text:
    McKINNEY v. THEDFORD et al.
    (No. 7884.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 14, 1914.)
    1. Bbokebs (§ 88)—Employment and Authority — Evidence op Agency — Sufficiency.
    Evidence, in an action for commissions for effecting an exchange of land, held sufficient to go to the jury on the issue of plaintiffs’ authority from defendant to make the exchange.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    2. Bbokebs (§ 86)—Actions fob Compensation—Evidence—Sufficiency.
    Evidence, in an action for commissions for effecting an exchange of land, held not to show conclusively that the purchaser bought defendant’s land solely upon his own information after negotiating with defendant, and was not influenced by any efforts made by the plaintiffs to bring about the sale.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    3. Bbokebs (§ 53) — Compensation—Sufficiency of Sebvices.
    Where a broker was the procuring cause of a sale, it is immaterial to his right to a commission that he did not personally conduct the negotiations, was not present when the bargain was closed, or that the principal at the time did not know that the purchaser was found by the broker.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 74; Dee. Dig. § 53.]

      4. BkokeRS (§ 88) — Actions for Compensation — Instructions. .
    An instruction as to a broker’s right to a commission, where he did not personally conduct the negotiations, was not present when the bargain was closed, and where his principal did not at the time know that he found the purchaser, was not inapplicable to the facts, where plaintiff did not personally negotiate the exchange and was not present when it was made.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    5. Trial (§ 194) — Instructions.
    An instruction, in an action for commissions, that, “where a broker was the procuring cause of a sale, * * * it is immaterial * * * that he did not personally conduct the negotiations, * * * ” was not objectionable as being upon the weight of the evidence; it being a mere abstract proposition of law, not applying directly to any issue, and the question whether plaintiffs were the procuring cause having been submitted as a disputed issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    6. Trial (§ 194) — Actions for Compensation — Instructions.
    An instruction that, in an action on implied contract, it is only necessary for the plaintiff to show that he performed acts as the broker of the seller, and that the latter adopted his acts and accepted his agency, was not objectionable as upon the weight of evidence, being merely an abstract legal proposition not applicable directly to any issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    7. Brokers (§ 88) — Actions for Compensation-Instructions.
    An instruction that plaintiffs could recover if they procured a buyer themselves or through their agent R. was not objectionable on the ground that R. was agent of the buyer, and that an agent cannot delegate his authority without his principal’s consent and cannot represent both parties, where the evidence showed that R. represented the buyer only, and the brokers on both sides represented their respective principals in the negotiations.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    8. Brokers (§ 88) — Actions for Compensation-Instructions.
    An instruction that plaintiffs, suing for commissions, were not partners of R., who represented the other party, and that they may recover, though R. got all of the commission from the other party, was not objectionable, because an agent who receives a secret commission from the other party cannot recover, where the evidence showed that the brokers on both' sides represented their respective principals only.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dee. Dig. § 88.]
    9. Trial (§ 260) — Actions for Compensation-Instructions.
    There was no error in refusing an instruction that a broker is not entitled to a commission where the purchaser bought on his own information after negotiating with the owner, without being influenced by the broker, though the broker made efforts to sell to such purchaser, where the court instructed that the brokers must have been the efficient and procuring cause of the sale, as the instruction given embodied substantially the same defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    10. Trial (§ 260) — Instructions—Requests —Instructions Already Given.
    There was no error in refusing an instruction that, even though a broker brings the parties together, he is not entitled to a commission, in the absence of a contract of agency, where the same defense was substantially presented in the court’s main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    11. Trial (§ 252) — Instructions.
    There was no error in refusing an instruction, in an action for brokers’ commissions, that any agreement between plaintiffs and the buyer’s agent relative to the exchange would not bind defendant without his consent, where there was no evidence of any such agreement to which it could apply.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    12. Brokers (§ 86) — Actions for Compensa-tío n — Evidence—Sufficiency.
    Evidence, in an action by brokers for commissions for effecting an exchange of real estate, held sufficient to support a verdict for the plaintiffs.'
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    Appeal from Young County Court; E. W-. Fry, Judge.
    Action by G. C. Thedford and another against J. G. McKinney. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    L. C. Counts, of Olney, for appellant. Arnold & Arnold, of Graham, for appellees.

      For other cases see same topic and section NUMBER in Dec. 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

   DUNKLIN, J.

J. G. McKinney has appealed from a judgment in favor of G. C. Thedford and R. H. Chancellor for the sum Of $125, as commissions earned for sale by plaintiffs, as real estate brokers and agents for McKinney, of land belonging to him; the sale being by way of an exchange of defendant’s land for other property. The suit was not upon quantum meruit, but upon an alleged contract of defendant to pay 2% per cent, commission on a valuation of the property at $5,000.

The evidence shows that McKinney exchanged his land for a tract of land in the state of Missouri owned by one Tull, who, in the negotiations for the exchange, was represented by another broker named W. G. Reddin; that prior to the exchange defendant went to Missouri and inspected Tull’s land, and after inspection, and while in Missouri, agreed with Tull to make the exchange, the agreement of Tull being conditioned upon a subsequent inspection of defendant’s land.

Appellant insists that a peremptory instruction should have been given in his favor as requested by him. The assignment of error complaining of the refusal of such an instruction is based upon two grounds: First, the lack of evidence to show that plaintiffs were authorized by the defendant to make the exchange; and, second, the lack of evidence to show that they performed any service under the alleged contract. By a proposition submitted under tbe assignment, the scope of the assignment is limited to the first ground stated, namely, that there was no evidence to show any contract by the defendant with plaintiffs authorizing them to sell the land. In view of the testimony of plaintiff Thedford that defendant listed the land for sale with plaintiffs, who were engaged as real estate brokers, and that he informed defendant in answer to the latter’s inquiry that a charge would be made of 2% per cent, commission on a valuation of the property at $5,000, and the further testimony of the witness Reddin in effect that, after defendant agreed with Tull for an exchange of properties, defendant told witness that he would pay plaintiffs a commission, this assignment must be overruled.

By the third and fourth assignments it is insisted that the court erred in the first and second paragraphs of the charge given to the jury. The assignments present several grounds of objection to those instructions, but they are limited by the proposition submitted under . those assignments to the single criticism that the evidence showed conclusively that the purchaser bought defendant’s land solely upon his own information after negotiating with defendant, and was not influenced by any efforts made by the plaintiffs to bring about the sale. The evidence shows that Tull lived in Missouri, and that plaintiffs had no communication with him whatsoever, but according to Thedford’s testimony he (Thedford) first told Reddin of plaintiffs’ property, and later used considerable persuasion to induce defendant to make the exchange, consisting of recommendations of the Missouri land, all of which occurred before defendant went to Missouri to inspect the land. In view of this testimony and Reddin’s testimony already noted in effect that while in Missouri, and after the exchange had been agreed on between defendant and Tull, defendant told Reddin that he expected to pay plaintiffs a commission, these two assignments must be overruled.

One paragraph of the court’s charge reads as follows: “Where a broker was the procuring cause of a sale of real estate, it is immaterial to his right to a commission that he did not personally conduct the negotiations, was not present when the bargain was closed, or that the principal at the time did not know that the purchaser was found by the broker.” This instruction is criticised as being inapplicable to any of the facts in the case, upon the weight of the evidence strongly implying that plaintiffs were the procuring cause of the sale, and calculated to lead the jury to believe that plaintiffs could recover, in the absence of any contract of employment by the defendant and without performing any service for him. We do not think the instruction subject to any of the criticisms made. We think it presents a sound proposition of law, and, -in view of the fact that plaintiffs . did not personally negotiate with Tull for the sale of defendant’s land and were not present when the agreement of exchange was made in Missouri, the instruction cannot be said to be inapplicable to any of the facts in the case. Nor do we think that the instruction is upon the weight of the evidence; the same being an abstract proposition of law, and not applying directly and specifically to any issue in the case. The instruction was one of several abstract statements of law which in the charge preceded the instructions to guide the jury in determining whether or not a verdict should be rendered in favor of the plaintiffs, and in which the questions whether or not plaintiffs were employed by defendant to act as his agents in the sale of the land, as alleged in plaintiffs’ petition, and whether or not their efforts were the procuring cause of the exchange that was made with Tull, were submitted as disputed issues of fact.

Another one of the abstract statements of law contained in the charge reads as follows: “In an action on an implied contract, it is only necessary for the plaintiff to show that he performed acts as the agent and broker of the seller; the latter adopted his acts and accepted his agency.” Criticisms are presented to this instruction as follows: That it authorized a recovery without proof of any contract of employment of plaintiffs, and that it strongly implies that defendant did adopt the acts of plaintiffs and did accept their agency, and that therefore it was upon the weight of the evidence. This assignment is overruled for the same reasons given for overruling the last preceding assignment.

Error has been assigned to this instruction: “An agent may be created by an express or an implied agreement, and when by an implied agreement the acts and conduct of the parties must be looked to in determining if there is an agency, and, if one party accepts the work and benefits arising from the efforts of a second party in a land deal, he makes the second party his agent by an implied contract. Therefore if you find from the preponderance of the evidence before you that there was either an 'express or an implied contract between the parties for the sale of the land in question, and that Thedford and Chancellor acted either as the direct or implied agents of ■ McKinney and procured for him a buyer for his land, either through themselves or their agent Reddin, then you will find for the plaintiff in the sum of $125, but, if you do not so find, then you will find for the defendant.” In the assignment many criticisms are addressed to this instruction, but, as in other assignments already noted, it is limited by the following proposition, which is the only proposition submitted under the assignment: “An agent cannot delegate the authority given him by'his principal without the principal’s consent, and an agent cannot act for both vendor and vendee without the consent of both.” Following this proposition is a quotation from the testimony of the witness Reddin as follows: “X made a trade for Brother McKinney through Brother Thedford. X had no interest in the commission down here. The Missouri man paid me. He was agent for Tull. I represent both men’s interests. Upton called me to McKinney and brought me and McKinney together. Thedford knew nothing of the contract between Tull and McKinney until I told him.”

The testimony of Reddin was uncontrovert-ed that he represented Tull only; that he so told McKinney on different occasions before the trade was closed; and that he had no interest whatever in the commissions claimed by plaintiffs. The negotiations between plaintiffs and Reddin were simply negotiations between two agents representing two principals, in which both agents were trying to effect a sale of the respective properties of their principals, and there is nothing in the testimony nor in the charge which does violence to the rule of law stated in the proposition.

Another instruction was given by the court réading: “You will find that Chancellor and Thedford are not partners of the witness Reddin, and that it makes no difference to their right for a commission that he got all of the commission out of the party in Missouri.” The proposition submitted under an assignment to this instruction reads: “An agent cannot obtain a commission from his principal for buying, where, unknown to such principal, he has received a commission from the seller.”

In view of what we have said in the discussion of the last preceding assignment, the assignment now under discussion must be overruled.

Complaint is made of the refusal of the following instruction requested by appellant: “A real estate broker is not entitled to commission on a sale of land, where the purchaser bought solely upon his own information after negotiating with the owners and was not influenced by the broker, even though the broker himself, or through another, had made efforts to sell the land to such purchaser.”

The court gave another special instruction requested by defendant reading as follows: “Unless you find from the evidence that plaintiffs Thedford and Chancellor, as the agents of the defendant, were the efficient and procuring cause of the sale or trade of defendant’s land, as alleged by plaintiffs, then you will find for the defendant.” The instruction so given presented substantially the same defense as was covered by the instruction which was refused. Appellant was not entitled to two instructions upon the same issue, and, when one was given, he is in no position to complain of the refusal of the other, even though it was more favorable to him.

It is insisted that the court erred in refusing another requested instruction in effect that, even though an agent brings parties together to make a trade, he is not entitled to a commission in the absence of a contract of agency. There was no error in refusing that instruction because the same defense was substantially presented in the court’s main charge.

Error has been assigned to the refusal of another instruction requested by the appellant that any agreement between plaintiffs and the witness Reddin, relative to the exchange of the two properties, would not be binding upon the defendant unless such agreement for exchange was made with defendant’s knowledge and consent, or was afterwards ratified by him prior to the consummation of the .trade. We do not think that this instruction was applicable to any of the evidence in the case. There was no testimony of any agreement between plaintiffs and Reddin further than, that each did make an effort to induce his principal to make the trade that was afterwards made. We are of the opinion further that the evidence was sufficient to support the verdict, and that the trial court committed no error in overruling appellant’s motion for a new trial.

The judgment is affirmed.


source: Caselaw Access Project

author: CONNER,. C. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. TOMLINSON.
    (No. 7922.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.)
    1. Carriers (§ 228) — Carriage of Live Stock—Burden of Proof of Injury to Stock.
    Where a shipper of live stock, required by the contract to accompany it, was not afforded an opportunity to do so, the rule that the burden of proof rested on him to show which of the connecting carriers inflicted the injury to the stock complained of did not apply.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 957-960; Dee. Dig. § 228.]
    2. Carriers (§ 228)—Carriage of Live Stock —Burden of Proof of Injury to Stock.
    Where a carrier of live stock contracted to transport it to designated stockyards, and there deliver it to the consignee, but proceeded without any special request therefor to take the stock to the stockyards by a belt line railway, the belt line railway was but an agency of the carrier to perform the contract, and, the shipper suing for injuries to the stock, did not have the burden of proving which carrier inflicted the injuries.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from Stephens County Court; N. N. Rosenquest, Judge.
    Action by J. E. Tomlinson against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 157 S. W. 278.

      Earl Conner, of Eastland, for appellant. Alexander, Power & Ridgway, of Ft. Worth, for appellee.

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

   CONNER,. C. J.

Appellee recovered a judgment for the sum of $150 as damages to a ear load of cattle shipped by him over the line of the appellant railway company from Cisco to Ft. Worth, Tex. The cattle by the shipping contract were consigned to the Daggett-Keene Commission Company at North Ft. Worth, where it was alleged that appellant accepted the shipment for delivery. The contract was in writing and by the terms thereof appellee was to accompany the shipment and carex for his cattle en route, but the proof-shows that after arrival of the train in the west yards of appellant company about 4 o’clock a. m. on the morning of January 17, 1912, in the city of Ft. Worth, the caboose was detached therefrom, and appel-lee requested to leave it. He did so, ate his breakfast in the city, and then took a street car for the stockyards in North Ft. Worth, where he arrived at about 6 a. m. and found several car loads of other cattle that had been transported by the. same train as his own, but his ear of cattle, as shown by the proof, did not arrive, and were not delivered to the consignees until about 9:30 or 10 o’clock of the same day.

We find no error in the court’s charge, as complained of in the first assignment, nor in its action in refusing special instructions Nos. 1 and 2, as complained of in the second and. third assignments. The material questions presented are dependent upon whether the evidence supports the charge of negligence on appellant’s part. It appears that the cattle were properly transported from Cisco to the west yards of the railway company in Ft. Worth, where they arrived, as before stated, about 4 o’clock a. m. in good condition. There was evidence, however, tending to show that at the time of their delivery to the consignees in North Ft. Worth, they were damaged in an amount equal to the verdict.

Appellant’s principal insistence is that it has not been made to appear that the appellant, instead of the Ft. Worth Belt Railway Line, an alleged connecting carrier, inflicted the injury to the cattle. While, as stated, appellee agreed to accompany his cattle, -yet he was afforded no opportunity to do so between the west yards of appellant and the point of delivery, and therefore the rule that the burden of proof rested upon the plaintiff to show which of the connecting carriers inflicted the damage has no application.

Moreover, it was shown that the consignees’ place of business was in North Ft. Worth; that the appellant company, without special request therefor, proceeded to take the cattle from their west yards, and, further, the transportation on to the Belt Line Railway, which completed the transportation and delivery. It seems evident from a consideration of the contract that it was contemplated that the transportation should be to the stockyards in North Ft. Worth, and that the Belt Line Railway was but an agency of appellants to complete what it had undertaken originally to do. Defendant’s special instruction No. 4, placing the burden upon the plaintiff to show which road inflicted the injury, was therefore properly refused.

The evidence undoubtedly tends to show an unexplained delay of some three or four hours after arrival of the cattle in Ft. Worth, and that such delay after transportation as already stated, had a tendency to cause the damage shown, so that the court committed no error in submitting the issue, nor in overruling the motion .for new trial on the ground of the insufficiency of the evidence. Nor do we think the court committed error in admitting proof that it was the custom of cattle shippers over the Texas & Pacific Railway to do as plaintiff did do in the present case, viz., under the circumstances stated, to leave the train and go by other conveyance to North Ft. Worth, where cattle shipped for sale on the market were uniformly delivered. This evidence, together with appellant’s course hereinbefore adverted to in forwarding the transportation without further request or tender of cattle at any other place, tended to show the construction the parties themselves placed upon the shipping contract, viz., that it was originally contemplated that the transportation should be from Cisco to the stock yards at North Ft. Worth, and there delivered to the consignee.

No other question seems to require a discussion, and it is ordered that all assignments of error be overruled, and the judgment affirmed.


author: DUNKLIN, J.

text:
    COPE v. PITZER.
    (No. 7870.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 28, 1914.
    Rehearing Denied April 4, 1914.)
    1. Appeal and Error (§ 731) — Assignment of Errors — Form—Generality.
    An assignment of error that one finding by the trial court was in conflict with two other findings, which does not point out in what respect the findings conflict, is too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    2. Corporations (§ 90) — Action on Subscription-Findings of Fact — Inconsistent Findings.
    A finding that the agent of an insurance company in selling stock of the company did not misrepresent to the subscriber the past or existing status of the company, and that any misstatements made by him involved future contingencies, and were speculative and conjectural, is not inconsistent with findings that the agent represented that the note for his commission was all that the subscriber would have to pay for the stock, that the company would carry the note for the purchase price for the stock as a loan which would eventually _ be paid out of the dividends, but that at the time of action the company had paid no dividends, and did not intend to for some time.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 245, 883-419; Dec. Dig. § 90.]
    3. CORPORATIONS (§ 99) — STOCK SUBSCRIPTIONS — Validity — Constitutional and Statutory Provisions.
    Const, art. 12, § 6, provides that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. Rev. St. 1911, art. 4725, subd. “e,” requires the articles of incorporation of a life insurance company to show the amount of its capital stock, all of which must be subscribed and fully paid up before the articles of incorporation are filed. Rev. St. 1911, art. 4733, provides that the laws relating to corporations in general shall govern life insurance companies in so far as they are pertinent and not in conflict with the statutes especially pertaining to such companies. Rev. St. 1911, art. 1146, provides that no corporation shall issue any stock except for money paid, labor done, or property actually received. Meld, that these provisions did not prevent a life insurance company from contracting to sell an increase of its capital stock and take notes of the subscribers in payment for such stock where the stock was not issued by the company until the notes were fully paid, since the contracts did not constitute sales and actual issuance of the stock on credit within the meaning of the Constitution and statutes.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. § 99.]
    4. Appeal and Error (§ 934) — Review — Presumptions.
    Where the trial court found that a life insurance company was ready to issue stock, forming a part of an increase of the capital stock of the company, to a subscriber upon his paying the note given for the purchase price thereof, it must be presumed, in aid of the judgment against the subscriber, that the company had complied, or was ready to comply, with the statutory requirements for increasing its capital stock.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.]
    5. Corporations (§ 76) — Subscriptions for Stock — Validity.
    A subscription contract for the purchase price of a portion of the capital stock of a corporation created by an increase in the amount of its authorized capital stock, where notes were given by the subscriber in payment for the stock, is, when not in violation of law, a valid and enforceable obligation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig.' §§ 197-209, 213-218; Dec. Dig. § 76.]
    6. Corporations (§ 80) — Subscriptions for Stock — Validity—Misrepresentations.
    Statements by an agent in taking subscriptions for the increased capital stock of a life insurance company, the purchase price of which was represented by notes, that the agent’s commission was all the subscriber would be compelled to pay, for the company would carry his subscription as a loan which would eventually be paid out of the dividends from the stock, are mere puffing inducements or promises for future performance, and not fraudulent misrepresentations, especially where it does not appear that the company had no intention to refuse a compliance with such promises.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dec. Dig. § 80.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by S. A. Pitzer against J. E. Cope. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Howell Johnson and W. A. Hadden, both of Ft. Stockton, and Cunningham & Oliver, of Abilene, for appellant. Ben D. Cox, of Abiline, for appellee.

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

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

   DUNKLIN, J.

J. E. Cope, Felix S. Wilson, and Tom Cope each subscribed for 10 shares of capital stock of the face value of $1,000 in the Wichita Southern Dife Insurance Company, agreeing to pay therefor the sum of $2,500, evidenced by two promissory notes, one for $2,000, payable to the company, and one for $500 payable to S. A. Pitzer, who solicited the subscriptions for and on behalf of the company under appointment by F. W. Griffin, its fiscal agent. The subscription contracts were in writing duly signed, and each an exact copy of the other. Three suits were instituted by Pitzer upon the notes executed to him, and from judgments in his favor the defendants have appealed, and the three appeals have been consolidated. The cases were tried by the court without the aid of a jury. No statements of facts appear in the records, the assignments of error being predicated upon findings of fact and conclusions of law filed by the trial judge. The facts so found by the trial judge in the case against J. E. Cope, together with the conclusions of law thereon, are as follows; the findings of fact in the other cases being identical with the exception that Tom Cope’s and Felix S. Wilson’s .names appear as subscribers instead of J. E. Cope:

“I. On or about the 7th day of February, 1912, the Wichita Southern Life Insurance Company was a duly incorporated life insurance company under the laws of the state of Texas, doing business and having its principal office and place of business in Wichita Falls in Wichita county, Tex., and J. E. Cope, the defendant, was a resident citizen of Ft. Stockton in Pecos county, Tex.
“II. Prior to said date it was proposed by said corporation to increase its capital stock and- surplus fund, as shown by the contract between said company and defendant, as hereinafter set out, and F. W. Griffin of Wichita Falls was engaged or employed by said company-as its fiscal agent to dispose of said shares of capital stock represented by said increase, and said Griffin was duly authorized and empowered to solicit and obtain subscription contracts to said increase of said capital stock on blank forms for subscription approved by said company, one of which forms was used in taking said subscription of the defendant.
“III. Said F. W. Griffin employed plaintiff, S. A. Pitzer of Abilene, Tex., to assist him in taking subscriptions to the capital stock of said company, and the said company secured the subscriptions of defendant to 10 shares of said capital stock, the defendant entering into the following contract, to wit: ‘No. shares, 10. Subscription Contract to Increase Capital Stock of Wichita Southern Life Insurance Company, Wichita Palis, Texas. Whereas, Wichita Southern Life Insurance Company is a life insurance company, successfully organized and incorporated under the laws of the state of Texas, and, whereas, it is proposed to increase the capital stock of said company in accordance with the provisions of the laws of the state of Texas, to an amount not exceeding, with that already subscribed, a total paid-up capital stock of $300,-000.00 and a paid-up surplus of $300,000.00; and, whereas, said company has engaged P. W. Griffin as fiscal agent, to sell said increase in capital stock: Now, therefore, I, J. E. Cope of Pt. Stockton, Texas, hereby subscribe for ten shares of the said capital stock when so increased, of the par value of $100.00 each, said stock to be fully paid up and nonassessa-ble, and I agree to pay therefor $250.00 per share as follows: $50.00 per share to be paid to said P. W. Griffin in cash on date of subscription, to be appropriated by him for selling and distributing the stock hereby subscribed for; and $200.00 per share to be paid at Wichita Palls, Texas, to the said company on January 1st, 1913, as evidenced by my promissory note of even date herewith, of which $100.00 goes to the capital stock fund and $100.00 to the surplus' fund of the company; said Company alone has the right to accept or reject this subscription contract. If accepted, amount of $50.00 specified above as paid in cash to said P. W. Griffin on date hereof shall be considered duly earned and not to be refunded to me under any condition. If rejected, total payments made to date hereof, shall be refunded to me. No conditions or agreements other than those printed hereon shall be - binding on any party hereto. It is expressly agreed that any payment becoming due on the stock subscribed for or on any note given therefor, must be paid within ten days after date due, and in the event of failure to so make such payment, then this subscription contract and any such note or notes shall thereupon become void, and all payments made thereon shall thereby at once be and become forfeited to said company, and it is hereby agreed that the amount so forfeited is and shall be the stipulated, liquidated ¡damages, which said 'company will suffer by reason of such failure, however, the subscriber shall have the right to make arrangements satisfactory to said company for the extension of such note, without prejudice to the rights of said company or fiscal manager under this clause. Dated and signed at Pt. Stockton, Texas, this 19 day of Peb. 1912. J. E. Cope, Subscriber. Ranch-man, Occupation. Witness: S. A. Pitzer, Agent.’
“IV. The defendant paid no cash in said contract, but executed and delivered to the said Pitzer, the defendant’s certain promissory note for $500.00, payable to the order of the said S. A. Pitzer at Abilene, Tex., six months after date, and being dated Pebruary 7, 1912, bearing 10 per cent, interest from date and providing for the 10 per cent, additional as attorney’s fees under the usual conditions, the same being the note sued on in this clause. That the defendant at the time also executed his note for $2,000 to • cover the amount of $100 a share to go to the capital stock fund, and $100 a share to go to the surplus fund of the company as provided in said contract; said note being payable to P. W. Griffin at Wichita Palls, Tex., and being due January 1, 1913, hearing interest at the rate of - per cent, from date, and being dated Pebruary 7, 1912. At the time of the delivery of said contract and. notes to the said Pitzer by defendant, the said Pitzer delivered to the defendant a receipt, which is as follows, viz.: ‘No. Peby. 19, 1912. Received of J. E. Cope of Port Stockton, Texas, the sum of five hundred dollars, as part payment for 10 shares of the capital stock of Wichita Southern Life Insurance Company of Wichita Palls, Texas, as set forth in said subscription contract numbered as this receipt and bearing even date herewith. Should said subscription contract he not accepted by said company, the amount paid as per this receipt will be refunded. It is expressly agreed that any payment becoming due under the said subscription contract, or on any note given for the stock thereby subscribed for must be paid within ten days after date due, and in the event of failure to so make any such payment, then the said subscription contract and the said note or notes shall thereupon become VQid and all payments thereon shall thereby at once be and become forfeited to said company and it is hereby expressly agreed that the amount so forfeited is and shall be the stipulated liquidated damages which said company will suffer by reason of such failure. Not valid unless countersigned by S. A. Pitzer, Salesman. P. W. Griffin, Fiscal Manager. -, Secretary.’ This receipt is countersigned by ‘S. A. Pitzer, Salesman,’ across its face. The cash payment of $500 mentioned in said receipt was represented by the note for $500 sued on in this cause. That the proceeds of the note were to be divided between the said Griffin and plaintiff, and plaintiff having paid to said Griffin said Griffin’s portion of same, Pitzer became the owner and holder of said note.
“V. The said company delivered no stock to the defendant on the execution of said contract and notes, and no stock has been delivered to defendant thereon, and said company has not agreed to deliver any stock thereon until said note for $2,000 is paid in full, and demands payment of said note as a prerequisite to issuing said 10 shares of stock, or any part thereof, to defendant, but said company stands ready to deliver to the defendant said 10 shares of stock on payment of said note for $2,000.00.
“VI. Said note for $2,000 and said contract executed by defendant were accepted by said company, and are now held by E. W. Griffin, fiscal agent for said company, in his office in Wichita Palls. No part of said note for $2,000 has been paid, and on the 2d day of December, 1912, said company, acting by and through its assistant manager, or fiscal manager, P. W. Griffin, and over his signature wrote the defendant a, letter, in substance, as follows, viz.: ‘Your note dated February 7, 1912, for $2,000.00 with $144.00 accrued interest, making a total of $2,144.00 will be due January 1, 1913, and we would like very much to receive your check for this amount on that date. If it is your purpose to make some other arrangements in regard to the payment of this note, kindly take it up with us at once in order that we may- have time to consider the matter before the note is due.’ During the correspondence between the company and the defendant about the payment of this note, which correspondence was conducted principally, if not entirely by the fiscal agent Griffin, the company offered to extend the time of payment of same on payment of all interest accrued, and to accrue to the date of maturity of the renewal note and expressed a willingness to make other extensions in future, provided all interest on same was paid to maturity, and satisfactory arrangements could be made with the company at the time of the renewals. No renewal of said note for $2,-000 has ever been executed by defendant. The company does at times accept renewal notes and extefid the time of payment of notes given as subscriptions to its capital stock.
“VII. Said Pitzer-, in order to induce defendant to sign said contract and notes, represented to the defendant at the time of their execution that said note for $500, given by defendant to said Pitzer, was all that the defendant would have to pay on said notes; that said life insurance company was in a' prosperous. conditionthat it had a large amount of money on hand which it was loaning out, and in making loans it always gave its stockholders the preference, and in case defendant could not pay said note for $2,000 at maturity the company would carry it as a loan; that the company then had on hand a surplus out of which it would soon declare a dividend to its stockholders, and if defendant would subscribe then he would participate in this dividend; that the profits -and income of the company were such that the dividends earned by the stock which defendant. subscribed for would be sufficient ¡to pay the interest on said $2,000 note, and would in time-pay the principal thereof. The defendant. was a stockman,, .and had little knowledge of the organization and manage^ ment of corporations, and knew nothing at all about the affairs of the Wichita Southern Life Insurance Company except what Pitzer told him, and never participated in any stockholders’ meeting of the company in any way. That he relied upon and believed the statements of Pitzer, and would not have purchased said shares of stock had not such representations been made by said Pitzer. Said Pitzer was a comparative stranger to defendant at the time of said subscription, they having known each other only about two weeks.
“YHa. I further find that at the time said representations were made said life insurance company was in a prosperous condition, and had money to loan and was loaning large sums of money to stockholders and others. The portion of its surplus represented by selling its capital stock above par was held by said company, and was not distributed in dividends, but only the portion of the surplus or undivided profits, derived from its sales of insurance interest on loans and other sources was distributed in dividends to the stockholders. At the time said representations Were made said company had sufficient surplus, or undivided profits subject to such distribution, to pay a small dividend to its stockholders, but no dividend was declared, and company has never paid a dividend on its capital stock, and does not contemplate doing so until the end of the year 1913. Said company never contracts directly to carry stock subscription notes and apply the dividends on the stock they represent to the payment of, or as credits on said notes.
“VIII. I find that the defendant executed the note described in plaintiff’s petition, and delivered the same to S. A. Pitzer on the date of said note, that said note was in writing, and by its terms payable at Abilene, Taylor county, Tex., and that said note was past due and unpaid to the extent of’ the judgment rendered herein.
“IX. I find that the $50 per share cash payment recited in said subscription contract referred to the $500 note which was given by the subscriber to Pitzer, which $500 note Pit-zer accepted from the subscriber in lieu of cash as a private agreement between the said Pitzer and said subscriber, and I find that Pitzer then became the owner of said $500 note, and that he paid said P. W. Griffin $100 out of said note, and one Charley Grá-ham, who acted with him in securing said subscription, $125 out of same.
“X. I find that defendant subscriber fully understood at the time he executed said $500 note that said note represented so much cash, the duly earned compensation of said P. W. Griffin as provided in said contract, and understood that same was not to be refunded to him under any condition, save arid except the rejection of his subscription contract py the company.
“XI. I find that said Pitzer did not misrepresent to tlie subscriber the present or past or existing status or condition of said company in order to induce the execution of said note and contract; that if he made any misstatements which induced the execution and delivery of the notes and contract, same involved future contingencies, and were speculative and conjectural.
“From which facts I find the following conclusions of law, to wit:
“I. The Wichita Southern Life Insurance Company could lawfully contract for the sale, of its capital stock through an agent, and agree to deliver the same to the subscriber on a future date, when fully paid for in cash upon delivery thereof, at least the par value thereof, and that the contract entered into by defendant subscriber for such purchase of stock was a valid and binding obligation.
“II. The defendant subscriber, having signed the $500 note with due knowledge of the law and with a full understanding of what it was for, is now estopped from claiming that it is without consideration, or constitutes a part of an ultra vires contract
“III. The promises and inducements held out by the said Pitzer to defendant subscriber to get him to sign said contract and notes, in effect, attempted to vary the terms of said written contract, and were not binding either on said company, or on Griffin or on Pit-zer; that they were mere puffing inducements and promises for future performance, and were not as a matter of law fraudulent.
“IV. Plaintiff is entitled to judgment against defendant for the amount due on said note according to its terms.
“V. I conclude that defendant’s plea in abatement is not well taken.”

The representations made by Pitzer to the subscribers in order to induce them to enter into the contracts and execute the notes, as shown in paragraph VII of the court’s findings of fact, were alleged in appellants’ answers, coupled with allegations that the same were untrue, and appellants each sought to avoid liability by reason of such misrepresentations.

By the first assignment of error the contention is made that the findings shown in the eleventh paragraph of the facts found, in effect, that Pitzer did not misrepresent to the subscribers the present or past condition of the company; that if he made any misrepresentations which induced the execution and delivery of the notes and contracts, same involved future contingencies only — is contrary to the facts found in paragraphs VII and Vila. In what respects the supposed conflicts consist is not pointed out in the assignment, which for that reason is too general to merit consideration. Aside from that .suggestion, however, we fail to discover any inconsistencies in those findings.

The principal defenses urged to .the recoveries sought are that the subscription contracts were in violation of article 12, section 6, of our state Constitution, and Revised Statutes, 1911, art. 4725, subdivision “e,” 4727, 4733, 1146, and 1147.

Article 12, § 6 of the Constitution reads: “No corporation shall issue stock or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

Article 4725 of the statutes prescribes what shall be shown in articles of incorporation of a life, health, or accident insurance company, and subdivision “e” of that article reads as follows: “The amount of its capital stock, not less than $100,000.00 all of which capital stock must be subscribed and fully paid up and in the hands of the corporators before said articles of incorporation are filed, such capital stock to be divided into shares of one hundred dollars each.”

Article 4727 provides for the amendment of charters of insurance companies.

Article 4733 provides that the laws relating to and governing corporations in general shall govern life insurance companies also in so far as the same are pertinent and not in conflict with the statutes pertaining specially to life, health, or accident insurance companies.

Articles 1145, 1146, and 1147 pertain to corporations in general. By article 1145, it is provided that, in order for a corporation already formed to increase its capital stock, the same showing shall be made relative to the amount of stock subscribed and the amount of payments on such subscriptions as is required to obtain the original charter.

Article 1146 reads: “No corporation, domestic or foreign, doing business in this state, shall issue any stock whatever, except for money paid, labor done, which is reasonably worth at least the sum at which it was taken by the corporation, or property actually received, reasonably worth at least the sum at which it was taken by the company. Any corporation which violates the provisions of this article shall, on proof thereof in any court of competent jurisdiction, forfeit its charter, permit or license, as the case may be, and all rights and franchises which it holds under, from or by virtue of the laws of this state.”'

By article 1147 it is made the duty of the Attorney General of the state to institute judicial proceedings for the cancellation of any stocks or bonds issued by a corporation in violation of the provisions of article. 1146.

The decision in McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96, by the Court of Civil Appeals for the Eighth District, and in which case a writ of error was denied by our Supreme Court, is the authority relied upon most strongly by appellants to support their contention that their contracts with the insurance eompany were in contravention of the article of the Constitution and of the statutes above noted, and therefore void.

It will be noted that the inhibition prescribed by the Constitution and statutes is against the issuance of stock without the payment therefor in money, labor, or property, and that by article 4725, subdivision “e” of the statutes, it is provided that, before the issuance of the charter for a life insurance company, the stock must be fully paid up and in the hands of corporators, and by other articles of the statutes the same requirements necessary for the formation of a corporation apply also to an amendment of its charter after it has been first organized. The case of McCarthy v. Texas Loan & Guaranty Co., supra, was a suit by a subscriber for stock against a corporation to enforce the issuance to him of the stock for which he had subscribed, or in the alternative, for damages for breach of the contract to issue such stock. According to the terms of that contract, the subscriber was not obligated to pay all cash for his stock when it should be issued, but was entitled to receive the same upon payment of less than 10 per cent, of the contract price in cash and the execution of his notes for the balance. In that case it was held that the contract was violative of the provisions of the Constitution above noted. Likewise in Mason v. First Natl. Bank of Paint Rock, 156 S. W. 366, also cited by appellants, it was held that a promissory note given for the entire consideration of capital stock already issued to the maker of the note was in violation of the Constitution, and no recovery could be had thereon. Also in S. A. Irri. Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174, our Supreme Court used the following language: “The contract which Deutschmann sets up, by which he was not to pay for the stock any money at the time of its issue (italics ours) is plainly and unquestionably in violation of the Constitution of the state, and, being in violation of the Constitution, that agreement, in so far as it provided that Deutsch-mann should have all the time that he might find necessary in which to pa,y for his stock, was” void.” Other authorities are cited by appellants in line with the decisions noted.

The facts in the case at bar differ from those in the cases noted, in that, as shown by the subscription contracts themselves, the insurance company did not a'gree to deliver any stock until the purchase price therefor was fully paid, and the purchase price was more than double the face value of the stock. And as recited in the fifth paragraph of the court’s findings, none of the stock has been delivered to appellants, but the company stands ready to deliver the same upon the payment of the notes executed by the subscribers in favor of the company. If the company is ready to do this, then in aid of the judgment, it must be presumed that, if it has not already done so, it is now ready i to comply with the statutory requirements necessary to properly amend its charter; nothing to a contrary effect appearing in the findings.

As the act prohibited by the Constitution and the statutes is the issuance of stock by a life insurance company without full payment of the consideration therefor, and as no stock has been issued to appellants, and as the company has not obligated itself to issue, and does not intend to issue, the same except upon payment by the subscribers of more than the face value of the stock, the authorities relied on by appellants are not applicable in this case.

It is well settled that a subscription contract such as those in controversy, when not in violation of law, is a valid and binding obligation which can be enforced in court. Belton Compress Co. v. Saunders, 70 Tex. 699, 6 S. W. 134; 10 Cyc. 394.

While the Insurance Company obligated itself to issue stock to the subscribers in the future upon the payment of the consideration therefor, those contracts did not constitute sales and actual issuance of stock on credit within the meaning of the Constitution and statutes, as appellants insist by different assignments of error. We are of the opinion, further, that the trial judge was correct in his finding that any misstatements by Pitzer which induced appellants to execute the contracts and notes were mere puffing inducements and promises for future performance involving speculative and conjectural future contingencies which were not binding upon the company for that reason, and for the further reason that they were at variance with the written contracts, especially in view of the further fact that there is no finding by the trial judge that at the time of the execution of the contracts and notes, the insurance company had no intention to refuse a compliance with such promises. 10 Cyc. 391; 2 Thompson on Corporations, § 1311.

Appellants insist that the court erred in his second conclusion of law in holding that appellants are estopped from claiming that the notes were a part of an ultra vires contract. We agree with appellants in the contention that they would not be estopped to claim that the executions of the notes in controversy were procured by fraudulent misrepresentations of fact, but we construe the conclusion as meaning simply that, as appellants had failed to establish their pleas of fraudulent misrepresentations inducing them to execute the notes, the insurance company was entitled to recover, and that the conclusion that appellants were estopped from questioning the validity of the contracts was used in that sense only.

The judgments are affirmed.


author: RAINEY, C. J.

text:
    HOUSTON & T. C. R. CO. v. EAVES et al.
    (No. 7100.)
    (Court of Civil Appeals of Texas. Dallas.
    April 11, 1914.
    Rehearing Denied May 2, 1914.)
    Railroads (§ 259) — Injuries to Property-Persons Liable — Licensee.
    One who leased a portion of a right of way of a railroad company and assumed all loss and damage caused by the negligence of the company is not thereby required to pay to the company the amount of damages recovered from it by one who owned a house situated on the right of way, but who was not holding under the lessee or in privity with him, and of which house the company had never put the lessee in possession, for the negligent burning of the house.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.]
    Appeal from Limestone County Court; A. M. Braekmon, Judge.
    Action by J. C. Eaves against the Houston & Texas Central Railroad Company, in which one, Allen was made a defendant by said railroad company. From a judgment in favor of the plaintiff and of the defendant Allen against the said company, the company appeals.
    Affirmed.
    Baber, Botts, Parker & Garwood, of Houston, and C. S. Bradley, of Groesbeck, for appellant. Bradley & Herring and W. T. Jackson, all of Groesbeck, for appellees.

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

   RAINEY, C. J.

Appellee J. C. Eaves sued the appellant to recover damages sustained from the loss of a certain cotton seed house, and other property situated on the right of way of appellant, caused from a fire negligently set out on the right of way by appellant’s servants.

Defendant answered by general denial, and specially that plaintiff was holding the premises under lease from one Allen, which was then in force, of which plaintiff was assignee, and by the terms of said lease it was agreed that Allen was to assume all loss and damages caused by the negligence of said railroad company to said property, and the said Allen was vouched in by appellant, and judgment- was asked over against Allen in the event it had to pay for the destruction of said property.

Allen pleaded a general denial and interposed other defenses.

A trial was had without a jury, and judgment rendered against the railroad company in favor of plaintiff, and also in favor of Allen.

There is no error presented that requires a reversal of this cause. The evidence shows: That appellant’s servants were negligent in setting fire to the grass on the right of way when a strong wind was blowing, and in not watching and preventing the fire from burning plaintiff’s house.

(2) That Eaves was in no way liable for the destruction of the house. He was not holding under Allen nor in privity with the contract between appellant and appellee Allen.

(3) Allen is not liable to appellant on the contract between them. The contract by its terms leased the right of way to Allen, and Allen assumed all risk of appellant’s negligence for loss by fire to the property on the right of way leased by Allen. The house of Eaves that was burned was situated on one end of the right of way, and was then and there owned by another when Allen entered into the contract of lease, and he was never in possession of said house. The appellant had never put him in possession of said house, and therefore he was not responsible, under the contract to said appellant, for the burning of the house.

The judgment is affirmed.


author: HIGGINS, J.

text:
    ALDERETE v. MOORE et al.
    (No. 328.)
    (Court of Civil Appeals of Texas. El Paso.
    April 16, 1914.)
    Appeal and Error (§ 773*) — Briefs—Failure to File — Effect.
    The judgment will be affirmed if appellant files no brief; there being no fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8104, 3108-3110; Dec. Dig. § 773.*]
    Appeal from El Paso County Court; J. M. Deaver, Special Judge.
    Action by Victor C. Moore and another against Isaac Alderete. From a judgmént for plaintiffs, defendant appeals.
    Affirmed.
    C. L. Vowell, of El Paso, for appellant. J. M. Harris and T. A. Falvey, both of El Paso, for appellees.
   HIGGINS, J.

This was a suit to recover a balance alleged to be due by Alderete to the law firm of Moore & Moore, for professional services rendered, resulting in a verdict and judgment in favor of appellees.

There is no brief on file in appellant’s behalf, and, since there is no fundamental error, the judgment will be affirmed. Because of such failure to file brief, the various assignments of error are not entitled to consideration and are not considered, but, in passing, it may be said that we have examined the entire record, and apparently none of the assignments are well taken, and, had they been presented by proper brief, the same would have been overruled.

Affirmed.


author: CONNER, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. COOK.
    (No. 7874.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 28, 1914.
    Rehearing Denied April 4, 1914.)
    1. Carriers (§ 321) — Injuries to Passengers — Instructions—Assuming Facts.
    A charge, in an action for injuries caused by the failure of a railroad company to warm its depot after the arrival of plaintiff by train, the first paragraph of which stated abstractly the duty of the company under Rev. St. 1911, art. 6591, to keep its station lighted and warm for no.t less than one hour after the departure of all ■ passenger trains, and the second paragraph of which applied the law ,by instructing the jury that if they found that plaintiff was a passenger, etc., they should find for her, is not erroneous as assuming that the plaintiff was a.passenger during the time of which she complained.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. 1 321.]
    2. Carriers (§ 247) — Carriage of Passengers — Termination of Relationship.
    By the common law, the relation of carrier and passenger does not terminate until after the passenger has alighted and has a reasonable time and opportunity to leave the depot, the question of what is a reasonable time and opportunity being one of fact, dependent on the circumstances of the particular case.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.]
    3. Carriers (§ 247) — Carriage oe Passengers — Termination of Relationship.
    Rev. St. 1911, art. 6591, requiring railroads to keep their passenger depots open, lighted, and heated for one hour after the departure of passenger trains, fixes the reasonable .time within which a passenger may remain in the station, without losing his right to protection as such, at not less than one hour.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dee. Dig. § 247.]
    4. Carriers (§ 333) — Carriage of Passengers — Injury to Passengers — Contributory Negligence.
    One who remains in a railroad station for the full hour during which Rev. St. 1911, art. 6591, requires it to be warmed and lighted, after he has reasonable time and opportunity to leave, and thereby submits himself to danger or discomfort, cannot recover for the consequences because his own negligence contributed to the result.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1385, 1386, 1388-1397; Dec. Dig. § 333.]
    5. Carriers (§ 346) — Injuries to Passengers — Actions—Sufficiency of Evidence —Contributory Negligence.
    In an action for injuries caused by the failure of a railroad company to keep its depot lighted and warmed for one hour after the departure of a passenger train, as required by Rev. St. 1911, art. 6591, evidence held sufficient to warrant the jury in finding that the plaintiff was not negligent in remaining in the depot during the full hour.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dec. Dig. § 346.]
    6. Carriers (§ 321) — Injury to Passengers —Instruction—Duty of Carrier.
    In such an action a special charge that the railroad company owed the plaintiff no duty to take her to the hotel, or to provide her lodging from the time of the arrival of the train until the hour at which she left the depot, might have misled the jury, since the company did owe her a duty for at least a part of the time to keep the depot warm.'
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.] '
    7. Damages (§ 132) — Excessive Damages— Personal Injuries — Impairment of Health.
    Where the evidence, showed that plaintiff, a woman 54 years old, who prior to that time had been in good health and able to plow, hoe, and gather her crops to support herself and children, was seized with chills and fever as a result of sitting in a cold railroad depot after her arrival on one of defendant’s trains, and that such symptoms had continued more or less ever since, resulting in an inability to work, and the question of the permanent injury was submitted to the jury without objection, a verdict for $2,875 will not be set aside as excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by Mrs. A. P. Cook against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Garnett & Garnett, of Gainesville, for appellant. Taylor & Humphrey, and Wantland & Parrish, all of Henrietta, for appellee.

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

   CONNER, C. J.

This suit was instituted by Mrs. A. P. Cook to recover of appellant damages for alleged injuries sustained by her on the ground that appellant had failed to maintain lights and fire in its station at Henrietta for one hour after the departure of its .3 o’clock a. m. train November 7, 1912. Appellant answered: First, by a general denial; second, that appellee ceased to be a passenger upon reaching and safely alighting from the train at Henrietta, and hence that appellant owed her no further duty; third, that opportunity was afforded the ap-pellee upon the occasion in question of leaving the depot by means of a1 cab which met said train, but that she did not avail herself of this opportunity, and made no effort to secure other accommodations for the balance of the night, and that her injuries, if any, were brought about by such failure on her part; and, fourth, that appellee’s ill health, if any, was not the result of remaining in appel-. lant’s depot from 3 a. m. until 6: 30 a. m., but was due to overwork, nervous breakdown, and conditions over which appellant had no control, and to which its action did not contribute. A trial before a jury upon the issues indicated resulted in a verdict and judgment in appellee’s favor for the sum of $2,-875.

The first and second paragraphs of the court’s charge are criticised as being on the weight of the evidence in assuming that appellee was a passenger during the time of which she complains, but these criticisms must be overruled we think. The first paragraph merely states in an abstract way the duty of the railway company, as declared by the article of the statutes hereinafter quoted, to keep its passenger station lighted, warmed, and open for all passengers entitled to go therein for a time not less than one hour before the arrival and after the departure of all trains carrying passengers. The second, paragraph then proceeds to apply the law by instructing the jury that if they found that appellee was a passenger, etc., they should find for the plaintiff, thus distinctly submitting to the jury in an affirmative form the issue of whether appellee was a passenger at the time in controversy, in view of which the merely possible inference that appellant has drawn from the charge was evidently without appreciable force. The further criticism of the charge that in the third paragraph the court assumes that plaintiff was injured must be answered in the same way. The charge as a whole clearly leaves the issue for the determination of the jury.

The vital question on the issue of appellant’s liability is raised by the fourth assignment complaining of the refusal of the following special charge: “Gentlemen of the jury, the evidence in this case shows that after the plaintiff reached Henrietta at 3 a. m., November 7, 1912, and disembarked from defendant’s train that she ceased to be a passenger of defendant, and that it owed her no further duty. You will, therefore, return your verdict for defendant.” The contention is that under the undisputed evidence.the plaintiff at the time of her injury, if any, had ceased to be a passenger, and hence that as to her the defendant was not bound to furnish light or warmth.

Revised Statutes, 1911, article 6591, reads: “Every railroad company doing business in this state shall keep its depots or passenger houses in this state lighted and warmed, and open to the ingress and egress of all passengers who are entitled to go therein for a time not less than one hour before the arrival and after. the departure of all trains carrying passengers on such railroad; and every such railroad company, for each failure or refusal to comply with the provisions of this article, shall forfeit and pay to the state of Texas the sum of fifty dollars, which may be sued for and recovered in the name of the state in any court of competent jurisdiction, and shall be liable to the party injured for all damages by reason of such failure.”

Even in the absence of a statute by the common law the relation of carrier and passenger does not terminate until after the passenger has alighted and had reasonable time and opportunity to leave the depot or alighting place, the question of what is reasonable time and opportunity being one of fact dependent on the circumstances of the particular case. See Tex. & Pac. Ry. Co. v. Dick, 63 S. W. 895; Ormond v. Hays, 60 Tex. 180; 4 Elliott on Railroads (2d E’d.) § 1592, and cases cited in notes.

An analysis of the article of the statute quoted, however, indicates the legislative purpose to arbitrarily fix not less than one hour as the reasonable time within which a departing passenger may acquaint himself with his surroundings and deliberate upon ways and means for his further progress. The statute is imperative in form, and the right of the state in the exercise of its regulatory and police power to so prescribe is not questioned. Indeed, appellant on the trial in effect so assumed by requesting the following special charge, which the court gave, viz.: “I charge you that defendant was required under the law to keep its depot warmed and lighted for one hour after the departure of its 3 a. m. train upon the occasion in question. Now, if you find from the evidence that a reasonable time within which plaintiff should have left defendant’s depot did not exceed one hour after the departure of said train, then I charge you that you cannot allow plaintiff damage fop any injury sustained by her, if any, by remaining in said depot for a longer time than one hour after the departure of defendant’s train.”

Of course the statute is not to be construed so as to impose a liability in favor of a depárting passenger who remains in the depot for the full hour without cause or re’a-son after he has had time and opportunity to leave. Should he do so, and thus voluntarily subject himself to danger, discomfort, or harmful conditions, he will be required to bear the burden of the consequences, on the familiar ground that his own negligence contributed to the result. So the question of whether, within the prescribed hour at least, appellant was liable for its failure to perform the duty of keeping its depot lighted and warm must depend upon the issue of appellee’s own contributory negligence. This issue was fully submitted both in the court’s charge and in special charge given at appellant’s request, and • we cannot say that the evidence is insufficient to support the jury’s verdict thereon in appellee’s favor. There is evidence tending to show that appellee was about 54 years old, frail in body, thinly clad, accompanied by a small grandchild, and nearly blind. There was other evidence to the further effect that she was unacquainted with the location of the town or hotels, some half a mile away; that there wasmo cab that met the train; that she lived and worked in rural communities and was timid and unresourceful, as the jury may have inferred from her appearance and manner of testifying. This evidence, we think, sufficiently sustains the jury’s verdict that appellee was not guilty of negligence in remaining in appellant’s depot for an hour at least after her arrival at Henrietta. Hence for that time appellant owed appellee the duty of keeping its depot open, lighted, and warm, and is liable under the statute for the proximate results of its failure to discharge such duty. In this connection we should perhaps state that we have not found it necessary to consider appellant’s duty beyond the hour, inasmuch as the court submitted the case on the statute and the evidence tends to show that appellee’s injuries were caused within less than an hour after her entry in the depot.

We find nothing in the case requiring special charge No. 1, to the effect that appellant was under no duty to take appellee to a hotel or to provide her lodging from 3 to 6:30 a. m. when she departed. Indeed, the charge might have been misleading, for if appellee was without negligence, appellant did owe the duty of furnishing a warm depot for at least part of the time specified. Other special charges refused were, so far as proper, included in charges given.

It is also insisted that the verdict and judgment is excessive, but as to this also we have concluded that it is our duty to rule against appellant. If appellee’s evidence is to be credited, and the jury evidently did credit it, she was, prior to the occurrence in question, in good health and able to plow, hoe, and gather her crops, as had been her habit of life in supporting herself and children; that the night was cold, as was also the depot’when, she entered it; that it remained cold, and that within less than an hour after her entry she, as. a result, was seized with a severe chill or “rigor,” followed by fever; that such symptoms had continued more or less of the time since, causing suffering and an inability to labor, etc. The court even submitted the issue of permanent injury, and we find no specific complaint that the evidence did not warrant the submission. So that, on the whole, we feel, as stated, unable to say that the verdict and judgment is excessive. See Citizens’ Ry. Co. v. Griffin, 49 Tex. Civ. App. 569, 109 S. W. 999, and cases therein cited.

Questions presented by assignments not noticed are sufficiently disposed of, we think, by what we have already -said. It is, accordingly, ordered that all assignments of error are overruled, and the judgment affirmed.


text:
    MASON v. WARD.
    (No. 7903.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 28, 1914.)
    1. LANDLORD AND TENANT (§ 330) — RENTING on Shakes — Purchasers from Tenant — Liability to Landlord.
    If the lease from B. to A. provided B. should receive as rent, not one-fourth of the cotton raised, but one-fourth of the proceeds of the cotton, neither B. nor M., who, during the life of the lease, bought the land, has any claim against W. because of his buying the cotton of A.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1394 — 1399; Dec. Dig. § 330.]
    2. Landlord and Tenant (§ 330) — Renting on Shares — Purchasers from Tenant — Liability to Landlord.
    If the lease from B. to A. provided that B. should receive as rent one-fourth of the cotton raised, then title to such part of the cotton raised and gathered vested in B., making W. liable to B. because of buying B.’s share of A., unless A. had an unrevoked agency from B. to sell his share.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1394-1399; Dec. Dig. § 330.]
    3. Principal and Agent (§ 8) — Creation of Relation.
    If the lease of B. to A. provided B. was to receive as rent one-fourth of the cotton raised, so that title to one-fourth of the cotton raised and gathered vested in B., then an agreement by B. or M., successor in title to the land, with A., to sell the landlord’s part of the cotton, would be merely an appointment of A. to do so as agent of the landlord.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 16, 18; Dec. Dig. § 8.]
    4. Principal and Agent (§ 33) — Revocation oe Agency.
    Agency of a tenant to sell the landlord’s share of the cotton raised, not inuring to the financial benefit of the agent, can be revoked.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 54; Dec. Dig. § 33.]
    5. Principal and Agent (§ 193) — Revocation — Peremptory Instruction.
    There being testimony of a revocation of an agency, which revocation, if made, would make defendant liable to plaintiff, it was error to instruct peremptorily for defendant.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 721*4-726; Dec. Dig. § 193.]
    Appeal from Taylor County Court; J. W. Moffett, Special Judge.
    Action by J. C. Mason against J. K. Ward. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Cunningham & Sewell, of Abilene, for appellant. Scarborough & Hickman, of Abilene, for appellee.

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

   DUNKLIN, J.

W. M. Brown leased a farm to Sam Ashby for the year 1912. During the life of the lease Brown sold the land to J. C. Mason. Ashby sold J. K. Ward 15 bales of the cotton raised by him on the farm. Mason, claiming that one-fourth of said cotton was due him under the lease contract, sued Ward to recover the value of the same, which he alleged to be $237.55.

Two contentions were urged by Ward in defense of the plaintiff’s demand. One was that, under the lease contract from Brown, Ashby was authorized to sell the cotton and to pay over to Brown one-fourth of the proceeds, and that Mason, in buying the land, took it subject to this contract. The other contention was that, after Mason purchased the land, he expressly authorized Ashby to sell the cotton with the understanding that one-fourth of the proceeds would be paid to Mason as rents.

In obedience to a peremptory instruction from the trial judge, a verdict was returned in favor of the defendant Ward, from which judgment Mason has appealed.

If, by the terms of the lease contract between Brown and Ashby, it was agreed that Brown should receive as rents one-fourth of the proceeds of the cotton instead of one-fourth of the cotton itself, then neither Brown nor Mason could assert any claim against Ward for buying the cotton. If the lease. contract provided that Brown was to receive one-fourth of the cotton as rent, then the title to one-fourth of the cotton raised and gathered was vested in Brown. If such was the contract, an agreement by Brown or Mason for Ashby to sell the landlord’s part of the cotton would be merely an appointment of Ashby to do so as the agent of the landlord, and there is nothing in the testimony which would indicate that the landlord would not have the right to revoke such agency, as it does not appear that such agency in any manner inured to the financial benefit of Ashby. Ashby was the only witness who testified to the terms of his lease from Brown, and, according to some of his testimony, it seems that Brown was to receive one-fourth of the cotton grown as rentals, and that Ashby was appointed agent of Brown to sell the latter’s interest in the cotton. According to testimony of Mason, after he purchased the land Ashby recognized the right in Mason to receive one-fourth of the cotton grown on the land. Mason admitted that, prior to the sale by Ashby of the 15 bales to Ward, Ashby sold some 23 other bales and placed one-fourth of the proceeds thereof to Mason’s credit in bank, and that Mason accepted the same. His action in so doing tended to show authority from Mason to Ashby to sell the 15 bales to Ward. Of course, if Ashby had the consent of Mason to make the sale to Ward, he would have no right to recover of Ward. But Mason testified further that before the sale to Ward he expressly notified Ashby not to sell any more of the rent cotton, but to turn over the same to Mason’s agent. Such being the evidence, the trial court committed error in peremptorily instructing a verdict in favor of Ward, and for this error the judgment must be reversed, and the cause remanded.

Reversed and remanded.

CONNER, C. J., not sitting.


author: SPEER, J.

text:
    SPIRES v. McELROY et al.
    (No. 7906.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 28, 1914.)
    1. Appeal and Error (§ 1051) — Review-Harmless Error.
    In an action to recover a commission due a real estate broker, where defendant admitted a telephone conversation with the broker, the admission of evidence of the broker’s version of the conversation and his ex parte Statement that he was talking to defendant, if erroneous, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dee. Dig. § 1051.]
    2. Brokers (§ 88) — Compensation—Actions.
    A broker who had effected an exchange of land for defendant, was induced by his false representation that he was not pleased with the land but would take it if the broker would accept half of his commission, to waive the same. Held that in an action for the remaining half of the commission t.he charge need not submit whether it was a fraudulent misrepresentation and whether the broker relied upon it, the action not being one for damages for fraudulent misrepresentations but for a sum due on a contract.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    3.Trial (§ 192) — Instructions—Weight op Evidence.
    In an action for an amount due on a contract, where it was liquidated and the parties agreed as to the sum, the charge could assume that any recovery should be for the sum agreed upon.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    Appeal from Taylor County Court; E. M. Ourshiner, Judge.
    Action by W. R. McElroy against G. C. Spires and another. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    Eugene De Bogory, of Abilene, for appellant. Scarborough & Hickman, of Abilene, for appellee McElroy.

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

   SPEER, J.

This suit was instituted by W. R. McElroy against G. A. McElroy and G. C. Spires to recover the sum of §300 alleged to be due by Spires to defendant McElroy, and by indorsement and guaranty from defendant McElroy to plaintiff, for a balance due on commissions earned by W. E. McElroy in a certain real estate sale or exchange effected by him for defendant Spires.

It was alleged, and the facts tended to show, that defendant G. A. McElroy as agent for defendant Spires effected an exchange of his lands whereby the defendant Spires became indebted to him in the agreed sum of $600. That after said exchange had been effected and the commissions earned, the defendant Spires falsely and fraudulently informed McElroy that he was not altogether pleased with the lands offered him in exchange for his, but that he would nevertheless close the trade and accept the same if he, McElroy, would agree .to cut his commissions in half and accept the sum of $300, and that, relying on such representations, and in ignorance of the fact that the trade had in fact been consummated, McElroy accepted the proposition and received the $300. This suit is to recover the balance of the $600 commission. There was a jury trial, resulting in a verdict and judgment for the plaintiff against both defendants, and Spires has appealed.

The first, second, and third assignments of error complain of the court’s ruling in admitting testimony as to a telephone conversation between G. A. McElroy and appellant, and as to McElroy’s ex parte statement that he was talking to Spires; the objections being that such statements were made out of the presence of appellant. But these assignments are overruled, because it is undisputed that such conversation did occur; appellant himself testifying to it. No possible harm, therefore, could have resulted to appellant.

The main issue in the case was thus submitted to the jury: “Now, if you believe and find from the evidence that at the time said Spires liad said conversation over tlie telephone with said G. A. McElroy, in which conversation said McElroy agreed to reduce his commission to the sum of $300, he, the said Spires, had already closed said land deal as alleged in plaintiff’s petition, then you will return your verdict in favor of the plaintiff for the amount sued for; but, on the contrary, if you believe and find from the evidence that at the time said Spires had Said conversation over the telephone he, Spires, had not closed said land deal, you will return your verdict for the defendant.” Under this assignment the abstract propositions are announced that parties to a contract may vary the same upon sufficient consideration at their pleasure, that such variance of a contract after it is entered into is no ground for relief, provided all parties acquiesce in the same, and that it was a question for the jury whether or not the representations by appellant were fraudulently made, or, if made, were relied on by G. A. McElroy. There is no contention in the case that a new contract upon sufficient consideration was made in lieu of the original contract of employment between appellant and the agent, McElroy. The facts alleged and established by the verdict of the jury show there was no consideration for. G. A. McElroy’s agreement to release' $300 of his commissions which had already been earned. The action is not therefore in the nature of damages for fraud, but is essentially one to recover a balance due on contract. This conclusion also disposes of the fifth and last assignment, to the effect that the court erred in assuming that the amount of appellee’s recovery, in the event of a recovery by him, would be the sum of $300. Under the undisputed facts as submitted in both briefs, there remained that sum of the original commissions unpaid, and the sole question of the case was the one submitted to the jury, that is, whether or not at the time McElroy agreed to remit that sum appellant’s trade had in fact been closed and the commissions earned.

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

CONNER, C. J., not sitting.


author: CARL, J.

text:
    BEATON et al. v. FUSSELL.
    (No. 5247.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 15, 1914.
    Rehearing Denied May 6, 1914.)
    1. Frauds, Statute of (§ 110) — Specific Performance (§ 29) — Description of Land Sold — Certainty.
    A contract by which the vendor agreed to sell his place, consisting of four lots in a certain town, it appearing that he owned only one place in that town which did consist of four lots, describes the property sold with sufficient certainty to comply with the statute of frauds and to entitle the purchaser to specific performance, since it refers to an existing fact which can be easily ascertained.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 225-236; Dec. Dig. § 110; Specific Performance, Cent. Dig. §§ 69-82; Dec. Dig. § 29.]
    2. Deeds (§ 90) — Construction against Grantor.
    A deed will be construed against the grantor and in favor of the grantee.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 234r-237, 247, 248; Dec. Dig. § 90.]
    '3. Evidence (§ 460) —Parol Evidence — Identifying Subject-Matter of Written Contract.
    Where a vendor contracted to sell his place in a certain town, parol evidence was admissible to show that he owned but one place in that town, and also to show of what particular property that place consisted.
    [Ed. Note.' — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.]
    4. Specific Performance (§ 110) — Tender of Payment — Sufficiency.
    The cash payment called for by a contract for the sale of land need not be actually paid into court when payment is tendered by the pleadings in a suit for specific performance, since the court can decree performance upon the payment of the money and the passing of the title only when it is paid.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 354; Dec. Dig. § 110.]
    5. Specific Performance (§ 106) — Proceedings — Parties Plaintiff — Wife of Purchaser.
    The wife of a purchaser of land is not a necessary party plaintiff in a suit for the specific performance of a contract which did not require the deed to be made to her, or the vendor’s- lien notes to be signed by her, notwithstanding the fact that the vendor, at the purchaser’s request, had executed a deed conveying the property to the purchaser’s wife, which was rejected because it was a special, and not a general, warranty deed.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 342-351; Dec. Dig. § 106.]
    Appeal from District Court, Kimble County ; Clarence Martin, Judge.
    Action by J. W. Fussell against G. W. Beaton and another. Judgment for the plaintiff, and defendants appeal.
    Affirmed.
    M. Fulton, of Mason, for appellants. Horace E. Wilson, of Junction, for appellee.

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

   CARL, J.

Appellee, J. W. Fussell, sued G. W. Beaton to enforce specific performance of a contract, whereby it is alleged appellant agreed to convey four lots in the town of London, Kimble county, and all improvements thereon, to appellee, in consideration of $200 cash, and the balance to be represented by two vendor’s lien notes, each for $225, bearing 8 per cent, interest, and due respectively July 7, 1914, and July 7, 1915. The contract describes the property as: “My place in London, Kimble county, Texas, consisting of four lots in the town of London, county of Kimble, state of Texas, with residence and all improvements thereon.” The contract further provided that Beaton would give “a good and sufficient warranty deed to same.” The petition further alleges that the four lots referred to are lots 3, 4, 5, and 6, in block 5, in said town of London.

It was further alleged that, subsequent to the making of said contract, defendant G. W. Beaton fraudulently conveyed said lots to G. D. Hensley, with full knowledge of the contract, for the purpose of evading the same. Hensley was made a party defendant, and prayer was that the deed made him be canceled and held for naught.

The defendants filed a joint answer, and the cause was tried before the court, judgment being in favor of plaintiff for the lots and title thereto upon his paying the $200 cash payment and executing the two vendor’s lien notes within ten days from the date of the judgment, same to fall due July 7, 1914, and July 7, 1915, and canceling the Hensley deed.

The first assignment complains of the action of the court in overruling an exception to the petition, for the reason that the contract sued on was not sufficient under the statute of frauds, and also as to the introduction of such contract in evidence, over objection, that it was not sufficient, for want of proper description of the lots, to form the basis of an action for specific performance. The court found that Beaton owned only one place in the- town of London, Kimble county, and that same consisted of four lots, viz.: Nos. 3, 4, 5, and 6, in block 5.

That is sufficiently certain which can be made certain from facts furnished. And that which puts a party upon inquiry is notice, if that inquiry becomes a duty. Wiseman et al. v. Watters et al., 142 S. W. 135; Wethered v. Boon, 17 Tex. 143; Hines v. Perry, 25 Tex. 443; Taylor v. Townsend, 61 Tex. 144; Skov v. Coffin, 137 S. W. 450. Since Beaton owned but the one place in London, and it consisted of four lots, the contract could refer to nothing but that place. The question is whether there is a sufficient basis for identification; and not that the utmost certainty should exist. Watson v. Baker, 71 Tex. 747, 9 S. W. 867; Fulton v. Robinson, 55 Tex. 404; Penn v. Lumber Company, 35 Tex. Civ. App. 181, 79 S. W. 844. Certainty to a common intent is all that is required, where the contract furnishes the means by which the land can be identified with reasonable certainty. In Porter v. Memphis Land & Commission Co., 159 S. W. 498, it was held that “263 acres of land IV2 miles northeast of Memphis, Tex.,” where the contract referred to an incum-brance of about $8,140 which is upon the land, makes a recitation of a fact which can be made certain. Quoting with approval from the Kentucky Supreme Court (Campbell v. Preece, 133 Ky. 572, 118 S. W. 374), it is said: “It is never good to refer to a future event, as that could not have been certain” at the time the contract “was made. But a general reference to an existing or past event is good, for- that which has transpired is changeless. * * * ‘The place where I live’ identifies one place only, and is susceptible of being shown definitely and unerringly.” This contract states that it is “my place in the town of London, Kimble county, Texas, consisting of four lots, etc., and all improvements.” He owned but one place; so this contract points unerringly to the only possible subject .of the contract. The Kentucky case, supra, says: “If it had stated, ‘the land where Joseph Preece now lives,’ or the land ‘where Joseph Preece lived in 1899,’ it would not be questioned that the description would have been sufficient.” And this could not possibly be any more certain than the reference to Beaton’s place, when he owned only one, corresponding in every particular •to the one referred to in the contract.

In Rosen v. Phelps, 160 S. W. 105, cited by appellant, the contract was to convey “ a certain 3,000 acres of' land in Bosque county, Texas,” without designating the owner, any particular locality, landmark, natural object, or other thing that fixes location, and makes no reference to any other writing by which the land may be identified, and Penn v. Texas Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842, is cited.

“It is the duty of the court to so construe the deed of trust as to give effect to the intention of the parties, if that intention can be legally ascertained. Faulk v. Dashiell, 62 Tex. 646 [5 Am. Rep. 542]. The language of the deed of trust under which the plaintiff in error claims title is not of such a character that the court can say that the description of the land cannot be made certain by extrinsic evidence.” Pierson v. Sawyer Bros., 93 Tex. 163, 53 S. W. 1012, citing Wilson v. Smith, 50 Tex. 365; Smith v. Westfall, 76 Tex. 509, 13 S. W. 540; Herman v. Likins, 90 Tex. 448, 39 S. W. 282. In these eases the court held that extrinsic evidence could be introduced to identify the land.

In the case of Taffinder v. Merrill, 95 Tex. 100, 65 S. W. 177, 93 Am. St. Rep. 814, the Supreme Court held that property described as “two town lots in the town and county of Hamilton” was sufficient. It was shown by oral testimony that the location and identity of the two lots in Hamilton which had belonged to Taffinder and wife were well known at the time of the proceedings and since. See, also, Gallup et al. v. Flood et al., 46 Tex. Civ. App. 644, 103 S. W. 427.

A deed -will be construed against the one making it and more in favor of the grantee, so as to make it effective,, and, applying that rule to the present case, we have the contract calling for “my place in the town of London, Kimble county, Texas, consisting of four lots.” By reference to the deed records, this property could readily be identified by information furnished in the contract itself; and we are not going to assume that Beaton had more than one place. The benefit of doubt, if there is any, would be against his ownership of any other “place.”

It was proper to show by parol that Beaton owned but one place in that town, and of what that consisted. This assignment is overruled.

Complaint is made that the $200 cash payment was not paid into court, in compliance with the tender .made in the pleadings. Judge Simkins says: “If it be money that is tendered, a simple offer to pay it is a sufficient tender in equity without bringing the money into court (Ball v. Belden, 126 S. W. 21; Fordtran v. Dunovant [54 Tex. Civ. App. 564] 118 S. W. 768; Nabours v. McCord, 82 S. W. 157), because a court of equity can decree performance on payment of money, and not permit the title to pass until then.” Simkins on Equity, p. 700 (last edition). This will dispose of the second assignment adversely to appellant.

The' third assignment is also overruled, wherein complaint is made that the court erred in not sustaining defendant’s exception to plaintiff’s petition for want of proper and necessary parties plaintiff. The petition charges that the plaintiff and defendant entered into the contract, which is signed by them both and in which it is provided the land shall be sold and conveyed to Dr. J. W. Fussell. Hensley knew all about this contract, because he represented Beaton in the deal and prepared the contract. This paper did not stipulate that Mrs. Fussell was to sign the notes, nor that the deed should be made to her. Consequently the petition was not subject to the criticism made against it, and Mrs. Fussell was not a necessary party plaintiff. Suppose she had attempted to bring the suit on this contract? It was not made for her benefit, and her name was not mentioned in it. The petition does not state that the property was to be conveyed to Mrs. Willie A. Fussell, as contended, but merely recites that the deed which appellant Beaton and his wife did prepare and tender was a special warranty deed made to her at the request of plaintiff. This deed was declined on account of the special warranty feature. But that formed no part of the contract sued upon. The fact that Fussell asked that the deed be made to his wife did not lessen his obligation or liability under the contract, and Beaton could not have been compelled to make a deed to her. So the court very properly overruled the exception, and also the objection to the contract, when offered in evidence.

In view of what we- have said, it is unnecessary to write upon the fourth and fifth assignments further than to say that they are overruled.

The judgment is affirmed.