author: FLY, C. J.

text:
    MID-CONTINENT LIFE INS. CO. et al. v. PENDLETON et ux.
    (No. 5999.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 3, 1918.)
    1. FRAUD <&wkey;4 — REPRESENTATIONS —
    Promises — Intent—Pleading. Representations by vendor that he would put water on land within 60 days will not amount to fraud, unless it is alleged and proved' that he had no intent to perform at the time of making them.
    2. Fraud <&wkey;13(2) — Representation of Fact —Rescission.
    Representations of a vendor as to an existing fact may be basis for relief, although believed by him to be true.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by C. D. Pendleton and wife against the Mid-Continent Life Insurance Company and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Rentfro & Cole, James B. Wells, and Har-bert Davenport, all of Brownsville, and Blakeney & Maxey, of Tulsa, Okl., for appellants. J. T. Candles and R. B. Creager, both of Brownsville, W. P. Thompson, of Yinita, and R. E. Green, of Brownsville, for appel-lees.
   FLY, C. J.

This is a suit for damages instituted by appellee Sally G. Pendleton, joined pro forma by her husband, C. D. Pen-dleton, alleged to have accrued through false representations made by King and Lee, appellants, to induce her to purchase 80 acres of land from the insurance company, for the sum of $150 an acre. H. C. King was the president of the insurance company, and Thomas F. Lee its agent for sale of its real estate. The original suit was not only for damages, but also contained a count asking for a rescission of the contract of purchase. On the action of rescission several parties were interpleaded by appellants, but upon the abandonment of that action by appellees they were dismissed from the suit. The cause was tried by jury, resulting in a verdict in favor of appellees for $10,000, and judgment was rendered thereon canceling vendor lien notes executed by appellees in the sum of $8,000, and in favor of appellee for $2,000.

The first seven assignments of error are grouped, and all assail the sufficiency of the evidence to sustain the verdict, and necessarily require a review of the facts. Appellees resided in Muskogee, Okl., prior to June 1, 1914, since which time they have resided at or near Harlingen, Tex. The home office in 1914 of the appellant insurance company was in Muskogee, and H. O. King was its president and Thomas F. Lee its land agent. Ap-pellees became acquainted with Lee in January, 1914. Mrs. Pendleton was the contracting party and active agency of appellees in the purchase of the land; in fact, the husband had no lot nor parcel in the transaction and appears in the suit only to legalize and sustain the wife’s suit in the line of necessary parties. Mrs. Pendleton stated:

“I certainly would not have entered into any agreement with him (Lee) to buy dry land, there was no value in the land except^from the irrigation.” .

But she also stated that she went to look at the land before she bought it, and Knew there was no water on it or near it and that there were no canals on or near it. She said:

“When I looked at it on the ground the first time, I of course saw no canal on it. The land was still in the brush.”

Again she’testified:

“From my knowledge of the country now, the map depicted .the country with substantial accuracy. In other words,_ they showed the relative distance from the river to the arroyo; showed seven miles from the river to the arroyo, or nine, I understood at the time. I understood at the time that the pumping plant was on the river, but that the 'water had been brought to the arroyo. I was told at the time that before my land could be irrigated it would be necessary to flume the arroyo and build a canal about two miles long,”

The river referred to is the Rio Grande, and the arroyo is a creek or drain. Mrs. Pendleton, in her testimony, showed clearly that she did not and could not rely on any representations as to the land being irrigated at the time she bought it, for she stated:

“When I examined it upon the ground, I was told that the water was in the canal across the arroyo about two miles away, and that before the water .could be put on my land it would be necessary to flume, the arroyo and build a canal from the arroyo to my land. Those statements themselves were certainly true. The only representations at that time that I am complaining of that injured me was that Mr. Lee told me, when I raised the point about when the water would be there, that it would be there in 60 days, and it is not there yet. That’s the injury that I am complaining about. So far as I know, that is really the only representation made to me up to that time that misled me or caused me to act differently than I would have acted.”

She reiterated this statement that the only representations that she relied on for a recovery was the statement of Lee that the water would be on the land in 60 days, and the only issues in the case are harrowed down to the one issue as to whether a recovery can be based on that declaration made by Lee. In fact, the contention that representations were made that the land was irrigated is utterly irreconcilable with the contention that appellants promised to put canals and water on the land in 60 days. One or the other must fall to the ground, and Mrs. Pendleton has chosen to pitch the prosecution of her claim for damages on the representations that the water would be supplied in 60 days. To that point alone will the opinion of this court be directed.

The representations of-Lee, giving them their widest scope, amounted to a promise to perform a certain act in the future, that is, put water on the land, about which Mrs. Pendleton was negotiating, within 60 days, and it is the general rule that a promise to perform an act in the future will not amount to fraud in the eyes of the law, although it may have been the propelling inducement to the execution of the contract, and, though it may, have been totally disregarded, still it cannot be made the basis of a suit to avoid a contract. Lemmon v. Hanley, 28 Tex. 219; Jackson v. Stockbridge, 29 Tex. 394, 94 Am. Dec. 290; Moore v. Gross, 87 Tex. 557, 24 S. W. 1051. There is, however, a recognized exception to the rule in Texas that if, at the time the promise was made, it was the intention of the party making it to disregard it, and that he had no intention at the time of making it to perform it, but made it to deceive and defraud the other party, there would be a basis for a suit founded on fraud and deception. Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Railway v. Smith, 98 Tex. 553, 86 S. W. 322; Insurance Co. v. Seidel, 52 Tex. Civ. App. 27S, 113 S. W. 945; May v. Cearley, 138 S. W. 165; Chambers v. Wyatt, 151 S. W. 864.

There was no allegation, and consequently no proof, that there was a fraudulent intention at the time the representation was made to disregard it. The suit, as it comes before this court, is not for rescission, but one for damages alleged to have accrued from a failure to perform certain acts in the future, that of placing water on the land in 60 days, and if such promise was made there is nothing in the record to show that it was in regard to an existing fact, but that it was at most, if that much, a promise to do certain things in the future.

This case must be considered on the theory that, when the promise was made or opinion given that water would be put on the land in 60 days, appellants intended to fulfill the promise, or believed that it would be put there by another party, because no other case is alleged or sustained by proof. The allegations as to the representation were:

“That any of said land that might be purchased by plaintiffs would be actually supplied with water for irrigation within 60 days after, such purchase.”

It was further alleged:

“That such representations were fraudulently made by the defendants with such knowledge of their falsity, for the purposes of persuading plaintiffs to purchase said land from them, at a price greatly in excess of the actual value thereof.”

Mrs. Pendleton testified:

“I don’t know that I discussed with them on the ground the difficulty of getting water, and when I would get it, but I discussed it before I left Harlingen that evening. I called Mr. Lee’s attention to the fact and asked him where the canals were on my land, and he said they didn’t tie up their money in canals until the land was sold, but they would be put through there within 60 days after the land was sold. That was really the only time prior to my purchase of the land that I discussed with anybody when the canals would be built. Before I purchased the land, the only discussion I had with anybody about when the canals were to be constructed was with Mr. Lee, and was at that time.”

That representation was afterwards enlarged as follows:

“The particular representation of which I complain is that Mr. Lee told me, when I examined the land on the ground, that the canals would be built and the water would be there within 60 days, and the 60 days passed and the canals were not there, and the water is still not there. The canals, however, are there now and have been there for over a year, and they haven’t been able to put any water into them yet.”

Appellant did not own any irrigating plant, and Lee swore that he so informed-Mrs. Pendleton, and also told her that Lon C. Hill, Jr., had a movement on foot to make an irrigation district out of the Harlingen community, in - which the land was situated which she desired to purchase. He said he told her only what Hill had told him, and gave it as his opinion that the district would be formed. Lee admitted that he told Mrs. Pendleton that he thought 60 to 90 days would be sufficient time in which to furnish water for the land. He testified that he had no reason to doubt the ábility of the Harlin-gen Land & Water Company to furnish the water in the time mentioned by him. He denied that he ever told Mrs. Pendleton that appellant would put the water on the land, but informed her who would put it there. Mrs. Pendleton did not swear that Lee told her that the owners of the land would put the water on the land. She knew that Hill owned the irrigation 'plant, for she testified that Hill said: “That they had never failed to furnish water to anybody that had asked for it.” Mrs. Pendleton closed her testimony as to the representations as follows:

“The representation made that I now say in the light of further experience is untrue is that Mr. Lee told me that the canals would be built in 60 days, and as a matter of fact they are still not in condition to supply me with water.”

Mrs. Pendleton, on June 9, 1914, about three months after she bought the land, wrote a letter in which she showed that she knew that the insurance company did not furnish water, because she stated that she had taken up the question “in regard to water company not getting water on my land.” The insurance company had bought from Lon C. Hill, Jr., to whom the land had been conveyed by the Harlingen Land & Water Company, and in the deed to Hill was the following provision:

“The agreements, covenants, and stipulations here made by the parties hereto, and the obligations of said company to fully complete and properly equip the main canals over the said land so as to properly irrigate same, and the payments herein provided for, being parts of the purchase price for said land and running with the land being binding upon grantee, and all persons claiming by, through or under him, 'except that liability for payment for construction, equipment of main canals to and across said land, shall not be binding upon the grantee or his subsequent vendee of said Lon C. Hill, Jr.”

