author: HUFF, C. J.

text:
    OVERSTREET et al. v. HANCOCK.
    (No. 799.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 29, 1915.)
    1.Principal and Agent @=89 — Action for Compensation — Pleading — Variance — Suit for “Commission” — Proof of “Discount.”
    Where an automobile agent sued for commissions, but proved that his compensation was to consist in the privilege of receiving an 18 per cent, discount on every car he purchased from his principals for a buyer from him, there was no variance between the allegation and proof, since “commission” is the compensation of a factor or other agent for services rendered in making a sale or otherwise, while a “discount” is a deduction from a list price, and so may amount to compensation.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 216, 229-239; Dec. Dig. @==389.
    For other definitions, see Words and Phrases, First and Second Series, Commission; Discount.]
    2. Sales @=8 — Sale or Agency — Consignment — Co nstruction — Intention .
    The intention of the parties as to whether there was a sale outright or a consignment to the plaintiff as agent for sale was the controlling factor in construing a contract whereby defendants allowed the plaintiff exclusive territory in which to sell their automobiles, his compensation to consist of an 18 per cent, discount from the list price, to which he was entitled on each car sold.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 18, 19; Dec. Dig. @¿=>8.]
    3. Sales @=8 — Contract of Employment-Intention — Sale or Consignment of Goods.
    Where plaintiff contracted to sell defendants’ automobiles in certain territory, and for cars sold was to pay defendants the list price, less his agent’s discount of 18 per cent., such contract constituted the plaintiff a factor for the sale of cars, the transaction not being a purchase of cars by him, but a consignment of them to him as agent for sale, since defendants did not part with the title of the cars until sale should be made to the ultimate purchaser.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 18, 19; Dec. Dig. @=8.]
    4. Principal and Agent @=>85 — Sale of Automobiles on Consignment — Advances for Cars — Discontinuance of Agency.
    Where defendants by contract allowed plaintiff the exclusive right to sell: their automobiles in certain territory, accepting an advancement of $250 from him to be applied on the purchase price 6f the first 10 cars sold, plaintiff was entitled to recover such advancement upon breach of the contract by the defendants.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 224-228; Dec. Dig. @= 85.]
    5. Principal and Agent @=81 — Consignment of Automobiles — Invasion of Agent’s Territory — Damages.
    Where defendants contracted that plaintiff should have the sole right to sell their automobiles in specified territory for a specific time, and thereafter such defendants sold a car within such territory, ■ plaintiff was entitled to recover his agreed commission of 18 per cent, on the list price of the car in an action for breach of the contract.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 194-214, 219, 223; Dec. Dig. @=81.]
    Appeal from Tarrant County Court; C. T. Prewett, Judge.
    Action by V. T. Hancock against J. R. Overstreet and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Baskin, Dodge & Eastus, of Ft. Worth, for appellants. F. M. Bransford, of Ft. Worth, and B. W. Miles, of Coolidge, for appellee.
   HUFF, C. J.

The appellee, V. T. Hancock, as the assignee of S. E. McLellan, sued J. R. Overstreet and R. J. Doveless. The petition alleges that in March, 1910, Mc-Lellan entered into an agreement with Over-street and Loveless, by the terms of which McLellan was to have the exclusive right to sell the Detroiter automobile in Limestone county, Tex., and along the edge of Hill county, from March 12, 1913, until October 1, 1913, and during that time McLellan was to receive 18 per cent, commission on all automobiles sold in that territory. It was stipulated that McLellan was to deposit with appellants $250, $25 of which should he credited to him on the sale of each car within said territory, until 10 cars were sold, and the deposit money thereby returned ; that $250 was so deposited and one car ordered, and McLellan received a credit for $25; that he began to solicit for the sale of the cars within the territory, and continued until June 13, 1913, when he ceased on account of the acts of appellants in violating the territory and in selling the Detroiter car therein to other parties, thereby defeating the efforts of McLellan, and thereby the contract was violated; that appellants sold a car to A. B. Rejmolds, for $900, in the territory assigned him, and that McLellan was entitled to 18 per cent., or $162, commission on said sale by the terms of their agreement, which sum, and the $225 remaining of the deposit, was sued for; that appellants canceled a part of the territory assigned to Me-Lellan; the appellee also alleges the assignment of the claim to him by McLellan. The appellant answered, denying that McLellan was to receive 18 per cent, commission, but on the contrary, McLellan agreed to handle the car in the territory and contracted for 10 cars, depositing $250 on the contract, which entitled him to 18 per cent, discount on all cars sold by him in their territory until October 1, 1913, and also denied that any of the deposit was to he returned if Mc-Lellan did not sell 10 cars. They also denied that McLellan was entitled to $162, or any other amount on account of the sale to Reynolds. McLellan testified:

“My agreement was for 10 cars, and I put up a deposit of $250, which secured me and by which I had the exclusive right to handle the Detroiter in Xámestone county until October 1, 1913, with the privilege of a year’s renewal or the return of the unused portion of the deposit, and I was to have 18 per cent, discount on all cars sold in that county. My deposit money was to be returned pro rata as I used the cars, and if any of my territory was cut off, the corresponding amount of the deposit was to be returned to me; that is to say, X was to be allowed a credit of $25 on each car until 10 were used. The list price of the cars was $900 and the freight $65, making the price to purchaser $965. The 18 per cent, was calculated on the list price of $900, so that the cars would cost me $803 each, including the freight.”

He took one car and paid $803 less $25 rebate, out of the deposit. He took the car and began working the territory as agent for the sale of the cars, when another agent of appellant sold cars in the territory, of which fact McLellan wrote appellants, notifying them they should pay his 18 per cent. commission. Shortly thereafter appellants sold Reynolds a car, in the territory assigned to McLellan, on which sale McLellan demanded $162. After that date Mcl/ellan did not sell, or make an effort to sell, in the territory, because of the claimed violation of the agreement. On June 7, 1913, appellants cut off the better part of the territory with the named towns therein, Mexia, Groes-beck, and XCossier, leaving to Mcl/ellan only Collidge, a small inland town. He then demanded a return of the $225 deposit remaining in the hands of appellants. This was refused. Appellants wrote McLellan the following letter, March 13, 1913:

“Dear Sir: According to our agreement yesterday evening, I am submitting you below an agreement whereby you can handle the De-troiter in Limestone Co., and am shipping you to-day the ear. On the contract for ten cars with a $250.00 deposit you are entitled to 18% discount on all the cars sold in that county, between now and Oct. 1st, 1913. Tour deposit money is to be returned pro rata as you use the cars, and I hereby acknowledge the receipt of $803.00 for one car, allowing you $25.00 rebate on that car and $250.00 deposit, making $1028.00. On each car you take you will be entitled to $25.00 rebate until you have taken nine more.
“This substantially covers the agreement and you will be entitled to work Mt. Calm, Hubbard and along the edge of Hill county, and any other territory until it is contracted for, lying tributary to you.”

On April 25, 1913, McLellan wrote appellants that one Sanders had sold a car and was about to sell another near Collidge, and stated herein:

“Now if these facts .are true, I shall certainly claim all the commissions on all the sales he makes. If he cut the price to make sales, it is his own lookout. I claim eighteen per cent, on $900.00, the price he should have gotten, plus the freight. I ask you to protect my interest in this matter.”

Appellants answered this letter, writing to McLellan, April 28, 1913, that they had notified Sanders that he must let—

“your territory alone. X also notified him that in case he made any sales in your territory they would be considered your sales, and that you could demand the commission on them.”

In June Mcl/ellan notified appellants that he would claim the commission on a Reynolds sale. Appellants replied, admitting the sale, but claimed it wás made for Reynolds’ son to work Freestone county. There were several other letters passed between the parties with reference to the territory and the commissions to be received, which resulted in a letter from appellants to McLellan that the towns mentioned in his territory were given to others, leaving him only Collidge therein. The facts show that the appellants were the state agents for the state of Texas, for the sale of the car at the time they entered into the agreement with Mcl/ellan, and during the time the transaction above mentioned was had. McLellan entered into the contract with appellants, for the purpose of selling the cars so handled by them, in the territory mentioned, and testified that he had the exclusive right to sell the cars in that territory, under the agreement. The evidence shows that the claim of McLellan was assigned to the appellee, V. T. Hancock, who sues thereon. The case was tried before the court, and resulted in a judgment in favor of appellee, for the sum of $357.84.

The first assignment is to the effect that the allegations in the petition that appellants agreed to pay a commission on the sale of cars were not met by the proof, but under the undisputed evidence McLellan was allowed a discount on the purchase and sale of automobiles. The contention of appel lants appears to be that the meaning of “dis count” and “commissions” are different, and therefore the allegations to pay commissions is not supported by proof that discount was to be made on the list price of the car sold. We are referred to 8 Cyc. 334, for the meaning of “commission.” One of the definitions given therein is:

“In commercial law a compensation to a factor or other agent for services to be rendered in making a sale or otherwise; a sum allowed as compensation to a servant, factor or agent who manages the affairs of others in recompense for their services,” etc.

Appellants also refer us to 14 Cyc. 296, for a definition of “discount.” We find from the definition there given it has a double meam ing:

“In a general sense as a noun, a cutting off, an allowance or deduction made from a gross sum on any account whatever.”

In some such sense as above defined it was evidently used by the parties to the transaction in question. One of the meanings by Webster is:

“An allowance upon an account, debt, demand,price asked, and the like; something taken off or deducted.”

Century Dictionary:

“Any deduction from the customary price or from a sum due or to be due at a future time.” Carroll v. Drury, 170 Ill. 571, 49 N. E. 311.

