author: HENDRICKS, J.

text:
    McSPADDEN et al. v. VANNERSON et al.
    (No. 561.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Boundaries (§ 40) — Actions — Jury Question.
    In an action involving a disputed boundary of land, the question whether a corner as located by the surveyors was the true corner held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see. Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. § 40.]
    2. Boundaries (§ 5) — Surveys—Change in.
    Where earlier blocks have already been located on the ground, their location cannot be changed because there is a conflict between them and the description of subsequently located blocks.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 44 — 46; Dec. Dig. § 5.]
    3. Boundaries (§ 37) — Surveys — Office Survey.
    That a survey was merely an office survey may be established by circumstantial evidence.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-194; Dec. Dig. § 37.]
    4. Boundaries (§ 40) — Actions—Evidence —Sufficiency.
    In an action involving a disputed boundary to land, the question whether the line should be governed by courses and distances or by artificial monuments claimed to have been laid out by earlier surveyors held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. § 40.]
    5. Triad (§ 260*) — Instructions—Refusal.
    The refusal of requested charges covered by the general charge is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-059; Dec. Dig. § 260.]
    6. Evidence (§ 317) — Admissibility—Hearsay.
    Testimony that a surveyor told persons for whom he surveyed land that a mound was an established corner is inadmissible as hearsay, not being evidence of general reputation.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    Appeal from District Court, Floyd County; F. P. Greever, Special Judge.
    Action by A. A. Hogan against F. J. Vannerson, who cross-petitioned against D. A. McSpadden and others. From a judgment for plaintiff and the original defendant, the impleaded defendants appeal.
    Affirmed.
    Carl Gilliland, of Hereford, and Martin & Zimmermann, of Tulia, for appellants. Mathes & Williams, Randolph & Randolph, and R. C. Joiner, all of Plainview, for appellees.

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

   HENDRICKS, J.

The land in controversy is situated in block M-15, Swisher county, Tex., which is a block of irregular shape, consisting of 36 surveys, and the field notes of wliicli are signed by one Summerfield; all of tlie surveys of said block purporting to have been made on October 4, 1879.

The field notes in the surveys on the north call to tie to block R. 0., which is immediately east of block W-l; five sections on the west side of the block also join a corresponding number of sections in block W-l, on the west. All the calls in all the field notes call to run either east or west, north or south, and to tie to each other, either by direct calls for each other or by calls through intervening surveys in the same block. Each (call) of said field notes (in each survey), in calling for distance, calls to run 1,900 varas; and each field note only calls for a “mound,” except the field notes to the following surveys: Nos. 2, 3, and 37, the calls for which, beginning at survey No. 2, respectively, call for a “mound” and other objects, and are as follows:

“Field Notes to Survey No. 2.
“Beginning at a mound, S. W. corner sur. No. 1, same block; thence W. 1,900 vrs. to a mound, from which a large lime rock 80 vrs. north of the S. .fork of Red river, brs. 67% W. 910 vrs.; thence N. 1,900 vrs. to the S. W. corner of sur. No. 14, in block R. O.; thence E. 1,900 vrs. to a mound; thence S. 1,900vrs. to beginning.
“Field Notes to Survey No. 3.
“Beginning at a mound, the S. W. comer of sur. No. 2, same block, from which a large lime rock 80 vrs. N. of south fork of Red river bears S. 67% vrs.; thence S. 1,900 vrs. to a mound; thence E. 1,900 vrs. to the S. W. corner of sur. No. 134, block M-Í0; thence N. 1,900vrs. to a mound; thence W. 1,900 vrs. to the beginning.
“Field Notes to Survey No. 37.
“Beginning at a mound the N. W. corner of sur. No. 38, saíne block; thence N. at 562 vrs. to an earth mt. from which bushes at foot of rock hill on side creek brs. S. 13 W. at 1,900vrs. to the N. W. corner of sur. No. 11, same block; thence W. 1,900 vrs. to a mound; thence S. 1,900 vrs. to the N. E. corner sur. No. 39, block W-l; B. 1,900 vrs. to the beginning.”

■ Block R. C., north of block M-15, is composed of 18 surveys, 3 north and south by six east and west, the field notes of which are also signed by Surveyor Summerfield, said block purporting to have been surveyed January 5 to January 7, 1878, and each call in the field notes of each survey is, “Thence 1,900varas a ‘mound,’ ” without any natural or artificial objects as locative calls in the lines of the surveys in said block. Block W-l, partially adjoining block R. O., and likewise partially contiguous to block M-15, as stated, consists of 40 surveys, 5 east and west and 8 north and south, the field notes of which are also signed by Surveyor Sum-merfield, and purport to have been surveyed October 1 to October 4, 1879, and each call in all the field notes of each survey in said block is also, “Thence ' * *• 1,900 varas to a mound,” without any marks, natural or artificial, called for in any of said field notes, except that surveys Nos. 22 and 27 in said block call to cross creek. Block M-9, north of said block W-l and R. O., consists of IS surveys north and south and 12 surveys east and west, constituting 216 in all, and every call in each survey in said block from the beginning call, the same as the other surveys mentioned, is, “Thence * * * 1,900varas a mound,” without any natural or artificial objects suggested for the boundaries of any survey, the field notes of which are signed by H. O. Hedrick, deputy surveyor; the block purporting to have been surveyed from May 20 to May 30, 1876. Survey No. 1, in this block, M-9, calls to tie to survey 101 in block M-8 and 203 in block 6, and blocks M-S and M-9, adjoining each other east and west, situated partly in Randall and partly in Swisher counties, and lie south of block 6, the said block M-8 being 35 surveys north and south, and five surveys wide, east and west, the field notes also having been signed by H. O. Hedrick, deputy surveyor, and said block purporting to have been surveyed from June 28 to July 5, 1876, inclusive; and survey No. 1 in said block M!-8, calls to begin at the southwest corner survey No. 208 of block 6, and each call in all the field notes to the 125 surveys in said block M-8, from the beginning call, is, “Thence * * * 1,900 varas a mound,” without any natural or artifical objects called for in the field notes, except in survey 119, on the east line of the block, there are calls to cross a creek on the east and west lines of said section.

Theoretically, a continuation north of 28 miles of the west line of block M-15, beginning at the northwest corner of said block, a point would be reached upon the map about five miles or five stations east of the southwest corner of survey No. 208, an established corner, in block 6, Randall county, Tex.

A. A. Hogan, as plaintiff, sued the defendant F. J. Vannerson for the purpose of settling the ' boundary lines between sections Nos. 20, owned by plaintiff, and 21, alleged to have been owned by Vannerson, in block M-15, in Swisher county, Tex.; the plaintiff alleging the specific boundaries of 20, according to an iron pipe survey, which is shown by the evidence to have been made by Surveyor Hutchinson, and asserting that Vannerson’s claim of the boundary line of said survey 21 would locate the same 756 varas too far south and 3S2 varas too far east of the correct and true boundary line, stating that, by the incorrect location of Vannerson’s survey No. 21, there is a difference of 255 acres of land in conflict. The defendant Vannerson, after pleading not guilty, impleaded Avery and Smith, as the owners of survey No. 22, contiguous to 21 in block M-15, and also impleaded D. A. Me-Spadden, as the owner of survey No. 23 of said block (22 lying immediately north of the Vannerson section No. 21, and 23 lying immediately west of and adjoining said survey No. 22); and, in Vannerson’s cross-action against the appellants Avery, Smith, and McSpadden, it is charged in substance that if the land of Hogan, the plaintiff herein, is located upon the ground as plaintiff claims, then the land of McSpadden, Avery, and Smith, is in conflict with the true boundary line of his (Vannerson’s land), and further alleges that said Avery and Smith are in possession of a part of said survey No. 21, owned by him (Vannerson).