The covenants in that deed were included in the deed by Hill to the insurance company. The deed made by the insurance company to Mrs. Pendleton contained only the usual covenants and made no reference whatever to canals or water. Mrs. Pendleton was notified by the recitations in deeds forming her chain of title that no one but the water company was bound to furnish water for, her land, and she must have known that Lee only expressed an opinion when he told her canals would be placed on the land in 60 days. If, however, it was a promise to furnish the water, it was to be performed in the f-uture, and, as said by the Supreme Court in Railway v. Titterington, herein cited:

“We concede that ordinarily a promise to perform some act in the future, although made by one party as a representation to induce the other to enter into the contract, will not amount to fraud in legal acceptation, though subsequently the promise is, without any excuse, entirely broken, and nonfulfilled. This is a plain and well-established rule about which there can be no controversy; otherwise, every breach,of a contract would amount to iraud.”

Appellants did not commit themselves by the written contract to the proposition that water would be furnished. They furnished Mrs. Pendleton with an abstract of title and expressed the opinion that the water would be furnished to her. There is nothing to show that the opinion was not given in good faith. Zavala Land Co. v. Tolbert, 165 S. W. 28; Luckenbach v. Thomas, 166 S. W. 99.

If a promise to furnish the water in a certain time was made with no intention to perform it, but merely to deceive, under proper pleadings and sufficient evidence, it might form the basis for equitable relief; but as said by this court in Beaumont Carriage Co. v. Price, 104 S. W. 499:

“It is clearly not enough to prove the nonperformance, and it will not do to say that from the bare fact of nonperformance it could be inferred that the intent not to perform originally existed, because, if this were allowed, any contemporaneous agreement could be attached to a writing by parol, and the rule of law on this subject would be useless.”

This subject is fully discussed in Ruling Case Law No. 12, §§ 21-26, pp. 254-259, and many authorities are cited in footnotes which sustain the propositions of law herein contained. As said in the text cited (section 21):

“A representation that something will be done in the future, or a promise to do it, from its nature cannot be true or false at the time when it is made. The failure to make it good is merely a breach of contract which must be enforced in an action on the contract, if at all.”

Again it is, said in section 25 of -the textbook:

“False representations by a vendor of land of his intention to make improvements which will benefit the property sold are ground for rescinding the contract of sale, and a good defense to a suit for its specific performance. * * * To have that effect, however, it is generally held that the vendor must have had no such intention at the time the statement was made; there being no right to rescind if the statement was made in good faith, even though intention is not carried out.”

The eases cited by appellees are not in point under the facts in this case. Some of them show promises made to deceive, and others representations as to existing facts. Of course, a representation as to an existing fact could become the basis for relief, even though the person making the representation believed it to be true. Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900; Piano Co. v. Gibbon, 180 S. W. 1185; White v. Peters, 185 S. W. 659.

In the case of Davis v. Driscoll, 54 S. W. 43, decided by this court and cited by appellees, it was held?

“It is also contended that the'representations were mere promises to perform some act in the future, and would not, therefore, constitute fraud. The record shows, however, that appellant made the representation that he had certain appliances by which he could remedy evils resulting from an influx of quicksand into the wells, coupled with the assurance that he would put them into the wells if the contract was executed. There was evidence to the effect that he did not have such appliances. The representation was as to a fact, and it was untrue, and appellees were deceived thereby.”

It is clear that case does not fit this case. So it is with the others cited on the same subject.

The requested charge copied into the eighth assignment embodied the law as herein enunciated, and should have been given.

The ninth assignment of error is overruled. The facts show that Lee was authorized to make the representations made by him, and such representations were not repudiated by his principal when made known to it.

The tenth and eleventh assignments are overruled.

The twelfth assignment was the law of the case and should have been given.

The thirteenth assignment of error is overruled.

None of the misrepresentations alleged had any testimony to support them, except as to the water being placed on the land, and they should not have been submitted to the jury. The fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenti-eth, and twenty-second assignments of error are sustained.

The remaining assignments of error are overruled.

The judgment is reversed, and the cause remanded.
      <SS=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    KANSAS CITY LIFE INS. CO. v. JINKENS.
    (No. 1325.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1918.
    Rehearing Denied April 24, 1918.)
    1. Teial <&wkey;365(l) — Special Verdici>-Dis-RE&ARDING INSTRUCTION.
    Though the jury disregarded the instruction to answer the third special issue only in case they answered the first in the affirmative, the verdict, including the answer to the third, being accepted and filed, such answer must be considered in determining their findings on the issues of fact.
    2. Insurance <&wkey;670 — Lams Policy — Forfeiture-Payment of Premium — Special Verdict.
    A life policy by its terms being forfeited if a premium was not paid, or, in the absence of waiver, if a note was executed in part payment thereof and .not paid, the verdict in an action thereon, in which defendant claimed the payment of a premium was by a note, unpaid at maturity, and plaintiff claimed that the note was a forgery, and had no connection with the premium, leaves' the jury’s actual findings of fact in such doubt that judgment cannot be entered thereon, the first' issue, did insured execute the note, being answered, “No”; the second, did insurer receive anything of value, -besides the $4 admitted received, as payment for the premium, and the third, did insurer accept the note and $4 as payment for the premium, being answered, “Yes.”
    3. Bills and Notes <&wkey;486 — Action on Policy-Burden of Proof — Note Pleaded in Answer.
    The burden of proof of execution of a note, on which the answer in action on a life policy was in part based, was, under Rev. St. 1911, art. 3710, on defendant, execution being denied under oath.
    4. Judges <&wkey;42 — Disqualification—Interest — Life Policy Holder.
    A judge is not shown disqualified to try an action on a life policy merely because holding a policy in the company, it not appearing it was a mutual company, or that the payment or nonpayment of the policy sued on would have any direct effect on any fund in which the judge’s policy was entitled to participate, and out of which he might eventually receive a dividend in addition to the guaranteed dividends.
    Appeal from District Court, Taylor County ; Joe Burkett, Judge.
    Action by Mrs. Ellen Jinkens against the Kansas City Life Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. M. Wagstaff, of Abilene, for appellant. Ben L. Cox, of. Abilene, for appellee.
   BOYCE, J.

This suit was brought by ap-pellee, Mrs. Jinkens, on an insurance policy, issued by appellant, on the life of Miss Maude Jinkens, with loss payable to plaintiff, the mother of the said insured. The insurance company answered that the premium becoming due on the said policy on July 31, 1915, was not paid; and, further, that settlement of said premium was made by the said Maude Jinkens by the payment of the sum of $4 in cash, and by the execution and delivery of a premium note for the sum of $27.94, dated July 31, 1915, payable to the insurance company, 30 days after date; that said policy of insurance, among other provi-, sions, contained the following:

“All * * * premiums are due and payable in advance at the home office of the company without notice. * * * Upon failure to pay a premium on or before the date when due, or upon failure to pay any premium note when due, this policy will become null and void without any action or notice by the company, and all rights shall be forfeited to the company,” etc.

That said premium note was not paid at maturity or at any time thereafter, prior to the death of the said Maude Jinkens, and that said policy was therefore void. The plaintiff, by supplemental petition, denied under oath the execution and delivery of the said note by the said Maude Jinkens.

The issue upon the trial was as to the execution and delivery by the insured of the note referred to. The officers of the defendant company testified that the note was received by mail on August 30, 1915, at which time a receipt for the payment of the.pre^ mium was issued to the said Maude Jinkens, which receipt was in evidence at the trial. No correspondence with the said deceased in regard to the note and no evidence as to the genuineness of the signature of the said Maude Jinkens to said note was offered, except the introduction of admittedly genuine signatures for the purpose of comparison. The mother of the defendant expressed it as her opinion that the signature to the note was not that of her daughter, and other evidence was introduced which cast some doubt as to the transaction. The burden of proof, as we shall hereafter show, was upon the defendant to prove the execution and delivery of said note by the said Maude Jinkens; and, without going into further detail as to the facts, we hold that the issue as to whether the note was executed and delivered to the company by Maude Jinkens, in part payable for the premium becoming due July 31, 1915, was properly one for the jury, and overrule appellant’s first and second assignments of error.

The case was submitted on special issues, the first three issues being as follows:

“(1) Did the insured, Maude Jinkens, execute and deliver to the defendant the note for $27.-94, which is described in defendant’s answer? (2)Did the Kansas City Life Insurance Company receive anything of value besides the $4 which it is admitted it received as payment for the premium for the year beginning July 31, 1915? (3) If you have answered question No. 1 in the affirmative, then did the defendant, the insurance company, accept said note and $4 in money as payment for the premium for the year beginning July 31, 1915?”

To the first issue the jury answered, “No.” To the second and third issues its answer was “Tes.” The other issues submitted have no bearing on the question which we are now to consider. Appellant assigns error on the action of the court in entering judgment for the plaintiff on this verdict because of the uncertainty created by the conflicting answers to the first and the second and third issues.

Appellee contends that, since the jury were directed to answer the third issue only in the event the first issue was answered in the negative, the answer to the said third issue may be disregarded as immaterial. Since the jury did not follow this instruction, and the verdict, including the answer to the third issue, was accepted and filed, this answer must be considered in determining the finding of the jury on the issues of fact.

So considering the verdict, we are not able to reconcile the findings., The issue made by the evidence was whether this note was given in part payment for the premium falling due July 31, 1915; the position of the appellant being that such premium was paid by the $4 cash and this premium note; that of the plaintiff being that the note was a forgery and had no connection with the payment of the premium. The answers to the second and third issues, taken together, indicate that the jury concluded that the only thing that the company received in payment for said premium due July 31, 1915, was the note and $4 cash, and that such premium was not otherwise paid. If the premium was not paid, the policy, by its terms, would be forfeited; if the note was executed in part payment for the premium it was a premium note, and, under the terms of ,the policy, the failure to pay it would avoid the policy if the forfeiture was not waived. National Life Ins. Co. v. Reppond, 81 S. W. 1014; Reppond v. Insurance Co., 100 Tex. 519, 101 S. W. 787, 11 L. R. A. (N. S.) 981, 15 Ann. Cas. 618; Thompson v. Knickerbocker Life Insurance Co., 104 U. S. 252, 26 L. Ed. 765; Knickerbocker Life Insurance Co. v. Pendleton, 112 U. S. 696, 5 Sup. Ct. 314, 28 L. Ed. 866; Pitt v. Berkshire Life Insurance Co., 100 Mass. 500; Joyce on Insurance (2d Ed.) § 1204. The verdict leaves the actual findings of fact by the jury in such doubt as we do not think any judgment can be legally entered thereon.

We overruled the fifth assignment, which complains of the charge of the court in placing the burden of proof as to the execution of the note on the defendant. The answer of the defendant was in part based on this note. Its execution was denied under oath, and the burden of the proof of its execution was therefore on the defendant. R. S. art. 3710, 1906 (8); M., K. & T. Ry. Co. v. Gober, 125 S. W. 383.

Appellant, in its motion for new trial, for the first time alleged that the judge of the district court who sat in the trial of the case was disqualified because of interest. In support of this contention it was shown that said judge held a life insurance policy in the defendant company. This policy was a 20 payment life policy, and provided that it should participate in the profits of the company, and in anticipation of such profit guaranteed, during the term of the policy, if it should be kept in force by the payment of the annual premium in advance, an annual dividend, in stated amounts, increasing during each year, and evidenced by coupons attached to the policy. The policy by its terms further provided that—

“This policy is issued on the twenty-year accumulation plan, and will receive its full share of the profits as apportioned by the company at the end of that period if the assured be then living- and if all the premiums have been paid hereon. * * * In consideration of the guaranteed payment in cash from the. surplus by the coupons hereto attached, the insured hereby agrees that any annually determined portion of the divisible surplus, in addition to the amounts stipulated in the coupons, shall be allowed to accumulate until all premiums contracted hereon have been paid.”

As we construe the policy, the insured would get no benefit of the profits or divisible surplus apportioned by the company except on the following conditions: That he should survive its term; that it should be kept in force during said full term, and the accumulated dividends should then exceed the guaranteed dividends already paid on the policy. So that in any event the interest of the trial judge appears rather remote, and in a sense at least contingent, It was held in the casé of New York Life Insurance Co. v. Sides, 46 Tex. Civ. App. 246, 101 S. W. 1163, where tire policy provided for payment to the insured at the end of 20 years if he should be living and the policy should then he in force, its share of accumulated profits apportionable to the policyj and where it further appeared that the company was a mutual company having no capital stock and being owned by the policy holders, that the trial judge holding such policy was necessarily interested in the assets of the company as one of the owners thereof. It does not appear whether the appellant company is a mutual company, nor does it appear that the payment or nonpayment of the policy sued on will affect directly the profits or divisible surplus in which the policy of the trial judge is entitled to participate; the evidence being silent as to how, under the laws of its creation and the charter and by-laws of the company, this surplus apportioned by the company to the policy holders is to be ascertained. So that it does not even appear that the payment or nonpayment of the policy sued upon would have any direct effect on any fund in which the trial judge’s policy is entitled to participate and out of which he might eventually receive a dividend in addition to the guaranteed payments already paid. We therefore conclude that the evidence was insufficient to show that the trial judge was disqualified. City of Oak Cliff v. State, 97 Tex. 391, 79 S. W. 1068.

Reversed and remanded.
      ijfcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■


author: LEVY, J.

text:
    TOWN OF JACKSONVILLE v. RAGSDALE.
    (No. 1926.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 15, 1918.)
    1. Waters and Water Courses <&wkey;191 — Municipal Water Supply — Rights oe Way-Injury prom Maintenance.
    Under deed to right of way for water pipe line to supply a city, giving right to take up, repair, and replace the pipe line laid under the waters of a pond’ on the grantor’s land, the city was liable for damages resulting from unnecessarily draining the pond entirely of its waters, when the pipe line could have been repaired without draining all the waters and killing the fish therein.
    2. Waters and Water Courses &wkey;>197: — Water Supply — Rights oe Way-Injury prom Maintenance — Questions por Jury.
    In action by 'grantor of right of way for municipal water supply pipe line for damages for draining all the water and killing the fish, evidence held to present a jury question whether draining all the water was necessary in repairing the’ pipe line.
    3. Frauds, Statute op <&wkey;60(2) — Contracts —Use op Pond.
    Agreement between railroad company and owner of land that the landowner might use a pond partially situated on their lands to stock fish and rent boats for fishing is not necessarily required by law to be in writing in order to be effective between the parties.
    4.Appeal and Error <&wkey;1066 — Harmless Error — Abstract Instruction.
    An instruction containing a mere abstract statement as to which the jury were not asked to make a finding, and which statement did not pertain to the issue submitted, was not prejudicial.
    Appeal from District Court, Cherokee County.
    Action by J. E. Ragsdale against the Town of Jacksonville. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The town of Jacksonville is incorporated under the general laws of the state, and has established and operates a water supply system. The pipe line extends southward from the reservoir in part across the land of the appellee and across the right of way of the International & Great Northern Railway Company. The appellee, as well as the railway company, conveyed to the town “the right and privilege to extend the pipe line across the land (giving description thereof).” Each conveyance' has the following provision :
    “And said town of Jacksonville shall have access to said pipe line at all times for the purpose of digging down, to said pipe, repairing the same or taking up and replacing the same, provided that when such repairs are made the trenches are to be refilled and put in proper condition.”
    By the construction of a dam and the use of the railway embankment a lake is formed on the lands of the appellee and the railway company. The spillway is of concrete. The main pipe line runs under the water of the pond, but above the surface of the ground and not under the ground. A serious break occurred in the pipe beneath the water of the pond, and it became necessary to repair the line at that place in order to furnish water for the use of the people of the town. The water superintendent, in the endeavor to make the needed repairs, had the spillway of the pond knocked out and the lake drained of all its water. Appellee had the pond stocked with .fish, and had five rowboats on the pond which he rented for profit. As a result of the draining off of the waters of the pond the fish were all destroyed, and the boats were left hanging on the banks exposed, and became full of seams arid ruined for further use. There is no proof of express consent on the part of the appellee to drain the waters from the lake. He says that he did not consent that they he drained off; and there is testimony on the part of the appellee as follows:
    “I saw the lake after all of the water was out, and I could see the pipe then, and it was above the surface of the ground. It was not under the ground in the lake, and they could have let the water down to it and fixed it without letting all of the water out of the pond. I saw the pipe exposed there for a good while, for the lake was several months filling up again. I know from what I saw after the water was out of the pond that they could have let just part of it out and have fixed that pipe without letting all of the water out.”
    The appellee brought the suit for damages, claiming that the town had negligently drained all the waters of the lake, causing him to suffer the loss of all the fish therein and of the pleasure boats. The court submitted the case to the jury on the single issue of the amount of damages. And the court entered judgment for the appellee in the sum, as found by the jury, of $400. There is involved in the judgment of the court a finding of negligence on the part of the town authorities in draining all the water from the lake, proximately causing damage to the plaintiff.
    Lee 6. Carter, of Jacksonville, for appellant. C. H. Martin, of Jacksonville, and Norman, Shook & Gibson, of Rusk, for appel-lee.
   LEVY, J.

(after stating the facts as above). The appellant insists that the court erred in not giving, as requested, a peremptory' instruction to the jury to return a verdict in its favor. The right of way deed from the ap-pellee to the town of Jacksonville expressly gave the right to take up, repair, and replace the pipe line laid under the waters of the pond on the appellee’s land; and this authority so given may include the power to the city to drain the waters of the pond so far as may be reasonably required to be done to repair or replace the pipe line as needed. But the recovery allowed in this case is not for a diversion or loss of water without compensation. The point at which liability in the case begins and must entirely rest is the alleged tort on the part of the town authorities in unnecessarily draining all the waters from the pond, resulting in tire destruction of the fish as well as doing other peculiar damage to the appellee. The particular allegation in the petition is:

“Without plaintiff’s consent or knowledge the said defendant deliberately and negligently broke the dam and spillway and other impounding devices in such manner as to draw off all the water from the said pond, leaving the same entirely dry and thereby destroying plaintiff’s boats of the reasonable value of $100, and destroying his fish and the pond, and that same has never since been as valuable and suitable as a fishing place and fishpond or for bathing or boating; that by the exercise-of ordinary care defendant could have repaired said leak or broken place in the line without injury to the plaintiff, but negligently failed and refused to exercise care for that purpose.”

