asserted by the plaintiffs. And it is believed that there is evidence sufficient to support the court's finding of fact that there was no parol gift of the remainder of the land to the plaintiffs or either of them. Therefore the plaintiffs are entitled to recover, as decreed by the court, the one-half interest of Mrs. Stinson, passed to them by deed, in the 436 acres of land in evidence; and the plaintiffs (Ben, Archie, and Tom Preston) and the defendants (Mrs. Morrow and Mrs. Baldridge) are each entitled to a one-fifth interest, both in the 140 acres and in the one-half interest inherited by their mother in the 436 acres. And the judgment of the district court should be modified and reformed, so as to allow recovery of the respective Interests of the parties as above fixed. The 40 acres in evidence sold to T. D. Rowell, will be taken out of the interest of Ben Preston in the entire tract in the partition.

The defendants Morrow did not plead any valuable and permanent improvements on the land, and consequently the eighth finding of fact of the court is, on assignment of appellees, set aside, and they will not be allowed to recover for value thereof.

The other assignments of error are overruled.

The judgment of the district court is modified, as above indicated, and, as so modified and reformed, will be affirmed; and the district court is here instructed to proceed in the partition of the land in accordance with this modified judgment. One-half of the cost of appeal is taxed against the appellants, and one-half against the appellees.
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