The earth mound in,the southwest corner of survey No. 208, in block 6,1. & G. N. R. R. survey, Randall county, Tex., likewise the southwest corner of said block, is an agreed established corner, situated over 25 miles north and several miles west of the land in Swisher county, in controversy in this suit, and about five miles west of the west boundary line of block M-15. In. exhibiting the tying of block M-15, Swisher county, to the established corner in block 6, Randall county, by intermediate surveys, one question is whether, from this record, said lands in controversy are to be located by course and distance from the established monument southwest corner of said block in Randall county, or whether block M-15 (in which the lands in controversy are situated) should be controlled in its construction by any calls for purported natural or artificial objects in the field notes of any of the surveys in said block M-15, or should be controlled by any such objects in the field notes of any of the surveys in any of the intervening blocks, or the Dameron corner in block M-6, west of M-8, which would destroy the theory of course and distance from said established southwest corner of block 6. Of course, if the testimony is such as to establish indisputably the proposition that block M-15 could and should be constructed from any natural or artificial object in said block, called for in any of said field notes, the theory of course and distance from the established southwest corner of 208, block 6, would fail; or if there are any natural or artificial objects in any of the intervening blocks (to which M-15 is tied), which would control' a survey fróm said southwest corner of said block 6 — a linear measurement, including an excess (in accordance with the same excess in the corresponding five sections on the north line) of the five sections east of said southwest corner of 208, and thence south to the land in controversy, as contended for by ap-pellee, would also be destroyed — the natural or artificial objects established in the line of surveys in some of the intervening blocks, or in the block in which the land in controversy is situated, would be just as controlling as the southwest corner of 208 in block 6, and course and distance, including the excess in the five miles east, from said 208 in said block, would be inapplicable. Again, if the Dameron corner, the northwest corner of 347, in block No. M-6, partially adjoining M-8 on the west (the field notes of which former block are also signed by Sum-merfield), would control the location of M-8, especially taken in connection with appellant’s theory that the southeast corner of block 6 is indisputably located at a mound with a gas pipe in it, where Hutchinson and Foster seem to have located it, in retracing the east line of said block, the appellee’s theory would also fail. The condition of this record, including as- patient reconsideration of the same as we are able to give, convinces us that neither of appellant’s theories is sound.

First. As to the theory of appellants that the southeast corner of block 6 is in accordance with the testimony of Hutchinson and Foster, making the south line about 300 varas longer than the north line, and whether the jury had the right to reject said corner located by said surveyors, in retracing the lines of said block, we believe the following consideration of said matter resolves the same as a jury question.

• Block No. 6, Randall county,- Tex., consists of 208 sections, 16 sections east and west and 13 sections north and south; and all of the surveys in said block are certified to have been surveyed by Hedrick, the surveyor, on the 29th day of June, 1875. The field notes of all the sections call for 1,900 varas for distance, and “each call in each field note calls to run 1,900 varas to a mound, except as to surveys Nos. 1, 11, 49, 64, 65, 80, and 208. Except as to the calls for adjoining surveys in some of the field notes of said sections, which are immaterial, the following are calls for artificial objects: Survey No. 1, the northeast corner of block, begins at a monument “21X8 feet” the southwest corner of section 221, block B-4; section 65, four miles south of survey 1, on the east line of the block, in calling for the southeast corner of said section, calls for a monument “12 feet at base, 8 feet high, the southwest corner of survey No. 301, block B-4.” Survey 96, immediately south of 65, calls for the same monument 12X8 feet, the southwest comer of 65, which is the northeast corner of said 96. Of course Nos. 1 and 65 and 96 on the east line of the block are fixed, and which latter we necessarily presume are situated south on the proper variation from No. 1; and going south to 193, which is the southeast section of the block, there is no described monument, or any description, or object, except that the field notes of the sections call “1,900 varas to a mound,” on the east line of the block. The east line of this block and the southeast portion of the same, south of the described monument, called for in 65 and 96, falls on and across the Palo Duro canyon, which ap-pellee says is “one of the largest, deepest and most precipitous canyons in the southwest,” which, unless we know the fact judicially, we are unable to ascertain from the record. However, the record does disclose that Mr. Hutchinson, in attempting to. run the eastern portion of the south line of the block, to reach 193, from that direction, had to run the same by projections on account of the roughness of the country at a tributary of the main Palo Duro; and we do know judicially that the Palo Duro canyon is the head of the Prairie Dog fork of the Red river, which, further southeast, is known as the South fork. Going south from 65 and 96 on said east line to 193, the field notes merely call for 1,900 varas to a mound; there is no call for this canyon, nor for any creek, hill, bluff, or natural object.

Enlarging and elaborating this question a little further, we quote from appellant’s witnesses:

Surveyor Foster testified:

“We started from the northeast corner of section 1, block 6, and at the southeast corner of said section we found a small mound and gas pipe, in it, and at the end of the fourth mile we run (from this mound) we found an old mound called for in the original field notes, and I think it was the southwest comer of block B-4. We did not find any others south of that except mounds and gas pipes that Geraud put in. He also put the gas pipes we found in surveying the north line. When we got to the southeast corner of the block, we found a mound with a gas pipe in it. I do not remember much about how large it was. Tt seems to me now that it was four or five feet in diameter.”

He further said the ground was covered with snow, and he could not then tell whether the mound at that place was large or small.

Appellant’s witness Hutchinson, who was with Mr. Poster on this survey, testified:

“I found there (the southeast corner) what is called a mound. The last time I was there it was pounded down by cattle, and there was a hole in the ground with a pipe in the hole.”

The testimony of the witnesses in regard to the small mounds, with reference to the original location of block No. 6, is correlated to several questions affecting the disposition of the case, and to explain further: Surveyor Hutchinson, appellant’s witness, constructed block M-15, in which the land in controversy is situated, designated herein as the iron pipe survey, by going to the southwest corner of the block, section 208, by following the line of mounds, “not thoroughly grassed over, five stations east, with an excess to a mound near an old dim trail, called for in what is known herein as ‘the McClelland run,’ ” in order to arrive at the beginning of the block line between M-8 and M-9. He says:

“At the southwest corner of block No. 6, I found a good, large mound, pretty fairly rounded up, and it was probably a foot or two high, or something like that. * * * In each of the mounds running east from this place there was a pipe. Those pipes, I understood, Geraud had placed there. These mounds were not thoroughly grassed over is my recollection now, in 1890.”

Appellants, in reasoning upon this matter, contend that survey 208, the southwest corner section of the block, is the youngest survey in the block (though the surveyor certified that the block was surveyed in one day); ; that the east line of the block was uncontra-dictedly established by Poster, in connection with Hutchinson’s testimony, by “objects found on the ground, as called for in the original field notes” (which the jury had a right to believe that Geraud placed there); and further says:

“The parties have agreed that block 6 in Randall county is correctly located and established on the ground.”

And it “therefore conclusively follows, if the field notes of plaintiff’s land call for the east line of 6 (meaning through intervening 'blocks), * * * he is not entitled to recover on his west slide.” Paragraph 9 of the agreement in the record is as follows:

“It is further agreed that the said block No. 6, in Randall county, Tex., is correctly located and established on the ground, and that its lines and corners are as testified to by Gapt. A. S. Howren and W. B. Hutchinson. * * *”

Paragraph 13 of said agreement:

“The testimony mentioned in paragraph 9 above was given by said Capt. A. S. Howren and W. B. Hutchinson in another cause, heretofore tried, involving similar questions as herein involved, in which former trial said Gapt. A. S. Howren testified that the excess in the north lines of surveys Nos. 12, 13, 14, 15, and 16, block 6, I. & G. N. Railway Company, Randall county,_ was 94 varas, and said Hutchinson testified in said former suit that such excess was 114 varas.”

The qualification in paragraph 13 that the 'testimony in the former trial, mentioned in paragraph 9, was in regard to the excess in the five eastern surveys on the north could not be regarded as an agreement that the location of block 6 upon the ground is in accordance with the testimony of Hutchin-soñ, corroborated by Poster, in this trial; if so, appellants do not need any argument as to a part of the cause; the agreement concludes it. Hutchinson’s conclusions in this trial, as to the south line of block 6, by which he locates the northeast corner of M-8 and the northwest corner of M-9, in connection with his testimony as to the location of the southeast corner of said block 6, which conforms to that of Poster, would end that part of the case. Appellee’s allegation in his petition as to a west slide would be futile; and his alleged position that the excess, in the five sections east of 208 in block 6 (in order to reach the common northeast and northwest corners of M-8 and M-9) is the same excess as in the corresponding five sections on the north would also be totally destroyed; notwithstanding this, we would not hesitate, of course, to give an agreement the emphatic effect to which it is entitled, but the testimony, in the former trial, of Howren and Plutchinson, as to the location, in said trial, except as indicated by paragraph 13 of the agreement, is not shown.

According to the Hutchinson-Foster survey, for the southeast corner of block No. 6, the south line of the block, as situated, would be 300 varas longer than the north line. Poster says that the mound at the northeast corner of the block was also a large mound similar to the others called for in the field notes, about 12 feet in diameter, and starting south from there, at the southwest corner of block B-4, they found another old mound called for in the original field notes, and we are unable to presume that this described mound, the common corner of 65 and 96, and the southeast comer of block B-4, as called for in the original field notes, was off its course, the record does not show it was not south and not with the variation as called for in said original field notes, and if the jury had a right to conclude that Geraud put in the small mounds to the southeast corner of the block, making the same SOO varas east of the northeast corner of the block they had a right to presume that the true line from said northeast corner south to the monument, as called for in said field notes, at surveys 95 and 96, and thence south course and distance, would locate the true southeast corner of said block, and make the south line practically conform to the north line of the block.

The defendant McSpadden, by requested charge, given by the court, evidently solicited a finding of the jury as to the location of the land in controversy, by course and distance through the intervening surveys, from the southeast corner of 193 in block 6, if they believed that “said southeast corner is an original corner,” and the jury found against this theory, with reference to which the evidence was sufficient.

Second. As to the influence of the Dameron corner affecting the land in question, the defendants McSpadden, Avery, and Smith requested the following charge, which was given by the court:

“Xou are instructed that if you find and believe from the evidence that the original surveyor, John Summerfield, intended to and did locate the land of plaintiff course and distance from the southwest corner of survey No. 347, block M-6, Castro county (that is, that the land of plaintiff was located on the ground the actual course and distance called for in the intervening field notes between the survey of plaintiff and said southwest corner), and you further believe that any call for an original corner at the southwest corner of 208, block 6, in the field notes intervening between plaintiff’s land and said survey 347 was a mistaken call, and further find that said southwest corner of 347 is located on the ground as testified to by the witnesses Foster and Hutchinson, your verdict will be for the defendants.”

Block M-6, a large block 18x20 sections in width and length (360 sections in all), beginning with section 6 of M-8, lies immediately west of .the latter block. Survey No. 1 of M-8, and the initial section of the block, is tied to the established southwest corner of block 6, Randall county. Immediately north of M-6, and immediately east of M-8, for the length of five sections of the latter block, is the J. Gibson survey, which, according to the map, corners with M-8 and block 6 at section 208, of the latter block, where the agreed established corner is situated. Any survey we have in this record indicates that M-6 does not reach M-8, at least by any run made from the Dameron corner east to a point, in order to make M-15 conform to the same. It is true M-6 is an older block than M-8; but, according to the evidence here, it at least has its full complement of land east and west; being an older block, it takes its position on the ground entitled by the field notes. It is hard for us to understand the position of appellant as to the theory of the Dameron corner as a preponderating influence with reference to the location of M-8, M-9, and M-15, along with R. O. and W-l; they cannot contend that survey 1 of M-8, five miles north of M-6, could be torn from the established corner of 208 in block 6 and, for aught this record shows, pull it over on the Gibson; and, if such a movement could not occur, then to begin with survey 6 in block M-8 and pull it over to M-6, and if M-6 extends only as far east as the evidence here indicates, speaking for this proceeding only, would be equally untenable. Again, block M-9, an older block than M-6, also theoretically senior to M-8, must of course join M-8, and assume the position that block assumes with reference to the division boundary between them. Why survey No. 1 of M-9, adjoining M-8 and block 6 (east of the former and south of the latter), should not begin at a correct distance, the same as M-8, east of 208 in block 6, which has an established corner, is not soluble by any reasonable rule attempted to be applied to this record. Applying appellant’s oft-used expression, if we followed their logic in regard to the Dameron corner, it would destroy the configuration of the block; and the jury at least had a right to reject such a “configuration.”

Third. As to the north and south lines of block M-15, in which the controverted land is situated, the appellants insist that, beginning at the proper point, east of the southwest corner of block No. ©, thence south between M-8 on the west and M-9 and W-l on the east, in order to reach M-15, there are mounds on the block lines for 21 stations, averaging a distance of about 1,917 varas between the stations, of sufficient controlling significance as to destroy the theory of a survey by course and distance from the agreed established comer in said block 6, admitting the excess of 94 or 114 varas in the corresponding five sections on the north of said block. It is shown that when an old pasture fence, designated in this record as the J. A. fence, was constructed in 1885, these mounds were in existence along the purported block lines as indicated, and one witness testified that said mounds were grassed over at that time, suggesting, of course, a previous construction of same at some period antedating the construction of the fence.

It is shown in this record that one T. S. McClelland, in February, 1884, for the purpose of running a connecting line between the northwest corner of survey No. 80 in the west line of block No. 6, Randall county, and the northwest corner of survey No. 156, in block A, A. & B. survey, in Swisher eoun- ' ty, called for these mounds, and the Jury could infer, constructed them, also the other artificial objects otherwise mentioned along this line, or in other portions of same on the same run. McClelland began at the rock monument six feét at the base and six feet high on the edge of a steep bluff, at the head of the Ralo Duro canyon, for the northwest corner of survey No. 80 (called for in the field notes of block 6), and then surveyed south “to a large earth mound' for the southwest corner, of block No. 6, * * * thence ran east 9,500 varas to earth mound, with cedar stake 26 varas west of old dim trail for the southwest comer of 203,” in order to obtain the beginning of the division boundary line between M-8 and M-9. He then ran “south 9,500 varas to a large earth mound with cap rock, marked “X” on high divide of plains for the southwest corner of survey No. 5, block M-9.” He then continued south, each mile marked with mound, 24,700 varas, to another earth mound, with a cedar stake, marked “X” for the southwest corner of survey 18, said block M-9. He then continued south, “with each mile marked with mounds, stones, and stakes, 15,200 varas, to large earth mound with cedar stakes and buffalo bones on top 80 varas west of lake, being the southwest córner of block W-l, Swisher county,” thence going east, thence south, thence east again, for the connection with block A. Mc-Clelland certifies:

“That the above is a true and correct copy of field notes taken in the field, and that the corners and marks, both artificial and natural, are truly described.”

Surveyor Hutchinson afterwards constructed M-15 by using these particular mounds believed by him to be the block lines between M-8 and M-9 and W-l, and assuming them to be the original survey for Gunter & Munson. It is shown that Hutchinson had a copy of McClelland’s “run” the first time he ever found the particular mounds in question. Considering his certificate, it is inferable as a Jury question that these were the same mounds described by him. At the point McClelland turned south he ran 9,500 varas to the large earth mound with , cap rock marked “X” on the same; when Hutchinson turned south he ran a distance of 9,698 varas to reach this mound. McClelland ran éast 9,500 varas from the southwest corner of block 6, to the earth mound with a cedar stake 26 varas, “west of an old dim trail.” Hutchinson, in going from the southwest comer of block 6, five stations east of there, ran each station 1,961.8 varas to the mounds, which he says were not thoroughly grassed over in 1890, and as before stated, the jury could have inferred, were placed there by Geraud. As to this particular run, he says:

“At the end of the fifth mile, in making this east run from section 208, I ran east there 54 varas and then turned south 181 varas, I ran east 54 varas to that mound. It was an old flat mound out on the prairie, and just on the southwest side of it was an old trail— * * * a buffalo trail. * * * At that time we were south and east of block 6, five miles and 360 varas.”

The corresponding excess in the northern five sections, as stated, from the northeast corner of the block, is, as agreed to, either 94 varas, according to Howren, or 114 varas, according to Hutchinson, in accordance with the established corner at section 12, called for in the field notes of the block — a described monument the same as others described in said field notes, except the southwest corner of 208, which is called a mound instead of a monument While the distances are different, the objects are the same in comparing the two surveys, in tracing the lines through on the “McClelland run.”

The field notes of blocks 6, M-6, M-8, and M-9 were certified to by Surveyor Hedrick, who was not a practical surveyor and was not in the field doing the work, or assisting in the same. John Summerfield, the surveyor in charge of the Gunter & Munson work, certified to the field notes of blocks W-l and M-15, and testifies:

“There was not any survey made of the east line of block M-8, to my knowledge, before the same was platted in. The field notes of the survey in said blocks M-6, M-8, M-9, M-13, M-15, and W-l were made out in Gunter & Munson’s office, Sherman, Tex., as the certificates were applied for.”

And he also says:

“I did the field work (that is, the actual surveying), that was done for Gunter & Munson, during the year 1876. H. C. Hedrick, who was not a practical surveyor, was never in the field, signed the field notes to the surveys in blocks M-6, M-8, and M-9, in Castro, Randall, and Swisher counties, after I had platted and made them out on the lines described in my answer to direct interrogatory No. 13.”

