text:
    SAN ANTONIO LIFE INS. CO. v. TRAMMELL et al.
    (No. 7073.)
    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Fraud <&wkey;>37 — Actions—Venue—Exception.
    Within exception 7, “Cases of Fraud,” to Vernon’s Sayles’ Ann. Civ. St. 1914, art. Í830, providing that no one shall be sued out of the county in which he has his domicile, defendant insurance company was not chargeable with any fraud of T., its agent only for soliciting insurance, in making his individual contract with plaintiff to procure a loan for him, though defendant’s president knew, when plaintiff’s application for insurance was made and premium thereon paid, that plaintiff’s reason for obtaining the insurance was to enable him to secure a loan which T. was negotiating for him with other parties; such knowledge not making defendant liable for any fraudulent act or statement of T. in the matter of securing the loan, of which it had no knowledge and which it did not ratify.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. | 33; Dee. Dig. &wkey;37.]
    2. Fraud <&wkey;37 — Actions—Venue—Exception — Telephone Conversation .
    Defendant was not chargeable with fraud committed in B. county, within exception 7, to the provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, that no one shall be sued out of the county of his domicile, by reason of any promise of defendant’s president, talking over a phone from E. county to plaintiff in H. county, that defendant would do what T. had in B. county promised defendant would do.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 33; Dec. Dig. <&wkey;37.)
    3. Corporations <&wkey;503(2) — Venue—Cause oi? Action Arising prom Insurance Contract.
    Any cause of action growing out of a contract of insurance, plaintiff’s application for which was signed in B. county and sent to defendant in E. county, where it accepted it, did not arise in B. county, within exception 24, to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, placing venue in the county, of defendant’s domicile, that action against a private corporation may be brought in the county in which the cause of action or any part thereof arose; the application not constituting a contract till accepted, and the contract therefore being made in E. county.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1936; Dec. Dig. &wkey;503(2).]
    4. Corporations &wkey;>503(2) — Venue—Cause op Action — Verbal Promise op Insurance Agent.
    Plaintiff’s application for insurance in defendant corporatiop, providing that it and the policy issued thereon shall constitute the entire contract, and that defendant shall not be bound by any statement unless incorporated in the application, no verbal agreement of the. soliciting agent with plaintiff as to return of the premium under certain conditions, is enforceable against defendant, so as to be basis for the twenty-fourth exception to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, as to venue, that action against a private corporation may be brought in the county where the cause of action or any part of it arose.
    [Ed. Nole.- — For other cases, see Corporations, Cent. Dig. § 1936; Dec. Dig. <S&wkey;503(2).]
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Action by H. L. Trammell and others against the San Antonio Life Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded, with instructions.
    Jno. F. Onion, of Dallas, and Munson, Williams & Munson, of Angleton, for appellant. Graves & Graves, of Houston, Gaines & Cor-bett, of Bay City, and R. C. Gaines and Mas-terson & Rucks, all of Angleton, for appel-lees.
   PLEASANTS, C. J.

This suit was brought by appellees against appellant to cancel a contract of insurance, and to recover the premium paid for the insurance issued under said contract. For the purposes of this opinion we adopt from appellees’ brief, the following summary of the allegations of plaintiffs’ petition:

“This was a suit by and for the use and benefit of the Angleton State Bank against the defendant San Antonio Life Insurance Uompany for the recovery of $13,512; H. L. Trammell and E. J. Hodges being; nominal plaintiffs in said suit, asserting no individual rights, but acting as the bank’s medium, and suing alone for its use and benefit.
“Plaintiff alleged: That on the 11th day of September, 1913, the said Trammell and the defendant insurance company, acting through its agent, Porter M. Travis, subject to and contingent upon certain antecedent terms and condition's, in the office of the Angleton State Bank at Angleton, Tex., made a certain contract, and as a part thereof and incident thereto Trammell made application to defendant' insurance company for a policy of insurance upon his life in the sum of $400,000 to better secure a $400,000 loan on Trammell’s plantation in Brazoria county, Tex. That said insurance company and its agent, Porter M. Travis, and one E. O. Wood-dell, then and there contracted to procure, or failing in that to make the said Trammell a $400t000 loan upon his plantation, and defendant insurance company further contracted to receive said application for insurance, subject to said antecedent conditions that he have issued and delivered to him or some trustee for the purpose of carrying out the entire enterprise an insurance policy upon Trammell’s life in the specific sum of $400,000 to be used and hypoth-ecated by Mm under said 'general arrangements between all the parties to secure said $400,000 loan, it being specifically understood by all the parties that the $400,000 insurance policy was to be delivered to Trammell and that he was to accept same and pay the first year’s premium thereon for the specific and only purpose of its being used as security for said loan, and the policy was not to be delivered to Tram-•mell, and he was not to pay the first year’s premium thereon except upon the specific conditions that said defendant and its agent, Porter M. Travis, procure for or make to him said $400,000 loan.
“Plaintiff alleges: That at the time of making said agreement and through all the arrangements between the parties thereto relating to said loan, it was distinctly understood that no money was to be paid on account of such insurance policy, unless the loan was made, or if any premium money was paid prior to the consummation of the loan, it would only be so paid as the necessary means of procuring said loan, and would be held for that purpose alone by defendant and returned by said defendant to Tram-mell on the failure of said loan. That in pursuance of said agreement and arrangement and subject to its terms and conditions thereafter, to wit, on the 17th of September, 1913, at the special instance and request of said defendant and its agent, P. M. Travis, plaintiff Angleton State Bank, through its said then cashier, E. J. Hodges, for the account of its said coplaintiff herein, I-I. L. Trammell, paid said defendant insurance ’company and its said agent, P. M. Travis, the sum of $7,500 in cash. That thereafter, on the 23d day of September, 1913, at the special instance and request of said defendant and its said agent, P. M. Travis, said plaintiff Angleton State Bank, through its then cashier, E. J. Hodges, for the account of said co-plaintiff herein, H. L. Trammell, paid to the said defendant insurance company, and to its agent, P. M. Travis, the further sum of $6,012 in cash. That said agreement and arrangement and said contract for insurance and for a loan was made in Angleton, Brazoria county, Tex., and that all parts of said contract, including completion of the loan, delivery of ail security, and payment of all money, were to be executed at Angleton, Tex.
Plaintiff alleges: That the said Travis and Wooddell, for the purpose of making said agreement, came to Angleton on September 11, 1913, by way of San Antonio, Tex., and that while in San Antonio they fully advised defendant insurance company and its president, Henry A. Hodge, of their intended trip to Angleton, Tex., and their purposes to make said $400,000 loan to the said Trammell on his plantation, and to better secure the same they desired to have him insure his life in a like sum to be used as collateral security on said loan. That it was then and there agreed between said insurance company, Trammell, and Wooddell that it would undertake the writing of said insurance, and said defendant company made and appointed the said P. M. Travis its agent and representative, with full power and authority to solicit and obtain said insurance in said amount for said purposes upon said Trammell’s life, and upon the conditions above stated, with power to receive and deliver said policy to Trammell or some trustee for said purpose, and to in all respects fully represent said defendant company in the procurement, hypothecation, delivery, and subjection of said $400,000 of insurance to the purposes above set out. That defendant insurance company, prior to taking any action upon or making any effort to place said insunance upon said Trammell’s life, had full knowledge and was specifically advised through its president, Henry A. Hodge, and its agent, Travis, of the purpose for which said insurance was sought and of the agreements and conditions upon which it was to be paid for. That shortly after defendant insurance company had • received said $13,512, and before any insurance was issued, said insurance company and its president, Henry A. Hodge, were again in full knowledge and particularly advised and informed by H. B. Trammell that said money had been paid for said $400,000 of insurance and of the purposes for which same was sought to be used, and of the conditions upon which same was to be delivered to him, and further of said contract and agreement of the defendant’s said agent, P. M. Travis, to the effect that said money had been paid to the defendant company through its agent under the solemn agreement that it was to be returned if said loan was not consummated. That said insurance company fully ratified such agreement and agreed that if said loan was not made said money would be returned. That plaintiff was induced to enter into said enterprise and to pay said $13,512 to defendant insurance company under and in consequence of and in reliance upon the following representations made to them at Angleton, Tex., on September 11, 1913, and divers dates and places before and after said date, in person, by correspondence, by telephone, and otherwise, and continued, renewed, and reiterated all through and during said transactions up to and including about April, 1914, by said defendant insurance company, and by its said president, Henry A. Hodge, and by its agent, P. M. Travis, and by them both, and by said E. C. Wooddell independently, to wit, that said defendant insurance company and said Travis and Wooddell could and would procure or make a loan of $400,000 to Trammell on his Retrieve plantation, provided he would further secure said loan by an insurance policy on his life for a like amount. That they were in close touch with large business capital in the city of New York and in London, England, whom they termed their ‘Eastern connections,’ who were ready and willing and able to make Trammell the said loan. That after said application for insurance had been made and Trammell had given his check for the first year’s premium thereon, which said check was to accompany said application and not be presented for payment until said loan was obtained, that being the real agreement of the parties hereto at all times, that the said Travis and Wooddell and said defendant insurance company, in order to induce these plaintiffs or some of them to pay over the actual cash in lieu of Trammell’s check, then for the first time represented and insisted that their Eastern connection required that the money for the first year’s premium on said insurance policy be actually paid in advance as an evidence of good faith on the part of the plaintiffs, and that Trammell would accept said loan when tendered to him; and then further specifically agreed after said money was then paid it would be returned to them at once on the failure to consummate said loan.; and further stated as a fact that the procuring of said loan was an absolute certainty; and as a still further inducement to plaintiffs, they also stated to plaintiffs that unless all of the first year’s premium was paid said loan would be canceled, but that if same was paid they would then make at once to plaintiff Tram-mell a personal advance of $35,000. That plaintiffs believed said statements and representations to be true and relied upon same, and but for such reliance and belief would not have entered upon said enterprise nor paid said money. That each and all of said statements and representations were false and fraudulent, and were known to be so by Travis and Wooddell when made, and were made for the fraudulent purpose of inducing plaintiffs to pay over said $13,512, which said purpose they thereby accomplished. That neither said loan nor any part thereof was ever made or tendered to Trammell, and Travis and Wooddell knew that said loan would never be made, that they had no such connections, and that they would not and were not in a position to procure or make said loan.
“Plaintiff further alleged: That said defendant insurance company, even if it was not an original party thereto, was, long prior to the issuance or tender to Trammell of any such insurance, fully advised and informed of all of said statements and representations and promises so made to plaintiffs and each of them by Travis and Wooddell, and that after its said full knowledge thereof said defendant company aided and abetted the said fraudulent scheme and purpose of Travis and Wooddell by assuring plaintiff Trammell through its president, H. A. Hodge, and otherwise, that said $400,000 loan would be made, and that said Wooddell and Travis were reliable, and that Trammell could rely upon their statements to him. That further relying upon said defendant’s said assurances to him, the said Trammell was lulled into inactivity, induced to delay action to procure the return to its rightful owner of said insurance premium so paid to defendant, as aforesaid, and induced to pay said insurance company said $18,512. That immediately upon discovering said fraud plaintiffs repudiated said entire transaction and demanded of defendant the rescission of said contract for insurance and the return of the premium money paid, all of which was refused. That by reason of said fraud inducing and inhering in the same the said contract and application for insurance was invalidated and plaintiffs are entitled to complete rescission, and to be placed in the same condition they were in prior to the making of same, and that the defendant insurance company thereby became and is liable for the repayment and return of said $13,512 and interest thereon to plaintiffs in the manner and form herein set out.
“Plaintiffs alleged in the alternative that the defendant insurance company contracted to furnish to plaintiff Trammell $400,000 of insurance, and that he paid the full amount of the first year’s premium, but that said insurance company has failed and refused to procure said insurance, and thereby breached its contract, and is liable to plaintiff in the sum of $13,512 as damages for such breach.
“Plaintiffs prayed for rescission of said alleged contract, and for the return to the rightful owner of the said $13,512, and in the alternative for damages resulting therefrom.”

Appellant answered by a sufficient plea of privilege to be sued in Bexar county — -the county of its domicile. Tbis plea was by agreement of the parties heard with the case. Subject to its plea of privilege appellant further answered by general denial and special denials of the material allegations of the petition, except as to the execution of a contract of insurance upon which it had procured the insurance policies in favor of ap-pellee Trammell and had received the net premium paid therefor. The answer also contains special pleas and defenses, the nature of which, in view of our holding upon the question of venue, need not be stated.

The cause was tried in the court below without a jury, and judgment was rendered, overruling appellant’s plea of privilege, and in favor of appellees for the sum of $13,512.

The undisputed evidence shows that appellant’s domicile was, as alleged in its plea of privilege, in Bexar county, that it had no agent in Brazoria county, and that it had not entered into any contract in writing with appellees to be performed in Brazoria county. The nature of the suit and the status of the parties as.disclosed by the petition negatives all of the other exceptions to the venue statute which guarantees to all person's the right to have suits against them brought in the county of their domicile, except section 7 of said statute, which provides that in all “cases of fraud” suit may he brought in the county in which the fraud was committed, and section 24, which provides that suit against a private corporation may be brought in the county in which the cause of action or a part thereof arose. The evidence does not sustain either of these exceptions.

It is conclusively shown by the evidence that appellant was not a party to the contract to procure a loan for appellee Tram-mell, and the acts and statements of Travis in relation to said contract, if conceded to be fraudulent, cannot be charged to appellant. Travis was appellant’s agent only for the purpose of soliciting and obtaining applications for insurance and receiving the advanced premiums therefor, and his agreements and contract in regard to obtaining the loan were not made with appellees as the agent of appellant, and there is nothing in the evidence to justify the conclusion that appellees understood that appellant was in any way liable for or bound by the loan contract. All that the evidence shows in this regard is that the president of appellant company knew at the time the application for insurance was made and the premium paid that Trammell’s reason for obtaining the insurance was to enable him to secure a loan which Travis and Wooddell were negotiating for him with parties in New York or St. Louis. This knowledge on the part of appellant' could not make it liable for any fraudulent acts or statements on the part or Travis in the matter of, securing said loan, of which it had no knowledge and which it did not ratify. It is claimed by appellees that appellant is chargeable with fraud committed in Brazoria county because of the fact that its president ratified the agreement of its agent, Travis; that in case the loan was not made the money paid as premium for the insurance would be returned. Tram-mell testified:

“It was some four or five days after I signed this application for insurance before the first part of the first years’ premium was paid, and about that time I had a phone conversation with Mr. Henry A. Hodge, president of the San Antonio Life Insurance Company, about the 15th of September. I called up Mr. Hodge in Houston and told him we were getting in pretty deep water; that a lot of money was being paid out, and me worried and troubled, and asked him if he knew Mr. E. C. Wooddell, and he says, ‘No, I don’t know him except from correspondence,’ but he said, T correspond with him and others in New York quite a while,’ and he says, ‘From, what I learned from that correspondence, he is all right in every respect,’ and he said, ‘Mr. P. M. Travis, our agent, whom I have known for a long time, and who is thoroughly reliable, was sent to New York by me,’ and he said, ‘Beyond a question of doubt he is all right, and is able to do what he says he can.’ And I asked him if the money would be returned; that is, the premium, if the loan was not made, and he said, ‘Yes, it will,’ and I asked him If he would confirm that by letter, and he said, ‘Write Mr. Travis; he is handling your case, and he will write you.’ That was the extent of our conversation. A few days after that I wrote Mr. Travis in reference thereto, and 1 felt sure then that the loan would he made, and I ratified the paying of the insurance money.”

The accuracy of this- statement is denied by Hodge, who testified that he told Trammell in this conversation over the telephone that his money would be returned to him in event his application for insurance should not be accepted, but for the purpose of determining the correctness of the trial court’s holding upon the plea of privilege we must take the statement of Trammell as true.

Taking the testimony of Trammell as to the statements made by Hodge as true, it certainly does not show fraud committed in Brazoria county. If Hodge’s promise that the premium would be returned was made for the purpose of inducing Trammell to pay said premium and Hodge at the time of making said promise had no intention of complying therewith, such representation would constitute fraud. But Hodge, when making such representation, was at San Antonio in Bexar county talking over the telephone to Trammell at Houston in Harris county, and it is clear that if such representations make a case of fraud such fraud was not committed in Brazoria county.

We cannot agree with the further contention of appellees that the suit was maintainable in Brazoria county on the ground that the cause of action or a part thereof arose in said county. The written application for insurance was signed by Trammell in Brazoria county and sent to appellant in Bexar county. The application did not constitute a contract until it was accepted by appellant, and therefore the contract was made in Bexar county, and any cause of action growing out of this contract cannot be said to have arisen in whole or in part in Brazoria county. Planters’ Cotton Oil Co. v. Whitesboro Cotton Oil Co., 146 S. W. 225.

There is nothing in the application in regard to a return of premiums in event Trammell failed to receive a loan. It states that Trammell applies to appellant for $400,-000 insurance on his life at an annual premium of $13,512, and that he has paid to appellant’s agent, Porter M. Travis, at Dallas, Tex., $13,512, the first year’s premium. It also contains the following provision:

“I hereby agree that this application and the answers made to the medical examiner and the policy applied for shall constitute the entire contract between the parties hereto.
“Henry Lee Trammell.
“This application and the policy or policies issued in consequence thereof shall constitute the entire contract of insurance, and the company shall not be bound in any way by any statement made by or to any agent or other person, unless such promise, statement, or information be reduced to writing and submitted to the company in this application.”

Under these provisions of the application, which appear upon its face, no verbal agreement made by Travis as agent of appellant is enforceable against appellant, and cannot therefore be a basis for sustaining a suit against appellant in Brazoria county.

It follows from what we have said that the trial court erred in overruling appellant’s plea of privilege, and the first assignment, which complains of the judgment on this ground, must be sustained. The other questions presented by the appeal will not be discussed, and are not passed upon.

For the error indicated the judgment of the court below is reversed, and the cause remanded, with instructions to the trial court to enter an order transferring the case to the district court of Bexar county, as directed by article 1833, Vernon’s Sayles’ Civil Statutes.

Reversed and remanded, with instructions.
      <S=»Fdr otlier eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HAUL, J.

license: Public Domain

text:
    RUDOLPH v. HIVELY et ux.
    (No. 1014.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1916.
    Rehearing Denied Oct. 11, 1916.)
    1. Teespass to Try Title <&wkey;18 — Defenses— Outstanding Superior Title.
    In an action of trespass to try title, a deed' of trust was not such outstanding superior title or interest as will prevent recovery by plaintiff, since a deed of trust is merely security for the debt and before foreclosure vests no title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 21; Dec. Dig. <&wkey;18.]
    2. Husband and Wife <&wkey;224 — Actions against — Process—Defects in Service.
    Where a suit was instituted against “Louisa A. Filer,” cited by publication, and judgment rendered against her in that name, she having, during the pendency of the suit, but before the citation as to her upon a second amended original petition, married “Solomon E. Hively,” she was not a party to the action, and the judgment as to her is void.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 808-812, 978; Dec. Dig. <&wkey;>224.]
    3. Mortgages &wkey;>494 — Foreclosure Proceedings — Judgment—Sufficiency.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2000, providing that judgments for the foreclosure of mortgages shall be that plaintiff recover his debt, and, except in judgments against executors, administrators, and guardians, that an order of sale shall issue to the sheriff or any constable of the county, directing him to seize and sell the property, a judgment of foreclosure, which did not provide for the issuance of an order of sale, nor direct the sheriff to seize and sell the property as under execution, it appearing that the land was never sold under the judgment, was insufficient.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1441-1445; Dee. Dig. <®=>494.]
    4. Mortgages <&wkey;356 — Sale under Power-Notice.
    Where by the terms of a mortgage, notice of sale must be published in a newspaper, if notice cannot be given because no newspaper is published in the county, the trustee cannot sell under the power without recourse to a court of equity.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dec. Dig. &wkey;356.j

      5. Trespass to Try Title <&wkey;38(l) — Evidence —Bubden oe Peooe.
    In an action of trespass to'try title, where plaintiff filed an affidavit, charging that a note, secured by a deed of trust, and all of its indorse-ments, were forgeries, the burden rested upon defendant, claiming title as owner of the note and a trustee’s deed foreclosing the deed under power of sale to satisfy the payment of the note, to establish the genuineness of the notes and indorse-ments as against the affidavit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. &wkey;38(l).]
    6. Mortgages <&wkey;351 — Sale tjndee Power-Validity.
    A sale by a trustee under, a power of sale in a deed of trust, made after the note was barred by limitations and after the power could be exercised, is void.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1049; Dec. Dig. <§=?351.]
    Error from District Court, Moore County; D. B.. Hill, Judge.
    Trespass to try title by Solomon E. Hively and wife against C. F. Rudolph. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    C. F. Rudolph, of Stratford, in pro. per. M. Cammack, of Amarillo, for defendants in error.

      Application for writ of error pending in Supreme Court.

   HAUL, J.

This action was brought by Louisa A. Hively, joined pro forma by her husband, Solomon E. Hively, against C. F. Rudolph alone for title and possession of a certain quarter section of land in Moore county. She alleged that in a former suit against her and others, filed by defendant Rudolph, in thé district court of Moore county, styled C. F. Rudolph v. J. M. Roach, Louisa A. Filer et al., said Rudolph recovered a judgment against the said Louisa A. Filer for the land now in controversy; that during the pendency of said suit the said Louisa A. Filer had married Solomon E. Hively, and, by reason of the citation issued in said suit and the judgment entered therein not being in her true name, the judgment was void. She alleges a deed to her from one M. Roach, conveying the land in controversy.

The defendant, Rudolph, by his answer, showed the necessity of making additional parties. So plaintiffs filed their first amended original petition October 2, 1914, naming C. F. Rudolph, James I. Boyer, C. C. Clever, Lon C. McCrory, Dick Pincham, Allie Pineham, J. M. Turner, and H. Altringer defendants.

The amended pleading set out the claim of the nonresident defendants; that on March 31, 1914, Rudolph executed a deed of trust, naming Lon C. McCrory trustee, and Dick Pincham, Allie Pineham, J. M. Turner, and H. Altringer as beneficiaries. They allege, further, that there is a deed of trust on record in Moore county, purported to be executed by J. M. Roach, September 5, 1904, naming C. C. Clever as trustee, to secure a note of $1,600, in favor of James I. Boyer, alleging said instrument was without consideration, fraudulent, and void.

■ The defendant Rudolph filed his second amended original answer July 27, 1915, pleading his title specially, claiming that he is the owner of the land in controversy by two alternative and sufficient chains of title. His allegations set out his title from J. M. Roach; sets up a mortgage from J. M. Roach to C. A. McFarland, and its assignment to C. F. Rudolph the defendant, also a judgment of the district court of Moore county, dated January 26, 1910, foreclosing said mortgage and decreeing the title and possession of the land in controversy to Rudolph. He further alleged that he is the owner of the note of $1,600, dated September 5, 1904, executed by J. M. Roach to J. I. Boyer and secured by deed of trust on the lands in controversy ; that said note was due five years after date, and had been extended five years after maturity, by writing an indorsement on the note and signed by the parties before its transfer to him. He sets up a trustee’s deed, foreclosing the deed of trust under the power of sale to satisfy the payment of the note above described by J. B. Mills, substitute trustee.

in reply to this amended answer, plaintiffs filed a second supplemental petition, excepting to the judgment set up by the defendant because it did not foreclose the mortgage, but by its recitals transferred the title to the land without sale. It was further alleged that plaintiffs were not parties to the foreclosure suit, and they interposed the statute of limitations as to the notes; that the deed of the trustee, foreclosing the deed of trust, was void, the note being barred by limitation when the sale was made; and that the land was not advertised according to the provisions of the deed of trust.

Plaintiff filed an affidavit, charging that the $1,600 note, alleged by Rudolph to have been made by Roach to Boyer, was a forgery; that all indorsements thereof and the assignments thereof to Rudolph were also forged.

The case was tried by the court without a jury, and judgment rendered in favor of plaintiff for the title and possession of the land.

The first assignment, and proposition, is to the effect that in an action of trespass to try title the plaintiff cannot recover if there is any evidence of an outstanding superior title or interest. The outstanding title which appellant insists exists in this case is the alleged deeds of trust, executed by J. M. Roach to J. I. Boyer, to secure payment of a note for $1,600. The well-established rule in this state is that a deed of trust is simply a security for the debt, and before foreclosure vests no title in the beneficiary. This deed of trust has never been foreclosed, nor was foreclosure sought in this action.

Appellant next insists that plaintiffs are precluded by the judgment rendered in bis favor against J. M. Roacb, Rouisa A. Filer, and others, January 26, 1910. It appears that Louisa A. Filer married Solomon E. Hively January 25, 1908. The citation as to her was issued June 23, 1909, upon a second amended original petition filed on the 23d day of June, 1909, and service was by publication. This question is settled by our Supreme Court, in Freeman et al. v. Hawkins et al., 77 Tex. 498, 14 S. W. 364, 19 Am. St. Rep. 769. In that case a judgment against Mary E. Robinson, removing cloud from the title to certain lands, was set out in bar of an action by Mary E. Freeman to recover the land. It seems that at the time she acquired the land her name was Mary E. Robinson, but afterwards, and before the institution of the suit against her, she married D. C. Freeman. She was served by publication as Mary E. Robinson. Stayton, Justice, said:

“On the marriage of Mary E. Robinson the law conferred on her the surname of her husband. 2 Bishop’s Marriage & Divorce, § 704a. A citation, whether to be served personally or by publication, must contain the names of the parties to the action. R. S. art. 1215. We are of opinion that a citation by publication requiring ‘Mary E. Robinson’ to be cited and_ to appear was not sufficient to give the court jurisdiction to render a judgment that would bind ‘Mary E. Freeman.’ McRee v. Brown, 45 Tex. 506.’’

As in that case, we conclude here that, the suit having been instituted agaist Louisa A. Filer, cited by publication, and judgment rendered against her in that name, she was not a party to the action, and the judgment as to her is void.

We thinx the judgment rendered in favor of Rudolph, and which he sought to introduce in evidence, was insufficient, in that it failed to comply with article 2000, Vernon’s Sayles’ Civil Statutes, relating to judgments in foreclosure proceedings. The judgment offered in evidence vests the title to the property, upon which foreclosure was sought, in Rudolph, and does not provide for the issuance of an order of sale, nor does it direct the sheriff to seize and sell the property as under execution, and it appears from the record that the land in controversy was never sold under the judgment. Frankel v. Byers, 71 Tex. 308, 9 S. W. 160; McPhaul et al. v. Byrd et.al., 174 S. W. 645. The former judgment being void as to the plaintiff in this suit, because of a want of service of process, and because the statute relating to foreclosure of mortgages was not complied with, appellant acquired no title through such proceeding.

The deed of trust under which the sale was made by Mills, the sheriff, provided that notice of the sale should be published for 30 days in a newspaper published in the city of Dumas. No such publication was made, but the notice was posted in three public places in the county. Where, by the terms of the mortgage, notice of sale must be published in a newspaper, if notice cannot be given because no newspaper is published in the county, the trustee cannot sell under the power without recourse to a court of equity. Dutton v. Cotton, 10 Iowa, 408; Perry on Trusts (6th Ed.) § 602q.

As stated, plaintiff filed an affidavit, charging that the $1,600 note, secured by this deed of trust, and all of its indorsements, were forgeries. The substance of Boyer’s testimony is that he knew nothing whatever about the $1,600 note and mortgage, and claimed no interest whatever in any such note, or in the land in controversy. The burden rested upon appellant to establish the genuineness of the note and indorsements as against this affidavit. As stated, the court filed neither findings of fact nor conclusions of law, and, so far as the record discloses, the judgment may have been based upon the court’s conclusion that the note was a forgery. This being true, the judgment and the trustee’s sale, are both nullities. If the indorsements upon the note, extending the time under the statute, were forged, then the note, even if it could be held genuine, under the evidence, was barred by limitations. The judgment recites that the note is barred by the statute of limitation set up by plaintiffs, and we must presume, in support of the judgment, that the court found the indorsements were forged. This being true, the sale by the trustee was void, for the further reason that it was made long after the note was barred and after the power contained in the deed of trust could be exercised.

It is unnecessary to consider the remaining assignments, and the judgment is affirmed.
      iteoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (teoEor other oases see same topic and KEY-NUMBER in all Key-Numbered (Digests and Indexes


author: DANE, J.

text:
    VAN VELZER v. STRYKER.
    (No. 7228.)
    (Court of Civil Appeals of Texas. Galveston.
    June 30, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Sequestration <&wkey;>15 — Judgment in Alternative — 'Waiver.
    Where an automobile held under a claimant’s bond given in sequestration proceedings was sold pending suit, and the execution issued on the judgment was returned nulla bona, the fact that plaintiff therein took judgment in the alternative for the value of the property and sought to collect the sane did not operate as a waiver of claim to the property taken under the bond, which had passed into the hands of a third' person by purchase, and the sale under such conditions does not pass title to such purchaser.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 25-32; Dec. Dig. <&wkey;>15.]
    2. Sequestration &wkey;>15 — Sale oe Property —Damages—Permitting Improvements.
    In a suit to recover title and possession of an automobile purchased by defendant from one holding it under a claimant’s bond, where it appeared that plaintiff saw the repairs which were made by defendant at a heavy expense and in good faith, believing the machine to belong to him, and the plaintiff knew defendant was laboring under such belief and allowed him to complete the repairs before asserting- his claim, a judgment for plaintiff for the automobile will be charged with the value of such beneficial repairs.
    [Ed. Note. — Eor other cases, see Sequestration, Cent. Dig. §§ 25-32; Dec. Dig. &wkey;15.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Suit by A. C. Van Velzer against A. B. Stryker. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    A. C. Van Velzer, of Houston, for appellant. Charles Murphy, of Houston, for ap-pellee.
   DANE, J.

This suit was instituted in' the county court at law for Harris county, Tex., on the 15th day of March, 1915, by A. C. Van Velzer against A. B. Stryker to recover the title and possession of a certain automobile of the estimated value of $250, and for $2 per day for the use of the same from the 1st day of January, 1915, until the same is returned to the plaintiff. The case was tried before the court without a jury, and judgment was rendered in favor of defendant, Stryker.

Plaintiff, .Van Velzer, has appealed, and insists that the trial court erred in rendering judgment for defendant, because the undisputed evidence shows that the automobile in question was Ms property and that he was entitled to its possession.

The undisputed evidence shows the following facts: One E. D. McKenzie was the owner of the automobile in 1913. 'Said automobile was found by him in the possession of the Houston Motorcar Exchange. On 15th day of February, 1914, McKenzie brought suit against said Exchange for said automobile, and at the same time caused a writ of sequestration to issue, under which the sheriff of Harris county took possession of said automobile. On the 4th day of March, 1914, the said suit of McKenzie v. Houston Motorcar Exchange was called for trial, and, upon a disclaimer being entered by said Exchange, judgment was entered against it in favor of McKenzie for said automobile. On the 16th day of May, 1914, one H. McKee filed a claimant’s oath and bond, and said automobile was delivered to him by said sheriff on the 19th day of May, 1914. E. D. McKenzie did not join issue with said claimant, H. McKee, under the provision of the statute which provides for the trial of the rights of property taken under a claimant’s bond, but on the 29th day of May, 1914, he brought suit against said H. McKee and the sureties on his claimant’s bond for the title and possession of said automobile and for damages, and prayed that, if said car could not be found and returned to him, he have judgment against said principal and sureties for $250, the alleged value of the automobile. During the pendency of said suit, to wit, on the 16th day of July, 1914, H. McKee sold and delivered said automobile to one Smith. On the 15th day of January, 1915, the case of McKenzie v. H. McKee et al., on the bond, was tried and resulted in a judgment for McKenzie against H. McKee for the title and possession of said automobile and against H. McKee as principal and F. R. Seedman, Jake Marti, T. B. Nicholas, and H. Bissonnet as sureties for $121.50 as damages, and for $250 if said automobile was not delivered to him, the said McKenzie, and for writ of possession and execution. On the 4th day of February, 1914, McKenzie sold said automobile to plaintiff, Van Velzer, who had acted as McKenzie’s attorney in all of said suits. On the 12th day of February, 1914, Smith, who bought from McKee, sold and delivered said automobile to defendant, A. G. Stryker, who bought in good faith without notice of the adverse claim of Van Velzer. Some time in the month of March, 1915, defendant, Stry-ker, had said automobile overhauled and repaired at a cost to him of more than $100. ■While said repairs were being made plaintiff, Van Velzer, saw the same and observed the repairs were being made, and made no claim to the machine, but waited until said repairs were completed and paid for by Stry-ker before he made known to Stryker that he claimed the machine.

The contention of appellee, which was sustained by the court, is that when E. D. McKenzie recovered judgment against H. McKee and the sureties on his claimant’s bond, and failed to take possession of said automobile under said judgment, all his rights were merged into that portion of said judgment as awarded to him $250 for the value of the machine, together with $121.50 as damages, and that the sale of the machine by McKee to Smith passed the title to same to Smith, and which title passed from Smith to appellee, Stryker. Appellee also contends that, if he be mistaken in the above proposition, and it should be held that said machine wa,s and is the property of appellant, then he should be adjudged a lien upon said machine to secure the payment of the sum of $174 paid out by him for repairs on the same, as found by the trial court, with the knowledge of appellant.

Appellee pleaded that appellant saw said repairs were being made at a heavy expense to appellee; that said repairs were made by appellee when he in good faith believed said machine belonged to him; that appellant knew he was laboring under such belief, and appellant should now be estopped from claiming the machine; and that, if he (appellant) should be permitted to recover the same, he should be made to pay the sum expended by appellee for repairs.

The trial court rendered judgment for ap-pellee, Stryker, upon the theory or conclusion that E. D. McKenzie, from whom appellant purchased the machine, had lost any title he had therein by taking judgment for the value of said machine against H. McKee and his sureties on his claimant’s bond, before he sold to appellant. In this conclusion we think the trial court erred.

In the case of Crawford v. So. Rock Island Plow Co., 33 Tex. Civ. App. 510, 77 S. W. 280, it was held that, when property is taken under a replevy bond, the taker under such bond is not authorized to sell the property^ so taken, and that a sale under such conditions does not pass title to the purchaser ; that when the defendant gave a replevy bond, and judgment was rendered for the plaintiff with writ of possession, and the property could not be found, and judgment was awarded on the bond, and defendant, pending suit had sold the property, and that the execution issued on the judgment was returned nulla bona, it was not an election on the part of plaintiff to pursue the defendant, so as to waive any remedy against the purchaser of the property; that the fact that the plaintiff took judgment in the alternative for the value of the property, and sought to collect same, did not operate as a waiver of claim to the property taken under the bond, which had passed into the hands of a third person by purchase. Southern R. I. P. Co. v. Pitluk, 26 Tex. Civ. App. 327, 63 S. W. 354. We see no reason why the rule above announced should not apply with equal force in this case.

We think the judgment for the automobile should have been for appellant, charged with the value of such beneficial repairs as was made by appellee, if any, unless appellee was entitled to recover the machine under proper plea of estoppel and proof of support thereof. These issues of estoppel were not fully developed in the trial court.

Having reached such conclusion, we think the .judgment of the trial court should be reversed, and the cause remanded; and it is so ordered.

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


author: HUPP, C. J.

text:
    STREET et al. v. J. I. CASE THRESHING MACH. CO.
    (No. 1021.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1916.
    On Motion for Rehearing, Oct. 11, 1916.)
    1. Evidence <&wkey;444(4) — Parol Evidence CONTRADICTING WBITING.
    In an action by the buyer of an engine to cancel notes given therefor, testimony that the engine was taken on trial, and, if not as represented with reference to its power to do certain work, was not to be accepted, that the order for it and the notes were left with the seller upon such agreement, and that the buyer was to accept the engine in writing if it did the work, was not inadmissible as contradicting the written order and notes.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929, 1930, 1940, 1941, 2049; Dec. Dig. @=444(4).]
    2. Tbial @=S5 — Objections to Evidence-Admissibility in Past.
    Where part of a question and answer was admissible, and part inadmissible, the inadmissible part should have been segregated, and proper objection made thereto; otherwise objection thereto cannot be considered.
    [Ed. Note. — For other, cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;85.]
    3. Evidence @=520 — Expeet Opinion —Capacity and Powee oe Engine.
    In an action by the buyer of a gas engine to cancel purchase-money notes, opinion testimony of an expert as to the capacity and power of the engine, which was sold subject to trial and rejected, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2329; Dec. Dig. @=520.]
    4. Sales @=16S%(5), 182(1) — Rejection — Reasonable Time.
    Where a chattel is sold subject to'trial, the buyer must manifest dissatisfaction within a reasonable time, which is ordinarily a question of fact under the circumstances surrounding the parties.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 413, 419, 492; Dec. Dig. &wkey;168y2(5), 182(1).)
    5. Sales @=285(1) — Reliance Upon Wae-eanty — Compliance with Teems.
    The buyer of an engine, seeking to cancel the purchase-money notes and relying upon a written warranty of the engine’s power, must have complied with such warranty’s terms relative to notice of rejection of the engine, unless alleging and proving waiver by the seller.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 806; Dec. Dig. &wkey;285(l).]
    6. Pleading @=17 — Dieect Averment oe Facts.
    In pleading, the facts to be established should be directly averred, and not merely suggested as an inference from other facts stated.
    [Ed. Note. — For other cases, see Pleading Cent. Dig. §§ 38, 41, 195, 350; Dec. Dig. &wkey;17.]
    7. Courts @=475(1) — Conflicting Jurisdiction — Priority.
    Two courts, having concurrent jurisdiction, will not, at the same time, entertain a suit between the same parties over the same subject-matter, but the court which first obtains jurisdiction will hold it to the exclusion of the other.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1229, 1247-1259; Dec. Dig. &wkey;475(l).]
    On Motion for Rehearing.
    8. Appeal and Eeeob @=1175(2) — Disposition — Dismissal.
    The Court of Civil Appeals cannot dismiss the case, instead of reversing and remanding, upon sustaining appellee’s cross-assignment that the trial court erred in not sustaining its plea of abatement on the ground of the pendency, in the district court of another county, of a suit between the same parties, involving the same subject-matter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4574; Dec. Dig. @=1175(2).]
    9. Appeal and Eeeoe @=1178(1) — Disposition — Lack oe Jurisdiction — Reversal with Remand.
    Even where the court below had no jurisdiction, it is the better practice on - appeal to reverse and remand.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604 — 4610; Dec. Dig. @= 1178(1).]

      10. Appeal and Error &wkey;»1175(2) — Disposition — Dismissal.
    Where defendant’s plea in abatement, on the ground of the pendency of another action, between the same parties, involving the same siib-ject-matter, in the district court of another county, had attached to it a certified copy of thepetition and answer in such district court, the Court of Appeals, sustaining the plea, has no power to render judgment dismissing. the case, since a sworn plea of privilege is not prima facie evidence of the facts alleged, and other proof must be produced unless the facts are contained in plaintiffs’ petition.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4574; Dec. Dig. <&wkey;>1175(2).]
    11. Costs <&wkey;5'5 — Costs After Sustaining Plea in Abatement.
    Where a case is abated in the district court upon hearing of defendant’s plea in abatement after reversal and remand by the Court of Civil Appeals, on plaintiffs’ appeal, the costs in the district court will be taxed against plaintiffs.
    [Ed. Note. — Por other cases, -see Costs, Cent. Dig. § 254; Dec. Dig. <{&wkey;55.)
    Appeal from District Court, Potter County; Hugh L.vUmphres, Judge.
    Suit by W. G. Street and. another against the J. I. Case Threshing Machine Company. Prom a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    Reeder & Dooley, of Amarillo, for appellants. Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   HUPP, C. J.

W. G. Street and D. M. Creamer brought suit against appellee to cancel certain notes executed for a gas tractor engine, as well as a second series of notes given for a separator and to cancel the mortgages given to secure the above notes.

The appellants alleged that Street contracted to purchase the engine and executed the notes amounting to the sum of $2,000, three for $300 each and two for $400 each; that he agreed to purchase, relying upon representations and warranties that the engine was a 40 horse power engine, of good material, and durable; that he relied upon such representations and warranties; that at and before he executed the notes he notified the appellee of his purpose in purchasing the engine and that he would not purchase unless it had power for the work mentioned, and would successfully do it, and appellee repeated that the engine was a 40 horse power and would dó the work successfully, and would pull plows sufficient in number to plow and turn a strip of land of the width of the-engine, 10 inches deep; that the appellee, after being informed of the purposes for which the engine was desired and the plows to be used, represented that if Street would sign the order contract for the engine and the notes above mentioned, and leave them with the appellee, appellee would take the engine and plows out to the farm of D. M. Creamer, and demonstrate to Street that the engine had the power represented and, after proving that it was as represented, Street could accept it in writing, and thereby conclude the contract of sale and purchase of the engine; that Street accepted this proposition and thereupon signed the order and notes and left them with appellee under the agreement that appellee was to demonstrate the engine would do the work represented and warranted before he was required to accept the engine ; that D. M. Greamer, relying upon such representation and the facts above alleged, signed a guaranty contract. It is alleged the engine, after trial, did not have the power and would not do the work represented and after other trials on the part of appellee, and on the part of appellant, it would not do the work, and that he (Street) refused to accept the same. It is alleged, at some length, that there were repeated trials and promises to make the engine do the work, and appellee induced Street to retain possession of the engine under a promise to make it do the work, which several and numerous trials and times the engine disclosed its inability to do the work, and Street informed appellee he would not accept the engine and that he did not accept it, but retained the possession only for the purpose of giving appellee an opportunity to make it do the work represented ; and finally, upon a total failure to make it do the work, the appellee instructed Street to deliver it back to appellee, which he did, and that appellee has it now in its possession. It is alleged substantially that the separator was purchased upon the condition that the engine would do the work and the notes therefor executed upon such conditions; or appellee was to furnish a new engine, which it never did. There is also a count setting up special damages, for which a recovery is sought. The prayer is to cancel both sets of notes and the mortgages, and for the damages.

The appellee answered by a plea in abatement, denials, and also to recover on the notes mentioned in- plaintiff’s petition, and for foreclosure of the mortgage lien.

The trial court submitted the case on special issues, but afterwards withdrew the case from the jury and instructed a verdict for the appellee.

The first and second assignments present the action of the court in excluding the testimony of Street and Dreamer, to the effect that the engine was taken on trial, and, if not as represented with reference to its power to do the work, Street was not to accept it, and that the order and the notes were left with appellee upon such agreement; that Street was to accept the engine in writing if it did the work.

We gather from the pleadings and the evidence offered it was the contention that the purchase and sale of the engine was not consummated and should not be until after trial, and if as represented Street should accept the engine in writing; and the orders and notes- were left with appellee upon that condition. The order therefore did hot become a binding contract between the parties until the engine was so accepted, and the notes were not obligations binding upon appellants. If the allegations of appellants are true, the contract of sale, as evidenced by the order and notes, never went into effect, and therefore was not the contract of the parties. This being true, the evidence on that issue should not have been excluded, as it would not be in its nature a contradiction of the written order and notes. It was simply offered to show that the order and notes were not executed under such circumstances as to become-a binding contract. Wigmore on Evidence, §§ 2408, 2410; Watson v. Rice, 166 S. W. 106; Parker v. Naylor, 151 S. W. 1096; National Novelty Import Company v. Duncan, 182 S. W. 888.

Our Supreme Court recognized the application of the above rule to cases of this character in Holt v. Gordon, 174 S. W. 1097. The very question here at issue is decided in two Kentucky cases: J. I. Case Threshing Machine Co. v. Barnes, 133 Ky. 321, 117 S. W. 418, 19 Ann. Cas. 246; Wilson v. Nichols, 139 Ky. 506, 97 S. W. 18. In Seitz v. Brewers, 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837, the Supreme Court of the United States saiO:

“Undoubtedly, the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them.”

If the allegations and the offered evidence are true, the parties did not intend the writing to be a complete and final statement of the whole transaction; in other words, there was to be no sale or liability until Street should accept the engine in writing, and until that contingency there was no obligation imposed by the order or notes upon either party.

By the third assignment complaint is made at the action of the court in permitting the question to and answer of Creamer, with reference to transferring his property to his -son, to defeat any judgment which might be rendered on the guaranty .sued upon. The answer of the witness shows no injury. Our view of this character of testimony is expressed in Taber v. Eyler, 162 S. W. 495; Hynes v. Winston, 40 S. W. 1025. A part of the question, and the answer, as set out under the bill, was proper, but part perhaps not permissible under the rule, as we understand it. The evidence admissible and that not admissible should have been segregated and the proper objection made to that not admissible; otherwise, the objection cannot be considered. Under the bill, no error is -shown.

The fourth assignment is overruled. This evidence objected to is in its nature the opinion of an expert. The fact that he referred to having seen other engines of like kind is, in its nature, a predicate, showing the qualification of the witness to testify as an expert. It does not appear to have been the purpose of the testimony to prove the power of other engines, and does not fall, in our judgment, under the excluding rule, which precludes evidence of what other like machines did; but, as we interpret the evidence, it is an opinion as to the capacity and power of the particular engine in question.

The fifth assignment is sustained. Under the facts of this case, the trial court should not have instructed a verdict for the appellee. Aside from the evidence excluded as set out .under the first and second assignment, there is testimony of the return of the engine to appellee under its direction and a rescission of the contract by the parties; or under the alleged agreement that Street should accept, by written acceptance, the engine as satisfactory, and according to the representation and warranties "before there was a sale or contract. We think these issues are raised by the pleadings and the evidence. The allegations amount to an assertion that, before Street would be obligated to pay- for the engine, he should have a right to try it and ascertain if it would come up to the representations and that his satisfaction and acceptance should be evidenced by a written acceptance. Where this is the case, he must manifest dissatisfaction in a reasonable time, which is, ordinarily, a question of fact, under the circumstances surrounding the parties. Meehem on Sales, §§ 665, 670, 671, and authorities cited in Cameron Steam Pump v. Lubbock, 167 S. W. 259, 260. The written contract or order in this ease requires certain notices, etc., with reference to a failure of warranty. If the appellants were relying upon the written warranty, they would be required to comply with its terms unless they allege and prove a waiver on the part of appellee. It has been argued here that the pleadings amount to a plea of waiver. We are not prepared to agree with appellant in that' contention. There are certain acts and facts alleged from which a waiver might be inferred, but this is not sufficient as a plea. In pleadings, the facts to be established should be directly averred,and not merely suggested as an inference from other facts stated. Kessler v. Bank, 21 Tex. Civ. App. 98, 51 S. W. 62.

The case will be reversed for the reasons above stated. The appellee, however, presents a cross-assignment of error, to the effect that the trial court erred in not sustaining its plea of abatement. The petition in this case alleges a cause of action against appellee, as heretofore set out, and asks for a cancellation of the notes given on the engine and the separator and alsp for the cancellation of the mortgages given to secure the notes, as well as for damages. It is alleged in tlie plea of abatement that appellee brought suit against tbe appellants, Street and Creamer, in tbe district court of Dallas county, on tbe notes, and to foreclose tbe mortgages herein sought to be canceled; that tbe appellants here there filed their answer and cross-petition to cancel the notes and mortgages and to recover damages substantially on the same grounds as set up in this case; that the parties and subject-matter in the two suits are identical; that the suit in Dallas county district court was first filed; and that court first obtained jurisdiction. We believe if the facts alleged in the plea are proven the suit in Potter county should be abated. There is some apparent conflict in the authorities in this state upon this question; but we believe the rule is fairly well established by our courts that two courts having concurrent jurisdiction will not at the same time entertain a suit between the same "parties over the same subject-matter, but the court first obtaining jurisdiction will hold it to the exclusion of the other. Cattlemen’s Trust Co. v. Blasingame, 184 S. W. 574; Lumber Co. v. Williamson, 164 S. W. 440; Goggan v. Morrison, 163 S. W. 119; Sparks v. Bank, 168 S. W. 48; Blassingame v. Trust Co., 174 S. W. 900; Ruling Case Law, vol. 1, Abatement, §§ 1, 2.

The case will be reversed and remanded.

On Motion for Rehearing.

The appellee calls our attention to an error in our statement of the pleadings in our opinion heretofore filed: That is, that appellee sought, by its answer in this case, “to recover on the notes mentioned in the plaintiff’s petition, and for foreclosure of the mortgage lien.” "This statement is incorrect. We evidently in making the statement had before us the certified copy of the petition filed by appellee in the Dallas court, which was attached to the plea in abatement. The appellee, in its motion for rehearing, asks that we, instead of reversing and remanding the cause, sustain the plea in abatement and dismiss the ease — we presume from the district court docket. This, as we understand the authorities, we could in no event do. If the judgment was void in the court a quo for want of jurisdiction, we, at most, could only dismiss the appeal. The judgment was not void, for the court had jurisdiction of the subject-matter and the parties. All that would oust it of jurisdiction is there was pending a suit for the same matter in another tribunal of competent and . concurrent jurisdiction. The case could be abated, if at all, on the grounds of comity, vexatious litigation, or multiplicity of suits, which would not oust the appellate court of jurisdiction on appeal. Even if the court below had no jurisdiction, it is suggested by the Supreme Court that it is the better practice to reverse and remand. Railway Co. v. Canyon, etc., 102 Tex. 478, 119 S. W. 294; Railway Co. v. Mathews, 169 S. W. 1052.

The appellant contends, inasmuch as-the plea in abatement had attached to it a certified copy of the petition and answer from the district court of Dallas county, that we here have the power to render'judgment, dismissing the case. We find no bill of exception in the record showing that any evidence-was introduced upon the plea in abatement or anything in the statement of facts or record showing such evidence. All that is in the record is the plea with its exhibits and the order of the court overruling the plea reciting that a hearing on the plea was had. A sworn plea of privilege is not prima facie, evidence of the facts alleged, and other proof of the facts must be introduced unless the facts are contained in the plaintiff’s petition. Ragland v. Guaranty Life Insurance Co., 157 S. W. 1187. If it should be held the exhibits to the plea — that is, the petition and answer — were in evidence, they, at most, only showed at a certain time the suit was instituted; this did not prove a then pending suit at the time this ease was instituted, or at the trial. For aught that is shown in this record, the Dallas suit may have been abandoned or dismissed. Red Deer Oil, etc., v. Huggins, 155 S. W. 949; Holland v. Western Bank, 56 Tex. Civ. App. 324, 118 S. W. 218. We held only if the- facts alleged in the-plea are proven the case should be abated. The record in this case does not show such proof.

The costs on this appeal are properly taxed against the appellee. If the case should be abated upon a hearing of the plea, the costs in the district court, of course, would be taxed against,the appellant. Threatt v. Johnson, 156 S. W. 1137.

The motion is overruled.
      @=Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (SsoEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    BRUNS KIMBALL & CO. v. AMUNDSEN.

    (No. 7240.)
    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Appeal and Ebrob <@=>544(2) — Absence of Statement of Facts.
    In the absence of a statement of facts, the Court of Civil Appeals cannot review the alleged error committed by the court in overruling the plaintiff’s motion for a peremptory instruction based on the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2424, 2428, 2478; Dec. Dig. <@=>544(2).]
    2. Fbaud <@=>34 — Misrepresentation — Pleading.
    The buyer of a gasoline engine, who, when sued on a note for a portion of the price, filed a cross-bill charging that by the fraudulent misrepresentations of plaintiff he was induced to part with a sum of money, for which he received nothing of value, seeking to recover it, no rescission or cancellation of the contract of sale being prayed for, could recover on his cross-bill, though it alleged that after he received the engine and discovered its defects he retained it, as his suit was to recover for fraud and not for a rescission.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 29; Dec. Dig. <@=>34.]
    3. Sales <@=>130(2) — Remedies of Buyer — Rescission.
    Where the buyer of a gasoline engine, sued on a note given for part of the price, filed a cross-bill seeking rescission and cancellation of the contract of sale, alleging that after he received the engine and discovered its defects he retained it, but not stating that he ever used it at all or that he never tendered' it back to plaintiff and demanded rescission, the admissions in the cross-bill were insufficient to defeat rescission.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 323; Dec. Dig. <@=>130(2).]
    4. Judgment <@=>251(1) — Conformity to Pleading.
    In suit on a note given for part of the price of an engine, where defendant, alleging fraud, pleaded total failure of consideration for the note, alleging the engine was worthless, he could nevertheless recover $750, the difference between the $1,000 paid-by him in cash and the $250 which the jury found the engine was worth, since a partial failure of consideration may be shown under plea of total failure on the theory that the greater includes the less.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. <@=>251(1).]
    5. Appeal and Erbob <@=>544(2) — Review — Refusal of Ci-iaeges.
    Where there is no statement of facts, the Court of Civil Appeals cannot say that the trial court erred in refusing to give special charges, requested by plaintiff, the propriety of which depended on the state of the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2424, 2428, 2478; Dec. Dig. <@=>544(2).]
    6. Teial <@=>136(1) — Submission of Issues.
    The trial court is never justified in submitting any issue to the jury unless it is raised by both the pleadings and proof.
    [Ed. Note. — For other eases, see Trial, Dec. Dig. <@=>136(1).] '
    7. Appeal and Ebbob <@=>928(3) — Absence of Statement of Facts — Submission of Issue.
    In the absence of a statement of facts, the Court of Civil Appeals must assume that the evidence raised the issues submitted to the jury by the trial court, and that no other issues, even if raised by the pleadings, were sustained by the proof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3751; Dec. Dig. <@=928(3).]
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by Bruns Kimball & Co. against Gus Amundsen. To review a judgment for defendant, plaintiff brings error.
    Affirmed.
    Stewarts, of Galveston, for plaintiff in error. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for 'defendant in error.

       Application for writ of error pending in Supreme Court.

   McMEANS, J.

Bruns Kimball & Co., a corporation, brought this suit against Gus Amundsen to recover $500 upon a promissory note executed by defendant to plaintiff on February 15, 1913, bearing 6 per cent, per annum interest from date, and to foreclose a mortgage on one 70 horse power twentieth century gasoline engine, given as security for the payment of said note. Plaintiff alleged that on the 15th day of February, 1913, it sold to defendant the said gasoline engine for the sum of $1,500, and that defendant paid upon the purchase price the sum of $1,-000 and executed said note to it for the remaining $500. It further alleged the gasoline engine to be worth $600 and no more.

A contract of sale which was entered into by the parties and attached as an exhibit to and as part of the petition contains the following provisions:

“First. Bruns Kimball & Company hereby agrees to sell to Gus Amundsen one seventy horse power twentieth century gasoline engine upon the terms and conditions herein contained.
“Second. Gus Amundsen agrees to purchase the said seventy horse power twentieth century gasoline engine conditioned that said engine conforms to the warranties contained in the correspondence between the parties concerning the sale thereof, and to pay for the same the sum of $1,500.00, to be paid as follows: $500.00 cash, which is hereby acknowledged by the said Bruns Kimball & Company; $500.00 upon the delivery of the said gasoline engine, and by executing a promissory note to the order of Bruns Kimball & Company for the sum of $500.00, payable on the 21st day of May, 1913.”

The defendant in defense of plaintiff’s suit upon the note pleaded failure of consideration, alleging:

“That the plaintiff had represented to this defendant by correspondence and otherwise that the engine they were offering to him for sale was of sound workmanship, free from defects and in good working order, and that he would be fully satisfied with same; that he was by the plaintiff required to pay the sum of $1,000 in advance as a part of the purchase price of said engine and to execute the note sued on by plaintiff for $500 more before this defendant had any opportunity to see or inspect the said engine or have it assembled or have it placed in position in one of his boats at the port of Galveston; that immediately after said engine was shipped to him by plaintiff, after he had paid said $1,000 and executed said aforesaid note for $500, the said defendant received said engine and had it installed in one of his boats and discovered that said engine was not as represented by plaintiff and was not a good nor sound nor perfect engine and .was not free from defects, but that said engine was old, defective, cracked in many places, practically worthless, and unfit for use; that he' immediately engaged skilled mechanics to work upon the said engine in an honest attempt to make said engine useful and of some value to him, in the meantime reporting all of said facts to the plaintiff; and that he faithfully, with his said mechanics, endeavored to utilize and use said engine, but was unable to do so because of the worn-out and defective and cracked engine and its defective parts at the time said engine was received by this defendant, all of which facts this defendant informed the plaintiff as soon as this defendant had an opportunity with his skilled mechanics to inspect said engine and to test its parts and see whether or not it would do the work it had been warranted and represented to do by the plaintiff to this defendant, but that after many attempts to use said engine and to repair said engine, and after expending much time and labor and money in an honest endeavor to repair said engine and make it useful, this defendant was forced to abandon this engine and to store the same, and that said engine was of no value whatever to this defendant in the condition in which it was received by him.”

Defendant then pleaded a cross-action against plaintiff to recover the money theretofore paid by him before and at the time of the delivery of the engine to him, in which he alleged:

“That plaintiff misrepresented the condition of said engine which it was offering by mail and correspondence to this defendant about the time this defendant conditionally agreed with plaintiff to purchase said engine, as is specified in the first and second paragraphs of the contract executed between plaintiff and defendant on or about February 25, 1913, which is attached to and made a part of the plaintiff’s petition, wherein plaintiff agreed and conditioned with defendant that the said engine would conform to the warranties contained in the correspondence between the parties concerning the sale of said engine by the plaintiff, and defendant again alleges that because of the worn, defective, and valueless condition of said engine, and because its parts were cracked and not susceptible of repair and not capable of use, the said plaintiff did by its fraudulent misrepresentations and by its deceit as to the condition, quality, and value of said engine, fraudulently -induce this defendant to pay to this plaintiff the sum of $1,000 as a part of the conditional sale of said engine and as specified before in this answer the said defendant received no value for his said sum of $1,000 and ought to recover said sum of defendant in this suit.
“Wherefore, all premises considered, defendant again prays that the plaintiff take nothing by its suit, and that defendant on this cross-bib have judgment over against plaintiff for said sum of $1,000, which plaintiff obtained from defendant by reason of its fraud and deceit and misrepresentations, as aforesaid, and defendant also prays for such other and further relief as he may by law and equity be entitled to receive; and for his costs, in this behalf expended.”

The case was submitted to the jury upon special issues as follows:

“(1) Did the twentieth century engine, delivered by plaintiff to defendant, substantially comply with the contract in evidence of February 15, 1913?” To which the jury answered, “No.”
“(2) What was the reasonable market value of the engine at the time of delivery ?” To which the jury answered, “Two hundred and fifty dollars.” i

Upon the return of the answers of the jury, the court entered judgment that plaintiff take nothing by its suit against defendant upon the note, and that the defendant recover of plaintiff the sum of $750 on his cross-action. From this judgment the plaintiff has appealed.

Appellant’s first assignment of error is as follows:

. “Because the court erred in overruling the motion, made by plaintiff at the conclusion of all the evidence, requesting the court to peremptorily instruct the jury to find a verdict for the plaintiff, in accordance with the prayer of its petition, and against the defendant on his counterclaim and cross-action, such instruction being designated as plaintiff’s requested charge number two; for the reason that all ,of the evidence introduced in the case shows that the defendant accepted the gasoline engine in controversy and immediately discovered the alleged defects therein, but that he nevertheless retained said engine and used same as his own for' a period of six months, at the expiration of which time he sold-, and disposed of the said engine without ever at any time having tendered the same back to the-plaintiff, or having demanded a cancellation and rescission of the contract for the sale of such engine.”

No statement of facts accompanies the-record in this case, and it is quite manifest that in the absence of a statement of facts the matters complained of in this assignment cannot be reviewed by the appellate court, unless, as appellant insists, the admissions of defendant in his answer are sufficient for this purpose. The allegations of the answer-relied upon to sustain the assignment were embraced in defendant’s plea of failure of consideration, and, as collated by appellant, are as follows:

“ * * * That immediately after said engine was shipped to him by the plaintiff * * * the said defendant received said engine and had it installed in one of his boats and discovered that said engine was not as represented * * * and was old, defective, cracked in many places, and practically worthless; * * * that after many attempts to use said engine and to repair same * * * defendant was forced to abandon this engine and to store the same.”

Appellant contends that:

“The record discloses nothing-that explains or extenuates the failure of the defendant to demand a rescission or cancellation of his contract or to tqnder back to plaintiff the engine within a reasonable time after the discovery of its condition.”

The vice in appellant’s position, as taken in the assignment, as well as throughout its brief, is that the defendant’s cross-action was for a rescission and cancellation of the contract of sale. The pleading is set put in full above, and in our opinion is susceptible of no such construction. He alleged in his cross-bill, in effect, that plaintiff, by fraudulent representations and deceit as to the condition, quality, and value of the engine, induced defendant to pay to it $1,000 as a part of the purchase price, and that defendant received nothing of value for the sum so paid, and that he should recover said sum from plaintiff. No rescission or cancellation of the contract of sale was prayed for; but the cross-bill, viewed as a whole, only charges that by the fraudulent misrepresentations of plaintiff the defendant was induced to part with a sum of money, for which he received nothing of value, and sought to recover it.

But even if the defendant’s cross-bill be construed as one for rescission of the contract of sale, we do not think that the pleading relied on as evidence is sufficient to sustain the assignment, in that it is not shown thereby that defendant retained and used the ■engine for a period of six months, as contended in the assignment, or for any other •definite period, and that he sold and disposed of it at that time; nor does it affirmatively show that he never tendered the same back to plaintiff and demanded a rescission of the ■contract of sale. The pleading relied upon ¡shows, only, that defendant did not discover •the alleged defects until he had installed the engine in one of his boats; it does not show that he ever used it at all, but only that he ■attempted to use it but could not do so; the time during which he made efforts to use it was not specified, nor was the length of time he kept it before he stored it stated. The -meager facts stated in the pleadings do not bring this case within that class of cases relied upon by appellant, viz. Houston Motor Car Co. v. Brashear, 158 S. W. 233, and Southern Gasoline Eng. Co. v. Adams, 169 S. W. 1144. The assignment is overruled.'

The second assignment cannot be sustained. It is true that the defendant pleaded a total failure of consideration for the note sued on, alleging that the engine was worthless. The jury found that the engine had a value of $250. While the evidence upon which the jury made this finding is not before us, we may assume that the finding was justified. The contention that a plea of total failure of consideration “must be sustained in its entirety” cannot be allowed. It has too often been held to require the citation of authority that a partial failure of consideration may be shown under a plea of total failure, on the theory that the greater includes the less.

The third, fourth, fifth, and sixth assignments complain of the refusal of the court to give to the jury certain special charges requested by plaintiff. Whether these charges should have been given depends upon the state of the evidence, and, as the facts are not before us, we cannot say that the court erred in refusing to give them. It does not appear that the requested charges were presented to the trial judge at such time as to require his consideration of them, and no bills of exception were reserved to the action of the court in refusing to give them.

The seventh, eighth, ninth, tenth, and eleventh assignments complain that the court erred in submitting the issues that were submitted, for the reason “that such issues do not correctly cover the issues in the case.”

The court is never justified in submitting any issue to the jury unless it is raised by both the pleadings and proof. In the absence of a statement of facts, we must assume that the evidence raised the issues that were submitted, and that no other issues, even if raised by the pleadings, were sustained by the proof. Hence the assignments are overruled.

We have sufficiently disposed of the twelfth assignment by what we have said in disposing of the first.

We find no error in the record requiring a reversal, and the judgment of the court below is affirmed.

Affirmed.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GARDNER et al. v. SITTIG.
    (No. 7234.)

    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Pleading <$=>247 — Amendment — Subsequent Accruing Installments.
    The lessor, not having elected to cancel lease, as permitted thereby for nonpayment of rent, but to continue it in full force, may, in an action for installment of rents, payable monthly, recover installments accruing thereafter and before the trial, making claim therefor by amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 684, 685; Dec. Dig. <$=5247.]
    2. Frauds, Statute of <g=>129(3) — Oral Contract — Part Performance.
    Moving out by the lessee cannot be considered part performance of an oral contract to rescind the lease, being subsequent to insistence of the lessor that the lease be complied with.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 289-291; Dec. Dig. <$=> 129(3).]
    3. Frauds, Statute of <$=>140 — Parol Evidence-Rescission of Written Contract.
    A lease being, as required by the statute of fraud, in writing, rescission thereof cannot be proved by parol.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 156, 342; Dec. Dig. <§=> 140.]
    4. Frauds, Statute of <$=>140 — Parol Evidence-Estoppel.
    The lessor is not estopped to object to evidence of oral rescission of lease in writing, as required by the statute of fraud, because of the lessee moving out, this being after the lessor insisted on performance of the lease.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 156, 342; Dec. Dig. <®=> .140.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by A. Franklin Sittig against Alf Gardner and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Elliott Cage, of Houston, for plaintiffs in error. Ross & Wood and W. J. Howard, all of Houston, for defendant in error.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

A. Franklin Sittig brought this suit against Alf Gardner and Fred W. Martin, individually and as partners doing business under the firm name of Houston Sporting Goods Store, and against the Houston Sporting Goods Store as a partnership, to recover $1,845 alleged to be due as rent for a business house owned by plaintiff, situated at 906 Franklin avenue in the city of Houston, and occupied by defendants under a leasé from plaintiff, by the terms of which lease the defendants agreed to pay as rental $150 per month in advance, with the option to plaintiff to terminate the lease if the defendants failed to pay the monthly rental promptly, or failed to comply with any of the other covenants contained in the lease.

Plaintiff alleged that the defendants under and by virtue of said lease entered into possession of the premises, and have since conducted a store for the sale of goods, wares, and merchandise on the premises until about the 1st of July, 1914, when, over the objection and protest of plaintiff, who was asserting a landlord’s lien on the fixtures and goods in the store building, the defendants removed said fixtures and stock from the building, which since that time has been unoccupied; that defendants paid the rental in full and up to and including October 15, 1914, and $105 which was applied on the rental for the month ending November 15, 1914; that the balance due at the date of the filing of this petition was $1,-695, and that defendants have refused to pay said amount; that plaintiff is the owner of the premises leased, and that the goods upon which plaintiff claims a lien had been removed to 910 Preston avenue, in the city of Houston, and that plaintiff had a preference lien on all of said goods, wares, and merchandise ; that other installments of rent will accrue up to the date of the trial of the case; and that plaintiff will be entitled to a judgment for those amounts.

Defendants answered, alleging that they entered into a contract with plaintiff to lease the property described in plaintiff’s petition, but that on or about January 16, 1914, the contract was canceled at the suggestion of the plaintiff, and the parties to the lease made and entered into an agreement by the terms of which the plaintiff agreed to release the defendants from any liability for any rent then due, to allow the Houston Sporting Goods Store to remain in said building until July 1, 1914, without any charge ■for rent, and to pay the defendant the sum of $500 in consideration of their agreeing to canceling of said lease and the further consideration of their vacating the building by July 1, 1914; that in compliance with said agreements the defendants vacated said building before July 1, 1914, and have never used same since said date; that they have carried out their agreement and vacated said building, but that plaintiff had failed and refused to pay them the agreed sum of $500. Wherefore they prayed that plaintiff take nothing by his suit, and that they have judgment against him for the sum of $500.

By supplemental petition plaintiff denied that the contract was canceled in January, 1914, or that he entered into the agreement alleged by defendants; that if such agreement was made, it was verbal and relates to a contract required by law to be in writing, and was therefore void and within the statute of frauds.

Defendants, by their supplemental answer, denied that plaintiff protested or objected to their moving from the leased premises; that they were, at the time they occupied the building, merchants, buying and selling goods and merchandise in the regular course of business, and that plaintiff was not entitled to a lien as claimed by him upon the stock; that since their removal, from the building they have bought and sold goods in the regular course of business, and that a great quantity of goods now on hand, and upon which plaintiff was claiming a lien, were purchased since their removal from the building, and that plaintiff had no lien thereon. They denied that the agreement canceling the lease, was within the statute of frauds. They further alleged that at the time of the agreement, canceling the lease, plaintiff anticipated leasing the whole of the building or disposing of same, and was extremely anxious to have same vacated by July 1, 1914, and that it was for these reasons and at his earnest solicitation that they made the agreement canceling the lease.

Plaintiff by trial amendment alleged that since the filing of this amended petition another installment of rent had become due, making the total amount then due $1,845, and prayed for judgment for that amount and the establishment and foreclosure of his landlord’s lien.

The case was tried before a jury, and at the conclusion of the testimony the jury, in obedience to peremptory instructions from the court, returned a verdict for plaintiff and against defendants for $1,845 and foreclosure of the landlord’s lien on certain goods in the rented building, upon which judgment was accordingly entered. Afterwards, however, the plaintiff remitted $150 of the recovery, and judgment was then entered in his favor for $1,695, from which the defendants have appealed.

By their first assignment of error appellants complain that the court erred in rendering judgment against them for $1,-845; their contention being that plaintiff was not entitled to a judgment for rent which accrued after the date of filing of the original petition, which was April 8, 1914. By their proposition they contend that plaintiff was not entitled to recover any rents which accrued after the filing of the petition and the surrender of the building by defendants. The business house was leased by plaintiff to defendants for a period of five years, commencing August 16, 1911, and ending August 16, 1916, and defendants took immediate possession. The consideration was $150 per month, to be paid monthly in advance. At the time of filing the suit on April 8, 1914, there was due and owing the plaintiff for rents under the terms of the lease $795. On July 1, 1914, the defendants abandoned the building, and at that time the rents accrued and unpaid amounted to $1,-095. Thereafter, as. subsequent installments of rentals fell due, plaintiff amended his petition and sought recovery of them. The last amendment was filed October 16, 1914, in which it was shown that the rent for October was due, and prayed for a recovery of all the rents accrued up to that time. There was then due and owing by defendants $1,695. There was no evidence to show that plaintiff had elected to cancel the lease by virtue of any of the provisions of the contract, but, on the contrary, that he had elected to continue the lease in full force. It is our conclusion that under the contract of lease under consideration, the plaintiff was entitled to sue for the monthly installments of rent as fast as they fell due, and to include and recover for all unpaid installments up to the time of filing the trial petition. Racke v. Brewing Ass’n, 17 Tex. Civ. App. 167, 42 S. W. 774. The assignment is overruled.

The second assignment is as follows:

“The court erred in instructing a verdict in favor of plaintiff, because defendants had alleged and attempted to prove a verbal contract be-' tween plaintiff and defendants, canceling the written lease under the terms of which plaintiff was awarded a judgment in this cause.”

Their third assignment is as follows:

“The court erred in refusing to permit defendants to introduce testimony in regard to oral contract alleged by defendants, canceling the written lease sued on in this cause.”

Under the foregoing assignments, which are presented together, appellants advance the proposition that when an oral contract has been performed by one of the parties, such part performance will take the case out of the statute of frauds. On the trial the defendant offered to prove that on or about January 16, 1914, at the instance and request of plaintiff, the parties to the contract of lease entered into an oral agreement, by the terms of which plaintiff agreed -to release defendants for any liability for rent then due, and to allow the Houston Sporting Goods Store to remain in the leased building until July 1, 1914, without any charge for rent, and to pay defendants $500 if they vacated the building by July 1, 1914. The testimony rejected was not sufficient to prove, nor did it tend to prove, more than an offer on plaintiff’s part to rescind the contract and an acceptance of the offer by defendants. According to the proffered proof the agreement to rescind was made on January 16, 1914, and did not call for any action in reference thereto by defendants until July 1, 1914. It was shown that on the date last stated defendants moved out of the rented building, but when they did so they knew that plaintiff was insisting upon a full compliance upon their part with the terms of the lease both as to the payment of the monthly rent in advance and the retention of the building during the life of the contract ; for ‘ in April, some two or three months before* they moved, plaintiff had filed his suit to recover the very installments which the defendants claimed he had remitted, and was insisting on the enforcement of his landlord’s lien upon the property of defendants in the leased building as security for the payment of rents. It appears, then, that the defendants’ removal under the circumstances cannot be construed as performance, either in whole or in part, of the alleged agreement of rescission. But it occurs to us that the proffered testimony was, in the circumstances of this case, inadmissible for the purpose for which it was offered, for the reason that the agreement to rescind was within the statute of frauds, and could not be proved by parol testimony; the original contract having been in writing, and the term of the lease running over a period of one year. It was early held that an agreement for the rescission of an executory contract for the sale of land is within the statute, and requires the same character of evidence to establish it as is required to establish the sale (Dial v. Crane, 10 Tex. 444), and this rule has been consistently followed (Sanborn v. Murphy, 5 Tex. Civ. App. 509, 25 S. W. 460, and authorities cited; Erwin v. Daniels, 34 Tex. Civ. App. 378, 79 S. W. 61). If the rescission of an executory contract for the sale of land is required to be proved by the same kind of evidence as is required to establish the sale, we think, by analogy, the rescission of a lease of real estate, which is required by the statute of frauds to be in writing, should also be proved by the same character of evidence. In Beard v. Gooch, 62 Tex. Civ. App. 69, 130 S. W. 1023, it is held that parol evidence is inadmissible to prove a change or modification of the terms of a written lease of land covering a period of more than one year. We recognize, of course, that a situation might arise where the lessor might be estopped from objecting to parol proof of a subsequent' oral agreement for the rescission or modification of a written lease, as where, for instance, the lessee had acted upon the parol agreement to his disadvantage, thereby rendering it inequitable for the lessor to require further performance by the lessee of the original lease; but there are no facts in this case, as has been before shown, to raise the issue of es-toppel. It follows that the court did not err in rejecting the proffered testimony, and the assignments raising the point are overruled.

The fourth assignment is sufficiently disposed of by what we have said in disposing of the second and third, and is overruled.

We find ^10 reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.
      cg=jPor other cases seé same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes