author: BROOKE, J.

text:
    PADGETT v. HINES et al.
    (No. 111.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 25, 1917.
    Rehearing Denied Feb. 28, 1917.)
    1. ATTORNEY AND CLIENT <&wkey; 129(2) — MISAPPROPRIATION op Clients’ Note — Action.
    Petition against an attorney, employed by plaintiffs to defend a suit alleging that defendant hypothecated notes, given to him by plaintiffs for purpose of settlement of such suit, held not subject to general exception:
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 288, 289.]
    2. Appeal and Ereos <&wkey;216(2) —Reservation op Grounds op Review — Omission prom: Charge.
    If there was anything omitted from the court’s' charge that was necessary to a proper presentation of the case from defendant’s standpoint, such matter should have been requested by defendant by special instruction, or objection should have been made at the time, and before the charge was read to the jury, and, in the absence of request or objection, defendant cannot complain of the omission on appeal.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 627, 628.]
    3. Trial <&wkey;349(3) — Submission op Special Issues — Constitutionality op Statute.
    The Legislature was authorized to enact a law permitting the judges of the district courts to submit questions to a jury on special issue, without being requested to do so; such enactment not being obnoxious to the Constitution.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 825.]

      4. Attorney and Client <&wkey;129(2) — Action Against Attorney — Misappropriation op Client’s Note — Evidence.
    In suit against an attorney to recover an amount realized by him in dealing with notes intrusted to him by his clients, defendants in a former suit, for purposes of a settlement, an instrument, signed by plaintiff in that suit, acknowledged before a notary, and filed for record, which purported to “give, grant and will” notes to his daughter, a defendant in the former suit, one of plaintiffs herein, held admissible.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 288, 289.]
    5. Appeal and Error <@^742(1) — Assignment op Error — Support by Statement.
    Where appellant submitted no statement from the record under his assignment of error challenging the action of the trial court in not having submitted the question of damages to the jury, the assignment will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000.]
    6. Appeal and Error <&wkey;213 — Reservation op Grounds op Review — Request por Submission op Issue.
    Complaint cannot be made of failure to submit an issue to the jury, where no request was made for the submission.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 130^-1308.]
    7. Trial &wkey;>169 — Improper Argument — Ep-pect.
    That counsel for plaintiffs indulged in improper argument beyond the issues did not entitle defendant to a directed verdict.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 341, 381-387, 389.]
    8. Appeal and Error <&wkey;>207 — 'Reservation op Grounds op Review — Improper Argument.
    In the absence of request to the lower court to instruct the jury that counsel’s argument was improper, the Court of Appeals cannot reverse on account of the argument.'
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1500.]
    9. Trial &wkey;>388(2) — Trial to Jury — Filing Conclusions op Law and Fact.
    Where the case is tried by a jury, the court need not file conclusions of law and fact.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 909.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Suit by John Hines and others against E, P. Padgett. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    J. W. Minton and E. P. Padgett, both of Hemphill, far appellant. Carter, Walker & Cousins, of Hemphill, for appellees.
   BROOKE, J.

John Hines et al., plaintiffs in the court below, on the 5th of March, 1915, filed their original petition in this cause, as follows:

“(1) That therefore, to wit, on .or about the 28th day of January, 1914, George. Tucker filed suit against these defendants in the district court of Sabine county, Tex., seeking an adjustment of a business transaction between these plaintiffs and the said George Tucker, growing out of the sale of 105% acres of the Moses Hill survey in Sabine county, Tex.
“(2) That one W. R. Cousins, an attorney at law of Hemphill, Sabine county, Tex., was the attorney of record for the said George Tucker in bringing said suit against these plaintiffs, and the said Tucker contracted and agreed with the said Cousins to pay him for his service in bringing such suit, and in prosecuting the same to an adjustment, the sum of $50.
“(3) That these plaintiffs, desiring counsel to represent them in this suit, thus filed against them by the said Tucker, employed this defendant, E. P. Padgett, an attorney at law, to represent them in such litigation, and to prosecute the same to an adjustment, and these plaintiffs contracted with the said E. P. Padgett, attorney at law, as aforesaid, and agreed with the said Padgett to pay him the sum of $50 for representing théir interest in such litigation, and to prosecute the same to an adjustment.
“(4) That, while said suit was pending on the docket of said county court, a proposition of settlement was submitted by_ the said Tucker and his counsel, W. R. Cousins, to the said E. P. Padgett, attorney for these plaintiffs, to the effect that the said Tucker would settle with these plaintiffs the matters involved in such litigation, if these plaintiffs would pay to the said Tucker the sum of $400.
“(5) That the subject of such litigation was as follows: That heretofore, to wit, on or about the 22d day of September, 1909, the said George Tucker and one of the plaintiffs herein, Catherine Hines (who was then Catherine Tucker), sold to A. M. Jones and G. E. Pratt 105% acres of the Moses Hill survey, in Sabine county,, by their deed in writing bearing said last-mentioned date, which said deed is of record in Volume 4, pages 6 and 7, of the deed records of Sabine county, Tex., to which said deed and the record thereof reference is hereby made for a full and complete description of said land. That the consideration paid and to be paid by the said A. M. Jones and G. E. Pratt for said lands was $1,-584.98, of which sum $500 was paid in cash, and the balance in six notes of the sum of $180.83 each, with interest at 10 per cent, per annum from date until paid. That, after the money was paid, and the notes were executed, the money and the notes were placed in the First National Bank of Hemphill, and after this was done the plaintiff, Catherine Hines, who was then Catherine Tucker, married the plaintiff herein, - Hines, and after such marriage these plaintiffs withdrew the $500 from the bank, and also took possession of the notes, and 'the suit as filed by the said George Tucker was to adjust the rights of these plaintiffs and the said George Tucker in the money and in the notes.
“(6) That the proposition as submitted by the said George Tucker, and his attorney, W. R. Cousins to the said E. P. Padgett, was to the effect that, if the plaintiffs herein would pay to the said George Tucker the sum of $400, the said George Tucker would give to these plaintiffs his interest in the $500 and in the notes.
“(7) That the said E. P, Padgett, as attorney for these plaintiffs, did not submit the propó-sition to these plaintiffs as made to him by the said Cousins and the said George Tucker, but did submit to these plaintiffs the following proposition: That is, the said E. P. Padgett represented to these plaintiffs that they could not recover in excess of the one-half interest in the said money and notes, and that the said Tucker and Cousins had submitted to him, as attorney for these plaintiffs, a proposition to settle the matters involved in said lawsuit by the said Tucker taking a one-half interest in said notes, and these plaintiffs taking a one-half interest in said notes, and their said counsel, E. P. Padg-ett, having advised these plaintiffs this was all they could recover in the litigation, and he having advised them to adjust said lawsuit by accepting the proposition as explained to them by him, they authorized the said E. P. Padgett to adjust the said lawsuit with the said Tucker by paying to the said Tucker a one-half interest in the consideration for said lands as stated above.
“(8) That this proposition was agreed by these plaintiffs on or about the 24th day of August, 1914, and on such date there was due on the notes the sum of $-, together with $500, making the sum of $--, which these plaintiffs understood was to be divided between them and the said Tucker.
“(9) That said Padgett never did submit to these plaintiffs the proposition which had been submitted to him by the said Tucker and said Cousins, wherein the said Tucker agreed to take $400 for his interest in the notes and the money.
“(10) That believing that the proposition as submitted to them by the said Padgett was to their interest, and was the proposition, as submitted to him by the said Tucker, they delivered all of said notes to the said E. P. Padgett, and authorized him to adjust the matter with the said Tucker and said Cousins.
“(11) That the said Padgett took the said notes and cashed the same, and realized from said notes the sum of $-.
“(12) That from said money so received by him, the said Padgett paid to the said Cousins and Tucker the sum of $400, and that he paid to these plaintiffs the sum of $200.
“(13) That he represented to these plaintiffs that he had realized $1,000 on such notes, and, as these plaintiffs had already received $500 in money, the said Padgett represented to these plaintiffs that he had paid to the said Cousins and Tucker the sum of $750, and that $250 was due to these plaintiffs, and that these plaintiffs were due him $50 for his services, which he took from the $250, and paid to these plaintiffs the sum of $200. That thus these plaintiffs realized on said adjustment the sum of $700.
“(14) These plaintiffs further say that on the proposition as submitted by the said Tucker and Cousins, to the effect that the said Tucker should receive $400, after paying the said $400 to the said Tucker and Cousins, the said Padgett had in his hands the sum of $-, all of which belongs to these plaintiffs, and which should have been paid to them by him, the said Padgett.
“(15) That, if the said Padgett had not represented to these plaintiffs and advised them to settle on the proposition of dividing the funds equally between these plaintiffs and the said Tucker, they would not have done so.
“(16) That the said Padgett never did go to these plaintiffs and submit to them the proposition to adjust the litigation on the basis of $400 to the said Tucker.
“(17) That, by adjusting the matter in which he did, the said Padgett has wrongfully withheld from these plaintiffs the sum of $ — -, which came into his hands by reason of the settlement, and these plaintiffs having paid to the said Padgett the $50, which they agreed to pay, they were due him nothing further for his services in this behalf. That all the said funds belong to these plaintiffs.
“(18) By reason of the conduct of the said Padgett, he has caused the plaintiffs to suffer damages in the sum of $-, which said sum they have often demanded of the said Padgett, and which he refused to pay.”