And when you consult direct interrogatory No. 13, you find a “cross-country” run, not necessary to delineate, at which time Sum-merfield located the Dameron corner (after-wards the northwest corner of 347 in said block M-6); and at that point the party split, Mr. Summerfield, with a division of the party, surveying south, and Mr. Gunter, in charge of the other portion of the party, surveying east from said established object, the two parties evidently intending to connect, which connection was never properly made. It is suggested in this record, at least as a jury question, that no member of Gunter & Munson’s party, by whom the particular lines and cross-country surveying was being made, constructed any such mounds and erected any of the artificial objects called for in the McClelland connecting line as certified to by him; though block M-8 is junior to M-9 (block M-9 being senior to both), Summerfield testified, as stated, that while Hedrick, who was never in the field and was not a practical surveyor, and signed the field notes to the surveys in the three blocks mentioned, they were platted and made on the lines described in the general surveying ran by him in 1876; and the record discloses .that very little of the east run from the Dameron corner, made by the Gunter portion of the party, was adopted when said block M-6 was platted in. Hence it is suggestive, as a jury question, that McClelland, eight years after the parties were in the field, constructed said mounds and also the other artificial objects, mentioned along the “McClelland run,” or adopted the work of some other person, not connected with the original surveying done by the Gunter & Munson party in that country. If the jury, as a question of evidence, had the right to find this, and, as an additional matter of evidence, had the further right to find that Ge/aud placed the smaller mounds over 1,900 varas apart on the five-mile run east of the agreed southwest corner of the block, as well as the mounds and gas pipes from the common corner of 65 and 96 on the east side of the block, south to the purported southeast corner of the same, and that McClelland established the monument near the old buffalo trail, and that the original surveyors had not established the same as to block 6, then they had the right to infer that M-8 and M-9 were tied to block 6, as the latter is located by the five described artificial objects called for in the field notes of said block 6, by course and distance from the southwest corner of said block, giving effect, however, to the excess either 94 or 114 varas east of said corner, corresponding to the same excess in the corresponding five sections on the north. In accordance with this construction, blocks Nos. 6, I. & G. N., and blocks M-8 and M-9, south of block 6, and the common corners and the “configuration” of the blocks, would be harmoniously maintained.

That a survey was an office survey may he proven by circumstantial evidence is well settled ; and, as we think quite pertinently suggested by the appellee, some of the circumstances showing that the lands involved herein, blocks M-6, M-8, M-9, W-l, E. C., and M-15, were office surveys may be stated as follows: The 360 surveys in block M-6 were made in 20 days; the 216 surveys in M-9 were made in 10 days; the 124 surveys in M-8 were made in 7 days; the 40 surveys in block W-l were made in 4 days; and the 36 surveys in block M-15 were made in one day. As shown by the maps introduced in evidence, and as suggested by other testimony, there are creeks and canyons in the country covered by some of the blocks, which are not even mentioned in the field notes. Cedar draw runs through both M-8 and M-9, and is not mentioned; the North Tule canyon runs through M-8, W-l, and 'M-15, and is not mentioned, except that the field notes of 119, M-8, call to cross a creek, but do not say at what distance, and there are two points or calls for natural objects in M-15— a call for bushes at the foot of a rocky bluff and the call for a rock. South Tule canyon also runs through blocks W-l and. M-15, and, in so far as you could determine from the field notes of M-15, there is no such thing as South Tule canyon. Two surveys in block W-l, Nos. 22 and 27, call to cross a creek, giving, however, no distances. Of course Summerfield and Gunter knew that there were creeks in the country, but we think it is clear what few calls there are for creeks are not locative but only descriptive calls. The witness Hutchinson, who surveyed the iron pipe survey from the southwest corner of block 6, with the mounds as mentioned, had attempted to locate every survey in Swisher county, and attempted to place himself at three corners of every survey in said county, and never found any mounds. It is true that the bushes and the limestone rock are not mentioned as having been found and identified by any witness in this record, but the jury may have well considered, in connection with Summerfield’s testimony, that the field notes of the surveys in M-15, in calling for natural objects, as bearing calls, was guesswork or mistaken calls. The field notes to survey No. 1 in block M-15 call to tie to survey No. 13 in block K. C. Block E. O. is unquestionably an office survey. While the particular field notes of survey No. 1 are not mentioned in this record, however, it is stated that each of the field notes of the different surveys in M-15, except Nos. 2, 3, 11, 15, and 37, “in calling for distance, calls to run 1,900 varas and each call for a mound.” Survey No. 2, invoked by appellants, calls for “a beginning at a mound the southwest corner of survey No. 1, same block; thence west 1,900 varas to a mound, from which a large lime rock 80 varas north of the Smith fork of Ked river bears 67% west, 910 varas; thence north 1,900 varas to the southwest corner of survey No. 14, in block E. O.; thence east 1,900 varas to a mound; thence south 1,900 varas to the beginning.” These are “mound” surveys, which Hutchinson never found. The jury had the right to consider that the mounds called for in the field notes were “office mounds,” and, if the corners'never had any “footsteps,” they had the right to reject the bearing calls, especially taking into consideration the testimony of appellant’s own witness, Hutchinson. Surveys Nos. 3, 11, and 37, in the same block, are equally in the same condition with reference to the calls for objects controlling the location of block 15. The demand for a peremptory instruction by the defendants, with the ten propositions of appellants following tlie assignment', are disposed of by tbe foregoing discussion.

Tbe court, in tbe first paragraph of bis general charge to tbe jury, indicated that tbe lines and corners of block 6, as testified to by tbe witness W. B. Hutchinson, correctly located that block upon tbe ground; however, in other portions of tbe general charge, and as ^manifested by tbe special charge solicited by tbe defendants and given by tbe court, mentioned in this opinion, with tbe exception of tbe undisputed artificial objects called for in tbe field notes of block 6, tbe location of tbe block otherwise was left to the jury as a litigated issue.

Appellants assign error as to tbe action of tbe court in refusing tbe following special charge:

“If you believe from the evidence that block M-15 is an office survey, and you further believe that the southeast corner of block W — X is marked and defined by a mound; as testified to by W. B. Hutchinson, placed there by the original surveyor prior to the writing of his field notes, or by some other person called for by him in his field notes, then your verdict will be for defendant.”

We think the general charge of tbe court comprehends tbe question attempted to be injected by this charge. Tbe suggestion to tbe jury in this charge as to tbe southeast corner of block W-l has reference to a corner shown by bis field notes in tbe McClel-land run, previously discussed. We believe no error is shown in this matter.

Tbe appellant excepted to tbe action of tbe court, illustrated by the following condition : While Conner, a witness for the defendant, was being examined by plaintiff’s counsel, be was asked tbe following question:

“State if you can say it (referring- to a mound near Gray’s house, about two miles west of Tulia) had a general reputation as a corner.”

To which the witness answered:

“Mr. McClelland told those parties he surveyed for it was.”

Thereafter tbe court, upon motion of plaintiff, eliminated this testimony from tbe record, admonishing defendant’s counsel not to argue the same, which we think was entirely proper, as the evidence is clearly inadmissible. In view of the record in this case, we can see no injury or any error in the action of the court in refusing to submit to the jury appellant’s fourth special requested charge. The criticisms in the general objections, leveled at the court’s general charge, assigned by tbe appellants, are not well taken.

Tbe original opinion in this case is withdrawn, and as to certain portions of this case, different reasons having been given for the affirmance of the judgment of the lower court, the appellants, if not already entitled to the same, are given 15 days in which to file an amended motion for rehearing in said cause.

It is ordered that the motion for rehearing be in all things overruled.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    ROBERTS et al. v. NUNN.
    (No. 640.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Partnership (§ 227) — Manner of Becoming.
    Where three persons entered into an agreement to purchase a tract of land /for resale and to share the expenses and profits, if any, in proportion to their respective shares, defendant, who purchased the interest of one of the three original parties, became a partner, where he acquiesced in the arrangement, and so was liable for his share of the expenses, for a partnership need not be created by express contract.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 143, 473-475; Dec. Dig. § 227.]
    2. Partnership (§ 52) — ¡Relation — Prima Facie Evidence.
    An agreement to share profits and losses of a venture is merely prima facie evidence of partnership, and may be rebutted by proof of another agreement.
    [Ed. Note — For other cases,.see Partnership, Cent. Dig. §§ 75, 79; Dec. Dig. § 52.]
    3. Partnership (§ 58) — Dissolution.
    A partnership is at an end when the particular transaction or venture for which it was organized is concluded.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 83; Dec. Dig. § 58.]
    4. Partnership (§ 243) — Dissolution — Death of Partner.
    The death of one member of a firm dissolves the partnership and casts upon the survivors the duty to wind up its affairs.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 509, 510, 512, 513; Dee. Dig. § 243.]
    5. Partnership (§ 321) — Accounting —Accrual of Right of Action.
    Plaintiff, who was a member of a firm, engaged to deal in land, paid off a firm debt two years after the last of the land had been sold, which sale occurred shortly after the dissolution of the firm by the death of one of the partners. Rev. St. 1911, art. 5688, subd. 3, imposes a four-year limitation upon actions by one partner against his copartner for settlement of partnership accounts. Held, that plaintiff could, at any time within four years after payment, sue his copartner to compel him to pay his proportionate share, for the firm, though dissolved by the death of one of the partners and the closing out of its business, continued in legal contemplation until payment of debts, and plaintiff’s right of action to compel a settlement did not accrue until his payment.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 742-745; Dec. Dig. § 321.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by W. S. Roberts and others against G. J. Nunn.’ From a judgment for defendant, plaintiffs appeal.
    Affirmed in part, and in part reversed and remanded.
    Gustavus & Jackson, of Amarillo, for appellants. Synnott & Underwood and S. E. Fish, all of Amarillo, for appellee.

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

   HUFF, C. J.

Appellant W. S. Roberts, joined by Mrs. J. V. Templeton, 'formerly Mrs. S. V. Gist, for herself and as next friend of tbe minor children of herself and deceased husband, brought suit against G. J. Nunn, in which they allege that on June 12, 1906, W. S. Roberts, S. V. Gist, ana R. A. Wells entered into an agreement to purchase 2y2 sections of land in Potter county, for the purpose of resale and speculation, by which agreement they agreed to share in the profits and losses in handling the land in proportion to their respective interests, and that they were partners in the transaction, and that on June 22, 1906, R. A.. Wells sold out his interest in the partnership to G. J. Nunn, and that on the 26th day of April, 1907, S. V. Gist died, etc. He then sets out the management, sale, distribution of part of the proceeds, and certain items which he claims that Nunn is due the partnership and due the estate on contribution, and that the appellee claims certain offsets, etc. The appellee answered by general and special exceptions, plea of two and four year statutes of limitations, denying owing any of the sums of money set out, and denied partnership. The findings of the trial court will sufficiently particularize the issues, without further mentioning them in the pleadings. The court found as follows:

“Findings of Fact.
“(1) That on June 12, 1906, plaintiff, W. S. Roberts, R. A. Wells, and S. V. Gist, jointly purchased of James Free, John Free, and Stanley Free surveys 102, 134, and the east one-half of survey 158, in block 2, A. B. & M., lands in Potter county, Tex., paying therefor the sum of $8,120 cash, and assumed the payment of six outstanding vendor’s lien notes, aggregating about $14,280, against said lands, which notes were held by one R. R. Chanslor. The said Roberts was to have an undivided one-half interest in said lands, and the said’ Wells and Gist were to each have an undivided one-fourth interest therein, and, as among themselves, they were to be held liable on the assumed notes in proportion to their respective interests in the lands.
“(2) That said lands were purchased by said parties for the purpose of speculation; that the same were to be resold, and the parties were to share in the expenses, profits, and losses in the handling the property, in proportion to their respective interests in the lands. And after they became the owners thereof they agreed among themselves and fixed prices for which each tract or part of tract should be sold, etc., and each party was to seek purchasers, and a 5 per cent, commission was to be allowed to any one of them finding a purchaser. But the land or any part of it should not be sold for a less price than that agreed upon, except by consent of all the interested parties.
“(3) On June 22, 1906, R. A. Wells sold and conveyed his undivided one-fourth interest in said lands to the defendant G. J. Nunn for the consideration of $2,000 cash and the assumption on his part of the outstanding vendor’s lien notes held by said Chanslor against the land. - This sale and conveyance was made without Wells or Nunn consulting Roberts and Gist, and no new express agreement, as to the handling and sale of these lands, was entered into by Roberts, Gist, and Nunn, after Nunn became the owner of Wells’ interest. But, soon after Nunn bought out Wells, he (Nunn) and Roberts together discussed the said agreement between Roberts, Gist, and Wells, and he made no objection to it, and the subsequent sales were afterwards made substantially at prices and terms agreed upon between Roberts, Gist, and Wells.
“(4) Before any part of these lands were sold, one of the Chanslor notes matured and was paid off by Roberts, Gist, and Nunn; each contributing such part thereof as his interest .in the land represented.
“(5) On January 4, 1907, plaintiff W. S. Roberts with the assistance of other outside parties, procured a purchaser for section 102, in the erson of A. C. Neff, for a cash consideration of 11,840. From this sum some minor expenses were paid; $640 was paid as commissions to W. S. Roberts and those assisting him in making the deal, enough was paid on the Chanslor notes to procure from him a release of his vendor’s lien on said section, and the remaining sum was divided between Roberts, Gist, and Nunn, proportionately to their respective interests in the land. Conveyance was duly executed by Roberts, Gist, and Nunn to A. C. Neff for said survey 102, and the transaction closed. Roberts made the deal with Neff, received and disbursed the cash received, and rendered statement of same to Gist and Nunn, and they made no objection to the same.
“(6) On February 20, 1907, Roberts and Gist sold and conveyed their undivided three-fourths interest in section 134 to defendant G. J. Nunn, for the consideration of and at the rate of $19 per acre, for their 480-acre interest in the survey, making the aggregate price the sum of $9,120, thereby placing the entire title to the section in defendant Nunn. . Included in said $9,120 was the assumption by Nunn of three-fourths ($4,575) of the sum of $6,100 owing to Chanslor by the vendor’s lien notes held by him against said section, for the payment of which $6,100 lien, Roberts, Gist, and Nunn were all jointly liable, but, as between themselves, Roberts was liable for $3,050 thereof, Gist for $1,525, and Nunn for $1,525. Nunn was only able to pay Roberts and Gist, at that time, the sum of $1,515 cash on the trade, and therefore not able to then liquidate the $6,100 owing on the Chanslor lien. Roberts and Gist, were desirous of being relieved of their liability on the Chanslor notes for said $6,100 lien, and to consummate the trade, and at the same time accommodate Roberts and Gist, Nunn paid them $1,515 cash on the trade, and executed two notes for $1,515 each, payable February 24, 1909 and 1910, respectively, and one note for $3,060 payable February 24, 1911, all signed by G. J. Nunn and payable to the order of W. S. Roberts and S. V. Gist, and Nunn also executed a deed of trust on the section to secure payment of said several notes, and in this trust deed gave priority of payment to the said two notes of $1,520 each, and said note for $3,060. These last-mentioned notes, aggregating $6,100, were transferred, by Roberts and Gist, over to R. R. Chanslor, in order to release the land of his lien and to relieve Roberts and Gist of their liability on the Chanslor notes against said section of land. The said several notes executed by Nunn to Roberts and Gist included the $1,525, for which Nunn was already liable to Chanslor, as his part of the $6,100 lien, held by Chanslor against the survey; and, after the Chanslor lien was so taken up, Nunn became the sole and only obligor for the lien covered by his said notes and deed of trust. Roberts and Gist divided the cash and the two first notes of $1,515 each between themselves, and that closed up the sale of their interest in the survey to Nunn.
“(7) On February 25, 1907, Roberts, Gist, and Nunn sold and conveyed to J. T. and M. R. Clark the southwest one-fourth of the southeast quarter of section 158, bejng 40 acres, for the consideration of $1,000, a part of which was paid in cash and the balance in vendor’s lien notes on the tract sold. Roberts procured this trade. For the deferred payments the Clarks executed their vendor’s lien notes, one of which notes was made payable to the order of W. S. Roberts in a sum equal to one-half of the deferred payment, and the remaining half of the deferred payments was divided equally and the notes executed therefor, payable to Gist and Nunn, respectively. Roberts received the cash and notes given for bis 40 acres, and after deducting the amount of an expense bill, made by him in accomplishing the sale, and his commissions for making it, Roberts reserved to himself one half of the balance of the cash received and the note made payable to him, and the remaining half of the cash he divided equally) paying one part to Gist and the other to Nunn, and also delivered to them their respective notes for deferred payments, and the entire deal was closed satisfactorily to all parties concerned.
“(8) On the 9th day of July, 1907, Roberts, Gist, and Nunn sold 80 acres, being the north one-half of the southeast quarter of section 158, to R. M; Sooter_, for the sum of $2,000, a part of which was paid in cash and the balance in vendor’s lien notes, payable separately to Roberts, Gist, and Nunn, in proportion to their respective interests in the land. Roberts procured this purchaser, and the consideration was delivered to him. Out of the cash received on this sale, Roberts paid enough on the Chans-lor notes to secure a release of that lien on the tract sold, settled the expenses incurred in making the sale, reserved to himself his commissions, and divided the cash and notes between himself and Gist and Nunn in the same manner as was done in the sale of the 40 acres to the Clarks, and thus closed the entire deal satisfactorily to all the parties concerned.
“(9) On the 10th day of September, 1907, Roberts, Gist, and Nunn sold and conveyed to Nunn and Boetcher 40 acres, same being the southeast one-fourth of the southeast quarter of said section 158, for the consideration of $1,600, a part of which was paid in cash and the balance in vendor’s lien notes, payable separately to Roberts, Gist, and Nunn, in proportion to their respective interests in the land. Roberts procured these purchasers, and the consideration was delivered to him. Out of the cash received on the sale, Roberts paid enough on the Chanslor lien notes to secure a release of that lien on the tract sold, settled the expenses incurred in making the sale, reserved to himself his commissions, and divided the cash and notes for deferred payments between himself and Gist and Nunn, as was done in the sales to the Clarks and Sooter, and thus closed the entire deal satisfactorily to all the parties concerned.
“(10) On April 3, 1908, Roberts, Gist, and Nunn sold and conveyed to D. J. Muncey 160 acres, same being the northeast quarter of said section 158, for the consideration of $4,000, 4 part of which was paid in cash and a part in vendor’s lien notes, payable separately to Roberts, Gist, and Nunn, in proportion to their respective interests in the land, as had been done in previous sales to other parties. Roberts also procured this purchaser, and the consideration was delivered to him as in the other sales. This being the last tract of land, jointly owned by Roberts, Gist, and Nunn, the trade was so made with the purchaser, Muncey, that he (Muncey), in addition to the cash and notes executed and delivered by him to said Roberts, Gist, and Nunn, assumed payment of the balance owing to Chanslor on the vendor’s lien notes held by him against the land. Before consummating the trade with Muncey, Roberts made inquiry of Chanslor of the amount of the balance owing to him on his said vendor’s lien notes, and Chanslor informed him that it amounted to the sum of $1,506.85, wh’ich Mun-cey assumed and became obligated to pay to said Chanslor, and the deed to Muncey so stated. All the parties concerned, at that time, thought and accepted that said $1,506.85 was the balance and correct amount owing on said notes to Chanslor. Thereupon Roberts, Gist, and Nunn settled up and divided among them-selves_ the cash and vendor’s lien notes received on this Muncey deal, according to their respective interests in the land, as had been done in previous sales, and to the entire satisfaction of the interested parties, and their joint dealings were at an end, or would be when Muncey paid the amount to Chanslor which he had assumed to pay.
“(11) Finding that he was in error in stating that $1,506.85 was the amount owing him on the vendor’s lien notes against the said lands at the time of said sale to D. J. Muncey, he (Chanslor) on November 3, 1910, notified W. S. Roberts of his mistake, stating that it came about by his giving only the principal sum due, to wit, $1,500.85, and in doing so he had overlooked and omitted to compute the interest on said notes, and demanded payment of same of Roberts, and threatened to institute suit for the collection of the sum claimed and to foreclose his vendor’s lien on the premises sold to Mun-cey. The notes, at the time, being out of the way, Roberts, in order to avoid a law suit, paid Chanslor the sum of $1,000; that amount being approximately the balance claimed by Chanslor. S. V. Gist having died previous to said time, Roberts called on his heirs and defendant'Nunn for contribution of their proportionate part of said $.1,000 so paid by Roberts. The part owned by the heirs of Gist was adjusted and settled with Roberts, but he failed to get to a settlement with defendant Nunn. In February, 1912, Muncey paid Chanslor the principal and interest he had assumed, and aft-erwards, in the same year, Chanslor refunded to Roberts the sum of $262, which reduced the $1,000 paid by Roberts to the sum of $738, one-fourth of which is properly chargeable to defendant Nunn, and which sum he has never paid.
“(12) Each and all the deeds to purchasers of these lands were jointly'' executed by W. S. Roberts, S. V. Gist, and G. J. Nunn, in their individual capacities and names. And no partnership books or joint running account were attempted to be kept by the parties, or either of them, on account of their joint interests, but each transaction in the sale of any part of said jointly owned lands, upon the completion of such sale, was immediately adjusted, settled, and closed up between Roberts, Gist, and Nunn.
“(13) This suit was originally filed August 22, 1913.”

