author: HODGES, J.

text:
    TEXAS & P. RY. CO. v. LESTER.
    (No. 2008.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1918.
    Rehearing Denied Nov. 14, 1918.)
    1. Commerce @=>27 (6) — Employer’s Liability — Servant Engaged in “Interstate Commerce.’’
    A brakeman on an interstate train, injured while respotting local cars, which were necessarily dislocated when his train had to take a siding, was engaged in “interstate commerce,” within the federal Employers* Liability Act (U. S. Comp. St. §§ 8657-8665).
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    2. Commerce @==>27(6) — Injury to Employe— Federal Safety Appliance Law.
    A brakeman, injured by defective coupler of a car of an interstate railway\ company, is within the protection of the federal Safety Appliance Law (U. S. Comp. St. § 8606), though not at the time engaged in interstate service.
    Appeal from District Oourt, Harrison County; P. O. Beard, Judge.
    Action by J. M. Lester against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant áppeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant.
    T. W. Davidson and T. D. Harrison, both of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee, Lester, for the sum of $14,000 as damages for personal injuries. The appellant was at the time of the injury operating a line of railroad running-from points in Louisiana to points in Texas and which did both an interstate and an intrastate business. Lester was employed as a brakeman on a freight train, and was injured in the state of Louisiana under the-following circumstances: The train to which he .was attached arrived at Glocester, La., going west, and, in obedience to orders, had taken a side track to permit the passage of another train going in the opposite direction. Standing on the side track at Gloces-ter were 18 or 20 other cars, some of which had been “spotted” for the purpose of being loaded. The length of Lester’s train was such that it was necessary to move those “spotted” ears in order to clear the main line. After the east-bound train had passed, it was the duty apparently of the train crew to which Lester belonged to “respot” the cars which had been moved. In performing that service Lester mounted one of the “spotted” cars in order to set the brakes when it arrived at the proper place. The loose cars were incorporated in the train and were pulled in a westerly direction, going slightly upgrade. After proceeding a short distance, the car immediately behind the caboose of the freight train became detached, which, it is claimed, resulted from a defective coupler. By the time the train reached a point where it should be stopped, a considerable space had intervened between the detached cars and the caboose. Lester claims that he had not observed the separation of the cars; that when he thought the correct location had been reached he gave the signal for the engineer to stop. This was obeyed, and the train brought quickly to a standstill; but the detached cars continued to roll on toward the caboose, and finally struck it with, such violence that Lester was thrown to the ground and sustained the injuries for which he sued. According to his testimony, at the time of the collision he was at the front end of the car and was attempting to set the brake.

It is conceded that the train to which Lester was attached was at the time bound for a point in Texas, and was made up of ears used for both interstate and intrastate traffic. The negligence relied on was the presence of a defective coupler on one of the cars standing on the side track at Glocester, which caused it to become detached when the train crew were engaged in “respotting” them.

The case was submitted to a jury upon the theory that the appellant’s train was at the time of the injury engaged in interstate commerce, and liability, if any, was to be measured by the common-law rule of compensation. Counsel for the appellant insists that, while the train to which Lester belonged was in a general way engaged in interstate commerce, yet at the time the injury occurred Lester was performing a service purely intrastate and local, and for that reason the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) had no application; that liability, if any, was to be measured by the Workmen’s Compensation Law of the state of Louisiana (Act No. 20 of 1914), While it is true that the car which it is claimed was equipped with a defective coupler and also those which the train crew were attempting to replace in proper position were intended for purely local trafile, yet it does not follow that Lester was not engaged in doing something for the furtherance of interstate commerce. It was necessary for his train to take the siding at Glocester, and in doing this the dislocation of the cars which had been “spotted” became apparently unavoidable. To restore those cars to their original positions seems to have been an incidental and proper duty. In performing that duty it was necessary to incorporate them in the train and pull them a short distance. It has been held that a brakeman connected with an interstate train, who is injured while attempting to set the brakes on a ear set out at a station and used only in intrastate traffic, is nevertheless engaged in interstate commerce within the meaning of the federal statute. N. Y. C. & H. Ry. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. The principle discussed in the case referred to should, we think, control here. But, conceding that Lester was not at the time engaged in an interstate service, his injury resulted from a violation of the federal Safety Appliance Law (Act Cong. March 2, 1893, c. 196, § 2, 27 Stat. 531 [U. S. Comp. St. § 8606]), and his right of action would be governed practically by the samo rule, even though his service was in furtherance of purely local traffic. T. & P. Ry. Co. v. Rigsby, 241 U. S. 38, 36 Sup. Ct. 482, 60 L. Ed. 874; L. & N. Ry. Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931.

The court’s charge on contributory negligence was substantially as specific as was necessary to present the facts upon which that defense was predicated, and there was no error in refusing the special charge requested by the appellant.

It is also contended that the defective coupler was not the proximate cause of the injury. The appellant’s evidence tended to show that the coupler was not in fact defective ; that the side track where the train was moved was very uneven; and the argument is made that its rough condition, and not a defect in the couplei’, caused the cai-s to separate. The court submitted that issue to the jury, and directed them to return a verdict for the appellant in the event it was found that the rough track, and not a defective condition of the coupler, caused the separation. The verdict of the jury involves the finding against the appellant’s contention, and the state of the evidence is not such as to require us to set that finding aside. According to the evidence offered by the ap-pellee, his injuries were both painful and serious, and we cannot say that the verdict is excessive.

The judgment is affirmed.
      (fe^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    ERWIN v. MORGAN.
    (No. 2007.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 17, 1918.)
    1. Boundaries <3=^25 — Conixictinq Surveys —Priority.
    If there was a conflict between the two surveys in question, the older survey would hold the land.
    2. Appeal and Error @=>1010(1) — Judgment Supported by Findings — Review.
    There being no error in the judgment if a comer of survey owned by defendant was at point shown by plat in the record sent to court on appeal, and there being evidence authorizing a finding that the corner was at such point, judgment will be affirmed.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Suit by G. A. Erwin against C. L. Morgan and another. The unnamed defendant having answered that he did not claim an interest in the land involved, suit was dismissed so far as it was against him. Judgment for defendant named, and plaintiff appeals.
    Affirmed.
    F. B. Martin, of Longview, for appellant.
    Young & Stineheomb, of Longview, for ap-pellee.
   WILLSON, C. J.

Tlie suit was by appellant against appellee and A. E. Morgan to try the title to II acres of land described by metes and bounds and alleged to be a part of the Henry G. Hudson survey in Gregg county.

A. E. Morgan having answered that he did not claim to own an interest in the land, the suit was dismissed so far as it was against him.

The controversy between appellant and ap-pellee was as to whether the land sued for was a part of said Henry G. Hudson survey, which appellant owned, or a part of the John Anderson survey, which appellee owned. It was determined in favor of appellee, and judgment that he be quieted in his title to the land was rendered.

The insistence here is that it appeared, because of a conflict, that about 18 acres of the II acres sued for were included in both the Hudson survey and the Anderson survey, and that appellant was entitled to judgment because the Hudson survey, which he owned, was made and patented after the Anderson survey, which appellee owned was made and patented. The insistence, so far as it is for the proposition of law indicated, is not tenable; for if there was a conflict between the two surveys the older survey would hold the land. Dallas Hunting & Fishing Club v. Nash, 202 S. W. 1032.

It is clear, we think, that there is no error in the judgment if the southeast corner of the Anderson survey is at the point it is shown to be by the plat constituting a part of the record sent to this court — that is, at a point 326 varas S. 80 E. of the N. E. corner of the G. H. Tutt survey. The judgment involves a finding, if necessary to support it, that said corner of the Anderson survey is at that point, and we- think there is evidence in the record which authorizes such a finding.

The judgment is affirmed.
      £=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    ST. LOUIS SOUTHWESTERN RY CO. OF TEXAS v. BARRETT.
    (No. 2018.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 15, 1918.
    Rehearing Denied Nov. 21, 1918.)
    1. Appeal and Error ©=>1033(5) — Harmless Error— Instructions.
    An improper instruction, more calculated to help than to harm appellant, cannot be complained of by him.
    2. Railroads <§=3275(1) — Persons Near Tracks — Animals.
    Where one drove a team onto railroad land at a place used for unloading of cars, the railroad owed him, as an invitee, the duty to use ordinary care for his safety, and was liable, where, by reason of negligently causing noise and, escape of steam, the team was frightened and ran away.
    3. Railroads <©=>278(2) — Frightening Animals — Contributory Negligence.
    It is the duty of a person driving any team near a locomotive to exercise such care and prudence to prevent such team from running away and causing injury as a person of ordinary care would exercise under the same or similar circumstances for his own safety.
    4. Appeal and Error ©=31064 (2) — Harmless Error — Instructions.
    In an action for damages occasioned by frightening of team by a locomotive, it was harmless error to instruct that persons driving teams “easily frightened” should exercise care for their own safety, where it appeared without dispute that the team was “skittish and would run away sometimes.”
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Action by R. B. Barrett against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    As a result of a team of mules running away with a wagon they were hitched to, appellee was thrown from the wagon, where he was riding, to the ground, and thereby injured. He claimed that fright of the mules which caused them to run away was due to negligence on the part of employés of appellant in charge of one of its locomotive engines, in that, at a time when said thules were being driven along a way adjacent to appellant’s tracks in the town of Mt. Pleasant, said employés in charge of a locomotive engine on one of said tracks at a point near said mules “unnecessarily and negligently caused the said locomotive to emit unusually large quantities of steam and smoke and caused the said locomotive to make unusual and loud noises, and negligently caused said locomotive to throw smoke and steam in some manner unknown to plaintiff towards said team of mules and completely enveloped them in smoke and steam,” and in that “although they knew of his (plaintiff’s) presence, and knew that his team was becoming unmanageable, they (said employés) continued to cause said locomotive to emit smoke and steam in large and unnecessary quantities and to make unusual and unnecessary noise.”
    It appeared from the testimony that appellant had several tracks west of its depot in Mt. Pleasant. They ran north and south and crossed Depot street, which ran east and west. Of said tracks the one farthest west, known as “the city track,” was used for spotting cars containing freight to be unloaded at Mt. Pleasant. Between this track and the one nearest it on the east was a space 15 or 20 yards wide, which was used as a place for wagons to stand while being loaded from cars on said city track, and as a way for them when loaded to go to Depot street. On the occasion when ap-pellee was injured he, assisted by others, had loaded a wagon with doors and window sash from a car spotted on the city track for the purpose; and was standing in the wagon, holding window sash loaded thereon, while one Jess Jones drove the mules along said way toward Depot street. According to testimony admitted on appellee’s behalf, the wagon had moved only a few feet when steam emitted from one of appellant’s locomotives on the track immediately east of the way, and 25 or SO feet from the wagon, enveloped the mules, so frightening them as to cause them to run, whereby appellee was thrown from the wagon and injured.
    In the fifth paragraph of his charge the court told the jury it was not the duty of railway companies—
    “to keep a lookout for persons traveling along a highway adjacent to its tracks for the purpose of preventing frightening animals driven upon them, but are only required to operate their locomotives without unusual or unnecessary noise and emission of steam, and in case they become aware that animals are about to become frightened or have become frightened, then to refrain from making any unnecessary noises and emitting unnecessary steam that would be likely to frighten them.”
    In the sixth paragraph he defined negligence as meaning:
    “The failure to exercise such care in the performance of a legal duty as a person of ordinary care and prudence would exercise under the same circumstances.”
    In the seventh paragraph he told the jury it was—
    “the duty of persons in control of or using teams easily frightened and unaccustomed to noises and steam such as are ordinarily incident and reasonably necessary in the proper operation of a locomotive to exercise such care and prudence in approaching near to such locomotive as persons of ordinary care and prudence would exercise under the same circumstances for their own safety. And a failure to use such care would be negligence.”
    In the eighth paragraph he instructed the jury to find in appellee’s favor if they believed that appellee was injured by being thrown from a wagon by mules “frightened by steam or noise escaping from one of defendant’s locomotives,” and further believed' “that such steam and noise was caused to escape by the negligence” of appellant’s em-ployés.
    The judgment from which the appeal is prosecuted was in appellee’s favor for $1,750.
    E. B. Perkins, of Dallas, J. M. Burford, of Mt. Pleasant, and King & Estes, of Tex-arkana, for appellant.
    T. O. Hutchings, of Mt. Pleasant, and Wilkinson & Davidson, of Mt. Yernon, for ap-pellee.
   WILLSON, O. J.

(after stating the facts as above). The assignments are predicated upon the action of the trial court in giving certain instructions, and in refusing to give certain requested instructions, to the jury.

First. It is insisted that the fifth paragraph of the charge given, when considered in connection with the sixth and eighth paragraphs thereof, was erroneous and calculated to mislead the jury to the prejudice of appellant’s right. We think the part of the charge objected to was not applicable to the case made by the testimony, and should ndt have been given, but we think it was more calculated to help than to harm appellant with the jury, and therefore- that appellant should not be heard to complain of it. It appeared without dispute in the testimony that appellee, with the wagon and team of mules, was not “on a highway adjacent to” appellant’s tracks, but was on its premises for the purpose of unloading freight from one of its cars, and therefore was within a rule stated as follows in S Elliott on Railroads, § 1248:

“One who comes upon the premises of a railroad company, in the usual course of business with it, for the purpose of loading and unloading or delivering and receiving freight, is not a mere licensee, but is entitled to the care due one who is iivited to come upon the premises of another.”

Appellant owed to appellee as an invitee the duty to use ordinary care for his safety while he was on its premises. Railway Co. v. Cardwell, 187 S. W. 1073. The question for the jury was whether appellant had exercised such care or not. That question was we think sufficiently submitted to the jury by said sixth and eighth paragraphs of the charge. It follows that we are of the opinion, not only that the contention with reference to said fifth paragraph should be overruled, but also that the contention with reference to said eighth paragraph (that the jury were thereby wrongfully authorized to find appellant guilty of negligence if they believed the mules were “frightened from noise or the escape of steam from a locomotive,” although they might also believe that appellant’s employés “were without knowledge of the fright of the team or even of their proximity to the locomotive”) should' be overruled. It appears from appellant’s brief that it was of the opinion that appel-lee must recover, if at all, on the “discovered peril” doctrine. As indicated by what has been said above, we do not agree to that, but think he was entitled to recover if it appeared that appellant had failed to discharge a duty it owed him to exercise ordinary care for his safety while on its premises at its invitation.

In the seventh paragraph of the charge the trial court told the jury, as appears from the statement above, that it was “the duty of persons in control of or using teams easily frightened and unaccustomed to noises and steam such as are ordinarily incident and reasonably necessary to the proper operation of a locomotive” to exercise care for their own safety. Appellant contends it was appellee’s duty to exercise care with reference to the mules, whether they were easily frightened, etc., or not, and insists that the instruction therefore was erroneous. In view of said paragraph of the charge given, appellant requested the court to instruct the jury that it was—

“the duty of persons in control of or using teams which from any Cause or for any reason may become frightened while being driven about or near where any locomotives are, or where anything may occur to frighten such teams, to exercise sueh care and prudence to prevent such teams from running away and causing injury as a person of ordinary care would exercise under the same or similar circumstances for their own safety.”

If it was error to refuse the request to give to the jury the instruction just quoted (and we think it was, if the testimony made a question as to whether appellee was guilty of contributory negligence or not), the error should, we think, be treated as harmless, in view of the fact that it appeared without dispute in the testimony that the mules were “skittish, and would run away sometimes.” But we have not been referred to, and have not found in the record, testimony which we think required the submission to the jury of an issue as to whether appellee was guilty ■of contributory negligence or not. There is nothing in the record as we read it suggesting that appellee did anything which contributed to cause the mules to run away which a reasonably prudent person would not have done, or failed to do anything such a person situated as he was would have done to prevent them from running away, or injury to himself when they did run away.

The judgment is affirmed.
      ©mFor other cases see same topic and KEY-NUMIÍER in all Key-Numbered Digests and Indexes


text:
    TEXAS & P. RY. CO. v. McGRAW.
    (No. 1993.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1918.
    Rehearing Denied Nov. 21, 1918.)
    1. Master and Servant <§=>135 — Injury to Servant — YV arning.
    In a railway repairman’s action for injury, ■due to being struck by an engine while at work near a track in a train shed, where there was evidence that it was customary to signal or give warning of the approach of locomotives, defendant owed plaintiff the duty of giving such warning.
    2. Master and Servant <§=>289(4) — Injury to Servant — Contributory Negligence.
    A railway repair man, who was injured by a locomotive while engaged at his regular work near a track in a train shed, was not guilty of contributory negligence, as a matter of law, where he could assume that a custom of giving warning of the approach of engines would be observed.
    Appeal from District Court, Harrison County; P. O, Beard, Judge.
    Action by T. P. McGraw against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee was struck by a locomotive engine and thereby injured while working for appellant in its shops at Marshall. On the ground that appellant’s employés in charge of the engine were guilty of negligence in failing to warn him of its approach, he sued and recovered the judgment for $11,000, from which the appeal is prosecuted. It appeared from the testimony that the shops in which appellee was working were in a building 300 or 400 feet long east and west, and about 200 feet wide north and south. Two tracks about 16 feet apart, on which locomotive engines were operated, entered the shops from the east and passed west through it. Appellee was engaged in making endgates for coal cars. For this purpose he was using heavy pieces of plank about 8 feet long, which he placed lengthwise on trestles set near the north one of the two tracks. The ends of the planks projected from the trestles north towards the track, and so near to it that there was not space between the ends of the plank and the track for appellee to safely stand while an engine moved thereon past the trestles. Appellee was working at the northwest corner of a door (as it lay on the trestles) he was making, when a locomotive pushing a car entered the shops from the east and moved west 60 or 70 feet on said north track. As the engine approached appellee, he was warned by a switchman accompanying it to move from the place he was standing, and did so. At once, after the engine passed on west, appel-lee returned to the place he moved from, and proceeded with the work he was engaged in doing when he was warned to get out of the way of the locomotive. In from 15 to 30 minutes after the engine passed west, it returned east, striking appellee as it passed him where he stood at work, to wit, at the northwest comer of door he was engaged in making. Four hundred or 500 men worked in the shops, and. it had been the custom to .give warning to those of them in the way of locomotives moving on the track; but on this oecásion no warning was given to appel-lee as the engine moved back east, and he did not know until the engine struck him that it was moving east on the track.
    P. H. Prendergast, of Marshall, for appellant.
    S. P. Jones, of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). The contentions presented by the assignments are: (1) That it did not sufficiently appear from the testimony that appellant was guilty of negligence as charged against it; (2) that, if it did. so appear, it also appeared that appellee himself was guilty of negligence which contributed to cause the injury he suffered; and (3) that the judgment is excessive.

The negligence charged against appellant was that it failed to warn appellee that the engine was moving east on the track situated near the place where he was working. Appellant insists that because appellee knew that the engine had passed west on that track and was likely at any time to return east thereon, it had a right to assume that he would watch for and take notice of it as it moved back east, and that, having a right to indulge such an assumption, and having no notice that appellee did not know that the engine was moving east it did not owe him a duty to warn him of its approach. We do not think the contention should be sustained in the face, as it would have to be, of testimony in the record showing it to have been the custom of employés who accompanied engines moving on that track to warn appel-lee as same approached the place where he worked, not only as such engines moved west, hut also as, when returning, they moved east. Appellee as a witness testified:

“When a car would come in from the east they would notify me they were coming by hollering at me. In coming back they would ring the bell or holler at me again. I was always notified.”

We think the contention made that it appeared as a matter of law that appellee was guilty of contributory negligence also should be overruled. Appellee had a right to assume that the custom always before observed to warn him of the approach of an engine toward the place he was at work would not be discontinued without notice to him, and we do not think it can be said that he was guilty of negligence, as a matter of law, in acting on such an assumption on the occasion in question.

If the consequences to appellee of the injury he suffered were as serious as he testified they were, the judgment is not excessive. Evidently the jury, as they had a right to, believed appellee’s testimony; and we have found nothing in the record indicating the existence of a good reason why they should not have believed it.

The judgment is affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LANCASTER et al. v. SNIDER.
    (No. 2039.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 28, 1918.)
    1. Appeal and Error ©=>1062(2) — Harmless Error — Special Interrogatories — Submission.
    It is not error of which appellant can complain to refuse to submit a special issue to the jury, where an affirmative reply thereto would not be warranted by testimony before the jury.
    2. Evidence <@=>31S(1)-^Hearsay.
    In trespass to try title, where defendants-claimed under an alleged forged deed executed by an attorney in fact, recitals of execution of such deed in notes purporting to be for the purchase money, given 30 years before the trial,, were incompetent as hearsay.
    3. Evidence <@=>318(3) — Hearsay.
    In trespass to try title, where defendants-claimed under an alleged forged deed executed by an attorney in fact, the record of affidavits, as to genuineness of the signature of the attorney in fact was inadmissible as hearsay.
    4 Appeal and Error -<@=1056(1) — Harmless-Error — Exclusion of Evidence.
    In trespass to try title, where defendants claimed under an alleged forged deed executed by an attorney in fact, exclusion of a record of affidavits as to genuineness of attorney’s-signature, if error, did not warrant a reversal, where it would not have affected the result.
    5. Trespass to Try Title <@=>41 (1) — Evidence-Title.
    In trespass to try title, where defendants-claimed under a deed by an alleged attorney in, fact, and plaintiffs filed affidavit that the deed was forged, the burden was on defendant to-establish their defense by a preponderance of the testimony; plaintiffs having shown title to-the land and being entitled to recover, unless-they had parted with title.
    6. Trial <@=>260(1) — (Requested Instructions-—Instructions Already Given.
    Refusal to give instructions requested is not reversible error, where the substance thereof has been given in other instructions.
    Appeal from District Court, Harrison. County; P. O. Beard, Judge.
    Trespass, to try title by W. C. Snider against C. D. Lancaster and others. Judgment for plaintiff, and defendants appeal..
    Affirmed.
    This was a suit of trespass to try title, brought by appellee against appellants. The-land involved was 290 acres of the Jedekiah Payne survey in Plarrison county. It appeared from the testimony that appellee owned the land and was entitled to the judgment he obtained, unless he had conveyed it to L. W. Lloyd, under whom appellants asserted title. Appellants claimed that appellee, acting by his attorney in fact, one Williams, conveyed the land to said Lloyd by a deed dated April 15, 1886, and, that deed having been lost, that appellee, in lieu thereof, acting by said Williams as such attorney, made anothei® deed to said Lloyd June 11, 1894. As supporting their contention appellants offered, and the court admitted in evidence, the record,' made December 23, 1901, of an instrument dated said June 11, 1894, purporting to be a deed made by said Williams as attorney in fact for appellee, and to convey the land in controversy to said Lloyd. In the instrument was a recital that it was made by Williams as a substitute for a deed he had made as attorney in fact for appellee April 15, 1886, which had been lost or mislaid. Appellee filed an affidavit attacking this instrument as a forgery, and on the trial testified that he had never himself conveyed, and had never authorized Williams to convey, the land to Lloyd.
    On special issues submitted to them the jury made findings as follows: (1) That ap-pellee did not, before June 11, 1894, the date of the instrument referred to above, make to said Williams a power of attorney authorizing him to sell and convey the land in controversy. (2) That Williams did not, as ap-pellee’s attorney in fact, execute said instrument dated June 11, 1894, purporting to be a deed conveying said land to Lloyd. (3) That Williams did not, as said Lloyd’s attorney in fact, execute a deed dated April 15, 1886, conveying the land to Lloyd. (4) That appellee never received any money from Lloyd as the purchase price of the land. On the finding made by the jury the trial court rendered judgment for the land in appellee’s favor, and appellants thereupon prosecuted this appeal.
    Lane & Lane, of Marshall, for appellants.
    G. L. Huffman and Cary M. Abney, both of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). At appellants’ instance the trial court admitted in evidence two instruments purporting to be promissory notes made by L. W. Lloyd to appellee in part payment for the land in controversy. The notes were dated April 16, 1886, and were for $75 each, payable June 28 and August 28, 1886, respectively. Each of the notes contained a recital as follows:

“This note holds a vendor’s lien on said land until paid, as set forth in the deed of conveyance this day made by said Snider to me.”

On the back of the note payable August 28,' 1886, was an indorsement as follows:

“Received payment. W. C. Snider.”

Having made such proof, appellants asked the court to submit to the jury as issues in the case the following:

“(1) Did L. W. Lloyd make to W. C. Snider the notes read in evidence before you in payment of the land in controversy?
“(2) Did W. C. Snider make a deed to L. W. Lloyd to the land in controversy?
“(3) Did L. W. Lloyd pay to W. C. Snider the purchase money of the land in controversy?”

The refusal of the court to submit the issues indicated to the jury is the basis of the fourth, fifth, and sixth assignments. The assignments will be overruled. It will be seen by reference to the statement above that the jury found that appellee “never received any money from Lloyd as the purchase price of the land,” which was a sufficient answer to the third of the three questions set out above. The first of the other two was immaterial, in view of the fact that there was no evidence that appellee ever saw the notes or knew of their existence. It was not error of which appellants can complain to refuse to submit the other question to the jury, because an affirmative reply thereto would not have been warranted by testimony before the jury. The evidence, aside from the recitals-in the notes, plainly indicated that, if appel-lee conveyed the land to Lloyd, he did not do so by a deed made himself, but did so by a deed Williams made as his attorney in fact. The recitals in the notes would not have warranted a finding that appellee himself made a deed to Lloyd, because as to appellee they were hearsay, and not competent as evidence to show that he had made such a deed. And the fact that the notes appeared to be over 30 years old did not give them value they otherwise did not have as evidence. Mackay v. Armstrong, 84 Tex. 159, 19 S. W. 463; Magee v. Paul, 159 S. W. 325.

There were no subscribing witnesses to the execution by Williams of the instrument dated April 15, 1886, purporting to be a deed conveying the land in controversy from appellee by said Williams as his attorney in fact to L. W. Lloyd, and the execution thereof was never acknowledged by said Williams before an officer authorized to take such acknowledgments. The instrument was admitted to record December 23, 1901, on affidavits made by one Scott and one McO'own November 4, 1901, that they were acquainted with said Williams’ handwriting and believed that the signature to the instrument purporting to be his signature was in- fact his signature. The instrument and the affidavits referred to were not reproduced at the trial, but appellants offered the record thereof in evidence. The court admitted the record so far as it was of the instrument itself, but excluded it so far as it was of the affidavits. The action of the court in excluding the affidavits is assigned as error, but we think it was not. It is evident that the record of the affidavits was offered for the purpose alone of proving that the instrument was in fact executed by Williams. The originals of the affidavits, had they been produced and offered, clearly would not have been admissible for that purpose, because hearsay. If the original affidavits would not have been competent evidence, of course the record thereof was not. If, however, it was error to exclude the record of the affidavits as evidence, it was not an error which entitled appellants to a reversal of the judgment. The most appellants can claim would have resulted, had the affidavits been admitted, is that the jury might have found that Williams did in fact execute the deed as attorney for appellee. Had the jury made such a finding, the judgment should not have been different, in view of the finding that appellee never authorized Williams to convey the land as his attorney in fact.

The record warrants the statement that it conclusively appeared that appellee owned the land in controversy, unless, acting by Williams as his attorney in fact, he had conveyed it to Lloyd. Hence it may be said the testimony presented only two questions for the jury: (1) Did Williams undertake as attorney in fact for appellee to convey the land to Lloyd? (2) If he did, was he then authorized to act for appellee, so as to bind him by the undertaking? The two questions, substantially, were submitted to the jury, and both were answered in the negative. Appellants do not contend that the answers did ' not demand the rendition of judgment in appellee’s favor. They insist, however: (1) That the answers made were not warranted by the testimony; and (2) that the answers probably would have been different, but for the error, they allege, of the court in instructing the jury that the burden was on them (appellants) to establish their defense to appellee’s suit by a preponderance of the evidence, and the further error, they assert, of the court in refusing to instruct the jury that—

“An issue of fact may be proven by circumstantial evidence, or by direct evidence, or by both circumstantial and direct evidence.”

The contentions are overruled. The testimony of appellee as a witness was a sufficient support for the answers the jury made. We do not think the court erred when he told the jury that the burden was on appellants to establish their defense against the recovery sought by appellee by a preponderance of the testimony. Appellee had shown title to the land, and unquestionably was entitled to recover in the absence of testimony showing that he had parted with the title. The burden was on appellants to produce that testimony. That being true, we do not think it was error for the court to so instruct the jury. Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593; Steiner v. Jester, 86 Tex. 415, 25 S. W. 411; Williamson v. Gore, 73 S. W. 563; Chittim v. Martinez, 94 Tex. 141, 58 S. W. 948. As to the refusal of the court to tell the jury that they could predicate a finding on circumstantial evidence, we do not think it at all likely appellants were thereby prejudiced. The jury were, in effect, told to consider that kind of testimony when it was admitted.

There is no error in the judgment, and it is affirmed.
      <&=>For other cases see same topic and KEY-NUMBBR In ail Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    MATAGORDA CANAL CO. v. STYLES.
    (No. 7166.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1918.)
    1. Mandamus <3=v>31 — Compelling Proceeding with Case.
    By Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1595, Court of Civil Appeals cannot issue writ of mandamus to compel district court to proceed with trial of cause pursuant to'law, unless its action in continuing cause amounts to a refusal so to proceed.
    2. Continuance @=>36 — On Couet’s Own • Motion — Discretion.
    Discretion of trial judge in method of control and disposition of docket of his court is large, and, unless continuance of cause on his own motion is so unreasonable as to be clear abuse of discretion, continuance cannot be regarded as refusal to proceed with trial pursuant to law.
    3. Continuance <§=36 — On Coubt’s Own Motion — Discretion.
    Action of trial judge in continuing on his own motion cause involving water rights, until board of water engineers, in pending proceeding, had determined rights of parties, held not an abuse of discretion justifying holding that by order of continuance he refused to proceed with trial purspant to law.
    Application for writ of mandamus by the Matagorda Canal Company against Samuel J. Styles.
    Application denied.
    C. R. Wharton, of Houston, for applicant. Gaines & Corbett, of Bay City, and Wm. H. Wilson, of Houston, for respondent.
   PLEASANTS, C. J.

This is an application to this court for a writ of mandamus to compel the respondent, who is judge of the district court of Brazoria county, to proceed to trial and judgment in a suit in said district court brought by the relator against the Markham Irrigation Company, filed in November, 1917. The nature of the suit and the facts upon which relator asks for a writ of mandamus are stated in the application as follows:

“(a) The Matagorda Canal Company averred: That it was the owner of water rights by statutory appropriation which authorized it to take water from the Colorado river for the purpose of irrigating 4,000 acres of land. That its pumping plant was situated on a tributary of the Colorado river on the east side thereof, and its canals extended to lands east of the river. That its right to use the waters of the Colorado river for irrigation was based upon a statutory filing made in December, 1900.
“(b) That the defendant Markham Irrigation ■Company was a junior .appropriator, and that it, and other defendants named, had constructed an irrigation system on the west side of the river, and above the plaintiff, with canals, intakes, and pumping plants, and that it had so constructed its canals and intakes as to enable it to divert the entire flow of the Colorado river in seasons of dry weather. That it had stopped up natural water courses and drains by which the water would return to the Colorado river from certain lakes and ponds and sloughs on the west side of the river. That through this system of intakes, connections, and canals, the defendants were controlling the entire flow of the river and diverting it through their canals to the irrigation of lands west of the river, so that the plaintiff was unable to procure a sufficient volume of water to enable it to carry on its business as an irrigation system.
“(c) That because of this wrongful diversion the plaintiff had suffered damages in the sum of $26,000 during the years of 1915, 1916, and 1917. That at the time -of the filing of this suit the plaintiff was unable to make arrangements with tenants for furnishing water for the rice crop during the year 1918, since the control of the river by the defendants rendered it impossible for the plaintiff to furnish water to its tenants during the continuation of the conditions complained of.
“(d) That the plaintiffs plant and canal system, together with its water rights, was worth approximately $75,000. That it would be compelled to allow its plant to remain idle as long as the defendants were permitted to continue controlling and diverting the flow of the river as aforesaid. That its only source of revenue was from the sale of water to tenants on its canal. That the wrongful acts of the defendants would not only deprive the plaintiff of revenue, but would cause its property to waste and deteriorate and become worthless; and, in addition to the specific damages sought for prior years, the plaintiff prayed for damages to the extent of the value of its plant, $75,000, or for injunction, and such other relief as would prevent the defendants from continuing their wrongful appropriation and diversion of the waters of the river.”

The defendants answered, filing pleas in abatement and urging that the suit should be referred to the board of water engineers for determination, under the provisions of the irrigation statute passed by the Thirty-Fifth Legislature in 1917.

At the December term of court, the case was called, and the plaintiff announced ready for trial. The defendants, however, procured a continuance on account of the absence of one of their counsel.

The case was again called for trial at the June term of the district court of Matagorda county, and on July 1st the plaintiff announced ready for trial, and the defendant Markham Irrigation Company presented certain pleas in abatement which were heard by the court; and thereupon the court rendered the following order:

“On this day coming on to be considered the-pleas in abatement, motions, and exceptions filed by the Markham Irrigation Company, and the other defendants, and evidence having been offered on the pleas in abatement of the pendency of the same controversy before the board of water engineers of the state of Texas, and the court having considered the same; it is ordered and considered by the court:
“(1) That the pleas in abatement of the Markham Irrigation Company and of the other fle-fendants, of the pendency of the proceeding before the board of water engineers, would be overruled; the court finding that this is not an action of the character defined by the statute, to which the board of water engineers is given exclusive jurisdiction, or over which, under the circumstances of this cause, said board has exclusive jurisdiction, and this court finda that the pendency of the proceeding shown to be pending before the board of water engineers is not sufficient to oust this court of jurisdiction, nor does the pendency of this proceeding before the board of water engineers constitute any ground for the abatement of plaintiff’s suit; to which the said defendants except.
“(2) That the motion of the defendant Markham Irrigation Company, and the other defendants, to transfer this controversy, as to the water rights, to the said board of engineers, would be overruled, to which said defendants except.
“(3) That the other pleas in abatement and the exceptions filed by the defendants would not be passed upon by the court at this time, but would be continued by the court without prejudice.
“(4) That it appearing from an examination of the plaintiff’s and intervener’s petitions, and the answers of the defendants, that the injunction and damages claimed in said petitions would depend upon the ascertainment and determination of the water rights of the respective parties to this suit, and it appearing to the court that an adjudication and determination of these waters is now pending before the board of water engineers of the state of Texas, and that all parties to this suit were parties to and participating in said proceeding before the board of water engineers of the state of Texas, therefore this court, on its own motion, will continue this case until said board of water engineers has decided and determined the water rights of the parties to this suit in the proceeding now pending before that 'board; and said judgment has become final; that this is done by this court as a matter of expediency and in order to have the benefit of the decision of said board of water engineers on that question, and also in order to have the benefit of the evidence taken in that proceeding, and in order to make a more intelligent and accurate decision of the water rights involved in this suit; that this court would not at this time determine whether the ruling of said board of water engineers of the state of Texas would be conclusive or not, the court retaining that question for consideration and determination later.
“To which rulings of the court the plaintiff and intervener then and there excepted, urging as their grounds of exception the following, to wit:
“I. That this suit was instituted in the district court of Matagorda county in November, 1917, for the purpose of recovering the damages that have heretofore been sustained by the plaintiff, Matagorda Canal Company, on account of the diversion of water and other wrongs, injuries, and trespasses fully set out in the plaintiff’s first amended original petition filed herein on January 21, 1918. The suit was instituted with the hope that it could be tried and relief granted at the December term of this court and before the rice crop for the year 1918 would be planted, and counsel for the plaintiff appeared in this court on the 21st day of January, 1918, and announced ready for trial and urged upon the court the importance' of having a trial and disposition of the controversy at that time. The defendants moved to continue the case upon the ground that one of their counsel was unable to attend court, and the court granted a continuance upon this ground.
“II. At that time the plaintiff urged upon the court that the controversies involved in this suit were continually recurring from year to year; that the Matagorda Canal Company was the oldest appropriator of water from the Colorado river in Matagorda county; that, notwithstanding this fact, a condition of affairs had been brought about which rendered it impossible for the plaintiff to plant its crop for the year 1918; that it had no assurance that it would get water to furnish the tenants along its canal on account of the conditions then maintained by the defendants on the west side of the river, and fully explained in the plaintiff’s pleadings; that, if the plaintiff went forward and contracted with the tenants and a crop was planted, it would probably become necessary at the height of the crop season to apply for injunction and other restraining orders to prevent the defendants from diverting water which it would be absolutely necessary for the plaintiffs to have in order to furnish their tenants water to mature any rice crop that might be planted along and upon the canal. Notwithstanding these representations to the court showing the great importance of trying this ease in January, 1918, it was continued because of the illness of one of defendant’s counsel.
“III. The Matagorda Canal Company has not planted any crop during the year 1918, nor has it contracted with tenants contiguous to its canal to furnish water. Because of the conditions prevailing and fully described in plaintiff’s amended original petition, it cannot with safety agree and promise to furnish water through its canal for the very good reason that at a dry season, or at a time when there is a scarcity of water, all the water in the river can and will be diverted to the west side of the river by the defendants, and the plaintiff, though enjoying as a matter of law superior water rights, will be left without water and unable to fulfill any contracts that it might make with its tenants and water users. That it very frequently happens that the dry season of the year is that season just before the maturing of the rice in June, July, and August, and it becomes absolutely imperative to have a supply of water at this critical time in order to mature and save the rice crop. Neither the plaintiff company nor water users along its canal could afford to take the great hazard necessary, including the expense and labor that will be incurred, in planting the rice crop and bringing it to that stage when it would have to have water immediately or be destroyed, under the uncertain conditions prevailing and with the absolute knowledge that if there was a scarcity of water the defendants would divert and use the entire flow of the river for their purposes. Therefore the plaintiff’s canal and pumping plant have remained idle during the year 1918, and will continue to remain idle until this controversy is determined and the defendants have been restrained from diverting and using the water in the river as averred in plaintiff’s petition.
“IV. That the enforced disuse of the plaintiff’s pumping plant and canal system works irreparable injury, in this:
“Its pumping plant consists of valuable machinery which will rust and deteriorate during continued and forced idleness. That any plant equipped with complicated machinery of the character used in a pumping system will deteriorate rapidly from disuse. That its canal will deteriorate more .rapidly if not used. That it has had valuable tenants upon its canal system who will seek other employment and not make contracts with it again, and they will be permanently driven away from its canal by the continued and forced disuse of the canal system.
“V. That the alleged controversy between the board of water engineers is of no importance in determining the questions involved in this suit. That it is indefinite and uncertain when the board of water engineers will pass on the matters before it. That' after long delays they may make a finding under the statute, but this finding will not be binding upon this court, nor conclusive of any of the issues involved in this litigation, and that, if an appeal should be made from the finding of the board of water engineers passing upon any controversies between the parties to this litigation, such appeal would be brought to this court and could not be consolidated with the present case. That this case, under the court’s order, will remain on the docket until a final judgment has been entered in the hearing before the board of water engineers, and in any appeal that may he taken from the findings of that board. That, in the ordinary course of litigation of this character, a hearing before the board of water engineers and final judgment by that board would not likely be had for several months. That an appeal to the district court by either party from a finding by the board might not be heard for a year thereafterwards. That a further appeal from tiiis court to the Court of Appeals and the Supreme Court might delay a final judgment, and the proceedings now pending before the board of water engineers, for a period of from anywhere from five to seven years, during which time the present case remains on the docket, and the plaintiff’s prayer for damages already sustained remains untried, its property deteriorates, its canals fill up, its tenants and water users scatter. These things would amount to a practical destruction of the plaintiff’s properties; although it is the first water user in Matagorda county, the defendants will be permitted to maintain a status unlawfully taken, from which it appears from their pleadings they are raising crops worth from $500,000 to $1,000,000 this year.
“VI. That the plaintiff has a perfect right to have a speedy determination of this ease upon the issues tendered by its pleadings, agreeable to the principles and usages of law. That it works grave injustice and irreparable injury to delay it pending a final judgment in the hearing of the matters before the board of water engineers.
“Wherefore, plaintiff excepts to the action of the court in entering the above order, and here now tenders its bill of exceptions for approval.
“Sixty days after adjournment being allowed to either party in which to file bills of exceptions.
“Approved. Styles, Judge.
“Wherefore, premises considered, the relator prays that this court grant a writ of mandamus to compel said judge of the district court to proceed to trial and judgment in said cause of Matagorda Canal Company v. Markham Irrigation Company et al., agreeably to the principles and usages of law.”

The application is properly verified by the affidavits of the president and the attorney for the relator company.

We are not called upon by this application to construe the irrigation statutes of this state, nor to determine what weight or eon-clusiveness should be given by the courts in a suit of this character to the finding of the board of water engineers upon the respective rights of the claimants to the use of the water of the Colorado river. The trial court has not passed upon these questions, but, in his order continuing the cause, expressly reserves them for determination upon the trial of the cause.

The only question for our decision is whether the action of the court in continuing the cause for the purpose of obtaining the findings of the board of water engineers amounts to a refusal by the court to proceed with the trial of the case agreeably to the usages and principles of law. Unless we so find, this court is without power or authority to issue the writ of mandamus. Vernon’s Sayles’ Civil Statutes, art. 1595; Halliburton v. Martin, 28 Tex. Civ. App. 127, 66 S. W. 675. The discretion of a trial judge in the method of the control and disposition of the docket of his court is large, and unless the continuance of a cause by the judge upon his own motion is, under the circumstances, so unreasonable as to be a clear abuse of his discretion, such continuance cannot be regarded as a refusal to proceed with the trial of the cause agreeably to the usages and principles of law.

We do not think the facts disclosed in the application above set out show such abuse of discretion by the trial judge as would justify this court in holding that by his order continuing the case he had refused to proceed with its trial agreeably to the principles and usages of law. The order recites that it is made as a matter of expediency, and to obtain the benefit of the findings of the board of water engineers upon the respective rights of the parties to the appropriation of the water of the Colorado river. These findings might be of material assistance to the court in determining some of the questions presented in the ease, and this is especially so as to the issue of whether relator is entitled to the injunction which the answer of the respondent shows is one of the purposes of the relator’s suit. It does not appear how long the case will be continued awaiting the findings of the water board, and we cannot presume that the continuance will cause such unreasonable delay as will amount to a denial of relator’s right to a trial of his cause; nor can we presume that, if the water board delays its findings in the matter for an unreasonable length of time, the court will not proceed with the trial without such findings.

After a careful consideration of the application, we have reached the conclusion that it should not be granted, and it has been so ordered.
      (gzxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J. CONNER, O. J.,

text:
    HENDERSON v. BEGGS.
    (No. 8887.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 8. 1918.
    Rehearing Denied Oct. 19, 1918.)
    1. Landlord and Tenant <§=»277(½) — Recovery op Premises — Liability op Lessor.
    Where a lease of office rooms provides for re-entry without notice or demand, if any part of the rent remained unpaid for two days after it is due, a lessor on default in payment of rent for more than two days incurs no liability by ousting lessee from the premises.
    2. Trover and Conversion <§=w7 — Conversion by Lessor — Access to Personal Property.
    A landlord who, after ousting a tenant from the premises for nonpayment of rent, takes possession of the tenant’s personal effects found on the leased premises, and excludes the tenant from access thereto temporarily, ir> guilty of conversion.
    3. Trover and Conversion <®=>22 — «Right op Action — Refusal of Tender as Defense.
    Where a lessor upon ousting lessee from the premises has taken possession of the lessee’s personal property, the lessee did not abridge his rights to recover for conversion by refusing a tender of the property after the conversion was complete.
    4. Limitation of Actions <§p»127(2) — Commencement of Suit — Amendment of PLEADINGS.
    A petition which as against a general demurrer is insufficient to state a cause of action is sufficient to stop the running of limitations if the defects therein are afterward cured by an amended pleading, even though such pleading is filed after limitations have run.
    5. Limitation of Actions €=>127(8) — Commencement of Suit — Amendment of Pleadings.
    In an action by a former lessee against his lessor for conversion of personal property alleged to have been committed by lessor, an amendment to the complaint that the acts were committed by lessor’s agent was not barred'by limitations, although the statutory period had elapsed at time of amendment.
    6. Pleading €fc=o430(2) — Variance—Waiver— Failure to Object.
    In a former lessee’s action against his landlord for conversion alleged to have been committed by the lessor, evidence that the conversion was committed by the lessor’s agent did not constitute such a variance that it could not be waived by defendant’s failure to object.
    7. Appeal and Error @=1041(4) — Review-Harmless Error.
    Where the one object of a trial amendment in a conversion suit was to serve as a basis for proof of its allegations that the conversion was committed by lessor’s agent, error in sustaining an exception to such amendment held) harmless, where proof under the amendment was admitted without objection.
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Action by A. A. Henderson against George Beggs, Jr., for conversion. From a judgment for defendant on an instructed verdict, plaintiff appeals.
    Reversed and remanded.
    James 0. Scott and Stanley Boykin, both of Ft. Worth, for appellant.
    L. M. Levy and W. L. Evans, both of Ft. Worth, for appellee.
   DUNKLIN, J.

George Beggs, Jr., as agent for the owner of a building in Ft. Worth, rented an office therein to A. A. Henderson, a practicing attorney, who occupied it as his law office from November 7, 1914, until February 26,1915, when he was ousted by Beggs, acting through one Taylor, his authorized agent and representative. The reason for such ouster was that Henderson was in arrears with his rent payments in the sum of $8. Taylor had the combination in the lock to the door of the office changed, and the door locked, during Henderson’s absence and without his knowledge or consent; such change being made between the time he closed his office in the afternoon and the time he returned to it the following morning. When Henderson returned on the following morning he attempted to enter the room, but was unable to do so for the reason that the key he carried would not unlock the door on account of the change in the lock. When Taylor changed the lock he took Henderson’s sign from the hall opposite the door and placed it in the room. By reason of the exclusion of Henderson from the office he was excluded also from access to and possession of his library, sign, office furniture, safe, account books, stationery, and overcoat, which were in the office. Later, and during the same day, Taylor tendered to Henderson his overcoat, which was accepted. The evidence shows further that thereafter Beggs offered Henderson permission to take from the room all his personal effects, which offer was declined, and later notified him that all his personal effects found in the office at the time of the ouster had been stored at his expense and subject to his order, but Henderson again declined to receive any of the articles.

Henderson instituted this suit against Beggs to recover the value of the remainder of said personal effects which were in his office at the time he was so ousted of possession, upon the theory and upon allegations that Beggs had wrongfully converted it to his own use. He also sued for damages to his business as a practicing attorney by reason of the ouster of possession of his office and personal belongings contained therein, which was alleged to be wrongful. Upon the trial the trial judge instructed a verdict in favor of the defendant, and from a judgment predicated upon a verdict returned in compliance with that instruction, plaintiff has appealed.

Among other defenses, defendant specially pleaded the written lease under which plaintiff held possession of the room, and claimed justification of the acts complained of by virtue of the following stipulation in the lease:

“If said rent, or any part thereof, shall remain unpaid for two days after it shall become due on the first day of any term of one month; or if said lessee shaft assign this lease, or un-derlet said leased premises, or any part thereof, or if said lessee’s interest therein shall be sold under execution or other legal process, without the written consent of said lessor, his heirs or assigns first had, it shall be lawful for said lessor, or his agents, heirs or assigns, without notice or demand, into said premises to re-enter, and the same to have again, repossess, and enjoy as in his former estate; and thereupon this lease, and everything therein contained on the said lessor’s behalf to be done and performed, shall cease, determine and be utterly void.”

By reason of that stipulation in the lease, and the default in payment of rent noted above, defendant incurred no liability for the ouster of plaintiff from his office room. Singer Sewing Mach. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, 60 L. R. A. 143, 97 Am. St. Rep. 901; Brunson v. Dawson St. Bk., 175 S. W. 438.

But the same cannot he said of the act of the defendant in taking possession of the personal effects belonging to plaintiff situated in the office, and excluding plaintiff of access thereto and possession thereof temporarily, as such acts amounted in law to a conversion, which is defined by Mr. Cooley in his work on Torts (2d Ed.) p. 524, as follows:

“Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.”

Plaintiff owned the right of possession and access to such personal property at any and all times, and the act of the defendant in locking up such property in the room and denying plaintiff access thereto, except by the consent and with the permission of the defendant, certainly was a wrongful exertion of dominion over the property inconsistent with plaintiff’s right of dominion. The stipulation in the lease of the right of the defendant to re-enter the room did not purport to give the right to take possession of plaintiff’s library, furniture, and other personal property therein situated. The plaintiff had the legal right to treat such acts of the defendant as a conversion of such personal property, and to sue for damages therefor and also to refuse the tender of the property to him after the conversion was complete, without in any manner abridging his right to recover damages for the conversion. See Crawford v. Thomason, 53 Tex. Civ. App. 761, 117 S. W. 181, and authorities there cited, in which case a writ of error was denied by the Supreme Court (118 S. W. xv).

In plaintiff’s original' petition it was alleged that the wrongs complained of for which damages were claimed were committed by Beggs, but during the trial of the case plaintiff filed a trial amendment, in which it was alleged that those acts were committed by one Taylor, an employé and agent of Beggs, acting within the scope of the authority given to him by Beggs, and that Beggs was legally responsible to plaintiff therefor. To that trial amendment the defendant filed a special exception reading:

“This defendant specially excepts to said trial amendment for the reason that it appears that the matters complained of in plaintiff’s said second trial amendment occurred more than two years prior to the filing of said trial amendment, and the same is therefore barred by the statute of limitations.”

That exception was sustained by the trial court. But, notwithstanding that ruling, the defendant made no objection to the testimony introduced by the plaintiff, fully proving that the acts complained of, alleged to be a conversion, were in fact committed by Taylor as the agent of Beggs; in other words, the defendant did not object to such testimony, or move to exclude it upon the ground that it was at variance with the allegations contained in the original petition, and that the allegations contained in the trial amendment constituted a new cause of action, which was barred by the statute of limitation. Appellant has presented no assignment of error to the action of the court in sustaining the special exception to his trial amendment, but he has assigned error to the action of the court in peremptorily instructing the jury to return a verdict in favor of the defendant. Apparently, it was the defendant’s purpose in urging his special exception to the trial amendment to present the contention that such an amendment presented a new cause of action which was barred by the statute of limitation, and that the court sustained the exception upon that theory. That ruling of the court was erroneous.

It is a well-settled rule of decisions of the appellate courts of fliis state that a petition which, as against a general demurrer, is insufficient to state a cause of action is sufficient to stop the running of the statute of limitation, provided the defects therein are afterwards cured by an amended pleading, even though such amended pleading is filed after the period of limitation prescribed by the statute has expired. See Killibrew v. Stockdale, 51 Tex. 529, and many other authorities cited in McCamant v. McCamant, No. 8856, 203 S. W. 118, by this court, not yet officially published.

We can see no valid reason why that rule of decisions should not be held applicable in the present instánce.

Furthermore, the variance between the proof that Beggs committed the acts complained of through his agent, Taylor, and the allegations in the petition that he committed those acts himself was not such a fatal variance that it could not be waived by the failure of the defendant to object thereto, since his liability therefor was the same in either instance, and we are of the opinion that it was waived by such failure to urge such objection. See Nimmo v. O’Keefe, No. 8885, 204 S. W. 883, by this court, not yet officially published.

If appellant had assigned error here to the action of the court in sustaining the defendant’s special exception to the trial amendment, the error would have been held harmless, in view of the .fact that the only purpose of the trial amendment was to serve as a basis for proof of the allegations therein contained, and lie was permitted to introduce such proof without objection.

For the reasons indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

CONNER, O. J.,

not sitting, serving on writ of error committee at Austin.
      «§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    FALFURRIAS MERCANTILE CO. v. CITIZENS’ STATE BANK.
    (No. 6106.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Continuance @=>26(11) — Absence of Witness-Diligence.
    In suit to recover balance on check drawn by third person on defendant bank, in refusing continuance on account of absence of drawer of check, whom plaintiff desired to use as witness, trial court held not to have abused discretion; plaintiff having made no effort to take witness’ deposition, though knowing he had moved to another state.
    2. Appeal and Error @=>742(1) — Assignment oe Error — Statement—Necessity.
    An assignment Jof error, not followed by a statement, will not be considered; mere reference to a bill of exceptions in the record not being sufficient.
    3. Appeal and Error @=1002 — Review — Verdict on Conflicting Testimony.
    Court of Civil Appeals cannot disturb verdict of the jury rendered on conflicting testimony.
    4. Trial @=139(1), 140(1) — Province of Jury —Credibility of Witnesses and Weight of Testimony.
    It is the province of the jury to' pass on credibility of witnesses and weight of their testimony.
    5. Appeal and Error @=724(2) — Assignment of Error — Presentation of Abstraction.
    An assignment of error which, with proposition under it, fails to indicate any error of which complaint is made presents a mere abstraction, instead of fundamental error.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Suit by the Ealfurrias Mercantile Company against the Citizens’ State Bank. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Jno. C. North, of Corpus Christi, for appellant.
   FLY, C. J.

This suit was instituted by appellant to recover of appellee the sum of $625, being a balance on a check for $1,960, drawn by M. C. Anderson, in favor of Ramon Garcia, on appellee, and a protest fee of $2.75. It was alleged that the check was cashed by appellant after appellee had promised, over the long-distance telephone, to pay the amount of the check when it was presented, but, when presented, refused payment of the same, and the check was duly protested for nonpayment; that afterwards M. C. Anderson, the drawer, paid $1,335.50 on the cheek, which was credited thereon. Appel-lee answered that cashing of the check was conditioned on the cattle being fat, in payment for which the check was drawn, and upon finding they were not fat appellee at once informed appellant that it would not pay the check. The cause was submitted to a jury by special issues, and upon the answers thereto judgment was rendered in favor of appellee.

Appellant sought to continue the cause on account of the absence of M. G. Anderson, the drawer of the check, by whom he expected to prove that appellee had an agreement with witness to pay the checks of witness drawn to pay for cattle, witness to be the judge of the condition of the cattle and of their value. It was the second application for a continuance. The witness had moved from Texas to Illinois before December 20, 1917, and appellant knew that fact before that date, and yet made no effort to take the depositions of the witness. The continuance was asked on January 18, 1918, at least a month after appellant knew that his witness had left the state. The question in the case was the contract between appellant and ap-pellee, and not what agreement may have existed between Anderson and appellee. The court did not abuse its discretion in refusing a continuance.

The second assignment of error is not followed by a statement, and will not be considered. A mere reference to a bill of exceptions in the record is not sufficient.

There is a conflict in the testimony of the witnesses for appellant and appellee, and the jury credited the witnesses for ap-pellee, and this court cannot disturb their verdict; there being testimony to sustain it. The witness Gannon swore to facts that tended to sustain the defense of appellee. It was the province of the jury to pass on the credibility of the witnesses and the weight to be given .their testimony. The third assignment is overruled.

The fourth assignment of error and the proposition under it fail to indicate any error of which complaint is made. What the error may be is not apparent, and the assignment, instead of presenting fundamental error, presents an abstraction.

The fifth assignment of error is very general, and without a statement does not indicate any error. Reference is made to a statement under the third assignment, but it does not indicate what issues were presented to the jury. It may be stated, however, that the court presented every issue in the case to the jury.

The judgment is affirmed.
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author: RAINEY, C. J.

text:
    MARTIN v. IROQUOIS MFG. CO.
    (No. 8019.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 16, 1918.
    Rehearing Denied Jan. 11, 1919.)
    1. Sales <⅞=>43(4) — Misrepresentations by Seller — Reliance by Buyer — Damages.
    Whether the representations of plaintiff’s agent in the sale of paint as to its qualities, etc., inducing the sale, were believed by the agent to be true or false, the buyer, if in fact they were false and were relied upon by him, was entitled to relief if damaged thereby.
    2. Evidence <®=434(8) — Parol Evidence — Fraud.
    Where fraud exists, a written contract can be proved by parol, though it adds to such writing.
    3. Sales <§=343(2) — Misrepresentations — Avoidance op Contract.
    Whether misrepresentation is intentionally or innocently made, it is the same so far as the effect is concerned, and equally avoids the contract.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by the Iroquois Manufacturing Company against H. G. Martin. From a judgment of the county court, on appeal from a judgment for plaintiff in justice’s court, in favor of the plaintiff, defendant appeals.
    Reversed and remanded.
    W. N. Coombs, of Dallas, for appellant.
    Wm. H. Atwell, of Dallas, for appellee.
   RAINEY, C. J.

The appellee sued appellant in the justice’s court to recover on a verified account for $155.86, being for four barrels of Adamite Black. Appellant answered by verified plea:

“That at the time of the alleged sale by plaintiff to defendant of the Adamite Black as set out 'in plaintiff’s petition, plaintiff by and through its agent represented to defendant that said Adamite Black was a first-class roof paint, and would withstand the conditions of this climate, and that a roof painted therewith would not leak; that the amount ordered by defendant would cover the defendant’s building; that defendant, relying upon said representations, ordered said material through the said agent of plaintiff, and that defendant would not have ordered same but for said representations and his reliance thereon; that on receipt of said paint defendant had same placed on the roof of His said building in good and workmanlike manner, and that said amount so ordered only covered one-half of said building; that said Adamite Black was fairly tried and used, but that same did not turn the water in rainstorms, but, on the contrary, presented no obstacle thereto, and was and is utterly worthless and of no value to defendant.”

Appellee by supplemental petition replied that its agent had no authority to make any representations or guaranties in making the sale, other than that contained in the written order given by the appellant, which order, among other things, stipulated no conditions of sale other than those specified therein, and that, if the same had been properly applied, there would not have been any shortage.

Appellee recovered judgment in the justice court for $75. The case was appealed by appellant to the county court, where judgment was again rendered for appellee for $136, and appellant appeals to this court.

The first error assigned is:

“That the court erred in refusing to permit the defendant to introduce evidence before the jury to establish the facts pleaded by the defendant in bar of plaintiff’s right to recover against defendant, wherein defendant alleged that plaintiff through its agent at the time of the sale to defendant of the Adamite Black represented to defendant that the amount sold to defendant would cover defendant’s building, and that the amount so sold to defendant only covered one-half the building, and that but for said representations defendant would not have purchased same, and, relying thereon, did make said purchase.”

The court excluded the testimony as stated in this assignment of error, and appellant duly excepted by hill, showing that such representations were made by the agent when the order for the material was given, etc.; that the order would not have been given by him had he not believed the quantity was sufficient to cover the roof, and that he was induced by said representations to make the order; and that he relied on said representations and made the order. Appellant pleaded the making of said representations when the sale was made by appellee’s agent, and his acting thereon, and the evidence, if introduced and believed by the jury, was sufficient to defeat appellee’s cause of action, at least in part, on appellant’s plea of failure of consideration. If the representations were made by the agent as stated, it constituted a fraud, and the testimony was admissible for consideration by the jury. Whether or not the agent’s representations were true or false, or whether or not the agent believed them to be so, if in fact they were false, and if the appellant believed said representations and relied thereon in making the or- tier, ■ lie is entitled to relief, if damaged thereby. The plea of appellant alleged facts which constituted at least a legal fraud, and, where fraud exists in a written contract, it can be proved by parol, though it adds to such writing. Jones, Law of Ev. (2d Ed.) § 435. “Texas pursues the equitable rule that, whether misrepresentation is intentionally or innocently made, as far as the effect is concerned, it is the same, and equally avoids the contract. There is no exact or recognized line of demarcation between moral or legal fraud, as it can make no difference, so far as the injury is concerned, whether the complaining party suffers from intentional or innocent misrepresentations which induced him to enter into the contract.” Simians, Contracts and Sales, p. 266.

It seems that appellee was the manufacturer of the Adamite Black, and that appellant was not familiar with it as a roofing.

The court below erred in excluding said testimony, and for that reason the judgment is reversed, and the cause remanded.
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author: BOYCE, J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. BOMAR et al.
    (No. 1409.)
    ('Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Ttctat, <©=3352(5) — Submission of Special Issues — Negligence.
    In an action for injuries resulting to live stock from delay in loading, where plaintiff relies, both on the negligent condition of a switch preventing loading and the muddy condition of the loading pens as distinct acts of negligence, they require submission as distinct and separate special issues unless the pens’ condition is proved merely to show effect of delay.
    2. Trial <§=>352(5) — Special Issues — Negligence. ’
    In an action for damages resulting only from delay in loading cattle, requiring them to remain in the carrier’s muddy pens, .there was no error in not submitting the negligent condition of the pens upon which no independent damage was sought, as special issue where the jury were instructed to determine if such condition caused the delay.
    3. Carriers <3=229(1) — Live Stock — Delat-ed Shipment — Elements oe Damages.
    In an action against a carrier for negligent delay in loading live stock for shipment, the elements of damage would include, both the value of the lost weight and the depreciation in value of the remaining weight.
    4. Trial <g=>350(6) — Special Findings — Live Stock — Refusal.
    In an action against a carrier for damages to live stock from negligent delay in loading, it was proper to refuse to require a finding whether the delay was caused by the weakened condition of defendant’s roadbed from excessive rains, since it might be found that, in the exercise of ordinary care, the carrier should have been provided against such rains, and particularly where the jury found the delay was not caused by an unavoidable accident brought about by heavy and excessive rains.
    5. Trial <§=>240 — Argumentative Instructions.
    In an action for delay in shipment of live stock, where plaintiff relies on negligent condition of switch track preventing loading, an instruction that the degree of diligence required in construction of main track is not same diligence required as to switch track ⅞eM properly refused as argumentative in form.
    6. Trial <§=>194(1) — Instructions — Weight and Effect of the Evidence.
    In an action for delay in shipment of live stock, where plaintiff relies on negligent condition of switch track, preventing loading, an instruction that the degree of diligence required in construction of main track is not the diligence required in construction of switch track Held properly refused, as on the weight of the evidence.
    7. Appeal and Error <§=>1051(1) — -Harmless Error — Opinion Evidence.
    Where plaintiff was qualified to testify as an expert upon cattle values, and accompanied his own to market, and the carrier introduced in evidence the daily market report of sales on that date, plaintiff’s evidence, if inadmissible to show that his cattle would have been the best in their class on the market of that day but for carrier’s delay was harmless where there was other sufficient evidence of value.
    Error from District Court, Foard County; J. A. Nabers, Judge.
    Suit by E. P. Bomar and another against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and the defendant brings error.
    Affirmed.
    L. W. Allred, of Chillicothe, D. J. Brook-reson, of Benjamin, and H. S. Garrett, of San Angelo, for plaintiff in error.
    Berry, Stokes & Morgan, of Vernon, for defendants in error.
   BOYCE, J.

This suit was brought by defendants in error, to recover damages to a shipment of cattle from Crowell, Tex., to Wichita, Kan., over the road of plaintiff in error, the Kansas City, Mexico & Orient Railway Company. Plaintiffs allege that there was a delay of about 24 hours in the loading of their cattle after they had been, under the instructions of the railway company, placed in the stock pens for loading; that such pens were muddy and soft, without facilities for feed and water, and that plaintiffs’ cattle sustained damages by reason of such delay, requiring that they stand for a considerable part of the time in such pens; that the delay was caused by the sinking and spreading of a switch track leading to the stock pens, when it was attempted to be used by the train upon which plaintiffs’ cattle were to be loaded; that the bad condition of such switch track and stock pens was due to the negligence of the railway company. The defendant railway company answered that it had used due care in the construction and maintenance of said switch track and stock pens, and that their condition was caused by an unprecedented rain, and that such condition was in no way due to any negligence on its part. A trial before a jury resulted in a judgment for the plaintiffs and this appeal by the defendant railway company. The allegations of the petition are sufficiently supported by the evidence, and the assignments relate to the manner of the submission of the issues and to the introduction of evidence.

The first assignment complains that the submission of the issue of negligence was too general because the court simply required the jury to find whether the defendant was negligent in any of the respects alleged in the petition. The statute requires that when a case is submitted on special issues, such issues “shall he submitted distinctly and separately and without being intermingled with each other so that each issue may be answered by the jury separately.” It has been repeatedly held that only ultimate issues should be submitted, and not issues on merely evidentiary facts. But there may be more than one ultimate issue of negligence in the same case if different and separate groups of facts are relied on as constituting separate and distinct acts of negligence for which recovery might be had, independent of the other. The condition of the switch track and that of the stock pens are distinct, and liability for results of negligence in the maintenance of either might exist, independently of the other. As a general rule, we should say that, where these two different conditions are relied on for recovery of damages in the same case, there are two separate and distinct issues of negligence that should be submitted separately. Dallas Hotel Co. v. Fox, 196 S. W. 652; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a.

We are of the opinion, however, that in the case before us it does not appear probable that any harm has resulted from this method of submission of the issue. Plaintiff’s petition shows that the allegations as to the condition of the pens were made more for the purpose of showing the effect of the delay in shipment on the cattle than as affording an independent ground of recovery, and the charge of the court sharply emphasizes this, for following the submission of this issue of negligence issue No. 2 was submitted:

“If you answer ‘yes’ to the last question, then say whether or not such negligence, if such there was, .proximately caused the delay in the shipment of said cattle.”

These issues were followed by issues submitted for the purpose of determining the damages resulting from such delay. The basis of the recovery, therefore, appears to be in the delay with the muddy condition of the pens merely an incident, for which no independent recovery was authorized. The condition .of the pens, of course, had nothing to do with the delay. If the delay was negligent the damages suffered by the cattle while being held on account thereof would be recoverable whether or not there was any negligence in respect to the condition of the pens. Under these circumstances we do not think there was any reversible error committed by the court in this matter.

The second assignment and the first proposition under the third assignment present similar objections to the submission of the second issue quoted above, and the third issue, based on these two, and these assignments are overruled for the same reason given in consideration of the first assignment.

It was pleaded, and evidence offered in support thereof, that the delay caused the cattle to lose about 6 per cent, more in weight than they otherwise would have done, and that in addition to the loss in weight, the condition of the cattle was such that they were worth on the market and sold for about one-half cent per pound less than they would have done had they arrived in the condition they would have arrived but for the delay. By the third, fourth, fifth, and eighth assignments it is complained that the jury were not instructed, on the plaintiff in error’s request, that recovery could not be had for both the loss in weight and the bad appearance of the cattle, but were required to find whether the negligent delay proximately caused a diminution of the market value of said cattle at Wichita, Kan., “because of their appearance of loss of weight.” The value of the cattle on the market at Wichita was fixed by price per hundredweight. If the delay caused a loss in weight and this loss in weight or other conditions resulting from the delay for which defendant was responsible caused the remaining weight, on account of the appearance of the cattle, to be worth less on the market than it otherwise would have been, it seems perfectly obvious that the practical elements of damage would include both the value of the lost weight and the depreciation in value of the remaining weight. P. & S. F. Ry. Co. v. Harp, 193 S. W. 438. We, therefore, overrule these assignments, as well as the eleventh and twelfth assignments, which for the same reasons assert that the verdict of the jury is excessive, in that double damages were allowed.

We do not think there was any error in the refusal of the court to submit the following issue, requested by plaintiff in error:

“Was the delay in loading and shipping the cattle in controversy out from Crowell caused by the weakened condition of the roadbed of the defendant brought about by reason of excessive rains?”

No judgment could have been rendered on an answer to such issue, because the mere fact that the slipping of the track .was caused by excessive and unusual rain would not necessarily excuse the railway company, as it might reasonably have been found that the railway company, in the exercise of ordinary care, should have taken steps to provide against the effect of such rains. Ft. Worth & Denver City Railway Co. v. Atterberry, 190 S. W. 1133; G., C. & S. F. Ry. Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722. The defendant had pleaded that the rains were unprecedented, but the evidence was insufficient to support such allegation. The court, at the request of the railway company, did submit the following issue:

“Was the delay at Crowell, in the loading and moving out of the cattle in controversy, caused by an unavoidable acciuent, brought about by heavy and excessive rains?”

To which the jury answered, “No.” This was sufficient, we think.

By the ninth assignment the plaintiff in error complains of the refusal of the court to instruct the jury that the degree of diligence required by the railway company in the construction and maintenance of its main line track is not necessarily the same degree of diligence required in the construction and maintenance of the loading switch, as to which it was only required to construct and maintain such switch in such condition as would make it reasonably safe for the purposes for which it was intended to be used, and under such conditions as might be reasonably anticipated. If it be conceded that this charge states a correct proposition of law, it is argumentative in form and on the weight of the evidence, and was properly refused.

By the tenth assignment objection is made to certain testimony given by plaintiff Bomar, to the effect that with a good ordinary run these cattle would have been the best cattle in their class on the market of that day. The objections urged to this evidence are that it is an opinion and conclusion on a question of fact, and that it institutes an inadmissible comparison, and that, even if a comparison was admissible under proper circumstances, it was not so here, because the conditions of shipment were not shown to be the same. The daily market report covering sales of that day on this market had been introduced in evidence by the railway company, which report gave weights and prices per hundredweight of many cattle sales made on that date. The witness Bomar accompanied this shipment, saw his own cattle and the other cattle that were on the market on that date, and no question is made as to his qualification to testify as an expert as to values, etc. The record shows that plaintiff’s cattle were sold by the hundredweight on this market, and the daily market reports were doubtless introduced for the purpose of showing the value of plaintiff’s cattle by comparison. In view of these facts we are inclined to think that the evidence was admissible for the purpose of showing to what extent the representative sales quoted in the report might be considered as determining the value of the plaintiff’s cattle. At any rate, several witnesses testified to the value of plaintiff’s cattle in the condition in which they did arrive and in the condition in which they would have arrived but for the delay. So that there is ample testimony as to values to' support the verdict of the jury, and we do not think that the admission .of this testimony, if it was inadmissible, was harmful.

Affirmed.
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author: LEVY, X

text:
    WILLIAMS v. OGERLY.
    (No. 1976.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 27, 1918.)
    Appeal and Erroe i@=31010(1) — Review — Findings of Fact.
    The court’s findings of fact, not being entirely unsupported by or contrary to the evidence, will not be disturbed on appeal.
    Appeal from District Court, Fannin County.
    Action by B. H. Williams against Charles Ogerly. From an adverse judgment, plaintiff appeals.
    Affirmed.
    Appellant brought the suit against the ap-pellee to recover the sum of $1,900, alleged to be due and owing as the balance of the purchase price of a certain tract of land sold by the appellant to the appellee. Appellant in the petition asked that an equitable lien be fixed and foreclosed on the land. The ap-pellee answered by denial, and specially averring that the real consideration agreed to be paid for the land was $10 an acre for the tillable land, and a certain sand bar to be conveyed free of charge. And by cross-action the appellee sought to recover the sum of $1,349.50, alleging that the appellant represented that there were 352½ acres of tillable land, while the survey on the ground showed only 219 ½ acres.
    The court made the following findings of fact:

      “(1) I find that the deed from the plaintiff to the defendant, of record in Book 140, page 562, of Fannin County Deed Records, does not state the actual consideration.
    “(2) I find that the real consideration for the execution of said deed was the payment by the defendant to the plaintiff of $3,525, with the agreement between said parties that if such parts of such land as designated in the memorandum in writing of date February 19, 1916, signed by the plaintiff and introduced in evidence, should measure more than 352½ acres, then defendant was to pay for any excess of such land at the rate of $10 per acre.
    “(3) I further find that under such trade and agreement plaintiff was to convey to defendant all of the sand bar and untillable lands, not embraced in such memorandum agreement, free of charge.
    “(4) I find that of the tillable land, as specified in said memorandum agreement, there are only 219½ acres.”
    On these facts the court entered judgment denying the plaintiff a recovery against the defendant, and denying the defendant a recovery on his cross-action against the plaintiff. The plaintiff appeals.
    There is evidence warranting the findings of fact made by the court, and they are here sustained.
    B. B. Sturgeon, of Paris, for appellant.
    0. A. Wheeler and Cunningham & McMahon, all of Bonham, for appellee.
   LEVY, X

(after stating the facts as above). The appellant’s assignments of error challenge the findings of the trial court as being contrary to and unsupported by the evidence. After a careful review of the evidence in the record, it may not properly be said, we conclude, that the court’s findings of fact are either so entirely unsupported by or contrary to the evidence as to warrant setting them aside. And it is further concluded that the judgment entered by the court was in accordance with the proper legal effect attaching to the facts found by the trial court.

There being no reversible error in the record as complained of, the judgment is affirmed.
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