Afterwards they filed a supplemental petition, as follows:

“First. Plaintiffs say: If they are mistaken in the allegation in their original petition, to the effect that defendant sold the notes therein sued on, then they say that, the said defendant hy-pothecated the notes therein sued on to the First National Bank of Hemphill, and drew on said notes the sum of $683, or about that sum, this being the correct figure so far as plaintiffs have been able to learn, that the defendant gave his note for said sum, and placed these notes as collateral, to secure the same. •
“Second. That of the said sum so received $400 was paid to said Tucker and Cousins, and $50 was paid to the said Padgett, and $200 was paid to these plaintiffs: that is, these plaintiffs were obligated to pay the said Tucker and Cousins $400, and they did pay the same, through the said Padgett, and the said Padgett paid to these plaintiffs $200, and these plaintiffs understood that they were paying the said Padgett $50, leaving an equity in said notes of $528.09 belonging to these plaintiffs.
“Third. These plaintiffs further say that they were advised that the said First National Bank of Hemphill still holds the notes of these plaintiffs, and that the same are held as collateral, to secure the note given by the said Padgett, for the above-mentioned note of $683, or whatever sum the note may have been.
“Fourth. These plaintiffs say that the equity in said notes, in excess of the sum of $650, belongs to these plaintiffs.
“Fifth. They further say that the said Padg-ett advised them at the time the settlement was made, as pleaded in their original petition, that he had sold the notes as herein pleaded by these plaintiffs, and they did not know to the contrary until since the convening of this term of this court.
“Sixth. They say that the First National Bank of Hemphill should be made a party to this suit to show what interest they have in the above-described notes.
“Wherefore, these plaintiffs pray that the entire transaction between them and the defendant be fully inquired into, and that equity be done, between plaintiffs and this defendant. They further pray the said First National Bank of Hemphill be cited to answer herein, and, on trial hereof, that they have judgment against the First National Bank of Hemphill, for the title and possession of the above-described notes, subject to lien of the. said bank for whatever sum may be justly charged against said notes, and that such orders may be made as will protect the rights of all parties herein, and for general and special relief, both in law and in equity, and as in their original. petition plaintiff will ever pray.”

Also, on April 5, 1915, they filed their trial amendment as follows:

“Now come the plaintiffs, and; leave of the court having been had and obtained, files this their first trial amendment, and for plea in this behalf, as to paragraph 8 in original petition, they say that on or about the 24th day of August, 1914, there was due on the notes the sum of $1,178.09, together with $500, making the sum of $1,678.09.
“Second. That as to the eleventh paragraph of plaintiffs’ petition, plaintiffs say that the said Padgett took the said notes and cashed the same, and that the notes were of the value of $1,178.09, which plaintiffs understood was to be divided between ptaintiffsi and the said Tucker.
“Third. That as the fourteenth paragraph of 'plaintiffs’ petition, they say that after paying the said $400 to the said Tucker and Cousins, the said E. P. Padgett had in his hands effects of the value of $778.09, which belonged to these plaintiffs.
“Fourth. That the said sum. of $778.09, as above named, was the property of these plaintiffs, and out of this sum the plaintiffs were due the said Padgett the sum of $50 as attorney’s fee. That after paying the said sum of $50 he still had in his hands the effects belonging to those plaintiffs, the amount of $728.09, and from this he paid the plaintiffs the sum of $200, leaving in the hands of defendant effects of the value of $528.00, belonging to these plaintiffs and which he converted to his own, use.
“Fifth. As' to the eighteenth paragraph of said petition, these plaintiffs say, by reason of the conduct of the said Padgett, he has caused plaintiffs to suffer damage of the sum of $528.09, which said sum they have often demanded of the said Padgett, and which he has refused to pay.
“Sixth. Further pleading in this behalf, these plaintiffs say that the above allegations are made for the purpose of supplying the omissions in the paragraph as named, and they asked that the same be taken and considered as a part of the paragraphs of the plaintiffs’ original petition as above numbered.”

The defendant answered by general demurrer, denying the material allegations in plaintiffs’ petition., and by pleading that he bought the interest of Tucker in the notes for $500, and the interest of the plaintiffs in the notes for $200.

The case was tried before a jury on special issues on the 28th day of September, 1915, and resulted in a judgment against the appellant for the sum of $528.09, with 6 per cent, interest from the 24th day of August, 1914, and costs of suit. Motion for new trial was made and overruled, and the case is before this court for adjudication.

By appellant’s first assignment of error, the action of the court is challenged in overruling and refusing to sustain his general exception to the original petition, the supplemental petition, and the trial amendment.

'We do not believe, after a careful consideration of the matter, that the action of the- court was error. The facts were set out in the petition, together with the supplemental and trial amendment, and the only legal conclusion to be arrived at was that, if the facts proved to be as represented, the appellant was due the appellee the sum as found by the judgment of the lower court. Therefore the assignment is overruled.

The second assignment is as follows:

“The court erred in not submitting the whole cause, with all the evidence and proper charge submitting all the rules of law applicable to the pleading and the evidence, to the jury for their determination as is provided and meant by the Constitution and laws of the state of Texas, guaranteeing the right of trial by jury, all of which is shown 'by bill of exceptions No. 2, herewith filed and made a part hereof, and asked to be considered in connection herewith.”

If there was anything omitted from the charge of the court that was necessary in order that the jury might have a proper presentation of the case from the appellant’s standpoint, said matter should have been requested by special instruction, or objectiou should have been made at the time and before thé charge was read to the jury. In the absence of any requested instruction or objection to the charge made at the proper time, the appellant cannot be heard now to complain. The assignment is therefore oyerruled.

The third assignment challenges the action of the lower court in submitting the cause to the jury on special issues, without written request of either party.

The Legislature was authorized to enact a law permitting the judges of the district courts to submit questions to a jury on special issue, without being requested to do so, and, in our judgment, such enactment is not obnoxious to the Constitution. The assignment is therefore overruled.

Complaint is made that the court erred in his charge to the jury as follows:

“The burden of proof rests upon the defendant, E. P. Padgett, to show by a preponderance of the testimony that he bought the notes for himself.”

If this was error, objection should have been made to the charge of the court, in writing, with respect to the matter complained of, before the charge was submitted to the jury. In the absence of proper' request and objection, as heretofore stated, this court is not authorized to review the matter. The fourth assignment is therefore overruled.

Appellant’s fifth assignment complains that the court erred in giving in his charge to the jury question No. 1, as follows:

“At the time E. P. Padgett made the settlement, Geo. Tucker and his counsel, W. R. Cousins, was the agreement between Geo. Tucker and W. R. Cousins on the one part, and E. P. Padgett on the other part, that the $400, which was paid to Geo. Tucker by E. P. Padgett, was paid in compromise of Tucker’s interest in the lawsuit then pending between Geo. Tucker and his daughter, Kate Hines, or was the $400 paid by E. P. Padgett to Geo. Tucker in purchase for himself of the interest of Geo. Tucker in the notes?”

In our judgment, it was a proper issue to be submitted to the jury, and, as before stated, no complaint was made of this or any other charge of the court at the proper time, and neither was a request made for such instruction as the appellant believed would properly present the issue, or present his contentions in an affirmative way. Therefore complaint will not now be-heard of the matter. This assignment is overruled.

What is said here also. applies to appellant’s sixth, seventh, eighth, and ninth assignments.

By the tenth assignment of error, the action of the lower court is challenged in admitting in evidence before the jury, over defendant’s objection, a certain written instrument, dated '9th day of August, 1910, purporting to have been signed by George Tucker, as follows:.

“County of Sabine, State of Texas.
“No all men by these presences: That I Geo. Tucker of the county of Sabine and state of Texas, have his day give, granted and willed, and by these presences do will and forever pass title to my daughter, Kattie Tucker, all of the following described property, to- wit: One vendor’s lien note of $333.33 due me by Ed. Pratt of Hemphill, Texas, and one vendor’s lien note of $333.33 due me by casher jones, of the First National Bank, of Hemp-hill, and one vendor’s lien note of $333.33, due by Bill Goodrich, Esq., of Hemphill, Texas, all drawing eight per cent, interest per annum and ($300.00) three hundred dollars now in the Hemphill Bank of Hemphill, Texas. The title to the above-described property and increase of same, passes absolutely to my daughter, Kattie Tucker, forever at my death.
“Witness my hand at Bronson, Texas, this the 9th day of August, 1910.
his
“George X Tucker.
mark
“Witnesses: W. R. Low. T. J. Bickley.
“State of Texas, County of .Sabine.
“Before C. E. Casey, a notary public in and for Sabine county, Texas, George Tucker, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
“Given under my hand and seal of office, this the 9th day of August,' A. D. 1910.
“C. E. Casey,
“Notary Public, Sabine County, Texas.
“The State of Texas, County of Sabine.
“I, E. P. Adams, clerk of the county court of said county, do hereby certify that the fore-g'oing instrument of writing, dated on the 9th day of August, A. D. 1910, with its certificate of authentication, was filed for record in my office this the 28th day of October, A. Ó. 1913, at 5 o’clock p. m. and duly recorded this the 14th day of November, A. D. 1913, at 8 o’clock a. m. in the deed records of said county, in Volume 8, pages 367-368.
“Witness my hand and seal of the county court, of said county, at office in Hemphill, the day and year last above written.
“F. P. Adams, [Seal.]
“Clerk County Court, Sabine County, Texas.” Indorsed on back:
“This is my last will of all my property to my daughter, Kattie. All of the rest of my children, Andrew Tucker, Lucy Block and Allie Crouch, having heretofore .received their part in full. Geo. Tucker.”