The findings of fact by the trial court, paragraphs 2 and 3, together with the other findings, constitute an agreement of partnership in the business of buying and selling the land in question. The facts, as found by the court, show that Nunn purchased the interest of Wells, assuming his obligation in the partnership, and, when told of the original agreement between Roberts, Gist, and Wells, made no objection to it, and all subsequent sales were made in accordance with that agreement, and appellee Nunn participated therein. Having so acquiesced and participated, we think he thereby became a party to the agreement, which clearly brings him under the rule announced by Judge Phillips in the case of Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S. W. 122. The contention of appellee in this case appears to be because the parties to the agreement did not in terms designate the agreement as a partnership; therefore there was no partnership entered into. A partnership is created by contract, either express or implied. Under the modern theory, the existence of partnership is largely treated as a question of fact.

“But, when the terms of the agreement of the facts are all admitted, the auestion as to whether or not a partnership exists is a question of law. In determining the existence of a partnership, it is well settled that the true contract and intention of the parties is looked to, at least as between themselves, in order to establish such a relation. This has led to a general statement that, as between the immediate parties, a partnership is formed and exists only by their intention to form such relationship; but the law .looks to the substance and not the form. It is not what the parties call their relation that determines, but what they actually agree upon in their contract. It is the intent to do these things which constitutes a partnership that should determine whether or not that relation exists between the parties. * * * The law on this branch of the subject has been summarized as follows: The question is one of intention, and a contract of partnership will no “more be created by the. court against the will of the party than will those of any other character. One may not make a contract of partnership, and, calling it an agency, have it treated as such by the court, for, when the facts are known, the law fixes the legal consequences which flow from them. Neither may one secure the benefits of a relation of a partner and by contract secure immunity from the liabilities as against creditors; but, when the contract is susceptible of the construction put upon it by the parties at the time it was made, such construction will be accepted by the court as the true one.” 1 Elliott on Contracts, § 480; 2 Page on Contracts, § 937, p. 1470; Gilmore on Partnership, p. 58; 22 Am. & Eng. Enc. of Law, pp. 24, 25, 26.

The ultimate fact to be shown is common ownership or joint proprietorship of the business and its profits, and an agreement to share both the profits and losses or expenses of the business is held by some courts to be conclusive evidence of partnership. Of course, if there are other facts or circumstances in the transaction which show the parties did not intend to create a partnership in a legal .sense, none is created. It has been said:

“The true rule is that such agreement (to share profits and losses) is merely prima facie evidence of partnership.”

The cases in ©ur courts appear to sustain the latter proposition. In the case of Kressler v. First National Bank of Yoakum, 21 Tex. Civ. App. 98, 51 S. W. 62, Judge Williams, speaking for the court, said:

“It is charged that they conducted the business under the name of Wangenman, and shared in the profits and losses arising. To constitute a partnership, an agreement, express or implied, is essential. There is here no positive allegation of the existence of such agreement. The averment that they shared the profits and losses might be true without the existence of an agreement or understanding by which they become partners. Such sharing might take place without any agreement or partnership. The allegation is undoubtedly defective in that it fails to allege directly and positively the existence of the partnership, or, otherwise, all of the facts essential to constitute it. The facts stated, if proven, _ would be sufficient, prima facie, to raise an inference of the existence of the partnership, because from them the agreement would be inferred. But, in pleading, the fact to be established should be directly averred, and not merely suggested as an inference from other facts stated.” Edwards v. Buchanan, 14 Tex. Civ. App. 268, 36 S. W. 1022; Cothran v. Marmaduke, 60 Tex. 370; Goode v. McCartney, 10 Tex. 195; Stratton v. O’Connor, 34 S. W. 158; 1 Elliott on Contracts, § 481.

In this case the court finds the lands, were purchased for speculation or resale, with the agreement that the parties share in the profits and expenses. The evidence was stronger than the court’s findings. The parties all admit owing the sum of $14,000, which was to be repaid out of the sale, and that they made this joint venture in the purchase of th.e land for the purpose of resale. In doing so, they agreed on the price for which it should be sold and the commissions to be paid, and, after deducting the expenses of sale and the amount due on the land, they were to divide the profits among themselves in proportion to their respective interests. In selling the land they divided the profits and "'Observed the terms of their agreement; appellee Nunn participating therein. None of the land had been sold prior to Nunn’s purchase, but all was sold and divided according to agreement after he became a party thereto. It is insisted that appellee was only a co-ówner in the land and was not a partner. The rule is if property is purchased for resale, under agreement to divide the profits from the transaction, the purchasers are partners. 22 Am. & Eng. Encyc. of Law, p. 54, note ■ 5. The object of the partnership is gain. It is a business relation, and the purpose of every business of that character is gain. Spencer v. Jones, 92 Tex. 516, 50 S. W. 118, 71 Am. St. Rep. 870; Rogers v. Nichols, 20 Tex. 719; Kelley v. Masterson, 100 Tex. 38, 93 S. W. 427. The first assignment of error is sustained.