Bouvier:

“An allowance sometimes made for prompt payment.”

When a merchant sells a bill of goods and throws off part for present payment, it may be said to be a discount on his part.

In this case, the consideration for discounting the list price of the goods 18 per cent, by appellants was that McLellan should act for them in a given territory in the sale of the cars and make sales thereof. This was the compensation to be received by the agent for his services. This is clearly evidenced by the testimony as well as by appellants’ letters. It was regarded by them as commissions or compensation to him as their agent in that territory, in which he was not to be .disturbed by other agents. We think, therefore, the evidence supports the allegation. The intention of the parties in this kind of contract will control, as in all others, and as to whether the goods were sold or consigned to an agent for sale. Hamilton V. Willing, 73 Tex. 603, 11 S. W. 843. Under the testimony there were no cars, except one, delivered. The agent in certain territory was to sell the cars, and, when sold, he was to retain 18 per cent, on the list price; in other words, he was to pay to appellants $900, less the 18 per cent. This contract constituted McLellan, in a sense, a factor, for the sale of the cars. Appellants had at no time parted with the title or possession of the ears until the sale was made to the ultimate purchaser. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Barnes Safe & Lock Co. v. Bloch Bros. Tobacco Co., 38 W. Va. 158, 18 S. E. 482, 22 L. R. A. 850, 45 Am. St. Rep. 846.

Appellants, having discontinued the agency, were liable to McLellan for the advancements made to them on goods to be sold under the contract and to be reimbursed therefor. Mechem on Agency, § 2554, vol. 2 (2d Ed.); 19 Cyc. 154; Mills v. Johnston, 23 Tex. 308; Kempner v. Patrick, 43 Tex. Civ. App. 216, 95 S. W. 51.

The second and third assignments are leveled at the judgment awarding $162 as commissions due Mc,Lellan on the sale made by appellants to Reynolds, on the ground it is urged that this was simply a breach of contract on the part of appellants, and that the commissions which McLellan would have received was not the measure of damages; that the contract fixed no measure of damages for such sale, and for that reason, under the pleadings and evidence, only nominal damages were recoverable.

The contract assigned to McLellan a specified territory for a specific time, in which to make sales; this territory, the evidence authorized the court to find, was exclusively the territory of McLellan, as agent, and he alone had the right to make the sales therein. Within the time specified by the agreement, and in the territory set apart exclusively to McLellan, the appellants sold to one of his customers a car. By the terms of the contract McLellan alone had the right to make such sale, and upon making it would have been entitled to $162 for his services. Appellants having voluntarily entered the territory within the time they had contracted the agent should sell therein, the agent will be entitled to his commission at the rate specified in his agreement with his principals. The agent in the territory had the right, within the time specified under the contract, to make the sale, and appellants had no right to resume control of such territory and sell therein in violation of their contract. Stringfellow v. Powers, 4 Tex. Civ. App. 199, 23 S. W. 313; Harrell v. Zimpleman, 66 Tex. 292, 17 S. W. 478. When the principals sold the car within the territory of the agent, his compensation will be, or should be, governed and controlled by the contract granting him the commissions named. Thompson v. Berg, 10 Tex. Civ. App. 200, 30 S. W. 454.

We find no reversible error, and the case will be affirmed.
      <§c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    GAINES v. BROWN.
    (No. 787.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 8, 1915.
    Rehearing Denied June 5, 1915.)
    1. Bills and Notes <9^527 — Actions—Evidence— Sufficiency.
    In a suit on a note, evidence held to show that it was not intended that the notes which were given to secure a guaranty should be discharged when the guaranty was discharged.
    LEd. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1847-1855; Dec. Dig. 527.]
    2. Biles and Notes <§=^537 — Juey Question —Direction of Veediot.
    In a suit on a note, where there was no sworn pleading attacking the validity of the assignment, and the evidence clearly showed that the note was in force, it is proper to direct a verdict for plaintiff.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1S93; Dec. Dig. 537.]
    Appeal from District Court, Dawson County; W. R. Spencer, Judge.
    Action by C. E. Brown against W. E. Gaines. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. D. Russell and Mathes & Williams, all of Plainview, for appellant. Ferguson & Puckett, of Lubbock, and G. E. Lockhart, of Tahoka, for appellee.

       Writ of error pending in Supreme Court.

   HALL, J.

Plaintiff, Brown, sued appellant upon a promissory note, dated July 3, 1911, executed by defendant, payable to J. F. Barron, R. E. Simpson, and Mit Aikin, October 1, 1911, in the sum of $1,842, providing for interest from maturity at 10 per cent, and 10 per cent, attorney’s fees.

The defendant answered that he, together with 28 other citizens of Dawson county, executed what is termed a guaranty contract, in the sum of $50,000, for the purpose of securing the construction of a railroad into said county. By said contract they agreed to pay T. J. O’Donnell the said sum upon the completion by the Santa FS Railway Company of a railway into the town of Lamesa; that at the same time, for the purpose of securing the performance of said contract, the defendant and a large number of other persons executed their respective notes, payable to the said O’Donnell, and that the note sued upon was the amount due from him upon said guaranty contract, as between himself and the other guarantors; that, in accordance with the understanding and agreement of all parties at the time said notes were executed, this note, together with all others, was by said O’Donnell delivered to the said Barron, Simpson, and Aikin, for the purpose of collection, the proceeds thereof to be applied to the payment of said guaranty contract; that the note sued upon is simply a renewal of an original note so made by defendant and executed for the purposes above set out; that on July 25, 1909, the said O’Donnell transferred and assigned the guaranty contract to the Pecos & Northern Texas Railway Company; that on or about the 15th day of November, 1912, the guaranty contract was settled and discharged, and the guarantors released by said railway company, while said note was still in the hands of said original payees, Barron, Simpson, and Aikin; that after January 1, 1913, Simpson, Barron, and Aikin, without authority or consent of defendant, indorsed said note on the back thereof and delivered it to O’Donnell; that the same has, by some means unknown to defendant, come into the possession of plaintiff ; that said three committeemen or representatives had no right and no authority as to this defendant to transfer said note.

By supplemental petition plaintiff admitted that the payees in said note held it as trustees; that defendant, with 28 other citizens, had guaranteed'to O’Donnell the payment of $50,000, and that O’Donnell had transferred all of said .obligations, including the guaranty obligation, to the Pecos & Northern Texas Railway Company, and that said company had instituted suit against the makers of said guaranty obligation in the district court of Dawson county to recover the amount thereof ; that O’Donnell had instituted suit in the district court of Nolan county for a sum claimed to be due him from said railroad company, and that it was agreed by all the parties to said contracts that all of the notes and obligations held by said guaranty committee to pay the sum guaranteed should be transferred to said O’Donnell in settlement of the claim he made against said railroad company, and that such agreement was finally consummated.

It appears from the evidence that appellee, with several other signers of the guaranty contract, appeared in Sweetwater November 15, 1912, and executed a contract in triplicate, signed by Barron, Aikin, and Simpson, as a committee representing the various subscribers to the guaranty contract, by the attorneys of the Pecos & Northern Texas Railway Company, by the attorney for the defendants in the suit filed by the Pecos & Northern Texas Railway Company against appellee and his co-obligors on the guaranty contract, and by several of the guarantors themselves, including appellant. By this contract it was stipulated that the suit between the Pecos & Northern Texas Railway Company and Barron; No. 109, then pending on the docket of the district court of Dawson county, to recover upon the guaranty contract, should be dismissed. It is recited that, in consideration of the adverse conditions which had confronted the people of Dawson county for the last few. years, and on account of a desire upon the part of said railway company to aid and assist the people of Dawson county, the plaintiff in that suit agreed to dismiss the same, and that the guaranty contract should be surrendered to the obligors and canceled; that the guarantors should pay the costs of court. It was further stipulated in said agreement that in the suit filed by O’Donnell against the Pecos & Northern Texas Kailway Company, then pending in the district court of Nolan county, the defendants would procure judgment to be rendered in said cause in favor of the Pecos & Northern Texas Kailway Company, and would indemnify the Pecos & Northern Texas Kailway Company against any liability whatever by reason of said suit.

At the March term, 1913, of the district court of Dawson county this agreement was made the judgment in said cause, thereby dismissing the suit against appellant and all his co-obligors. There appears in the statement of facts the following transfer, dated Sweetwater, Tex., November 15, 1912:

“Thi|j is to certify that for a valuable consideration I have this day sold and assigned to E. Q. Daniel all the bonus notes this day received from Mit Aikin, J. E. Barron, and R. E. Simpson, acting as a committee of citizens of Dawson for the bonus subscription to the Pecos & Northern Texas Railway Company. This contract is based on a certain contract this day entered into by and between T. J. O’Donnell and Mit Aikin, J. E. Barron, and R. E. Simpson, in which a certain suit pending' in the district court of Nolan county, Tex., is withdrawn by T. J. O’Donnell, wherein he is suing the Pecos & Northern Texas Railway Company of Texas for $25,000, and to which contract reference is here made, and which contract is hereby made a part hereof.”

This is signed by T. J. O’Donnell.

The statement of facts contains a written transfer and assignment of all the unpaid promissory notes made by the citizens of Dawson county and appellant’s note is shown to have been one of these. The transfer is signed by E. Q. Daniel August 22, 1913, and states that for value received said notes are transferred to said C. E. Brown.

