author: HENDRICKS, J.

text:
    FENNIMORE v. INGHAM et al.

    (No. 880.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1915.
    On Motion for Rehearing, Jan. 12, 1916.)
    1. Deeds <&wkey;32 — Deed in Blank — Construction as Power — “Power Coupled with an Interest.”
    Where the vendor of land gave a deed without filling in the name of the grantee, with the understanding that the purchaser could insert the name of the purchaser from him, such deed was a “power coupled with an interest” vested by the vendor in the purchaser for the latter’s benefit, and therefore irrevocable, which passed to successive purchasers, the fourth purchaser •whose name was inserted as the grantee became the owner.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 64; Dec. Dig. <&wkey;>32.
    For other definitions, see Words and Phrases, First and Second Series, Power Coupled with an Interest.]

      2. VENDOR AND PURCHASER <&wkey;254r — 'VENDOR’S Lien — Connection ox Vendor with Record Title.
    A vendor gave a deed with power to the purchaser to fill the blank left for the name of the grantee with the name of the purchaser’s grantee, and after successive sales by delivery of the blank deed the name of the last purchaser was inserted, on his giving a note for the price to his vendor, and the deed recorded. Held, that the implied vendor’s lien in favor of the last grantor was not defeated by the fact that his name was not connected with the record title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 627, 634, 641-649, 651; Dec. Dig. <®=»254J
    3. Vendor and Purchaser <&wkey;261 — Vendor’s Lien — Right ox Assignee ox Purchase-Money Note.
    An equitable lien in favor of the vendor of land taking a purchase-money note exists in favor of his assignee of the note, as the lien follows the debt.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. c&wkey;>261.J
    4. Vendor and Purchaser <&wkey;266 — Vendor’s Lien — Right ox Assignee ox Purchase-Money Note.
    The implied equitable vendor’s lien arising in favor of a vendor of realty, taking a purchase-money note, is not waived by the substitution of a third person for the original vendól-as payee of the note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. <§=v>266.]
    5. Vendor and Purchaser &wkey;>228 — Vendor’s Lien — Notice ox Incumbrance.
    A person who purchases realty with notice of the existence of an implied vendor’s lien is not protected as an innocent purchaser.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. &wkey;228J
    On Motion for Rehearing.
    6. Vendor and Purchaser @=^254 — Vendor’s Lien — Equitable Character.
    An implied equitable lien in favor of the vendor of realty taking a purchase-money note arises incidental to the contract of sale, on the equitable principle that when a vendor sells bis land upon a deferred consideration he is entitled to a lien, which equity, not the contract, by virtue of the transaction creates in his favor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 627, 634, 641-649, 651; Dec. Dig. &wkey;3254J
    7. Vendor and Purchaser <&wkey;231 — Record-Notice.
    A recorded deed is constructive notice only of the facts which it recites, but a party is chargeable with notice of what a reasonably prudent person, with knowledge of the facts, rfould have ascertained by inquiry, where he has actual knowledge of a deed or its record.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dec. Dig. <&wkey;>231.]
    8. Vendor and Purchaser <®=»239 — Vendor’s Lien — Innocent Purchaser xor Value.
    Where the seller and buyer of land released the purchase-money note of record, though the seller previously had transferred it to a third party, one buying the land from the record without actual knowledge of the existence of the note or an equitable vendor’s lien did not hold the land' subject to any lien in favor of the transferee of the note from the original seller.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. &wkey;239.]
    Appeal from District Court, Lipscomb County; Frank Willis, Judge.
    Suit to foreclose a vendor’s lien by N. Fennimore against G. B. Ingham and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    Adkins & Sewell, of I-Iiggins, for appellant. H. E. Hoover, of Canadian, "for appellees.

      Application ior writ of error pending in Supreme Court.

   HENDRICKS, J.

In February, 1912, one Mark Bishop was the owner of 160 acres of land situated in Lipscomb county, Tex., and on that day executed a deed of conveyance for a consideration of $2,000, recited to have been paid, with the name of the grantee left blank in said deed. One Sam Wilson was purchaser of this land, and the agreement between Bishop and Wilson was that the deed executed in blank was for the purpose of permitting Wilson to either insert his own name or the name of the party to whom he might sell the land, as grantee. Bishop was paid in full for said land, and never thereafter asserted any claim upon the same. Wilson thereafter sold said land to one John Coker, delivering the Bishop deed to Coker, with the name of the grantee still remaining blank. Coker traded the land to one G. B. Ingham, in December, 1912, for a consideration of $550, evidenced by a note, on its face a vendor’s lien, due in two years from date, with 8 per cent, interest. The same deed, executed by Bishop, when he sold the land to Wilson, was delivered by Coker to Ingham, and the name of Ingham was inserted as the grantee in said deed. Ingham, for the consideration “of one dollar, and other valuable considerations,” sold and conveyed the same land to one William B. Howe. This deed contained the following recitation:

“The above-described land is free, clear and unincumbered, except as herein stated below as follows, to wit: Cue vendor’s lien note for the sum of $550.00, dated Fargo, Oklahoma, December 7, 1912, due in two years from date thereof, bearing interest at the rate of eight per cent, per annum from date, and payable to one John Coker.”

Upon the 1st day of October, 1913, Eli C. Gray, purchased the same quarter section of land from Howe, receiving a conveyance of same, for the cash consideration of $100, and at that time the deed from Ingham to Howe was of record in Lipscomb county. Previous to the purchase of the land by Gray from Howe, Coker, the owner of the $550 note, executed by Ingham to him for the land, transferred said note, by blank indorsement, to appellant, N. Fennimore, who brought this suit against Eli G. Gray, for the foreclosure of the vendor’s lien upon said land. The trial court peremptorily instructed the jury to return a verdict in favor of tire defendant Gray, denying plaintiff, Fennimore, a foreclosure of his lien; and this action of the trial court is assigned in this court as error.

When Mark Bishop sold the land to Wilson, upon the understanding that the latter could insert the name of the purchaser from him in the deed as his grantee, this was a power coupled with an interest vested by Bishop in Wilson for the benefit of the latter, and is therefore irrevocable (Threadgill v. Butler, 60 Tex. 601); and when Wilson, with this deed, with the name of the grantee left blank, sold the land to Coker, the same power, by implication, was evidently vested, and was intended to vest, in the latter, when the deed was delivered in that condition. When Coker sold his land to Ingham for the sum of ¡¡¡550 evidenced by the execution and delivery of the note mentioned, and the name of Ingham was inserted as the grantee, the whole title to the property passed to him, divesting all equitable interests of the previous vendors of the land on account of their having been paid for said land. Schleicher et al. v. Runge, 37 S. W. 982; Threadgill v. Butler, 60 Tex. 599; Delvin on Deeds, vol. 1 (3d Ed.) § 457, p. 792. This last authority says:

“Where the name of the grantee is left blank in a deed, executed and delivered (with parol authority to insert the name of the grantee), it will vest title in any person whose name may afterwards be inserted in the blank by the person who received the deed, or by any subsequent holder of it.”

The appellee argues that there is no lien, either implied or expressed:

“The most familiar illustration of the equitable lien is the vendor’s lien, which is a lion given to a vendor of real estate, who has executed an absolute deed, without having received the purchase money, and this lien arises even though the recital in the deed acknowledged the receipt of payment, if in fact it was not received. Brandenburg v. Norwood, 66 S. W. 587; Springman v. Hawkins, 52 Tex. Civ. App. 249, 113 S. W. 966; Marshall v. Marshall, 42 S. W. 354; Houston v. Dickson, 66 Tex. 79, 1 S. W. 375; Baker v. Compton, 52 Tex. 252.” Simpkins on Equity, p. 338.

We know that this lien has always been favored by the courts of this state, not as a creature of contract, but as incidental to the same, as an equity for the reason that one who purchases another’s land for a deferred consideration should pay for it. Same authority, supra.

This record is conclusive that Eli O. Gray, before he purchased the land from Howe, was acquainted with the recitation with reference to the vendor’s lien note contained in the deed from Ingham to Howe. The argument that Coker, who is recited to have been the payee of the note, was not connected with the title to the land of record, has no application to this character of case. The well-known authority of Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, and like authorities cited in the brief, are not pertinent.

The equitable vendor’s lien exists in favor of the assignee of the note and the lien follows the debt. Elmendorf v. Beirne, 4 Tex. Civ. App. 188, 23 S. W. 315; Flanagan v. Cushman, 48 Tex. 244; McCamly v. Waterhouse, 80 Tex. 340, 16 S. W. 19; Hamblen v. Folts, 70 Tex. 132, 7 S. W. 834; Polk v. Kyser, 21 Tex. Civ. App. 676, 53 S. W. 87; Neese v. Riley, 77 Tex. 351, 14 S. W. 65; Russell v. Kirkbride, 62 Tex. 455.

This implied equitable vendor’s lien is not waived by the substitution of a third person for the original vendor as payee of the note given for the purchase money. Irvin v. Garner, 50 Tex. 54, and cases cited.

One who has notice of the existence of this implied vendor’s lien is not protected as an innocent purchaser. Senter v. Lambeth et al., 59 Tex. 259; McAlpin v. Burnett, 19 Tex. 498. The McAlpin-Burnett Case cited holds that the bona fide holder of the note payable to bearer, and transferred to him by delivery, can enforce the lien, and Justice Boberts also says:

“Though. the vendee sell the land to a third person, it is still liable, if his vendee had notice of the lien, either actual or constructive.”

Equity does not look to form, but always to the substance of a transaction. It is, of course, true that Mark Bishop was not the beneficiary of the lien — he had been paid in full. However, when Coker, having the irrevocable power coupled with an interest and the equitable right to the land, used the same deed for the purpose of conveying this interest to Ingham and inserted Ingham’s name in the deed, it was just as much a sale and conveyance of the land as though Wilson had previously inserted his name as grantee in said deed, and the latter had then sold the land to Ingham by a separate conveyance for the consideration of the $550 vendor’s lien note. We are not holding that this note represents an express vendor’s lien, though it is recited in its face that one is retained in the deed. We think the note, however, represents an implied vendor’s lien on account of the sale of the land from Coker to Ingham, passing the title and equity, regarding the substance of the transaction and not the form. When Gray was put upon notice that there was a vendor’s lien note outstanding which the land was incumbered with, payable to one John Coker, he had knowledge of a fact which theoretical considerations of our registration statutes could not destroy.

It is said that Bishop, in his agreement with Wilson, limited the power of Wilson to the insertion of the name of his purchaser, as grantee, in the blank space, and that the deed could not be used by subsequent purchasers and grantees in passing equitable interests. Properly analyzed, Bishop simply testified that his agreement with Wilson was that the latter could insert the name of his grantee in the deed — nothing was said about any limitation. When Bishop delivered this deed in blank and was paid in full, he was eliminated. Wilson then had the only real interest in the land. When Wilson delivered the same deed in blank and was paid in full, clearly by implication, he intended that Coker could insert the grantee’s name. When Ing-ham bought the land with his name inserted in the deed, he procured the whole title. With Gray purchasing this land upon full notice that an outstanding lien in favor of a man by the name of Coker was existent, Fen-nimore, and not Gray, should have had the peremptory instruction. The cause is reversed and rendered in Fennimore’s favor for the amount of the debt, interest, and attorney’s fees, and the foreclosure of the vendor’s lien. Reversed and rendered.

On Motion for Rehearing.

Appellee misconceives the real holding in this case. We did not hold, nor intend to hold, nor did we intend to suggest, that the recitals in the note actually created the equitable vendor’s lien. Our opinion may not have been as adequately clear and expressive as it should have been. We will repeat, however, that an implied equitable lien arises merely incidental to a contract, on the equitable principle that when a vendor sells his land upon a deferred consideration, he is entitled to a lien which equity, not a contract, by virtue of the transaction creates in his favor. We acknowledged fully that Bishop had been paid for this land when Coker used his deed, with the name of the grantee left blank, in order to sell the land to Ingham. Coker, however, was the equitable owner of this land, which in law, divested of form, made him the real owner; no other person having a charge upon it. When he sold the land to Ingham and the latter executed a note which fully described the real estate, acknowledging that he owed so much money to Coker, the latter had an equitable vendor’s lien as security for the payment of that debt. When Ingham sold to Howe, the latter acknowledged the existence of the equitable vendor’s lien as a charge upon the land, in favor of Coker, and this recitation was read to Gray over the telephone by the county clerk of Lipscomb county. Coker’s disconnection with the record title is wholly immaterial — Gray knew as an actual fact that Coker had a note for the payment of which the land stood charged. As an original proposition to say that, because a note is payable to some one not connected with the chain of title, though it is expressed in a deed in the chain of title there is a lien or a charge existent for the purpose of paying that note; that such third party would not have a lien —we will not argue nor cite authorities to support. It is, of course, true that a recorded deed is constructive notice only of the facts it recites. That principle is applicable to constructive notice only. There is a notable exception that a party is chargeable with notice of what a reasonably prudent person, with knowledge of the facts recited would have ascertained by inquiry where the party had actual knowledge of the deed or its record. Neyland v. Lumber Co., 26 Tex. Civ. App. p. 421, 64 S. W. 696, and numerous cases cited.

When Coker, who was the real owner of this land, used Bishop’s deed and sold the same to Ingham, and Ingham executed the note in controversy, which on its face is a negotiable note and transferable in the commercial world for all legitimate purposes, Gray was charged with that note, as long as he was not excused either by the record or by other sufficient aliunde facts, to constitute him an innocent subsequent purchaser. Of course if Coker and Ingham had released this note of record, though Cokef might previously have transferred it to Fennimore, and Gray, as a subsequent purchaser, bought from the record, without actual knowledge of the existence of the note, or of an equitable vendor’s lien, Fennimore would have been out, and that is the scope and import of the holding of the Supreme Court in Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54. In Drumm Com. Co. v. Core, 105 S. W. 843, 47 Tex. Civ. App. 216, the previous vendor and vendee assured Core that the notes had been destroyed, and the vendee reconveyed back to the vendor and the vendor then conveyed to Core. What possible application this line of authorities could have to this character of case is beyond us. It is necessarily true that when one has an equitable right, disconnected from the record, another, who purchases the apparent title, is not affected. Spencer v. Jones, 92 Tex. 519, 50 S. W. 118, 71 Am. St. Rep. 870. If the party knew the equitable agreement or right inhering in a third party as affecting the land, though entirely separated from the record, the land would be purchased burdened. Same case.

Gray’s trouble is he is not a subsequent innocent purchaser under the statute; the lien in this case had been created by virtue of the actual sale of the land by the real owner. Gray had actual knowledge that the land was charged with a lien, and that a note was outstanding. It is not the deed that creates the equitable lien, strictly speaking. It is equity, originating it on account of the transaction. The lack of a written assignment of this note which carried the lien to Fennimore has not the slightest pertinency in so far as divesting Fennimore’s rights are concerned. Fennimore received what Coker possessed. Gray, knowing that a note was outstanding, is charged with notice of everything it contained with reference to the obligation of payment. According to the stipulations of the note, the interest was figured correctly.

The motion is overruled.
      (gs^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g£»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    LOFLAND v. GREENWOOD.
    (No. 877.)

    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1915.
    On Motion for Rehearing, Jan. 12, 1916.)
    1. Principal and Agent <&wkey;156 — Agency to Show Land.
    Where defendant authorized B. to show lands, to be exchanged, to plaintiff, but did not authorize him to point out the boundaries, telling him to take plaintiff to C., who should do so, and C. pointed out the boundaries, although C. was not authorized by defendant to act for him, his act in pointing out the boundaries at the instance of B. thereby became B.’s and defendant’s representation.
    I Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. &wkey;> 156.]
    2. Appeal and Eeeoe <&wkey;931 — Pbesumption —Making oe Findings.
    A Court of Civil Appeals is authorized to presume, in support of the judgment below, that the trial court made findings proper under the facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. &wkey;931.]
    3. Appeal and Eeeoe <@=31070 — Suppoet oe Judgment Below — Elimination oe Finding.
    Where all the essentials upon which the merits of appellee’s case depended were found by the jury, the Court of Civil Appeals will support the judgment by eliminating a superfluous finding upon an immaterial issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <@=^ 1070.]
    4.Appeal and Error <@=3931 — Failure to Request Issue — Pbesumption.
    Where defendant failed to request that an issue be submitted to the jury, the presumption on appeal is that he consented to the court’s finding the fact with reference to the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. <@=3931.]
    5.Exchange of Property <&wkey;8 — Deficiency —Sufficiency of Evidence.
    In an action for a deficiency by plaintiff who exchanged his realty at a valuation per acre for defendant’s, evidence held sufficient to sustain the finding that plaintiff lost the land.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <@=>8.]
    6.Appeal and Eeeoe <&wkey;1003 — Review — Conflict in Evidence — Vebdict.
    The question which party is favored by the preponderance of the evidence on an issue is finally settled by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. <@=3 1003.]
    On Motion for Rehearing.
    7. Principal and Agent <&wkey;156 — Agent to Show Boundaries.
    Where the owner of land sent one wishing to exchange his own lands for it alone to a third person for information upon which to act as to the boundaries of the land, and the third person pointed them out, and the party dealing with the owner acted on such information, the owner is liable for damages occasioned by any false indication of the boundaries.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dee. Dig. <@=3 156.]
    8. Appeal and Eeeoe <&wkey;930 — Support of Judgment.
    It is the duty of the Court of Civil Appeals to sustain the jury’s verdict and the judgment below when it can be done upon a reasonable interpretation of the findings and facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey; 930.]
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Action by J. W. Greenwood against J. C. Lofland. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. A. Simpson, of Clarendon, H. D. Spencer, of Memphis, and J. Marvin Jones, of Amarillo, for appellant. Martin, Kinder, Russell & Zimmermann, of Plainview, for appellee.

      Application for •writ of error pending in Supreme Court,

   HUFF, C. J.

This action was instituted by appellee, Greenwood, against appellant, Lof-land, for damages alleged to have been occasioned in conveying to appellee by appellant 480 acres of land by deed, when in fact there was only 334 acres in the tract which passed by the deed. That the 480 acres conveyed was covered in part by 146 acres of an older survey, and that the superior title to such land was in one J. W. Riclis, who had taken possession and fenced same, and that the title, possession, and value thereof was totally lost to appellee. That Lofland, through his agents, showed the land on the ground to appellee and represented to him that certain fences were on the true boundary lines, pointing out the lines upon the ground. That in truth and in fact the fences so pointed out were not on the true line; that these representations were fraudulently and falsely made, and that appellee relied thereon and was induced thereby to exchange other lands for said land of the value of $9,600, and accepting a conveyance to the 480 acres, but that he got title and possession to only 334 acres, of the value of $6,680. That the 146 acres, it is alleged, was out of an older survey, lying upon the south one-half of the section out of which appellee’s deed called for the 480 acres. The land lost was 1,166.4 varas by 691 varas out of the south half of the section. That the consideration paid for the land was $20 per acre, which was its reasonable market value, and by reason of the false representations above set out, appellee was damaged $2,920.

The case was submitted upon special issues and upon their findings, judgment was entered in favor of appellee for $3,971.20, being the damages found, with interest thereon, up to the rendition of the judgment.

Assignments 1, 2, 3, and 4 assert that the court was not authorized in rendering judgment for appellee upon the findings of the jury for the reason that the cause of action was based upon the representations made by J. H. Brumley and G. H. Crawley, as the agents of appellant, as to the boundaries of the land, and that the jury found that Craw-ley was not authorized by appellants to act for him in pointing out the fences and boundaries, and that there was no finding that Brumley made any representations as to the lines and boundaries, and that the answers of the jury are contradictory. Issue No. 5 is as follows:

“At the time said Crawley made said statements and pointed out said linos, was the said C. H. Crawley authorized by the said J. C. Lof-land to act for him in so stating?”

The jury answered, “No.” The facts show in this case appellee and appellant exchanged property; that J. H. Brumley was the agent and medium through whom the exchange was effected. Appellee’s lands were in Hall county, and appellant’s lands in Swisher county, which is the land over which the controversy is pending. Brumley received 2% per cent, commission from appellee, and 2% per cent, from appellant in effecting the exchange. The facts will support a finding by the trial court that appellee had not seen the land, and that Brumley took him to see the land at appellant’s request. That appellant directed Brumley to call upon Crawley, who was on the land, to point out the land and show it to them. There were two sections in the trade other than the 480 here in question. Brumley and appellee did call upon Crawley, and if appellee’s testimony is true, the boundaries of the land were pointed out as being on the fences then pointed out. Brumley was with appellee and Crawley for the purpose of showing the land, and upon these representations appellee purchased the land. He knew nothing of the fact at that time that the land belonging to Ricks jutted into or took out of the corner 146 acres. He was not then so informed, so he testified, and the jury so found. The jury found that appellant authorized J. H. Brumley to show appellee the three-fourths out of section 130, block M-10. They also found that the boundaries of section 130 were pointed out to appellee according to the fence lines at the time appellee was contemplating acquiring the land, and that C. H. Crawley told appellee that the fences around said section No. 130 were the boundaries of said section. They answered issue No. 5 as above set out.

Issue No. 6 is as follows:

“At the time J. W. Greenwood and J. H. Brumley came from Memphis, Tex., to Swisher county, Tex., to look at section 130, did the said J. C. Lofland direct J. W. Greenwood or J. H. Brumley to have C. H. Crawley show the said Greenwood section 130, together with other lands owned by the said J. C. Lofland?”

The jury answered, “J. W. Brumley was previously so instructed.”

It is asserted by appellant that the anwers of the jury to the fifth and sixth issues are conflicting, and the court could not render judgment thereon. We are inclined to think they are not so conflicting as to require a new trial. Brumley was the agent of appellant, who at his instance took appellee to show him the land. Brumley was directed to call in Crawley to show the land. This Crawley did at Brumley’s request. In other words, Brumley was directed and authorized to show the land, and he was instructed how to get his information by appellant, and, pursuant to that instruction, he showed the land as appellant had directed, thereby deceiving ap-pellee. The jury, by their answer to the fifth issue simply found Lofland did not authorize Crawley to act for him. This answer does not negative the authority of Brumley to call upon Crawley to show it. In fact, appellant did not give any authority to Crawley, but the authority was given to Brumley to give to appellee the information, and that he, Brumley, could use Crawley for that purpose. Crawley was not acting for appellant, but Brumley was, and by the use of Crawley, he (Brumley) made the representations for appellant to appellee. If appellant had directed Brumley to show certain corners or marks and Brumley did so, he would be acting for appellant under his authority, and the marks so shown would be appellant’s representation. Instead of this, appellant authorized Brumley to use a person to represent the marks. This Brumley did. The act of such person thereby became Brumley’s representation as well as that of appellant. No authority could properly be said to have been given Crawley under such circumstances to act for appellant, but when he made said designations, Brumley was authorized to adopt them for the purpose of his agency and authority to effect the trade. This appellant and Brumley did, and this, we think, they could do without ever having previously given any authority to Crawley to act. While there is no specific finding by the jury that Brumley pointed out the lines, he had the authority to do so and was authorized to get Crawley to do so, which he did. The trial court was, we think, authorized from the facts to find that Brumley did point out the lines. He was present at the time; he went for that purpose, and, according to appellee, was with him when the lines were shown and the fences designated as the lines. Brumley was the agent authorized to show them, and it does not make any difference what method he adopted in doing so —whether by Crawley or by his own words or acts. The method he adopted served its purpose and procured the trade. It makes no difference whether he knew the truth or not at that time; he made Crawley’s acts his acts, and it was those acts that deceived and that effected and produced the damages by which appellant procured over $2,900 more of appellee’s property than he was justly entitled to.

The court, in the absence of a special finding by the jury, could find from the facts in this case that Brumley did actually point out the fences and the lines, and, if necessary to support the judgment, we are authorized to presume the court so found. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132. We regard it as immaterial whether Crawley was authorized or not, if he was used by appellant or Brumley, to point out the lines to ap-pellee. They got the benefit of his act, and by reason thereof, deceived appellee. Under the other findings, by the jury, the fifth issue would be on an immaterial issue in our judgment. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311. All that was essential upon which the merits of appellee’s case depended, we regard as having been found by the jury, and, eliminating the fifth issue, a judgment could be found that appellant made the representations charged. O’Brien v. Hilburn, 22 Tex. 616.

The fifth issue does not contradict the fact found that Brumley was authorized to show the land, and that he called upon Crawley to do so, and that Crawley did do so, and the facts as above suggested are sufficient to warrant the finding by the court that Brum-ley was present and pointed out the land, and that he accompanied appellee for that purpose.

The fifth and sixth assignments complain at the action of the court in rendering judgment because there was no issue submitted and no finding that appellant lost the land. The fifth assignment, to the effect that the court erred in reciting in the judgment that it was admitted that the appellee lost title because there was no such admission made. This is evidently an error on the part of appellant. The judgment does not so recite. The judgment recites that it was “an uncon-troverted fact that plaintiff lost title and possession to the 146 acres of land of said section 130, block M-10, and defendant, in open court, admitting the plaintiff’s measure of damages to be $20 per acre.” The evidence in this case shows that section 130 in question, conflicted with section 2 O X. It is shown that No. 2 O X is the senior survey. The amount of the conflict is shown to be as charged in the petition. It was agreed by the parties upon the trial that section 2 O X was correctly located on the ground. The deed executed by appellant to appellee shows that he conveyed the land in conflict to appellant as part of section 130. It is also shown that the fence pointed out as the line was situated so as to include it within the boundaries of the deed. It is shown that Mr. Ricks had previously filed on section 2 O X more than 15 years prior to the trial, and that he claimed and had possession of the land. The findings of the court we think are amply sustained. The appellant failed to request that an issue on this point be submitted to the jury, and he will therefore be presumed to have consented to the court finding the fact with reference to that issue. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132.

The seventh assignment is to the effect that the preponderance of the evidence shows that appellee’s cause of action was barred; and the eighth assignment to the effect that at the time of negotiating the trade appellee had 'notice of the conflict. Without setting out further the testimony on these points, it will be sufficient to say the jury on both these questions found against appellant, in answer to the issues submitted to them thereon, and that the evidence is sufficient to support their findings. We will not discuss the preponderance of the evidence; the jury have settled that question.

The judgment will be affirmed.

On Motion for Rehearing.

On motion fok rehearing appellant insists the testimony of Brumley and appellant show that appellant was acting for Greenwood in showing the land. The answers of the jury to issues 1 and 2 find that Lofland authorized Brumley to show the land to Greenwood; and to the sixth issue they answer that Lofland directed Greenwood and Brumley to call upon Crawley to point out the land; and by their answers to the fourth issue, they find that the parties did call upon Crawley, and that he pointed out the boundaries as being on the fences. The evidence, aside from that of Brumley and Lofland, is sufficient to support the findings of the jury. If the appellant had sent Greenwood alone to Crawley for information upon which to act, and upon the information so obtained Greenwood did act, appellant would be liable for the damages so occasioned. In the sense that ■Crawley was the duly authorized agent, appointed by appellant, the finding of the jury to the fifth issue may be correct; yet it does not necessarily conflict with the fact that Brumley and Greenwood were directed by appellant to get Crawley to show the land. Brumley was the agent, and he was directed and authorized to show the land, and, in doing so, he proceeded according to direction. Whether Crawley, under such circumstances, was appellant’s duly authorized agent, within the meaning of that term, is immaterial. The agent Brumley, who was to show the land, did show it, through the use he made of Crawley, and in so far as appellee and appellant are affected under the circumstances of this case, Crawley’s authority was immaterial since Brumley’s authority was established ; and appellant made the knowledge of Crawley the knowledge of appellant and Brumley. In effect, appellant asserted “Crawley’s representations are true or will be true, and you may rely on them.” Boles v. Aldridge (Sup.) 175 S. W. 1052; Maddox v. Clarke (Sup.) 175 S. W. 1053.

Appellant will not be permitted to use an irresponsible person or agency to perpetrate a fraud, and avoid liability by asserting that he had not given such party authority to do the thing done, when through the party he put in motion the machinery to cause the act and to accomplish his purpose through such agency. 1-Ie used Crawley for his purpose, but perhaps did not authorize him, as an agent, to act for him. In the original opinion we found that appellant paid 2y2 per cent, commission to Brumley in tbs trade. The evidence of Brumley and appellant is contrary to this finding. Brumley, according to Greenwood’s evidence, was directed by appellant to show tlie land. The jury accepted tbis testimony and disregarded appellant’s contention. Greenwood paid 2% per cent, commission to Brumley on tbe property lie exchanged with appellant. This record shows conclusively to our mind that Brumley was appellant’s agent in this transaction. It occurs to us that the contention that the findings of the jury are contradictory is forced. We believe it to be our duty to sustain the verdict of the jury and the judgment of the court based thereon, when it can be done upon a reasonable interpretation of the jury’s findings and the facts of the case.

The motion is overruled.
      <gzs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    FOSTER et al. v. ATLIR et al.
    (No. 495.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 16, 1915.
    Rehearing Denied Jan. 13, 1916.)
    1. Appeal and Error &wkey;>724 — Assignments of Error — Specification.
    Appellants’ assignment that the court erred in rendering judgment for the plaintiffs, not being made a distinct ground in the motion for new trial, and being too general in not distinctly specifying the ground relied on, will be considered as waived, unless the error in entering judgment on the findings of fact was so fundamental that the court would - act on it without an assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. <&wkey;724J
    2. Appeal and Eeeoe &wkey;>934 — Presumptions Favoring Court Below — Failure to Submit Issue — Statute.
    Under Rev. St. 1911, art. 1985, providing that upon appeal an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment if there be evidence to sustain such a finding, where, in an action to recover for an alleged deficiency between the amount of property agreed to be exchanged and that actually given appellees by appellants, the court submitted no issue to the jury as to the value of the personalty given by appellants, and they requested submission of no such issue, the Court of Civil Appeals will presume that the trial court estimated the reasonable value of the personalty, present a margin of value within the proof from which it might be presumed that the court below found, or at least estimated, such value.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. <5&wkey; 934.]
    3. Trial <&wkey;351 — Request for Submission of Special Issue — Character and Time for Making.
    A request to submit an issue should be clear and specific, made before or at the time the issues are submitted, and not confused as an objection to the entry of judgment or to the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. <&wkey;351.]
    4. Exchange of Property &wkey;»13 — Inconsistent Findings.
    In an action to recover for a deficiency In property received in exchange, findings that an agreed value was placed on one property, and that no such value was placed on the other, were not so inconsistent as to prevent entry of judgment.
    [Ed. Note. — For other cases, see Exchange of Property, CentDig. §§ 25-29; Dee. Dig. <&wkey;>13.J
    5. Judgment i&wkey;256 — Findings—Certainty.
    In an action to recover for a deficiency in property received in exchange, where the jury fixed a definite actual value to plaintiffs’ property, and a definite value per acre to the ranch lands actually conveyed in exchange by defendants, and a definite value per acre to the shortage in acreage, and a definite value per acre to the acreage to which the title had failed, such findings were sufficiently definite to support the judgment for plaintiffs entered upon them, though there was confusion in the questions which elicited them.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. &wkey;256.]
    6. Exchange of Property <&wkey;8 — Deficiency —Measure of Damages.
    In an action to recover for a deficiency in property received in exchange, the correct measure of damages was the difference in the actual value of the property conveyed by plaintiffs and the value of the properties received by them, irrespective of the contract valuation of their property.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 1A-18; Dec. Dig. i&wkey;>8.]
    7. Trial &wkey;>3'52 — Special Interrogatory — Impropriety as Stating Conclusion of Fact.
    In an action to recover for a deficiency in property received in exchange, an interrogatory asking the jury simply to state the value of the property plaintiffs conveyed, and then, assuming that the jury had fixed some, value, asked them, if they should assume the value fixed on plaintiffs’ property to be the actual value of defendants’ properties, what sum would they say would be the actual value of the shortage in acreage of the land conveyed by defendants, was not improper as stating a conclusion of fact by the court as to the actual value of defendants' ranch and other properties.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    8. Appeal and Error <&wkey;930 — Presumptions —Obedience of Jury to Instruction.-
    It must be presumed on appeal that the jury - excluded evidence from consideration as instructed, unless the contrary appears.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey; 930.]
    9. Exchange of Property <&wkey;8 — Exchange of Realty — Remedies—Right of Action.
    Where plaintiffs, who exchanged lands for the realty and personalty of defendants, before eviction sued to recover damages on account of a failure of title to part of defendants’ conveyance, the rule of the state where the land lay that there can be no action upon a covenant of warranty until after eviction had no application to bar plaintiffs’ suit for fraudulent representations inducing them to make the contract.
    [Ed. Note. — Fox other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. &wkey;a8.]
    10. Evidence <&wkey;142 — Value of Lands — Value of Other Lands.
    Upon proper predicate that the situation, improvements, etc., of the lands are similar, the value of one parcel may be given in evidence of the value of the other.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. &wkey;142.]

      11. Appeal and Erro» <&wkey;1058 — Harmless Error — Exclusion of Evidence.
    In an action to recover damages for a deficiency in property exchanged, where witnesses had qualified as to their knowledge of the value of plaintiffs’ property, and had testified directly as to its value, the exclusion from evidence of their testimony, for which proper predicate had been laid, of the value of other lands near by, tending to show the value of plaintiffs’, was harmless, if erroneous.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. &wkey;1058.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by John Atlir and another against Frank Foster and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Jones, Jones & Hardie and J. M. Nealon, all of El Paso, for appellants. Davis & Gog-gin, of El Paso, for appellees.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

On the 10th day of October, 1909, appellees and appellants entered into a written contract by the terms of which appellees agreed to convey by warranty deed to appellants lots 1, 2, and 3 in Old Ft. Bliss, in the city and county of El Paso, Tex., upon which there was an indebtedness of $3,026, and which appellants assumed to pay, for which property appellants agreed to convey by warranty deed to appellee John Atlir their ranch property, consisting of real estate and personal property situated in Dona Ana county, N. M., all fully described, and, in addition, pay to appellees $500 in cash and execute their promissory note for $500. In said contract it is agreed that, should it be decreed in a suit then pending in New Mexico that title to any part of said land is not in the appellants, they should recompénsate him in the sum of $100 per acre for each acre to which such decree should hold appellants to be not entitled. This suit was brought by appellees against appellants alleging false representations as to the acreage contained in the tract of land conveyed, and that said tract was partly in conflict with other surveys to which appellants had not title; that damages had resulted to them from an alleged shortage in acreage to the extent of 32.11 acres of land, and failure of title as to 17.38 acres. Appellees alleged that in making the exchange of said properties the parties had agreed on the respective values of said properties, appellees’ Old Ft. Bliss property being valued at $25,000, and appellants’ ranch land property was agreed to be valued at $100 per acre, and the personal property on the ranch was agreed to be valued at $5,874; that the ranch personal property was of a value much less than the value agreed upon; that by reason of said shortage in acreage of 32.11 acres and failure of title to 17.38 acres in the'land actually conveyed the difference between the value of the land received by appellants and the money and property received by appellees on the basis of said agreed values per acre was $5,100 in appellants’ favor. Appellees prayed that they recover said $5,100 as damages, and in the alternative that they recover such sum as damages as the evidence may show will compensate them for the loss sustained, or that they recover for the shortage in acreage at the rate of $100 per acre, with interest; that they have a decree for a lien upon the property conveyed; that the lien be foreclosed; and for general relief. Appellants answered by general and special exceptions; alleged title in appellees by limitation, that under the laws of New Mexico appellees could not recover for breach of warranty until there had been an eviction, and that appellees had not been evicted; denied the allegations of fraud to deceive, or that they represented that the ranch contained 151 acres, or that the value was $15,100, or their knowledge that it contained a less acreage, or that title to part had failed, or that they represented that said ranch was worth $100 an acre; denied any agreed valuation of $100 per acre, and alleged that the exchange was made on the basis of the tract of land without regard to acreage; denied that the personal property was taken at an agreed valuation, or that ap-pellees’ property was taken at a valuation of $25,000. The matters pleaded will be stated later, if necessary to do so. The pleadings are quite lengthy, and we believe that a statement of the issues made in the pleadings under the assignments to which they refer will be best understood. The jury found for the appellees' upon special issues, and the court entered judgment against appellants as damages in the sum of $3,086 and for a reformation of the deed from appellants to appellees, and decreed that appellant have an equitable lien in the nature of a vendor’s lien on the property conveyed by appellees to secure the payment of the money judgment.

Appellants’ first, assignment of error, that “the court erred in rendering judgment for the plaintiff,” is not made a distinct ground in the motion for a new trial, and is too general, in that it does not distinctly specify the ground relied on, and under the rules is considered as waived unless the error in entering judgment on the findings of fact is so fundamental that this court would act upon it without an assignment. The facts specified under' the assignment as fundamental error are embraced in other assignments, and we prefer to consider them thereunder.

Appellees alleged that it was understood by the parties that in said exchange of properties, the appellants’ ranch lands should be taken at $15,100, which, together with the personal property, estimated at a value of $5,-874, and the $4,026 represented by the $500 note and $500 cash and the indebtedness of 83,026 on appellees’ property, assumed by appellants, made up the total consideration for appellees’ property. These facts were denied by appellants in their answer.

Proof was offered by both appellants and appellees as to the reasonable value of the personal property on the ranch conveyed by appellants, and there is a conflict in the evidence as to its value. The court did not submit to the jury the issue as to the value of the personal property. Appellants’ second, seventh, and eighth assignments of error are practically the same, and directed to the overruling of appellants’ written objections to plaintiffs’ motion to enter judgment upon the special verdict; the grounds being that there should be no judgment entered upon the special issues for the reason that nowhere did the jury find the value of the personal property conveyed. The objection made is one of the grounds in appellants’ motion for new trial. >ve take the assignment as being an objection to the entry of judgment, rather than an objection to the motion to enter judgment. To make the objection available as against the entry of the judgment, where the court did not submit all of the issues to the jury made by the pleadings, it should appear that its submission of the omitted issue was requested in writing by appellant; otherwise the issue not submitted and not requested to be submitted will be deemed as found by the court in such manner as to support the judgment, if there be evidence to sustain the finding. Revised Civil Statutes 1911, art. 1985. The objections referred to as applying to this assignment are as follows:

“Because the following issues and those to which attention is hereinafter raised should only be submitted to the jury for their determination: * * * (f) the difference in value between the plaintiffs’ Old Et. Bliss property and the defendants’ Dona Ana county ranch, with $4,000.00 in cash added, and persona] property on said ranch to the value of defendants’ Dona Ana county ranch.”

And in their fourth objection to the charge the following:

“Defendants object to interrogatory or special issue No. 14 submitted to the jury, because the same is submitted on an erroneous measure of damages, in this, that the measure of damages, if any, is the difference between the actual or fair, reasonable value of said Old Et. Bliss property and the defendants’ Dona Ana county, N. M., ranch, with $4,000 added, and personal property on said ranch thereto.”

In answer to interrogatories Nos. 11 and 12 the jury found that in the exchange of properties an agreed valuation of $25,000 had not been placed on plaintiffs’ property, and that an agreed value of $100 per acre was placed upon defendants’ lands upon the basis of there being 151 acres, and the fourteenth issue submitted and referred to in appellants' iourth objection above is as follows:

“If you have answered interrogatories Nos. 11 and 12 in the negative, then the court submits to you this additional question: At the date of the conveyance of the Old Ft. Bliss property to defendants, what sum do you find from the preponderance of the evidence was the actual value thereof, less the incumbrance of $3,026 thereon?”

Evidently it was the duty of the court to submit to the jury, as an issue of fact to be found by them, the reasonable value of the personal property conveyed by appellants, as appellees had alleged it had an estimated value separate and apart from the land. But we do not construe the objections made to the court’s charge as a request to the court to submit the issue either as to whether there was an agreed value at which the personal property was to be taken in the exchange of the properties or to find its fair, reasonable value.

The request to submit the issue should be clear and specific and made before or at the time the issues are submitted to the jury, and not confused as an objection to the entry of judgment or to the charge. Appellant made no specific objection to the failure of the court to submit findings as to the value of the personal property in the motion for a new trial, other than to repeat the objection to the entry of judgment and to the charge, embraced in paragraph “f” above set out. But to authorize a money judgment for the value of personal property, under the pleadings that the personal property was conveyed at the agreed value alleged or the reasonable value, under the last clause of the statute above referred to, there must be evidence to sustain the finding whether the finding is made by the court or by the jury; otherwise the issue could not be “deemed as found by the court in such manner as to support the judgment.” The court did not state a specific finding as to the value of the personal property apart from the realty. The evidence offered on the value of the personal property would sustain a finding of reasonable value at any sum from $500 to $2,300. - Are the findings of the jury or the judgment entered in such sum as to presume a finding of the reasonable value of the personal property and a credit given in the judgment for any such value?

On the fourteenth issue submitted the jury found the actual value of the Old Ft. Bliss property conveyed by appellee's to appellants, less the incumbrance of $3,026, to be $16,-974, thereby virtually finding the value of the property conveyed to be $20,000. From the several findings of the jury it is shown that the appellees conveyed and gave in exchange for appellants’ property, not indicating that any personal property on the New Mexico ranch was included, the following:

151 acres of land, less 32.11 short in measurement, and less 17.38 to which there was a failure of title, UlclAili^ Clvi ltd J.bLbIVuUj (II the value of $100.00 per acre. .. . $10,151 00
Cash . 500 00
Note . 500 00
Taxes paid. 125 00
Indebtedness assumed on Old Ft.
Bliss property. 3,026 00
$14,302 00

—that is, for appellees’ $20,000 worth, of property they received $14,302, not including any personal property specifically stated other than that mentioned, making a difference in values of properties specified and exchanged of $5,698. The money judgment entered in appellees’ favor was for the sum of $3,086, leaving a balance to be applied on the personal property on the New Mexico ranch of $2,-612, an amount in excess of what either Atlir or Foster testified its value to be. Appellees in their brief point to question and finding 15, as including the finding of the value of the personal property on the ranch, but the jury made no finding that included the personal property on the ranch, and the court, in submitting the issue, assumed a fact not submitted to nor found by the jury. The view we take of it is that, if there was error in not submitting the specific issue as to the reasonable value of the personal property on the ranch, the appellants, having made no request that the issue be submitted, are not in position to complain of the error, and from the judgment entered we must presume the court estimated the reasonable value of the personal property, as there was a margin of value within the proof from which we may presume the court found or at least estimated the value of the ranch personal property. The assignments are overruled.

Appellees pleaded that the properties taken in exchange for their Old Ft. Bliss property were taken at an agreed value of $25,000. The jury found that appellees' property was not taken by appellants at the alleged agreed value of $25,000, and that appellants’ ranch property was taken by appellees at an agreed value of $100 per acre. Both parties, however, offered evidence as to the fair, reasonable value of appellees’ property, and the verdict of the jury as to the value of appellees’ property is based on the reasonable actual value, and not on the alleged agreed value. Appellants’ third assignment is that the trial court erred in overruling their written abjection to appellees’ motion to enter judgment on the jury’s findings as to these values. The objection made is to the effect that the verdict is inconsistent, and that because of these findings no judgment can be entered. Appellants’ proposition under this assignment is that “a contradictory verdict will not support a judgment.” We see no inconsistency in these findings. To be consistent, it would not be necessary that the parties, in making their contract for an exchange of properties, should agree that each property should have an agreed value. The written contract by its terms suggested a possible failure as to title to the alleged number of acres in appellants’ ranch, and it would be natural that the parties, in that event, should place an agreed value thereon per acre. The fact that the jury found that an agreed value was placed on one property, and not on the other, does not suggest inconsistency in their findings, and the finding of such facts would not, it seems to us, prevent the entry of a judgment. The assignment is overruled.

Appellants complain in the fourth assignment that the verdict is so conflicting and so confused and unintelligible that it is impossible for the court to render a judgment thereon, and say that the confusion and conflicts arise in the answers of the jury to special questions 15, 24, and 25. The question submitted in issue 15 refers to the jury’s response to No. 14. To question 14 the jury found that at the date of the conveyance of the Old Ft. Bliss property to appellees $16,-974 was the actual value thereof, less the incumbrance of $3,026 thereon. Interrogatory No. 15 is as follows:

“Assuming the sum you have fixed to the question just preceding to have been the actual value of the ranch and other considerations moving from the defendants to plaintiffs, if said ranch had contained 151 acres, as was represented, if it was represented to him to contain, 151 acres, then what sum, in relation to the assumed actual value of said Foster and McCarthy’s ranch, and other considerations moving from Foster and McCarthy to plaintiffs, would represent the actual value of the number of acres you have found in your answer to question No. 10 said Foster and McCarthy’s ranch, as described in deed from defendants to plaintiffs, lacked of containing 151 acres, if, under the directions of the court, you have found it necessary 'to answer said question number ten.”

To which the jury answered: “$3,211.”

To the tenth interrogatory the jury had answered that the deed from Foster & McCarthy to Atlir lacked 32.11 acres of describing 151 acres.

Interrogatory 24:
“Assuming $15,000 to have been the actual value of the land, if it contained 151 acres, as represented, if it was so represented, what sum in relation to said assumed actual value of said ranch would represent the actual value of said 17.38 acres?”
The jury answered: “$1,738.”
Interrogatory 25:
“Assuming the amount you have stated in answer to question No. 14, if you have found it necessary under the court’s charge to answer question No. 14, to be the actual value of said ranch, what sum in relation to said assumed actual value of said ranch would represent the actual value of said 17.38 acres described in question 19?”

To which the jury answered: “$1,738.”

To interrogatory 19, referred to in the latter part of the twenty-fifth question, supra, the jury had answered that the Atlirs did not know that Foster and McCarthy had no> title to the 17.38 acres of the ranch. There seems to us some confusion in the verbiage of some of the interrogatories above quoted, but possibly not to the extent of being so confusing or unintelligible as not to form a sufficient basis for a judgment, as claimed by appellants. We think these facts are made sufficiently clear by the jury's findings : They found that the Old Ft. Bliss property conveyed by the Atlirs had an actual value of $16,974 over and above the $3,026 lien on the property. The fifteenth question told the jury to assume that the $16,974 was the actual value of the ranch and other considerations given for the Atlir property. That assumed actual value would embrace the ranch land, the personal property on the ranch, the $500 cash, and the $500 note. With that value assumed as the actual value of the ranch property, the jury was asked to state a sum that would represent the actual value of the shortage in acres of the ranch, assuming that the ranch should contain 151 acres. By comparing the above questions and answers, it will be readily seen that in submitting question 15 the court told the jury to answer that question assuming that $16,974 was the actual value of the Foster and McCarthy “ranch and other considerations,” etc., while in question 25 the jury are told that in answering that question to assume that the same amount ($16,974) was the actual value of the “ranch,” not including “any other considerations.” And to question 25 the jury are told to answer that question assuming that $15,000 was the “actual value of the land,” not in words including or excluding other considerations. The only confusion seems to us to be in the different values which the court told the jury to assume in fixing other values. But it seems clear to us that the jury in their findings fixed a definite actual value to the Old Ft. Bliss property ($16,974), and a definite value per acre to the ranch lands actually conveyed ($100), and a definite value per acre to the shortage in acreage, and a definite value per acre to the acreage to which the title had failed. There was no question as to the value of any other property other than the personal property on the ranch. We believe that with these values fixed and made sufficiently clear, as they were in the findings, regardless of the confusion in the questions, a judgment could be entered thereon. If there is any uncertainty or confusion in the facts submitted to and found by the jury, it is as to the actual value of appellants’ ranch land. But we take it from the several findings quoted that the jury found that the agreed value and the actual value of the ranch land was $100 per acre. Appellants refer us to the evidence to the effect that the 17.38 acres are less valuable per acre than other lands, but the jury found that the value of the lands as a whole was $100 per acre. A review of the evidence discloses that there was sufficient evidence as to the actual value of the Old Ft. Bliss property to support the jury’s finding No. 14 that the property was worth $16,974, less the incumbrance of $3,026, and the fifth assignment is overruled.

AVhile we think several of the questions submitted to the jury need not have been submitted, and that some of the questions submitted are confusing, there is nothing in the jury’s findings that indicate to us that the jury were confused on the issues, and appellants point out nothing to indicate confusion in the findings, other than what has been pointed out and discussed in passing on the fourth assignment. The sixth assignment is overruled.

The ninth assignment of error calls in question the correctness of the measure of damages applied by the trial court and points out special issue 14. The contention is that) it was error to submit an issue intended to elicit a finding of damages estimated on any other basis than by computing the difference between the actual reasonable value of appellees’ Old Ft. Bliss property and appellants’ ranch, moneys, and other personal properties on the ranch given in exchange. The correct measure of the damage recoverable in this suit is the difference, if any, in the actual value between the property conveyed by appellees and the value of the properties received by appellees. The contract value of appellees’ property has nothing to do with fixing the basis of values of said property or the measure of damages in this character of suit. What appellees have lost by the transaction is the point of inquiry, and that amount ascertained is the measure of their damages. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Gas. 456. But we do not construe question 14 and the answer thereto to state any other measure of damage. By reference to that finding supra it will be seen that the jury found what they estimated to be the actual value of appellees’ property, less the incumbrance. We do not see how it could be construed on the finding to question 14 that the damages were based on any other than the actual value of appellees’ property. The assignment is overruled.

We do not believe that the submission of question 15 in the courts’ charge is amenable to the criticism made by the tenth assignment, that it stated a conclusion of fact as to the actual value of appellants’ ranch and other properties. There was no expression by the court to the jury of an opinion as to what was proved on the issue of the actual value of Old Ft. Bliss property. The court had asked the jury simply to state its value, and, assuming that the jury had fixed some value on said property, the court told the jury that, assuming the value fixed on the Old Ft. Bliss property to be the actual value of the appellants’ properties, then what sum would the jury say would be the actual value of the shortage in acreage of the land conveyed by appellants. The assignment is overruled.

Error is assigned on the admission of the testimony of the witness Holland. Holland was permitted to detail a conversation he had with Foster in which Foster stated that 151 acres were in the tract of land conveyed; that three acres were in litigation, and that he (Foster) had no title to it; that he valued it at $100 per acre; that he agreed to pay Atlir $100 per acre for all tlie land lie lost in the suit, whether it were three or more acres, and other similar statements. After admitting the evidence, over objection, the evidence was excluded on the court’s own motion. We are not called upon to pass on the admissibility of the evidence, but, assuming that it was not, the court excluded it and instructed the jury to disregard it. We must presume that the jury excluded the evidence from consideration, as instructed, unless the contrary appears. The findings of the jury can be accounted for without resort to the evidence excluded. The assignment is overruled.

It is the contention - of appellants in their twelfth assignment that there is error in entering judgment in favor of appellants as to the $1,738 on account of the alleged defect in title to part of the ranch land conveyed, and the proposition is that, there having been no eviction, the 17.38 acres being in New Mexico, and the instrument conveying it containing no covenant to seisin, and the New Mexico law providing that there can be no action upon a covenant of warranty until after eviction, it was error to enter judgment for the full value of the lands.

There is some conflict in the authorities upon the point made in the assignment, but an examination of the authorities show that the difference of opinion grows out of a confusion as to the nature of the cause of action. This suit is not on the warranty. It is not a case in which the appellees sue for a breach of a contract, for the contract has been performed by both parties, but it is a case in .which the appellees sue to recover damages for a fraudulent representation by which they were induced to enter into a contract to their loss. The issues are different and the measure of the damages is different to what it would be in a suit on the warranty of contract. This distinction was observed by this court in Beckwith v. Powers, 157 S. W. 178, and many Texas cases there referred to, including the ease of George v. Hesse, supra, by the Supreme Court of this state. The assignment is overruled.

The Supreme Court of this state, in White v. Street, 67 Tex. 177, 2 S. W. 529, we think, has settled the law against appellants’ contention in their thirteenth assignment, claiming error in that the judgment of the court decrees an equitable lien in favor of appel-lees in the nature of a vendor’s lien upon the Old Ft. Bliss property conveyed by appellees to secure the payment of the judgment for $3,086, and interest. To the same effect are Meyer v. Smith, 3 Tex. Civ. App. 37, 21 S. W. 995, and Sanders v. Dunn, 158 S. W. 1041.

The Second Court of Civil Appeals, in Letcher v. Reese et al., 24 Tex.Civ. App. 537, 60 S. W. 256, seems to express a different view, but does not refer to the White v. Street Case, and their attention seems not to have been called to it. The assignment is overruled.

Appellants’ fourteenth, fifteenth, and sixteenth assignments claim error in excluding the evidence offered of witnesses Happer, Charles B. Stevens, and Horace B. Stevens on the value of the Old Ft. Bliss property. All three of the witnesses had qualified as to their knowledge of the reasonable market value of the property, and each witness had stated the value he would put upon the property. The witnesses were in the real estate business, and had been for many years, and each had sold real estate in the vicinity of the Old Ft. Bliss property in the year 1909 and about the time of the exchange of the properties in question, and each had partly stated the situation of said property with reference to the property in question. In addition to their evidence as to the value of the property in question, they were then asked at what price they had sold the property in the vicinity. The questions to each were objected to, and the objections were sustained. Had they been permitted to do so, the witnesses would have testified to the price at which they had sold the property in the vicinity in 1909. The evidence as to the market value of the property in question was conflicting, and the issue as to its value was sharply contested.

The points of objection to the introduction of the excluded evidence are: First, that no sufficient predicate was laid showing that the properties sold by the witnesses were similarly situated and of similar character, and, as to one of the properties, that it was sold about a year before the time of the exchange of the properties in this case; and, second, that appellants failed to state at the time of offering the evidence or at any time during the trial what the witnesses would testify to, if permitted. The admissibility of the evidence offered, under any circumstances, is at least doubtful. In some jurisdictions it is excluded altogether. The grounds for its exclusion have not always been the same. Some exclude it on direct examination altogether ; some hold that its admissibility is a matter of discretion; others still, that such evidence is only admissible on cross-examination, as a test of the means of knowledge of a witness who has testified to the market value on direct examination. We are of the opinion, however, that the Supreme Court, in Chaney v. Coleman, 77 Tex. 100, 13 S. W. 850, recognized the rule that, under a proper predicate, such evidence is admissible. In that case the court said:

“Appellant complains of the exclusion of evidence offered by him showing the value of some farms adjoining the one sold by him to plaintiff. We think the evidence was properly excluded. The question was as to the value of the farm conveyed to plaintiff by defendant. It is not readily seen how its value can be correctly shown by comparing it with others, as was proposed to be done by the defendant in this case. The farm in question was an improved one, and was valued in the trade as such. Before a value can be given to it by proving the average value of farms in that vicinity, it should be proved that the improvements, and other things to be considered in estimating its value, correspond with like things and the farms with which it is classed. That was not done in this case; and it is not probable that it can be done, or that a proper predicate can be laid for the adoption of such a method of establishing its value, instead of proving it directly.”

In Newbold v. Railway Co., 34 Tex. Civ. App. 525, 78 S. W. 1079, the Third Court of Civil Appeals, in a similar case, while recognizing the fact that two lots could never be found precisely alike, and that it would not be required to do so, said:

“But, if it is admissible in any case, on direct examination, to prove valuó by comparison with other property, it should first be shown that such other property is substantially similar in those particulars which affect its value.”

In that case the two properties were on opposite sides of the street; they were not situated in the same way with reference to the railroad; they fronted different ways; they were differently situated with reference to other streets; they were different in size; and other differences were noted. That court held that such dissimilar circumstances might be sufficient to show a dissimilarity in the values and excluded the evidence.

In this case what was shown as to the situation of the two properties was so dissimilar that it could hardly be called a predicate for the introduction of the evidence offered; in fact, appellants in their brief do not sñow or claim that sufficient predicate or any predicate at all was laid. But, if what had been shown as to the situation or relative values of the two properties was sufficient for the introduction of evidence, was its exclusion reversible error? The same witnesses had qualified to their knowledge of the value of this property and had testified directly as to its value. It seems evident that their opinion or knowledge of the value of this property is but a deduction drawn largely from the sales they had made and the handling of the property sold and about the values of which they would have testified. Conceding that a predicate had been laid, the jury had the benefit of the evidence of these witnesses as to the value of this property and a comparison of values by these same witnesses would be cumulative and, in our opinion, would not be reversible error, if error at all. The assignments are overruled.

We cannot say that the value at which the Old Ft. Bliss property was fixed by the jury is so excessive as to show that prejudice, passion, or sympathy influenced the verdict, as claimed in the eighteenth assignment. The value fixed is not without evidence to support it.

Finding no reversible error, the judgment is affirmed.
      (g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=o>For other oases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    PECOS & N. T. RY. CO. v. STINSON.
    (No. 858.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Commerce <®=^35 — Interstate Commerce— Wjiat Constitutes.
    Where plaintiff, a resident of Texas, drove his cattle across the state line and loaded them into pens in New Mexico for shipment to a point in the state of Texas, the shipment constituted interstate commerce, though the station of the defendant railroad company was located in Texas.
    [Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 23, 26, 89; Dec. Dig. <@=35.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)
    2. Carriers <§=¿>207 — Carriage of Live Stock —Oral Contracts.
    Damages are recoverable against a railroad company for breach of a verbal contract to furnish cars for the shipment of live stock on a day certain, though a bill of lading is subsequently executed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. <®^207.)
    3. Carriers <@=>207 — Carriage of Live Stock — Authority of Agent.
    A local agent has authority to make a verbal contract binding his company to furnish cars for the transportation of cattle on a day certain.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. <S^>207.)
    4. Carriers <®=>207 — Carriage of Live Stock —Bills of Lading — Issuance.
    Where, after a carrier had breached its verbal contract to furnish cars for the transportation of cattle, the shipper without any additional consideration signed a bill of lading the terms of ■phich jje Dot rea(j or understand, waiving any claims for failure to provide cars in time, the stipulation is not binding on the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129-239; Dee. Dig. <@=>207.)
    5. Carriers <®=^>207 — Carriage of Live Stock —Bills of Lading.
    That a carrier of live stock furnished free transportation to the shipper as a caretaker is not consideration rendering binding a contract contained in a subsequently signed bill of lading waiving damages for failure to furnish cars as orally agreed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. <@=^207.)
    Appeal from Potter County Court; T. W. McBride, Judge.
    Action by J. D. Stinson against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellant. B.oyce & Davidson, of Amarillo, for appellee.
   HALL, J.

Appellee, as the shipper of cattle, sued appellant and the Panhandle & Santa F<5 Railway Company, as carriers, to recover $336 damages alleged to have been sustained as the result of delay in furnishing cars and transporting 170 head of cattle from Earwell, Tex., to Amarillo, Tex. A trial before a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $27S.40, with interest at 6 per cent. Plaintiff alleges, in substance, that about November 14, 1913, he was the owner of 130 cattle, located near Earwell, in Parmer county, Tex., which he desired to ship from the said town to Amarillo over the line of the defendant railway; that on said date he orally requested the agent of the defendant at Earwell to furnish him three cars to be at Earwell ready for loading on the morning of November 15th; that the agent of the defendant orally promised and agreed to furnish said cars as requested; that on November 15, 1913, he was the owner of about 40 head of cattle, in addition to those just mentioned located near Earwell, which he also desired to ship to Amarillo; that on said last-named date he ordered one additional car through the agent of the defendant at Earwell, who promised and agreed to have said car at Earwell on said date; that all his cattle were delivered into the pens of -the defendant on November 15, 1913, ready for loading; that the defendant became bound to furnish said cars on the dates aforesaid, and by the use of ordinary care could have furnished them for loading at said time; that plaintiff paid the freight charges, but that defendant failed and refused to furnish the ears as agreed, and did not so furnish them until about noon of November 16, 1913; that by reason of the defendant’s default the plaintiff was compelled to hold his cattle in the pens from November 15 until about noon of November 16, 1913. The petition complains further of delay in transit, but since he testified upon the trial that he made no claim for shrinkage while the cattle were on the cars, but based his claim for damage accruing while the cattle were in the pens, the issue of damages while in transit is eliminated and will not be considered.

In addition to general and special demurrers and special denials, the defendant, by special plea, set up, among others, the following defenses: That the local agent at Ear-well was without authority to contract to furnish the cars within a particular time, but had authority only to agree to furnish same within a reasonable time, upon a reasonable request; that defendant was not tendered inspection certificates on the cattle tendered for shipment until the day upon which the cattle were actually shipped, and that defendant could not receive the cattle for transportation until the inspection was furnished, all of which the plaintiff knew; that the shipment was forwarded as soon as plaintiff furnished the necessary inspection certificates; that defendant exercised ordinary care to furnish the cars within a reasonable time after the requests were made; that the shipment was not sufficient to justify defendant in handling it by special train, all of which plaintiff knew, and that the cars were furnished and the transportation accomplished within a reasonable time, considering the duty of the defendant to the public generally; that defendant notified plaintiff not to bring his cattle in until notified that the cars were ready; that, contrary to said request, plaintiff brought his cattle in, and, if they were, in fact, deprived of feed, water and rest by being confined in the pens, it was due to plaintiff’s negligence, and that this was the proximate cause of the alleged damages; that said cattle thereafter fully recovered, if they were, in fact, damaged, since they were not shipped to market, and that the only shrinkage suffered was that ordinarily incident tq shipping from one range to another; that at the time of making said shipment plaintiff entered into a written contract, dated at Earwell, Tex., November 15, 1913, providing, among other things, that all prior understandings as to furnishing cars were merged into said written contract, all of which was well known to plaintiff, the said provision being in defendant’s standard form live stock contract, and being reasonable, and plaintiff knowing beforehand that he would be requested to sign such contract ; that he did execute it of his own free will; that he is estopped to claim that an agreement was made to furnish him cars within any particular time, or for shipment on any particular date, or that he was damaged by reason of the alleged failure to furnish said cars on the dates named.

By supplemental petition plaintiff, among other facts, alleged that the provisions in said shipping contract were unreasonable and against public policy, and an attempt on the part of defendant to absolve itself from liability for their negligence; that they were without consideration and void.

By supplemental answer appellant alleged that the shipping contract had a consideration, which was the free transportation furnished appellee as a caretaker for said cattle.

It appears from the uncontradicted testimony that the stock pens into which appellee drove his cattle and from which they were loaded onto the cars are over the state line and in New Mexico. Although the bill of lading was executed on the Texas side of the boundary line between Texas and New Mexico, we incline to the opinion that the loading of the cattle onto cars spotted at the pens in New Mexico and their subsequent transportation across the line into Texas constitutes an interstate shipment, and that the rights of the parties to this suit should be determined under the federal laws, and particularly under the Carmack Amendment to the Hepburn Bill. The bill of lading might have been signed and the shipping contract made in Amarillo or at any other point along the line of defendant’s railway. The shipment itself actually moved from New Mexico into Texas, which, in. our opinion, determines its nature as being interstate. I. C. R. R. Co. v. Feuentes, 263 U. S. 157, 35 Sup. Ct. 275, 59 L. Ed. 517. The cause, however, seems to have been tried in the court below and briefed in this court as an intrastate shipment, and the issues presented here will be considered accordingly.

The first question presented by appellant’s brief is the right of plaintiff to bind appellees by an oral contract of shipment, when a written contract was subsequently signed, limiting- the carrier’s liability. Appellant insists that because plaintiff actually shipped his cattle a day after the oral contract was entered into, executing a bill of lading, which he admits it was the custom to execute, and which he expected to execute, limits plaintiff’s right of recovery by the stipulations therein contained. Appellant further insists that the verbal contract was merged in the written bill of lading. The general rule that damages are recoverable against a railway company for breach of a verbal contract to furnish cars for the shipment of live stock on a day certain, regardless of the bill of lading subsequently executed, is settled law in this state. Mo., etc., Ry. Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 570; Texas, etc., Ry. Co. v. Nicholson, 61 Tex. 491; I. & G. N. Ry. Co. v. Young, 28 S. W. 820; Cross v. McFaden, 1 Tex. Civ. App. 461, 20 S. W. 847. Where such a contract is proven, the carrier’s liability rests upon a breach thereof, and not upon its common-law liability. T. & P. Ry. Co. v. Shawnee Cotton Oil Co., 55 Tex. Civ. App. 183, 118 S. W. 776, and authorities cited.

The agent at Farwell had the authority to make the verbal contract binding bis company to furnish cars upon a certain date. G., C. & S. F. Ry. Co. v. Jackson & Edwards, 99 Tex. 343, 89 S. W. 968. The injury being shown, the question for our determination is: Has the appellee waived his right to recover by signing the written bill of lading after the cattle had been loaded, which instrument provides that all prior understandings concerning the furnishing of cars were merged into it, and which expressly waives and releases all claims for damages with respect to the appellant’s failure to provide cars in time? Appellee testified that he came with the stock as a caretaker; that he did not read the contract any further than to note the number of head of cattle, and that be had never read one of such contracts through in his life, according to his recollection; that when he had the agreement with the agent about furnishing the first three cars there was nothing said about his having to sign a contract; that it was not signed until after the cattle were on the cars; that it had always been the custom when he had shipped for him to sign some such an instrument; that he did not know its provisions; that there was nothing said to him about signing the contract until after the cattle were loaded, nor was any stipulation that might be in it mentioned. He further stated that the railroad company did not offer to pay him anything for the execution of the contract, stipulating that all prior oral agreements were merged into it. Under these facts, we think it is clear that the appellee was not bound by the stipulations in the written contract. Southern Pac. Ry. Co. v. Meadors, 104 Tex. 469, 140 S. W. 427; A., T. & S. F. Ry. Co. v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; M., K. & T. Ry. Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565; St. Louis, S. F. & Texas Ry. Co. v. Gilliam & Jackson, 166 S. W. 706; P. & N. T. Ry. Co. v. Evans-Snyder-Buel Co., 100 Tex. 190, 97 S. W. 466. The rule is stated in 4 R. C. L., “Carriers,” § 240, P'. 779, as follows:

“In order, however, that assent may be implied from the mere acceptance of a bill of lading without dissent, the instrument must be issued by the carrier, and accepted by the shipper at or before the time of shipment of the goods. If the goods have been received by the carrier under an oral or a written contract, a subsequent issuance by him of a bill of lading purporting to alter the terms of this contract in any particular cannot affect the rights of the shipper under the previous contract, in the absence of some evidence of his assent to the terms of the bill of lading other than his mere receipt of it without objection. The rule that all prior oral negotiations are deemed to be merged in a subsequent written contract is in such case plainly inapplicable. The bill of lading does not form a subsequent written contract until its terms are accepted by the shipper, and such acceptance will not be presumed merely from a failure to object to its terms. * * * But, whatever the true basis of the rule, it is well established, and the authorities are uniform in requiring that actual assent be shown to a bill of lading by which it is attempted to supersede a contract previously entered into. * * * But, if the bill of lading, as issued, contatos terms variant from those previously agreed upon, no presumption of assent can arise from its receipt, even if it was the expectation of both parties when the goods were delivered that the bills of lading would be given.”

Appellants insist that the granting of free passage to appellee as a caretaker upon the train transporting his cattle was a sufficient consideration to support the written contract. Such is not the rule in this state. T. & P. Ry. Co. v. Avery, 19 Tex. Civ., App. 235, 46 S. W. 897.

Whether this case be considered as an interstate or an intrastate shipment, the facts entitled appellee to a judgment. S. A. & A. P. Ry. Co. v. Bracht, 172 S. W. 1116.

Several other matters deemed to be immaterial are submitted in the brief.

Finding no reversible error, the judgment is affirmed.
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