author: JENKINS, J.

text:
    WEST v. GLISSON et al.
    (No. 5596.)
    (Court of Civil Appeals of Texas. Austin.
    March 8, 1916.
    On Motions for Rehearing, April 12, 1916.)
    1. Wills <&wkey;l — Testamentary Power — Extent.
    A testator can dispose of his property by will in any manner he sees fit, provided he does not contravene the law of the state.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1; Dec. Dig. <S&wkey;l.)
    2. Wills <&wkey;439 — Construction—Intent of Testator.
    It is the duty of courts to construe a will so as to carry into effect the will of the testator.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. &wkey;439.]
    3. Wills &wkey;>456 — Construction — Meaning . of Words.
    Words in a will are to be construed in their ordinary meaning, unless the context shows that a different meaning should be given.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 974; Dec. Dig. &wkey;456.]
    4. Wills <&wkey;470 — Construction as a Whole.
    The entire will must be looked into to ascertain the testator’s intention, and, if possible, each clause must be construed so as to harmonize with all other clauses.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 988; Dec. Dig. <§=»470.]
    5. Wills <&wkey;441 — Construction—Situation of Testator.
    In case of ambiguity, the situation of the testator at the time of executing the will should be considered.
    [Ed. Note.- — For other cases, see Wills, Cent. Dig. § 958; Dec. Dig. &wkey;5441.]
    6. Wills <&wkey;602(3) — Construction—Estates Created — Limitation of Fee.
    Where one clause of a will gave all the property to the daughter of testatrix in fee, while the following clause provided that, if the daughter should die without heirs of her own, the property or the residue thereof should go to another, the two clauses should be construed together, and the absolute estate granted by the first clause is limited by the second.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1354; Dec. Dig. &wkey;602(3).)
    7. Wills <&wkey;506(4) — Construction — “Heirs.”
    In a will giving the property to the daughter of testatrix in fee, but, if she should die without heirs of her own, then to another, the word “heirs” means children. Citing 4 Words and Phrases, Heirs.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1093-1095; Dee. Dig. &wkey;506(4).]
    8. Wills <&wkey;616(4) — Construction—Estates Created — Limitation of Fee.
    A will which gave the property to the daughter of testatrix in fee, with the provision that, if the daughter should die without children of her own, the property or the residue of the same should go to another, gives the daughter the absolute power to dispose of the property during her lifetime.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1421; Dec. Dig. &wkey;616(4).]
    On Motions for Rehearing.
    9. Wills <&wkey;545(6) — Construction — Condition — Surviving Heir.
    Where a will gave the property to the daughter of testatrix in fee, with a provision that, if the daughter should die without children of her own, the property should go to another, it was intended to bequeath the residue to the other in case there should be no children surviving the daughter, not merely in case she should never have any children.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1176; Dec. Dig. &wkey;545(6)J
    10. Wills <&wkey;602(3) — Construction — Estates Created — Qualified Fee.
    The estate created by a will giving the property to a daughter and her heirs in fee, with a provision that, if she die without children; it or the residue shall go to another, is a qualified fee, not a life estate.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1354; Dec. Dig. &wkey;602(3).]
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by Lula West, by her guardian ad litem, against Annie Calvert Glisson and another, to construe a will. From a judgment construing the will in accordance with defendants’ contention, plaintiff appeals.
    Reversed and remanded.
    James P. Alexander, of Waco, for appellant. Oltorf & Oltorf, of Marlin, for appel-lees.
   JENKINS, J.

This case involves the construction of the will of Mrs. Fannie Calvert deceased, who was the mother of Mrs. Annie Calvert Glisson, the appellee herein, and the grandmother of Lula West, the appellant herein, which will is as follows:

“The State of Texas, County of McLennan.
“Know all men by these presents: That I, Fannie Calvert, of the county and state aforesaid, being in sound and disposing mind and memory, and being desirous to settle my worldly affairs while I have strength to do so, do make this my last will and testament, revoking all others heretofore made by me:
“ (1) I desire and direct that all of my just debts be paid out of my estate without delay, by my executrix hereinafter appointed.
“(2) It is my will and desire, that all the property, both .real and personal, I may die seized and possessed of, after the payment of my just debts, together with all the expenses incident to the probating of this will, shall pass to and vest in fee simple in my beloved daughter, Annie Calvert, and her heirs.
“(3) It is my desire and will that if said Annie Calvert die without heirs of her own, then the property or residue of same herein bequeathed shall pass to and vest in fee simple in my granddaughter, Lula West.
“(4) I hereby appoint and constitute my daughter, Annie Calvert, executrix of this my last will and testament, and direct that no bond or security be required of her as executrix.
“(5) It is my will that no other action shall be had in the county court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and list of claims.
“In witness whereof, I have hereunto set my hand this --- day of-, A. D. 1912.
“Mrs. Fannie Calvert.
“Signed, declared, and published by Mrs. Fannie Calvert as her last will and testament in the presence of us, the attesting witnesses, who have hereto subscribed our names in the presence of said Mrs. Fannie Calvert at her special instance and request, this 23d day of January, A. D. 1912.
W. A. Hamilton.
“J. W. Lauterback.”

This will was duly admitted to probate in McLennan county.

A testator is entitled to dispose of Ms property by will, in any manner that such testator may see fit, provided the same does not contravene the law of this state. Hancock v. Butler, 21 Tex. 806. It is' the duty of courts to so construe a will as to carry into effect the will of the testator.

In determining the intention of the testator the usual rules of construction of all written instruments are applicable, that is to say (a) words are to be construed in their ordinary meaning, unless it appears from the context that a different meaning should be given; (b) the entire instrument must be looked to, and, if possible, each clause thereof must be so construed as to harmonize with all other clauses; (c) in case of ambiguity, the situation of the testator at the time of executing the will should be taken into consideration. McMurry v. Stanley, 69 Tex. 230, 6 S. W. 412; Haring v. Shelton, 103 Tex. 10, 122 S. W. 14; Cottrell v. Moreman, 136 S. W. 126; Hancock v. Butler, supra. ,

In McMurry v. Stanley, supra, the court said:

“In construing the will all of its provisions should be looked to for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent must yield to the intention manifested by the whole instrument.”

At the time of the execution of the will Mrs. Fannie Calvert, deceased, was the owner in her own separate right of certain real estate. She had' a husband and a daughter, Miss Annie Calvert, who has since married H. S. Glisson, who is joined herein pro forma. She also had a granddaughter, Lula West, who was then and still is a minor. These were her only heirs. The second clause of the will, as above set out, if it be construed independently of the third clause, vests the appellee with full fee simple title to the property owned by the executrix at the time of her death; and it is the contention of appellee that this clause of the will should be so construed, without reference to the third clause. But it is evident that the testatrix meant something by the third clause of the will, otherwise it would not have been inserted therein, and we think the two clauses should be construed the same as if they had both been inserted in one clause. Giving it tMs construction, the will, in effect, reads that her daughter shall have all of her property in fee simple, unless she dies without heirs of her own, in which event the property or residue of the same shall belong to the granddaughter.

We think the words “without heirs of her own” should be construed to mean “without children of her own.” “Heirs” may mean children. Simonton v. White, 93 Tex. 56, 53 S. W. 339, 77 Am. St. Rep. 824; Dolan v. Meehan, 80 S. W. 99; Hancock v. Butler, 21 Tex. 809; Brooks v. Evetts, 33 Tex. 732; Words & Phrases, vol. 4, pages 3246, 3249, 3250, 3251, 3252. It is very unusual for any one to die without “heirs,” if'this word be construed in its ordinary sense—that is to say, kindred who are capable of inheriting •—and it evidently was not contemplated that this would be the condition of the daughter of the testatrix, inasmuch as she then had living a father and a niece, who, if they had died prior to the decease of the daughter, would perhaps themselves have left heirs, who would probably, in such event, have been the heirs of the daughter Annie. Had the daughter Annie died unmarried and without issue, the granddaughter would have been one of her heirs, but not her only heir had her father survived her, and not her only heir had she married and her husband survived her. But, in such case, it is evident that the testatrix did not mean that her granddaughter Lula West should inherit a portion of the property as the heir of her daughter Annie, nor, indeed, that she should inherit any part of it as such heir, but that she should take the same, or the residue thereof, under the will.

It is the contention of appellee that, inasmuch as the second clause of the will is clear and explicit, it should not be modified by the third clause because of ambiguities in the same; but if, after giving appellee the benefit of all doubt that may arise from such ambiguities, there still remains any beneficial interest in appellant under the tMrd clause of the will, the same should be recognized. The ambiguities referred to are “without heirs of her own” and “residue of same.” For the reasons stated, we think that it is clear, looking to the whole will, that the words “without heirs of her own” meant “without eMldren of her own.”

As to the words “residue of same,” we think the doctrine announced in McMurry v. Stanley and Cottrell v. Moreman, supra, should control. The clauses of the will under consideration in McMurry v. Stanley were as follows:

“TMrd. It is my will and desire that my beloved husband shall have all of my property, both real, personal and mixed, whatever the interest may be, whether separate or community interest, and that he shall have full power and control over same, to use and dispose of as he may desire.
“Fourth. It is my will and desire that at his death should he have any of said property still remaining in his possession not disposed of, or used by him, that the same shall be given by him to my nieces Jessie McMurry and FLora Brown, daughters of Vina and Taylor Brown.”

It will be seen that the third clause of the will, as above set out in that case, if taken by itself, vests full title in the husband; but the court said:

■ “The third paragraph cannot be construed and held to pass to her husband an absolute estate in fee for Ms sole benefit, without nullifying the succeeding paragraph; and, under well-settled rules for the construction of such instruments, we do not feel authorized to do this, or to hold that she so intended.”

The court held that the husband took under the will an estate in fee in the entire property, but .that this was in trust for the beneficiaries named in the fourth paragraph of the will, except as their right was limited by the right given to him to use and dispose of the property during his lifetime, which was given by the express terms of the will.

In Cottrell v. Moreman, supra, the third clause of the will was as follows:

“I will and bequeath to my beloved husband, M. L. Gee, all my real and personal property that I may be seised and possessed of at my death, in fee simple, to have, control, use and enjoy as he sees fit as long as he lives, but if at Ms death there remains any of said estate then the remainder, whatever it be or whatever be the amount is to revert from him to my nearest kin then living and divided equally among them.”

The court said:

“The trial court, in effect, held that the devise to M. E. Gee in the will did not vest the title to the property in M. U. Gee in fee simple, but only vested in him an estate, subject to his disposition during life, with remainder to vest in the two married daughters of Mrs. Gee, who are now living. We are of the opinion that the trial court properly construed the will. * * * This clause does not come within the rule in Shelley’s Case, which is a rule of property in this state, but we think it clear from the language used Mrs. Alice Gee intended to bequeath to her husband her property to use and, enjoy as he saw fit during his life, and, if at his death he had not disposed of any or afi of it, what remained was to become the property of her nearest of kin.”

The will in the instant case, as in the case last above referred to, first devised the property of the testatrix to her daughter in “fee simple,” but the third clause devised the residue thereof to her granddaughter. By the third clause of the will in the case of Cottrell v. Moreman, supra, it was held that the husband took only a life estate with power to dispose of the same, 'which is equivalent to the expression used in McMurry v. Stanley, supra, that the legatee took the estate in trust as to the undisposed portion thereof, for the benefit of the other legatees therein named. The will in the instant case did not, in express terms, give the legatee power to dispose of the property; but we. think the expression in the third clause “residue of same,” when taken in connection with the expression in the second clause, “fee simple” should be construed to give the appellee a life estate in the property of the testatrix, with power to dispose of the same or any part thereof; and that, if any of said property should remain undisposed of at the death of appellee, the same will become the property of Lula West as the residuary legatee under said will.' This decision is based upon the fact, as shown by the statement of facts, that appellee has no children and it is not contemplated that she will ever have.

The court below construed the will herein as vesting an absolute fee simple title in ap-pellee. For the reasons stated, the judgment of the trial court is reversed, and this case is remanded, with instructions to enter judgment as herein indicated.

Reversed and remanded, with instructions.

On Motions for Rehearing.

Both appellant and appellees have filed motions for rehearing herein, with lengthy arguments and citations of numerous authorities. After carefully examining same, the conclusion at which we have arrived does not differ in its practical effect from that announced in our original opinion herein. We adhere to the view that the words “heirs of her own,” used in the will, meant “children,” and that the will meant to bequeath the residue of the estate to Lula West in the event Annie Calvert should die without leaving children surviving her. It is true that, in many cases seemingly similar to this, courts have construed the words “without issue” to mean without having issue born to the party. Courts have been influenced to some extent in this regard, as appears from the opinions, -by the fact that it is advisable that the estate in lands should not remain uncertain. But that consideration should have no influence in this case for the reason that we hold that the appellee is empowered under the will to sell the lana and make good title thereto. If she does not sell the same she derives all the benefit intended by the testatrix, and if she does sell the same the grantee acquires a perfect title. In many of the cases in which it has been held that issue means issue born, and not surviving, the language used would bear this construction. Thus, in Clough v. Clough, 64 N. H. 509, 15 Atl. 127, the language used was “if she should have living issue.” In Isbell v. Maclin, 24 Ala. 315, the language was “should she marry and have lawful issue.” In McCullough v. Coal Co., 210 Pa. 222, 59 Atl. 984, the language was “should my son have heirs or issue.” In each of these cases it was held that the birth of a child vested the estate in fee simple; but in the instant case we think it clear that the testatrix intended the rights of her granddaughter Lula West to depend upon her daughter Annie Calvert leaving children at the time of her death.

In cases relied upon by appellees as vesting an estate in fee simple, the language used was “heirs of body,” which has been construed to mean heirs generally within the rule of Shelley’s Case. Peters v. Rice, 157 S. W. 1181; McGennis v. McGennis (Ky.) 29 S. W. 333. In Lacey v. Floyd, 99 Tex. 112, 87 S. W. 666, the language used was “to his lawful heirs.” In that case the court pointed out the distinction between heirs and children. In Brown v. Bryant, 17 Tex. Civ. App. 454, 44 S. W. 399, the language used was “heirs.” In Pearce v. Pearce, 104 Tex. 73, 134 S. W. 210, the language used by Judge Ramsey was, “the estate became absolute upon the birth pf a child”; but in that case the child survived her mother, to which the court evidently had reference, instead of simply to the birth of a child. In Chase v. Gregg, 88 Tex. 552, 32 S. W. 520, the devise was to the wife of the testator (his second wife), with remainder to his son by a former marriage in ease she should die “without leaving a child or children born to her.” No child was born to her.

We adhere to our ruling that the word “residue,” used in the third clause of the will, taken in connection with the second clause, empowered appellee to sell the property and make good title thereto. Appellant says that in so holding she reaps a barren victory, inasmuch as appellee will doubtless ■sell the property, and thereby deprive her of any benefit therein. We are not responsible for this consequence, if such it be, nor do we think that we would be justified in supposing that the appellee will sell the property bequeathed to her, except upon what she may deem good reason for so doing and not merely to defeat the purpose expressed by her mother in her will.

We think we were technically in error in describing the estate, which the will vests in the appellee, as a life estate. In Chase v. Gregg, supra, Mr. Justice Brown, speaking for the court, said:

“Under the will of Darius Gregg, Mrs. Gregg took an estate in fee, determinable upon the condition expressed.”

We think this is a proper description of the estate vested in appellee by the will. Lord Coke says:

“Of fee simple, it is commonly holden that there be three kinds, viz.: Pee simple absolute, fee simple conditional, and fee simple qualified ■or base.”

And Chancellor Kent says:

“Though the object on which it rests for perpetuity may be transitory or perishable, yet such ■estates are deemed fees, because, it is said, they have a possibility of enduring forever. It is the uncertainty of the event and the possibility that the fee may last forever that renders the estate .a fee and not merely a freehold.” Pipe Line Co. v. Ry. Co. 62 N. J. Law, 254, 41 Atl. 759, 42 L. R. A. 572.

A very learned discussion with reference to the construction of wills will be found in the .late case of Middleton v. Dudding (Mo. Sup.) 183 S. W. 443-458.

In our original opinion herein we said:

“This decision is based upon the fact, as rshown by the statement of facts, that appellee has no children, and it is not contemplated that .she will ever have.”

The statement of facts shows that appellee is married and has no children, and there was no intimation in the briefs of either party that the possibility of issue was not extinct. However, the statement of facts -does not show that she will never have children, and therefore this finding of fact is withdrawn.

Por the reasons stated, the motions for rehearing upon the part of both appellant and appellee are overruled.

Motion overruled.
      ©SjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    KAUFMAN et ux. v. CHRISTIAN-WATHEN LUMBER CO. et al.
    (No. 5594.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 1, 1916.
    On Motion for Rehearing, March 22, 1916.)
    1. Contracts <&wkey;360(l) — Building Contract —Alterations—Sufficiency of Evidence.
    In an action by a contractor against the owners for a balance due, in which the defendant interposed a counterclaim for the expense of completing the building after breach by plaintiff, evidence held sufficient to support finding that it was impossible to tell what portion of the material covered by the architect’s certificate and used in completing the building was used in making changes not authorized by the contract in the work done by the contractor, and what portion was expended in completion of the building according to the terms of the contract, so that defendant could not recover.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. §§ 1819, 1822, 1823; Dee. Dig. &wkey; 350(1).]
    2. Contracts <&wkey;350(l) — Building Contract —Cost of Completing House — Sufficiency of Evidence.
    In an action by a contractor for a house against the owners for a balance, evidence held sufficient to show that the amount of labor necessary to complete the house in accordance with the contract and specifications ivas the difference between the total amount paid by defendant for labor and that paid for labor in making unauthorized changes in the work done by plaintiff.
    [Ed. Note. — Por . other cases, see Contracts, Cent. Dig. §§ 1819, 1822, 1823; Dec. Dig. &wkey; 350(1).]
    3. Damages <&wkey;189 — Building Contract-Possibility of Renting — Sufficiency of Evidence.
    In .an action by a contractor for a house against the owners for a balance, evidence held sufficient to support finding that there was no proof that the building could have been rented, if ready, from the time it was contracted to be finished until it was actually finished.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 288, 512; Dec. Dig. &wkey;>189.]
    4. Damages <&wkey;^S5 — Building Contract — Delay in Completion — Liquidated Damages.
    Where the owner of a house under construction on June 16th wrote the contractor, who had abandoned, that, if he did not go to work by June 19th, the owner would take possession of the premises and complete the house, which notice had no effect, the owner waiting till September, such owner could not recover stipulated damages caused by such delay in completion after the date set for going to work.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 179-181, 183-187; Dec. Dig. &wkey; 85.]
    5. Damages <&wkey;85 — Liquidated Damages.
    Where a building contractor abandoned work and caused delay in completion, the owner was entitled to recover the stipulated damages in absence of a showing that the same amounted to a penalty or was disproportionate to the actual damage sustained.
    [Ed. Note. — Por other cases, see Damages, Cent.Dig. §§ 179-181,183-187; Dec. Dig. &wkey;85.]

      6. Principal and Surety c&wkey;7 — Surety for Corporation — Ultra Vires Act.
    The 'bond given by a surety for a corporation is binding upon it, even though the contract, performance of which the bond was made to secure, was ultra vires as to the corporation.
    [Ed. Note. — Por other cases, see Principal and Surety, Cent. Dig. §§ 8-12, 14, 16, 18; Dec. Dig. <&wkey;7.]
    Error from District Court, Bexar County; W. P. Ezell, Judge.
    Suit by the Christian-Wathen Dumber Company against L. Kaufman and wife, in which defendants impleaded Lee Garcia and another. Prom a judgment that plaintiffs take nothing by their suit and defendants nothing by reason of their cross-action, defendants bring error.
    Judgment reversed in part and rendered for defendants, and affirmed in part.
    W. H. Russell and T. M. West, both of San Antonio, for plaintiffs in error. Hertz-berg, Barrett & Kercheville, of San Antonio, for defendants in error.
   MOURSUND, J.

The Christian-Wathen Lumber Company sued L. Kaufman and wife for $2,095.72, alleged to be the balance due by Kaufman and wife to plaintiff on a contract by plaintiff and Lee Garcia to erect for Kaufman, and wife a house on San Pedro avenue, in San Antonio. Kaufman and wife denied the plaintiffs’ allegations, and by cross-action impleaded Lee Garcia and the Southwestern Surety Insurance Company of Oklahoma, the surety on the bond of Christian-Wathen Lumber Company and Lee Garcia, and asked for judgment against all of said parties, alleging that Kaufman and wife had paid out the sum of $2,046.92 in completing the house, which sum was $1,554.88 more than the original contract price. They further pleaded that the house was to be completed within 60 working days, or by May 17, 1913, and that they were entitled to recover penalties at the rate of $6 per day for every day the house remained uncompleted after May 17, 1913, that the building was not completed until 238 days after said date, and that Kaufman and wife were damaged in the sum of $1,428 by reason of such delay. They also alleged that they were damaged in the sum of $714, the rental value of the house for the time intervening between the 60 working days and the date the house was completed.

The Christian-Wathen Lumber Company, Lee Garcia, and the surety company answered this cross-action by general demurrer, special exceptions, and denials of the material allegations, and pleaded that said Kaufman breached the contract in various particulars. The surety company also pleaded that the contract of suretyship was not binding upon it, for the reason that the Christian-Wathen Lumber Company was a corporation incorporated under subdivision 24 of article 642, Revised Statutes 1895, for the purchase and sale of goods, wares, merchandise, etc., and its contract, jointly with Lee Garcia, to erect a house, was an ultra vires act, for which it could not be held liable, and therefore the surety company could not be held liable. It pleaded further that the said lumber company entered into a partnership agreement with Garcia to erect the building, and that said partnership was an ultra vires act and void, and therefore the surety company was not liable.

Judgment was rendered to the effect that plaintiffs take nothing by their suit, and that Kaufman and wife take nothing by reason of their cross-action. Kaufman and wife appealed. The trial court at the request of the surety company filed the following conclusions of fact:

“(1) I find that the Christian-Wathen Lumber Company, a corporation, plaintiff, and Lee Garcia, defendant, on March 5, 191$, contracted to erect and build for defendant L. Kaufman a two-story frame two-flat apartment house and shed in San Antonio, Tex., and that they contracted to erect and finish said building in 60 working days after date, for the sum of $3,989, subject to additions and deductions, and that said Christian-Wathen Lumber Company, a corporation, and Lee Garcia thereupon executed a bond on the same date, signed by Lee Garcia, grincipal, and the Christian-Wathen Lumber ompany, by Ed A. Christian, president, principal, and by the Southwestern Surety Insurance Company of Oklahoma as surety, in the sum of $1,333, payable to L. Kaufman, to secure the faithful performance of the contract above referred to.
“(2) I further find that on said date the Christian-Wathen Lumber Company was a corporation organized under the laws of Texas, and does business in Texas, and was formed for the purpose of the purchase and sale of goods, wares, and merchandise and agricultural and farm products, including lumber, shingles, doors, sash, blinds, moldings, cement and brick, builder’s hardware, nails and all other species and character of what is commonly known as goods, wares, and merchandise, and especially everything manufactured from timber and all articles used in building and erecting structures of all sorts.
“(3) I further find that the Christian-Wathen Lumber Company, a corporation, executed said contract for the erection of said 'building jointly with Lee Garcia, both acting as principals, and that both of them signed the bond jointly and as principals, for the purpose of profiting out of said transaction, and that they were acting jointly and as partners in the erection of said house for L. Kaufman.
“(4) That the Christian-Wathen Lumber Company entered into a partnership agreement with Lee Garcia to erect said building for the benefit of L. Kaufman and for the mutual benefit of each other.
“(5) That the Southwestern Surety Insurance-Company refused to execute a bond for Lee Garcia to L. Kaufman for the erection of said building, but did agree to execute the bond for Lee Garcia and the Christian-Wathen Lumber Company jointly and as partners.
“(6) I further find that payments were made-by L. Kaufman to the contractors on the dates stated in defendant Kaufman’s first amended original answer, being paragraph 6, page 2.
“(7) I further find that the money claimed to have been expended by L. Kaufman for the completion of said building and contract was also-expended for alterations and changes made in said building after the first contractors had abandoned the work, and that no proof was offered as to what portion of said money was expended for changes and alterations and what portion of said money was absolutely necessary for the completion of said 'building according to the original plans and specifications, and that, proof in this respect not being definite and such as the court could render intelligent judgment upon, the court therefore finds that defendant Kaufman has failed to prove what amount of money was actually expended and absolutely necessary to complete said 'building according to the original plans and specifications.
“(8) I further find that tire architect of said job did not give written notice to the contractors to proceed to remove from the grounds or buildings any materials condemned by him, or to take down any portion of the work which the architect shall by written notice condemn as unsound or improper or as in any- way failing to conform to the drawings and specifications, except certain flooring in the servant’s room and some other flooring material, which was removed by the contractors, and that all other changes and alterations on said job made by L. Kaufman after he undertook to complete the contract were unauthrized by the architect, and that the architect did not give written notice as provided in the contract, and that the said L. Kaufman was therefore unauthorized to expend money for these purposes and include said expenses in the amount necessary to complete the job, and because of his failure to show how much money was so expended and how_ much money was necessary to complete the building strictly according to plans and specifications the court is unable to determine the exact amount necessary to complete the building.
“(9) I further find that there is no proof to the effect that said building could have been rented from the time it was contracted to be finished until the time it actually was finished.
“(10) I further find that the defendant Kaufman paid on said contract $3,202.30, which was 80 per cent, of the work done and material furnished at time of payment.
“(ll) I further find that defendant Kaufman paid to various persons for material furnished and labor performed on said buildihg after he took charge of the same the sum of $2,046.92, which included cost of completing the building, and also included cost of making alterations and changes in the building, which alterations and changes were not directed to be made by the architect in charge.”

The conclusions of law, in so far as they relate to the cross-action, are as follows:

“I find that L. Kaufman and wife are not entitled to recover any judgment against the Christian-Wathen Lumber Company, Lee Garcia, and the Southwestern Surety Insurance Company, for the reason that no proof has 'been introduced showing the exact amount expended for completing said building strictly according to plans and specifications, and I conclude that said Kaufman is not entitled to recover anything for loss in rent because of his failure to show that said building could have been rented during said time.
“I further conclude that the certificate issued by the architect after the completion of said building was not such as to authorize defendant Kaufman to recover the amount paid for changes and alterations in said building made after defendant Kaufman took charge of same for completing it; said certificate simply showing the gross amount paid for completing the building and for making the alterations and changes.”

The seventh, eighth, and eleventh findings of fact are attacked by appellants as unsupported by the evidence. These findings .are very important, in view of the fact that the contract provided: That the work was to be done under the direction of the architect, and that Ms decision as to the true construction and meaning of the drawings and specifications shall be final; that no alterations were to be made in the work except upon written order of the arcMtect, the amount to be paid by the owner or allowed by the contractor by virtue of such alterations to be stated in such order; that, if the architect shall certify that the refusal or neglect of the contractor to supply workmen or materials is sufficient ground for such action, the owner may terminate the employment of the contractor and enter upon the work included in the contract and employ any other person or persons to finish the work and to provide the materials therefor, and in such case the contractors would receive no further payment until the work was wholly completed, at which time, if the unpaid balance of the amount to be paid under the contract shall exceed the expense incurred by the owner in finishing the work, such difference shall be paid by the owner to the contractor, but, if the expense exceeds the unpaid balance the contractors shall pay the difference to the owner, and the expense incurred through such default shall be audited by the architect whose certificates thereof shall be conclusive upon the parties.

Mr. Behles, the architect, testified that the house was completed according to the original plans and specifications up to the date when the owner took charge of it. However, his testimony at another place shows that he had condemned the flooring in the servants’ room, and that the work which had been done was in pretty bad condition. He also testified that a great many partitions had to be taken out, also some flooring.

D. T. Shepherd, who had charge of the construction work after the owner took charge, testified that it did not take $1,335.85 worth of labor to complete the house, but that it did take that amount, including the cost of tearing out what had to be torn out and replaced; that he did not know how much of the material was used in replacing material tom out. A statement by him to Kaufman was introduced in evidence which shows that very many changes were made by him in the portion of the work already done. This statement shows that the total amount paid for labor in tearing out and replacing portions of the house was $329.85. Shepherd testified he made these changes without instructions from anybody. It is clear that he took the plans and specifications, placed his own interpretation thereon, instead of applying to the architect, and proceeded to make numerous changes. After the building was completed the architect gave Kaufman a certificate as follows:

“This is to certify that in completing your apartment house, comer Myrtle and San Pedro streets, which was taken over from the Christian-Wathen. Lumber Company and Lee Garcia, contractors, amounts as follows:
For lumber from P. J. Owens Lumber Co.$ 610 07
Millwork for H. Wagner. 101 00
Labor complete. 1,330 80.”

This certificate included the material and labor for changes made, as well as for the completion of the house.

In view of the above testimony, we conclude that the court was correct in finding that it was impossible to tell what portion of the material covered by the architect’s certificate was used in making changes in the work already done, which changes were not made in accordance with the terms of the contract, as the architect had not directed that they be made, and in fact had approved the work found defective by Shepherd. It is clear, therefore, that no recovery could be had by Kaufman for any material covered by such certificate, and it is impossible to toll how much thereof was necessary for the completion of the building in accordance with the terms of the contract.

We think, however, the court erred in not finding that the amount of labor necessary to complete the house in accordance with the terms of the contract and the specifications was the difference between $1,330.-80, the total amount paid out for labor, and $329.85, the amount paid for labor in making changes, namely, the sum of $1,000.95.

It follows that, as the remaining 20 percent. of the contract price was only $786.70, and the Kaufmans paid out for labor in completing the building the sum of $1,000.95, they were entitled to recover the sum of $214.25 upon their count for damages by reason of having to complete the building.

Appellants contend they should have recovered $600 as the reasonable rental value of the building for six months. The court found that there was no proof that the building could have been rented from the time it was contracted to be finished until the time it was actually finished. This finding is supported by the evidence, for the only evidence on the subject was that of Kaufman to th'e effect that after the building was completed it had a rental value of $100 per month.

Appellants also contend that the court erred in failing to render judgment in their favor for $6 per day as liquidated damages for each day from June 1, 1913, to November 26, 1913. The 60 working days expired June 1, 1913. Garcia testified he quit the job about the last of May. It appears that it was evident to Behles and Kaufman that the contractors had abandoned the work, for on June 16th Kaufman wrote Garcia that, if he did not go to work by Thursday, June 19th, Kaufman would take possession of the premises and complete the house. A carbon copy of this letter was sent to the surety company. There is no testimony that these notices had any effect, and yet Kaufman waited until September 5, 1913, and then wrote another letter to the surety company, stating that he had on that day dismissed the contractors, and allowing said company until August 6,1913, in which to decide whether to complete the house or let him proceed to complete it No explanation is made of the discrepancy in dates, nor of the long delay in proceeding to carry out the threat of taking possession on June 19th. No recovery should be had for the time covered by such delay, nor does the evidence furnish any basis for damages for the time intervening between September 5th and November 26th, but we fail to see upon what theory a recovery could be refused for the time intervening between June 1st and June 19th. Theró being no contention made in the pleadings that the provision for payment of $6 per day was intended as a penalty, or that it was so disproportionate to the actual loss that it would be unconscionable to permit the recovery thereof, and there being no evidence of the amount of actual damages, it seems that appellants should have been allowed to recover at the rate of $6 per day for each day intervening between June 1st and June 19th. Collier v. Betterton, 87 Tex. 440, 29 S. W. 467; Dilley & Son v. Wise and Hervey, 160 S. W. 985.

The surety company by cross-assignments contends that the bond is not binding upon it, because the Christian-Wathen Lumber Company, a corporation, exceeded its powers in contracting to erect a building, and makes the further contention that the corporation, by said contract, entered into a partnership with Garcia, and therefore the contract was void. If it be conceded that the business of erecting buildings was not authorized by the articles of incorporation, and that the contract had the effect of surrendering to Garcia to a certain extent the control of the affairs of the corporation required by law to be exercised through its authorized officials and agents, and was therefore ultra vires, still it has been decided in this state, and we think correctly, that the bond is binding upon a surety, even though the contract which it was made to secure performance of was ultra vires. Mitchell v. Hydraulic Stone Co., 129 S. W. 148. The cross-assignments are therefore overruled.

The judgment of the trial court is reversed, and the cause remanded.

On Motion for Rehearing.

The Southwestern Surety Insurance Company contends that we were in error in finding that the sum of $1,000.95 was proven to have been the amount paid out for labor to complete the house according to specifications. It is asserted that the statement only referred to by us as having been made by Shepherd relates only to labor utilized in tearing out and replacing defective material, and we concede the correctness of that assertion. It is further asserted that the evidence shows that changes were thereafter made in completing the building and the sum of $1,000.95 includes the sums paid for labor necessary to make such changes. Both Shepherd and Behles testified the building was completed in accordance with the specifications, and we are unable to find any evidence which sustains the contention that changes were made. As was pointed out, the evidence fails to show the cost of the material used in replacing portions found by Shepherd to be defective and torn out and replaced, so it is impossible to make any finding with regard to the sum expended for material necessary to complete the building according to specifications. The motion for rehearing is overruled.

We are, however, of the opinion that, instead of remanding the cause for another trial, we should render judgment for the Kaufmans for the sum of $32S.25.

Our former judgment is therefore set aside, and judgment rendered that L. Kaufman and wife recover of the Christian-Wathen Lumber Company, Lee Garcia, and the Southwestern Insurance Company said sum of $328.25. That portion of the judgment of the trial court to the effect that the Christian-Walthen Lumber Company take nothing by its suit against L. Kaufman' and wife will ■not be disturbed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    TEXAS GRAIN & ELEVATOR CO. et al. v. DYER.
    (No. 8313.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 29, 1916.
    On Motion for Rehearing, Feb. 26, 1916.)
    1. Appeal and- Ebboe <&wkey;743(l) — Assignments oe Ebboe — Refebence to Tean-scbipt — Necessity.
    Where the statements under assignments ■of error made no reference to the portion of the transcript containing a record of the alleged error complained of, such assignments could not be considered, not being briefed as required by the rules of the Courts of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2999 ; Dec. Dig. &wkey;?743(l).]
    On Motion for Rehearing.
    2. Appeal and Ebboe <&wkey;743(l) — Assignments of Ebboe — Refeeence to Reooed— Statute.
    Where the statement of appellants’ assignment of error based upon the trial court’s failure to submit the case upon special issues made no reference to the record, except. the expression “(See defendants’ bill of exception, No. 3),” neither the assignment, the proposition, or the statement showing that any issues of fact were presented by the pleadings and evidence which were not submitted to the jury by special issues, such assignment was insufficient and could not be considered, under rules 30, 31, for the Courts of Civil Appeals (142 S. W. xiii), providing that each point of each assignment shall be stated as a proposition, unless the assignment itself sufficiently discloses the point, in which event it shall be sufficient to copy the assignment, and that to each proposition there shall be subjoined a brief statement of the proceedings, with a reference to the pages of the record, etc. (Acts 33d Leg. c. 136, § 1 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612]), providing that an assignment of error shall be sufficient which directs the attention of the court to the error complained of not having abrogated the rules.
    .[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. &wkey;743(l).]
    3. Teial <&wkey;352(l) — Submission on Special Issue — Geneeal 'Chabge.
    Where, under the pleadings, the only issue of fact to be submitted to the jury was upon defendant’s verified plea of privilege, the charge, though general in form, wMch involved only such single issue of fact, whether the defendants when they made the contract in suit intended to take the hay contracted for and pay for the same so that they were not guilty of fraud, was in effect a submission upon special issues, the finding of the jury under it being determined by the one issue of fact, and decided adversely to defendants by their verdict for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 840; Dee. Dig. t&wkey;352(l).J
    Appeal from Erath County Court; A. P. Young, Judge.
    Suit by Hi. L. Dyer against the Texas Grain & Elevator Company and others in the alternative. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Hickman & Bateman, of Dublin, for appellants. E. E. Solomon, of Dublin, for ap-pellee.
   BUCK, J.

Suit was filed in the justice court of Erath county by H. L. Dyer against the Texas Grain & Elevator Company of Ft. Worth, alleged to be a corporation, and, in the alternative, against E. M. and G. H. Rogers, alleged to be a partnership and doing business under the name of said Grain & Elevator Company. The plaintiff alleged the cause of action to be by reason of the breach of two contracts in writing entered into by and between plaintiff and defendants, (1) for the delivery at Mangum, Tex., on October 1, 1914, of 50 tons of Johnson grass hay, and (2) for the delivery at Dublin, Tex., on November 3, 1914, of 30 tons of hay, all at $8 a ton, said hay to be shipped in accordance with instructions from defendants. That plaintiff was at all times ready and willing to deliver said hay, and so advised defendants, but that defendants failed and refused to give any instructions for shipping, or to receive or pay for said hay. That because of said breach by defendants, and by reason of the decline of the market price of hay, plaintiff was forced to sell said 80 tons of hay on November 12,1914, at $6 a ton. Plaintiff’s suit for damages included $2 a ton loss, or $160, $10 for storage, and $10 attorney’s fees.

Defendants, both in the justice court and in the county court, to which an appeal was taken by them, after alleging that the Texas Grain & Elevator Company was not a corporation, but a partnership, composed of said E. M. and G. H. Rogers, submitted their verified plea of privilege to be sued in Tar-rant county where it was alleged both resided.

In answer to the plea of privilege, plaintiff pleaded, (1) that the contract was in writing and to be performed in Erath county, and (2) that the defendants were guilty of fraud and deceit, committed in Erath county, in that they never intended, even at the time of making the contract, to comply therewith and pay for said hay, in case the market-should decline. This latter ground only of said plea was submitted to the jury, which found in favor of plaintiff “on the issue of defendant’s right to be sued in Tarrant county” ; and the jury also found, under peremptory instructions, subject to the plea of privilege, for plaintiff, on the issue of damages, for $160. Defendants appeal.

Appellee objects to the consideration of any one of the 17 assignments contained in appellants’ brief because they are not briefed as required by the rules, in that in the statements thereunder no reference is made to the portion of the transcript containing the record of the alleged error of which complaint is made. Eor instance, in their first assignment, complaining of the action of the court in overruling defendants’ application for a change of venue, and their plea of privilege to be sued in Tarrant county, appellee calls our attention to the fact that “neither the assignment nor the statement refers to that part of the record containing such plea, if there was any, or to the court’s judgment thereon, if there was a judgment against the plea.” In the second assignment, urging that the verdict of the jury is contrary to the evidence on the issue of fraud, which is one of the grounds pleaded by plaintiff to sustain the venue in Erath county, there is no reference to that portion of the motion for new trial complaining of the alleged error.

We believe that the objections by appellee to the consideration of the assignments in this form and condition should be sustained. Farthing Lumber Co. v. Illig, 179 S. W. 1092; Norris Lumber Co. v. Harris, 177 S. W. 515; Anderson et al. v. Jackson, 168 S. W. 54; Taylor v. Butler, 168 S. W. 1004; Heath v. Huffhines, 168 S. W. 974; Ford Motor Co. v. Freeman, 168 S. W. 80.

There being no fundamental error manifest of record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

In their motion appellants insist strenuously that we erred in refusing to consider the assignments because of defective briefing, and specially do they urge that as to the sixteenth assignment the statement thereunder is sufficient. This assignment is based upon the court’s failure to submit the case upon special issues. In the statement thereunder no reference is made to the record at all, except the expression “(See defendants’ bill of exception No. 3).” It is not shown either in the assignment, the proposition, or the statement that any issues of fact were presented by the pleadings and evidence which were not submitted to the jury as separate issues. This character of statement has been held insufficient to require consideration in Childress v. Robinson, 161 S. W. 78, and Mitchell et al. v. Robinson, 162 S. W. 443. In both of these cases it was stated that the act of the Thirty-Third Legislature (chapter 136, p. 276; article 1612, Vernon’s Say les’ Ann. Civ. St. 1914), which provides that an assignment of error “shall be sufficient which directs the attention of the court to the error complained of,” does not, and was never intended to, abrogate rule 30 (142 S. W. xiii), which, in part, is as follows:

“Each point under each assignment shall be stated as a proposition, unless the assignment itself may sufficiently disclose the point, in which event it shall be sufficient to copy the assignment”

—and rule 31 (142 S. W. xiii), which, in part, provides:

“To each * * * proposition there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. This statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said proposition, upon the professional responsibility of the counsel who makes it, and without intermixing with it arguments, reasons, conclusions, or inferences.”

See Douthitt v. Farrar, 159 S. W. 182.

But even if the question of defective statement should be waived and we should give this assignment consideration, we think it should be overruled on its merits. Defendants filed no pleadings in the case except their plea of privilege to be sued in Tarrant county. They introduced no evidence as to the merits of plaintiff’s claim. Hence, the only issue of fact to be submitted to the jury was upon defendants’ verified plea of privilege, as supported by the testimony of J. B. Rogers, father of the defendants. Upon this plea the court charged the jury as- follows:

“The law provides that no person who is an inhabitant of this state shall be sued out of the county or precinct in which he has his domicile, except, among other cases, in all cases of fraud, in which case suit may be brought in the county in which the fraud was committed.
“If you believe from the evidence in this case that the defendants, under the name of the Fort Worth Mill.and Elevator Company, made written agreements with plaintiff as alleged by him, and agreed to purchase from plaintiff 80 tons of Johnson grass hay at the price of $8 per ton, to be delivered by plaintiff free on board the cars at Mangum and Dublin, Texas, and that on account of said contracts, plaintiff prepared said hay and was ready to deliver same to defendants in accordance with the terms of said contracts, and if you further believe that at the time said contracts were made by defendants with plaintiff that the defendants did not intend to take said hay and pay for the same, then you will find for the plaintiff on the issue of the privilege of said defendants to bo sued in precinct No. 1 of Tarrant county, and so st.ate by your verdict. If you do not so find, your verdict will be for the defendants on the issue of the privilege of the defendants to be sued in precinct No. 1 of Tarrant county, and so state by your verdict.
“The burden of proof is on the plaintiff on the issue of the right of defendants to be sued in precinct No. 1, Tarrant county, Tex.
“In the event you find for the defendants on the issue of their right to be sued in precinct No. I of Tarrant county, Tex., then you need not make any further finding on the issue hereinafter submitted to you.”

So, it will be seen that only one issue of fact was involved in the charge submitted to the jury upon defendants’ plea of privilege, to wit, Did defendants, at the time they contracted for said hay, intend to take said hay and pay for the same? Hence, it would appear that though said instructions were given in the form of a general charge, yet the finding of the jury was determined by this one issue of fact, and that when they found in favor of plaintiff on the issue of defendants’ right to be sued in Tarrant county, which they did, separately and apart from the further verdict as to plaintiff’s damages, which they found under a practically instructed verdict, they decided the one issue involved.

Even if reference' should be had to said bill of exception No. 3, the said bill fails to show that any issues of fact were raised by the pleadings and evidence, and fails to show, by reference or otherwise, what issues of fact, if any, were tendered by the defendants and refused by the court. Hence, we conclude that no reversible error is shown in the action of the court in refusing and failing to submit the cause on issues further than those that were submitted.

We believe what we have said above is entirely in harmony with the holding by the Supreme Court in the case of C. R. I. & G. Ry. Co. v. Pemberton, 161 S. W. 2, cited by appellants, in which it is said:

“It is further urged by the defendant in error that the statements as made, subjoined to the propositions submitted under the second, third, and fourth assignments, are not in compliance with rule 31, and that the court properly refused to consider those assignments, because of the want of reference to the pages of the record. The statements under the assignments just named are defective in this particular. The second assignment is based upon the refusal to give a special charge. The statement gives the number of the charge and copies it literally, but omits to give the page of the transcript where it may be found. It further purports to give the substance of certain testimony upon the issues submitted in the charge, and with respect thereto gives the transcript pages. The third and fourth assignments both relate to matters made the subject of bills of exception. In the statements the bills are referred to by number, and copied in full, but reference to the pages of the transcript where found, is omitted. While,the statements under these three assignments are defective in the particular stated, their accuracy was not questioned in the Court of Civil Appeals by the defendant in error, and for this reason we believe the court would have been warranted in considering the assignments, but we do not consider it within our province to revise the exercise of discretion by the Court of Civil Appeals, where the statement wholly fails to refer to the pages of the record, and the assignment is not considered for that reason.
“The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that court for the consideration of the first assignment of error in the brief filed in that court by the plaintiff in error, and for the consideration of the. remaining three assignments, unless the court is of the opinion it should refuse to do so because of the statements thereunder being defective in the respect stated, under rule 31.”

We note in reply by appellee’s counsel to appellants’ motion for rehearing, that reference is made to appellee’s death, alleged to have occurred since the rendition of the judgment in the trial court, and pathetic appeals are attempted to be made to this court on behalf of the widow and orphans, and arguments used to the effect that a reversal of this case would work a great injustice to such widow and orphans, because of the death of the appellee. The injection of such matters, being de hors the record, is not proper, and of the impropriety of its use the counsel must have been well aware, and this court has not considered the same, except, as herein, to discountenance the departure from the record.

The motion for rehearing is overruled.
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