The second assignment, to the effect that the court erred in holding that the sale to Muneey April 3, 1908, was the end of all the partnership transactions, and the third assignment, to the effect that the court erred in holding that the payment made by Roberts November 3, 1910, upon the notes assunied by Nunn, Roberts, and Gist, was barred by the statute of limitations. Under the facts of this case we think the assignments correct. As will be seen from the trial court’s findings, the three parties assumed the payment of $14,280 due on the land to one Chanslor. In making the sale to Muneey for the last 160 acres of the land, he assumed to pay, of that indebtedness, $1,506.85, leaving a balance due Ohanslor on the indebtedness by the three partners $738, one-fourth of which was properly chargeable to Nunn. Roberts paid this sum out of his individual money November 3, 1910, and seeks contribution for the sum in his petition for accounting. This suit was filed August 22, 1913; the suit.-was brought two years and nine’ months after Roberts paid off the indebtedness, and five years and four months after the last land was sold. Gist died April 26, 1907, and all deeds after that date were executed by Mrs. Gist, as community administra-trix, in connection with the other parties to the contract. A partnership is at an end ■ when the particular transaction or venture for which it was organized is completed. The sale of the land in this instance was a transaction to be accomplished, but it was also a part of the venture to sell for a profit. This could not be until the obligation of the copartners had been fully paid off and discharged. This was as much part of the partnership transaction as any other. The death of Gist dissolved the partnership, but left the duty of the survivors to wind up its affairs. This they undertook to do by selling the land and paying the obligations of the firm out of the partnership property. It will be noted that several tracts of land were sold after the death of Gist.

If we are correct in holding the parties to the agreement partners, article 5688, R. S. 1911, subd. 3, is the statute of limitation which will govern this case. Suit thereunder must be brought within four years after the cause of action shall have accrued in “actions by one partner against his copartner for a settlement of the partnership accounts; * * * and the cause of action shall be considered as having accrued on a cessation, of the dealings in which they were interested together.” A dissolved partnership continues in force in legal contemplation for the purpose of winding up its affairs until a full settlement has been had and all outstanding liabilities hdve been met. Brown v. Higginbotham, 5 Leigh (Va.) 583, 27 Am. Dec. 618; Long v. Garnett, 59 Tex. 229; 22 Am. & Eng. Enc. of Law, 211 (2), p. 214 (4). The power remains in each partner after dissolution to pay the firm’s debts. Authorities, supra; Gilmore on Partnership, 347; Bates on Partnership, § 949; Houser v. Irvine, 3 Watts & S. (Pa.) 345, 38 Am. Dec. 768. In that capacity they are quasi trustees' for the partnership (Altgelt v. Alamo National Bank, 98 Tex. 252, 83 S. W. 9), and as such there is not a “cessation of the dealings in which they were interested” until the affairs are wound up. The cause of action then accrues, and the suit must be brought withip. four years thereafter. Until the dealings of the parties are finally concluded and the obligations of the partnership paid, and an accounting, and full settlement had, limitation does not begin to run. The. Supreme Court held, in the case of Morris v. Nunn, 79 Tex. 125, 15 S. W. 220, that for items due an individual partner, but intermingled with partnership accounts, the four years’ statute of limitations as to such applied from the cessation of the dealings. A like holding was made in Peel v. Giesen, 21 Tex. Civ. App. 334, 51 S. W. 44. In the case of Bluntzer v. Hirsch, 32 Tex. Civ. App. 585, 75 S. W. 326, it is held that the statute begins to run from the last item in an account of partnership dealings, and that the petition in that case was not specific enough to show a continuation of the partnership agreement until a later date. Wylie v. Langhorne, 45 Tex. Civ. App. 618, 101 S. W. 527, was a suit on a debt due by an individual partner -to the partnership for which he was sued by the wife and heirs of the deceased partner, and also for the amount of claims alleged to have been Collected by him after the death of the partner. It was there held the four years’ statute applied. No holding is made as to when it accrued. The partnership, for the purpose of settlement, was in legal contemplation in existence after athe dissolution.

The item here sued for by appellant was an outstanding obligation against the partners, of which axspellee owed one-fourth. The appellant had no cause of action against appellee until he paid it. After he did so, he brought suit within less than four years, alleging ,the winding up of the partnership. We think the four years’ statute applies, and that the cause of action accrued at the date of the last item paid in winding up the partnership. Assignments Nos. 2, 3, 4, and 6 will be sustained. We will not discuss the question of subrogation. Chanslor, when Roberts paid the notes, transferred them to him. Appellant contends that by the transfer, as well as in equity, he was subrogated to all the rights of Chanslor under the vendor’s lien notes. Without suggesting our view upon what the rights of the parties are or ought to be with reference to subrogation, we simply call attention to the case of Sands v. Durham, 98 Va. 392, 36 S. E. 472, 54 L. R. A. 614, and notes to that case, and the case of Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528.

The "fifth assignment is overruled. The item of $1,525 sued for by Roberts is the sum due him for one-fourth of $6,100, which Roberts alleged he paid Chanslor to release the vendor’s lien in his favor, on section 134. The trial court’s findings of fact (paragraph 6) concludes the appellant upon this item. The evidence is sufficient to support the findings of the court thereon. The other assignments have been sufficiently noticed in what has heretofore been said by’us.

The judgment of the court will be affirm-' ed, except as to the item of $738. Judgment will be here rendered for appellant against appellee Nunn for one-fourth of $738, with interest thereon from the 3d day of November, 1910, at the rate of 6 per cent, per annum, and that appellee pay all costs of this appeal and costs in the court below.

Affirmed in part, and reversed and rendered in part


text:
    AMARILLO NAT. BANK v. PANHANDLE TELEPHONE & TELEGRAPH CO. et al.
    (No. 636.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 20, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Garnishment (§ 180) — Indebtedness Garnished — Ownership—Intervention of Third Party Claimant.
    Where, in proceedings to garnish an indebtedness of a telephone company to C., the telephone company admitted owing C. a specified sum, but in the same answer alleged that N. was setting up title to a judgment recovered by C. against the company on such indebtedness, and asked that he be made a party, and that the rights of the parties be adjudicated, and N, in garnishment proceedings against him, set up title in himself, and by agreement the cases were consolidated, the court properly refused to render judgment against the telephone company on its answer.
    (Ed. Note. — For other cases, see Garnishment, Cent Dig. §§ 351-356; Dec. Dig. § 180.J
    2. Garnishment (§ 51) — Property Subject —Assignment.
    Where an indebtedness to C. was transferred by him to another long before writs of garnishment were served on the debtor, the indebtedness was no longer subject to garnishment as the property of C., though the debtor did not know of the transfer.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 74, 97-101; Dec. Dig. § 51.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by the Amarillo National Bank against the Panhandle Telephone & Telegraph Company and others, garnishees. From an order holding the debt garnished not subject, the bank appeals.
    Affirmed.
    A. A. Lumpkin, of Amarillo, for appellant. Reeder & Dooley, Madden, Trulove & Kimbrough, W. Boyce, and Gustavus & Jackson, all of Amarillo, for appellees.

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

   HUFF, C. J.

The Amarillo National Bank, in a suit pending in the district court of Potter county against II. A. Campbell and others, sued out a writ of garnishment and caused the same to be served upon the Panhandle Telephone & Telegraph Company and H. H. Davenport & Co., on the 2d day of March, 1911. The suit against Campbell was for $8,-848.90, interest and attorney’s fees, which suit was afterwards prosecuted to judgment. On the 7th day of July, 1911, in the same suit, appellant sued out a second garnishment against J. E. Nunn and H. B. Sanborn, which was duly served on the said parties on said date last above mentioned. In each of the writs the garnishees were required to answer what, if anything, they were indebted to'H. A. Campbell. The firm of H. H. Davenport & Co. answered they were indebted to H. A. Campbell in the sum of $1,145.83, and answered the other statutory interrogatories in the negative. The Panhandle Telephone & Telegraxih Company answered that on the 20th day of September, A. D. 1909, Campbell obtained judgment against H. H. Davenport & Co., a firm composed of H. H. Davenport and W. W. Taylor, and at said tíme a mechanic’s, materialman’s and lumberman’s lien was foreclosed against the property of the Panhandle Telephone & Telegraph Company to secure the payment of said judgment, except the sum of $104.16, attorney’s fees, included in said judgment; that the judgment has not been paid; that it was ready, willing, and able to pay to the parties entitled to the same; that it was informed that after service of said writ on, to wit, April 1, 1911, that one J. E. Nunn was claiming to be the owner of the judgment and entitled to the proceeds’ thereof and prayed that Nunn be made a party thereto, and that it be protected in the payment of said sum, etc. J. E. Nunn answered, denying indebtedness, and answering in the negative the other statutory interrogatories. H. B. Sanborn answered that on the 18th day of April, 1911, H. A. Campbell transferred to him the judgment for the cash consideration of $1,327.25. He set up the garnishment proceedings by the bank against the telephone company, and alleged that he paid into the bank the consideration given for the judgment to be held in escrow and as a special deposit until any and all questions with reference to his title and right to said judgment in favor of H. A. Campbell should be settled and adjusted. He further set up that on April 1, 1911, the firm of Madden, Trulove & Kimbrough, representing themselves to be the attorneys of record for H. A. Campbell, purported to transfer the judgment to J. E. Nunn for a recited consideration of $1,320.94; that Nunn, is setting up a pretended claim of title to the judgment. It is alleged by him that the attorneys were without legal authority to make such transfer, and were not authorized ,by Campbell to do so. He further alleges if Nunn is the owner of such judgment, then Sanborn was not indebted to Campbell, but if Nunn was not the owner, then he was indebted in the sum of $1,327.25. The appellant bank, in reply to the answers of the several garnishees, set up the service of the writs of garnishment and that the garnishees each had notice of the service thereof at the date of their alleged purchase of the judgment. ■ The reply of appellant is lengthy, but, in effect, it denies a bona fide assignment of the judgment to Nunn, and also alleged the making of the deposit in the bank by Sanborn the consideration paid him for the judgment.

J. E. Nunn, by a first amended answer, and by a supplemental answer, set up fully and at length his defense to Sanborn’s answer, and to his rights against the garnishment. Among'other things, he alleged that he was the owner of the judgment in favor of H. A. Campbell in cause No. 1080 (Kellogg Switchboard Supply Co. v. H. H. Davenport et al.); that said judgment was based upon a note executed by H. H. Davenport & Co. to H. A. Campbell, for tbe sum of $1,000, interest and attorney’s fees; tbat tbe note, be was in-fprmed and believed, was indorsed before Campbell intervened in cause No. 1080, in wbieb judgment was thereafter obtained in favor of 'Campbell, and tbat about tbe time of Campbell’s intervention in tbe suit be transferred and assigned tbe note to one C. E. Oakes; tbat tbe note was placed in tbe bands of S. PI. Madden, of tbe law firm of Madden, Trulove & Kimbrough, for tbe purpose of bringing suit thereon; tbat Campbell informed tbe attorney tbat be bad transferred tbe note to C. E. Oakes, and tbat suit was • to be prosecuted to judgment in tbe name of Campbell, and when tbe judgment was collected tbe proceeds should be paid to C. E. Oakes, or to bis order; tbat Oakes informed tbe attorneys to tbe same effect, and also to pay tbe judgment when collected, either to him or to bis attorney, John W. Veale; that tbe attorneys prosecuted tbe suit to judgment, and obtained such on tbe note against H. H. Davenport & Co. and tbe Panhandle Telephone & Telegraph Company; tbat about April 1, 1911, tbe attorneys collected from J. E. Nunn tbe full amount of said judgment; and that said attorneys transferred the judgment to J. E. Nunn, and thereafter paid tbe same to John W. Veale, attorney for Oakes, which Oakes fully ratified. Tbe answer of Nunn further sets out tbe fact tbat be and Sanborn were large shareholders in tbe telephone company and bad liens on its property to secure certain bonds held by Nunn. We deem it unnecessary to set out in detail all tbe allegations with- reference to Nunn’s and Sanborn’s connection with tbe Panhandle Telephone & Telegraph Company. H. B. Sanborn died and bis wife, as survivor of tbe community, made herself a party to tbe suit. Tbe attorneys for all tbe parties in both of tbe gárnishment proceedings agreed to consolidate them into one suit, and tbat tbe pleadings filed in each case be considered as applicable to tbe whole consolidated cases. Upon this agreement tbe court ordered a consolidation. The court rendered judgment that tbe Amarillo National Bank take nothing against tbe several garnishees, and that Mrs. Sanborn take nothing against J. E. Nunn. Tbe facts in this case are sufficient to support tbe court in finding tbat H. A. Campbell transferred tbe indebtedness to C. E. Oakes, evidenced by the judgment obtained by H. A. Campbell against H. H. Davenport & Co. and the Panhandle Telephone & Telegraph Company, in tbe suit of Kellogg Switchboard & Supply Co. v. H. H. Davenport & Co. et al., No. 1080, and tbat tbe transfer occurred before 'Campbell intervened in tbat suit, "and tbat it was agreed between Campbell and Oakes tbat tbe proceeds collected thereon should be paid to Oakes; ..that it was agreed tbat tbe suit should be prosecuted in tbe name of Campbell for tbe use and benefit of Oakes; and tbat Madden, Trulove & Kimbrough would, in prosecuting tbe case, and in collecting tbe proceeds, act under tbe direction of Oakes. John W. Veale was authorized by Oakes to receive and receipt for tbe proceeds collected on tbe judgment for Oakes. ‘ Tbe firm of Madden, Trulove & Kim-brough recognized Oakes as tbe real beneficiary in the judgment and Campbell as a formal party thereto; and in assigning tbe judgment to Nunn, they were acting for both Campbell and Oakes in tbe collection of tbe judgment, and received tbe money from Nunn for tbe use and benefit of Oakes, and turned tbe amount over to John W. Veale, tbe authorized agent and attorney to receive it, and took bis receipt therefor as such attorney. Tbe assignment by Campbell to Oakes occurred long before any writ of garnishment was issued in this case and before tbe bank’s garnishment lien attached and before Campbell’s assignment to H. B. San-born.

We do not think appellant’s first and second assignments are correct. While the Panhandle Telephone & Telegraph Company admitted owing Campbell the sum of $1,145.-83, it also in the same answer alleged that Nunn was setting up title to the judgment, and asked that he be made a party, and tbat the rights of the parties be adjudicated. Nunn set up bis title in the proceedings against him, and by agreement of the parties the two cases were consolidated, with the further agreement that the pleadings filed in each case should be considered applicable to the whole consolidated case. The court, under the pleadings and agreement, properly refused to render judgment against the Panhandle Telephone & Telegraph Company and in favor of the appellant, on the telephone company’s answer. Nunn was brought into the case, and under the law bad the right to intervene and set up his right to the funds, and if be established such right the Panhandle Telephone & Telegraph Company could not be subjected to two judgments for the same debt. Iglehart v. Moore, 21 Tex. 501; Kelly Grain Co. v. English, 34 S. W. 651; Swearingen v. Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74; 20 Cyc. 1130-1133.

We think the findings of fact supporting the judgment of the court dispose of the other assignments. If Campbell did not, in fact, own the judgment or indebtedness at the time of the service of the writ of garnishment, and such judgment was, in fact, the property of Oakes, the writ would fix no lien on the other debt in favor of the bank. We think the case of Smith v. Railway Co., 39 S. W. 969, 971, announces the rule which will govern the disposition of this case, and disposes of the several assignments made by appellant. The transfer of the indebtedness by Campbell to Oakes was made long before the writs of garnishment were served, and, although the phone company did not know that fact, it had the effect nevértheless of transferring its obligation to pay the debt to Oakes. Neely v. Grayson, 25 Tex. Civ. App. 513, 61 S. W. 559; Putnam v. Capps, 6 Tex. Civ. App. 610, 25 S. W. 1024; Hudson v. Morriss, 55 Tex. 595; 2 Black on Judgments, § 943.

When Nujm purchased the debt from Oakes he got the title thereto, and the fact that he’ knew when he purchased the debt the bank had garnisheed the same as the property of Campbell did not change the ownership, and would not defeat Nunn’s title acquired from Oakes which had vested in Oakes before the garnishment.

We regard it as being unnecessary to discuss the assignments of appellant in detail. The evidence is sharply conflicting as to whether the indebtedness was, in fact, transferred by Campbell to Oakes, and whether Oakes was the beneficiary in the judgment, and whether he was the real party to the suit and Campbell only the nominal party.

The trial court having resolved the conflict in favor of Nunn’s contention, and finding nothing in the record which would authorize us in reversing the trial court’s finding, as we view the case, it should be affirmed.

Affirmed.