author: BUCK, J.

text:
    PATTERSON v. BUSHONG et al.
    (No. 8605.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 4, 1917.
    Rehearing Denied June 30, 1917.)
    1. Appeal and Error <&wkey;281(l) — Scope op Review — Preservation of Exceptions.
    Assignments of error not directed to the attention of the trial court in the motion for new trial cannot be considered in view of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1612, and rules 101 and 101a (159 S. W. xi).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281.]
    2. Appeal and Error &wkey;>742(5) — Scope of Review — Preservation of Exceptions.
    Assignments of error to the refusal to submit issues to the jury cannot be considered in the absence of the evidence in the statement under the assignments to show the materiality of such issues.
    3. Vendor and Purchaser &wkey;>37(4) — Fraudulent Representations — Reliance—Right to Relt.
    Where the agent of the purchaser inspected the land sold and secured the opinions of persons in the neighborhood not influenced by the vendor as to the value of the land, reliance on tho statement of the vendor’s agent as to the value of the land per acre cannot be claimed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 57.]
    4. Vendor and Purchaser <&wkey;37(l) — Fraudulent Representations — Reliance—Right to Rely.
    One who undertakes to discover the truth of representations made to him is charged with the knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations merely because they wore made to him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 54.]
    5. Principal and Agent &wkey;>177(4) — Knowledge of Agent.
    One who constituted another her agenf to purchase land for her was bound by such agent’s knowledge as to the character and value of the land.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 676.]
    6. Trial <&wkey;114 — Argument of Counsel.
    In a case submitted on special issues the counsel should not discuss in their argument to the jury the effect on the judgment to be rendered by the court of the findings of the jury on the issues involved.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 275-278, 296.]
    Appeal from District Court, Tarrant County; Mike E. Smith, Special Judge.
    Suit by Mrs. Hattie J. Bushong and husband against G. R. Patterson. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Samuels & Brown and Durward McDonald, all of Ft. Worth, for appellant. Peden & Lipscomb, Slay & Simon-, and Theodore Mack, all of Ft. Worth, for appellees.
   BUCK, J.

On January 15, 1915, Hattie J. Bushong, joined by her husband, J. D. Bush-ong, sued G. R. Patterson, ■ and for cause of action alleged: That plaintiff Hattie J. Bushong was the lawful owner in her own separate right of certain described property situated in Tarrant county, consisting of hotel property known as the “Mohawk Hotel,” residence property on Pruitt street, both in the city of Ft. Worth, and 188.2 acres known and described as the T. C. U. property, the latter being a farm upon which, plaintiffs resided, used as a farm and dairy. Plaintiff alleged that the market value of said Mohawk Hotel, property, over and above all in-cumbrances then existing, was $35,000, and the market value of the other two described tracts was $22,500, over and above all incum-brances then existing; that G. R. Patterson was the owner of 3,000 acres of land situated in Dimmitt county, described by metes and bounds, and that said Patterson, and his agents, servants, etc., through false and fraudulent representations induced plaintiff Hattie J. Bushong to convey to him by warranty deeds all the land situated in Tarrant county above described in exchange for the Dimmitt county lands, and by said false and fraudulent representations induced her to execute and deliver to Patterson notes aggregating $62,500, said notes being made payable to said Patterson.

The specific representation relied on, and which plaintiff alleged to have been made to her by defendant, Patterson, or his agent, and which she alleged to have been fraudulent, was that the Dimmitt county land was actually worth the sum of $40 per acre at the time of the making of said trade or exchange of properties, and that said representation of value was a representation of fact and was false and fraudulent, and that the land was worth not more than $10 per acre. Other allegations were made as to asserted fraudulent representations made by-defendant, or his agents, to the effect that lands of the same character and land and in the vicinity of defendant’s land, which he sold to plaintiff, were selling at the time of said transaction for $40 to $60 per acre, etc., but for the- purposes of this opinion we limit our discussion to the allegation as to the alleged statement by defendant as to what the land was actually worth.

Plaintiff alleged that she resided in Ft. Worth and was not acquainted with thp value of lands in the vicinity of the Dimmitt county land, and lived some 400 miles distant from said land, and that she relied particularly upon the alleged representation made to her by defendant, or his agents, as to the said value. It was further alleged that since the exchange of lands had been effected defendant had negotiated said notes amounting to $62,500 to one J. B. Wilson, who was made defendant, and had placed it beyond the power of the court to award her a rescission of said contract and sale and a cancellation of said notes. But it was averred that the defendant Wilson had other security given to him by said defendant Patterson to secure tho payment of Patterson’s debt to him, and plaintiff prayed that Wilson be required to exhaust such other security before using said notes executed by plaintiff to satisfy said debt. It was further alleged that defendant Patterson was insolvent, and plaintiff prayed for the fixing of an equitable lien on the property conveyed by her to Patterson to secure her in The payment of such damages as might be awarded.

Defendant Patterson answered by general demurrer and general denial, and specially denied any fraudulent purpose on his part, but admitted that he had stated and represented to the plaintiff that in his opinion the Dimmitt county land was worth $40 per acre, and averred that said land had really a higher money value than $40, if improved and subdivided, properly advertised, etc. He further pleaded negotiations between him, represented by his agent, A. It. Porsyth, a real estate broker of San Antonio, Tex., and the plaintiffs, represented by the Winters Kealty Company and the Winter-Poster Company, each company in turn also being represented by H. E. Barnett He further alleged the execution by plaintiff of one promissory note for $25,000, dated November 3, 1913, in-which was reserved a vendor’s lien on the south 1,500 acres of the Dimmitt county land, and a further note in the sum of $37,500, dated December 24, 1913, retaining a vendor’s lien on the north one-half of the Dim-mitt county 3,000-aere tract, and the failure of plaintiffs to pay the interest due on said notes, and defendant prayed for foreclosure of said lien on the above two tracts of land, and that it be sold to satisfy his debt. He further pleaded that on September 18, 1914, he had delivered as collateral to J. B. Wilson, of Dallas county, Tex., the notes sued upon, among other securities, to secure a certain loan of $50,000 due five years after date, bearing interest at 8 per cent., and that he, defendant Patterson, prosecuted this action for himself and for said Wilson, as their interest might appear, and prayed for relief for himself and Wilson, generally and specially.

Further pleadings were filed in the case, but we think we have stated sufficient above to indicate the issues presented.

On July 6, 1915, the cause came on for trial and was submitted to the jury on special issues, which were answered substantially for defendant Patterson. Verdict was received in open court by the judge and ordered recorded, and defendant Patterson filed his motion for judgment, which motion was by the court overruled, “because the court is of the opinion that the findings of the jury are so conflicting that no valid judgment can be rendered thereon.” Defendant excepted to this order, and on July 13, 1916, filed his assignments of error directed to the action of the court in refusing judgment.

On April 4, 1916, plaintiff filed hdr second amended original petition covering some 18 pages of the transcript. On April 10th defendant Patterson filed his second amended answer, covering some 12 pages of the trans-script. The cause was submitted to the jury on special issues again, and the jury found: (1) That the property conveyed by Mrs. Bushong to the defendant Patterson was her own separate property; (2) that Mrs. Bush-ong “prior to the time she conveyed said propérty, authorized her husband, J. L. Bush-ong, either alone or in conjunction with the J. N. Winters Realty Company, or H. E. Barnett, to represent her in the transaction leading up to and culminating in the transactions whereby there was conveyed to said Patterson the property situated in and near Pt. Worth, as described in the pleadings”; (3) that the defendant G. R. Patterson, through his agent, A. R. Porsyth, represented to plaintiff Hattie J. Bushong at and before the execution of the deeds and notes by her that the land belonging to said Patterson in Dimmitt county was on November 3 and December 31, 1913, worth $40 per acre, and that such representation was made as a statement of a fact and was false; (4) that Mrs: Bushong believed said representations to be true and relied thereon, and that said representations induced her to execute, the deeds and notes aforesaid; (5) that the reasonable market value of the south 1,500 acres of the Dimmitt county land on November 3, 1913, was $15 per acre, and the reasonable value of the north 1,500 acres on December 31, 1913, was $17 per acre; (6) that the reasonable market value of the Mohawk Hotel property on November 3, 1913, was $50,000, and the reasonable market value of the Pruitt street property was $12,000, and the reasonable market value of the T. C. U. farm on December 31, 1913, was $200 per acre. Upon this verdict the court rendered judgment for plaintiff against defendant Patterson in the sum of $50,500, being the difference in value found between the property conveyed to Patterson by Mrs. Bushong, including the $62,500 notes, and the value of the property conveyed by Patterson to plaintiff, with 6 pe!r cent, interest from date and costs of suit. The judgment further decreed plaintiff an equitable lien upon the property conveyed by Hattie! J. Bushong and husband to the defendant Patterson. Judgment was given to defendant Patterson against J. L. Bushong and Hattie J. Bushong for $14,033.-80, said judgment providing that defendant should not be entitled to process to enforce the collection thereof unless and until he satisfied the Judgment in favor of the plaintiff Hattie J. Bushong against him for the sum of $50,500, either by placing a credit to that extent on the notes of the said Hattie J. Bushong, transferred by Patterson to Wilson, or by paying off and discharging the indebtedness due by him (Patterson) to said Wilson. It was further provided .that, should Patterson make default in the payment of interest maturing on the $50,000 note held by Wilson, dated September 18, 1914, and should said Wilson lawfully and because of said default elect to declare said note due and payable, or if said defendant Patterson should make default in the payment of principal or interest, or any part of same, of the indebtedness now existing upon the property conveyed by plaintiffs to the defendant Patterson, and the holder or holders of said indebtedness secured by said liens on said property theretofore conveyed by the Bushongs to Patterson should, because of said failure on Patterson’s part, elect to declare said indebtedness due, then said Hattie J. Bushong should be entitled to an order of sale against defendant Patterson directing the sale of all the property transferred and conveyed by the said Bush-ongs to Patterson, and upon which an equitable lien was fixed and enforced by the judgment in favor of said Iíattie J. Bushong. There were other provisions of the judgment not necessary here to state. Prom this judgment defendant has prosecuted an appeal.