The fish and the boats in the lake belonged exclusively to the appellee. And therefore the question was, Could the break in the pipe line have been readily fixed, as appellee claims and testified, “without letting all the water out of the pond”? And in view of the testimony it was a jury question of whether or not the draining of all the water from the pond was properly required under the, circumstances. The court, it is concluded, did not err in refusing the peremptory instruction. The court did not refer the question to the jury, but rather himself decided, as involved in the judgment, that the appellant in point of fact negligently drained all the water from the pond; but no complaint is based on appeal upon the court’s action in this particular respect, and we do not review that question.

The sixth and seventh assignments of error should be, it is concluded, overruled. Por there is evidence authorizing the court to submit to the jury for decision the amount of damages sustained by the appellee as a proximate result of the negligent draining of the waters from the pond. Any particular item of damages was not specially challenged in the objection or by assignment of error.

An agreement between appellee and the railway company that the appellee could use the pond for boating purposes, could keep fish therein, is not a matter necessarily required by law to be in writing to be effective between the parties. And the appellee testified outside of the agreement that he was, as alleged in. his petition, the owner of the fish and the boats in the pond. Therefore the first, second, and third assignments do not, it is thought, present such error as requires a reversal of the judgment. Rule 62a (149 S. W. x).

The instruction complained of in the eighth assignment of error is a mere abstract statement, and the jury were not asked by the court to make a finding thereon; neither did such statement pertain to the issue that was submitted to the jury. There is no such injury resulting as warrants a reversal; therefore the assignment is overruled.

The judgment is affirmed.
      <g=s>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    SHERRILL v. KIRKLIN-YORK CO.
    (No. 1909.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1918.
    Rehearing Denied Feb. 28, 1918.)
    Landlord and Tenant <&wkey;101 — Termination oe Lease—iInjuby to Building.
    Under lease providing for its termination in case the building should become so injured by fire or other casualty as to render it unfit for use, a tenant was not authorized to quit and cease paying rent on account of injury from a storm, unless the building was rendered unfit for carrying on tenant’s business, and could not be restored to a fit condition by ordinary repairs, made without unreasonable interruption of business, and hence, where .an injury to the roof by a storm was merely temporary, and by ordinary repairs the uplifted part of a tin roof could and was easily replaced and restored with the material on hand, it was not such an injury as was meant by the contract.
    Appeal from District Court, Marion County; J. A. Ward, Judge.

      Action by B. E. Sherrill against the Kirklin-York Company. From a judgment for plaintiff for less than the amount claimed, plaintiff appeals.
    Reformed and affirmed.
    The appellee, a mercantile firm, leased a one-story building from the appellant for the term of one year from January, 1915, for an agreed rent of $20 a month, payable on the 1st day of the next month. The written lease has the stipulation that:
    “The said building is to be used by said Kirk-lin-York Company for groceries or some other legitimate occupation. In case said building' shall become so injured by fire or other casualty as to render the same unfit for such use, then and in such case this lease shall terminate on the day of the happening of such event.”
    There is no covenant on the part of the landlord to make repairs on the building.
    On August 20, 1915, 'a severe windstorm ripped loose from the sheeting and rolled back and bent about two squares of the tin roof on the southeast corner of the store building, and the rain following the wind poured into the storeroom. The appellee at once notified the appellant’s agent of the occurrence, and also had a competent tinner to go, while it was still raining, and. repair the roof. About the 10th day of September next the appellee moved out of the building and has never afterwards used or occupied it.
    The appellant sued for the rent for the months of September, October, November, and December, 1915. The appellee specially ■pleaded as a defense the stipulation quoted above respecting the termination of the lease upon the happening of a casualty so injuring the building as to render it unfit for use.
    The court entered judgment for the plaintiff for the $20 rent for September, and refused judgment in favor of appellant for the remaining three months’ rent, and the plaintiff appeals. The court made findings of fact appearing in the record.
    T. D. Rowell, of Jefferson, for appellant. Schluter & Singleton, of Jefferson, for ap-pellee.
   LEVY, J.

(after stating the facts as above). The defense sets forth that the lease provided that, “In case said building shall become so injured by fire or other casualty as to render the same unfit for such use, then and in such case this lease shall terminate on the day of the happening of such event.” And it appears that the tenant claimed under this defense that the rent had ceased on August 20, 1915, on the ground that on that day “a severe windstorm came and uplifted a portion of the roof of said building,” and that the building had become untenantable for the purpose of carrying on the business of a grocery store. Appellant insists that the findings of the court do not show that such damage to the building resulted from the windstorm, within the meaning of the stipulation in the lease, as to authorize the tenant to quit the premises and cease paying the rent. The court found that the injury to the building from the windstorm consisted in t.he uplifting from the sheeting and in the bending and rolling back of about two squares of the tin roof on the southeast corner of the building, and as further found by the court:

“As soon thereafter as possible W. S. Kirk-lin, for JBdrklin-York Company, procured C. W. Langenstein, a competent tinner and sheet metal workman, to go up on the said building and repair the roof; the said Langenstein repaired the roof as well as same could be done with the material on hand and with the use of roof cement, a preparation for the purpose of repairing broken tin roofs.”

These facts clearly establish that the injury to the building was slight and merely temporary, and that Jby ordinary repairs the uplifted part of the roofing could be, and was, easily and quickly replaced, and was restored “as well as same could be done with the material on hand and with the use of roof cement, a preparation for the purpose of repairing broken tin roofs.” The stipulation in the lease means, it is concluded, that to authorize the tenant to quit the building and cease paying rent the injury to the building from a casualty like a severe windstorm must be to the extent that the building is unfit for carrying on the business, and cannot be restored to a fit condition by ordinary repairs such as can be made without unreasonable interruption of the business of the tenant. This being the test, the court’s findings of fact do not, it is believed, establish such injury to the building as meant by the lease contract. As a matter of common knowledge a part of a tin roof is as easily replaced as a window or door. The further finding of insufficient repair of the roof is a distinct-fact, and not within the lease contract. Weinsteine v. Harrison, 66 Tex. 546, 1 S. W. 626. If appellee was liable for rent under the terms of the lease, then no other issue can appear in the case from the court’s findings.

The judgment is reformed so as to allow the appellant a recovery also for the rent of October, November, and December, and as so reformed will be affirmed. The costs of the lower courts and of this appeal will be taxed against appellee.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    ENGELKING v. MERTENS.
    (No. 6011.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1918.)
    1. Trespass to Try Title <&wkey;41(l) — Evidence oe Title — Sufficiency.
    Evidence which showed who were the mortgagee’s heirs and that the mortgagee died leaving an estate, but which failed to show that there was no administration pending or that administration was unnecessary, was insufficient to prove that a conveyance by the heirs to plaintiff bringing trespass to try title passed, any right.
    2. Trespass to Try Title i&wkey;6(l) — Title to Support.
    In trespass to try title, plaintiff can recover upon the strength of his own title only.
    3. Trespass to Try Title <®=>41(1) — 'Title to Support — Sufficiency of Evidence.
    In trespass to try title, where plaintiff claimed a superior legal title from a common source, helé, under the evidence, that plaintiff at most had only such right as might accrue to him by reason of having without request liquidated the amount of mortgage debt against the home of defendant which right was unavailing.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Trespass to try title by H. C. Engelking against August Mertens. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Walter Weaver and L. Broeter, both of Alice, for appellant. W. R. Perkins, of Alice, and C. C. Eorry, of Brownsville, for appellee.
   SWEARINGEN, J.

OH. C. Engelking, the appellant, brought this suit in the statutory form of trespass to try title, against August Mertens to recover lots Nos. 25, 26, 27, 28, 29, and 30 in block 69 in the town of Premont in Jim Wells county, Tex. August Mertens answered, “Not guilty.” Special issues were submitted to a jury, and judgment rendered in favor of appellee.

The facts which we consider of controlling influence are these: In 1909, R. P. Haldeman owned the property in controversy. Thereafter, in 1909, he executed a mortgage in the form of a deed to secure the payment of an indebtedness evidenced by notes amounting to $38,184, in which mortgage this property was included. Thereafter, in 1912, August Mertens acquired the said property, entered into immediate possession thereof as his home, and made improvements that increased the value of same by $3,000. Mertens com tinued to use the same as his homestead for about seven years prior to the trial of this cause. Eor the purpose of releasing from the Scott mortgage certain describe^ properties, including the lots here sued for, the heirs of G. R. Scott, in 1915, with the approval and consent of R. P. Haldeman and the various purchasers of lots in the town of Premont acting through a committee of which appellant was chairman, executed an instrument in the form of a deed to M. H. Meyers. Meyers had no personal interest in the said conveyance, but received same to enable him as trustee to release to each lot holder the property each had acquired. H. C. Engelking, for the purpose of enabling him to collect a prior debt claimed by him from Mertens for lumber sold, induced, by fraudulent representations, the said Meyers to release to Engelking this property which had- been acquired by Mertens. This release by the trustee, Meyers, was in the form of a deed to H. ■O. Engelking. Appellant knew the deed to Scott was a mortgage and that the deed to Meyers was for the purpose of releasing the mortgage lien held by G. R. Scott.

Appellant’s two assignments complain that the .judgment was error because the evidence showed a legal title in him from a common source, superior to the right of appellee. A number of pertinent propositions are presented.

We think both of the assignments should be overruled, because there is sufficient evidence to support the conclusion that the instrument executed by R. P. Haldeman to G. R. Scott was a mortgage. W. N. Seymour, a witness for appellant, testified:

The Texas Gulf Coast Company, in which name R. P. Haldeman had made contracts with purchasers, “could not meet” his “obligations, so far as delivering deeds to the town site is concerned. Parties who had built their homes on lots that had been designated * * * had no deed. The town site was mortgaged; the mortgage was held by the Scott estate. In order to secure deeds for these properties, the mortgage had to be satisfied. A committee was appointed by these lot- certificate holders to see if something could not be done to protect their homes.”

Appellant was chairman of this committee.

W. H. Meyers, who executed the .release in the form of a deed to appellant, testified:

“Ella D. Scott, Lucille S. Pope, and W. B. Pope * * * had held this (Mertens’ homo) and other property amounting to about 1,500 acres as security for notes signed by Mr. R. P. Haldeman, and agreed to release and convey certain lots to me upon payment of $8,250, and this understanding was satisfactory to them (the lot holders) after they were informed of the purpose and plans of the lot distribution.”

This mortgage was never foreclosed or changed into a title, but remained a mortgage. The evidence further shows that G. R. Seotfcidied leaving an estate and Indicates who were his heirs, but fails to show that there was no administration upon his estate, and also fails to show that there was no necessity for an administration. (From the evidence, therefore, the conveyance by the heirs of G. R. Scott to Meyers is not proven to have passed any right whatever. Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015; Modern Woodmen of America v. Yanowsky, 187 S. W. 728. However, conceding for the moment that this conveyance did pass some right in and to the property described therein, a part of which were the lots in controversy, the evidence shows that this instrument was made by a mortgagee and not an owner of the fee, and the most that Meyers obtained was the right and'obligation to execute releases in the form of deeds of the various properties to the owners thereof upon the receipt of $8.50 per lot regardless of improvements that may have been made upon the properties. The evidence further shows that Meyers, authorized, by the instrument received by him, to release the property to the owners, through misrepresentations made to him by H. O. Engelking, executed a release, in the form of a deed, to H. O. Engelhing to Mertens’ homestead; Meyers, the grantor, believing and intending that Mertens would by said instrument have his property released from the G. R. Scott mortgage.

In this trespass to try title suit it was incumbent upon the plaintiff to recover upon the strength of his own title. The evidence shows that appellant received no title, but, at most, only such right as might accrue to him by reason of having, without request, liquidated the amount of a mortgage debt against the home of Mertens. If appellant acquired any right whatever by the instrument from Meyers, it certainly was not the fee, but only the right of a mortgagee. This right will not avail appellant in this form of suit. Zamora v. Vela, 202 S. W. 215 (not yet officially reported); Hume v. Le Compte, 142 S. W. 934; Loving v. Milliken, 59 Tex. 425.

The judgment is affirmed.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALD, J.

text:
    GULP, C. & S. F. RY. CO. v. HICKS et ux.
    (No. 1286.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1918.
    Rehearing Denied April 24, 1918.)
    1. Death <&wkey;18(3) — Right or Action — Doss oa Injury.
    In action for death of an adult son the financial condition of parents was no bar to right of recovery, the inquiry being whether deceased, had he lived, would probably have contributed in a financial way to the benefit of plaintiffs.
    2. Death <&wkey;99(5) — Damages — Excessive Damages.
    In an action by surviving parents, respectively 65 and 63 years old, for the death of an adult son, where it appeared that the son was an only child, single, and living with his parents, that he was active in the performance of the various duties about plaintiffs’ farm, consisting of 160 acres in cultivation, and several hundred acres in pasture land, that he nursed plaintiffs, giving them medicine during their .illness, was attentive and affectionate in the performance of his duties, declared his intention of remaining with' his parents permanently, that the reasonable value of his services was $60 a month, and that he had been paid practically nothing., for what he had done, a verdict of $2,750 was warranted.
    3. Evidence -&wkey;?123(10) — Res Gestas.
    Testimony of a witness, who went to the scene of the wreck immediately after it happened, that it was about 20 minutes before the members of .the train crew who went away returned, and that deceased was not removed from the wreckage until they got back, was part of the res gestae.
    4. Appeal and Errob &wkey;>907(2) — Admissibility oe Evidence under Pleadings— Presumptions.
    Where plaintiffs alleged, in an action for wrongful death, the abandonment of the wreck and their son as one of the acts of negligence, and it does not appear from the record that such allegation was excepted to, the court on appeal is authorized to conclude that the court properly admitted evidence to the effect that the son was not removed from the wreck for some time after the accident.
    5. Appeal and Error <&wkey;1052(5) — Irrelevant Testimony — Harmless Error.
    In action for wrongful death, although testimony of witness, who went to scene of wreck immediately, that deceased was not removed from wreckage until over 20 minutes later, when members of crew returned, was no part of the res gestas, its admission was harmless under rule 62a (149 S. W. x), since the size of the verdict does not show passion or prejudice.
    6. Death <&wkey;64 — Action — Evidence — Admissibility.
    In action for death of adult son,, evidence that son had stated that he was going away to work a few weeks for spending money, because he received no pay from plaintiffs, and that he intended to stay with' plaintiffs, parents, until their death, was admissible on the issue of the parents’ expectancy of future aid from the son.
    7. Death t&wkey;64 — Action — Evidence — Admissibility.
    In suit by parents for death of adult son, evidence that the father was suffering with typhoid fever nine years before, from which he had never fully recovered, was admissible, since it showed that the father was in such condition as to require services of the son.
    8. Appeal and Error <g=»907(2) — Obedience to Rules — Presumption.
    The evidence showing that intestate was on top of the train, it will be presumed on appeal, in the absence of evidence to the contrary, that he was there in obedience to a rule of defendant company requiring freight brakeman to be on the top of trains, approaching stations, etc.
    Appeal from District Court, Hunt County; Wm, Pierson, Judge.
    Action by W. E. Hicks and wife against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    See, also, 166 S. W. 1190, 184 S. W. 1100.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Terry, Gavin & Mills and Jno. G. Gregg, all of Galveston, for appellant. B. Q. Evans and H. L. Carpenter, both of Green-ville, for appellees.
   HALD, J.

This suit grows out of the death of appellees' son, who, while employed as a brakeman, was killed in the derailment of a freight train upon appellant’s line of road, in the month of September, 1911. This is the third appeal in this case. The first trial resulted in a judgment for $5,500, and the second for $7,000. A remittitur of $3,500 was required by the trial court and entered in the last trial. Upon both appeals the judgments were affirmed upon condition that appellees would remit all but $1,100. Upon appellees’ refusal to enter such remittitur, the judgments were reversed and remanded.

Appellees alleged that the train upon which their son was employed was derailed and wrecked by the negligence of appellant in operating said train at a rapid and dangerous rate of speed over a track alleged to he defective; that if their son’s death did not result from the negligence of appellant in this respect, then his death was caused by the negligence of defendant’s train crew in abandoning and leaving him pinned and buried under the wreckage.

Appellant answered by general and special exception, general denial, and pleaded specially that the accident out of which the suit arose was not caused from any negligence of appellant company, but was occasioned by one of the ordinary incidents of that character of train service; . that the deceased was violating one of the rules of appellant company in that he was riding on top of a box car when he should have been in the cab of the engine; and set up the defenses of contributory negligence and assumed risk. In a trial before a jury there was a verdict in favor of appellees in the sum of $2,750.

Appellant urges, under the first assignment of error, that a verdict should have been instructed in its favor, since the evidence disclosed without dispute that appel-lees were financially independent; that they had no reasonable expectation of receiving pecuniary benefit from the deceased had he lived, and, on the contrary, all pecuniary behefits which would have been received would have been by the deceased from his parents. We have found no case where the question of financial condition of the plaintiffs in a suit of this character was held to be a bar to their right to recover for the death of an adult son. The sole inquiry has been whether or not, if deceased had lived, he would probably have contributed in a financial way to the benefit of his parents.

The evidence shows at the time of the death of young Hicks his father was 65 years of age and. his mother 63. It is further shown that he was the only child single and living with his parents; that they kept no domestic servants, and that he was active in the performance of the various duties in and about the farm. It is shown that the farm consisted of 100 acres in cultivation, and in addition to this there were.several hundred acres in pasture land, upon which the father had a considerable number of live stock. His mother’s health for several years before his death was not good, and it was shown that she had been in ill health for two or three years since; that his father was a sufferer from rheumatism and confined to his bed much of his time; that the son did most of the work in looking after the stock; that he assisted his mother in the dairy work, in milking from five to twelve cows, attending to the milk, shipping the cream, and was active in assisting his mother in her efforts to raise poultry for profit. It is further shown, by the testimony of neighbors and the family physician, that he nursed his mother and father, giving them medicine during their illness, and was attentive and affectionate in the performance of his duties, and had declared his intention of remaining with his parents permanently after his term of employment for several months with appellant company had expired. It was shown by uneontroverted evidence that his services in and about the farm, and in assisting his mother with her household duties, were reasonably worth the sum of $60 per month, and that he had been naid practically nothing for what he had done. Without detailing the testimony, suffice it to say that the evidence 'is sufficient to sustain the verdict in the amount rendered, had he lived and performed the services rendered by him prior to his death from September. 1911, to the date of the trial. The proposition under the second assignment, that there was and had been for' a long time ill feeling between the father and son, is not supported by the record. It was shown that the father was in ill health and was irritable, and upon several occasions before his son’s maturity there had been trouble between them, not of a serious nature, however; but the uncontra-dicted evidence was that, as the son grew older, he was more patient with his father, and that no animosity existed between them for some years prior to the death of the young man. W. T. Murdock for the appellee testified that very soon after the wreck the remainder of the train crew ran into Celeste upon the engine, leaving young Hicks in the wreck; that witness went to the scene of the wreck immediately after it happened, and over the objections of appellant testified as follows:

“I judge it was about twenty-five or thirty-minutes—twenty, or somewhere in that neighborhood—before the other men returned that went away. I never timed them. While the train crew was gone we moved the brickbats, and stuff from around him, and tried to cut some iron rods that had Ms legs between his ankles and knees, and could not cut them with an axe, and did not have any tools to cut the rods loose from him enough to get him out, and we did not get him out until they got back with some wrenches.”

The objection made to this testimony is that it was immaterial and irrelevant.

It was necessary for appellees to prove the death of their son in making out their case, and this evidence we think was part of the res gestas, as this witness testified that he was upon the scene within a few minutes after the wreck occurred.

Whether it can be rightly considered as part of the res gestas or not, young Hicks had been fatally injured, from which he died within a few minutes after he was extricated from the wreck; and, even if it is not properly part of the res gestes, the amount of the verdict does not indicate that its introduction had a prejudicial effect. It appears from the petition that plaintiffs had set up the fact of the abandonment of the wreck and their son as one of the acts of negligence. It does not appear from the record that this allegation was ever excepted to and the exception sustained, and we are authorized to conclude that the court properly admitted it under the pleadings. At any rate, since the size of the verdict does not show that it was the result of prejudice or passion, under rule 62a (149 S. W. x) the admission of the evidence, if error, is harmless. The same disposition is made of the assignment based upon the admission of the evidence of J. W. Bailey.

By the eighth assignment appellant complains of the admission of evidence from' Mrs. W. F. Hicks to the effect that young Hicks, in the spring of 1911, stated that he was going away to work a few weeks for spending money and extra clothes because he had never received any pay for his work on the farm; and the ninth and tenth assignments are based upon the testimony of Mrs. Hicks to the effect that her son had told her of his future plans, and that he did not intend to marry, but intended to stay with his parents until death separated them. We think this testimony was admissible upon the issue of the parents’ expectancy of receiving aid from him in the future. St. L. S. Ry. Co. v. Huey, 61 Tex. Civ. App. 605, 130 S. W. 1017; G. C. & S. F. Ry. v. Brown, 33 Tex. Civ. App. 269, 76 S. W. 794.

Appellant insists under the eleventh and twelfth assignments that the court erred in permitting Mrs. Hicks to testify that W. F. Hicks was suffering from an attack of typhoid fever nine years before, from which he had never fully recovered, and on account of which he was not mentally capacitated to attend to all of his business. It is held that testimony going to show the health, age, and condition of a parent in cases of this character is admissible. As stated before, it was shown that the son had devoted much time to nursing and caring for his father, and disclosed his willingness to render such services. This evidence showed appellee W. F. Hicks to be in such condition as required the services of his son. G. H. & S. A. Ry. Co. v. Davis, 4 Tex. Civ. App. 468, 23 S. W. 301; Texas Midland R. R. Co. v. Crowder, 25 Tex. Civ. App. 536, 64 S. W. 90.

Appellant further insists that the court erred in refusing to permit it to prove by its witness B. B. Mason, who had qualified as an expert, that it was safer for a man to ride in the cab of an engine than it was for him to ride on the top of a box ear. If admitted, this testimony would not, as applicable to all cases, have been true. In the event of a head-end collision, or a derailment of the engine, which more frequently occurs, most any other place would have been safer than the cab of the engine. If the performance of his duties by deceased at the time of the wreck required his presence upon the top of the cars, clearly the evidence would not have been admissible. As briefed, the assignment does not show the relevancy of this testimony. We gather from the record that the accident occurred less than three miles from the station of Celeste. The burden, being upon appellant to show that his proper place was in the engine cab at that time, was not discharged, as shown by the assignment. Appellant’s rule No. 418, governing employes, introduced by appellees, is as follows:

“Freight brakemen must be on top of their trains when approaching and passing stations, railroad crossings at grade, drawbridges, and when descending steep grades.”

The evidence having shown that young Hicks was on top of the train, in the absence of evidence to the contrary we must presume that he was there in obedience to this rule, and that some one or more of the conditions prescribed in the rule required his presence there rather than in the cab of the engine. The court did not err in overruling appellant’s application for a continuance.

Finding no reversible error, the judgment is affirmed.
      eSjb^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    RASCOE v. MYRE.
    (No. 1936.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 7, 1918.)
    1. Cotjets &wkey;>122 — District Court — Jurisdictional Amount — Allegation.
    In suit to rescind contract for the purchase of land and to recover the amount paid as part of the price, though the undisputed evidence showed such part was only $400, the petition alleging it was $500, the sum sued for was within the jurisdiction of the district court.
    2. Judgment <@=253(2) — Support by Pleadings — Attorney’s Fees.
    In suit to rescind contract for the purchase of land and to recover the amount paid as part of the price, judgment allowing $58.65 as attorney’s fees, when there is neither pleading nor proof that any such fees were contracted for, is excessive.
    3. Yendor and Purchaser <@=341(5) — Rescission by Purchaser — Measure ob Damages.
    In suit to rescind contract to purchase land and recover amount paid, measure of recovery is the sum which plaintiff paid for the land, with 6 per cent, interest from the date of payment.
    Appeal from District Court, Rockwall County; Kenneth Foree, Judge.
    Suit by W. L. Myre against J. S. Rascoe. From a judgment for plaintiff, defendant appeals.
    Judgment reformed and affirmed.
    A. H. Mount, of Dallas, and H. D. Stin-son, of Royse City, for appellant. H. M. Wade, of Rockwall, for appellee.
   HODGES, J.

In January, 1912, the parties to this suit entered into the following written contract:

“The State of Texas, County of Rockwall.
“This instrument witnesseth: That J. S. Ras-coe has this day conveyed to W. L. Myre the following lot of land: 25% ft. off the east side of lot No. 33 and 14% ft. off the west side of lot No. 34 in block E of the town of Royse City, Tex., reciting a consideration of $1,000.00 in cash; and whereas the $1,000.00 has not been paid in cash, there being only $400.00 cash paid and the remaining $600.00 to be paid as follows: That said W. D. Myre covenants and agrees that within six months from this date he will erect a one-story, 40 by 70 ft. brick store building on the said lot, with walls 16 ft. in height and 13 in. in thickness, and as soon as the same is erected shall convey, by general warranty deed, a one-half undivided interest in the side yralls to J. S. Rascoe. This deed this day executed by J. S. Rascoe and wife to W. D. Myre for the above-described lot is delivered in escrow to A. H. Mount, who shall hold the same until said building is begun and W. L. Myre has executed said deed. And if the said W. L. Myre should fail to erect said building and execute said deed, the deed is to be returned to J. S. Rascoe and this conveyance to be void.”

The evidence shows that Myre at that time held a note against a third party for the sum of $500, and accrued interest, on which the appellant, Rascoe, was a surety. Myre surrendered the note to Rascoe, and the latter paid the difference between its face value and the stipulated $400. In that way the cash consideration mentioned in the contract was paid. It also appeared from the evidence that there was a frame building situated on the lot described in the contract, which belonged to Rascoe, and which the latter had agreed to remove in order that Myre might erect the brick building contemplated. This building was not removed until some time in 1915, for the reason, as stated by Rascoe, that he did not believe that Myre was able to carry out his contract to build. Shortly after the expiration of the time limit in July, 1912, Rascoe took from the possession of Mount the deed which he had previously deposited in escrow. No brick building was ever erected upon the premises in question. In 1915 the appellee filed a suit, in which he sought a recovery of the land, and also damages for breach of the contract. In September, 1916, he filed an amended original petition, upon which the case was tried in the court below.

The judgment recites that the parties appeared and the case was submitted to the court without a jury; that the plaintiff had abandoned his cause of action as pleaded, “so far as the trespass to try title was concerned, and that feature claiming specific performance relying solely upon the note delivered to defendant in payment for the land.” A judgment was rendered in favor of the ap-pellee for the sum of $586.75 together with $58.65 as attorney’s fees.

In this appeal the appellant urges that the court erred in refusing to sustain special exceptions to the petition upon the ground that it appeared therefrom that the cause of action was barred by the statute^ of limitation. An examination of the petition does not justify that contention. While it may be that-the plaintiff’s cause' of action arose more than two years prior to the filing of the suit, that fact is not made evident -by his averments. After the elimination of that part of the plaintiff’s pleading in which he sought a recovery of the land, the suit, we think, should be treated as one to rescind the contract and recover the amount which had been paid as a part of the purchase price of the land. While the undisputed evidence shows that this was only $400, the petition alleges that it was $500; hence the sum sued for was within the jurisdiction of the district court. We have concluded, however, to sustain that assignment of error which complains that the judgment is excessive. It is for an amount not warranted by the pleadings. The court allows $58.65 as attorney’s fees, when there’ is neither pleading nor proof that any attorney’s fees were contracted for. The measure of the plaintiff’s right of recovery in this instance is the sum which he paid for the land, together with 6 per cent, interest thereon from the date of payment ; and the judgment will be reformed accordingly. While there is a prayer >for damages, there are no facts tending to show that the appellee sustained any damages beyond the sum which he paid as.a part of the purchase price for the land.

The costs of this appeal will be adjudged against the appellee.
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author: RASBURY, J.

text:
    NORTHERN TEXAS TRACTION CO. v. CROUCH et al.
    (No. 7926.)
    (Court of Civil Appeals of Texas. Dallas.
    April 6, 1918.)
    1. Appeal and Error <©=>1064(4) — Review —Harmless Error — Instruction — “Accident.”
    In an action for damages for personal injuries sustained while boarding defendant’s street car, reference by the court to the occasion of the injury as an “accident” was harmless error; the word assuming loss or hurt without placing the blame or cause upon any particular person or agency.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accident.]
    2. Parent and Child <&wkey;7(14) — Loss op Services — Damages—Instruction.
    In a father’s action for personal injuries to his minor daughter while boarding a street car, an instruction as to the measure of damages failing to limit recovery for services from the day of the injury to the daughter’s majority was erroneous.
    3. Appeal ^ and Error <&wkey;1064(l) — Review
    In a personal injury action, where the court erroneously failed to limit a father’s recovery for loss of services of his daughter to her minority, such error, the only effect of which could have been an excessive verdict, was harmless, in the absence of complaint below that the verdict was excessive.
    4. Carriers <&wkey;328(l) — Passengers — —Boarding—Ordinary Care.
    'It is not want of ordinary prudence for a minor to attempt to board a street car, standing at a station waiting for passengers, without the assistance of an escort, although such escort be at hand.

      5. Trial <&wkey;260(8) — Instructions — Requests — Matters Already Given.
    In an action for personal injuries to a minor while attempting to board a street car, it was not error to refuse a charge that, if the minor “attempted to catch’’ the car while in motion, or while being put in motion, and an ordinarily prudent person would not have made such attempt, then to find for defendant where a similar charge had already been given.
    6. Trial <&wkey;252(10) — Instructions — Evidence.
    In an action for personal injuries while attempting to board a street car, it was not error to refuse an instruction, reciting that the minor “attempted to catch” the car, where evidence showed that she had actually seized the handholds and put her foot on the step.
    7. Damages <&wkey;158(4) — Issues — Evidence.
    In an action for damages sustained by a minor while attempting to board defendant’s street car, a statement by the minor in describing how her injuries affected her that she “had bells in her head” was not rendered inadmissible, although injury to the head had not been pleaded.
    8. Evidence <&wkey;553 (4) — Expert Testimony —Examination.
    In an action for injuries sustained by a minor while attempting to board defendant’s street car, a statement by a medical expert that, displacement of the womb would likely cause accelerated or irregular menstruation was reversible error, in the absence of evidence of such injury.
    9. Damages c&wkey; 158(1) — Issues, Proof and Variance — Injuries.
    Proof should correspond with the allegations of the complaint, and material injuries not alleged should not be proven.
    10. Evidence <&wkey;127(4) — Admissibility — Declaration of Person Injured.
    In a personal injury action, expression of the person'injured concerning bodüy pain or illness, when shown to have followed the injury, are competent.
    Error from Dallas County Court; T. A. Work, Judge.
    Action by C. A. Crouch and others against the Northern Texas Traction Company. Judgment for plaintiffs, and defendant brings error.
    Reversed and remanded.
    J. W. Timmins and Thompson, Knight, Baker & Harris, all of 'Dallas, for plaintiff in error. McCutcheon & Church, of Dallas, for defendants in error.
   RASBURY, J.

Defendant in error, for himself and as next friend of his minor daughter, Jewell, sued plaintiff in error for damages for personal injuries alleged to have been negligently inflicted upon the minor, the precise negligence alleged being that the minor, for the purpose of boarding plaintiff in error’s car, had placed her left foot upon one of plaintiff in error’s car steps, and had seized the car lifts or handholds when plaintiff in error’s servant negligently started the car with a sudden jerk and lurch, breaking her grasp upon the handholds, precipitating the minor against the side of the car, and seriously injuring her, and whereupon plaintiff in error’s conductor seized said minor by the arm and pulled her up and onto the platform of said car, further seriously injuring her. Plaintiff in error pleaded, on the merits, the general denial and contributory negligence. All issues presented in the briefs are matters of law based on undisputed fact matters, and hence a statement of the facts adduced by the parties is unnecessary, save to say that the evidence adduced by defendants in error sustained the allegations of their petition and the verdict of the jury. There was trial by jury, to whom the case was submitted generally. Verdict was for the minor for $400 and for her father for $100, followed by similar judgment.

The first assignment of error complains of the court's charge. In submitting the case to the jury the court termed the occasion whereat the minor claimed she was injured an “accident.” The contention was made below and is renewed here that the use of the word “accident” was an assumption by the court that an accident in fact resulted at the time alleged, while that fact was in controversy. It is argued that, while accident is-defined as an unfortunate event occurring casually, an undesigned harm or injury, a .casualty or mishap, the testimony of plaintiff’ in error’s witnesses discloses neither mishap, casualty, nor injury to the minor. Witnesses for plaintiff in error did so testify. The word “accident” has been often defined in a legal sense from varying points of use and relation. 1 Corpus Juris, 390. The authority cited at page 394, § 6, declares:

“Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended or unexpected loss or hurt apart from its cause, and if the cause is not known, the loss or hurt itself would certainly be called an- accident.”

Thus it appears that in legal contemplation the use of the word may fairly be said to assume loss or hurt without placing the blame or-cause upon any particular person or agency. As a consequence, assuming that the jury understood the legal significance of the word, it resulted that the court told the jury that there was an accident at which defendant in error-was hurt, which was to assume a controverted fact, and from which it results that the use of the word was erroneous, technically at least. Regarded from the context of the • charge, we are inclined to believe that the jury was not misled by the court’s use of the word, but that they regarded the term as having descriptive significance only, or as designating the occurrence whereat defendant in error claimed to have been injured, and that in the nature of things the jury never considered the technical legal meaning of the word, and that for such reason the use .of the word was not such an error of law as was calculated to, and probably did, cause the rendition of an improper judgment, and we do not feel warranted on that ground alone in reversing the judgment.

It is also urged that the court erred in defining the measure of damages controlling recovery by the minor’s father. It was alleged by the father that due to the minor’s injuries she had, ever since such injury, been unable to labor and render him the service she usually did, and would be unable so to do until her majority, with prayer for the value of such services, which were fully set out and particularized. Evidence to sustain the allegation was introduced. The court instructed the jury that if they found for defendant in error, C. A. Crouch, on that issue he would be entitled to recover “the value of the services of his daughter during the time she was unable to perform her usual duties, * * * taking into consideration the expense C. A. Crouch would have probably incurred on Jewell Crouch while she was unable to work.’’ The contention is that the charge is erroneous in failing to limit the recovery from the date of the injury to the minor’s majority. The criticism is warranted. The damages recoverable by parents for personal injuries inflicted upon their minor children is such sum as will compensate the parent for any loss of the services of the minor caused by such injury during the-minority of the child, together with all necessary expense incurred in effecting a recovery from the injury for physicians, nurses, medicine, etc. However, such error in the charge will not authorize a.reversal of the case, since the only effect the charge could have had would have been to cause an excessive verdict. It could have had no bearing on the issue of liability. Railway v. Boozer, 70 Tex. 530, 8 S. W. 1119, 8 Am. St. Rep. 615. There being no complaint in the court below that the verdict was excessive, the assignment will be overruled.

The minor was escorted to the car upon which she claims she was injured by her brother, but upon reaching the car in advance of him she attempted to embark without awaiting his assistance. Plaintiff in error by special charge requested the court to submit to the jury whether an ordinarily prudent person under such circumstances would have awaited the assistance of such escort before attempting to embark upon the car. The charge was refused, and the court’s action in that respect is assigned as error. It is not a failure to exercise ordinary prudence for a1 person to attempt to board a car at station under the circumstances disclosed by the record in the instant case, without the assistance of an escort. The exercise of ordinary care for one’s safety, in such cases, we ‘are persuaded; does not require the assistance of an escort,

Complaint is made of the court’s refusal to allow special charge which, in effect, told the jury that if the minor “attempted to catch” the ear while -in motion, or while it was being put in motion, and that an ordinarily prudent person under same or similar circumstances would not have attempted so to do, to find for plaintiff in error. A charge substantially similar to the foregoing, save that in lieu of the expression “attempted to catch” the court used the expression “took hold of the ear,” was given. One charge presenting the issue was all that plaintiff in error was entitled to. Further, the evidence did not raise the issue that the minor “attempted to catch” the car. The witnesses on both sides testified that she actually seized the handholds and put her foot upon the step.

The minor, while on the witness stand, testified to the character and extent of the injuries she received while attempting to board the car, and that as a result she was thereafter confined to her bed for three weeks, unable to work. Describing, upon request, how the injuries affected her, she said that she suffered “pain in her left shoulder and back, hurt all over, from her shoulder down, and had bells in her head sometimes.” Counsel for plaintiff in error objected to the witness stating that she had bells in her head, because injury to her head had not been pleaded and proven, and moved the court to exclude such statement from consideration of the jury, which the court refused to do, and which action is assigned as error. Conceding the premises of the contention, we do not understand the statement of the witness was for the purpose of proving injury to the head. She was detailing the pain and other unpleasant sensations that resulted from the injuries she claimed to haye received. In short, the effect produced. For the purpose of having the-jury pass upon the physical pain resulting from the injury the witness was entitled to recite whatever pain or unpleasant sensation she was subjected to as a result of her injury, and the statement was admissible for that purpose.

Dr. H. Y, Copeland, witness for defendants in error, while on the stand, was asked as an expert in substance whether, in his opinion, any unusual strain upon or twist or displacement of the womb or other organs of the female would likely cause irregular or accelerated menstruation. Objection to the question was made on the ground that the facts comprehended in the question found no basis in the 'evidence. The objection was overruled, and the witness answered, in effect, that such condition would result. Complaint is here renewed in reference to the admission of the testimony. The testimony was, in bur opinion, inadmissible and constitutes reversible error. The minor testified to irregular or accelerated menstruation, but there is in the record no testimony whatever that the womb was displaced, or that the minor received such unusual strain at the time of her injuries as was calculated to produce such result. While Dr. Copeland testified that he prescribed for the minor for irregular menstruation, he did not testify to any independent knowledge of the fact that the womb was displaced, and necessarily his conclusion was based upon an assumption not deducible' from any fact in evidence. Obviously, such a condition, if it existed, would be in the nature of things- of controlling influence upon the jury. There being in the evidence then no hypothesis for the question submitted to Dr. Copeland, it was clearly erroneous to permit him to answer the question over objections of plaintiff in error. The rule, requiring hypothetical questions to find support, either in the evidence of the expert witnesses or others, is so elementary as to requiré no citation of authority.

Complaint is made concerning the admission of testimony relating to the character and extent of the minor’s injuries on the ground that it was not warranted by the pleading. In view of another trial it is only proper to say that the proof should correspond with the allegations, and that as a consequence material injuries not alleged should not be proven, if that was the effect of the testimony admitted.

Complaint is also made concerning the admission in evidence of declarations of the minor relating to the pain she suffered as a result of the injuries received. In such connection it is enough to say the expressions of persons concerning bodily pain or illness, when shown to have followed the injury, are competent, as being ■ originally the natural consequence and outward indication of coexisting suffering,' and may be shown by any witness otherwise qualified.

Because of the admission of the testimony of Dr. Copeland the judgment is reversed, and the cause remanded for another trial.

Reversed and remanded.
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      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    SPRINGFIELD FIRE & MARINE INS. CO. v. MORGAN.
    (No. 1927.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 11, 1918.
    Rehearing Denied March 21, 1918.)
    1. InsuRanoe <&wkey;328(2) — Fire Insurance— Change in Title — Sale — Delivery of Deed.
    Where the holder of a fire policy covering a dwelling house sold the dwelling house and executed deed to the buyer, with an assignment of the policy, and he, being unable to pay the purchase-money notes, reconveyed the premises to his vendor, and, after destruction of the house by fire, assigned the insurance policy back, if, when delivered from the buyers to their vendor, their deed became effective as a> conveyance, it passed title within the meaning of the stipulation in the policy avoiding it for such change.
    2. Deeds <&wkey;208(7) — Delivery—Sufficiency oe Evidence.
    In an acti.on on a fire policy, wherein the-insurer claimed that the policy was avoided by a change in title, evidence held to show conclusively that deed back to plaintiff, executed by the husband and wife to whom he had sold, became effective as a conveyance when it was delivered to plaintiff; the delivery not being to the bank of which plaintiff was president to hold until he obtained and canceled the husband’s purchase money notes.
    3. Escrows <&wkey;3 — Delivery in Escrow — Intervention oe Third Person.
    The grantee named in a deed cannot hold it as an escrow, and it takes effect on delivery despite his agreement that it shall not be effective as a conveyance until he has done certain things.
    4. Insurance <&wkey;328(l) — Fire Insurance— Stipulation as to Change in Title — 'Validity.
    Stipulation in a fire policy that it should1 be void on any change in the title of the insured' premises was valid.
    Error from District Court, Gregg County; Daniel Walker, Judge. . ,
    Suit by T. C. Morgan against the Springfield Fire & Marine Insurance Company. To-review judgment for plaintiff, defendant, brings error.
    Reversed, and judgment rendered.
    January 4, 1913, plaintiff in error issued' a policy to Mrs. M. A. Tates insuring her in. the sum of $750 -against loss by fire of a. dwelling house she owned. Mrs. Yates aft-erwards sold the house to defendant in error, and on January 22, 1914, assigned the-policy to him. On the next day thereafter-wards, to wit, January 23, 1914, defendant, in error, in consideration of $500 and two-notes for $500 each made by one Newton, conveyed the house and assigned the policy-to said Newton. Defendant in error assigned the notes to one Harris, and provision was made by an indorsement on the policy-for the payment to Harris as his interest, appeared of loss it covered. Newton was notable to pay the notes; and by a deed dated February 17, 1915, in which he was joined by his wife, reconveyed the house to defendant in error in consideration of $1 “and the-further consideration,” it was recited in the deed, “of the cancellation and surrender” of' the notes. Thereafterwards, to wit, about July 8, 1915, the house was destroyed by fire._ March 14, 1916, Newton assigned the policy-to defendant in error, who commenced this-suit thereon by a petition filed November 9, 1916. The policy contained a stipulation as - follows:
    “This entire policy. * * * shall be void, * * * if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of' hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise.”

      Plaintiff in error claimed that the effect of the deed of Newton and wife was to pass their interest and title in and to the house to defendant in error, and that the policy thereupon, by force of. the stipulation referred to, became and thereafterwards continued to be void. Defendant in error insisted that such was not the effect of the deed, because it was never delivered to him, but at the time of the fire was held as an escrow by a bank of which he was president. The trial court was of opinion it appeared from the testimony that the deed was not delivered so as to become operative before the fire occurred, and he therefore peremptorily instructed the jury to find in favor of defendant in error. The appeal is from a judgment in accordance with such a finding.
    Locke & Locke, of Dallas, for plaintiff in error. Xoung & Stinchcomb, of Longview, for defendant in error.
   WILLSON, O. J.

(after stating the facts as above). Long before the fire occurred the deed from the Newtons to defendant in error was actually manually delivered by the former to the latter. If when so delivered the deed became effective as a conveyance, it passed the title in the Néwtons to the house to the defendant in error', and so effected “a change in the title of the subject of the insurance” within the meaning of the stipulation in the policy set out in the statement above. If it did that, then the policy ceased, before the fire occurred, to be a binding obligation on the part of plaintiff in error, and the judgment should have been in its favor instead of against it. Careful consideration of the record has convinced us that it conclusively appeared that the deed became effective as a conveyance when it was delivered as stated, and that the trial court therefore erred when he refused the request of plaintiff in error that he peremptorily instruct the jury to find in its favor. The claim made that the delivery of the deed was not to defendant in error as the grantee named therein, but to the bank of which he was president, to hold until he obtained and canceled the notes of Newton held by Harris, is, we think, without support in the evidence. Newton testified he left the deed with defendant in error because he had known him 20 years, had confidence in him, and thought he would carry out his agreement to cancel the notes held by Harris. No inference to the contrary of what Newton’s testimony showed could fairly have been drawn from testimony of defendant in error that the deed was left in the vault of the bank of which he was president, in view of his further testimony that Newton left the deed with him on his agreeing not to have it recorded until he had obtained and canceled the notes held by Harris. In fact, the testimony of Newton and defendant in error, respectively, considered as a whole, was that the deed was delivered to the defendant in error as the grantee named therein, and that neither of them at the time understood that the delivery was in escrow to the bank through defendant in error as its president.

Another theory upon which it is claimed the judgment may be supported is that it was understood between Newton and defendant in error at the time the deed was delivered to the latter that it should not be effective as a conveyance until defendant in error had procured and canceled the notes held by Harris. In other words, it is claimed that the deed was delivered to defendant in erron as an escrow, and that he held it as such at the time of the fire. But the rule is that the grantee named in a deed cannot hold it as an escrow. Holt v. Gordon, 107 Tex. 137, 174 S. W. 1097.

"The effect,” says the writer of the article in “Deeds” in 8 R. O. L. 983, “of a direct delivery to the grantee cannot be obviated by the intention of the parties that it shall operate merely as an escrow to take effect only upon specified contingencies, the intervention of a third person being absolutely essential to the accomplishment of such a purpose. * * * This is one of tho instances in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the legal means of accomplishing their object.”

The stipulation in the contract was a valid one. Insurance Co. v. Davis, 167 S. W. 176; Fire Association v. Perry, 185 S. W. 374. As it was violated, we see no way of escape from the conclusion that plaintiff in error was not liable to defendant in error.

The judgment will be reversed, and judgment will be here rendered that defendant in error take nothing by his suit.
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