It would be needless for us to construe the legal effect of the instrument, but there is no question that the same was admissible in evidence. Therefore this assignment is overruled.

The eleventh assignment of error complains that the court erred in refusing to instruct a verdict for the defendant.

Without rehearsing the testimony, and without setting the same out at length, it is sufficient to say that in our opinion the action of the court was not error in this respect, and that the case should have been submitted to the jury. The assignment is therefore overruled.

By the twelfth assignment of error, the action of the trial court is challenged in not having submitted the question of damages and amount of damages to be by them determined.

It is objected that this assignment should not be considered by the court, because the appellant submits no statement thereunder. Upon inspection, we find the objection well taken. It has been held that an assignment n,ot followed by a proposition of law, or with statement from th.e record, will not be considered. M., K. & T. Ry. Co. v. Blachley, 50 Tex. Civ. App. 141, 109 S. W. 995.

Moreover, the record does not show that any request was made for the submission of such an issue to the jury, and appellant is in no position to complain. Therefore this assignment is overruled.

Complaint is made that the court erred in allowing Dan Walter, counsel for plaintiff, in his concluding argument to the jury, “to argue and insist, over the objection of the defendant, that if the jury would answer the questions as he had insisted they should answer them, the defendant Padgett would get every dollar of his money back with 10 per cent interest that he had paid the bank, with a handsome attorney’s fee added to it, none of which was an issue in the case.”

Objection is made to this assignment that it is not followed by a statement from the record. We find this to be true. However, the record shows a bill of exception in this matter, as follows:

“Be it remembered that on the trial of the above numbered and styled cause, in this court on the 27th day of September, A. D. 1915, the following proceedings were had, to wit: Because the court erred in allowing Dan Walker, of counsel for plaintiffs, in his concluding argument to the jury, to argue and insist, over the objection of the defendant, that if the jury would answer the questions as he had insisted they should answer them that the defendant Padgett would get every dollar of his money back with 10 per cent, interest that he had paid the bank with a handsome attorney’s fee added to it, none of which was an issue in the case. To which action of the court, in refusing to instruct said verdict, the defendant then and there in open court excepted, etc.”

We axe somewhat at a loss, the way this matter is presented, to discover wherein lies the subject of complaint But, from the reading, we gather that, because of this improper argument, appellant desired that the court would instruct the jury, not that the argument was improper and not germane to any issue, but that the court should have requested the jury to bring in a verdict for appellant. The assignment being in this attitude, we cannot see that it was error in the court not complying with the request of appellant. However, we see no cause of complaint in the matter referred to. Said assignment is overruled.

The fourteenth assignment complains that the court erred in allowing and permitting Dan Walker, counsel for plaintiffs, in his concluding argument to the jury, over the objection of defendant, to argue and insist before the jury that the instrument of writing dated on the 9th day of August, 1910, purporting to have been signed by Geo. Tucker, was an absolute deed of conveyance and conveyed all the interest that he had and held in the notes sued on to Mrs. Katy Hines, and that the defendant Padgett knew it at the time he paid old Tucker the $400, but that Padgett would do anything for the sake of making his seven hundred dollars.

No request seems to have been made to the lower court to instruct the jury that the argument was improper, and, in the absence of such' action, this court is powerless to act in the premises. Moreover, the assignment is not followed by a proposition, and while the argument appears to have been improper and personal, as above stated, the attention of the court should have been called to the same, and, upon the court’s refusal to act in the premises, a bill of exception should have been taken. In tbe present state of this record, no merit is found In the assignment, and the same is overruled.

Complaint is made in the fifteenth assignment that the court erred in rendering judgment in favor of the plaintiffs against the defendant, for the sum of $528.09, with. 6 percent. interest per annum from the 24th day of August, 1914, for the reason that the suit was for damages, and there were no damages alleged or proved.

No request was made for instruction on this point, or objefction urged to the charge of the court. The charge of the court, and the answers of the jury, were as follows:

“In this the court submits to you certain questions to be answered by you, and which questions, when so answered, you will form the basis on which the court will render judgment herein.
“The burden of proof rests upon the plaintiff to show by a preponderance of the testimony the material allegations in their petition, and the burden of proof rests upon the defendant, B. P. Padgett, to show by the preponderance of the testimony that he bought the notes for himself.
“Question No. 1. At the time E. P. Padgett made the settlement with George Tucker and his counsel W. R. Cousins, was it the agreement between George Tucker and W. R. Cousins on the one part, and E. P. Padgett on the other part, that the $400 which was paid to George Tucker by E. P. Padgett was paid in compromise of Mr. Tucker’s interest in the lawsuit then pending between George Tucker and his daughter, Kate Hines, or was the $400 paid by E. P. Padgett to George Tucker in purchase for himself of the interest of George Tucker in the notes? If you find the fact to be that the $400 was paid in compromise of the suit, you will answer this question with the word, ‘Compromise.’ But if you find the fact to be that E. P. Padgett bought the interest of George Tucker in the notes for himself, then you will answer the question with the word, ‘Purchase.’ Answer: ‘Compromise.’
“Question No. 2. At the time E. P. Padgett paid to Mrs. Kate Hines the $200, did Mrs. Kate Hines know or understand that E. P. Padgett was purchasing her interest and the interest of George Tucker in the notes, and was she selling her interest in the notes to E. P. Padgett? You will answer this question, ‘Yes,’ or ‘No,’ as you may find the facts to be. Answer: ‘No.’
“Question No. 3. At the time E. P. Padgett paid to Mrs. Kate Hines the $200 and at the time E. P. Padgett paid to George Tucker the $400, was E. P. Padgett representing Mrs. Kate Hines as her attorney? You will answer this question, ‘Yes,’ or ‘No,’ as you may find the facts to be. Answer: ‘Yes.’
“You are the sole and exclusive judges of the facts ‘ proved, the credibility of the witnesses. and the weight and value to he given to their testimony, but the law you receive from the court, and you are bound to be governed thereby.”
“Now comes E. P. Padgett, defendant in the above styled and numbered cause, and asks the court to submit the following special issues to the jury:
“Question No. 4. At the time E. P. Padgett paid to Mrs. Katie Hines the $200, did Mrs. Hines know or understand that E. P. Padgett was purchasing her interest in the notes? Answer, ‘Yes,’ or, ‘No.’ Answer: ‘No.’
“Question No. 5. At the time that E. P. Padgett paid to Mrs. Katie Hines the- $200, did Mrs. Hines know or understand that E. P. Padgett was purchasing the interest of George Tucker in the notes? Answer, ‘Yes,’ or ‘No.’ Answer: ‘No.’
“Question No. 6. At the time that E. P. Padg-ett paid to Mrs. Katie Hines the $200, was she selling her interest in the notes to E. P. Padg-ett? Answer, ‘Yes,’ or ‘No.’ Answer: ‘No.’
“Question No. 7. At the time E. P. Padgett paid to Mrs. Katie Hines the $200, was E. P. Padgett representing her in this transaction as her attorney? Answer, ‘Yes,’ or ‘No.’ Answer: ‘Yes.’
“Question No. 8. At the time E. P. Padgett paid to George Tucker the $400, was E. P. Padgett representing Mrs. Katie Hines in that transaction as her attorney? Answer: ‘Yes.’
“Given. E. P. Padgett, Defendant.”

In addition, we might say, the value of the notes was a matter of calculation. There is no merit in this assignment, and it is therefore overruled.

The sixteenth assignment of error complains that the court, although requested in writing, failed to file his conclusions of law and fact.

The case having been tried by jury is sufficient answer to this assignment, and the same is overruled.

Every issue requested was submitted to the jury. There were no requested instructions that were not given, and no objections to the charge as given. The issues presented to the jury were passed on, and, in the light of this record, we cannot say improperly.

Finding no error in the action of the lower court, the judgment is in all things affirmed.
      tftesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    LEDNUM et al. v. DALLAS TRUST & SAVINGS BANK.
    (No. 7659.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 3, 1917.
    Rehearing Denied March 17, 1917.)
    1. CONTRACTS <&wkey;113(5) — AGREEMENTS FOR RENUNCIATION by Trustee — Validity.
    A contract agreeing to pay money or other valuable thing to a testamentary trustee in consideration of his renunciation is void, being contra bonos mores.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 530-537.]
    2. Contracts &wkey;>141(3) — Agreement for Renunciation by Trustee — Validity—Evidence.
    Evidence of an agreement of renunciation by testamentary trustees examined, and held not contra bonos mores, the trustees receiving no personal advantage, but surrendering in order that estate might be administered according to will.
    3. Trusts &wkey;>162 — Testamentary Trustees —Renunciation.
    Testamentary trustees possess the unrestricted power and right to refuse for any reason to act when unaccompanied by any species of in-termeddling amounting to mismanagement.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 212, 213.]
    4. Trusts t&wkey;162 — Testamentary Trustees —Renunciation- and Appointment of Administrator-Effect.
    Testamentary trustees having renounced their trust to the court¡ he accepting the same and appointing an administrator, the renunciation is final.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 212, 213.]
    5. Trusts &wkey;>162 — Renunciation of Testamentary Trustees — Probate Courts — Powers.
    Although probate court is without authority to accept resignation of testamentary trustees, it has authority to hear testimony of renunciation, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3279, providing that, when executors renounce, administration shall be granted.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 212, 213.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge. *
    Action in county court by Lula L. Lednum and others against the Dallas Trust & Savings Bank. From a judgment for defendant on appeal to district court, plaintiffs appeal.
    Affirmed.
    Etheridge, McCormick & Bromberg, of Dallas, for appellants. A. B. Flanary, of Dallas, for appellee.
   RASBURY, J.

