author: PHILDIPS, J.

text:
    SOUTHWESTERN SURETY INS. CO. v. ANDERSON.
    (Supreme Court of Texas.
    April 23, 1913.)
    1. Evidence (§ 343) —Documents — Certified Copies.
    Only such documents as are required or permitted by law to be filed in a public office, so as to constitute them archives or records, can be proved by certified copy thereof; and if a document is not of that character a certificate gives the copy no legal authenticity.
    (Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1315-1330; Dec. Dig. § 343.]
    2. Insubance (§ 21) — Reinsurance — Sure-tyship — Rights op Policy Holdeks.
    The F. Insurance Company, in order to obtain a license to do business in Texas, filed a bond with the Insurance Commissioner with a surety company as surety, and attached to the bond and filed with it was the. obligation of de-' fepdant insurance company, reciting that it had reinsured the surety on the bond against all liability as surety, and that it did so reinsure the surety, and further agreed that the contract of reinsurance should run and inure to the benefit of the Commissioner of Insurance, and to any and every party who might be a beneficiary under the bond, and that an original action or actions against it might be maintained on the bond as if defendant had signed the original bond. Held, that defendant’s contract inured to the benefit of the policy holders of the F. Company, who were entitled to enforce defendant’s bond directly, on the F. Company becoming insolvent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 23; Dec. Dig. § 21.]
    3. Evidence (§ 343) — Pbivate Documents— Filing — Pbooe—Certified Copt.
    Where a foreign insurance company filed a bond with the insurance department to enable it to do business in Texas, a further bond attached thereto, by which defendant reinsured the risk of the surety, and which provided that it should inure to the benefit of policy holders of the insurance company, was a common-law obligation only, not required by law to be filed in the insurance department, and hence could, not be proved by certified copy thereof.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1315-1330; Dec. Dig. § 343.]
    Error to Court of Civil Appeals, Sixth Supreme Judicial District.
    Action by A. J. Anderson against ■ the Southwestern Surety Insurance Company. Judgment for plaintiff (152 S. W. 816), and defendant brings error.
    Reversed and remanded.
    Capps, Cantey, Hanger & Short and D. B. Trammell, all of Ft. Worth, for plaintiff in error. C. T. Rowland and Theodore Hack, both of Ft. Worth, for defendant in error.

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILDIPS, J.

This suit by the defendant in error against the Farmers’ & Merchants’ Insurance Company and the plaintiff in error, the Southwestern 'Surety Insurance Company, arose out of the issuance to Anderson by the former company of its policy of fire insurance in the sum of $1,200, under which he suffered a loss. The Farmers’ & Blerchants’ Insurance Company, for the purpose of engaging in business in this state as a foreign corporation, filed its bond with the Commissioner of Insurance and Banking, payable to the Commissioner in the sum of $10,438, according to the provisions of the act of March 20, 1909 (Acts 31st Leg. c. 102) art. 4870 — 1, Revised Statutes 1911, with the Republic Guaranty & Surety Company as surety. Attached to the bond and filed with it in the insurance department was the obligation of the plaintiff in error, which constitutes the basis of the suit against it, as follows: “Know all men by these presents that whereas, on the 17th day of February, 1910, the Farmers’ & Bler-chants’ Insurance Company, a corporation of Lincoln, Nebraska, did make, execute and deliver unto William E. Hawkins,' Commissioner of Insurance and Banking of the state of Texas, and to his successors in office, their certain bond wherein they undertook certain obligations unto the said William E. Hawkins, Commissioner of Insurance and Banking, and unto all citizens of the state of Texas, said bond being in the sum of ten thousand four hundred thirty-eight dollars, and executed by said Farmers’ & Merchants’ Insurance Company as principal, and the Republic Guaranty & Insurance Company as surety; and whereas, the undersigned, the Southwestern Surety Insurance Company, of Durant, Oklahoma, has reinsured said Republic Guaranty & Surety Company against all liability as surety on said bond: Now, therefore, know all men by these presents that the undersigned, the Southwestern Surety Company, of Durant, Oklahoma, does hereby reinsure the said Republic Guaranty & Surety Company against all liability on said bond, which said original bond is hereunto attached and made a part hereof. And it is further agreed that this contract of reinsurance shall run to and inure to the benefit of said William E. Hawkins, Commissioner of Insurance and Banking, and to any and every party who may be a beneficiary under said bond, and that an original action or actions against the undersigned, Southwestern Surety Insurance Company, may be maintained upon said bond and this contract just as if the said Southwestern Surety Insurance Company had signed said original bond. Witness the corporate seal and name of said Southwestern Surety Insuranoe Company by its proper officers this the 31st day of March, 1910. Southwestern Surety Insurance Company, by W. S. Hibbard, Vice President. Attest: S. P. Ancker, Secretary.”

In the plaintiff’s petition it was alleged that the Farmers’ & Merchants’ Insurance Company was insolvent and in the hands of a receiver. By cross-bill the plaintiff in error sought recovery against that company and its receiver in the event of recovery by Anderson against it. Upon the trial, at the request of Anderson, an instructed verdict was rendered in Anderson’s favor against the plaintiff in error for the amount of the policy, with, interest, for the plaintiff in error against the receiver of the Farmers’ & Merchants’ Insurance Company for a like amount, and for the Farmers’ & Merchants’ Insurance Company, generally, in accordance with which judgment was rendered. On the appeal of the plaintiff in error the judgment was affirmed by the honorable Court of Civil Appeals. Plaving granted a writ of error upon the application of this company, to which an answer was filed by the defendant in error, Anderson, we are enabled to dispose of the case without further submission.

The proof made in the trial court of the contract of the plaintiff in error, above copied, in virtue of which it was sought to be charged with the liability primarily resting upon the Farmers’ & Blerchants’ Insurance Company under the policy of insurance issued to the plaintiff, was by means of a copy of the instrument, certified by the Commissioner of Insurance and Banking, to the admission of which exception was duly reserved. It is an established rule that it is only of such documents as are required or permitted by law to be filed in a public office, so as to constitute them archives or records, that copies certified under the authority of such office are admissible in evidence. If the document is not of such character, it cannot be regarded as other than a mere private instrument, and such a certificate gives the copy no legal authenticity. State v. Cardinas, 47 Tex. 250; Herndon v. Casiano, 7 Tex. 322; Hatchett v. Conner, 30 Tex. 110; Lott v. King, 79 Tex. 292, 15 S. W. 231.

There can be no doubt that this contract inured to the benefit of holders of policies of the Farmers’ & Merchants’ Insurance Company, and that Anderson was entitled thereunder to directly enforce against the plaintiff in error whatever liability his policy imposed upon that company; but under no law was it authorized to be filed in the office of the Commissioner of Insurance and Banking, and it therefore evidenced only a common-law obligation.

While available to every beneficiary of the statutory bond to which it refers, for the enforcement of all demands protected by that instrument, its terms plainly demonstrate that primarily it was a contract of indemnity to the Republic Guaranty & Surety Company against loss by reason of its suretyship upon that bond. A surety upon such a bond may, of course, protect itself by this character of reinsurance of its liability, to inure at the same time to the beneficiaries of the bond, but the statute makes no provision for the filing of such a contract in the insurance department; and otherwise the Commissioner is not its legal custodian.

Furthermore, if the instrument can be regarded as creating the relation of a sure-tyship .upon the original bond, it is clear that the statute does not authorize the evidencing of that relation in any such manner or by any such instrument. The certified copy did not constitute legal proof of the contract.

The judgments of the Court of Civil Appeals and the district court are reversed and the cause remanded.

HAWKINS, J., did not sit in this case or participate in its decision.


source: Caselaw Access Project

author: PHILLIPS, J.

license: Public Domain

text:
    STATE et al. v. DAYTON LUMBER CO. et al.
    (Supreme Court of Texas.
    April 16, 1913.)
    1. Trespass to Try Title (§§ 12, 32) — Action — Essentials.
    For a plaintiff to prevail in trespass to try title, he must establish his right to possession, and the petition must state also that he was in possession when the right of action accrued, or that when ousted he was entitled to possession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 17, 39-41; Dec. Dig. §§ 12, 32.]
    2. Vendor and Purchases (§ 296) — Right to Possession.
    A vendor of land, whose vendee has not made default in payment of installments, cannot maintain trespass to try title against one claiming adversely against the vendee, though as between himself and the vendee he holds the superior title under a reservation of a vendor’s lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 832; Dec. Dig. § 296.]
    3. Public Lands (§ 173) — Texas School Lands — Sale.
    A purchaser of school lands from the state, whose purchase is in good standing, is entitled to possession as an ordinary vendee, and the state cannot, in the absence of special authority, maintain trespass to try title, even though another makes claim adversely to the title of the vendee.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 514-551; Dec. Dig. § 173.]
    4. Public Lands <§ 173) — State Lands— Right of Action — Statute.
    Under Acts 26th Leg. (1st Called Sess.) c. 11, § 8 (Rev. Civ. St. 1911, art. 5468), providing that when any of the lands described, or any of the other public lands of the state held or owned by any fund, or any lands in which this state, or any such funds, have an interest, are claimed by any person adversely to the state, the Attorney General must institute suit therefor, the venue thereof to be. fixed in Travis county, the state is not authorized to maintain trespass to try title to school land which has been sold to a vendee who has not made default in his contract and is in good standing, even though other persons make adverse claims against the land, for lands validly sold become segregated from the mass of lands held in the several funds and cannot be said to thereafter belong to such funds.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    5. Public Lands (§ 173) — State Lands— Actions — Intervention.
    • Acts 29th Leg. c. 103, § 8, providing that when any land lying between older surveys is held by the Commissioner of -the General Land Office to be unsurveyed, vacant land appropriated to the school fund, and is sold as such, and thereafter any suit arises between the owners of the older survey and the purchaser, any final judgment shall be conclusive as to the existence of such vacancy, but, if the judgment be obtained through collusion against the state, it may be vacated at any time within five years thereafter, does not authorize the state to intervene in such an action.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ -544-551; Dec. Dig. s 173.]
    Certified Questions from Court of Civil Appeals, Third Supreme Judicial District.
    Action by the state of Texas and others, against the Dayton Lumber Company and others. A judgment for defendants was reversed'by the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    Jewel P. Lightfoot, Atty. Gen., Jno. L. Terrell, Asst. Atty. Gen., L. B. Moody and L. R. Bryan, both of Houston, N. A. Rector, of Austin, B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for appellants. Gregory, Batts & Brooks, of Austin, and Stevens & Stevens and A. D. Stone, all of Liberty, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

In certifying to us the questions that hereafter appear, the honorable Court of Civil Appeals has made the following statement:

“This case is now pending in this court on motion for rehearing, and the questions here-inbelow certified, among others, have arisen for our decision. The state of Texas et al. were plaintiffs, and the Dayton Lumber Company et al. were defendants. The trial court rendered judgment for the latter. That judgment we have reversed, but we have sustained a cross-assignment and hold that venue was improperly laid in Travis county.
“The facts, in so far as they are pertinent to said questions, are as follows: In 1904 the Commissioner of the General Land Office held that the land in controversy was vacant, unappropriated land, belonging to the public school fund, lying between the western boundaries of the Martinez surveys and the eastern boundaries of the International & Great Northern Railway Company surveys, which surveys had been made long prior to that date, and sold said land in accordance with law. The timber growing on said land was sold separately for the sum of $3,557.40 The purchaser paid one-fortieth of the purchase money and executed his obligations for the remainder. , Said sales are in good standing in the Land Office; and the plaintiffs, Maddox et al., .are the owners of whatever title, if any,, was conveyed by the state in said sales. The defendants contend that no vacancy ever existed between said Martinez and said International & Great Northern Railway Company surveys.
“The state joined the other plaintiffs in bringing this suit, alleging that it had an interest in the subject-matter in controversy in that, if it be held that no vacancy exists between said surveys, it will be compelled to repay the purchase money received for said land and cancel said obligations, and that thereby the state and the public school fund will suffer loss in the sum of $6,466.80.
“Plaintiffs allege that the claim of defendants that no vacancies exist between the boundaries of said surveys casts a cloud upon the title conveyed by the state to said land, and pray that the boundaries of said Martinez surveys and said International & Great Northern Railway Company purveys be established, and that said cloud be removed. The land in controversy is situated in Liberty county, Tex., in which county the defendants reside. The suit was brought in the district court of Travis county.
“The defendants in proper time and form pleaded their privilege to be sued in Liberty county, which plea was by the trial court overruled. The action of the trial court in overruling said plea of privilege was duly excepted to by defendants and presented to this court by a proper bill of exception.
“It is the contention of the state that the act of February 23, 1900, p. 29 (R. S. 1911, art. 5468), gives the district court of Travis county jurisdiction to try this case. We held, as appears from a copy of our opinion hereto attached, and made a part of this certificate, that jurisdiction of this ease was improperly laid in Travis county, and the effect of which holding is that the state of Texas is not a proper party to this suit.
“With the foregoing statement and explanation, the Court of Civil Appeals for t£e Third District propounds to the Supreme Court the following questions:
“(1) Under the facts above set out, is the state of Texas a proper party to this suit?
“(2) If so, was the venue properly laid in Travis county?”

The statement presents a case where both the state and its vendee of a tract of school land, whose purchase is in good standing, are seeking in the same suit to maintain an action for the land in trespass to try title against adverse claimants. The right of the state to make itself a party plaintiff and to therefore lay the venue of the suit in Travis county is claimed in virtue of section 8 of the act of February 23, 1900 (General Laws of 1900, p. 29 [R. S. 1911, art. 5468]), which is as follows: “When any of the lands described in this title, or any of the other public lands of the state held or owned by any fund, or any lands in which this state, or any such funds, have an interest, are held, occupied or claimed by any person or association or corporation adversely to the state, or to such fund, it shall be the duty of the Attorney General to institute suit therefor, together for rent thereon, for any damages thereto; and for the purpose of any such suits for such lands, or affecting the title thereto, or right growing out of the same, the venue thereof is fixed in Travis county, Texas, concurrently with the county of defendant’s residence, and the county where the land is situated; and the courts of said county shall have the same jurisdiction over the defendant and the subject matter of the same as if such defendant resided, and such property was situated, in said county.”

In order for the plaintiff to prevail in the action of trespass to try title, he must establish the right of possession to the land. The petition must state either that he was in possession when the right of action accrued or that when justed he was entitled to such possession.

It is settled law in this state that a vendor of land, whose vendee has not made default, cannot maintain a suit for it against one claiming adversely to the vendee, because of his not being entitled to possession, though as between himself and the vendee he holds the superior title under a reservation in the deed of the vendor’s lien. Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Carey v. Starr, 93 Tex. 508, 56 S. W. 324.

The relation of the state to school land sold to a purchaser in c.ompliance with the law, whose purchase is in good standing, is not essentially different from that of a vendor in ordinary sales of land where the vén-dee has not made default; and, unless exempt from its operation because of "some statutory enactment, no sound reason can be given why the rule that in such a case denies to the ordinary, vendor the right to maintain the action of trespass to try title against one claiming adversely to his vendee should not be held equally applicable- to the state where it seeks to maintain the same character of action against one claiming adversely to its vendee. In valid sales of school land, the purchaser is entitled to the exclusive possession so long as his purchase is in good standing, both as against the state and all others; and under such conditions the state can acquire no such right of possession as is necessary to support the action of trespass to try title. Until the purchase is completed, the state holds the superior title, but the law plainly is that the purchaser acquires such ah equitable title as will support the action. Hazelwood v. Rogan, 95 Tex. 295, 67 S. W. 80. As such right inures to him by its acquisition from the- state through his purchase, it cannot remain with the state at the same time.

A study of the act of 1900' convinces' us that it was not designed to enlarge the rights of the state in this particular. By reference to that part of its title in relation to suits by the state thereunder authorized, it will be noted that its language is, “And providing for suits in Travis county against any person claiming any of the land belonging to the school fund or any other funds.” Bands that are validly sold become segregated from the mass of lands held in the several funds, and cannot be said to thereafter “belong” to such funds. Upon the sale,, the obligation of the purchaser belongs to the proper fund, taking the place'of the land as an asset of the fund, but such is not the. status of the land. It is evident, therefore, that the purpose of the act in relation to suits, as reflected in the title, was not to provide for suit by the state in" respect to lands formerly belonging to the several funds but of which the state had made sales, valid in their inception and remaining in good standing, but was to authorize such action by the state only in respect to lands whose status was such as to constitute them still the property of such funds.

The phrase in section 8 of the act, “or any lands in which this state, or any such funds, have an interest,” clearly refers to an interest in such lands for which the state is entitled to sue. It does not mean an interest of the’ character that it is claimed the state has in this land, one which is limited as a result of its sale and cannot be asserted in derogation of any right acquired by its vendee thereunder, whose main essentials are inconsistent with any right of possession, and for which, accordingly, in this kind of action, no judgment in, its favor could be rendered. This is made plain by the further provision in the section relating to such “interest” which declares it to be the duty of the Attorney General “to institute suit therefor.”

Reference is made by counsel for the state to a section of the act of 1905 (Acts 29th Leg. e. 103, § 8) reading as follows: “When any land, lying between older surveys, is held by the Commissioner of the General Land Office to be unsurveyéd or vacant land appropriated to the public school fund by the act of February 23, 1900, and is -sold as such under the provisions of this act, and thereafter any suit arises between the owner or owners of such older surveys, and the purchaser from the state or ’ his vendees, any final judgment rendered in such suit shall be deemed and held conclusive as to the existence or nonexistence of such vacancy: Provided, if in, any suit judgment is obtained through collusion or. fraud against the state, the same may be set aside and vacated at the suit of the state any time within five years thereafter” — in which connection it is argued that, if the state may institute its suit within five years to vacate such a judgment on the ground of fraud or collusion, it should be permitted in the first instance to join with its vendee in a suit against one claiming adversely to him so as to prevent a fraudulent or collusive judgment. This argument might with force be addressed to the Legislature for the enactment of such a statute, but it cannot be said that the act under review makes any such provision. That the act of 1905 denies any force to a judgment in such a case as against the state until after, the lapse of a period of five years, that it expressly authorizes suit by the state to vacate the judgment within that time, and otherwise makes it conclusive, precludes rather than sustains the view, in our opinion, that the intention of the act of 1900 was to authorize the original joinder of the state as plaintiff with its vendee in such a suit.

We do not wish to be understood as holding that section 8 of the act of 1900 limits the right of the state to institute suits only for the recovery of such lands as are referred to in the act, and to lay the venue of only such suits in Travis county. The provision in the section authorizing the institution by the Attorney General in Travis county of suits “affecting the title to such lands, or right growing out of the same,” might properly be held to apply to certain classes of suits other than for the recovery of such lands. We confine our opinion to the case before us and hold that in this case the state was not a proper party.

We accordingly answer the first question in the negative, from which it follows that tiie venue of the suit was not properly laid in Travis county.

HAWKINS, J., did not participate in the decision of this case.


author: RASBURX, J.

text:
    JACKSON v. DALLAS FAIR PARK AMUSEMENT ASS’N.
    (Court of Civil Appeals of Texas. Dallas.
    April 5, 1913.)
    New Trial (§ 75) — Discretion — Verdict “Manifestly” Too Smali>-Evidence.
    Evidence in a personal injury case held not to show the verdict was “manifestly” too small, so as to make it an abuse of discretion not to award a new trial under Rev. St. 1895, art. 1152.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 151, 152; Dec. Dig. § 75.]
    Error from District Court, Dallas County; E. B. Muse, Judge.
    Action by J. R. Jackson against the Dallas Fair Park Amusement Association. Plaintiff had judgment for $1, was denied a new trial, and brings error.
    Affirmed.
    W. H. Hall, of Dallas, for plaintiff in error. Pierson, O’Donnell & Pierson, of Dallas, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURX, J.

Plaintiff in error sued defendant in error in the court below for damages for personal injuries to0 himself and wife, and upon trial before jury recovered verdict for $1, followed by judgment accordingly. From said judgment the case is brought here for review by writ of error.

The facts shown by the record and in our own language, as testified by Mr. and Mrs. Jackson, are, in substance, that Jackson and his wife in the summer of 1911 were passengers on a car of an amusement contrivance at the State Fair Grounds at Dallas, Tex., known as the “Figure Eight,” and while such passengers the ear upon which they were riding collided with another car ; that as a result of the collision Jackson and wife were thrown violently about in the car, whereby Jackson was injured in his right foot and ankle, which had previously been injured, but which injury had practically healed, and his wife injured in her left foot and ankle; that after the accident Mrs. Jackson was compelled to go about her work in the laundry where she was employed a portion of the time without her shoe; and that her injuries at the time of the trial were not completely healed.

Dr. J. J. Trible testified that he was called in to attend Jackson and his wife some two or three months after the accident, and that he found Jackson’s right foot and ankle and his wife’s left foot and ankle injured, and that he treated same.

W. Wilson, an employé of the defendant in error, testified that he witnessed the collision, the force of which was slight. Also testified that Jackson was on crutches at the time.

W. Swanson, special officer in the employ of defendant in error, testified that he also witnessed the collision, and that there was no appreciable jar or jerk at the time, and that the cars were provided with rubber “bumpers” to lessen the shock of any collision; that he talked with Jackson and wife at the time; and that both “laughed and talked” about the cars bumping. Also testified that Jackson was drunk and that he and his wife rode the cars “around once” after the collision and that he “had to make them get out of the cars.”

Joe Jones testified that he was employed at a “Flying Jenney” within a few feet of the “Figure 8,” and that on the same.night and subsequent to the accident Jackson rode the “Flying Jenney” and did not claim to be, nor appear, injured; further, that Jackson was intoxicated.

The several assignments of error contained 'in the brief of plaintiff in error complain of the refusal of the trial court to award a new trial. Under the authority of these assignments of error, it is asserted that the jury having found that plaintiff in error and his wife were injured by the negligence of defendant in error, without the plaintiff in error in any manner contributing thereto, they were, in law, bound to award plaintiff in error such an amount of damages as would reasonably compensate him for the injuries to himself and his wife, and having manifestly failed to do so, it was error for the court to refuse another trial. By article 2022, R. S.. 1911 (article 1452, R. S. 1895), express authority is given trial courts to award another trial when the verdict is “manifestly” too small or too large, as the case may be. This statute only recognizes an old rule, which, as interpreted by the decisions, is that generally courts will not interfere with the right of the jury to fix the amount to be recovered in a suit for unliquidated damages, unless an inspection of the testimony discloses that the jury has abused its discretion. Texas Midland Railroad v. Byrd, 41 Tex. Civ. App. 164, 90 S. W. 185. Hence our duty in the instant case is confined to ascertaining whether.the testimony in reference to the injuries received by Jackson and wife is so much at variance with the verdict of the jury as to constitute an abuse of the discretion lodged with the jury. On that point the evidence in the record shows that Jackson and' wife were each injured in the foot and ankle. The extent of such injuries is not disclosed by the evidence, and we are without any proof on that issue, notwithstanding a physician called in by plaintiffs in error was a witness. The most he says is that plaintiff in error and his wife were “injured.” No loss of time is shown, nor is it claimed by either Jackson or his wife that they were in any manner disabled from attending to their affairs, except that Mrs. Jackson does say that at times she could not perform her duties as a laundress without occasionally removing her shoe. No confinement within doors or to their beds is shown by plaintiff in error and his wife, nor was a physician consulted until the expiration of nearly three months after the injury.

Such is the testimony included in the statement of facts in reference to the injuries complained of. It is true it may be said that the testimony was sufficient to raise the issue of negligence by defendant in error in the operation of its cars, yet it is also true that the evidence failed to establish any resultant injury. Coupled with the failure of the plaintiff in error to show any actual physical injury was the evidence of several witnesses that plaintiff in error and his wife not only were not injured, but that plaintiff in error was intoxicated at the time of the injury, and that following the accident he and his wife made light of the collision and went a short time subsequent' thereto to a “Flying Jenney,” within a few feet of the place of collision, and patronized it.

■Hence, due to the apparent total lack of actual physical injury and the sharp conflict in the testimony, we conclude the record fails to present a case which satisfactorily and fairly discloses any abuse on the part of the jury of the discretion vested in them, and for that reason the judgment is affirmed. .


author: DUNKLIN, J.

text:
    GUTZMAN v. CITY OF FT. WORTH.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 8, 1913.
    Rehearing Denied March 29, 1913.)
    1.Appeal and Error (§ 1031) — Reception op Evidence — Instructions—Curing Error.
    Where evidence erroneously admitted was later excluded by an instruction that the jury should not consider it for any purpose, it would be presumed that the error was cured, in absence of anything to show that the instruction was not followed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dee. Dig. ' 1031.]
    2. Trial (§ 133) — Misconduct oe Counsel —Curing Error — Instructions.
    Where, in an action against a city for injuries by reason of an alleged defective street, the city’s attorney stated in argument that if damages were allowed in such case improvements by the city would have to cease, but the court directed the jury not to consider the statement, any error therein would be presumed to have been cured.
    [Ed. Note. — For other cases, see Trial,. Cent. Dig. § 310; Dec. Dig. § 133.]
    3. Municipal Corporations (§ 822) — In-stbucti o ns — Form.
    In an action for injuries caused by a defective city street, an instruction that plaintiff could not recover if the street was reasonably safe for travel, or if the city exercised ordinary care to maintain it in a safe condition, was not defective as a double charge in favor of the city.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. § 822.]
    4.Witnesses (§ 388) — Impeachment—Preliminary Evidence.
    Where a material witness for plaintiff testified to an alleged defect in a street, by which plaintiff claimed she was injured, and to his having repaired, the same, but no foundation was laid for his impeachment, it was error for the court, after he had been excused from further attendance and had left the courthouse, to permit defendant to prove that the witness had declared that the work on the street, claimed to have been defective, was good.
    (Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § 388.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Action by J. M. Gutzman against the City of Ft. Worth. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. W. H. Slay and A. B. Curtis, both of Ft. Worth, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes'

   DUNKLIN, J.

A ditch, which had been excavated* across one of the streets of the city of Ft. Worth for the purpose of laying a sewer pipe, was filled in such a manner as to leave an embankment of dirt elevated above the level of the street approaching the embankment ffrom either direction. In passing along the street at night an automobile in which Mrs. J. M. Gutzman was riding, and which was driven by her father, C. W. Forbes, sustáined such a jar and jolt as. the result of running over the embankment as to cause Mrs. Gutzman to be thrown against the top of the machine and to sustain personal injuries from the blow thus inflicted. J. M. Gutzman, her husband, instituted this suit against the city to recover damages for those injuries, and from a judgment in favor of the city plaintiff has appealed.

The facts recited above were alleged in plaintiff’s petition, and a charge of negligence on the part of the city in placing and •leaving the embankment across the street was alleged as a basis for a recovery.

F. J. Artz, who resided near the location of the embankment, heard the noise occasioned by the accident and immediately went to the aid of the occupants of the car. Upon the trial he was a material witness for the plaintiff, testifying that the embankment, which defendant’s employes had left across the street when they filled the ditch, was 15 inches in height and very abrupt; so high that in passing over it with his automobile the dustpan of the machine would strike the embankment. He further testified that early in the morning next succeeding the night of the accident he partially cut down the embankment by the use of a pick and shovel. Several witnesses for the defendant contra-dieted the testimony of Artz, their estimates of the extreme height of the embankment ranging from 4 to 8 inches, and all of them testifying that it sloped gradually in either direction, and was some 12 or 15 feet in width; hut some of these witnesses did not see it until after the time Artz said he partially reduced its height with pick and shovel. C. W. Forbes, who was driving the car, examined the embankment immediately after the accident. Without measuring it and merely from his observation of it on the night of the accident, he gave an estimate of its height and the manner of its construction substantially the same as that given by Artz.

Over plaintiff’s objection, George B. Hol-lant, one of defendant’s employes who assisted in the work of excavating and filling the ditch across the street, and who qualified as an expert in the proper manner of doing such work, testified that when work of that character was done it was best to fill the ditch to a height above the level of the street, with a gradual slope on either side, and let it settle to a level with the street later. The objection urged was that the opinion given by the witness was upon a mixed question of law and fact involving the issue of negligence, the determination of which was the province of the jury exclusively. Appellee insists that this testimony should be construed as but the expression of an opinion that the work was done according to the most approved methods, and that so interpreted it was competent to rebut the charge that defendant was guilty of negligence in doing it in that manner. We are not prepared to concur in this contention, but a determination of that question is unnecessary, as the judgment will be reversed on another assignment, and if appellee’s contention be correct all doubt can be removed by a proper interrogation of the witness on another trial.

Frank B. Walker and George Hollant testified to expression of ill will by Artz toward J. H. Maddox, street commissioner, and Mr. Trammell, city engineer, of the defendant city. Plaintiff objected to this testimony, on the ground 'that it was immaterial and irrevelent to any issue in the case and improper for the' purpose of impeaching the witness Artz. The objection was overruled, but later in his charge to the jury the court excluded it by an instruction to the jury not to consider it for any purpose, and there is nothing in the record to suggest that the instruction was not followed.

The argument to. the jury by counsel for the city, that if damages were allowed in cases like this public improvements by the city would have to' cease, was exeeptdd to as improper and prejudicial to the plaintiff. We think any harm to plaintiff resulting from this argument was eliminated by the trial judge’s instruction to the jury not to consider it, and as the judgment is to be reversed on another assignment of error, as already noted, and as it is not likely that the same argument will be used on another trial, it is unnecessary for us to determine whether or not the argument was improper.

In the charge given the jury were instructed • that if the street was reasonably safe for travel, or if the city exercised ordinary care to maintain it in a safe condition, the defendant will not be liable. This was not a double charge in favor of the city, as insisted by appellant. If' the street was reasonably safe for travel, that would be the end of plaintiff’s case, and, even though unsafe, still defendant would not be liable if it exercised ordinary care to make and keep it in a condition safe for travel, as defendant was not an insurer of its safety. That portion óf the charge presenting the case as made by plaintiff’s petition, and instructing a verdict for plaintiff if they found the facts to be as there pleaded, concludes with the language, “unless you find for the defendant under other instructions herein.”

The only defense submitted was that the street was in a reasonably safe condition for travel, but that if it was not in such condition for travel, yet defendant was guilty of no negligence in failing to obviate the defect. Appellant insists that, as the defense thus submitted consisted merely of the converse of the cause of action pleaded by him, that portion of the charge quoted was misleading and prejudicial to the plaintiff. While the language of the charge quoted above, under the circumstances stated, was inapt, still it is not probable that the jury were misled to believe that there were any defenses other than those submitted in subsequent portions of the charge. Nor was the charge on the burden of proof erroneous, when read in connection with the other instructions given.

W. X Mayfield, witness for the defendant, testified that just after the ditch in question was filled F. X Artz passed over the embankment with his automobile, and in am swer to Mayfield’s question what he (Artz) thought of the character of the work stated, “That is good.” When this testimony was introduced, Artz had given his testimony, had been excused from further attendance upon the court, and had left the courthouse. While on the stand, he was not asked whether or not he had made the statement to May-field just referred to. Plaintiff moved to exclude the testimony of Mayfield, relative to this statement, because no predicate had been laid therefor, but this motion was overruled. In this ruling we think there was error. The rule that a predicate must be laid for impeaching testimony of this character, when the witness sought to be impeached is not a party to the suit, is too well settled to require the citation of authorities. As shown already, Artz was' a very material witn'ess for plaintiff. Furthermore, he was neither related to plaintiff, nor interested in the suit; and with no denial by him of the alleged statement testified to by Mayfield, it is quite probable that the jury discredited his testimony of the defective condition of the street. Hence, for the error in failing to exclude the testimony of Mayfield referred to, the judgment is reversed, and the cause remanded for another trial.

Reversed and remanded.


author: PLEASANTS, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BLUMBERG.
    (Court of Civil Appeals of Texas. Galveston.
    March 28, 1913.)
    1. Raileoads (§ 443) — Killing Animals— Negligence.
    Where an animal passed on a railroad track in switch yards between two sections of standing cars just as the cars were switched together, - causing its death, but the trainmen did the switching in the usual way, and, had they seen the animal when it went on the track between the cars, the accident could not have been prevented, the railroad company was, as a matter of law, free from negligence.
    [Ed- Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    2. Raileoads (§ 441) — Killing Animals— Liability.
    One suing for the death of an animal struck by cars. in switch yards, where the railroad company could not fence its tracks, must, to recover, show that the trainmen were guilty of negligence which caused the death of the animal.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dee. Dig. § 441.]
    3. Appeal and Ebbob (§ 1175) — Revebsal— Rendeeing Final Judgment.
    Where the evidence is uncontradicted and the facts fully developed, the courf on appeal will reverse an erroneous judgment and render the proper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    Appeal from Wharton County Court; J. R. Bowen, Judge.
    Action by Joe Blumberg against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood, of Houston, W. L. Hall, of Wharton, and Proctor, Vandenberge & Crain, of Victoria, for appellant.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series Sc Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant to recover the sum of $125, the alleged value of a cow, the property of appellee, and alleged to have been negligently killed by appellant. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $100.

The cow was struck and killed by a train of appellant which was being operated in appellant’s switch yard in the town of Wharton, where appellant was not permitted to fence its tracks. The facts and circumstances of the accident, as shown by the undisputed evidence, are as follows: A freight train of appellant was engaged in switching cars within the switch limits of the station at Wharton. The engine was facing north, and there were attached to the rear end of same some six to ten cars; the engine and cars attached thereto being backed in a southerly direction towards, and to be coupled to, a stationary car on the track also attached to another car or two. The string of ears and the engine were being moved very slowly. Just before the south end of the string of cars attached to the engine reached the north end of the cars to which the moving string was to be coupled, the cow walked from the west side of said track onto same and between the south end of said stationary cars and the north end of another stationary ear on the same track, and the impact of the blow, when the moving string of cars struck the cars to which it was to be coupled, caused same to roll against the cow, which at that time was on the track between the two stationary strings of cars. None of the operatives of the train saw the cow before she was struck. She came from along the west side of the southern string of stationary cars and turned east and walked on the track between the two sections of standing cars just as the cars attached to the engine struck the stationary cars north of the place at which she went on the track. The space between the two sections of stationary cars was only 7 or 8 feet. There wás a brakeman on the west side of the track who was giving the signals to the engineer and making the couplings, and, at the time the cow went on the track, he was in the act of going in to couple the cars attached to the engine to the stationary cars furthest north, and was two ear lengths distant from the point at which the cow entered the track. His attention was directed towards the moving cars, and he did not see the cow before or at the time she went on the track. The engineer testified that he did not see the cow, and that, from his position on the engine, it was not possible for him to have seen her.

We think these facts fail to show any negligence on the part of the operatives of the train. They were doing the switching in the usual and customary and, so far as the evidence shows, careful manner. They could not reasonably have contemplated that an animal would walk on the track in the space between the two sections of stationary cars just at the time the cars would be pushed together by the engine, and ordinary care did not require that they should watch that space. If they had seen the cow when she went on the track, it is not at all clear from the evidence that the accident conld have been avoided. Just as she got on the track, the car to the north struck her and mashed her against the stationary car on the south, and it would seem from this that she went on the track just at the instant the moving ears attached to the engine struck the north section of stationary ears, and that, if she had been seen by the engineer as she entered the track, it would have been impossible to have prevented the train from striking her.

The appellant was not permitted to fence its track at this place, and appellee could only recover by showing that the death of the cow was caused by the negligence of appellant’s employes, who were operating the train that struck her.

There being no evidence showing negligence in the operation of the train, the judgment of the court below must be reversed, and, the evidence being uncontradieted and the facts fully developed, judgment will be here rendered in favor of appellant. Railway Co. v. Foster, 142 S. W. 846.

Reversed and rendered.


author: HALL, J.

text:
    FISH et al. v. SADLER, et al.
    (Court of Civil Appeals of Texas. Amarillo.
    March 29, 1913.
    Rehearing Denied April 19, 1913.)
    1. Champerty and Maintenance (§ 5) — Contract por Services — “Barratry.”
    Where attorneys having notes in their possession for collection surrendered them to their client, and thereby surrendered their lien for services rendered, and accepted as consideration a sum admittedly an insufficient remuneration for the work and the release of the lien, and a contract that, if the notes were paid, they should receive $300 more, and, if not paid within 90 days, the notes should be returned to the attorneys for collection, and they should then receive a reasonable fee for their services, such contract was not in violation of Pen. Code 1911, art. 421, providing that, if an attorney shall seek employment in any suit at law or in equity to prosecute the same by means of personal solicitation or employment, he shall be guilty of barratry.
    [Ed. Note. — For other cases, see Champerty and ■ Maintenance, Cent. Dig. §§ 24-51; Dec. Dig. § 6

    For other definitions, see Words and Phrases, vol. 1, p. 710.]
    2. Champerty and Maintenance (§ 5) — Contract with Attorneys — Construction.
    The contract was merely one for the collection of the notes under certain conditions, and not a purchase by- the attorneys of a lawsuit, nor was it against public policy or unprofessional.
    [Ed. Note. — For other cases, see Champerty and Maintenance, Cent. Dig. §§ 2A-51; Dec. Dig. § 5.]
    3. Attorney and Client (§ 148) — Contract —Construction—Validity.
    Attorneys having notes in their hands for collection returned them to their client on receiving $250, and a contract that they should be paid $300 more in case the notes were paid within 90 days, and, if not then paid, the notes, should be returned to the attorneys for collection, and they should receive a reasonable fee. Held, that the attorneys were entitled to recover under the contract if after 90 days the notes were not returned to them, whether they had been paid, the-time of payment extended, or whether they had been transferred.
    [E!d. Note. — For other eases, see Attorney and Client, Cent. Dig. §§ 352, 353; Dec. Dig. § 148.]
    4.Contracts (§ 337) — Pleading—Breach-Damages.
    It is error to sustain a demurrer to an action for breach of contract because the measure of damages contended for by plaintiff, is not the agreed one, since plaintiff is at least entitled to recover nominal damages on alleging a valid contract and its breach.
    [Ed. Note. — For other cases, see Contracts, ‘Cent. Dig. §§ 1682-1690; Dec. Dig. § 337.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by S. E. Fish and others against James F. Sadler, Jr., and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    J. H. Synnott, of Amarillo, for appellants. Cooper, Merrill & Lumpkin, of Amarillo, for appellees.

      For other cases see-same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

This is a suit by appellants to recover damages of appellees for the breach of a contract, and the appeal is from a judgment sustaining a general demurrer to the plaintiffs’ original petition. Plaintiffs, Hall, Fredericks & Fish, a firm of lawyers, sued appellees for a breach of the following contract: “State of Texas, County of Potter. This agreement, made and entered into by and between the Sadler Mortgage Loan Co. of the county of Potter and state of Texas, party of the first part, and Hall, Fredericks & Fish, of the county of Potter, state of Texas, party of the second part, witnesseth: Party of the second part hereby agrées to accept the sum of $250.00 for services rendered in the collection of the Reed-Allen series of notes in consideration of the following agreement, to be faithfully kept by said party of the first part: First. In the event said notes are paid to said party of the first part, both principal and interest, within ninety days from the date thereof, then the said party of the first part to pay said party of the second part the further sum of $300.00 cash upon such payment. Second. In the event .said notes are not paid within said ninety days, then the unpaid notes of said series are to be placed in the hands of said party of the second part for collection, said party of the second part to receive the reasonable fee for such services as will by law be allowed in the premises. Witness our hands at Amarillo, Texas, this the 12th day of May, A. D. 1910.” This contract was signed by the parties to this action.

Plaintiffs’ ■ petition to which the general demurrer was sustained is very specific in its allegations, and it will not be necessary to set it out in full here. Briefly stated, the allegations are that plaintiff's were practie-ing attorneys; that the defendants owned the stock of and were managers and officers of a private corporation called the Sadler Mortgage Loan Company, and that the corporation was the owner and holder of certain vendor’s lien notes on certain lands, aggregating $26,000 principal, with interest at a rate and from a date stated, and that said notes contained a stipulation for 10 per cent, attorney’s fees if they were placed in the hands of attorneys for collection; that about the 15th day of December, 1909, the corporation exercised an option granted in the notes, and declared all said notes due, and placed them in the hands of plaintiffs for collection; that plaintiffs filed suit thereon, service of process was had upon the makers of the notes, and prepared the case for trial; that plaintiffs attended court for the purpose of taking judgment when certain negotiations between appellees and the makers of the notes resulted in some sort of a compromise, by the terms of which a part payment was made and the suit dismissed; that thereafter a dispute arose between the defendants acting for the corporation and plaintiffs as to the fee plaintiffs should receive for their services, defendants offering $250 and plaintiffs claiming a great deal more; that on the 12th day of May, 1910, such dispute was compromised by plaintiffs and the corporation entering into the contract hereinbefore set out; that in consideration of such contract plaintiffs returned the notes to the corporation. It is further alleged that the notes were not paid within the 90 days; that the $26,000 was still due at the end of the 90 days; that plaintiffs had thereafter repeatedly demanded that the corporation turn over to them the notes, that they might collect them and earn the 10 per .cent, stipulated as attorney’s fees, which defendants refused to do. It was further alleged that the land upon which the notes were a lien was worth the amount of the notes; that the makers of the notes were solvent, and that 10 per cent, of the amount of said notes would have been allowed plaintiffs for their services; that since the oc-curence of these things the defendants, as officers and stockholders of the corporation, had duly and legally dissolved the same and divided the assets amongst themselves, each receiving $30,000 over and above the liabilities.

Appellees’ brief submits a number of counter propositions which we summarize as follows: An agreement tending to encourage litigation is against public policy and unenforceable, even though no evil resulted thereby. The purchase of a lawsuit by an attorney should be condemned on principles of public policy. A contract to procure a claim for collection by a firm of attorneys is void, being against public policy. A contract made by and between two persons to injure or wrong a third person is against public policy and unenforceable. The agreement attempted to take away from the Mortgage Company the right to the notes owned and held by it, and to cause it to file suit on the notes whether it was to their best interest or not, or whether it was necessary. An agreement made between an attorney and client after the fiduciary relationship has commenced, whereby attorneys are to secure greater compensation than was first agreed upon, is valid and enforceable only to the extent of reasonable compensation, and when under the new agreement said attorneys performed no services they cannot recover. Before appellants could sue for a breach of the contract, they must show by their pleadings (a) •that the Mortgage Company owned and held the notes after the expiration of the 90 days; (b) that the time of payment had not been extended by said Mortgage Company; (c) that it was to the best interest of the Mortgage Company to place the notes in appellants’ hands for collection; and (d) that said notes have not been paid. An agreement made by an attorney is unenforceable when it encourages the bringing of any suit with the intent to distress defendant therein, or when the attorney seeks to obtain employment to prosecute a suit by a personal solicitation, or where the attorney seeks employment by giving to the person from whom the employment is sought anything of value.

It is insisted by appellees that the contract in question is within the barratry statute (Revised Criminal Statutes of Texas, 1911 [Penal Code] art. 421 [290]), but we are not able to agree with this contention. The only clause of the statute which they insist is applicable to the fact of this case is as follows: “If any attorney at law shall seek * * * employment in any suit at law or in equity, to prosecute the same by means of personal solicitation of such employment, * * * shall be deemed guilty of barratry,” etc. At the time this contract was executed, appellants had the notes in their possession, and an attorney’s lien thereon, to secure them in the payment of reasonable compensation for their services. They released this lien by surrendering possession of the notes and accepted as consideration the contract and a sum which (as apparent from the contract and the transaction itself) was admitted by both parties thereto as insufficient remuneration for the work done, and the release of the lien, and the' contract cannot be held as seeking by personal solicitation employment in any subsequent suit. It was certainly not an agreement tending to encourage litigation, and at most can be held to be only a contract fixing their rights in the event litigation with the makers of the notes should be necessary in the future. The contract does not provide for a suit at the expiration of the 90 days, but only that the notes shall be returned to appellants for collection.

Appellees’ insistence that the contract should be construed as the purchase of a. lawsuit by appellant is without merit. We have never understood it was against public policy or even unprofessional for an attorney to enter into a contract with the holder of claims for the collection thereof. We are not willing to so hold, and thus wipe out an honorable profession, and practically exterminate. the legal fraternity. As a matter of fact, the collection of claims constitutes the principal part of a lawyer’s business, and proper business methods demand that, in order to avoid misunderstandings with his client, an attorney should have a definite contract, fixing his compensation before he undertakes such collection.

Appellees’ contention that a contract made by and between two persons to injure or wrong the third person is good law and good morals, but it has no application whatever to this case. The contract did not tend to deprive the corporation of the notes if they had been paid within the 90 days, but was intended to restore to appellant the possession thereof in the event of a failure on the part of the makers to pay and the services of an attorney became necessary to enforce collection. Nor does the contract provide for a greater compensation than was first agreed upon. The petition clearly shows that no agreement was made at the time the notes were first placed in the hands of appellants for collection as to what their compensation should be; and, in the absence of such agreement, only such compensation as was reasonable could be had by them. In our opinion it was not necessary for the petition to show that the Mortgage Company owned and held the notes after the expiration of the 90 days, nor that the time of payment had been extended, nor that it was to the best interest of the Mortgage Company to place the notes in appellants’ hands.

According to the clear terms of the contract, appellants would be entitled to recover after the 90 days if the-notes had not been returned to them whether they had been paid, the time of payment extended, or whether they had been transferred to other parties. Either of these alternatives placing the performance of the contract beyond the power of appellees would constitute-a breach.

The measure of damages contended for by appellants was not in our opinion correct, but whether the measure of damages was properly alleged or not, the petition having set out a valid contract and the breach, entitled plaintiff to recover at least nominal damages, and was not therefore subject to general demurrer. Porter et al. v. Burkett et al., 65 Tex. 386; McFarland v. Owens, 63 S. W. 530; Id., 64 S. W. 229; Davis v. Ry. Co., 91 Tex. Civ. App. 505, 44 S. W. 823.

To hold with appellees would be such a refinement of legal ethics as would in this case deprive appellants of substantial rights, and grant appellees immunity from the obligations of a written agreement, which in our opinion the petition shows is supported by a sufficient consideration.

Reversed and remanded.

       Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 94 Tex. 650.


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WOOD.
    (Court of Civil Appeals of Texas. Dallas.
    March 29, 1913.
    Rehearing Denied April 12, 1913.)
    1. Railroads (§ 345) — Collisions—Actions —Issues, Proof, and Variance.
    A petition in an action for injuries to a traveler struck by a train at a. crossing, which alleges that the railroad company negligently operated its train against the team and vehicle of the traveler hurling him from the vehicle, is sustained by proof that the collision resulted from the company’s negligent operation of its train, and whether the traveler jumped from the vehicle instead of being hurled therefrom is immaterial.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1113-1116; Dec. Dig. § 345.]
    2. Appeal and Error (§ 994).— Review— Credibility op Witnesses.
    The credibility of witnesses giving conflicting evidence is for the jury, not for the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.]
    3. Trial (§ 260) — Instructions Covered by Charge Given.
    Where, in an action for injuries to a traveler struck by a train at a crossing, the court charged correctly on contributory negligence, and that if the traveler approached the crossing, driving at a trot, and. failed to stop, look, and listen, the verdict must be for the company, the refusal to charge that if the traveler, by looking westward, could have discovered the approach of the train in time to have stopped his horse, or in time to have left the vehicle and avoided injury to himself, and if one of ordinary prudence would have looked westward when nearing the track, the failure to look westward contributed to the injury, was not erroneous because substantially covered by the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Action by C. T. Wood against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alex S. Coke, of Dallas, and Dinsmore, Mc-Mahan & Dinsmore, of Greenville, for appellant. Yates, Sherrill & Starnes, of Green-ville, for appellee.

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURY, J.

Appellee sued appellant in the district court of Hunt county for damages for personal injuries, and upon trial was awarded verdict by a jury for $3,500, followed by judgment, from which this appeal is taken.

Appellee charged, in effect, that while driving a horse attached to a delivery wagon over one of the streets of Greenville, and" when he reached'the tract of appellee where it crossed the street over which he was pursuing his way, a locomotive and train of appellant ran against and upon the horse and wagon which he was driving, thereby causing appellee to be hurled with great force and violence against the ground and other hard substance thereon, injuring him as detailed in the petition. Appellee’s answer con-' sisted of the general denial and' a. plea of contributory negligence.

The first six assignments of error raise .in various ways the issue that the testimony was insufficient to sustain' a verdict for ap-pellee, and we will for that reason consider them all together, since, if any one of them shows error, they all do. Under these' assignments, the claim is made that the evidence is insufficient, for the reason that it discloses that when the accident occurred ap-pellee “jumped” from his wagon, and was not, as he alleges, “hurled”.therefrom, which really raises the point, that there was variance between the pleading and proof, and which should have been raised when proof that appellee “jumped” from his wagon, instead of being “hurled” therefrom was sought to be introduced. It probably would have been held an immaterial 'variance, however, as not tending to mislead and surprise appellant. McClelland v. Smith, 3 Tex. 210; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Railway Co. v. Evans, 78 Tex. 369, 14 S. W. 798; First Nat. Bank v. Stephenson, 82 Tex. 435, 18 S. W. 583; Houston Light & Power Co. v. Hooper, 46 Tex. Civ. App. 257, 102 S. W. 133; Brown Cracker & Candy Co. v. Johnson, 154 S. W. 684, decided' at the present term of this court. Further, the substance of the charge of negligence contained in the petition is that appellant propelled its locomotive and train against and upon the team -and hack of appellee, and we ;are of opinion that proof that such act of negligence ■ caused appellee to jump from the wagon in an effort to avoid danger is admissible under :an allegation that he was “hurled” from the wagon. In other words, the evidence was sufficient to sustain the verdict that it was the negligence of the appellant that, brought about the collision between its locomotive and appellee’s horse, which was substantially the negligence charged, and if as a result of the collision appellee-jumped from his wagon, instead of being hurled as alleged in his petition, he will, notwithstanding the allegation, be permitted to prove such detail of the accident, since such allegation was initially unnecessary. Railway Co. v. Johnson, 83 Tex. 628, 19 S. W. 151; Hicks v. Railway Co., 96 Tex. 357, 72 S. W. 836; Railway Co. v. Hugen, 45 Tex. Civ. App. 330, 100 S. W. 1001; Railway Co. v. Crum, 35 Tex. Civ. App. 612, 81 S. W. 74; Hillje v. Hettich, 65 S. W. 492. For the reasons above stated, we think it inn -jnaterial whether there was any .. testimony" sustaining the allegation by appellee that "he was hurled from the wdgon.

If the point was material, however, it can be further said that appellee did testify on direct examination that he was 'thrown from his wagón when struck :and on 'cross-examination modified the-claim that hé was thrown from the wagon, and said" that he made an effort to jump." The inference to be drawn from his testimony is, perhaps, that he attempted to jump from the "wagon and escape the impending danger, but was thrown therefrom before succeeding in his effort. It is also equally true that a large number of witnesses contradicted appellee, "and declared that he jumped from the wagon. The solution of the contradiction arising between the witnesses, however, is neither the privilege nor duty of this court, but is for the jury.

The seventh assignment of error complains of the refusal of the court below to instruct the jury, omitting preliminary recitals, as follows: If “plaintiff, when he had approached near the spur track south of the main line or had gotten upon said spur track, could, by looking westward, have discovered the approach of the train in time to have stopped his horse or in time to have left the buggy, and * * * thus * * * avoided injury to himself,” and that one of ordinary prudence would have looked “westward when near the spur track” and that plaintiff failed to so look upon reaching the point described) to find for the defendant if such failure to ■look westward contributed to the injury of appellee. In reference to this special charge, it may be said that the court fully charged the jury on contributory negligence generally, and then told them in another special charge requested by appellant and allowed by the court, among other things, “if you believe that plaintiff approached the railway crossing driving his. horse at a trot, and that plaintiff failed to stop his horse before reaching the crossing, and to look and listen for approaching cars, or * fit * failed to listen for' approaching cars,” etc., "then to find for appellant. The only material difference in the charge given and the one refused is that the refused charge télls the jury it would be negligence for appellee to fail to look westward for any approaching train upon reaching appellant’s track, while the charge given at appellant’s request tells the jury that it was negligence on the part of the 'appellee when he reached the tracks of. the .appellant if he failed to stop his horse before crossing, failed to look and listen, or alone failed to listen. This charge was, as favorable to appellant as the one requested, 'and hence we see no error in such refusal. The general charge, and the special charge above referred to, together with another special charge giv-én át the request of appellant, affirmatively presented on behalf of appellant all matters of fact developed by the pleading and evidence on the issue of appellee’s negligence contributing to his injuries," and further reference thereto was obviously unnecessary. Railway Co. v. Meakin, 146 S. W. 1057, and citation; Railway Co. v. Smith, 50 Ter. Civ. App. 10, 108 S. W. 989; Commerce M. & G. Co. v. Gown, 104 S. W. 916; Railway Company v. Haney, 94 S. W. 386.

The last assignment of error asserts that a new trial should have been awarded, for the reason that the verdict of the jury is so ercessive that passion or prejudice on the part of the jury will be assumed by this court. We have examined the testimony with reference to appellee’s injuries, and have concluded the facts do not warrant the exercise of the narrow and circumscribed authority this court possesses to disturb the verdict of the jury.

The judgment is affirmed.


author: MOURSDND, J.

text:
    ELECTRIC PARK CO. v. SAN ANTONIO BASEBALL ASS’N.
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1913.)
    Appeal and Eeeob (§ 781) — Decisions Reviewable — Moot Cases.
    Where a temporary injunction restraining the removal of personal property from plaintiff’s land was dissolved, and the property was removed pending the appeal which did not stay the order dissolving the injunction, the app.eal will be dismissed; the case being moot, and the only point left being the question of costs.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3122; Dec. Dig. § 781.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Action by the Electric Park Company against the San Antonio Baseball Association. Prom an order dissolving a temporary injunction, plaintiff appeals.
    Appeal dismissed.
    Joel A. Lipscomb and W. ■ H. Lipscomb, both of San Antonio, for appellant.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r'Indexcif.

   MOURSDND, J.

On October 23, 1912, a temporary injunction was issued by order of Hon. W. S. Anderson, judge of the Thirty-Seventh judicial district of Texas, restraining the appellee from tearing down and removing certain grand stands, bleacher stands, and other improvements which had been erected by appellee upon premises belonging to appellant during the time when appellee had such premises leased. It was alleged in the petition for injunction that the lease contract in force at the time the improvements were erected provided for their removal by appellee upon termination of the lease, but subsequently a new contract had been entered into under which such improvements became the property of appellants ; that appellees repudiated such subsequent contract, and had brought suit in the Thirty-Seventh district court of Bexar county to cancel the same; that the ownership of said improvements would be determined in said suit, and the acts of the Baseball Association in attempting to tear down and remove such improvements will tend to render the judgment of the court in the case referred to ineffectual, should such judgment be in favor of the Electric Park Company. The defendant filed a sworn answer, supported by affidavits, and on November 8, 1912, the court entered an order dissolving the temporary injunction, from which order this appeal was taken.

The order dissolving the temporary injunction did not provide that such order should be suspended during the appeal therefrom, so under article 4644, Revised Statutes of 1911, the order dissolving the injunction remained in full force and effect. Prior to the submission of this case, all the property, the removal of which was sought to be restrained, had in fact been removed from appellant’s premises. The only purpose for which this suit was instituted was to prevent the removal of such property pending the trial of the other case. This case, therefore, falls within that class of cases in which there is nothing left to litigate except the matter of costs. In such cases our courts have declined to decide abstract propositions or to declare principles of law which cannot affect the result as to the matter in issue. In the case of La Coste v. Duffy, 49 Tex. 768, 30 Am. Rep. 122, the court said: “It has not been customary , in this court to decide questions of importance, after their decision has become useless, merely to ascertain who. is liable for the costs. The amount of business of practical importance would forbid that, the tiine of the court should be so occupied.” See, also, Jackson v. Daugherty, 26 S. W. 1116; Bolton v. City of San Antonio, 4 Tex. Civ. App. 175, 23 S. W. 279; McMillan v. Kelch, 16 Tex. 150; Railway v. Wilson, 59 S. W. 589; Johnson v. Scott, 111 S. W. 167.

The appeal will be dismissed, at appellant’s costs.


author: SPEER, J.

text:
    WITHERS v. CRENSHAW et al.

    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.
    Rehearing Denied March 22, 1913.)
    1. Exceptions, Bill oe (§ 4) — Contents— Motion to Strike Pleas.
    District and county court rule 53 (142 S. W. xxi) provides that no bill of exceptions shall be taken to the judgment rendered on those matters which at common law constituted the record proper, and rule 65 (142 S. W. xxii) provided that judgments rendered on questions raised upon citations, pleadings, and all other proceedings, constituting the record proper’, as known at common law, must be entered at the date of each term when pronounced. Held, that an exception to a denial of a motion to strike out pleas of lien claimants in trespass to try title could not be presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Ceht. Dig. §§ 5, 6; Dec. Dig. § 4.]

      2. Municipal Corporations (§ 484) — Improvement Certificates — Evidence.
    A local improvement certificate evidencing a lien for street improvements against a lot in question, sufficiently describing the lot, was admissible in support of the lien in trespass to try title under the express provisions of Et. Worth City Charter, c. 12, § 15 (Acts 31st Leg. c. 31).
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1137-1139; Dec. Dig. § 484.]
    3. Municipal Corporations (§ 407) — Eminent Domain (§ 2) — Constitutional Law (§ 311) — Statutes (§ 85) — Local Improvements — Certificate — Prima Facie Evidence — Statutes—Validity.
    Ft. Worth City Charter, c. 12, '§ 15 (Acts 31st Leg. c. 31), providing that the recitals in a local improvement certificate shall constitute prima facie evidence of the facts recited therein, etc., was not in contravention of Const, art. 1, §§ 17 and 19, nor article 3, § 56.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1003, 1004; Dec. Dig. § 407; Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2; Constitutional Law, Cent. Dig. § 932; Dec. Dig. § 311; Statutes, Cent. Dig. §§ 94, 95; Dec. Dig. § 85.]
    4. Covenants (§ 130) — Breach of Warranty-Damages.
    Where a title to six feet of a strip of vacant land failed, the measure of damages for breach of warranty of title was the difference in the value of the lot with and without the strip, eliminating any increased value by reason of improvements thereon.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 245-253, 255, 256, 257; Dec. Dig. § 130.]
    5. Covenants (§ 47) — Covenant of Warranty-Effect.
    Where a deed containing a general covenant of warranty conveyed the property as the south 50 feet of a lot and not by marked corners or otherwise to rebut the inference that the lot was fully 50 feet as described, each understanding the lot to be fully 50 feet wide, when in fact it was only 44 feet, and payment was made on the mistaken assumption as to the width, a warranty would be construed as covering the quantity of the land as well as the title.
    [Ed. Note. — For other cases, seé Covenants, Cent. Dig. § 47; Dec. Dig. § 47.]
    Appeal from 'District Court, Tarrant County ; Jas. W. Swayne, Judge.
    Trespass to try title by- V. F. Withers against J. O. Crenshaw arid others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    J. C. Scott, of Ft. Worth, for appellant. Slay, Simon & Wynn, Robt. G. Johnson, Cren-shaw & Boykin, and N. W. Wilkinson, all of Ft. Worth, for appellees.

       Application for writ of error dismissed by ‘Supreme Court.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

Mrs. V. F. Withers, a widow, sues in trespass to try title to recover from Etheyne R. Boaz the south 50 feet of lot No. 1 of the C. T. Hodge addition to the city of Ft. Worth. The real controversy is one boundary between the south and north halves of the lot and involves a strip of land six feet in width. J. O. Crenshaw, the original owner of the entire lot, was made a party defendant as a warrantor of the title, and the Texas Bitulithic Company and the city of Ft. Worth were made defendants upon an allegation that they were asserting some sort of lien against the property for street improvements. All parties answered and the defendant Boaz, among other defenses, pleaded that the deed of conveyance from Crenshaw to Withers’ grantor by mutual mistake included the land in controversy. The court instructed the jury to return a verdict in favor of the defendant Boaz and submitted to them to find the difference in the value of plaintiff’s property at the time of the conveyance from Crenshaw with and without the six feet in controversy. In accordance with the verdict returned, judgment was entered in favor of defendant Boaz for the land in controversy, in favor of the plaintiff against Crenshaw on his warranty for $280.13, and in favor of the Texas Bitu-lithic Company for the sum of $217.27, with a foreclosure of its lien against plaintiff’s property. Some other matters not necessary to notice were also adjudicated. The plaintiff has appealed.

The first question is one complaining of the court’s ruling on appellant’s motion “to strike out the pleas of the city of Ft. Worth and the Texas Bitulithic Company because they changed the nature of the suit. We cannot consider the merits of this question, however, for the same is not properly presented. No order of the court on appellant’s plea or exception is shown but the matter is attempted to be raised by bill of exception. Rule 53 (142 S. W. xxi) for the county and district courts is: “There shall be no bill of exceptions taken to the judgment of the court rendered upon those matters which at common law constitute the record proper in the case, as the citation, petition, answers, and their supplements and amendments, and-motions for a new trial, or in arrest of judgment and final judgment.” Rule 65 (142 S. W. xxii) prescribes that: “Judgments rendered upon questions raised upon citations, pleadings, and all other proceedings constituting the record proper, as known at common law, must be entered at the date of each term when pronounced.” It is apparent the question here attempted to be raised cannot be presented by a bill of exception which, under the statute and rules, might be filed after the time when all judgments proper are required to be entered.

The second and fifth assignments are grouped. The second is to the effect that the court erred in admitting a certain certificate issued by the city of Ft: Worth July 12, 1910, purporting to evidence a lien against the plaintiff’s lot in favor of the Bitulithic Company, and the fifth is to the effect that the court erred in taking away from the jury the question of the existence of such lien. The certificate in question appears to have been issued under section 15, c. 12, of the charter of the city of Ft. Worth (Local and Special Laws 1909, p. 294); and by the terms of that act, which is made a public law of which the courts will take notice, “the recitals in such certificate that proceedings with reference to such improvements have been made in compliance with the terms thereof and that all prerequisites to the fixing of the lien and charge of personal liability evidenced by such certificate have been performed, shall be prima facie evidence of the facts so recited and no other proof thereof shall be required, but in all courts the said proceedings and prerequisites shall without further proof be presumed to have been had and performed.” The certificate sufficiently described appellant’s lot and was therefore, under the terms of the charter, admissible.

The assignment also suggests the act is in contravention of sections 17 and 19, art. 1, and section 56, art. 3, of the Constitution of the state, but we see no reason for sustaining the contention.

The proposition to the effect that the property against which the lien was decreed was the homestead of a former owner of the lot, one Tippett, at the time the lien was created, is not supported by the record. Tippett, it seems, sold and conveyed the property March 15, 1909, while the ordinance of the city commissioners, upon which the lien rested, was passed June 29, 1909. The matter complained of in the seventh assignment of error to the effect that the court wrongfully permitted a cross-examination of appellant with respect to immaterial matters is not shown to be such as probably prejudiced her rights on the trial.

The measure of damages adopted by the court was right. It clearly would not have been proper to permit the plaintiff to recover on Crenshaw’s warranty the increased valuation of the six-foot strip of land by reason of the valuable improvements thereon. The most that can be said is that the difference in the value of the lot with and without this six feet should be determined as though the strip, was vacant land, as all parties really understood it to be. The undisputed facts were such as to justify the summary instruction for defendant Etheyne Boaz, because all of the parties involved fully understood that the land actually sold did not include any part of the brick building on the north half of the lot, and that therefore the calls of the deed to the contrary were mistaken calls.

Appellee Crenshaw has cross-assigned error to the judgment against him, based upon the proposition that the general warranty applied to the title and not the quantity of the land. The deed, however, conveyed the property as the south 50 feet of the lot and in no manner by marked corners, or otherwise, to rebut the inference that the lot was full 50 feet as described. The evidence being, as already indicated, that all parties knew the north line of the lot, but it further appearing that each understood it to be 50 feet instead of 44, and payment having been made upon such mistaken assumption, the judgment against appellee for this shortage is proper, since, as we think, the warranty covered the quantity as well as the title. Davis v. Fain (No. 7,548) 152 S. W. 218, by this court, and not yet officially published.

There is no error in the judgment, and it is affirmed.


author: McMEANS, J.

text:
    SWANSON v. BRAWNER.
    (Court of Civil Appeals of Texas. Galveston.
    April 1, 1913.)
    1. Vendor and Purchaser (§ 117) — Rescission op Contract op Purchase — Conditions Precedent.
    A purchaser suing to rescind the purchase for fraud of the vendor must give back or offer to return whatever of value was received under the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 209; Dec. Dig. § 117.]
    2. Vendor and Purchaser (§ 339) — Fraud op Vendor — Remedy op Purchaser.
    A purchaser who elects to retain the title, or who fails to offer to do equity by the tender of a conveyance of the land to the vendor, who was guilty of fraud inducing the conveyance, may not recover the price paid nor obtain a cancellation of the notes for the deferred payment.
    [Ed. Note. — For other cases, see Vendor and .Purchaser, Cent. Dig. §§ 994-1002; Dec. Dig. § 339.]
    Appeal from District Court, Brazoria County; Wells Thompson, Judge.
    Action by Mrs. Nancy E. Brawner against the Brazoria Land & Cattle Company and A. C. Swanson. From a judgment for plaintiff against defendant Swanson, he appeals.
    Reversed and rendered.
    Lewis R. Bryan, of Houston, for appellant. Edwin Hiner, of Ft. Smith, Ark., for ap-pellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

This suit was originally brought by the appellee, Mrs. Nancy E. Brawner, against the Brazoria Land & Cattle Company and A. C. Swanson. She alleged in her petition that said company agreed to sell her two tracts of land in Bra-zoria county, one of 200 acres, and one of 160 acres, the latter being the N. W. % of section 30, H. T. & B. R. R. survey, and to deliver to her, within 90 days from the date of said agreement, an abstract of title to the land showing the same to be free from incumbrances and showing a good title in the grantor; that plaintiff at the time of the agreement paid to appellant Swanson, as agent of said company, $1,400 as part of purchase money of the 160 acres, and received a deed to the land, but that defendants breached its said agreement .with her, in that they Aid not and never have furnished to her an abstract of title, and in that the deed executed and delivered to her showed that the land was not free of incumbrance, but that it was incumbered with a lien as security for the payment of $1,280. She prayed that the deeds to both tracts be canceled and held for naught, and for judgment against defendants for $2,400, being the aggregate of the amounts theretofore-paid by her for part of the purchase money for both tracts, and for the establishment of a lien on the land as security therefor, and for foreclosure, and for general relief.

The agreement in reference to the sale was in writing, and attached to the petition as an exhibit. It appears to be a contract between A. C. Swanson & Oo. and Mrs. Brawner, to which the Brazoria Land & Cattle Company is not a party. It is stipulated therein that Mrs. Brawner was to- pay. $20 per acre for the 160 acres, one-fourth in cash and the balance in equal amounts to be paid on or before two and three years after date, with 6 per cent, per annum interest. The deed to this tract, which is also attached to and made a part of the petition, recited a consideration of $3,200 paid and to be paid as follows: $1,400 cash and the assumption of five vendor’s lien notes in favor of the Brazoria Land & Cattle Company, given by Charles Williamson, trustee, for $256 each, bearing 6 per cent, per an-num interest; and five notes in favor of said Williamson, trustee, who executed the deed to Mrs. Brawner for $104 each, also bearing 6 per cent, per annum interest, all of said notes being payable one, two, three, four, and five years after date, and secured by a vendor’s lien on the 160 acres. The ten notes, together with the $1,400 paid in cash, aggregate $3,200, which was the agreed purchase price.

The defendant Swanson answered, pleading, among other matters, that Mrs. Brawn-er had accepted the deed, and that the same called for the payment of only the amount of the purchase money as provided in the agreement, and that the change in the amounts and dates of payment of the purchase money was made at her instance and request. He further pleaded that he was the owner of two of the notes for $104, each given by Mrs. Brawner to Williamson, and by way of reconvention prayed for judgment against Mrs. Brawner for the amount of same. After the filing of this answer, Mrs. Brawner took a nonsuit, and the entire case was dismissed from the docket, but subsequently, on the motion of defendant Swanson, the case made by him on his plea of reconvention was reinstated. Swanson filed his first amended cross-bill in lieu of his original answer and cross-bill, stating that as the plaintiff had dismissed her suit against the Brazoria Land & Cattle Company and defendant Swanson at the September’ term of court, 1911, and as the case was then on trial only upon the cross-bill of the defendant Swanson against the plaintiff, Mrs. Brawner, the defendant filed no answer or defensive pleas and amended as to his cross-bill only, and then proceeded to declare upon the said five $104 notes given by Mrs. Brawner to Chas. E. Williamson as part of the purchase money of said land, all of which were then past due. Mrs. Brawner filed her answer and reply to this amended complaint of defendant Swanson’s, and specially denied that she had delivered to Chas. E. Williamson the notes sued upon by Swanson, and denied that Swanson was the owner of the same, and specially denied that she was indebted to- Swanson in any sum whatever. The fourth and last paragraph of this answer and reply was as follows: “(4) Plaintiff Nancy E. Brawner further and lastly, answering and replying to defendant Swanson’s amended cross-complaint, avers and alleges the facts to be that on the 7th day of October, 1907, said defendant Swanson executed and delivered to plaintiff an agreement in writing by which he agreed to sell to plaintiff 360 acres of land in Brazoria county, Texas, and’ to furnish an abstract thereto for the sum of $20 per acre; that she was to pay and did pay to said Swanson on said land $2,400, $1,400 on the 160 acres mentioned in said agreement, and $1,000 on the 200 acres mentioned in said agreement, a copy 'of said agreement is attached to plaintiff’s original complaint herein, and asked to be made a part of her answer and reply to defendant’s amended cross-complaint." Plaintiff states and alleges that the amount of money of $2,400 paid to said Swanson was paid by her through false representation’ of said Swanson, in that he owned the land contracted and sold to plaintiff, and that the same was free and unincumbered, when and in truth and fact he did not own any of the land, and that the same was heavily incumbered, all of which facts defendant Swanson well knew. Plaintiff further states that said notes mentioned in defendant’s cross-complaint were not only obtained from her by said Swanson through false representation, but that the same were without consideration and are void. Wherefore plaintiff asks that defendant’s cross-complaint be dismissed, and that she have judgment against him for the sum of fourteen hundred dollars ($1400.00), with interest thereon from the 16th day of November, 1907, to the present time, also for all her costs herein paid out and expended.”

The case was tried before a jury, and resulted in a verdict and judgment for Mrs. Brawner against Swanson for $1,400 and interest, and for the return to her of her notps. It appears that no judgment was asked for or entered with reference to the 200-acre tract, or as to the recovery of the purchase money and notes paid or agreed to be paid therefore. Etom this judgment Swanson’ appeals.-

It will be observed that tbe case was tried upon tbe cross-action of tbe defendant Swanson and tbe answer thereto of tbe plaintiff upon wbicb sbe sought judgment for tbe recovery of tbe §1,400 paid by her as part of the-purchase money for the 160-acre tract, and tbe cancellation of tbe notes given by her for the deferred payments therefor. Tbe original cause of action set up in plaintiff’s petition against Swanson and tbe Bra-zoria Land & Cattle Company, in which it may be gathered that sbe sought a recovery of tbe sums paid by her for part of tbe purchase money for both tracts, and for the cancellation of the deeds executed to her, and of tbe notes executed by her for the deferred payments of both tracts, appears to have been abandoned. In her amended petition in answer to Swanson’s cross-bill sbe made no tender of a deed reeonveying tbe land to Swanson, nor was any such deed of conveyance tendered on tbe trial, nor did sbe pray that tbe deed and her notes be canceled. In view of this omission on her part, Swanson at the conclusion of tbe introduction of evidence requested tbe court to instruct tbe jury to return a verdict in his favor. Tbe refusal to give this charge is made tbe basis of appellant’s first assignment of error. Under this assignment, appellant presents tbe proposition that “tbe undisputed evidence in tbe case showing that appellee had received a deed to 160 acres of land and gave tbe notes sued upon as part of tbe purchase money, -and that tbe incumbrance on tbe land was part of tbe purchase money sbe was to pay for it, and was, in- fact, a part of tbe vendor’s lien sbe bad agreed to give upon tbe land to secure -the balance of tbe purchase money, and there being no offer on her part to reconvey the land, and no evidence to show that tbe title to tbe land bad failed in any manner, appellant was entitled to a judgment for tbe amount due on bis notes, and tbe appellee was not entitled to recover anything against him.”

Tbe agreement entered into between Swanson & Oo. and Mrs. Brawner for tbe sale and purchase of tbe land, wbicb was referred to and made a part of Mrs.- Brawner’s answer to Swanson’s cross-bill, describes tbe 160 acres as being tbe N. W. % of section SO, H. T. & B. R. R. survey, while tbe 160 acres actually conveyed to her was tbe N. E. 14 of section SI. However, she does not by her pleadings base her right to recover upon tbe failure of Swanson to convey to her tbe particular tract be agreed to convey, and this part of tbe transaction may be dismissed without further consideration. It appears that at tbe time of making tbe agreement neither Swanson or Swanson & Oo. owned any land on either section 30 or section 31. In fulfillment of his contract, however, Swanson procured the Brazoria Land & Cattle Company, tbe owner, to sell to Charles Williamson tbe N. E. % of section 31, and Williamson, in turn, to convey tbe same to Mrs. Brawner. Williamson in purchasing tbe land from tbe Brazoria Land & Cattle Company executed five promissory notes for §266 each, payable one, two, three, four, and five years from date, aggregating §1,280, all of wbicb were secured by a vendor’s lien on tbe land. Williamson in conveying to Mrs. Brawner recited in tbe deed the cash payment of $1,400, tbe assumption of the- notes for $1,280, and tbe execution of five notes for $104 each, aggregating $520, wbicb were secured by vendor’s ben. Tbe aggregate of all these sums is $3,200, which is tbe amount Mrs. Brawner agreed to pay. Tbe existence of tbe lien secured by the notes aggregating $1,280 wbicb sbe assumed to pay is made the basis of her contention that Swanson violated bis agreement to sell land to her free from incumbrance.

Tbe deed to Mrs. Brawner put in her tbe legal title of tbe N. E. % of section 31. Can sbe retain tbe title and ownership of tbe land, and at the same time recover tbe amount sbe paid in cash, and obtain tbe cancellation of tbe notes given by her for the deferred payments? We answer that sbe cannot It is a well-established principle of equity that in an action to rescind a contract of purchase of land on account of tbe fraud of tbe vendor, and to recover tbe consideration paid therefor, tbe vendee must give back or offer to return whatever of value was received under tbe contract. Bishop on Cont. § 611; 1 Pom. Eq. §§ 385, 386; 2 Pom. Eq. § 910; Pearson v. Cox, 71 Tex. 246, 9 S. W. 124, 18 Am. St. Rep. 740; Williams v. Sapieha, 59 S. W. 948; Putman v. Bromwell, 73 Tex. 465, 11 S. W. 491; Garza v. Scott, 5 Tex. Civ. App. 289, 24 S. W. 89; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 600.

Mrs. Brawner having elected to retain tbe title, or at least having failed to offer to do equity by the tender of a conveyance of tbe land back to Swanson, was not entitled to a judgment against him for tbe purchase money paid, nor to a cancellation of the notes given by her for tbe deferred payment, and therefore tbe court should have given tbe peremptory charge requested by Swanson. It follows that tbe judgment of tbe court below must be reversed, ánd judgment is here rendered that plaintiff Brawn-er take nothing by her suit and that appellant ISwanson recover of appellee, Mrs. Brawner, judgment for tbe amount of tbe five notes for $104 each, aggregating $520 with 6 per cent, per annum interest thereon from tbe 16th day of November, 1907, and 10 per cent, thereon as attorney’s fees as stipulated in said notes.

Reversed and rendered.