The record in this case is very voluminous, the transcript consisting of some 189 pages, the statement of facts of 335 pages, and the briefs of appellant and appellee! of some 140 pages each, and we have devoted considerable time and labor to a study of the record and the examination of authorities cited, and investigation as to the tenability of the many contentions of error made by appellant.

The first six assignments in appellant’s brief are directed to alleged errors with reference to the first he/aring, but we hold that such assignments are not presented in a form and under circumstances which justify their consideration, inasmuch as the matters complained of were not directed to the attention of the trial court in appellant’s motion for new trial. The assignments of.error urged in the motion for new trial and in the trial court must constitute the assignments in the Court of Appeals. Vernon’s Sayles’ Texas Civil Statutes, art. 1612; Rules 101, 101a, for District and County Courts (159 S. W. xi). Hence all of these assignments must be .overruled..

In a group of assignments error is urged to the failure to submit various tendered special issues, but in some of these, notably the ninth, the evidence is undisputed as to the issue presented; in others, for instance the eleventh and seventeenth, no evidence is quoted in the statement undefc the assignments showing the materiality of the issues, or that they were in the case by reason of facts testified to or evidence offered, and therefore we cannot hold that there was error in the refusal of the court to submit such issues. Dermott Town-Site Co. v. Wooten, 193 S. W. 214.

Another group of assignments is directed to alleged errors in the judgment and in the relief awarded appellee, and the burdens and restrictions placed upon appellant in the satisfaction of the judgment awarded him, but we are of the opinion that, if the court was authorized under the facts in the case and under the1 findings of the jury to render judgment for the plaintiff below at all, no successful attack can be made as to the provisions of the judgment concealing which complaint is made. It appears the judgment was well considered and carefully written, and that the trial court, having concluded that the verdict of the jury authorized a judgment for plaintiff, sedulously guarded the rights of the several parties affected by the judgment.

The evidence shows that much of the property, if not all, conveyed by the Bush-ongs to Patterson, was the separate estate of Mrs. Bushong; that A. R. Forsyth, agent for Patterson, and in company with Patterson, was in Ft. Worth some'time during the year 1913, and Forsyth went to the office of the Winters Realty Company and was introduced to Mr. Barnett, of that company. Mention was made by Forsyth of this Dimmitt county land owned by his client, and Barnett stated that he might interest Judge Bushong in such a deal. The two went out to see Bushong, and gave him a description of the land, and then they, in company with Patterson, went to see the Ft. Worth and Tarrant county property owned by the Bushongs. Patterson finally rejected the offer and declined to trade, and he and Forsyth returned to San Antonio. A few days later, at the instance of Bushong, Barnett went to San Antonio, and there met Forsyth, and renewed negotiations concerning the proposed trade. Patterson was out of the city, and Barnett returned to Ft. Worth without seeing him. Later Bushong and Barnett went to San Antonio, and there were joined by Forsyth, and the three went out to see the Dimmitt county land. They looked over it carefully, and Barnett and Bushong, together and separately, talked to various persons on the land and to others owning or living on adjacent lands, and living in the town of Carrizo Springs, near by. Upon their return to Carrizo Springs they went to see Patterson, who was sick in a hotel there, and they agreed upon and prepared the written contract of an exchange of the south one-half of the 3,000 acres for the Bushong property; Bushong signing said contract for himself and as agent for his wife, Mrs. Hattie J. Bushong. Bushong and Barnett returned to Ft. Worth, and in due course of time abstracts of title were exchanged for examination. Titles having been straightened out satisfactorily to ■ Patterson and Bushong in the early part of November, 1913, Patterson and Forsyth came to Ft. Worth and met Barnett and Bushong. The deeds having been prepared at the request of Judge Bushong, Messrs. Barnett and Forsyth went out in their-car to the T O. U. farm, where the Bushongs resided, to secure the signature of Mrs. Bushong to the deed. This appears to be the first time that Forsyth had met Mrs. Bushong. They all returned to Ft. Worth, and went to Judge Bush-ong’s office, where the deeds were executed ; Patterson executing a deed to the south 1,500 acres, and the Bushongs conveying to Fatterson the Mohawk Hotel, at a recited consideration of $70,000, and upon which there was an incumbrance of $32,000, and the Pruitt street property and the T. C. U. farm property. Mrs. Bushong testified that at this time she had not met Mr. Patterson. She testified that at the farm that morning, and perhaps later after she came to Ft. Worth, Forsyth told her that the Dimmitt county land was worth $40 an acre, and that other land was selling in that vicinity for $50 and $60 an acre, etc. She testified that she relied on the statement as to the value of the land, and would not have made the exchange of properties except for such reliance. Forsyth admitted that he told her that the land was worth $40 an acre, but claimed that such statement was ■ a mere expression of opinion, and that he believed at the time of the trial that the land was worth that much. Patterson testified that he authorized Forsyth to state to prospective purchasers that the land was worth $40 an acre. Eater the north one-haif of the 3,000-aere tract was sold by Patterson to the Bushongs, the deed to the south one-half being dated November 6, 1013, and the deed to the north one-half being dated December 31, 1913, both deeds to the property of the Bushongs given in part exchange for the Dimmitt county land being signed by J. L. and Hattie J. Bushong and properly executed and acknowledged.

-The jury found that Patterson, through his agent, Forsyth; represented to Mrs. Bush-ong before the execution of the deeds and notes by her that the land conveyed by Patterson to the Bushongs was on November 3d and December 31st worth $40 per acre, and that such representation was made as. the statement of a fact, and that Mrs. Bushong believed such statement to be true and relied thereon, and that such statement was false; that the reasonable market value was $15 an acre for the south 1,500 acres and $17 an acre for the north 1,500 acres. * No attack is made by appellant on the findings of the jury, though he does allege error in the judgment rendered, and in- the submission of the issues: (1) As to whether said alleged representations were false or true; (2) as to- whether Mrs. Bushong believed the same to be true; (3) as to whether she relied thereon; (4) whether said.representations induced her to execute the deeds and notes to the defendant Patterson.

The controlling question presented by these several assignments is whether Mrs. Bushong had the right to rely upon the statements of the -agent, Forsyth, that the Dimmitt county land was worth $40 an acre. As before stated, the evidence shows that the renewal of negotiations of trade between the Bushongs and Patterson was initiated by Judge Bushong. After the first visit of Patterson, accompanied by Forsyth,' to Ft. Worth with reference to the proposed deal, and after the failure of agreement of the parties, and Patterson had returned home, it was -Bushong who sent his selected agent, Barnett, to San Antonio to reopen negotiations and to try to effect a trade. Failing to see Patterson, who was out of the city, Barnett returned to Ft. Worth, and later he and Bushong went to San Antonio, and then to Dimmitt county, to inspect the land. The evidence shows that this inspection was thorough, and that both Bushong and Bar-nfett talked freely with persons who were likely to know and who they thought were acquainted with the local conditions and the character and value of the lands under investigation. There is nothing to indicate that Patterson, who was sick in a hotel at Carrizo Springs, and did not go- with the party out to see the land, said anything or did anything to mislead Bushong or Barnett in any way, or that Forsyth did anything, to prevent a thorough investigation on the part of Bushong and Barnett. The land was there open to inspection, and it is not even contended by appellee that the persons in Dimmitt county to whom Bushong and Barnett talked, and with whom they consulted, were sought to be influenced, in giving their opinions, by Patterson or Forsyth, or that they did not truthfully and impartially disclose the actual conditions existing as they viewed them. The two parties to the negotiations were dealing at arm’s length; no trust or 'fiduciary relation existed between them.

Under the facts and conditions presented, it could not reasonably be claimed that, if Forsyth at that time had stated to Bushong that the land was worth $40 an, acre, Bushong would have been justified in relying on such statement as an averment of an existing fact, or as a basis of fraud. It is said in 12 R. C. L. p. 244, that:

“As a general rule, in order to constitute actionable fraud, a false representation must relate to a matter of fact, and such fact must be one which exists in the present or which has existed in the past. It must also relate to a fact which is susceptible of knowledge; otherwise there is nothing in relation to which the persons making it could state what he knew to be untrue. Generally, therefore, fraud cannot be predicated upon the mere expression of an opinion which is understood to be only such or cannot reasonably be understood to be anything else, nor upon representations in regard to matters of estimate or judgment. The person to whom such statements are made has no right to rely upon them, and does so at his peril, nor can it be supposed that they influenced his judgment.”

On page 250, Id., the text says:

“Mere general commendations of property sought to be sold, commonly known as trade talk, dealers’ talk, seller’s statements, or puffing, do not' amount to actionable misrepresentations whore the parties deal at arm’s length, and have equal means of information and are equally qualified to judge of the value of the property sold. This rule is based on the universal practice of the seller to recommend the article or thing offered for sale and to employ more or less extravagant language in connection therewith. The law does not hold him to a strict accountability for those vague commendations of his wares which manifestly are open to difference of opinion, and which do not imply untrue assertions concerning matters of direct observation, nor has the buyer any right to rely on such statements. It has even been held that such talk will not render the seller liable in damages, although he acts in bad faith. Some of the statements to which the general rule has been applied are: Representations as to the advantages of a purchase; advice by a vendee to the vendor to accept the last chance to get his money; statements by the agent of one bidding for a contract that his bid for the work is as low as the work can bo done, and that there is no profit in it at that price; and exaggerated statements as to the value or quality of property, and the like.”

On page 253 of the same work is found the following language:

“Further illustrations of the rule are that fraud cannot be based upon representations concerning the future value or profitableness or prospects of a business, such as representations of future insolvency; nor upon representations as to the future value of property, or as to future prospects of gain,” etc.

See Oneal v. Weisman, 39 Tex. Civ. App. 592, 88 S. W. 290; Slaughter v. Gerson, 13 Wall. 379, 20 L. Ed. 627.

One who undertakes to discover the truth of representations made to him is charged with the knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations! merely because they were made to him. Newman v. Lyman et al., 165 S. W. 136, writ denied 170 S. W. xviii; Kelley v. Peeples, 192 Mo. App. 435, 182 S. W. 809.

The jury having found in answer to the issue submitted that Mrs. Bushong, prior to the time she conveyed her property to Patterson, authorized her husband, J. L. Bushong, either alone or in conjunction with the Winters Realty Company, or H. E. Barnett, to represent her in the transaction leading up to and culminating in both deals of exchange and conveyance, it follows that she was charged with the knowledge acquired and possessed during the course of their agency by her selected agents as to the character and value of the Dimmitt county land. 1 Mechera on Agency, § 170; 2 Mechem on Agency, § 1802 et seq.

The good faith of Forsyth in stating to Mrs. Bushong that the land was worth $40 an acre seems not to have been questioned. At least his statement that in so stating it was the expression of an honest opinion is not controverted, and the court sustained the objections of plaintiff, as shown by the fourteenth and fifteenth assignments, to the admission of testimony as to the price that Patterson had paid for the Dimmitt county land, and no issue was submitted as to the good faith of the statement as to value made by Forsyth. This statement is made in view of the conflict of authority as to whether an expression of an opinion is rendered actionable by the existence of a fraudulent intent. See 12 R. O. L. p. 249.

Under the facts disclosed by the record, and in view of the finding of the jury that Mrs. Bushong authorized her husband and others named to represent her in the negotiations leading up to and culminating in the exchange of properties, we have concluded that Mrs. Bushong was not justified in relying on the statement of Forsyth as to the value of the land and in accepting it as a statement of a material fact. Mrs. Bushong’s testimony strongly indicates that she is a woman of large business experience and superior business sagacity, and that through her chosen agents, prior to the culmination of the trades mentioned, she made as full an investigation as she thought proper as to the desirability of the proposed trades and the value of the land which she was purchasing. Hence we have concluded that the court erred, as complained of in the seventh assignment, in rendering judgment in favor of the plaintiff upon the evidence submitted and the facts found by the jury. At best, the finding of the jury as to the agency of plaintiff’s husband, the real estate company, and Barnett, and the findings as to her reliance on the statements of value alleged to have been made by For-syth, are conflicting, and do not form the proper basis for the judgment rendered; for if, under the circumstances shown, Mrs. Bushong investigated fully and so far as she desired, through her selected agents, the lands to be purchased, in law she would have no right to rely on the representations made by the other party’s agent concerning the value of the land.

We are also1 of the opinion that the argument of counsel for plaintiff complained of in the twenty-third assignment presents error. The counsel used the following language:

“Gentlemen of the jury, as to. whether For-syth stated that the land was worth $40 per acre as a statement of fact or as his opinion is very important, and to'illustrate: If I trade horses with you and tell you that the horse is 5 years old, but as a fact he is 14 years old, and the horse is down in Dimmitt county, tha court says [italics ours] I can recover damages for the misrepresentation. He made this statement as a fact, and not as his opinion. This matter of opinion was an afterthought.”

In a case submitted on special issues the counsel should not discuss in their argument to the jury the effect on the judgment to be rendered by the court of the findings of the jury on the issues tendered. It is true the bill of exception states that upon the objection of defendant’s counsel to the remarks of the counsel for plaintiffs here complained of “the court stopped counsel for plaintiffs, and instructed the jury that it was their province to answer the issues to them submitted as questions of fact, regardless of their opinion as to the law, and that it was the duty of the court to apply the law to the facts as found by the jury,” but the court declined to withdraw the case from the jury as requested by the defendant. While we are not prepared to 'say that, under the circumstances related, we would feel bound to reverse the judgment rendered upon this error alone, yet tie error is apparent, and we do not feel satisfied that the instruction of the court to the jury removed entirely the natural and probable injurious effects of the improper argument. Fain v. Nelms, 156 S. W. 281; T. & P. Ry. Co. v. Rasmussen, 181 S. W. 212, 217; G., H. & H. Ry. Co. v. Hodnett, 182 S. W. 7.

For the reasons indicated the judgment of the trial court is reversed, and the cause remanded.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J. CONNER, C. J.

license: Public Domain

text:
    HUNT v. HUNT.
    (No. 8601.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 19, 1917.
    Rehearing Denied June 23, 1917.)
    1. Divorce <&wkey;62(6) —■ JURISDICTION — Plaintiff’s Domicile.
    Plaintiff does not comply with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632, by acquiring residence in the county where divorce suit was filed 6 months next preceding the filing, but leaving it again almost' immediately and staying away for 3% months, partly through fear that her husband would take her children from her and partly on account of their health, though she had bona fide intention to make the county her home during all that time, since actual residence for a more substantial part of 6-month period is required.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 200-202, 220.]
    2. Divorce <&wkey;62(6)— Jurisdiction —Plaintiff’s Domicile.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632, was not complied with where plaintiff had actually resided in the county where suit was filed for 6 months next preceding filing of an amended petition for divorce, but not for 6 months next preceding original institution of suit, and decree was rendered day after filing of amended petition, since statute provides that no divorce shall be granted before 30 days after suit filed.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 200-202, 220.]
    3. Divorce <&wkey;104, 146 — Continuance — Amendment of Petition — Discretion of Court.
    The court did not abuse its discretion by continuing a divorce suit after partial hearing of evidence and allowing plaintiff to file amended petition at subsequent term, especially in absence of any showing of prejudice to defendant thereby.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 27, 28, 164, 328-339, 471-473, 477, 488-492.]
    Conner, C. J., dissenting.
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by Mrs. Bessie Hunt against C. B. Hunt. From decree for plaintiff, defendant appeals.
    Reversed and remanded.
    Bird & Bird, of Dallas, for appellant. Lat-timore, Doyle, Bouldin & Lattimofe, of Ft. Worth, for appellee.
   DUNKLIN, J.

C. B. Hunt, defendant in the trial court, has appealed from a decree of divorce granted in favor of his wife, Mrs. Bessie Hunt, by the district court of Tarrant county. The principal question raised by the appellant is that plaintiff had not resided in Tarrant county for .6 months next preceding the institution of the suit, and therefore the trial court never acquired jurisdiction to render the decree.

Plaintiff had lived in Tarrant county prior to her marriage. After her marriage she moved to Abilene, and when she separated from her husband she came to Ft. Worth, arriving here on May 30, 1915. The suit was filed December 1, 1915, just 6 iponths and 1 day from the date of her arrival in Ft. Worth after the ' separation. She testified that upon her arrival in Ft. Worth it was her intention to make that her home. After a stay of 7 days in Ft. Worth, she went to Galveston on "a visit to her sister. She testified that the reason she made this visit was through fear that her husband would take her children from her, as he threatened to do. She remained in Galveston some 2 months, then went to Ballinger to visit a sister on account of the ill health of her little boy. She returned to Ft. Worth about 2 months prior to December 1st, the date of the filing of her original petition, and she continued to reside in Ft. Worth until the date of the trial, which was on March 30, 1916. The defendant filed an amended answer on March 23, 1916, and on March 29, 1916, the day before the trial, plaintiff filed her amended original petition upon which the decree of divorce was rendered. It thus appears that she resided in Ft. Worth continuously for more than 6 months prior to the filing of the amended original petition, but that she had actually resided in Ft. Worth only for about 2ya months prior, to the filing of the original, petition. By article 4632, Vernon’s Sayles’ Texas Civil Statutes, it is provided that:

“No suit for a divorce from the bonds of matrimony shall be maintained in the courts of this state unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of the state for a period of twelve months, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit. * * * ”

In Michael v. Michael, 34 Tex. Civ. App. 630, 79 S. W. 74, Brashear v. Brashear, 99 S. W. 568, and Dickinson v. Dickinson, 138 S. W. 205, it was held that an actual residence in the county for 6 months next preceding the filing of the suit is a necessary prerequisite to the right of a plaintiff to maintain the suit, and that a mere constructive residence for that period of time is not sufficient; in other words, that such actual residence for only a minor portion' of that period, even though it is accompanied with a bona fide fixed intention to make that County one’s residence and home, does not come within the meaning of the statute. Haymond v. Haymond, 74 Tex. 414, 12 S. W. 90, seems to be the leading case upon that question. But in that decision the following was said:

“We do not think -that a temporary absence from the state or county of an inhabitant of the state during the six month’s next preceding the filing' of his petition for divorce would affect his right to maintain it. We think, however, that there may be such residence abroad, without the loss of citizenship or domicile for other purposes, as will cause the provisions of the statute referred to to be applicable and- deprive the party of the right to maintain a suit for divorce in our courts.”

In Fox v. Fox, 179 S. W. 883, the evidence showed that the plaintiff was absent from the county in which the suit was instituted during frequent short intervals within the 6 months next preceding the filing of the suit, notwithstanding which a decree of divorce was affirmed. The opinion rendered in that case seems to give a more liberal interpretation of the statutes in favor of the plaintiff than was applied in the three cases first mentioned above; in other words, that decision laid considerable stress upon the bona fide intention of the party to make and claim residence in the county in which the suit was instituted.

However, we are of the opinion that in order to sustain the decree of divorce the proof should at least show residence in the county in which the suit was instituted for a more substantial portion of the 6-month period next preceding the filing of the suit than was shown in the present suit. According to plaintiff’s own testimony, when she first returned to Tarrant county she remained there only a few days, after which she went to Galveston, where she remained approximately 2 months before going to the western portion of the state on account of the health of her child. Her testimony indicates that the reason she left Tarrant county and went to Galveston was on account of fear that her husband would execute his threat to take her children from her, but she does not assign such fear on her part as the cause of her continued stay in Galveston. As- noted above, her actual residence in Tar-rant county was for a period of time less than onc-half of that required by the statute, and we think it would be an unreasonable construction to say that the proof showed an actual residence in Tarrant county for the statutory period of 6 months prior to the filing of the suit.

In Dunlop v. Dunlop, 60 Tex. Civ. App. 389, 130 S. W. 715, and McDean v. Randell, 135 S. W. 1116, it was held that 6 months’ residence in the county next preceding the filing of an amended petition upon which the divorce was granted would be sufficient to give the court jurisdiction to try the case, even though the plaintiff had not resided in the county 6 months next preceding the original institution of the suit. We would feel inclined to adopt that rule and, accordingly, sustain the decree of divorce in the present suit but for the fact that by article 4632 it is provided that the “suit [for divorce] shall not be hoard or divorce granted before the expiration of 30 days after the same is filed.”

As noted above, the decree of divorce was rendered on the next day following the filing of the amended petition, and hence, even if that petition be regarded as the true date of the filing of the suit, the same will avail nothing to the appellee in view of the statute referred to.

We do not think that it was any abuse of the court’s discretion to continue the case after partial hearing of the evidence, and at a subsequent term to allow plaintiff to file an amended petition, especially in the absence of any showing of prejudice to the defendant thereby.

For the reasons noted, the judgment of the trial court is reversed, and the cause remanded.

CONNER, C. J.

(dissenting). I feel unwilling to concur iru the conclusions of the majority in this case. As’ stated by the majority, plaintiff’s home was in Tarrant county prior to her marriage, and when she separated from her husband she returned thereto on May 30, 1915, with the fixed intention, so far as disclosed by the testimony, of malting’ Ft. Worth her home. At this time she brought her trunk with her containing her possessions; at least all the effects that the record discloses she had. With such fixed intention she remained in Ft. Worth until impelled, as she testified, to visit her sister in Galveston by fear that her husband would take her children, as he had threatened to do. She took with her two suitcases filled with clothing, but nothing else. She further testified that after she had been in Galveston a couple of months she went to her sister’s in Ballinger; that her little boy’s health was bad, and that she took him there “because every time he goes to West Texas he gets strong, 'and that is the reason I went there, thinking his health would improve.” She thereupon, as stated by the majority, returned to Ft. Worth, where she continued to reside some 2% months prior to the filing of her original petition. It nowhere appears" that during the plaintiff's absence from Ft. Worth that she abandoned her original intent to make that city her home and residence. On the contrary, it affirmatively appears that such intent continued in actual force all during the times of her visits to Galveston and Ballinger. The intent constitutes an important and often a controlling element in the establishment of home and residence, and it has several times been held that a temporary absence will not destroy a residence once in good faith begun. Haymond v. Haymond, 74 Tex. 414, 12 S. W. 90; Fox v. Fox, 179 S. W. 883; McLean v. Randell, 135 S. W. 1117. In the last two cases cited evidence less cogent, as it seems to me, than the evidence in this case on the same subject, was held sufficient to sustain the lower court’s finding in the plaintiff’s favor on the issue, of her residence. In aid of the judgment in appellee’s favor we must imply, if necessary, a finding by the trial court that the allegation in the plaintiff’s petition that she was a bona fide resident of Tarrant county, Tex., for the 6 months next preceding the filing of her original petition, was sustained by the proof, and in my judgment the evidence in this case is sufficient to support this finding.

But at all events, the amended petition, under the undisputed evidence, brought the plaintiff’ within the statute (see Dunlop v. Dunlop, 60 Tex. Civ. App. 389, 130 S. W. 715; McLean v. Randell, 135. S. W. 1116), and in my opinion the proviso of. Revised Statutes, art. 4632, quoted and relied upon by the majority, did not preclude the trial on the day of its filing. The proviso is not jurisdictional, as I construe it, but relates to a mere matter of procedure, and appellant made no objection below to so proceeding, and no objection on this ground has been presented by appellant in this court, and under our statute permitting amendments (article 1824) the amendment when allowed and filed related back to the filing of the original petition within the meaning and purposes of the proviso; so that there was in fact no violation of its spirit.

I,, therefore, am of the opinion that the judgment below should be affirmed.
      ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HUTCHENS et al. v. DRESSER et al.
    (No. 8647.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 21, 1917.
    Rehearing Denied June 23, 1917.)
    1. Courts <&wkey;247(3) — Jurisdiction—District Court.
    The district court has appellate jurisdiction only over the administration of estates of deceased persons.
    [Ed. Note. — For other cases, see Courts, Cent. Die. §§ 759, 760.]
    2. Courts <&wkey;472(3j — Exclusive ' or Concurrent Jurisdiction — Probate Jurisdiction.
    Under Const, art. 5, § 16, giving county courts the -jurisdiction of probate courts, and Vernon’s Sayle-s’ Ann. Civ. St. 1914, art. 3358, providing the provisions of a probated will shall be executed unless annulled by an order of the court probating it, the county court has exclusive original jurisdiction over probate matters.
    3. Partition &wkey;>38 — Jurisdiction—Pending Administration Proceedings.
    The district court has no jurisdiction to partition an estate where administration proceedings are pending upon appeal to the district court from the county court and the questions raised in the partition suit could have been raised in the administration proceedings.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 91, 92.]
    4. Words and Phrases — “Pending.”
    The word “pending” means undecided or un-disposed of.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Pending.]
    5. Husband and Wire &wkey;>273(3) — Community Property — Waiver.
    A wife’s acceptance of her husband’s will, which disposed only of his interest in their community property, does not waive her community rights.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1011.]
    Appeal from District Court, Cooke County; O. F. Spencer, Judge.
    Partition suit by Jennie Hutchens and G. C. Dresser against Richard Dresser and others. From a judgment dismissing the suit, plaintiffs appeal.
    Affirmed.
    J. T. Adams and Stuart, Bell & Moore, all of Gainesville, for appellants. W. E. Murphy, H. S. Holman, and Culp & Culp, all of Gainesville, for appellees.
   BUCK, J.

Appellants, Jennie Hutchens, joined by her husband, and G. C. Dresser, filed suit for partition against their two sisters and three brothers; alleging that the two plaintiffs and the five defendants were the children of E. J. Dresser and Zenobia C. Dresser, both deceased; that each child was entitled to a one-seventh undivided interest in the proiierty left by their deceased father, which consisted of certain described lots and personal property, of the alleged aggregate value of $17,869.15; that by the will of their deceased father each child was to receive a one-seventh interest in the community estate of their parents, subject to a life estate in the same in favor of their mother, she having survived the father; tliat during the life of plaintiff’s mother they each received from her out of the personal property the sum of $1,200; that defendants had exclusive possession of all of said property remaining, and they denied that plaintiffs had any interest in or title thereto. It was alleged that the property consisted largely of notes, claims, and, cash, .and was liable to be wasted or, lost unless a proper person was designated and. appointed by the court to take charge thereof. Wherefore they prayed for the appointment of such person, and, upon final hearing, for partition. A copy of the inventory and appraisement in the matter of the estate of E. J. Dresser filed by Mrs. Zenobia O. Dresser, independent executrix, was attached to the petition, also a copy of the will of the deceased father.

Defendants answered, alleging that by the will of the deceased father his one-half interest in the community estate of himself and wife was disposed of; that the will was duly probated by their mother, as independent executrix; that soon thereafter these plaintiffs became insistent to obtain their interest in the estate of their deceased father, notwithstanding the provisions giving the mother a life estate therein, and accordingly said mother, as such executrix, paid each plaintiff the sum of $1,200, the same being their proportionate share of their father’s estate after the payment of the expenses of the last sickness of their father and the expenses incident to the probating of the will; that plaintiffs had executed a complete release to their mother, as executrix, of all claims they might have in and to the estate of their father; and that they now have no right or title to any part thereof. They further alleged that Mrs. Zenobia C. Dresser died on March 18, 1914, leaving a will by which she disposed of all of her estate; that said will had been duly probated in the probate court of Oooke county, the plaintiffs contesting the probating thereof; that plaintiffs, as such contestants, had given notice of appeal from the judgment of the probate court, and that the case was then pending in tire district court of Oooke county; that the county court of Cooke .county was a court of general jurisdiction, and had the sole and exclusive jurisdiction to probate sa-id will and to administer the estate of the said Zenobia C. Dresser, deceased, in accordance with said will; and that the district court had no jurisdiction other than to adjudicate and to pass upon the application to probate said will upon the appeal perfected as aforesaid and then pending in said district court. Wherefore defendants prayed that the instant suit abate for want of jurisdiction. Defendants further pleaded in the alternative, by way of general demurrer and special exceptions. They admitted that the inventory and appraisement pleaded by plaintiffs was prolkbly correct, but denied that by .the terms of the will of their deceased father, E. J. Dresser, there was a disposition of and equal division of the property belonging to the entire community estate, but that said will only disposed of the said E. J. Dresser’s community interest in the estate of himself and wife; that by the terms of said will deceased’s wife and plaintiff’s mother took a life estate with a remainder therein to the children; and that the interests of the plaintiffs in their father’s estate had long since been settled, and the executrix had received a release therefor. Attached to. said answer a copy of two deeds by the plaintiffs to their mother covering certain real estate contained in the inventory aforesaid and a copy of the receipt given by the plaintiffs to their mother for the payment of $2,402.74 acknowledged to be in full settlement of plaintiffs’ interests in their father’s estate, which release approximated the value of some $8,409.63. This receipt and acquittance, as well as the deeds mentioned, were duly acknowledged by plaintiffs.

Plaintiffs, by way of supplemental petition, denied that the will of their father passed, or was intended to pass, an undivided one-half interest in and to the community estate of their father and mother to the mother of plaintiffs and defendants, but alleged that their father by said will devised and bequeathed to the mother of plaintiffs and defendants the entire community estate during her lifetime, and provided that at her death the entire estate was to be divided equally between plaintiffs and defendants; that the mother of plaintiffs and defendants so regarded said will, and after the death of their father she caused said will to be probated, accepted the terms of said will, an'd elected to take thereunder, and waived thereby any community interest in and to the property in controversy. It was further -pleaded that the - parents of plaintiffs and defendants, being advanced in years, and desiring to mutually provide for their children, did on or about the 31st day of May, 1911, each make a will of the same purport and .tenor, by the terms of which the survivor was to have the use of all the community estate during his or her life, and at the death of the survivor the community property should be divided equally among the children; that by reason of the premises aforesaid their mother, as such survivor, became and was the trustee for the use and benefit of all of their said children named in their father’s will, and of all the community property belonging to the joint estate; and that the mother had no legal right or authority to make any disposition by will or otherwise of said property contrary to the terms of the will of said father, but the legal title to all said community estate vested in the children, subject to the life estate in favor of their mother, upon the death of the father. They •further denied that they intended to receipt for and acknowledge a full payment of their entire interest in and to. the joint estate of their parents, but only intended to receipt for - one-half of their interest in said joint estate, which was their proportionate part of their father’s half interest in said joint estate. They further attacked the validity of the will made by their mother and of the proceedings had with reference thereto.

Upon a hearing of defendant’s exceptions to plaintiffs’ petition raising the question of the jurisdiction of the district court to hear and determine the issues presented, the court rendered a judgment holding that the county court of Cooke county had exclusive original jurisdiction of all of the issues involved in this suit, and dismissed the suit, and the plaintiffs appealed.

We are of the opinion that under the facts pleaded the judgment rendered was correct. The jurisdiction of the district court in the administration of estates of deceased persons is appellate only. Levy v. W. L. Moody & Co., 87 S. W. 205; Ballard v. Wheeler, 23 Tex. Civ. App. 422, 56 S. W. 946; Ralston v. Stainbrook, 187 S. W. 413. The county court has original exclusive' jurisdiction over probate matters. Article 5, § 16, Constitution of Texas; article 3358, Vernon’s Sayles’ Texas Civil Statutes; Hilgers v. Hilgers, 159 S. W. 851; Buchner v. Wait (writ denied) 137 S. W. 383; Franks v. Chapman, 60 Tex. 46; Fisher v. Wood, 65 Tex. 199. The plaintiffs having admitted that they received their proportionate part of the one-half interest of their father in the community estate, and the averment of defendants that there was now pending on appeal to the district court from the county court a case involving the probate of the last will and testament of Mrs. Dresser, the mother, and the plaintiffs not having denied this averment, but, on the other hand, having admitted the same, the district court in original action was without jurisdiction to determine the question of title to the remaining one-half of the community estate and to award a partition thereof. The jurisdiction of the district court to partition estates can be invoked only where no administration thereon is pending. This rule is recognized in Williamson v. McElroy, 155 S. W. 998, cited by appellants, where it is said:

“Again, there was no administration pending upon the estate in question, and the plaintiffs and defendants, being joint owners of said estate, were entitled, as a matter of right, to have it partitioned among them according to their respective interests; and the district court having concurent jurisdiction with the county or probate court to partition estates, where no administration is pending, the district court was not without jurisdiction to partition the property involved in this suit.”

The case of Japheft v. Pullen, 133 S. W. 441, cited by appellants in support of their contention, shows that in that case the ap-pellee. Mrs. Bettie Pullen, brought suit against Mrs. Ida Japhet as independent executrix without bond of the estate of plaintiff’s deceased father; that said executrix “duly qualified as such under said testamentary appointment, and, after filing an inventory and appraisement and list of claims as such executrix, the matter of the estate was dropped from the probate docket, and she took possession in her own right as owner of an undivided one-half of the property, and as independent executrix of all the property of the estate, it being community property of herself and deceased husband.” The matter of the administration of the estate in the cited case was not, therefore, pending. The word “pending,” as here used, means undecided or undisposed of. The plaintiff, having married since her father’s death, and therefore being emancipated, was entitled to recover her part of her father’s estate against the executrix and to enforce a partition in any court of competent jurisdiction. Hence the holding in the cited case that the district court had jurisdiction to determine in whom the equitable title to the property involved was and decree a partition thereof.

In Bente v. Sullivan, 52 Tex. Civ. App. 454, 115 S. W. 351, also cited by appellants, it was held that an action by a widow against the executor of her husband’s will for the setting apart to her of heir homestead exemption, she electing not to take under the will, was not a suit to set aside any provision of the will, but was merely an assertion of right by decedent’s wife! to property which she! was entitled to recover against the executor, over which the district court had jurisdiction if the necessary jurisdictional amount was in controversy, as the executor in defending the suit was acting independently of the probate court.

The case of Wiseman v. Swain, 114 S. W. 145, also relied on, was a suit by a creditor of the decedent against the latter’s widow, who had been granted letters of survivorship and her bondsmen to establish a debt. It was there held that the district court had jurisdiction to entertain the suit. There, too, the evidence and pleadings showed that the defendant had fully administered the estate and made a distribution of it among the heirs. The court says:

“If the county court had any control over her, it had lost it by a full administration of the estate.”

In Leatherwood v. Arnold, 66 Tex. 414, 1 S. W. 173, it is said:

“The creditor may reach the bond of the survivor by a proceeding under the statute, or he may pursue the remedy by judgment and execution.”

In none of these cases referred to was the question of validity of the will which purported to dispose of the property in controversy still pending in the probate court, or in the district court on appeal; hence we do not think they are pertinent to the facts of the instant case. Appellants acknowledge they have received each their one-seventh interest in their father’s one-half of the community estate. Their suit here is for an alleged interest in the other half which their mother purported to dispose of by her will. Until the validity of Mrs. Dresser’s will has been finally decided, and in favor of the contestants, the plaintiffs have no enforceable right to partition of their mother’s said one-half of the community estate.

It may be proper for us to say here, in view of our disposition of the case, that in our opinion on its face tlie will of the fathelr, E. J. Dresser, does not purport to dispose of the entire community estate, but only of his one-half interest therein. Hence the acceptance of the terms of said will-by Mrs. Zeno-bia 0. Dresser would not constitute an election by her and a waiver of her community rights. If the plaintiffs here, and contestants in the county court, questioned the purport of the father’s will, and should insist that said will indicated an intention and purpose on the part of the testator to dispose of the entire community estate, that issue could properly be determined in the proceeding looking to- the probate of the mother’s will. It does not appear that she had any separate estate, and if the father’s will disposed of the entire community estate and the mother elected to take thereunder, and to accept the! life estate in the entire estate in lieu of her right to the one-half of such community estate, then there would be no property subject to disposition by hdr, and the will would not be subject to probate. Therefore all of the contentions of plaintiffs here presented would have been available, and doubtless were urged by them as contestants, in the county court. That case still pending, a suit of the character disclosed in plaintiff’s pleadings in the instant case could not be maintained until the questions involved in the county court proceedings were settled. We do not wish to be understood as passing upon the right of plaintiffs in the proper court, and at the time to recover any interest they may show themselves entitled to recover further in the community estate. Such question is not before us.

We think the judgment should be affirmed; and it is so ordered.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes


author: DUNKBIN, J.

text:
    BRITTON v. EAGAN.
    (No. 8699.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 18, 1917.)
    1. Brokers "&wkey;8-2(l) — Action for Compensation — SUFFICIENCY OF PETITION.
    Petition, in suit to recover broker’s commissions for procuring contract for exchange of .lands, held good as against a general demurrer, although plaintiff should have been required to allege more fully the terms of the original contract of exchange.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. § 101:]
    2. Appeal and Error' &wkey;>1039-(2) — Harmless Error — Pleading.
    Failure of a petition, in a broker’s action for compensation, to allege fully terms of' an alleged contract, did not warrant reversal, where it was -probable that no harm resulted to appellant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4075.]
    3.. Appeal and Error &wkey;>1041(5) — Harmless Error — Supplemental Pleading.
    The alleging of matter in a supplemental petition which properly - should have been alleged in an amended petition will not warrant reversal, where it was probable that no harm resulted to appellant.'
    4. Brokers &wkey;>86(5) — Action for Compensation-Sufficiency of Evidence — Ability of Purchaser to Perform.
    In a broker’s action for commissions for procuring contract for exchange of lands, evidence held insufficient to show that.one of the parties was able to pay the difference in value necessary to carry out the contract, which the other party had refused to go on with.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 120-.]
    5. Brokers <&wkey;52 — Compensation — Exchange of Property — Necessity of Completed Contract.
    A broker did not earn commissions for procuring an exchange of properties, unless there was a definite, final, and unconditional agreement between the parties upon all terms of the trade.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 73.]
    6. Brokers <&wkey;52 — Compensation — Exchange of Property — Withdrawal of Tentative Offer.
    If one party withdrew a tentative offer, for the exchange of lands, before it was finally accepted by the other party, a broker cquld recover no commissions for his services in procuring the trade.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 73.]
    7. Brokers <&wkey;S2(4) — Action for Compensation — Issues, Proof, and Variance.
    A variance arose where proof and allegations in petition, in broker’s action for commissions in- procuring exchange of lands, differed as to amount one party to the proposed trade was to pay to the other.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 103.]
    8. Brokers <&wkey;52 — Compensation — Exchange of'Property.
    If a contract entered into, for a proposed exchange of lands, could be specifically enforced, a broker could recover for his services in bringing about .the execution of the contract, which would in effect have been a sale.
    [Ed. Note. — For other cases, see Brokers, Cent. £>ig. § 73.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Suit by J. J. Eagan against A. D. Britton and another. Judgment for plaintiff against defendant named, and in favor of defendant W. T. Moore, and defendant named appeals.
    Reversed and remanded.
    R. E. Carswell, of Decatur, and J. M. Blankenship, of Wichita Falls, for appellant. Ratliff & Spencer, of Decatur, for appellee.
   DUNKBIN, J.

J. J. Eagan instituted this suit against W. T. Moore and- A. D. Britton to recover a broker’s commission from each of the defendants which plaintiff claimed to be due him for his services as such broker. Upon the trial a judgment was rendered in favor, of the defendant. Moore upon motion of the plaintiff, but in plaintiff’s favor against Britton, who has prosecuted this appeal.

According to allegations in the plaintiff’s petition,.he was employed by each of the defendants to effect, an exchange between.them of property they owned, respectively, and each of the defendants agreed to pay him for such services a commission of 2% per cent, of the valuation placed by the owner upon his property. Britton owned 347 acres of land in Archer county, which he valued at $35 an acre, and against which there was an outstanding incumbrance of approximately $3,-000. Moore owned 120 acres of land situated in Wise county, Tex., which he valued at $95 per acre, and against which there was an incumbrance of something over $7,000. Plaintiff alleged that through his efforts negotiations were begun between the two owners for an exchange of their respective properties with each other, which resulted in an agreement of exchange between them, which was definite and specific and fully understood ; such' agreement being that each owner was to convey his property to the other, the grantee in each deed to assume the outstanding incumbrance against the property so conveyed to him, and Moore was to pay to Britton in addition the sum of $1,755.50 in cash as the difference in the values of the two properties. It was further alleged that after such alleged agreement for exchange was reached, Moore was ready, willing, and able to consummate the exchange, but that the defendant Britton without legal cause or excuse refused to consummate the trade. Plaintiff alleged that by reason of those facts he had earned his commission, notwithstanding the fact that the proposed exchange was never in fact made.

We are of the opinion that the petition was good as against a general demurrer, but that the trial court should have required plaintiff to allege more fully the terms of the alleged contract of exchange, as contended by appellant in a special exception to the petition; and that the matter set up in the supplemental petition more properly should have been alleged in an amended petition. Those errors, however, would not of themselves require a reversal of the judgment in view of the fact that it does not seem that the same resulted in any probable harm to the appellant. ,

We are of the opinion, however, that the evidence was insufficient to sustain the finding of the jury that Moore was able to pay the difference in the values of the two properties, which payment was necessary to effect the exchange according to the allegations in plaintiff’s petition. The evidence shows conclusively that such difference in values was at least $4,500, and probably more. Plaintiff introduced Moore as a witness, who testified that he did not have the money on hand with which to make such payment, but that he expected to raise the same by placing an additional incumbrance upon the 347 acres of land which he expected to get from Britton in the exchange. He further testified that that was the only source from which he could have raised the money, if it was possible to raise it in that manner. He did not testify that he had ever applied to any one for such a loan, and hence, as a matter of course, could not tell whether or not he ■ could have secured such additional loan upon the land, if he had made the effort. Neither did plaintiff offer the testimony of any one who was in the habit of making loans of that character that such an additional loan upon Britton’s land could have been procured. While Moore did testify that he valued Britton’s land at $35 per acre, that the incumbrance he was to assume against it was only $3,000, that loan companies usually loan, about 50 per cent, of the value of the land, and that he had never failed to get a loan whenever he desired one, and thought he could, by placing a second lien upon Britton’s land, have secured the necessary amount to make the trade, we do not believe- that such evidence was sufficient to support the finding of the jury that he could have done so. At best it was a- mere guess or surmise on his part. If there were loan companies in business that could and would have advanced the additional amount on Brit-ton’s land, their testimony should have been produced. While Moore and Britton both valued Britton’s land at $35 per acre in the exchange, it does not necessarily follow that loan companies would have placed the same valuation. Nor does -it necessarily follow that loan companies would have been willing in any event to take a second lien upon the land. Appellee calls attention to the fact that Moore further testified that he owned four mules worth about $600, and a horse worth about $100, and seven or eight head of 'cows, all of which were unincumbered, and insists, in effect, that those were assets which the jury had a right to consider in determining Moore’s ability to raise the amount necessary to make the exchange. But according to Bloore’s testimony he did not intend to borrow any money upon those animals, and, furthermore, there is no testimony whatever as to what amount he could have borrowed by mortgaging them; He further testified that he was already indebted in the sum of $400 over and above what he owed on his land. Moore admitted that the difference it would have been necessary for him to pay in order to make an exchange was about $4,500, and the record suggests that it was probably more than that. But adding that sum to the $3,000 incumbrance against Britton’s land already. would make $7,500,' while 50 per cent, of the value of the- 347 acres owned by Britton at the rate of. $35 per acre would have been only $6,072. According to those figures, even though Moore had found a loan company willing to increase the incumbrance against the land to the extent of 50 per cent, of the valuation at $35 per acre, he could not have borrowed more than $3,072, thus showing that he would have lacked.$1,42S of the amount necessary to make the exchange.

Construing Moore’s testimony most favorably to the plaintiff, we do not think it authorized the finding by the jury that he was able to make the exchange upon the terms negotiated by the plaintiff, and for that reason the judgment is reversed and the cause remanded. Lanham v. Cockrell, 194 S. W. 936.

Other assignments to the manner and form •in which the special issues were submitted to the jury will not be discussed in view of the fact that probably the criticisms made will be avoided upon another trial. We 'deem it proper to suggest further that it seems to us somewhat doubtful that the evidence, viewed in a light -most favorable to the plaintiff, showed that the minds of the parties ever finally met upon the terms of a trade. It seems from Moore’s own testimony that at the time when it is claimed that there was a full agreement upon the terms of the trade, the agreement on the part of Moore was subject to an inspection of Britton’s land by his son .and son-in-law, and that while such inspection was being made and before Moore finally and unconditionally agreed to accept the land, the offer theretofore made by Brit-ton was withdrawn by him. And in this connection it is to be noted further that according to Moore’s testimony he told Britton that the incumbrance against his land was only $6,800, while it was proven beyond controversy that the same amounted to $7,009, ánd probably more.

It cannot be questioned that, at all events, plaintiff did not earn any commission, unless there was a definite, final, and unconditional agreement between the parties upon all the terms of the trade; and that if Brit-ton withdrew any tentative offer before the same was finally accepted by Moore, no commission was earned. In this respect the suit differs from one in which a commission is claimed for the services of a broker in finding a purchaser ready., willing, and able to buy property for a price already fixed by the owner, and for which the broker is authorized to sell. However, the question last mentioned is suggested only in view of another trial of the case, and we do not wish to be understood as fully determining it in view of the fact that it was not raised by any assignment of error.

Another question that has occurred to us, but which has not been raised, arises from the fact that there is a variance between the proof and the allegations in plaintiff’s petition with respect to the difference which plaintiff alleged Moore was to pay to Britton in the proposed exchange of properties ; the allegation in the petition being that Moore was to pay only $1,755.50 in cash, while the proof shows that he was to pay at least $4,500. We deem it proper to say, further, that if the parties had entered into a written contract of_ exchange which could have been specifically enforced, then the broker would have earned his commission because such a contract would ’have been, in effect, a sale. Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847; Seidel v. Walker, 173 S. W. 1170. But in the absence of such a contract, authorities along that line which are urged by the appellee have no application.

For the reasons noted, the judgment is reversed, and the cause remanded.
      For otlier oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and indexes


author: CONNER, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. HENSLEY.
    (No. 8696.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 16, 1917.)
    1. Evi-dence &wkey;>491 — Opinion on Mixed Question op Law and Faci>-Time Consumed in Transit.
    A witness’ testimony, based on his own experience as to time usually consumed in shipping cattle between specified points; did not violate the rule making incompetent any opinion upon a mixed question of law and fact, although he testified that he had never shipped cattle to the place in question, but based his opinion upon the time for shipment to an intermediate point and from such point to the place of consignment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2269.]
    2. Appeal and Error &wkey;»1051(l) — Harmless Error — Admission op Opinion Evidence— Other Similar Evidence.
    The admission of opinion evidence as to time usually consumed in shipment of live stock, held harmless in view of other evidence including a subsequent examination of that witness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166.]
    3. Evidence <&wkey;493 — Opinion—Condition op Cattle — Effect op Carrier’s Delay in Shipment.
    In an action for injuries to live stock shipment it was competent for an experienced witness to testify in answer to a hypothetical question as to the effect upon cattle of carrier’s delays and rough handling shown by the testimony, and such effect in the way of shrinkage in weight and stale appearance affecting the selling price.
    [Ed. Note. — For ' other cases,' see Evidence. Cent. Dig. §§.2275-2282.1
    Appeal from District Court, Jack County; F. O. McKinsey, Judge.
    Action by H. J. Hensley against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    ■ Lassiter & Harrison, of Ft. Worth, and Stark & Stark, of Jacksboro, for appellant. Sporer & McClure, of Jacksboro, for appellee.
   CONNER, C. J.

Appellee recovered a judgment for $671.28 as damages to a cattle shipment from Jack county, Tex., to Kansas-City, Mo. The grounds of recovery as alleged were those that usually arise in shipments of like character and the total damages because of delays, rough handling, shrinkage in weight and stale appearance, were laid in the sum of $1,027.38. Little or nothing new is presented in the record. The shipment consisted of ten cars—less than a trainload.

The first assignment of error goes to the answer of the appellee' while testifying as a witness relating to the subject of the usual time of making a run of the kind from Jacksboro to Kansas City, Mo. The bill of exception presenting the matter sets out the colloquies between counsel and the witness and the court and counsel at considerable length, all culminating, so far as we are able to tell, in the following question and answer:

“Q. (by-counsel for appellee). State the number of hours ordinarily consumed in the transportation of cattle from Jacksboro to the Kansas City stockyards.”

Appellant, .by its counsel, objected to the question as “hearsay, irrelevant, incompetent, involving an opinion of the witness on a mixed question of law and fact which should be decided by the court and jury.” The witness answered:

“As I told you at first, I never went with any shipment from here, but have run it 28 to 30 hours at Addington, and takes about 10 hours from here to Addington. That is all the way I can answer the question. Q. (by counsel for appellee). How many hours would that take? A. Take about 30 hours.”

We think it apparent that the answer of the witness is not in violation of the rule announced in the Robert Case to the effect that it is incompetent for a witness to give an opinion upon a mixed question of law and fact. Appellee qualified as a shipper of cattle to the Kansas City and other markets for many years, and while he stated that he had never in person accompanied a shipment from Jacksboro, Tex.,' to Kansas City, Mo., he testified that he had personally attended shipments from Jacksboro to Addington, Kan., and other shipments from Addington to Kansas City, Mo.; that shipments from Jacks-boro to Addington were usually made within about 10 hours, and from Addington to Kansas City in about 30 hours. The answer of the witness in character was but the statement of a fact arising out of his own experience, and as such we think was entirely competent.

Moreover, when the answer of the witness is read in the light of a subsequent examination wherein he stated that the 30 hours from Addington and the 10 hours from Jacksboro to Addington did not “include time taken out for feed,” which he stated usually took from 6 to 7 hours, and in the light of the testimony of several other witnesses, to the effect, that the usual shipment ’from Jacks-boro to Kansas City, Mo., was made in 48 hours, it was certainly without prejudicial effect. To illustrate, the substance of the testimony of appellee as a whole is that the usual shipment from Jacksboro to Kansas City when cattle were fed en route, as were those involved in the present shipment, would take about 47 hours, and the witness Knox, after having stated that he had been shipping cattle to Kansas Tfity stockyards from 20 to 25 years, testified that:

“The time consumed in an ordinary shipment of cattle from Jacksboro to Kansas City stockyards generally takes me about 48 hours, I think, as near as I can remember, 40 to 48 hours. That is where they have to unload the cattle (for feed).”

A. B. Warner, the vice president and general superintendent of the appellant company, and who was offered as a witness in its behalf, testified that he was acquainted with the “schedule time for the moving of live stock shipments from Jacksboro, Tex., to Kansas City, Mo., over the Rock Island Railway Company’s lines,” and after having given the time of arrivals and departures of the several intervening stations, further testified that:

“Moving on regular schedule trains, the time consumed in moving a shipment from Jacks-boro, Tex., to Kansas City, Mo., would be 48 hours and 45 minutes, including 7 hours delay at Harrington, Kan., between trains Nos. 98 and 92, and allowing 1 hour from the C., R. I. & P. Junction to the Kansas City stockyards.”

It thus appears that there is but little, if any, material difference in the testimony of appellee on the point under consideration, and that offered by other witnesses, including that of appellant’s vice president and general superintendent, and to render yet more clear, if possible, the groundless character of the objections urged to appellee’s testimony on the point under consideration, it may be further stated that it is undisputed in the testimony that appellee’s cattle were placed in the pens of appellant company at Jacksboro, Tex., for shipment about 10 o’clock p. m. September 8, 1914; that they were loaded on the ears at about 12 o’clock that night; and that the cattle arrived in the freight yards of the C., R. I. & P. at Kansas City, Mo., at 4 p. m. September 11,1914, and were placed in the stockyards at that point about 5:30 p. m., too late for that day’s market, making a delay in all of more than 16 hours over the schedule running time, and a total delay until the next day’s market of 23 hours. We, accordingly, overrule appellant’s first assignment, and what we have said in disposing of this assignment likewise answers the fifth and others presenting substantially the same question.

It was entirely competent, we think, for the witness Knox in answer to the hypothetical question presented to state the effect upon cattle of the delays shown in the testimony. By no process of reasoning that we are able to approve can it be said that the testimony was “hearsay, irrelevant, and only the opinion of the witness on a mixed question of law and fact,” as urged in the objections to the answer. Nor is there any force in the further objection that the answer amounted to a “comparison of this shipment with others made by witness without the conditions being shown.” The - witness was evidently and clearly an expert, and his opinion as to the effect o-f the undisputed delays in the shipment under consideration was clearly admissible under authorities só familiar that we need not cite them. Appellant’s second assignment will, accordingly, be overruled, and upon like reasoning do we also overrule appellant’s third assignment objecting to the opinion of appellee as to the effect of delays and rough handling in the way of shrinkage in weight, and the fourth assignment objecting to appellee’s opinion of the effect of a stale appearance in transported cattle upon their selling price.

We find no prejudicial error in the proceedings below, and the judgment will, accordingly, -be affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, 0. J.

text:
    COOKE COUNTY et al. v. DUDENHAFFER.
    (No. 8354.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 16, 1917.)
    Highways &wkey;>30(7) — Establishment — Notice — Mode of Proof.
    Where, in an action to enjoin the opening of a road, no evidence is offered, other than the recital in the order of the commissioners’ court establishing the road as a public road, to show that the owners of the land over which the road was established were served with notice by the jury of view to appear before them and submit claims for their damages, the order is void, since service of notice in manner required by statute is jurisdictional, and must be proven by other evidence than mere recitals in the report of the jury of view or the order approving such report.
    ' [Ed. Note. — Por other cases, see Highways, Cent. Dig. § 69.]
    Appeal from District Court, Cooke County; O. E. Spencer, Judge.
    Action by Eranz Dudenhaffer against Cooke County and others. Erom judgment in favor of plaintiff, defendants appeal.
    Affirmed.
    Garnett & Garnett, Owen Davis, and Lewis Rogers, all of Gainesville, for appellants. J. T. Adams, of Gainesville, for appellee.
   CONNER, 0. J.

Appellee, Eranz Duden-haffer, on October 19, 1914, instituted this suit against Cooke county and officers of its commissioners’ court to enjoin the opening of what is known as the “Underwood Ranch Road” in said county. It was alleged that the original order of the commissioners’ court establishing the road was void for want of notice, and that the road had long since been abandoned. The case was submitted to a jury upon special issues, upon the answers to which, as also upon special findings made by the court, judgment was rendered in appellee’s favor perpetuating the preliminary injunction that had theretofore issued, and this appeal is from such final judgment.

The order purporting to establish the road in question was entered by the commissioners’ court on the 11th day of May, 1886, and in answer to one of the special issues the jury found that there .was no evidence, except recitations in the record, that all of the parties affected by the order received notice of the action of the commissioners’ court. The trial court also specifically found, so far as pertinent, that:

“There was no evidence introduced at the trial of this ease other than that shown by the order of 1886, that the parties affected by the proposed road had any notice of the proposed road.”

In other words, the record before us without question on this point conclusively shows that there was no evidence offered other than the recital in the order dated May, 1886, establishing the road as a public road, to show that the owners of the land over which the road was established were served with notice by the jury of view to appear before them and submit claims for their damages, as required by the statute. We are of opinion, therefore, regardless of all other questions and of all other conclusions upon which the court predicated its judgment, that the judgment of the trial court declaring the said order void and perpetuating the injunction must be sustained. See Bowie County v. Powell, 66 S. W. 237; Parker v. F. W. & D. C. Ry. Co., 84 Tex. 333, 19 S. W. 518; Evans v. Live Stock & Land Co., 81 Tex. 622, 17 S. W. 232; Morgan v. Oliver, 98 Tex. 218, 82 S. W. 1028, 4 Ann. Cas. 900; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Huff v. Preuitt, 53 S. W. 844; Vogt v. Bexar County, 5 Tex. Civ. App. 272, 23 S. W. 1044; Crawford v. Frio County, 153 S. W. 388.

The statutes providing for the establishment of public roads rest upon the right of eminent domain, and the proceedings prescribed by the statute are special in character, and among other directions specifically provided is one to the effect that the jury of freeholders, or jury of view, as frequently designated, after their appointment to view out the road sought to be established, shall issue notice in writing to the landowners through whose lands such proposed roadway runs, or to his agent or attorney, of the time when they will proceed to lay out such road, or when they will assess the damages incidental to the opening of the same, which notice must, be served upon such owner, agent, or attorney at least five days before the date named in the notice. As stated in McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027:

“The service of this notice in the manner required by the statute is indispensable to the exercise of jurisdiction by the commissioners’ court. It is a jurisdictional fact which must be affirmatively shown’ to sustain the jurisdiction of the commissioners’ court in making an order establishing and directing that a public road be opened on the land of a citizen. Without proper service of such notice the action of the jury of freeholders and the order of the commissioners’ court are nullities.”

The other authorities cited unmistakably establish the proposition contained in. the quotation that we have made from 77 Tex., and some of them, if not all of them, in effect, require adherence to the further proposi'tion that mere recitals in the report of the jury of view, or in the order approving sn'ch report and establishing the road, are insufficient on the trial of the issue to prove the requisite service. Thus, in the case of Bowie County v. Powell, supra, the court, after discussing the necessity of notice and declaring in line with the principle quoted from 77 Tex., further say:

“The order of the commissioners’ court of Bowie county approving the report of the jury of view, showing a condemnation of McGill’s land, raises no presumption that the jury caused notice of the proceeding to be legally served on McGill; .and it was necessary for the county, in order to show a valid condemnation, to prove, either directly or by circumstance, that the notice was duly served.”

So in Crawford v. Erio County, 153 S. W. 388, supra, the court held that it was error to admit as proof of service recitals to that effect in the report of a jury of view. It was there said:

“Our courts have held that tíre mere recitation of service of notice in the report of the jury of view is not sufficient to establish a prima facie case against the landowner that he has been served with the statutory notice. In Vogt v. Bexar County, 5 Tex. Civ. App. 279, 23 S. W. 1047, the court says: ‘The service of this notice in the manner required by statute is indispensable to the exercise of the jurisdiction of the commissioners’ court. It is a jurisdictional fact which must be affirmatively shown to sustain the jurisdiction of that court.’ ”

The judgment below will, accordingly, be affirmed upon the proposition and authorities stated.
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