The record further shows a contract made between O’Donnell, Aikin, Barron, and Simpson, dated Sweetwater, Tex., the 15th day of November, 1912, whereby O’Donnell, in consideration of the transfer to him by the guaranty committee of all promissory notes made by the guarantors, dismissed his action then pending in the district court of Nolan county against the Pecos & Northern Texas Railway Company: It was further stipulated in, said agreement that, if each of the subscribers should make satisfactory arrangements with O’Donnell within 60 days from the date thereof to pay 50 per cent, of the amount of his subscription, he should be released for the balance; otherwise the said O’Donnell should have the same power as was vested in the committee to collect the full amount of each subscription.

Mit Aikin testified that appellant was at Sweetwater November 15, 1912, when the above-mentioned contracts were made; that the terms of the agreement were decided upon one night, and the contracts themselves drawn up the next morning. The witness further said:

“I would not be sure that Mr. Gaines was there, but think he was. He was there one or other of the meetings. I think both, but I won’t be certain; I am not sure.”

He further said the notes were transferred to O’Donnell in pursuance of the agreements had at Sweetwater; that Gaines was present when the contract signed by him was executed by all the parties; that the attorney for the Santa Fé Railway Company explained the contract to him.

Another witness testified that he held the note in suit, together with others, for collection after they were transferred to O’Donnell ; that he talked with Gaines several times, but no arrangements were made about settling the note.

Appellee testified that he was at Sweet-water when the agreements above mentioned were executed; that he knew appellant, and knew he was there. After the introduction of this testimony plaintiff closed. The appellant did not take the stand, and introduced no evidence whatever; whereupon the court directed a verdict in favor of the plaintiff.

The agreements above mentioned show one transaction. The evidence of the witnesses is sufficient to establish the fact that Gaines was in Sweetwater on the day they were executed, and present at least at one of the meetings, where the matters were discussed, and tends strongly to show that he was present at both meetings. No one testified that Gaines was not present and did not have full knowledge of all that was done; nor did he raise any objection when the party holding his note for collection talked with him more than once about a settlement. The presumption arising from the failure of appellant to produce evidence showing his want of knowledge of all that was done, when taken in connection with the suspicion arising from the facts just stated, we think, warranted the court in directing a verdict against him. House v. Robertson, 89 Tex. 681, 36 S. W. 251; Ft. Worth, etc., Ry. Co. v. Daggett, 87 Tex. 322, 28 S. W. 525; Aldridge v. Pardee, 24 Tex. Civ. App. 254, 60 S. W. 789, writ of error denied by Supreme Court 94 Tex. 709, 60 S. W. 789; Chandler v. Meckling, 22 Tex. 36; Bailey v. Hicks, 16 Tex. 222.

The uncontroverted evidence established the fact that the cancellation of the guaranty contract was not intended and did not cancel the note, and that the note was supported by sufficient consideration. The appellee produced a written transfer of the note, and no sworn pleading was filed attacking the validity of the assignment. There being no controverted issue to submit to the jury, the court did not err in directing the verdict.

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


author: HENDRICKS, J.

text:
    DAGGETT v. CITY OF FT. WORTH et al.
    (No. 798.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 29, 1915.)
    1. Deeds @=>145 — Construction—Condition Subsequent.
    To create a condition subsequent, the lau-guage of a deed must be clear, aad the coaditioa must be created by express terms or clear implication, aad, where the lauguage is ambiguous, it will he coastrned to create a coveaaat, rather thaa a coaditioa.
    Ed. Note. — For other cases, see Deeds, Ceat. Dig. § 471; Dec. Dig. @=>145.]
    2. Deeds @=>155 — Construction—Condition Subsequent.
    A deed conveying property to a city ia consideration that the premises be used for free school purposes aad that the city erect thereoa a suitable buildiag withiu twelve moaths or the property shall revert to the graators, is a con-veyaace oa coaditioa subsequent.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 488-495; Dec. Dig. @=>155.]
    3. Deeds' @=>156 — Condition Subsequent— Ri&iit oe Re-entry — Heir.
    Unless the heir of the grantor is named in a deed conveying on condition subsequent, he cannot re-enter, though the condition is breached.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 496-499; Dec. Dig. <&=>156.]
    4. Deeds @=>155 — Condition Subsequent-Duration.
    Where property is conveyed on condition subsequent for a particular use for the purpose of enhancing the value of grantor’s adjoining property, without any provision as to the duration of the condition, it will not be held to continue after the particular use specified ceases to be of any benefit to the adjoining property.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 488^495 ; Dec. Dig. @=>155.]
    5. Deeds @=>134 — “Condition Subsequent” —“Conditional Limitations.”
    A conditional limitation differs from a condition subsequent in that the former terminates the estate on the happening of the event, while the latter designates a happening which gives the grantor or his heirs, if mentioned, a right to terminate the estate.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 448, 449; Dec. Dig. @=>134.
    For other definitions, see Words and Phrases, First and Second Series, Conditional Limitations ; Condition Subsequent.]
    6. Deeds @=>160 — Condition Subsequent-Breach.
    Where property was conveyed on condition subsequent, that it be used for free school purposes, and after its use as such for a time the school was discontinued, but the school board was considering a plan to reopen another school thereon when the grantor, less than two years after the discontinuance of the former school, brought suit to enforce her right of re-entry, the condition was not shown to have been breached.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 505-517; Dec. Dig. @=>160.]
    Appeal from District Court, Tarrant County ; R. H. Buck, Judge.
    Action by E. J. Daggett against the City of Ft. Worth and others. Judgment for the defendants, and plaintiff appeals.
    Affirmed.
    Bryan, Stone & Wade, of Ft. Worth, for appellant. Sidney L. Samuels, of Ft. Worth, for appellees.
   HENDRICKS, J.

The property in controversy, a block of ground 200 feet square, situated in the Daggett’s addition to the city of Ft. Worth, was owned by Mrs. Daggett, the appellant, as her separate property. On July 17, 1884, she conveyed the same, joined by her husband, E. B. Daggett (since deceased), to the city of Ft. Worth, by a general warranty deed, containing the recitation:

“In consideration of the sum of $10.00, to us in hand paid by the city of Ft. Worth, * * * and the further consideration hereinafter mentioned, have granted, sold, and conveyed”

—to said city the described property, and containing the further recitation, immediately following the description of the property: *

“And the further consideration above mentioned is that said premises shall be used for free school purposes, and that said city of Ft. Worth will erect a suitable schoolhouse_ or schoolhouses thereon, or the above-described premises shall revert to said E. B. and E. J. Daggett, but we will allow said city of Ft. Worth twelve months from this date to finish said schoolhouse or schoolhouses.”

The recited nominal consideration, “$10.00,” was never paid, nor intended to be paid. It was admitted at the trial that the grantee performed the condition relating to the erection of a school building within the period of 12 months stipulated in the deed.

Appellant, pleading her cause of action specially, in addition to trespass to try title, undertook to recover the property by virtue of the reversionary clause in the deed, on the ground that the same had been abandoned for school purposes.

The trial court found:

“That said city of Ft. Worth and its successor in charge of the public schools, the independent school district of the city of Ft. Worth, for a period continuously of more than 26 years, did actively conduct a public school in said building, teaching and educating the children of the city therein”

—which finding was supported by the testimony. The city of Ft. Worth discontinued the use of the particular building for the purpose of conducting the school therein, upon the erection of another new school building in the same ward, costing about $30,000. We are unable to determine the exact date, but from the record we infer that this occurred some time in 1910. The appellant filed her original petition in July, 1911, thereafter amending in November, 1912, alleging, in said amendment, that the old building had not been used for school purposes “during the past two years,” from which, according to the presentation by the pleading, the discontinuance of the use of said building occurred a comparatively short time — a few months— previous to the institution of this suit.

At the time of the conveyance of this block to the city Mrs. Daggett was the owner of a great deal of the surrounding property in the Daggett’s addition, consisting partially of whole blocks, and of lots in different blocks, and, so far as this record presents, has sold only one lot out of her holdings since that time. She testified:

“The real consideration I expected to receive in return for the conveyance of this lot to the city was the benefit which would come from the erection, and maintenance of a school; I thought this would enhance the value of my property.”

Appellant’s son, who is the manager of her holdings, testified that she had from 40 to 70 lots, and also owned from 50 to 60 houses, in that community; the houses rented about equally to negroes and whites. It is infera-ble, however, from other testimony, that the proportion of negro tenants and residents upon her property is considerably more. It Is also deducible that this particular section of the city began to be stamped as a negro community by the action of appellant and other property owners renting to them before the discontinuance of school in the building, and Smith, one of the appellant’s witnesses, said “that, where negroes begin to encroach upon a white community, the white people move away.”

The trial court also found:

“That the inducing cause to grantors in conveying the property to the city of Et. Worth was the enhancement in value to contiguous property owned by them that would result from the location of said school building; and I further find in this connection that such enhancement as would accrue from such cause has already been enjoyed and reaped, and that the continuance of school in such premises would not contribute to enhancement in values of adjacent property, nor would its removal therefrom reduce or injure the values thereof, and that the suspension of school in such building did not affect the value of grantors’ adjacent property, nor would the removal of the school therefrom preclude such enhancement, or even tend to reduce the rental or sales value of such property, for that long prior to the suspension of school in such building values in said neighborhood had fallen and will continue to fall because of the encroachment of the negro population thereon and a steady exodus of whites therefrom, with which condition the suspension of the school had nothing to do.”

It is true that:

“To constitute a condition subsequent, upon which a forfeiture may be declared, because of a failure of its performance, the language must be clear, and the condition must be created by express terms, or by dear implication, and it must be strictly construed.” South Texas Telephone Co. v. Huntington, 104 Tex. 353, 136 S. W. 1053, 138 S. W. 381.

We think, however, the particular instrument creates the condition: First, for the erection of a suitable school building within the period stipulated; and, second, that the premises should be used for “free school purposes.” The collocation of the language in the clause defining the subsequent conditions may not be as appropriate, nor as fully expressive, as desired, but we think a fair interpretation bespeaks such meaning and intention.

As to the rule of construction applicable to conditions subsequent, Justice Kent also expresses it:

“Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and the vigorous exaction of them is a species of summum jus, and in many cases hardly reconciliable with conscience.” 4 Kent, 130.

And the Supreme Court of Massachusetts said, in Merrifield v. Cobleigh, 4 Cush. (Mass.) 178, 184, in speaking of a condition subsequent:

“Such a condition, when relied upon to work a forfeiture, is to be construed with great strictness; the demandant shall have his exact legal right, and no more.”

Of course, the principle of interpretation, evidenced by the above quotations is more often referable to the language of the instruments, whether from its phraseology, bearing in mind the rule of construction against the condition and in favor of an indefeasible estate, the intention is sufficiently expressed, or clearly implied, that a defeasible condition exists; and, again, where it is difficult to distinguish whether a language expresses a subsequent condition or a covenant, it will he declared a covenant, and not a condition, not upon a process of reasoning satisfactory as to the real intention of the parties, but more in deference to the rule that the law leans against the condition. Byars v. Byars, 11 Tex. Civ. App. 568, 32 S. W. 925. It is said, when the attempt is made to imply a condition subsequent by interpretation:

“If the instrument will bear any reasonable construction that will defeat the springing of an implied condition subsequent, at law as in equity, that construction will be adopted. Estates upon implied conditions * * * cannot be created by deed, except where the terms of the grant will not admit of any other reasonable construction.” Ryan v. Porter, 61 Tex. 109.

It is familiar that, unless the heir is named, he cannot re-enter, though the condition is breached; the estate does not inure to his benefit. And the Supreme Court of New Hampshire (Emerson v. Simpson, 43 N. H. 475, 80 Am. Dec. 184, 82 Am. Dec. 168) holds the converse, that where a deed is made upon condition that the grantee shall “forever” keep up and maintain a fence between the land conveyed and the land of the grantor, the neglect by the widow to repair and keep up the fence after the grantee’s death will not forfeit the land.

The inculcation of this doctrine, rather abstractly reproduced by us, becomes concrete to the extent as pointing the path universally traveled. Of course, if the deed in question had used more definite language that the premises should be “forever” used for free school purposes, the performance would then not have been extended longer than the life of the grantor. The question is, however, under the language of the instrument, and the conditions as presented, does the instrument mean “forever,” limiting the use of the word to the longest time which, under the law, performance could have been exacted? The deed does not in terms stipulate that the premises shall be a permanent site for free school purposes, nor use language of an indefinite duration for the establishment of the premises for the use of the school indicating the longest length of time' the law would permit. It does not say that the use for free school purposes shall be for all time; to some extent you have to imply such an extended and indetermine continuance of the performance by the grantee. The deed merely says that the premises shall be used for “free school purposes,” and that the grantee shall erect a suitable schoolhouse thereon, “or the premises shall revert” to the grantors. The reasoning of the Supreme Court of Massachusetts in Bradstreet v. Clark, 21 Pick. (Mass.) 389 (particularly on pages 396, 397), applies the same strict rule as to the performance of the condition against the grantor to prevent the forfeiture as applied by the courts to the verbiage of instruments to prevent the same result. That case (requiring a devisee to pay certain legacies, otherwise the estate was to revert) was one, literally speaking, where performance was excused to the devisee, because the proper demand for the payment of the legacy was not made of him. There was a demand, but the court, in applying the general rule of construction, required “greater precision and more perfect accuracy in a demand” in that character of case than would probably have been applied in other matters. The court resolved supervening conditions against the beneficiary of the forfeiture, and in favor of the party who was to perform, and whose estate was subject to defeasance.

Where property was conveyed to school directors and their successors for a site for a schoolhouse and church, with a reservation that the same should revert in case its use for such purpose was abandoned, proof that the building constructed thereon had been neglected to such an extent that it was in a very dilapidated condition, and that shortly prior to. the filing of the bill school was not taught in the building, because of the erection of a more commodious building in another place, its use being continued, however, for church purposes, was insufficient to show an abandonment. Humphreys County Board of Education v. Baker, 124 Tenn. 39, 134 S. W. 863.

The Supreme Court of Tennessee refused to separate the conditions, and reasoned that, as the conveyance was made to the school directors for a site for both a schoolhouse and a church, the use of the property would have to be abandoned, not only for the purpose of a schoolhouse, but also for the purpose of a church.

The case of Maddox v. Adair, 66 S. W. 812 (writ of error denied), is a little difficult to understand upon analysis as to the real basis of the opinion, except that it is certain that the stipulation in the deed for the maintenance of a “first-class seminary of learning” upon the land conveyed was held to mean ordinary schools and academies, as well as colleges and ■universities. In that case, as here, the consideration to the grantor was the enhancement in value of his property. He had no interest in having the school maintained for any other purpose. The court said:

“Under these circumstances, the only reasonable inferences to be drawn from the use of the word ‘maintenance’ is that the school should be maintained until he had realized his expected profits. When he sold his adjacent lots he ceased to be concerned in the continuance of the school, and the purpose of the condition was accomplished. This construction is also in harmony with the language of the condition: ‘The establishment and maintenance of a first-class seminary of learning.’ Maddox might have required the maintenance of the school permanently, or for a term of years, or until the happening of a particular event, but he did not. He simply provided for the ‘maintenance’ of the school, and such a provision does not necessarily mean that it should be maintained perpetually. To give to this provision such a forced construction and compel a forfeiture is contrary to the policy of the law and the apparent intention of the parties.”

While iu that cause (one of condition subsequent) the grantor had parted with his remaining interests, and in this case the same party has retained her property, there, as here, the grantor had reaped the reward, in so far as enhancement was concerned, according to the findings of the court, and here the grantor, if there has been a depreciation, aside from a general condition of depression, has partially contributed by her action in permitting the surrounding property to become started as a negro community, which was a matter wholly within her own control. Presumptively, to sustain the judgment of the court, we conclude that the discontinuance of a school in the Building (especially when a more pretentious school building had been erected near the same property) did not injure in the slightest the value of the grantor’s holdings, or that a continuance of the same condition would in the future affect the value of said property in any manner.

The case of Railway Co. v. Barbour, 89 Ind. 375, is more nearly in point. The grantor conveyed lands “expressly for the use and purpose of depot grounds” for the railroad; and, if there should be a failure to erect buildings and occupy for that purpose, the land should revert to the grantors. The court said:

“The appellants * * * deny the perpetuity of the condition. They claim that the erection of the buildings and the occupancy of the lot for depot purposes, in a reasonable time after the execution of the deed, and the continued possession thereof for such purposes for 30 years, avoided the condition and made the estate absolute. * * * It may be presumed that when the conveyance was made the grantors owned other contiguous real estate, the value of which they supposed would be increased by the occupancy of the lot conveyed as depot grounds. * * * The point, of course, to be arrived at in every case, is to ascertain-the intention of the parties. And we may suppose in this case, from the language of the deed and the súr-rounding circumstances of the transaction, so far as they are disclosed in the complaint, that, the grantors’ object in the conveyance was satisfied in the occupancy of the premises by the railroad for depot purposes for a period of time nearly equal in duration to the average of human life. * * * The condition of the grant in the present case was, in effect, that the grantee should locate and occupy the lots as depot grounds. No time was mentioned, and the language does not, strictly construed, mean perpetuity. We think SO years’ occupancy of the lots as depot grounds was a substantial compliance with the condition.”

The following cases, while not in point, as involving conditions subsequent, are profitable, however, in certain portions of the same as bearing upon the interpretation of contracts as to the meaning of same, involving the permanent or continued maintenance for all lime of the particular sites or the structures embraced in the instruments. Sumner v. Darnell, 128 Ind. 38, 27 N. E. 162, 13 L. R. A. 175; Fuquay v. Trustees (Ky.) 58 S. W. 814; Texas & Pacific By. Co. v. City of Marshall, 136 U. S. 893, 10 Sup. Ct. 846, 34 L. Ed. 387; Newton v. Mohaning County, 100 U. S. 548, 25 L. Ed. 712; Mead v. Ballard, 7 Wall. 290, 19 L. Ed. 190.

Appellant cites the cases of Stewart v. Blain, 159 S. W. 928; McBride v. Farmers’ & Merchants’ Gin Co., 152 S. W. 1135; and Norris v. Coffman, 95 S. W. 1088. The two first eases were treated as conditional limitations, and the Stewart-Blain Case was clearly of that character; and, whatever may be said as to the reasons for the technical difference between conditional limitations and conditions subsequent, the common-law distinctions clearly exist and the divergence of rights clearly ensues from the creation of the different conditions, and are distinctly recognized in this state. Wiederanders v. State, 64 Tex. 133; Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382. The conditional limitation marks the utmost time for" the continuance of the estate, and the same reverts eo instante. The condition subsequent designates an event or happening which, if it takes place within the period mentioned, or within the time clearly implied will defeat the estate, provided the grantor, or his heirs if mentioned, manifest certain acts. ,“A stranger may take advantage of a limitation.” 2 Dev. Deeds (3d Ed.) § 974, p. 1823, and cases cited. The estate ceases perforce of the limitation upon the same. The Norris-Coffman Case, supra, was one practically of immediate breach by the grantee, and almost immediate assertion by the grantor, under the contract, and has no just application to the instant case. The cases cited are also distinguished upon the facts from this record, properly weighed.

The trial court also found that at various times after the school in the building was discontinued the members of the school board having charge of the public schools discussed plans for the utilization of the building for the benefit of certain classes of older children to be taught and educated, and that they expect to use said building as a means for providing for this class of mature children who, for one reason or another, should not mingle or fraternize with children of a tender and susceptible age, and found that it was not the intention of the school board to abandon the premises for school purposes, and that the suspension of the use of the building is purely temporary. The class of children more particularly referred to is one comprehending those of an age who on account of their deficiencies, cannot be graded in the public schools except with much younger children, and another comprehending children of an incorrigible nature, who should be separated from other children. The court again found that at one time during the period of a suspension, when the Ft. Worth High School had been destroyed by fire, it was determined by the board of school trustees to use the building as a high school building, and to that end repairs were made upon the building; but later, because of its remoteness to other parts of the city, another building was selected in lieu thereof.

The case of Town of East Greenwich v. Gimmons, 34 K. I. 526, 84 Atl. 1008, discloses that school was held in a district schoolhouse located on land, the title to which was conveyed to the inhabitants of the district, and in June, 1902, it was voted to unite this school with that of another district, and that the children should be sent to such other district, after which time no school was kept in the schoolhouse of the old district, but the keys were retained by the town treasurer, and the books and paraphernalia were left in the schoolhouse, when in 1910 it was voted to reopen the abandoned schoolhouse, and a carpenter was employed to make necessary repairs. The grantor’s assignee through his agent had taken possession of the property, and the repairs could not be made. Held that there was no abandonment of the property by the township for school purposes, so that it did not revert to the heirs of the grantor under a deed conveying the property to the inhabitants of the district so long as it should be used for school purposes. The facts of that case are quite similar on the issue of abandonment, except that the action of the school trustees was probably more definite in that case as to the future use of the building. While, as stated, we are unable to ascertain definitely the interim, except to say that it was several months between the discontinuance of the school and the institution of appellant’s suit, claiming forfeiture, still the comparatively short length of time, measuring this interim, should have some bearing. We presume that the discussion between the members of the school board of Superintendent Cantwell’s suggestions, relative to a reopening of the building for the school purposes indicated by the findings of the court, extended at different times over a period from tlie time of the discontinuance of the school in the old building to some period after the institution of this suit. We are not able to say just when the school board repaired the building for use for high school purposes (occasioned by the destruction by fire of the city’s school building), but we assume this was done previous to the institution of this suit; the trustees would not probably have expended money on a building involved in a court controversy. The action of the board in repairing the building for the purpose of conducting the high school therein was definite as corroborative of their intention to hold the building, though the same, on account of its inaccessibility, was not used. The intentions of the board for a resumption of the property for school purposes, it is true, have never been developed into positive and definite action on its part. It is inferable that, if the board had the funds to have appropriated for, the school purposes planned by Superintendent Cant-well, the board’s action to that end would have been definite, unless, of course, deterred by the legal controversy over the property. The probative value in appellant’s favor on account of the claimed indefiniteness of action by the board to consummate the purposes desired is weakened to some extent by the thought, if an effort were made to obtain the money, and any resolution had been definitely passed for the purpose (regarding this board as business men), it would have been unavailing with the title involved in litigation. The burden is upon the appellant to show abandonment. Upon the development of the whole case at its close we are not prepared to say, in this condition of the record, that this burden has been wholly discharged, and that this record, as an undisputed issue, shows abandonment.

We think upon the whole that the judgment of the lower court should be affirmed; and it is so ordered.
      <§^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    PHILIP A. RYAN LUMBER CO. v. BALL.
    (No. 5481.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 12, 1915.
    Rehearing Denied June 9, 1916.)
    1.Dogs and Logging @=33 — Sale of Timbee —Breach of Contract — Waives of Provision — Question fob JTury.
    Where, in an action for breach of a contract to sell timber, providing the seller notified the buyer on or before a certain date that he had secured a right of way on which to construct a railroad by which the timber could be transported, the evidence was such that reasonable minds might differ as to whether the time in which the notice was to be given had been waived and the contract continued in force with that provision eliminated, such question was for the jury.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. @=33.]
    2. Brokers @=>3'8 — Dual Employment — Question for Jury.
    Where, in such case, the evidence was conflicting on defendant’s contention that plaintiff had secretly employed his agent and paid him a commission, thereby rendering the contract void, such issue was for the jury.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 31-36; Dec. Dig. @=>3S.]
    3. Principal and Agent <@=314 — Existence of Agency — Payment of Expenses — Sale of Timber.
    That the buyer under a contract for the sale of timber, which involved the procurement of a railroad right of way, by the seller, paid the expenses of the seller’s agent in getting the right of way, did not make him the buyer’s agent.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. <@=> 14.]
    4. Brokers <@=j7 — Existence of Agency-Statement of Owner.
    Where the owner of timber stated, in response to C.’s request that he submit through him price on the timber, that he would not do so and would give no option, but that if C. found any one who wanted the timber and was able to buy it he would trade on almost any fair proposition, this did not make C. the owner’s agent for the sale of the timber.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 5-8; Dec. Dig. <@=>7.]
    6.Logs and Logging <@=33 — Sale of Timber —Breach of Contract — Waiver of Condition — Submission of Issues.
    Where, in an action for breach of a contract to sell timber providing the seller notified the buyer on or before a certain date that he had (secured a right of way on which to construct a railroad by which the timber could be transported, the evidence was conflicting on whether the parties by mutual agreement had extended the time for notice and on whether the seller gave such notice, it was error to refuse instructions in which such issues were submitted to the jury.
    [Ed. Note. — Eor other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <@=33.]
    6. Logs and Logging <@=33 — Sale of Timber —Repudiation of Contract.
    A statement by the buyer that it would expect indemnification against lawsuits affecting a part of the land on which the timber bought was located, and that it was losing money every day waiting for a railroad to be built by the seller, and an inquiry as to how long it would be until the road was completed, did not constitute a repudiation of the contract; a mere intimation that a contract may be repudiated, when unaccepted by the other party, not operating to avoid the contract.
    [Ed. Note. — Eor other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <@=>3.]
    7. Corporations <@=3642 — Foreign Corporation-Doing Business in State — Timber Contract.
    Vernon’s Say les’ Ann. Civ. St. 1914, arts. 1314, 1318, requiring that foreign corporations secure permits before doing business within the state, does not prevent a foreign corporation which has not procured a permit from contracting to buy timber located in the state, in contemplation of doing business in the state.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. <@=3642.]
    8. Logs and Logging <@=33 — Sale of Timber —Validity of Contract — Description.
    A contract for the sale of timber on a “certain tract of land” in a county named, “containing 12,000 to 15,000 acres of timber land east of Trinity river,” was not so indefinite in description as to be void, where a map attached to it, as shown by the evidence, accurately and fully defined the boundaries.
    [Ed. Note. — For other cases, see Logs and Logging, Cent Dig. §§ 6-12; Dec. Dig. @=>3.]
    9. Frauds, Statute of @=>72 — Interest in Land — Sale of Growing Timber.
    Where a contract for the sale of growing timber stated that it was not a lease, and that the owner retained absolute control of the land and a railroad to be built over it, giving the buyer a mere right to go on the land and cut and remove the timber, it was a contract for the sale of chattels and not a contract to convey an interest in the land, within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 116-118, 146; Dec. Dig. @=372.]
    10. Frauds, Statute of @=>49 — Operation-Contract.
    A contract which may or may not be performed within one year does not fall within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 74; Dec. Dig. @=>49.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Action by the Philip A. Ryan Lumber Company against P. D. C. Ball. From judgment for defendant on instructed verdict, plaintiff appeals.
    Reversed and remanded.
    R. E. King, of Memphis, Tenn., and Thos. B. Greenwood, of Palestine, for appellant. Lyon & Swarts, of St. Louis, Mo., and Morris & Sims, of Palestine, for appellee.
   CARL, J.

Appellant, Philip A. Ryan Lumber Company, a Tennessee corporation, sued appellee, P. D. C. Ball, who resides in St. Louis, Mo., to recover $66,500 damages by reason of an alleged breach of contract on part of appellee to sell appellant the timber on 12,000 to 15,000 acres of land on the Trinity river in Anderson and Freestone counties, Tex. An attachment was sued out and levied on appellee’s lands, and a foreclosure of the lien thereby created was sought to be procured. The contract was executed in St. Louis, on March 20, 1912, and signed by the lumber company, by Philip A. Ryan, president, and by P. D. C. Ball in proper person. To this contract was attached a map of the land, showing also the proposed route of the railway to be constructed. The portions of that contract necessary to a discussion of the issues in this ease are as follows:

“The vendor agrees to use his best efforts to obtain a right of way for a railroad from the southern terminus of the proposed railroad on the vendor’s land, shown on the map hereto attached, to the north end of what is known as the ‘Salt Works Spur’ on the International & Great Northern Railway, a distance of approximately six (6) miles, together with a connection with said railway at said Salt Works Spur, by which the lumber cut and carried from the said vendor’s land may be transported to and conveyed over the International & Great Northern Railroad. It is understood and agreed that the obligations of the vendor and purchaser herein assumed shall only be imposed upon them respectively in the event that said vendor notifies the purchaser on or before the 15th day of April, 1912, that he has secured said right of way and connection.
“Immediately upon giving said notice to the purchaser, the vendor agrees with all reasonable diligence to commence the construction of a railroad at said north end of said Salt Works Spur and continue the construction of said railroad to the south terminus of the proposed road on the vendor’s land shown on the plat hereto attached, and from then on under the terms hereof continue the construction of said road as indicated on said plat.
“It is understood and agreed that the line of the proposed railroad shown on the map hereto attached is not absolute, but is intended, so far as it can, to indicate the line of the proposed road, it being understood that the vendor in building said road through his land shall have the right to divert the line of construction so as to avoid swamps or other places involving difficulties or large expense of construction.
“It is understood that the vendor in building said railroad through his land shall be under obligation only to build said railroad from time to time a distance of one (1) mile ahead of the timber from time to time being cut by the purchaser.
“It is understood and agreed that the railroad shall be constructed at the expense of the vendor, shall be of standard gauge, using a rail of not less than fifty-six (56) pounds, and shall be built in the manner adapted to the purpose of this contract. * * *
“The purchaser hereby agrees to cut, during each year of the term of this contract, not less than ten million (10,000,000) feet, log scale, per year, and shall pay the vendor therefor at the rate of two dollars ($2.00) per thousand feet, log scale, for all oak and ash timber cut, and one dollar ($1.00) per thousand feet, log scale, for all cottonwood and elm timber cut. The vendor agrees to cut all oak, ash, cottonwood and elm timber on said land which is ten (10) inches or more in diameter, sixteen (16) feet from the stump. The vendor (purchaser) has no right to cut any timber other than that just herein enumerated and described.
“The obligation of the purchaser to pay for such timber is in no way conditioned upon the purchaser’s removal of the same, but the obligation attaches as soon as and when the timber is cut.
“The obligation of the purchaser to cut the timber shall begin as soon as the vendor has constructed a mile of said railroad within the vendor’s land; and the purchaser’s obligation to cut the amount of timber herein agreed upon shall only begin to run from said time. Dro-vided, however, and it is understood, that the purchaser may, at his option, commence to cut timber prior to such time, in which event, the obligation shall begin to run from said time.”

The road was to remain Ball’s property; but, by the contract, the lumber company was given the right to use same, furnishing its own equipment, and also to have right of ingress and egress to and from and over the land for the purpose of cutting, milling, and shipping the lumber from the timber, and appellee was to* be relieved from liability for accidents by reason of appellant operating the railroad. In the paragraph describing the kind of timber to be cut, the word, “vendor” was written for “purchaser.”

The petition charges that on April 11,1912, and on April 15, 1912, the plaintiff and defendant, by mutual consent, agreed to abandon, renounce, and relinquish the clause and term of the written contract to the effect that the obligations thereby assumed and created should be imposed upon the parties respectively only in the event that the defendant notified plaintiff before April 15, 1912, that he had secured the right. of way for said railroad from the Salt Works Spur to defendant’s land, and a connection at said spur, with the International & Great .Northern Railroad, and that thereupon both parties became bound by their respective obligations under the contract according to its terms, with said waived clause eliminated. It is also pleaded that on said dates the defendant agreed with plaintiff in writing to waive said clause. And it is further pleaded that on or about May 28, 1912, and May 30, 1912, the defendant did secure such right of way from said Salt Works Spur to the southern terminus of the proposed railroad, together with connection with the International & Great Northern Railroad, and on or about said dates the defendant notified and advised the plaintiff that he had secured said right of way and railroad connection. It is alleged that the time to secure said right of way and railway connection had been, by mutual consent, extended to May 28th, May 29th, and May 30th, and even until July 6, 1912.

The defendant pleaded in abatement of the suit the fact that the plaintiff was a foreign corporation and had not secured a permit to do business in Texas, which the court overruled, as well as special exception to the same effect, and one invoking the statutes of frauds. And an exception, No. 15, was sustained against plaintiff’s right to recover $5,000 paid one Craig by plaintiff as commissions. Defendant joined issue on the material allegations, and specially pleaded that plaintiff had employed Craig, who was defendant’s agent and paid him $5,000 commission; that defendant was in ignorance of the fact that Craig was so acting as plaintiff’s agent also at the time the contract was entered into; and that therefore said contract was null and void.

In its replication, plaintiff denied that it had repudiated the contract or refused to go forward with same; and denied any collusion with Craig, and set out that Craig, who was highly recommended to the company, represented that he and appellee had up a colonization scheme by which they were to sell out and colonize about 52,000 acres of lands belonging to appellee, for a commission which would amount to several dollars per acre, and that Ball would have to sell the timber before the land could be colonized, and that Ball would pay no commission for selling the timber. Therefore Craig represented that whoever bought the timber would have to pay the commission, and thereupon appellant agreed to pay the commission of $5,000 in the event of the purchase by appellant of such timber, and that plaintiff had no knowledge that defendant was not fully advised as to the agreement between appellant and Craig as to the commission,' and that, after full knowledge concerning the commission arrangement, defendant ratified and acquiesced in the contract of sale of the timber. It was also pleaded that the defendant made the contract for himself in person and not by an agent, and that, regardless of any action of Craig’s, same was a binding contract on defendant’s part.

A jury was impaneled to try the cause; but, after the plaintiff had closed, the court instructed a verdict for the defendant, and the lumber company has appealed. So it becomes necessary that we inquire as to whether there was evidence about which reasonable minds might differ on the question as to waiver of the time limit on notice to be given provided in the contract.

The evidence upon which the appellant relies, as showing an extension of the contract and modification by agreement as to the time in which notice was to be given that the railway right of way and connection had been secured as provided in the contract, consists largely of letters and telegrams passing between Philip A. Ryan, president of the lumber company, and appellee Ball; and between Craig, the agent, and Hall, the representative, of P. D. C. Ball at Palestine, Tex.

E. H. Craig, of Columbus, Ohio, sent out a letter on February 21, 1912, to ■ Philip A. Ryan Lumber Company, among others, calling attention to the timber lands of appellee in Texas. On February 19, 1912, two days prior to sending out said letter, Craig addressed a communication to appellee Ball inquiring as to whether he would care to submit prospective purchasers “a price on this timber, through me,” and Ball replied thereto, on February 22, 1912, as follows:

“When you find anybody that really wants the timber and has the money or credit to buy it, I will trade on almost any fair proposition. I will not, however, give any one an option on the land or timber. I am so exceedingly busy at present on the Littie Rock work, that have not much time to think of this matter. Suggest that you line up your lumbermen and any people that you think want to buy Texas land and when you get everything in shape, come over and present what you have to oilier. I will be ready to do business on any reasonable basis.”

As a result of much other correspondence, and personal inspection of the timber by Ryan and his timber expert, Lewis, the contract, a part of which is set out above, was made. The attorney for the lumber company at Memphis drew a contract which Ryan took with him when he went to St. Louis to close with Ball. The form prepared, however, did not meet Ball’s approval, and he had his own attorney draw the one which was signed by Ball in person and by Ryan for the lumber company, and a $500 earnest part payment check was delivered to Ball.

Subsequent to the signing of the contract, on account of floods, and some difficulty in obtaining the right of way for the railway and connection with the International & Great Northern Railroad, it was seen that Ball would not be able to get the right of way and connection by the 15th of April. Thereupon began the correspondence and interviews which it is alleged resulted in a waiver of that provision of the contract relative to the notice that the right of way was obtained by April 15th. There were a number of letters and telegrams passing among the various parties, but we give here only those bearing immediately upon what it is contended show a waiver of the time for notice as to the right of way.

On April 4, 1912, in answer to appellant, Ball stated that he was sorry he had been able to' do little or nothing towards getting the railroad from the salt mines to the timber; that he and Freeman, receiver of the International & Great Northern Railway Company, had failed to get together; that continuous rains had interfered with securing a right of way, but promised to keep working on it to the best of his ability.

On the same day, Ball wrote to Hall, his agent at Palestine, and, among other things, said:

“Mr. Ryan is getting anxious, but it cannot he helped. Can’t do much with high water. So he will have to wait or cancel his contract.”

On April 8, 1912, Mr. Ryan wrote Mr. Ball, saying:

“What I am most anxious to know is that you have secured the right of way from the salt mines into the timber. * ® * Secure the right of way and wire me you have secured it, then I know what to do and can make my plans to move to, Texas. * * * The weather and water may ’delay your building the road but this will be O. K., as I know if right of way is secured the road is assured, within a reasonable time.”

And on April 11, 1912, Ball wrote to Craig that Mr. Ryan could suit himself about getting out of the deal; that there would be no way to get the road in before April 15th, and, “if Mr. Ryan does not want to extend his contract, he will have to get off; and considering, additionally to your expenses, I had to pay that lawyer $100.00, you can see that I am not particular about losing it, but no use going into an expenditure on the R. R. until I know where I am at.”

On April 11, 1912, Ball, in reply to Ryan’s letter of April Sth, said:

“1 have your favor of the 8th inst. upon my return home. Also a letter from Mr. Hall and President Freeman of the I. & G. N., who is in New York. Mr. Freeman states that owing to the flooded condition of the country and their many troubles at Memphis and south, he will not be able to see me until next week, if then. A letter from Mr. Hall states that the roads have been impassable, so much rain that the surveyors have not been able to locate a satisfactory line and he has been able to do little or nothing. A letter from Mr. Craig tells ms to hurry up, etc.
“The facts are that I propose to try and get this railroad run, into this timber but there is no use trying to do it until it. can be done and as I will have some twenty miles of road to build, possibly thirty, if it only costs $5,000.00 a mile, will take all the receipts from the timber to build same; consequently I do not wish to have it cost any more than necessary. I will get at it just as soon as the weather conditions are such that it can bo done at a reasonable expense and the whole ‘meat of the cocoanut’ is the consent of Mr. Freeman, president of the I. & G. N., to a connection with his road for handling the stuff, so he primarily controls the situation and under the present circumstances, I have been able to do nothing .with him although I have several nice letters and telegrams stating he is sorry, etc. Have started for Now Orleans twice to be telegraphed not to go owing to his leaving.
“Very sorry to hear that the high water has been so bad in your vicinity and sincerely hope you have not lost any timber or property owing to the floods. It now begins to look like the worst of it is over and everything will bo dried out in the course of the next six weeks unless the usual June rise comes in early on top of this rise, in which case am afraid it will be very severe. Hoping you will have enough patience to sit tight and wait until I can accomplish some results, I remain,
“Yours very truly, P. 0. G. Ball.”

On April 15th, Craig wrote to Ball that he was advising Mr. Ryan that the only thing he could do “was to wait until you have time to ‘do things.’ ”

One of the main letters, dated April 15, 1912, in which it is contended that Ryan granted the waiver and extension of time asked in Mr. Ball’s letter of April 11th, is as follows:

_ “Mr. P. D. C. Ball, St. Louis, Mo. — Dear Sir : Your favor of the 11th just received. We have carefully noted all you say, and we know that the conditions are very bad now on account of the flood, consequently we have decided to take on a 'new consignment of patience and sit tight in the boat and wait until the conditions are normal again, and then we feel sure that you will jump into the fight and get results immediately. I-Iad the conditions been normal we would have hollered to beat the band, but no one ever expected the great flood that we have had, and we think in 10 days the conditions will be such that we can get over'the ground and everything will be back to the normal condition.
“Please let me know just as soon as you can, as we know you understand what it is to be in my position. We have a great many things to do just as soon as we have the word from you that the right of way is secured. We trust that you will have Mr. Hall work on the right of way and secure same and the surveys run as quickly as possible, as it will take a lot of hustling on our part to get the equipment ready while you are completing the road. We hope you will be able to catch Mr. Freeman' very soon as he no doubt will be on his line pretty regularly now. We hope to hear from you very soon with a favorable report.
“Very truly yours,
“Philip A. Ryan Lumber Go.”

This correspondence continued, and Ryan at all times urged the pushing of the right of way matter. Ryan says that about May 12, 1912, appellee agreed to pay Craig’s expenses and the hotel bills of Ryan to get them to go down to Texas and assist Hall in obtaining the right of way, and this was done. In none of these letters does Ball repudiate the contract, or do other than show a desire to go forward and treat the contract as being still in force. It is true that in some he says that Ryan can suit himself about getting out of the deal. His agent, Hall, kept Ball informed as to the progress being made on the right of way, and on May 27th wrote Ball that he had secured the right of way, except one man who had a nine-acre strip they would cross. Ball acknowledged this as a “satisfactory letter,” and suggested that Hall take options on contiguous lands so that “we might make a little money on the side.” On May 28th, Ball wired Ryan:

“Hall writes has secured right of way. You can see me St. Louis Thursday and Friday, if desire. Craig here.”

On receipt of this telegram, Ryan went to St. Louis, arriving there on the 30th of May, or 31st. He says Craig was there.

“I saw Ball. Mr. Craig was there. I saw them together at Mr. Ball’s office. We saw Mr. Ball, and he said he had secured the right of way and was going to make arrangements to build the railroad right away and I would get the timber. He also stated, during our trip in St. Louis, that he had written Mr. Grogan for ties, to make ties, and he had negotiations out for rails, and there was absolutely nothing to hinder building the railroad and my getting the timber, and that I could go home and feel absolutely sure that X would get the timber, and could soon move down to Texas and start to cutting the timber. After the conversation I mentioned was had with Mr. Ball in St. Louis, I paid Mr. Craig this commission,” etc.

Considering these letters and telegrams, together with others not set out here, and the oral testimony given upon the trial, we think that undoubtedly the evidence is of such a nature that reasonable minds might honestly differ as to the waiver of the time in which notice was to be given and as to whether it was the intention of the parties to continue the contract in force, that clause eliminated. This being true, the jury should have been permitted to pass upon the case.

The matter of whether Craig was Ball’s agent or a middleman should have gone to the jury. Ball had denied that he was such agent, while some of the evidence tended to show that he was such agent. It is contended by appellee that the time Ball had reference to, when he said Craig was not his agent, was subsequent to the time the contract is claimed to have expired; but appellant just as vigorously’ asserts that Ball had reference to the time leading up to the alleged breach of the contract. This of itself was sufficient to take that question to the jury. Nor is it conclusive as to Craig’s agency that Ball paid his expenses to Texas to assist Hall in getting the right of way. It will be recalled that he also paid part of Ryan’s expenses on the same trip and to assist in the same work Craig came here to do. And yet would it be contended that Ryan was Ball’s agent? He might be in obtaining the right of way, but it would scarcely be asserted that either was agent in any other capacity by reason of that fact. It not infrequently happens, as is known of all men, that a man will pay another’s expenses to get him to look at property he proposes to sell that man, as an inducement to make the sale. Possibly the prospective purchaser would not otherwise care to go to the expense of inspection. And yet that would not make him the agent of the owner in any sense of the word.

These questions should have been left to the jury, as well as the further question as to whether Craig was a middleman.

It is doubtful if there is any evidence to show Craig to have been Ball’s agent for the sale of the timber, for he had refused to even give Craig a price or to place the property with him. All he would do was to tell Craig to get his purchaser and bring him to him, and he (Ball) would consider the proposition with him. He never gave Craig any authority whatsoever to bind him in- any respect. He was not even quoled a price. If Craig had sued Ball for a commission on this timber sale, could he not properly have answered that he had never made him his agent, had given him no right to sell the property or to quote any price, but, on the contrary, had told him to bring his purchasers to him, when he would deal for himself? The mere fact that Craig and Ball had an arrangement for- the colonization of the land after the timber should be removed did not of itself clothe Craig with the powers of agency in regard to the sale of the timber. If these facts would constitute agency, then every man who submits an offer for property, even without any intimation that he was to become such, could, with equal propriety, assert that he was the agent of the seller and claim a commission for the sale if the owner saw fit to accept .such proposition. This is probably what Bail was guarding against, for he says, in substance: Get your parties and bring them to me. I will do business with them if we can arrange terms. This kind of proposition is open to the world, but I will make my own terms and act for myself. So far as the written evidence is concerned, no agency whatsoever in regard to the sale of the timber is shown; but, in view of the oral testimony given, we have thought that that question should have been submitted to the jury.

Touching on the question of the employment of agents, Chief Justice Gaines said, in Dunn v. Price, 87 Tex. 321, 28 S. W. 682:

“There was no express promise to pay anything in this case, nor do we think that one can be clearly implied from the language used. If one requests another to perform a service for him, the law will ordinarily imply a promise to compensate him for the work. But, when one having property to sell tells a broker that if he will bring him a purchaser he will sell at a certain price, it is by no means certain that he intends to imply a promise to pay a commission. The broker may get his compensation from the purchaser. In this case the defendant did not authorize the plaintiff to sell his property, nor did he employ him to sell it. He merely said to him, in effect, that if he would bring him a purchaser he would show him that he would sell for the sum of $30,000. Can it be said that it is clear that the defendant did not expect him to get his compensation from the purchaser whom'he might procure? That such was his intention (if indeed his language was anything more than mere idle banter) is shown by the fact that his language was that he would take $30,000 for the property, and that there is not an expression in it to indicate that he was "willing to take that sum less a commission for selling. This conclusion is strengthened by the further fact that he had previously declined to employ the plaintiff to make the sale.”

And in Pipkin v. Horne, 68 S. W. 1000, it is said:

“A real estate agent is entitled to commissions only when he brings the parties t9gether by virtue of a contract made with him by one or both of the parties, by virtue of which they become liable to him by reason of some express or implied promise to pay commissions. Simply bringing the parties together, in the absence of some contract by which they would be liable to him, does not necessarily make them liable to him for commissions.”

Speaking of a dual agency, the court said, in T. A. Hill & Son v. Patton & Schwartz, 160 S. W. 1157:

“The above principle of law is applicable only to cases of agency in which the agent is clothed with some discretion in the matter of advising or negotiating, in fixing or agreeing to the price, or has the power to bind his principal by contract in reference to the property in question. It is not true that every ordinary real estate broker with whom land is listed for. sale occupies the position of trust and confidence, upon whom rests the duty to obtain the highest price obtainable for his principal’s land.”

This case cites many authorities as sustaining the doctrine announced.

Bear in mind that Craig had asked Ball to submit “a price on this timber, through me.” This Ball declined to do, saying:

“When you find anybody that really wants the timber and has the money or credit to buy it, I will trade on almost any fair proposition. I will not, however, give any one an option on the land or timber.”

The court should have given plaintiff’s requested charges Nos. 1 and 2 and No. 2a. The first two charges are as follows:

“No. 1. Do you find, from the preponderance of the evidence, that plaintiff and defendant mutually agreed that the time for notice by defendant to plaintiff that the defendant had secured the railroad right of way and connection was extended until May 30, 1912?
“No. 2. Do you find from the preponderance of the evidence that on or about May 28, 1912, the defendant notified plaintiff that he had secured the railroad right of way and connection?”

No. 2a was the same as No. 2, except that May 30th was substituted instead of May 28th.

If the contract was closed, as amended May 28th or May 30th, then the evidence is insufficient to show that plaintiff subsequently repudiated the same, or to take that question to the jury. A mere intimation that it might be repudiated, unaccepted by the other party, would not avoid the contract. The letter appellant wrote appellee on June 11, 1912, does not repudiate the contract, but merely states that the company would expect indemnification against some lawsuits pertaining to a part of the land before erecting the mills; and the next day wrote appellee that it was losing money every day, waiting for the road to be built, and asking how long it would be until it would be completed. In all their subsequent correspondence by letter and by wire during June, no repudiation by either party is shown; but, on the contrary, both sides indicate a desire to go forward with the matter. YVe do not think this was a question for the jury, and the seventh assignment is overruled.

It follows from what has been said that the amount of damages should have been submitted to the jury, and also as to whether the defendant refused to commence and continue the construction of the railroad with reasonable diligence.

The appellee has filed cross-assignments, the first four of which raise in different forms the question that the plaintiff below is a foreign corporation and had not obtained a permit to do business in Texas at the time of this transaction. This was raised by plea of privilege, plea in abatement, by plea in bar of the right of recovery after the evidence was all in and the court withdrew the matter from the jury and overruled said pleas, and lastly in overruling a special exception to the same effect. This contract was not made in Texas, neither party lived in this state, and the breach of the contract, if there was one, on part of the defendant, put it out of the power of the appellant even to do business here in so far as that particular proposition is concerned. It is not unlawful for a foreign corporation to contract in regard to buying property in Texas, in contemplation of doing business in this state; for, if such preliminary matters as are necessary to begin any large business could not be the subject of a contract by a foreign corporation, such as arrangement for building sites, etc., it could not place itself in a position to know whether it could do business here. The purpose of this corporation was to cut the timber, manufacture and sell the lumber. So the contract for the purchase of the timber was not carrying on the proposed business. It is true that it would have to obtain a permit before it could carry on that business ; but the risk of obtaining a permit was one it had the right to assume when it made the contract. It had the right to assume that, if it complied with our laws and applied for a permit when it got ready to do business, that permit would be granted because the purpose was a lawful one. It had not at that time done any business in Texas, and it had a right to make the contract it is alleged was made. Articles 1314, 1318, Vernon’s Sayles’ Texas Civil Statutes; Security Co. v. National Bank, 93 Tex. 579 to 582, 57 S. W. 22; Lake View Co. v. S. A. Traction Co., 95 Tex. 258, 66 S. W. 766; Jackson Woolen Mills v. Moore, 154 S. W. 644; Western Supply Co. v. Trust Co., 41 Tex. Civ. App. 485, 92 S. W. 986; Whitley v. Electric Co., 18 Tex. Civ. App. 674, 45 S. W. 959; Hogan v. City of St. Louis, 176 Mo. 149, 75 S. W. 604 to 606; Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 612 to 615, 23 Sup. Ct. 206, 47 L. Ed. 328; 19 Cyc. 1271; Land & Mortgage Co. v. Worsham, 76 Tex. 559, 13 S. W. 384; Kingman Texas Imp. Co. v. Borders, 156 S. W. 617; A. Leschen & Sons Rope Co. v. Moser, 159 S. W. 1025; Skidmore Drug Co. v. American Mfg. Co., 170 S. W. 128. These assignments are overruled.

The fifth cross-assignment asserts that the contract involved an interest in the land and the description was so indefinite and uncertain as to render such description void.

In addition to what we have set out of the contract, the first paragraph of that instrument reads:

“Whereas, P. D. C. Ball, of the city of St. Louis, Mo., hereinafter called vendor, is the owner of a certain tract of land in Anderson county, Tex., containing twelve thousand to fifteen thousand acres of timber land east of Trinity river, and desires to séll the timber hereinafter described and on said land under the terms hereinafter described and on said land under the terms hereinafter provided.”

The plaintiffs set out a full description which the evidence shows coincides with the outline given by the map attached to the contract, and accurately defined the boundaries. The map referred to shows who made it and gives a scale. It also shows to whom the land belonged and where he lived. It shows public roads, the river, creeks, etc., as well as the line of the proposed railroad. Our courts have repeatedly held that that is sufficiently certain which can be made certain from facts furnished. The main question is as to whether there is sufficient basis for identification, and not that the utmost certainty should exist. Wethered v. Boon, 17 Tex. 143; Hines v. Perry, 25 Tex. 443; Traylor v. Townsend, 61 Tex. 144; Skov v. Coffin, 137 S. W. 450; Beaton v. Fussell, 166 S. W. 458, and cases cited; Spaulding v. Smith, 169 S. W. 629; Macmanus v. Orkney, 91 Tex. 33, 40 S. W. 715; M., K. & T. Ry. Co. v. Carter, 95 Tex. 476, 68 S. W. 159; Hermann v. Likens, 90 Tex. 455, 39 S. W. 282; Porter v. Memphis Land Co., 159 S. W. 498; Morrison v. Dailey (Sup.) 6 S. W. 427; Watson v. Baker, 71 Tex. 739, 9 S. W. 867. The assignment is overruled.

It has been held repeatedly in this state that a sale of growing timber, which the contract contemplates is to bo cut and taken away within a certain time or a reasonable time, is a sale of chattels and does not convey an interest in the land. This contract shows upon its face that no interest in the land is conveyed. It expressly states that it is not a lease and the owner retains absolute control of the land and the railroad to be built, only giving appellant the right to go there to cut and remove the timber. And a contract which may or may not be performed within one year does not fall within the statute of frauds. Davis v. Conn., 80 Tex. 276, 16 S. W. 39 to 42; Houston Oil Co. v. Boykin, 153 S. W. 1176; Carter v. Clark & Boice Lbr. Co., 149 S. W. 278; North Texas Lumber Co. v. McWhorter, 156 S. W. 1152; Montgomery County Devel. Co. v. Miller-Vidor Lumber Co., 139 S. W. 1015; Thouvenin v. Lea, 26 Tex. 615; City of Tyler v. Railway, 99 Tex. 497, 91 S. W. 1, 13 Ann. Cas. 911.

The judgment of the trial court is reversed, and the cause is remanded for new trial.
      @=3lTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    JOHNSON v. STATE.
    (No. 3565.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    1. Indictment and Information <&wkey;125 — Grounds for Quashing — Duplicity.
    An indictment charging, in a single count, the commission of a misdemeanor, in violation .of Pen. Code 1911, art. 229, making it unlawful to knowingly become the agent of another to obtain a poll tax receipt or give another money to induce him to pay his poll tax, and also the commission of a felony in violation of article 233, prohibiting the payment or procuring of another to pay poll taxes for a citizen, is duplicitous and should be quashed.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig'. §§ 334-100'; Dec. Dig. <&wkey;>125.]
    2. Criminal Daw &wkey;>27, 87 — Felony or Misdemeanor — Jurisdiction — Payment of Poll Tax.
    Since an indictment charging that defendant “did * * * unlawfully become the agent of P. for * * * obtaining the receipt for the said P. for poll tax, * * * and as said agent * * * did unlawfully pay * * * the poll tax, * * * and did * * * obtain the receipt for such poll tax,” charged defendant with a felony under Pen. Code 1911, art. 233, the county court was without jurisdiction.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 29-31, 126; Dec. Dig. &wkey; 27, 87.]
    Appeal from Palo Pinto County Court; J. T. Ranspot, Judge.
    Ira Johnson was convicted of violating the law relating to the payment of poll taxes, and appeals.
    Reversed and remanded.
    Moyers & Creighton, of Mineral Wells, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment, omitting formal parts, alleges:

That appellant “did then and there unlawfully become the agent of J. F. Pointer for the purpose of obtaining the receipt for the said J. F. Pointer for poll tax for the state of Texas and county of Palo Pinto due by said J. F. Pointer to the said state and county for the year 1913, and as said agent the said Ira Johnson did unlawfully pay the tax collector of Palo Pinto county, state of Texas, the poll tax due by the said J. F. Pointer to the state and county aforesaid for the year 1913, and did then and there and thereby obtain the receipt for said poll tax for the said J. F. Pointer, against the peace and dignity of the state.”

This case was tried in the county court. Various objections are urged to the indictment, principally that it charges a misdemeanor and a felony in the same count, which makes it duplicitous. If it only intended to charge appellant with knowingly becoming the agent of Pointer to obtain a poll tax receipt or certificate of exemption, or if it charged that he gave money to Pointer to induce him to pay his poll tax, it might be brought under article 229 of the Penal Code of 1911, but it does not undertake to charge that he gave money to Pointer, but it charges that appellant paid the tax collector of Palo Pinto county the poll tax

due by Pointer, which would come within the provisions and denunciation of article 233. That article provides that any candidate for office or other person who pays or procures another to pay the poll tax of a citizen,' except as permitted by law, is guilty of a felony and shall be punished, etc. The indictment is rather an admixture of articles 229 and 233 of the Penal Code. If the indictment is duplicitous, one charging a misdemeanor and the other a felony, of course the indictment would be quashed. A misdemean- or and a felony cannot be so charged in this state. One would be a misdemeanor, with jurisdiction in the county court, while the other would be a felony, with jurisdiction in the district court. This would render it duplicitous. The .writer is inclined to the opinion that the indictment is duplicitous, but, in any event, it does charge appellant, or seeks to charge him, with a felony under article 233, wherefore the county court did not have jurisdiction. The writer’s suggestion is that the pleadings should be confined to one of the statutes. The allegations in the indictment should comply with the definition of one of the articles. If appellant paid the money for Pointer and obtained a poll tax receipt, not being authorized by law to do so, the indictment should be framed under article 233, which would be returnable to the district court. The writer would suggest that a new indictment be obtained framing the allegations to one article or the other of the Code cited.

The judgment is reversed, and the cause remanded.