Appellants, Lula L. Led-num and Georgia E. Barker commenced this suit in the county court of Dallas county to recover possession of the estate of Charles H. Lednum, deceased, then being administered in said court, the appellee being administrator with the will annexed. The allegations of the pleading forming the basis for the relief sought were in substance that appellants were legatees and devisees in trust under the will of said Lednum and invested with the management and control of his estate for the benefit of his minor daughter during her minority, which will had been admitted to probate and appellee appointed administrator with the will annexed; but that, administration being in all things complete, no further necessity existed therefor, and appellants were as a consequence entitled, as such trustees, to possession thereof. Notice of the proceeding was given the administrator and Mary Lednum, mother of the minor daughter. The administrator did not appear and plead. Mary Lednum did,but it will be unnecessary to recite her pleading, save that she prayed that the administrator, Dallas Trust & Savings Bank, be appointed trustee and the estate delivered to it as such. Upon trial in the county court the judge found that the estate had been fully administered and was ready for distribution, but that none of the applicants were qualified to receive the estate and decreed accordingly. Appeal was had to the district court, where on trial the judge peremptorily directed verdict against appellants and entered judgment on the verdict similar to that entered in the county court, dismissing Mary Lednum and the Dallas Trust & Savings Bank with their costs. Prom the latter judgment this appeal is taken.

The facts developed at trial are without contradiction and are in substance these: (filarles H. Lednum died October 11, 1911, survived by a former wife and minor daughter. He left a will, directing the payment of his debts, devising his interest in the family residence to his sister, Lula L. Led-num, in payment of a debt due her by him, giving said sister a legacy of $2,500, providing for a monument to mark his grave, and giving to his minor daughter, Mary Led-num, the balance of a savings account on deposit in New Orleans. His sisters, Lula L. Lednum and Mrs. Georgia E. Barker, were appointed joint and several trustees of his estate with authority, upon the execution of a bond signed by some surety company in an amount equal to two-thirds of the appraised value of the estate, to manage his estate until his daughter, Mary Lednum, married or reached her majority, whereupon the trustees were to deliver the estate to his daughter. Any control of his estate was denied the probate court, save to establish the will, approve the required bond, or strengthen or renew same. On October 21, 1911, the trustees named in the will filed in the county court their application for the probate of the will and the establishment of the trust created. Mrs. Mary Lednum, mother of Mary Lednum, the minor, was dissatisfied with the will for the reason that she was not willing for the trustees named to administer her daughter’s estate. As a consequence, after the filing of the application by the trustees and before the will was probated, she employed counsel for the purpose of contesting the probate thereof. Her counsel and counsel for the trustees conferred in relation to the matter, whereupon appellants, the trustees, agreed to renounce the trust. The agreement is in writing and was filed among the court papers in the then pending application to probate the will. The substance of the agreement is that the trustees decline to qualify as such trustees and resign as such upon condition that the will shall he probated, the trust established and a suitable trustee appointed who would give good and sufficient bond secured by solvent surety company, the bequests in the will to be fully' executed and carried out, and appellants paid a reasonable compensation and all expenses and attorney’s fees incurred by them up to that time. Afterwards the will was probated. The judgment recites the due execution of the • will and the death of Lednum, and establishes same as his last will and testament; finds that the trustees announced in open court their refusal to qualify as trustees and filed the renunciation already mentioned; finds there is a necessity for administration and that the Dallas Trust & Savings Bank is an applicant for and qualified to act in such capacity, and thereupon appoints said bank administrator of said estate with the will annexed, upon qualifying according to law and giving bond in the sum of $40,000, being double the estimated value of said estate. After- the entry of the judgment the Dallas Trust & Savings Bank filed a motion to correct the same in order to show that it was also appointed trustee of said estate in the place and stead of those named by the testator. What action was had on this motion the record fails to disclose.

All assignments of error are based upon the action of the court in directing verdict, and we will accordingly discuss the issues presented in the brief without reference to the assignments of error.

The first contention is, in substance, that it appears without dispute in the testimony that the consideration inducing appellants to resign as trustees was benefits accruing to them, which rendered the act of ■ renunciation void, because contra bonos mores. In reference to such issue it is a nearly universal rule, as -we gather from the books, that contracts agreeing to pay money or other thing of value to one in consideration of his renunciation as executor or testamentary trustee are void and unenforceable. The following cases cited by appellee pertinently sustain the rule and announce the reason therefor: Ellicott v. Chamberlain, 38 N. J. Eq. 604, 48 Am. Rep. 327; Forbes v. McDonald, 54 Cal. 99; Bowers v. Bowers, 26 Pa. 77, 67 Am. Dec. 098. But the instant case is not in any respect an attempt to enforce such a contract. The precise point is that appellants are still trustees under the will and entitled to possession and management of the estate, because their renunciation as trustees was induced by improper or illegal considerations, and hence void. The fact which induced appellants to renounce as disclosed by the record was the dissatisfaction on the part of Mrs. Mary Lednum, former wife of Charles H. Lednum, and mother of the minor Mary Lednum, chief beneficiary in the will, with the prospective administration of the estate by appellants; and such dissatisfaction resulted, after conference between the parties, in the voluntary renunciation of appellants. The renunciation, however, was based upon several express conditions, those material to the issue being that the will should be probated, the trust established and bonded trustee appointed, the bequests in the will observed, and that there be paid to the resigning trustees reasonable compensation and necessary expenses, including attorneys’ fees incurred by them in attempting to probate the will. We conclude that the facts recited and which in-dueed the renunciation by appellants in no respect constitute acts contra bonos mores. Fairly interpreted the evidence discloses that the renunciation was induced by the threat to contest the will and in order to avoid a possible administration of the testator’s estate contrary to his expressed wishes. To avoid such result appellants were willing to forego their right to represent the testator in such administration. That such was their purpose is made clear, we think, by the several provisions in the agreement between them and the minor’s mother, that the trust should in all respects be carried out according to the testator’s will. The provisions in the agreement that the renouncing trustees should be paid compensation for their services, together- with reasonable. expenses and attorneys’ fees, is in substance provided for in the will and does not result in any personal advantage to appellants that would not have resulted if they had not renounced. In fast in renouncing they not only did not receive any personal advantage, but surrendered, in order that the estate might be administered as directed, the compensation directed to be paid to them as trustees. The fact that they stipulated that all bequests should be paid which included a legacy to one of the appellants did not constitute an act contra bonos mores any more than the provision for the legacy itself.

In considering the issue we have been discussing we have proceeded on the theory assumed by counsel for appellee, which, in effect, is that a renunciation by testamentary trustees induced by improper motives is void, and hence no renunciation. In such connection testamentary trustees are held by all authority to possess the unrestricted right to refuse for any'reason to act in such capacity when unaccompanied by any. species of intermeddling which would render them liable as in devastavit in case of-executors. Such being the rule we 'incline to the opinion that a renunciation is none the less one because based on improper motives. In deciding whether acts and conduct of a trustee constitute in fact a renunciation,, a different rule, it occurs to us, prevails to that which controls in suits to recover from another .money or other thing of value promised in consideration of such renunciation. In the latter case the suit fails because the consideration is unlawful and the contract as a result un: enforceable. In the other proceeding, that is, the one to determine whether the trustee in fact renounced the trust, all that is necessary to determine is, Do the acts, declarations, and conduct of the trustee constitute in law a renunciation? What motives or reasons induced the renunciation, it seems to us, is immaterial, if in fact renunciation resulted. - ■

But it is further contended, in substance, that appellants, conceding their renunciation in fact, had nevertheless the right to subsequently retract or withdraw same. In True’s Estate, cited by appellants, the rule is announced that the administration of estates by.executors (and by analogy trustees) is a trust conferred by the testator, which may only be defeated by the refusal of the trustee to act, and that hence a trustee .who has renounced may retract at any time before letters are granted to another. Conceding the rule to be correct, and it seems sound in principle and reason, it is without controlling force here for the reason that the retraction came after the appointment of another as administrator, made necessary by their refusal to accept the trust, and hence too late. The appellants, while essentially testamentary trustees, possessed under the will some of the powers of executors, such, as the power to present the will for probate and execute and have the court approve the bond required by the will. In fact the exercise of such powers was necessary before they were entitled to administer the estate independently. In observance of such authority appellants tendered the will to the probate court for such action. Before any action upon the part of the court was had appellants made known to the court their refusal to accept the trust or probate the will and give the required bond, and tendered to the court their renunciations, which were accepted. Whereupon, at the request of those interested in the estate and a necessity therefor appearing, the court probated the will and appointed an administrator of the estate with the will annexed. Admitting, as argued by appellants, that the probate court was without authority to accept the resignation of the trustees or appoint new ones, such authority being concededly in the district court, it nevertheless did have authority to hear testimony that the appellants had renounced the trust, and to permit the trustees to testify that they refused to accept it or establish the will as a part of the proof nec- ’ essary to show the necessity for administration. Such á proceeding is authorized by article 3279, Vernon’s Sayles’ Stats. Having so acted upon the situation brought about by the conduct of appellants, the result in our opinion was to make the renunciation final. After appointment' of the administrator the right of retraction was lost. The original situation was changed and other rights had accrued. Such is the holding in True’s Estate. From which we conclude that there are no trustees at this time, and if no further necessity for administration exists, it is the duty of those interested in'the estate to apply to the proper court for the appointment' of trustees.

The judgment is affirmed.
      <gc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILSON v. AVERY CO. OF TEXAS.
    (No. 7561.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 27, 1917.
    Rehearing Denied March 17, 1917.)
    1. Abatement and Revivad &wkey;>16 — Another-Action Pending — Appeal.
    Where the payee sued on notes and to foreclose a chattel mortgage securing them in one county, and the maker sued in another county to cancel the instruments, his suit was an election of remedy, and he was bound thereby, and pending his appeal from an adverse judgment he could not have the same matters again tried in the suit on the notes.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 72, 118-122.]
    2. Action &wkey;>69 — Stay—Other Suit Pending.
    In a mortgagee’s action on notes and chattel mortgage, where another suit is pending in another county by the mortgagor to cancel the notes, judgment should not be entered for the mortgagee, since irreparable loss might then result should the mortgagor ultimately get judgment in the other suit.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 744-751.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the Avery Company of Texas against J. A. Wilson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Brooks & Worsham, of Dallas, and Turner & Rollins, of Amarillo, for appellant. Burgess, Burgess, Germany & Chrestman, of Dallas, for appellee.
   RASBURY, J.

This is an appeal from the action of the trial court in entering judgment for appellee upon certain promissory notes of appellant and in foreclosing a chattel mortgage lien upon personal property executed by appellant to secure the payment of said notes.

The essential facts forming the basis of the court’s action, and upon yvhich the issues presented on appeal depend, are substantially these: Appellee sued appellant in this proceeding in Dallas county upon two promissory notes given in part payment of an Avery tractor engine and to foreclose a chattel mortgage lien on said engine, service of citation being had upon appellant in Randall county. Subsequently appellant sued appel-lee and its agent in Randall county to cancel said notes and for damages. Said suit was subsequently transferred to Potter county, where appellee had an agent and agency. The Potter county suit to cancel the notes and for damages was tried first and resulted in a verdict and judgment against appellant in this proceeding. Motion for new trial was overruled, whereupon appeal was taken to the Seventh Court of Civil Appeals. When the instant case was reached for trial in the district court of Dallas county, and while the Potter county case was pending and undetermined in the Court of Givil Appeals, appellant, as defense to same, pleaded substantially the same matters relied upon as grounds for canceling said notes and for damages in his suit in Potter county. To the matters so urged appellee pleaded the pen-dency of the suit in Potter county between the parties for the same cause of action, and prayed that appellant’s answer be stricken out, or that he be required to elect which suit he would prosecute. Appellant filed motion to strike such plea from the record on the ground that he had appealed from the adyerse judgment in Potter county, which suspended it, and hence it was not res judi-cata, etc. The trial court overruled the motion to strike out and sustained the plea tendered by appellee. Whereupon judgment for appellee was entered upon the notes and for foreclosure of the chattel mortgage lien.

All issues presented by appellant complain of the trial court’s action in sustaining appellee’s plea of the pendency of another suit, thereby denying to appellant the right to plead and prove in substance the same matters presented in the Potter county case. We think it clear that, when the appellant went to trial in the Potter county case, he thereby elected, as he had the right to do, to try the issues then tendered in that court. Had he preferred to try the issues in the Dallas county court by cross-action, etc., he could have done so by dismissing the Potter county case. But he chose otherwise, which was his right, and by which he is bound. For when two suits involving substantially the same issues are pending in courts of co-ordinate jurisdiction, the most that courts can do is to require the parties to elect in which forum they will proceed. Wilkerson v. Ft. Worth & D. C. Ry. Co., 171 S. W. 1041, and cases cited. Accordingly, appellant having under his right 'of election selected the Potter county court as the forum in which to try his case, and having actually had a trial there, was not entitled to again try in substance the same issues in another court of co-ordinate jurisdiction pending appeal. From which it follows that the court did not err in sustaining appellee’s plea of pendency of another suit.

Obviously, however, judgment should not have been entered for appellee in the instant case, since, in ease the Potter county suit was reversed and on another trial the notes canceled, irreparable loss would have resulted to appellant. Using in substance the language of another when it appears during the progress of the- trial that there is pending on appeal a suit between the same parties involving the same issues, all proceedings should be .suspended until the determination of the pending suit. Sharkey v. Kiernan, 97 Mo. 102, 10 S. W. 886; Avocato v. Dell’Ara, 84 S. W. 444. And while it is contended on this appeal that the trial court should have so proceeded, no such issue as disclosed by the record was presented to the court below. However, in view of the fact that the judgment of the Potter county case has been in all respects affirmed (Wilson v. Avery Co. of Texas, 182 S. W. 884), the judgment rendered in the instant case is now correct and will be affirmed.

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


author: RICE, J.

text:
    DAUGHERTY v. SMITH.
    (No. 5710.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1916.
    Order on Remittitur, Dec. 13, 1916. Rehearing Denied Feb. 28, 1917. On Motion for Further Rehearing, March 14, 1917.)
    1. Brokers &wkey;>63(l) — Contract with Owner-Time foe Designating Terms and Price.
    Under contract of owner of land with broker for exclusive agency to sell it, binding the owner to designate the parts in which it should be sold and to name price and terms, the owner must make such designation and name the terms in a reasonable time.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94r-96J
    2. Brokers <&wkey;82(l) — Action for Commissions — Petition.
    The petition of a broker against a landowner, who gave him an exclusive agency for sale, binding the owner to designate thq parts in which the land should be sold, and to fix price and terms, stating defendant’s failure to designate land for sale and to fix price and terms, and alleging in general terms that but for such failure the land would have been sold for a reasonable price, yielding plaintiff certain commissions, is sufficient, without any allegation as to whom plaintiff could have sold.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 101.]
    3. Appeal and Error <&wkey;758(3) — Briefing Assignments.
    An assigment of error, not briefed in accordance with the rules, will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093.]
    4. Brokers <&wkey;46 — Contract for Commissions — Sales Covered by Contract.
    A contract of plaintiff broker with defendant owner of land, by which plaintiff is to have commissions on sales thereafter made, whether by broker or owner, applies to land then under contract of sale by defendant with W.; such contract being conditioned on W. selling other land, and so obtaining means for purchase, and W. not having sold his land and concluded his purchase from defendant till after the contract between plaintiff and defendant.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 47.]
    5. Brokers <&wkey;7 — Contract for Commission —Parol and Written Contracts.
    The written contract by which the owner of land agrees to pay a broker commissions on subsequent sales, by whichever of them made, being substantially the same as an existing parol contract between them, takes effect as of the date of the parol contract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 5-8.]
    6. Brokers <&wkey;86(3) — Action for Commissions — Prevention of Sale — Sufficiency of Evidence.
    Findings, in an action by broker for commissions, that he was prevented from making sales by failure of landowner to designate land, and fix reasonable prices and terms, held not sustained by the evidence.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117.]
    On Motion for Further Rehearing.
    7.Brokers <&wkey;46 — Contract for Commissions — Sales Covered by Contract.
    Contract of owner of land with broker, whereby the broker is to have commissions on any of it thereafter sold by either, applies to land then under parol contract of sale by the owner, subsequently consummated, and this though the broker knew of such parol contract; the parol contract not being enforceable, so that there was no sale till after execution of the deed.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 47.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by C. O. Smith against James W. Daugherty. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Henderson, Kidd & Gillis, of Cameron, for appellant. E. C. Gaines, of Austin, for ap-pellee.
   RICE, J.

In August, 1911, appellee and J. E. Rowe, who had theretofore been employed by Henderson and Tompkins to sell about 3,000 acres of land, known as the “Riverside Farm,” near Cameron, Tex., succeeded in selling same to appellant, and at the same time, in consideration of $1,000 paid to him by appellee and Rowe, appellant gave them, by parol contract, the exclusive agency to resell said land for him, binding himself to designate said land for sale as a whole or in parts, and to name the price and terms of sale, providing, however, that the same should ibe reasonable, obligating himself to pay a commission of 5 per cent, for such services, irrespective of who made the sale or was the procuring cause thereof, which said contract was thereafter on th'e 3d day of January, 1912, reduced to writing and executed by appellant and appellee and Rowe. Rowe having assigned his interest in said contract to ap-pellee, this Suit was brought by the latter against appellant to recover commissions, alleging that appellant had sold one-half of said farm to his brother, W. J. Daugherty, for $75,000, thereby entitling him (appellee) to a commission of $3,750, and that appellant had failed and refused to place a reasonable price on said land, or to designate it for sale in whole or in parts, and that, if he had done so, appellee could and would have sold the other half of said land for at least $60 per acre, alleging that $60 was a reasonable price therefor, and six months a reasonable time within which to designate the same for sale as a whole or in parts, and that, by reason of his failure and refusal to do so, appellant had breached his contract and had become liable for such commissions.

Appellant filed his first amended answer, consisting, among other things, of special exceptions to the effect: (a) That it appeared from the petition that defendant was under no duty to designate the land for sale and place a price thereon and the terms thereof at any particular time; (b) that it does not appear that plaintiff had performed any duty under said contract; and'(c) that the claim of plaintiff was too remote and speculative ; and further set up by way of special plea that the sale of one-half of said farm to W. J. Daugherty was made long before the date of the execution of said contract.

To this answer appellee, as shown by his brief, replied by way of supplemental petition, among other things, that the contract was made during the last days of August, 1911, at the time the contract between appellant and Henderson and Tompkins was signed and was reduced to writing and signed on January 3, 1912, and was, in effect, the same contract entered into by the parties in August, 1911.

The case was tried before a jury on special issues, who in response thereto found that there was a parol contract made in August, 1911, for the resale of said land between the parties, which' was, in substance, the same as that reduced to writing in January, 1912, for which appellee gave the consideration of $1,-000; that there was an agreement between J. W. and W. J. Daugherty, prior to the date of the written contract, whereby the former was to sell the latter a one-half interest in said farm, but that said agreement was conditioned upon the ability of W. J. Daugherty to sell his farm or otherwise raise the money with which to pay for said one-half; that in a reasonable time after January 3, 1912, J. W. Daugherty named to J. E. Rowe a price for said farm as a whole, but that said price was unreasonable; that the failure of aiopel-lee to sell the farm was due to defendant’s failure to properly designate the same for sale, and place a reasonable price thereon; that a reasonable price would have been $60 to ‘$65 per acre, and that, if defendant had designated said farm for sale as a whole or in parts at a reasonable price and terms, plaintiff could and would have sold 350 acres thereof. Thereupon the court rendered judgment in favor of plaintiff for $4,800, of which $3,750 was 5 per cent, on the $75,000 sale to W. J. Daugherty, and $1,050 was 5 per cent, of what 350 acres would have brought at 60 per acre — -from which judgment appellant has prosecuted this appeal, asserting (1) that the court erred in overruling his first exception to plaintiff’s petition. This exception is as follows:

“Appellant specially excepts to that part of paragraph 3 of said petition which seeks to set forth a cause of action against him upon the ground that he failed to designate for sale a part or parts of the land mentioned in said petition, and failed to furnish the price and terms of said sale, because it is manifest from said petition, and the contract embodied therein and made a part thereof, that this defendant is under no duty or obligation to designate such part or parts of said land or to furnish such price or terms of sale at any particular time or date, and of this he prays the judgment of the court.”

It is true that the contract failed to mention that a designation should be made at any particular time, but the law reads into all contracts of this character a stipulation that the same must be performed within a reasonable time; and the petition in this case did allege that six months was a reasonable time for the defendant to plat or designate the land for sale, and that by his failure and refusal so to do, he breached his contract. See 9 Cyc. pp. 611 to 614; 39 Cyc. p. 1332; Hart v. Bullion, 48 Tex. 278; Floral Co. v. McFarland Co., 30 S. W. 93; Cook v. Arnold, 36 S. W. 344; Kauffman v. Baillie, 46 Wash. 248, 89 Pac. 548; Realty Co. v. Wentz, 185 Mo. App. 162, 170 S. W. 345. Believing that the petition is not open to the objection made against it, we overrule this assignment.

It is insisted that the court erred in overruling appellant’s special exception lettered (c), directed against paragraph 3 of plaintiff’s petition, and by his proposition theroundér it is urged that in a suit by a land agent for commission, where his petition declares upon the landowner’s breach of the contract in failing to designate the land for sale as a whole or in parts, and in failing to furnish price and terms of sale, such petition merely stating, as a conclusion, that but for such breach the land would have been sold for a reasonable price, and that its sale at such reasonable price would have yielded the agent a certain commission, without showing that the agent was in touch with a prospective purchaser, or that he had a demand for the land or an opportunity to sell it, or any other fact suggesting a reasonable certainty that he would have sold the land but for the owner’s breach, the cause of action which such petition purports to set up is too remote and speculative, and such petition is bad on 'special demurrer. Special exception (c) reads as follows:

“(c) He further specially excepts to that part of paragraph 3 of said petition which seeks to set forth plaintiff’s claim for commission based upon the supposition that if this defendant had designated for sale a part or parts of said land and furnished the price and terms of such sale, said land would have been sold for a reasonable price, and that a sale of said land for a reasonable price would have yielded to plaintiff and said Rowe a commission of $9,000, or that the sale of one-half of such land would have yielded them the sum of $4,500, because such claim is too remote and speculative, and said _ petition fails to show that either plaintiff or said Rowe could and would have sold said land for its reasonable value, or for a price which this defendant would have accepted. And of this it prays the judgment of the court.”

It is true that paragraph 3 of said petition only stated in general terms that, but for appellant’s failure to designate the land for sale as a whole or in parts, and to fix the price and terms of sale, the same would have been sold for a reasonable price, and that such sale would have yielded appellee certain commissions, stating the amount thereof; still we think this exception was properly overruled, because, while this contention might hold good in an ordinary case, the principle contended for is not applicable here, since no action could have been taken on the part of appellee looking towards the sale of the land until appellant had designated the portion he desired to sell and fixed the price- and terms thereof; and it was therefore impossible, under the circumstances, for appellee to go further and allege to whom he could have sold the land, in the event appellant had made the designation or named a reasonable price therefor. And it would have been competent, we think, under such allegations, to show that similar and adjacent lands had been sold and the prices obtained therefor, as a basis for the recovery of commission on the parr of appellee.

We overrule the third assignment, because not properly briefed in accordance with the rules.

It is urged on the part of appellant by his fourth assignment that under the written contract of January 3, 1912, appellee could only recover for sales made subsequent to its execution, because said contract specially provided that appellant was only to pay commissions on sales thereafter made, and that, since the sale to W.' J. Daugherty was shown to have been made in the fall of 1911, plaintiff was not entitled to recover commissions thereon. We think there are two satisfactory answers to this contention: First, the contract of sale to W. J. Daugherty was conditioned upon his ability to sell his Travis county farm, in order to pay for 'said land, and the evidence shows that he did not sell his Travis county farm until after the 3d of January, 1912, or conclude the purchase from his brother until after that time; and, second, appellee could not be deprived of his right of recovery, even if the sale was made prior to the date of the written contract, for the reason that the parol contract of August, 1911, authorized his recovery, and the jury found that these contracts were substantially the- same. The written contract, therefore, would take effect as of the date of the parol contract. See Jones on Evid. § 443; Insurance Co. v. Shaffer, 30 Tex. Civ. App. 313, 70 S. W. 566; 17 Cyc. p. 695.

The finding of the jury on special issue No. 10 is to the effect that if appellant had designated said land for sale as a whole dr in parts, and fixed a reasonable price for the sale thereof, it was probable that 350 acres would have been sold; and this is the basis for the recovery of the item of $1,050. This finding is assailed under the eighth assignment, on' the ground that it is wholly unsupported by the evidence, in that the undisputed evidence shows that appellant had instructed J. E. Rowe, one of the parties to the written contract involved in this suit, to sell 350 acres of the land, and the price he fixed for such sale was reasonable. We sustain this assignment.. The testimony, without contradiction, shows that appellant, on the night the written instrument was executed, and on different occasions subsequent thereto, authorized J. E. Rowe, appellee’s associate and a party to the contract, to sell the entire farm for $75 per acre; Rowe stating that he thought the price named was reasonable. It was further shown, without contradiction, that Rowe mentioned a lady who had sold her farm in Travis county, and wanted to buy 350 acres of land, and that he (Rowe) wanted to sell her 350 acres of the Riverside Farm, and appellant encouraged the suggestion; but Rowe never brought the lady to the farm, or asked any reduction in the price, or entered into any further negotiations. The testimony of Hefiey and Denson, who were both familiar with the land in controversy, and had known the same for many years, and were acquainted with land values in Milam county, testified that the land was worth from $60 to $75 per acre, and there is no other testimony in the record as to the price being reasonable. The evidence further conclusively shows that neither appellee nor Rowe made any effort to sell the land or any part thereof. This being true, we hold that such finding is unsupported by the testimony, and ought to be set aside.

We have considered the .remaining assignments, and regard them as without merit, for which reason they are overruled.

From what we have said it is apparent that we conclude that material error was committed in the court below. However, that error relates to only one item of damages, which was fixed by the verdict of the jury at $1,050, and appellee can avoid a reversal of the judgment by remitting that amount. Therefore appellee will be allowed 10 days in which to file such remittitur, in which event the judgment for the balance will be affirmed; otherwise, the judgment will be reversed, and the cause remanded.

Order on Remittitur.

Appellee having filed a remittitur herein for the sum of $1,050, as suggested by us in the original opinion, the judgment of the trial court for the balance in his favor, to wit, $3,750, will in all respects be affirmed; and it is so ordered.

Reformed and affirmed.

On Motion for Further Rehearing.

I. The main Contehtion of appellánt is that a half interest in the land was sold to his brother prior to January 3, 1912, the date of the written agreement, which is the basis upon which this suit is predicated, and hence appellee was not entitled to recover because said agreement provided that appellee was only entitled to receive commissions upon sales thereafter made. We think it is clear from the testimony in this case that the sale by appellant to appellee was not consummated until after January 3, 1912. While appellant testified that he made a verbal agreement with his brother, W. J. Daugherty, to sell him a half interest in the place, in the latter part of November or early in December, 1911, or contracted with his brother to this effect, still the deed'was not executed until February 3,1912. Before the execution of the deed there was only a parol contract on his part to convey to his brother, not, enforceable under the statute of frauds; hence no sale of the land can be said to have been made by him to his brother until after the execution of the deed, which was subsequent to the date of the contract on which the suit is based. Until the sale had been actually completed, appellee was not entitled to a recovery.

II. It is further urged by appellant that, as Smith and his associate had knowledge of the sale at the date of the contract, and failed to provide for payment of commissions thereon, it is clear that he did not intend to claim any commissions arising therefrom. Even' if they knew the facts, as above recited, at the time of the execution of the written contract, it would not prevent their recovery, because it did not amount to a sale, and recovery was not authorized until the subsequent consummation of the existing parol contract, which occurred on February 3,1912.

After a full consideration of the motion for rehearing, we have concluded that it should be overruled; and it is so ordered.

Motion overruled.
      ©ujE’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J. HODGES, J.

text:
    JONES et al. v. DODD.
    (No. 1731.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 9, 1917.
    On Motion for Rehearing, March 1, 1917.)
    1. Courts <&wkey;120 — Jurisdiction—Amount in Controversy — How Determined.
    Where a school-teacher employed under contract for eight months was refused permission to teach, and sued for seven months’ wages accrued, and to enjoin payment to others employed in her stead, and to compel payment of amount to her, the real cause of action was on the contract for wages according to her contract; the claim for injunction and mandamus being merely incidental, so that the district court had no jurisdiction, the total claim being only $499.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-43.6, 438.]
    2. Courts <&wkey;120 —Jurisdiction —District Court — Amount Recoverable.
    On school board’s breach of teacher’s contract for period of eight months,, teacher suing at the end of seven months could recover the contrast wage for that time only; and, the amount being less than $500, the district court had no jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436, 438.]
    3. Schools and School Districts &wkey;>133 — ■ Employment of Teachers — Powers of » Trustees *
    Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 2824, empowering trustees of school districts to fix times and terms of school, but prohibiting creation of deficits in school funds, the trustees could not, by making an eight-months contract, fix the length of term, which later was fixed at seven months, since in employing teachers the law is to be read into the contract.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 289-291.]
    On Motion for Rehearing.
    4. Courts <&wkey;120 — Jurisdiction — District Court — Mandamus — Amount in Controversy.
    Const, art. 5, § 8, provides that the district court shall have power to issue writs of habeas corpus, mandamus, injunction, and certiorari, and the writs necessary to enforce their jurisdiction. Section 16 gives similar authority as to cases within its jurisdiction to the county court. Section 8 also gives the district court general original jurisdiction over all causes of action for which a remedy or jurisdiction is not provided by law. Held, that jurisdiction to issue mandamus to enforce payment by school district of teachers’ salaries being determinable in monetary value depends upon the amount involved, so that the district court has no jurisdiction to issue such writ in suit for less than $500.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436, 438.]
    5. Mandamus <&wkey; 14(3) — Right to Writ — Enforcement of Judgment.
    Since it would not be presumed in advance that when judgment was rendered for a teacher against the school district for her salary that the district would refuse to pay it, mandamus for payment would not ordinarily be awarded at the same time the judgment was rendered.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 46.]
    6. Master and Servant &wkey;>80(2) — Contract of Employment — Breach — Rights of Action.

      A- contract of employment which provides for payment in monthly installments gives a right of action upon each installment as it falls due.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 109.]
    7. Judgment &wkey;>253(3) — Recovery — Extent as to Time — Breach of Contract.
    Where, at the time a teacher sued for salary during months covered by her contract during which the board had refused to let her teach, only seven months had expired and the contract covered eight months, the mere fact that at the time the suit was tried the eighth month had expired; did not permit recovery of the salary for the eighth month.
    [Ed. Note. — For other cases, see Judgment, .Cent. Dig. §§ 443, 444.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Suit by Miss Veda Dodd, by her next friend, J. A. Dodd, against Walter Z. Jones and others. Decree in part for complainant, and defendants appeal. Reversed and remanded, with instructions. On motion for rehearing.
    Motion overruled.
    L. H. Henry and J. S. Crumpton, both of Texarkana, for appellants. Mahaffey, Keen-ey & Dalby, of Texarkana, for appellee.
   HODGES, J.

This suit was originally instituted by the appellee on November 29, 1915, against Walter Z. Jones and six others as members of the board of trustees of Park independent school district, Willie Connerly, and Lucile Connerly, the Nash Exchange Bank, and the Park independent school district of Bowie county, Tex. In an amended original petition filed on the 19th day of April, 1916, the following facts are, in substance, alleged:

The appellee, Veda Dodd, is a minor, and sues by J. A. Dodd as her next friend. The appellants Walter Z. Jones and his associates constitute the board of trustees of Park independent school district of Bowie county, which has a scholastic population of less than 500. The Nash Exchange Bank is the treasurer of the above-named school district, and as such has charge of all its available school funds. The appellee, Veda Dodd, is now and has been since prior to March 26, 1915, the holder of a second grade teacher’s certificate authorizing her to' teach in the elementary grades of public schools. On the date last above mentioned, when the board of trustees of the Park independent school district was composed in part of the present membership, the petitioner was elected a teacher of the Park primary school for the term of eight consecutive months for the scholastic year of 1915-16, the term to begin (unless otherwise agreed upon by the teacher and trustees) on September 6, 1915, and her salary was fixed at $70 per month. The petitioner accepted the position, and a written contract, valid in all respects, was then executed by her and the board of trustees. Thereafter, on June 21, 1915, at a meeting of the board of trustees, the latter signified and declared that petitioner’s contract with the district was not valid or binding upon it, and she was discharged as a teacher. At the same meeting of the board two other teachers, Lucile and Willie Connerly, were employed to take the position to which the petitioner had been elected; that the payment of the salaries of the teachers thus elected would so deplete the funds of the school district that enough would not remain to pay the salary to which the petitioner under her contract was entitled. The petitioner prosecuted an appeal to the county superintendent from the order of the board dismissing her. In this appeal, after a full hearing, the order of the board was reversed by the county superintendent, and petitioner’s contract was declared to be valid and binding. The board of trustees prosecuted an appeal from the ruling of the county superintendent till it finally reached the state board of education, and the county superintendent’s ruling was sustained. The final decision was rendered by the board of education on November 15, 1915. At the direction of the board of trustees the school term began on October 4, 1915. On that date the petitioner, in accordance with the terms of her contract, was present and tendered her services and offered to perform the duties assumed in her contract, but the trustees refused to allow her to teach. She was then and has at all times since been ready and willing to carry out the terms of her contract, but the trustees have refused to permit her to do so. The board has permitted the Misses Connerly to teach from the time the school opened in October, 1915, to the-day of November following, and has issued to them monthly warrants aggregating $100 for each month’s service, to be paid out of the available school fund of the district. This fund for that year will amount to about $2,100, and is insufficient to pay the salaries of the petitioner and other teachers employed by the board of trustees before making the contracts with the Misses Connerly if the salaries of the latter are also to be paid from that fund. There is a colored school in the district, and there are other teachers to be paid.

The petition further alleges that the school warrants or vouchers above mentioned that were issued to the Misses Connerly had not then been paid by the Nash Exchange Bank, the treasurer of the Park independent school district, but that unless restrained the bank would pay them out of the available school fund belonging to the district. It is also alleged that unless restrained by writ of injunction the board of trustees will deliver other warrants or vouchers to the Misses Connerly for their salaries, to be paid out of the school fund in the hands of the treasurer, for each month that had been agreed on in their contracts, and that unless restrained these amounts would be paid by the bank from the school fund of the district in its hands; that such payments will deprive the petitioner of the salary to which she is entitled under the terms of her aforesaid contract.

The petition concludes with a prayer for a temporary writ of injunction restraining the Nash Exchange Bank from paying to the Misses Connerly any money belonging to the school fund in its hands, that the board of trustees be restrained from issuing and delivering any warrants or vouchers to the Misses Connerly authorizing the payment of any money from the school fund of the district, and that upon final hearing the temporary writ be made permanent. The petitioner further prays for a writ of mandamus compelling the board of trustees to recognize the validity of her contract, requiring them to permit her to perform her duties as a teacher in the Park independent school district under its terms, and directing that they issue to her proper vouchers and warrants for her salary according to the terms of her contract. She further prays for a judgment against the board of trustees of the Park independent school district for all amounts due her as salary under her contract according to its terms, and for general and special relief.

The defendants in the court below answered jointly, first by general and special demurrers, and by special averments and denials not necessary here to notice.

In a trial before the court without a jury a judgment was rendered in favor of the appel-lee against the Parir independent school district for the sum of $350. The court awarded a writ of mandamus against the members of the board of trustees compelling them to issue to appellee a voucher for that amount, with interest from the date of the judgment, payable out of the available school fund of the Park independent school district. He further awarded writs of injunction restraining the board of trustees from paying any money from the. funds of the school district for that scholastic year to the defendant Willie Connerly, and restraining the Nash Exchange Bank from paying any of the school funds for that year to Willie Connerly. He dissolved the temporary writ theretofore is-' sued against Lucile Connerly. '

The first question to be considered is one affecting the jurisdiction of the trial court. This appeal is by the Park independent school district alone, and from that portion of the decree which awarded a judgment against it for the sum of $350. While the appellee in her petition seeks relief against other parties, her suit against the Park independent school district is to recover a judgment, or establish a claim, against the district for the amount of salary claimed by her to be due upon her contract as a teacher. The result of that branch of the’ suit is not dependent upon the relief sought against any of the other defendants. On the contrary, this appears to be the -principal cause of action, to which the writs of injunction and mandamus prayed for against the other defendants were merely incidental. If the plaintiff should fail to ’establish her, claim against the school district and an adverse judgment should be rendered against her, she would not be entitled to the ancil-: lary writs sought against the other defendants. Eor unless she held a valid subsisting' claim against the appellant, there would be no basis for those writs. If the suit then should be treated as one primarily to establish a claim against the district, the amount! of the claim must determine the jurisdiction' of.the court. If this is less than $500, then' the trial court was without jurisdiction. The amended original petition, on which the case was tried, does not state definitely what amount of money the plaintiff claimed and for which she sought a judgment. While the petition alleges that her contract was for eight months at $70 .per month, it also shows that only seven, scholastic months of the. school term could have expired when the amended petition was filed.,Up.der such conditions $490. would be the maximum amount of any claim which she could hold .against the school district qpon.bor .conti;act tp, teach, .conceding that the term was to last eight months. She could not lawfully claim a salary that had not been earned. Her claim would be below the jurisdiction of the district court.

The averment that the contract was for eight months does not relieve the situation. The statute confers upon trustees of independent school districts the authority to fix the-time when the school shall begin and the length of time they shall continue, and prohibits the trustees from creating any deficiency against the funds of the district. Vernon’s Sayles’ Stat. art. 2824. The powers here conferred upon the trustees are for the good of the public schools, and the trustees will not be permitted to divest themselves of those powers by contracts with teachers. In employing teachers these provisions of the law are read into and become parts of the contracts. Harkness v. Hutcherson et al., 90 Tex. 383, 38 S. W. 1120. It follows from what is said that, notwithstanding this contract with the appellee stipulated for an eight-months term, it could not in law bind the trustees to employ the appellee for that length of time, unless the school fund was sufficient to run the school eight months. It also appears from the petition that this contract was made in March of 1915, and at a time when the scholastic census for the various school districts of the state had not been taken, and before any apportionment of the public school funds could be made by the state board of education, and -before the trustees of this district would have any means of determining how long . the term of school should be. It was not, therefore, practicable at that time to fix any well-defined limits to the term.

It has frequently been held that jurisdiction of the subject-matter should be made to clearly appear from the face of the plaintiff’s petition. There is no good reason why courts should be called upon to speculate upon that question, when the plaintiff may easily make it plain. We have therefore concluded that under the averments of this petition the subject-matter was not within the jurisdiction of the trial court, and for that reason the judgment appealed from will be reversed, and the cause remanded, with instructions to the trial court to dismiss the case against the appellants; and all costs of this appeal will be taxed against the appellee.

On Motion for Rehearing.

HODGES, J.

In support of the jurisdiction of the district court it-is now com tended that one of the primary purposes of this suit is-to secure a-writ of- mandamus and that the - Constitution confers upon district courts the general power to issue such writs. The power conferred by the Constitution upon district courts to issue writs of mandamus and injunction is found in section 8 of article .5, and.is as follows:

“And said (district) court, and the judges thereof, shall have power to issue writs of habe-as corpus, mandamus, injunction, and certiorari, and all writs necessary to enforce their jurisdiction.”

Section 16 of the same article contains the following provision relating to county courts:

“And the county court, or judge thereof, shall have power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of said court, and to .issue writs of habeas corpus in cases where the. offense charged is within the jurisdiction of the county court, or any other court or tribunal inferior to said court.”

There is no substantial difference in the general scope of the powers conferred by these two provisions as to writs) of mandamus and injunction. The authority of the district court to issue such writs in eases not falling within the jurisdiction of county courts is to be found .in a subsequent portion of section 8, which provided that such court—

“shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution.”

In the case of Lazarus v. Swafford, 15 Tex. Civ. App. 367, 39 S. W. 389, the Court of Civil Appeals for the Second District held that the jurisdiction of the county court to issue writs of injunction in cases where the amount in controversy was over $200 and less than $500 was exclusive. That holding has been reaffirmed in numerous cases by other Courts of Oivil Appeals, and we know of no case in which a contrary holding has been adopted.

In Cotton v. Rhea, 106 Tex. 220, 163 S. W. 4, Justice Phillips used this language:

“As the allegations of the petition in the injunction suit were not such as to bring the case within the Original jurisdiction of any. other court, but were sufficient to invoke equitable relief, the issuance of the writ was within the jurisdiction of the district court. Gamel v. Smith [3 Tex. Civ. App. 22], 21 S. W. 628. We express no opinion upon the question of the right to maintain such a suit in that court if subsequent pleading should disclose that the value of the property involved was an amount within the jurisdiction of the county court.”

That suit was one to restrain the enforcement of a judgment and the sale of exempt property. It was held that the district court bad no jurisdiction to,restrain the enforcement of a judgment of another court which was not void upon its face. The language quoted was used with reference) to that portion of the petition which asked for an injunction restraining the sale of the exempt property. The petition in' that case failed to • state the value of that property. The ruling announced rather tends to support the case of Lazarus v. Swafford, supra.'

There is a class of controversies, where the right involved cannot be measured in dollars and cents, which fall within the original jurisdiction of the district court conferred by these provisions of the Constitution last above quoted. The casé of Thorne v. Moore, 101 Tex. 205; 105 S. W. 985, cited by the appellee, .is one of that kind; and still others might be mentioned. When a suit for one of these extraordinary writs had for its object the preservation or enforcement of some property right which can be measured by a monetary standard, the jurisdiction of the trial court to grant the writ must be determined by the value of that right. That value represents the amount in controversy. If it affirmatively appears from the petition seeking a writ of mandqmus or injunction, when considered as a whole, that the amount in controversy is within the jurisdiction conferred upon the county court, then, under the ruling of the Supreme Court above referred to, the district court has no authority to grant the writ.

It is contended in this motion that when the appellee’s petition is considered in its entirety it appears that the main or at least one of the purposes of the suit is to compel by mandamus the trustees of Park independent school district to recognize the validity of her contract and to perform it according to its terms. The only “recognition” or “performance” of that contract which a court could by writ of mandamus impose upon the trustees would be .the act of signing the vouchers necessary to enable her to draw her salary monthly as it became due. But inasmuch as the appellee has elected to ask for judgment establishing her claim for salary díte on her contract, the rendition of a judgment upon that claim must logically precede the granting of the writ. The right to the writ being thus made dependent upon the judgment, its issuance could operate merely as a means of executing the judgment, and therefore become an ancillary matter. Furthermore, it cannot be presumed in advance that the trustees would refuse to sign vouchers according to the statute after á judgment establishing the claim of the appellee had been rendered. It would be an unusual proceeding to render a judgment against the trustees upon the claim, and at the same time grant a writ of mandamus to compel the enforcement of that judgment.

This is not a suit for damages resulting from the breach of a contract, nor one to establish the validity of the contract as an entirety, but must be treated as a suit to recover the salary due under the terms of the contra'ct. The real test of jurisdiction then is the amount of money for which, under appellee’s averments, a judgment might have been rendered. Contracts of this character which provide, for payments in monthly installments give a right of action upon each installment aS it becomes, due. Racke v. Anheuser Busch Br. Ass’n, 17 Tex. Civ. App. 167, 42 S. W. 774; Davidson v. Hirsch, 45 Tex. Civ. App. 631, 101 S. W. 269; Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. 292, 19 Am. St. Rep. 470.

The appellee’s petition shows that not more than seven installments -had matured when the amended petition was filed. That fixed the, limit for which a judgment could have been rendered for $490. Conceding that appellee might have been entitled under her contract to claim her salary for eight months, the petition showed that the eighth installment had not matured. It is true that it had matured at the time the case was tried, but that fact alone could not authorize the rendition of a Judgment for that additional sum. It is only such rights as have accrued at the time the last petition is filed that can be adjudicated by the court. Collins v. Ballow, 72 Tex. 330, 10 S. W. 248; Ballard v. Carmichael, 83 Tex. 355, 19 S. W. 734. The eases above referred to relate to actions of trespass to try title and hold that a plaintiff cannot recover upon proof of a title acquired after his last amended petition was filed. This ruling is manifestly based upon the proposition that in such cases the pleadings do not authorize such proof. In the case before us the last installment was a separable cause of action, and the appellee could not claim it except upon pleadings and proof that it was due, and that she had performed the services contracted for that month, or that she was ready, able, and willing to perform them and had been prevented from so doing by the trustees. We therefore adhere to our former decision, and the motion for rehearing is overruled.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes