text:
    GARDEN VALLEY MERCANTILE CO. et al. v. FALKNER et al.
    (No. 1608.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 5, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1.Venue <&wkey;18 — Action foe Conversion.
    Action for conversion of personal property may be brought in the county of plaintiff’s residence if one of the defendants has converted some of the property there.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §.32; Dee. Dig. <&wkey;18.]
    2. Landlord and Tenant <&wkey;242 — Landlord’s Liens — Furnishing Goods — “Furnished.”
    A landlord buying a note under agreement that, if the owner of mules would sell them to the landlord’s tenant and take the tenant’s note for the purchase price, he would buy the note at its face value, has no landlord’s lien on the mules, they not being “furnished” by him within article 5475, Vernon’s Sayles’ Ann. Civ. St. 1914, as to landlord’s lien.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 976, 979-981; Dec. Dig. <3&wkey;242.
    For other definitions, see Words and Phrases, First and Second Series, Furnished.]
    3. Landlord and Tenant @=*242 — Landlord’s Liens — Furnishing Goods — “Furnished.”
    A landlord allowing his tenant to keep a quantity of corn due as rent, instead of delivering it to him, in order that the tenant might use it during the next year for seed, was not entitled to a lien for such corn; it not being “furnished” within article 5475, Vernon’s Sayles’ Ann. Civ. St. 1914, as to landlord’s lien.
    [Ed. Note. — -For other cases, see Landlord and Tenant, Cent. Dig. §§ 976, 979-981; Dec. Dig. @=3242.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Action by A. J. Falkner and others against the Garden Valley Mercantile Company and others. From judgment for plaintiffs, the named defendant and others appeal.
    Affirmed as to defendant T. E. Calhoun, and reformed and affirmed as to other defendants.
    Simpson, Lasseter & Gentry, of Tyler, for appellants. Jones & Jones, of Mineóla, and Harris & Britton, of Quitman, for appellees.
   WILLSON, C. J.

The suit was by Falk-ner (1) against his tenant, T. E. Calhoun, to recover sums he claimed the latter owed him as rent, and for supplies furnished to make crops grown by the tenant on the land; and (2) against the Garden Valley Mercantile Company, a firm composed of himself (Falkner), S. B. Tunnell, G. E. Browning, W. C. Head, G. M. Terry, and S. P. Vesey, and Tarver, Steele & Co., a firm composed of C. L. Tarver and L. B. Steele, to recover damages for a conversion by them, as alleged, of certain property belonging to the tenant on which he (Falkner) claimed to have a landlord’s lien. It was commenced in Wood county, where Falkner resided, and where, he alleged, the conversion complained of occurred. None of the defendants resided in that county. Tunnell, Browning, Terry, and Head, in a plea duly filed, claimed a privilege they asserted to be sued in Smith county, where they, respectively, resided, instead of in Wood county. Whether the plea should have been sustained depended on whether it appeared that the mercantile company or Tarver, Steele & Co. were guilty of a conversion of the cotton in Wood county. It appeared from the testimony that the rented land was in Smith county. By the terms of the contract between Falkner and Calhoun the former was to receive as rent one-third of the corn and one-fourth of the cotton and cotton seed grown by the latter on the land. The property on which Falkner claimed a landlord’s lien and which he claimed the mercantile company and Tarver, Steele & Co. converted consisted of corn, cotton seed, and seven bales of cotton grown by Calhoun on the land, and two mules purchased by him of one Kindle. Calhoun, having mortgaged the property to the mercantile company, turned same over to said company with instructions to sell it and credit the claim the company had against him with the proceeds after paying out of same the sum he owed to Falkner as rent. At the time the mercantile company took possession of the property it was in Smith county, where the company afterwards sold the mules. It carried the seven bales of cotton to Wood county, and there sold same to Tarver, Steele & Co., who, when they purchased, knew that Falkner claimed a landlord’s lien on the property. The mercantile company paid to Falkner one-fourth of the sum realized by the sale of the cotton as the part thereof he was entitled to as rent.

The contention made that on the facts stated the court should have peremptorily instructed the jury to find in favor of the plea is overruled. It may be the testimony was not sufficient to support a finding that the conversion by the mercantile company occurred in Wood county, but it was sufficient to show that Tarver, Steele & Co. converted the cotton in that county. As, therefore, Falkner had a right to sue that company in Wood county and to make the mercantile company a party to the suit, the finding against the plea of privilege was not error. Cobb v. Barber, 92 Tex. 309, 47 S. W. 963; Robertson v. Hunt, 77 Tex. 321, 14 S W. 68; 38 Cyc. 2055.

The judgment was in favor of Falkner against Calhoun for $547.11, against the mercantile company and its members other than himself for a like sum, and against Tarver, Steele & Co. for $285, the value of the seven bales of cotton purchased by them of the mercantile company. Calhoun has not appealed, and the judgment will not be disturbed so far as it is against him.

The judgment against the mercantile company and its members was based on findings that they had converted corn, cotton seed, seven bales of cotton, and two mules on which Falkner claimed a landlord’s lien.

The mercantile company claimed that it appeared as a matter of law that Falkner did not have a lien on the mules. The contention should have been sustained. It appeared that Calhoun needed the mules to make crops on the rented land. The owner of the mules, one Kindle, wanted $325 in cash for them. Calhoun was unable then to pay the price demanded. Falkner agreed, if Kindle would let Calhoun have the mules and. take his note for the purchase price, he (Falkner) would buy the note of Kindle at its face value. Thereupon on February 5, 1913, Kindle sold the mules to Calhoun, taking his promissory note for the purchase price, $325, payable to him (Kindle) November 1, 1913, and stipulating for interest from its date at the rate of 10'per cent, per annum and for 10 per cent, additional if it was not paid at its maturity and was placed in the hands of an attorney for collection. February 20, 1913, Kindle by an indorsement on the note transferred it to Falkner, who then paid him its face value. It is plain, we think, that the mules were not “furnished” by Falk-ner to Calhoun within the meaning of the statute (article 5475, Vernon’s Statutes), and therefore that Falkner did not have a landlord’s lien on them.

Among the items of indebtedness claimed by Falkner against Calhoun was one for $66.55 on account of supplies, consisting of dry goods, which he claimed he furnished Calhoun to enable him to make crops grown on the land. The contention of the mercantile company with reference to this is that it appeared as a matter of law from the testimony that the goods were not “furnished” by Falkner to Calhoun within the meaning of the statute. We do not think it so appeared, and therefore overrule the contention. The sufficiency of the verdict to support the judgment as to this item is attacked, but we do not think it was insufficient.

Falkner claimed that he had furnished Calhoun 30 bushels of corn worth $30 to enable him to make crops on the land in 19Í3. He proved that Calhoun owed him that quantity of corn as rent for the year 1912, and that he permitted Calhoun to keep the corn instead of delivering same to him on Calhoun’s representation that he “would need it to use that winter and in making a crop for the year 1912.” The jury found in favor of Falkner “for $53.26 for cotton seed and corn.” If the finding as to the corn referred to the 30 bushels above mentioned, then the finding that Falkner had a landlord’s lien on the property the mercantile company and Tarver, Steele & Co were charged with converting to secure the sum due for it plainly was unauthorized. The 30 bushels of corn was not a part of the crops grown on the land during the year 1913, and Falkner did not “furnish” same to Calhoun. What he did was to waive a right he had to have Calhoun turn it over to him in 1912, and grant Calhoun an extension of time in which to pay the amount of rent represented by the corn. If the finding did not refer to that corn, then it was wholly without evidence to support' it; for. there was no testimony showing Falkner to be entitled to recover anything of Calhoun on account of corn grown by him on. the land in 1913. And so there was no evidence showing that Falkner was .éñtitled 'tó’recover .. on account óf cotton seed grown on the land. On the contrary, the testimony in the record indicates that Ealkner had received all that was. due him by Calhoun on account o£ corn and cotton seed grown by the latter, during the year 1913.

The judgment will he so reformed as to adjudge a recovery by Ealkner against the mercantile company and Tarver, Steele & Co. of $66.55, and a recovery over by Tarver, Steele & Co. against the mercantile company of a like sum, and as so reformed will be affirmed.
      dh^jEor other eases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: I-IODGES, J.

license: Public Domain

text:
    EASTERN TEXAS TRACTION CO. et al. v. HARRISON et al.
    (No. 1619.)

    (Court of Civil Appeals of Texas. Texarkana.
    July 6, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. RailRoads <&wkey;17 — Validity — Breach — Liability.
    Where the officers of a traction company, as a personal speculation, contracted with property owners, in return for a bonus, to purchase certain lots and have the depot and terminals of the traction company erected thereon, but failed, after purchasing the lots, to have the offices of the company established there, they were liable to the parties who paid them the bonus for its return, together with stipulated interest, according to their contract.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 36-38; Dee. Dig. <&wkey;17.] •
    2. Railroads <&wkey;-58 — Contract of Officers —Construction as Personal.
    Where the officers of a traction company contracted with certain property owners, in return for a bonus, to buy lots and construct and maintain thereon the depot -and terminal station buildings of the traction company, which contract was signed by the officers without designating themselves as such, it was to be construed as their personal engagement, and not as that of the company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. <®=358.]
    3. Railroads <&wkey;58 — Contract — Construction.
    Whore officers of a traction company agreed with property owners, in return for a bonus, to purchase lots and erect and maintain thereon the terminal buildings of the traction company, and a following bond contained the assent and ratification of the traction company to maintain its offices in the city, such bond did not necessarily include an agreement by the company to construct the buildings in accordance with the undertaking of its officers.
    [Ed. Note. — For 'other cases, see Railroads, Cent. Dig. §§ 130,131, 133, 135, 136; Dec. Dig. &wkey;>58.]
    4. Railroads <&wkey;58 — Location of Stations —Ultra Yires Contract.
    A traction company might itself, in return for a bonus have made a contract with property owners in a city to buy lots and erect and maintain its terminal buildings thereon, and could have bound itself to return the bonus if it failed to perform.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131,! 133, 135, 136; Dec. Dig. <&wkey;58J
    5. Railroads &wkey;>58 — Location of Stations —Ultra Vires Contract.
    Where the officers of a traction company, in return for a bonus, contracted with property owners to buy lots in the city and erect and maintain the company’s terminal buildings thereon, the bond executed by the company and the officers personally engaging to guarantee that the officers, should they fail to perform, would return the money received, was not ultra vires as to the corporation.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. <&wkey;>58.]
    6. Corporations &wkey;>432(l) — Officer — Authority to Execute Bond — Presumption.
    Where a corporation’s bond is,offered in evidence without any objection, the presumption is, in the absence of evidence,to the contrary, that the officer who signed it was duly authorized.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1718, 1726, 1743, 1762; Dec. Dig. &wkey;432(l).)
    7. Trusts <&wkey;70 — Resulting Trust — Bonus to Secure Purchase of Lots.
    Where, in return for a bonus, the officers of a traction company agreed with property owners in a city to purchase lots and erect and maintain the terminal buildings of the traction company thereon, and the money donated was used in the purchase of the lots, having been advanced with the understanding that the title should be vested in the officers, it never having been contemplated that the property owners should have any interest, there was no resulting trust in favor of the property owners, since the law will not imply a trust where the parties did not intend that any interest should vest, and there was no diversion of the funds.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 95-97; Dec. Dig. &wkey;70J
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Suit by Will N. Harrison and others against the Eastern Texas Traction Company and others. From a judgment for plaintiffs, defendants appeal.
    Judgment reformed and affirmed.
    Joseph F. Nichols and Sherrill & Starnes, all of Greenville, for appellants. B. M. Mc-Mahan and H. L. Carpenter, both of Green-ville, for appellees.

      Application for writ of error pending in Supreme Court.

   I-IODGES, J.

In July, 1913, the appellants White and Crotty were officially connected with the appellant Eastern Texas Traction Company; one of them as its president, and the other as its vice president and general manager. The Eastern Texas Traction Company was a private corporation organized to construct and operate an interurban railway between Greenville and Dallas. The appel-lees are the owners of property in Greenville; and for the purpose of securing the benefits resulting from the location and the maintenance of the office and terminal buildings of the traction company upon certain lots in the city of Greenville entered into the following contracts:

“In consideration that J. W. Crotty and Forest E. White will buy lot No. 1 in block 202 in Greenville, Hunt county, Texas, known as the J. B. Clayton’s corner on West Lee street, and lot No. 15 in block No. 202, immediately south of said lot, known as the Mrs. Bessie Lit-, tie’s lot, and will construct and maintain on said lots the depot and terminal station buildings of the Eastern Texas Traction Company, the undersigned, as trustee for certain property owners who will be benefited by the location and maintenance of said station and office on said lots, and have subscribed the ¡¡>4,250.00 herein mentioned, agrees to pay to said Crotty and “White the sum of $4,250.00 on the purchase price of said lots, when the purchase of said lots is consummated by said Crotty and White. And the said Crotty and White hereby obligate themselves to buy said lots as aforesaid and .commence to erect thereon the station buildings “aforesaid, within a period of six months from this date, and complete same within twelve months from date hereof, and guarantee that the said Eastern Texas Traction Company will establish and maintain its said depot and terminal station on said premises; and they further guarantee that the said improvements on the said lots shall be at least the fair cost of $10,-000.00.
“This contract shall become effective when ratified by the said traction company by proper resolution entered on its. minutes, and its assent in writing appended hereto, and when a legal and sufficient guaranty for the faithful performance of their agreements by Crotty and White and the traction company is entered into; and upon full compliance by said White and Crotty with their covenant therein, said trustee shall execute to them a full release of this contract.
“Executed in duplicate this the 24th day of July, 1913. [Signed] J. W. Crotty.
“E. E. White.
“[Signed] C. M. Portwood.
“Bond.
“In consideration of the benefits to accrue to it and other good considerations, the Eastern Texas Traction Company hereby assents to and ratifies the foregoing contract on the part of Crotty and White, as to the location and maintenance of its depot and station terminals in the city of Greenville, and the said J. W. Crotty and Forest E. White, as principals, and the said Eastern Texas Traction Company, a corporation, and L. E. Birdsong, hereby jointly and severally acknowledge ourselves to owe and be indebted to C. M. Portwood, trustee, in the full sum of $5,000.00, payable to said trustee, at Greenville, Texas.
“The condition of this obligation is that whereas, if all of the aforesaid covenants and conditions as to the erection and construction and establishment and maintenance of the depot and station terminals on said premises is not fully performed, then the said Crotty and White will repay to said trustee, or his successor', for the benefit of the respective subscribers to said fund, the full sum of money so subscribed, with 8 per cent, interest per annum thereon, and all costs and expenses of collection, if any.
“Witness our hands this 24th day of July, 1913. [Signed] E. E. White. J. W. Crotty. Eastern Texas Traction Co., By E. E. White, President. L. E. Birdsong. Attest: [Signed] I. A. Miller, Secretary.”

At the expiration of the time stipulated no steps had been taken by Crotty and White to perform “their undertaking; and some of those who had contributed to the fund of $4,250 were unwilling to extend further time, and demanded the return of their portion of the contribution. The appellees were those who were willing to give more time, and accepted from Crotty and White the following obligation:

“Supplemental Agreement.
“It is agreed between J. W. Crotty and E. E. White, first parties, and C. M. Portwood, for himself and as trustee for the other subscribers to interurban station site bonus, second parties:
“(1) That Crotty and White will not repay to said trustee et al. the sum of $1,650.00 of the bonus heretofore paid them.
“That they will begin or cause to be begun in good faith the erection of the station and terminal buildings provided for in the original contract, on or before April 15, 1914, and complete the same within six months from that date.
“That they will pay interest on the $4,250.00 from July 24, 1913, to April 14, 1914, at 8% per annum, to be deducted from the $1,650.00 to be repaid by trustee et al.
■ “That the said trustee et al. agree to and hereby extend time for commencement and construction of said buildings to the periods aforesaid, and agree to repay said $1,650.00 to Crotty and White or their assigns, when the foundation of said buildings have been made and material on the ground and construction of walls shall have reached at least six feet in height, but the amount of interest aforesaid shall be deduet-■ed from the sum to be so repaid.
“Said Crotty and White will convey the lots to, and cause a further obligation to be made by the Eastern Texas 'Traction Company, for the construction and maintenance of its depot and terminal station upon said premises in said city of Greenville, as a condition tó being entitled to the said bonus.
“The original contract between the parties as to said matters is continued in force, except as amended hereby.
“Executed in duplicate this 29th day of January, A. D. 1914.
“[Signed] White and Crotty,
“By J. W. Crotty.”

It appears that the $1,650 referred to in this instrument was paid over to those of the original contributors who refused the extension of time. Before the expiration of the time limit last referred to Crotty and White had purchased the lots and had received the bonus of $4,250, but have never constructed the buildings contemplated, nor has the traction company ever established •its offices upon the lots mentioned.

The appellees instituted this suit against Crotty and White and the Eastern Texas Traction Company for the purpose of recovering the sum of their respective contributions to the bonus paid to Crotty and White, and interest thereon at the rate of 8- per cent, per annum as stipulated in the original agreement. They also asked that a resulting trust in the lots purchased by Crotty and White be declared in their favor. In a trial before the court' without a jury a judgment was rendered establishing, the trust as prayed for and awarding in favor of each of the contributors a judgment for that portion which he had contributed, together with interest thereon at the rate of 8 per cent, per annum from the time the contributions were made.

In so far as Crotty and White are concerned in this appeal, it may be said that they are without any meritorious defense as to the personal liability adjudged against them in the- court below. In consideration of a bonus received they had agreed to purchase the lots referred to in their contracts and to construct thereon certain buildings, and guaranteed that the offices of the traction company would .there be located and maintained. They have failed to perform the material parts of' their engagements, and there is no reason why they should not return the bonus, together with the stipulated interest, according to their contract. The benefits which the appellees were to receive and which induced them to make their contributions were the results of having the offices of the traction company established and maintained upon the lots in question. The mere change in the ownership of the lots,' caused by their purchase by Crotty and’ White, did not produce the benefits which formed the consideration of the agreements. •According to their testimony Crotty and White entered into this enterprise as a personal speculation, and not as agents of the' traction company. -They cannot, therefore, evade the legal consequences of their failure to perform their contract.

The traction company, however, denies liability, upon the ground that the terms of thé contracts do not bind it to perform any of the engagements undertaken by Crotty and White, and upon- the further1 ground that the bond to which it is ostensibly a party was executed in its ñame by White without any authority. It also pleads that this bond undertakes to bind the traction company to the performance of an ultra .vires undertaking. It is evident that the first and principal contract entered in,to by Crotty and White on July 24, T913, should be construed as their personal engagement to bring about the stipulated conditions. The bond which followed contains the assent and ratification of the traction .company to maintain its offices in the city of Green-, ville, and inferentially it-may be said upon .the lots in question. This does not necessarily include an agreement by the traction company to construct the buildings in accordance with the undertaking of Crotty and White. If the traction company therefore is liable at all, it must- be held on the bond it entered into with Crotty and White. This is an engagement, it is- true, to guarantee that Crotty and White, in the event they, failed to perform their agreements regarding .the property to be purchased and improved, would return the money they had received. The traction company was not wholly without interest in this enterprise. Crotty and White were endeavoring to secure-lots on which to erect buildings, to be occupied by. it in the necessary conduct - of its business/ It had in effect agreed to occupy and use. those buildings' when constructed. ■ Its guaranty was given evidently to- enable Crotty and -White to secure the lots. It might as .an original undertaking have made just .such a contract with the contributors as Crotty and White had entered into, and could have hound itself to return the bonus in the event it failed to erect the buildings and maintain-its offices there. The evidence shows that C-rotty and White subsequently conveyed the lots purchased by them to the traction company ; that .the latter began the erection of buildings thereon, and abandoned the work because of the lack of funds. We conclude that the contract was not ultra vires.

It is further contended that White had no authority to execute the bond in the name of the traction company; that his act in signing its name to that instrument was a usurpation of authority. The bond was offered' in evidence without any objection, and the presumption is, in the absence of evidence to the contrary, that the officer who signed it was authorized to do so. 14 Eney. of' Evidence, p. 741. The evidence shows that White and Crotty were the executive officers of the traction company, and in the active management - of its business affairs. We think, however, that the portion of the ' judgment "of the trial court which undertook to. establish in favor-of the appellees a resulting trust in the lots is without support in the evidence. While the money donated was used in the purchase of the lots, ‘it was advanced as a bonus and’ with the understanding that the title to the property should be vested in Crotty'and White. It was never contemplated that ‘the- appellees should themselves have any interest in the lots. The law will not imply a trust where the parties did not intend that any interest should vest, and there was no diversion of the funds.

The judgment will accordingly be reformed and affirmed.
      «SsAFÓr other cases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    WENTZELL et al. v. CHESTER et al.

    (No. 609.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Appeal and Error <&wkey;759 — Briefs—Copy op Assignments op Error.
    Assignments of error, as they appear in the motion for new trial, must be correctly copied! in the brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. &wkey;>759.]
    2. Trespass to Try Title <&wkey;16 — Trial — Election Between Sources op Title.
    In trespass to try title, the defendant need not elect as between two deeds, both of which are valid and convey the same title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 20, 23; Dec. Dig. &wkey;> 16.]
    3. Deeds <&wkey;194(l), 196(1) — Evidence—Burden op Proof.
    Where in trespass to try title defendant shows possession of title deeds and the land' in suit at' the date of plaintiffs’ deeds to the same land, the burden of proof is, on-plaintiff to show nondelivery óf défendant’s deeds and want of mental capacity of grantor to execute the same.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 574, 575, 581-583, 587-593, 634, 649; Dec. Dig. &wkey;194(l), 196(1).]
    4. Evidence <&wkey;373(l) — Documentary Evidence — Deeds—Authentication.
    Where in trespass to try title defendant proves the execution and delivery of deeds under which possession is had of the land and the mental capacity of the grantor to execute and deliver them, the deeds are admissible as evidence as against the affidavit of plaintiff as to forgery.'
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1581; Dec. Dig. ■ &wkey;373(l).]
    5. Appeal and Error <&wkey;1067 — Habmless Error — Refusal op Immaterial Instructions.
    Refusal of special charges submitted by appellant upon immaterial issues is not cause for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <@=>1067; Trial, Cent. Dig. § 475.]
    '6. Appeal and Error <&wkey;1056(2) — Harmless Error — Excluding Evidence.
    The exclusion of impeaching evidence offered by appellant upon immaterial issues is not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4188; Dec. Dig. &wkey; 1056(2).]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Frank Wentzell and another against Ella W. Chester and.another. The 'named defendant died pending the suit, and the case proceeded against the other defendant, W. W. Chester. From judgment for surviving defendant, plaintiffs appeal.
    Affirmed.
    F. L. Jones, of Houston, for appellants. R. W. Franklin, of Houston, for appellee.

      Application for- writ of error pending in Supreme Court.

   WALTHALL, J.

This is an action of trespass to try title to lot 4 in block 404, Baker’s addition to the city of Houston, north side of Buffalo Bayou, Harris county, Tex., originally brought by appellants, Frank Wentzell and Ella W. Wentzell, against Ella W. Chester and her husband, W. W. Chester. Ella W. Chester died pending the suit, and the case 'proceeded against W. W. Chester, sole devi-see under her will. Anna Jankowski, and in some of the pleadings and other parts of the record called Anna Yankowski, is the agreed common source of title. Appellants claim title by deed of purchase from Anna Jankow-ski, dated July 10, 1913. Appellees claim title by two separate deeds of gift, first, October 25, 1912, second, November 25, 1912, from Anna Jankowski. The ease was tried before a jury, and submitted upon special issues. Upon their findings the court entered a judgment for defendant W. W. Chester.

The charge of the court and the issues submitted quite clearly indicate the issues of fact presented by the pleadings and proof, and we think we need not more fully state them.. The charge and the answers to the issues submitted are as follows:

“(1) The court submits this ease to you upon special issues, which you will answer as you find the fact to be in regard to each of such special issues hereinafter submitted to you, on a separate sheet or sheets of paper, numbering your answer to correspond with the number of the issue submitted, being guided by the charge herein as to the law which the court gives you as applicable to the issues herein.
“(2) The. mental condition of a party making a deed which would render a deed invalid and void is such condition of mental weakness as renders the party at the time incapable to understand what he or she is doing and the effect of his or her act, as the case may be. If a person, though sick and physically weak, is nevertheless possessed of sufficient mental capacity to understand what he or she is doing, and is capable of forming the intent to make and deliver a deed, and knows the effect thereof, such person in the meaning of the law, is of sound mind, and a deed made under such circumstances is valid and conveys title. If a person is not possessed of that degree of capacity stated above, to convey the title to such party, the deed conveys no title. Every person is presumed of sound mind until the contrary is shown.
“(3) Concerning the question of what is essential to the delivery of the deed, you are instructed as follows: That question is generally one of intention, and if a party signs and acknowledges a deed, and the officer by whom the acknowledgment is taken hands it over to the grantee (that is, the party to whom it is made) in the presence of the grantor (that is, the party making it) with such party’s knowledge, and the grantor makes no objection, that is delivery in law. If Anna Jankowski made the deed of October 25, 1912, or. made the deed of November 25, 1912, to Ella Chester, intending thereby to convey to her (the said Ella Chester) title to the property, and the notary, with the knowledge of Anna Jankowski,' handed the deed to Ella Chester after it was executed, and she, the said-Anna Jankowski, made no objection, then that was delivery within the meaning of the law. If Anna Jankowski did not intend to deliver the deed to Ella Chester, or did not intend that it should be delivered to her so as to convey title, then the fact that it came into the possession of Ella Chester would not make the delivery complete, and there would be no delivery in law.
“(4) Upon the question of undue influence, you are charged that by undue influence is meant that there is brought to bear upon the mind of the party signing the instrument such influence as was sufficient to overthrow her will and induce her to make an instrument that she did not intend to make and would not have made but" for such influence, and would not have done if left to herself. Pérsuasion or entreaty or argument or solicitation- does not constitute undue influence sufficient to set aside a deed, unless it is shown to have subverted and overthrown the will of the grantor and caused her to do that which she did not desire or. intend to do.
“(5) The burden of proof is upon the plaintiffs by a preponderance of the evidence to establish nondelivery of the alleged deeds from Anna Jankowski to Ella Chester of dates October 25, 1912, and November 25, 1912, respectively, mental incapacity to execute said deeds, or that undue influence, as that term has been heretofore defined, was exercised by the defendants, or either of them, upon Anna Jankowski to induce her to make the deeds.”

In response to the issues submitted, the jury found and returned the facts to be as follows:

(1) Anna Jankowski executed the deed to the property In controversy to Ella Chester on or about October 25, 1912.

(2) Anna Jankowski intended by the deed of October 25, 1912, to convey the title to the property in question to Ella Chester.

(8) At the time of the execution of the deed of October 25, 1912, Anna Jankowski was of sound mind and capable of making a deed, as that term is defined in the charge of the court.

(4) Anna Jankowski delivered the deed of October 25, 1912, as delivery has been defined in the charge of the court.

(5) The defendants, nor either of them, exercised undue influence on Anna Jankow-ski to induce her to make the deed of October 25, 1912, conveying the property in question to Ella Chester, as undue influence is defined and explained in the charge of the court.

(6) Anna Jankowski at the time of executing and delivering the deed of October 25, 1912, was not under the influence of beer or whisky to such an extent that she did not know and appreciate the nature and effect of her act.

(7) Anna Jankowski executed the deed to the property in controversy to Ella Chester, of date November 25, 1912.

(S) At the time of the execution of the deed of November 25, 1912, Anna Jankowski was of sound mind, and capable of making the deed as that term has been defined in the charge.

(9). Anna Jankowski delivered the deed of November 25, 1912, to Ella Chester, or it was delivered to her in the presence and with the knowledge of Anna Jankowski and without objection on her part.

(10) Anna Jankowski intended by the deed of November 25, 1912, to convey the title to the property in question to Ella Chester.

(11) The defendants did not exercise undue influence on Anna Jankowski to induce her to make the deed of November 25, 1912, conveying the property in question to Ella Chester as undue influence is defined and explained in the charge.

(12) Anna Jankowski on July 10, 1913, was of sound mind and capable of making a deed as that term is defined and explained in the charge. On the twelfth issue the court instructed that the burden was on defendant Chester to establish the negative of the issue by a preponderance of the evidence.

(13) Frank Wentzell is the father of Ella Chester.

(14) The defendants Chester have occupied the property in question since July 10, 1913.

(15) The reasonable rental value of the property in question from July 10th to the time of trial is $10 per month. The court charged the jury that they were the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony¡ but the law they were bound to take from the charge given them, and be governed thereby.

Appellee objects to a consideration of any of appellants’ assignments of error, because they do not conform to the rules governing in the preparation of cases for submission in Courts of Civil Appeals. Appellants’ motion for a new trial covers 117 pages of the record, and is divided into five paragraphs or subdivisions, each paragraph covering more than one subject.

The appellants in their assignments in the brief make no pretense to copy the corresponding paragraph or portion of the paragraph in the motion for a new trial to which they refer. It would serve no good purpose to show the reasons why the 25 assignments in the brief do not distinctly specify grounds of error, as required by the rules.

Assignments of error, as they appear in the motion for new trial, must be correctly copied in the brief. Edwards v. Youngblood, 160 S. W. 288; Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35; Lakeside Irr. Co. v. Buffington, 168 S. W. 21; Coons v. Lane, 168 S. W. 981; Ruth v. Cobe, 165 S. W. 530; Fessinger v. El Paso Times Co., 154 S. W. 1171; Imperial Irr. Co. v. McKenzie, 157 S. W. 751.

However, we have carefully reviewed the entire case, and are of the opinion that the record shows no reversible error. It was agreed that Anna Jankowski is the common source of title. The proof amply shows ¿hat she voluntarily executed and delivered the two deeds to Ella Chester to the property in controversy, one on October 25, 1912, and one on November 25, 1912, and that at each time, she intended to execute the deed, was of sound mind and capable of executing the deeds, was' not under the influence of beer or whisky, and on each issue submitted the jury found the fact submitted in favor of appellee. There is nothing in appellants’ contention that the court should have required the appellee to elect as between the two deeds. If Anna Jankowski voluntarily .executed and delivered either one of the two deeds, and was not at the time in any way under any of the disabilities charged, and each deed was executed and delivered before her deed to appellants, there is no reason why appellants should not be permitted to claim title under either or both of said deeds.

The court placed the burden of proof on appellants to show nondelivery of the deeds and want of mental capacity to execute the deeds. Appellee was in possession of the deeds and the lot conveyed at the date of appellants’ deeds. Appellee also proved the execution and delivery of the deeds, and the mental capacity of the grantor to execute and deliver the deeds. That was sufficient to admit the deeds as evidence, as against the affidavit as to forgery. Appellants alleged that the deeds were never delivered, and that the grantor, Anna Jankowski, did not have the mental capacity to execute the deeds. We think the court was not in error, as the issues of nondelivery and want of mental capacity were defensive matters. The deeds were deeds of gift. Anna Jankowski was a white woman. Ella Chester was a bastard child of an unmarried negro woman, and the consideration in the deeds are recited to he “natural love and affection I bear for my granddaughter, Ella Wentzell IChester.” It is claimed by appellant that the consideration stated is impossible. To meet that phase of the case, if it could be a defense against the deeds, appellee, alleged, proved, and the jury found that appellant Frank Wentzell, son of the grantor, was the father of Ella Wentzell Chester, and that Anna Jankowski was the recognized grandmother of Ella Chester; that Ella had lived with and cared for her grandmother from early childhood until her marriage; that the clause in the deed referring to Ella as a granddaughter was referred to in reading and explaining the deed; and that Anna Jankowski said that she wanted to make the deed while she was living, “on account of the color of her granddaughter.” Appellants submitted special charges, which were refused, and offered impeaching evidence which the court refused to hear, upon which appellants have undertaken to assign error. The evidence and charges were upon immaterial issues, and which could in no way affect the voluntary execution and delivery of the deeds.

The case is affirmed.
      @=»For other cases see same topic' and KEY-NÚMBER. in all Key-Numbered Digests and Indexes

      «&wkey;For otter oases see same topic and KEY-NUMBER in all Key-Numbered'Digests and Indexes


author: LEVY, J.

text:
    CORSICANA TRANSIT CO. et al. v. WALTON.
    (No. 1616.)

    (Court of Civil Appeals of Texas. Texarkana.
    July 1, 1916.
    Rehearing Denied Oct. 19, 1916.)
    1. Death <§=>33 — Action — Parties Liable.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4694, authorizing an action for wrongful death caused by the neglect of any carrier by the negligence of its servants or agents, an electric company not owning or operating a street railroad, though receiving the money collected by the transit company and applying it as a credit on the amount due to it for the rent of car barns, electric power, etc., but having a distinct corporate existence, was not liable for the death of one killed by the negligence of railroad’s motorman.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 49; Dec. Dig. <@=>33.]
    2. Corporations <@=>617(5) — Dissolution — Abatement oe Action.
    Where a corporation was dissolved, the remedy was to abate an action against it, and not to direct a judgment on the merits in its favor.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2454; Dec. Dig. <@=>617(5).]
    3. Appeal and Error <@=>232(1) — Questions for Review — Nonexistence of Defendant Corporation.
    A suggestion to the trial court that a defendant corporation was nonexistent may be considered as raising the question of the right of such corporation to prosecute an appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1368, 1430; Dec. Dig. <@=>232(1).]
    4. Corporations <@=>617(5) — Right to Appeal.
    A corporation which had become nonexistent by its dissolution had no capacity to prosecute an appeal from a judgment against it.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2454; Dec. Dig. <@>=617(5).] •
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by W. W. Walton against the Corsi-cana Transit Company, the Corsicana Gas & Electric Company, and the Southern Traction Company. Judgment for plaintiff, and defendants appeal.
    Judgment against the Corsicana Gas & Electric Company reversed and rendered in its favor, appeal of Corsi-cana Transit Company dismissed, and judgment as to Southern Traction Company affirmed.
    This is an action by the appellee for damages for the alleged wrongful death of his child two years old. The street car struck and killed the child at the street crossing of Third avenue in the city of Corsicana on January 31, 1913. The petition alleged that the Corsicana Transit Company owned the line of street railway and the street car, that the Corsicana Transit 'Company was a corporation legally organized under the laws of Texas' and engaged in business in Corsicana in Navarro county, Tex., with its principal offices therein, and that the street car was being operated at the time of the accident by a motorman of the transit company. The petition further averred that the negligence was that of the Corsicana Transit Company, and also of the motorman in operating the car. But the petition has the further paragraph:
    “10. Plaintiff further alleges that he is unable to tell exactly who owns the Corsicana Transit Company and the car in question, and who is the real employer of said motorman, but he is informed and believes, and therefore alleges, that all of said defendants are owned, dominated, and controlled by the same person or persons, and that they operate as a copartnership, and that while nominally they are being operated in the guise of corporate entities, yet they are but the subsidiaries of each other, and the Corsicana Transit Company is the agent of the other defendants herein, and is owned by them as their instrument in transacting their business, and that they are jointly liable for the acts complained of and damages sued for herein.”
    The petition then prays for judgment against the defendants jointly and severally for the damages sued for.
    The Corsicana Gas & Electric Company pleaded in defense that -it did not own nor operate the street railway or the car, and was not liable for the injury. The Corsicana Transit Company appeared by answer and presented legal exception to the petition, a denial of any negligence, and a plea of contributory negligence on the part of the plaintiff. The answer was signed by attorneys and was sworn to by J. W. Carpenter as agent of the Corsicana Transit Company. There was a verdict in favor of appellee against both companies.
    The evidence shows that the Corsicana Transit Company, a corporation, is engaged in the business of operating a street car system in Corsicana; and the Corsicana Gas & Electric Company, a corporation, is engaged in the business of manufacturing and supplying the public in Corsicana with electric lights and power. At the time of the injury complained of, and before that time, the stockholders and the directors of the Corsicana Transit Company and of the Corsicana Gas & Electric Company were the same persons, and J. W. Carpenter was president and manager of each company. Each of these corporations held separate stockholders’ and directors’ meetings and was managed by its1 own statements annually to the city, state, and federal governments. The Corsicana Transit Company exclusively owned the street railway and the cars, and never ceased operating the street railway; and the motorman in charge óf the car was an employé of the Corsicana Transit Company. The Corsicana Gas & Electric Company furnished the Corsicana Transit Company the electric power with which to operate the street railway, and was paid for such power at the rate of 3% cents per kilowatt. The Corsicana Transit Company was organized in the summer of 1903, and at that time its stockholders and directors were different persons from the stockholders and directors of the Corsicana Gas & Electric Company; and at the time of its organization the transit company arranged or agreed, for economy and convenience, with the gas and electric company to pay the gas and electric company, in addition to the amount paid for electric power, the sum of $100 per month for ground rent for the car barn and for clerical work in the superintendency of the company’s affairs. This agreement continued until the Southern Traction Company took over the street railway .property on February 1,1913. The Corsicana Gas & Electric Company did not receive any profit or benefit besides the specified sum of $100 and the amount paid for electric current. The evidence respecting the dealings of the two companies with each other and how the business was conducted may be shown substantially, it is concluded, by quoting from the testimony of the witness Carpenter as follows:
    “I was president and manager of the Corsi-cana Transit Company; and I also held the same positions with the Corsicana Gas & Electric. Company. I .held both positions in each of the corporations at the same time. The Cor-sicana Gas & Electric Company furnished power to the Corsicana Transit Company, with which to run its cars, and the Corsicana Transit Company paid the Gas & Electric Company for that power. The Corsicana Transit Company employed me to operate and manage the Cor-sicana Transit Company, and the Corsicana Gas & Electric Company, employed me to operate and manage its business. I was manager of the Corsicana Transit Company on the day of the accident, and was managing it on that day. As manager and president of the Corsicana Transit Company it was my business to look after its business in every way; hire employés ; attend to its business in every respect. As manager and president of the Corsicana Gas & Electric Company, it was my duty to attend to the operation of its business in every' respect. The two businesses, that is, the Corsicana Gas & Electric Company and the Corsicana Transit Company, were separate and distinct, and it just happened that I was president and manager-of both concerns. When I employed employés for the Corsicana Transit Company, I was acting for the Corsicana Transit Company; and when I employed employés for the Corsicana Gas & Electric Company, I was acting for that concern. The fares on the street cars are placed in boxes on the ears, and those fares are collected daily, and when the money is collected off the cars it is taken to the office and placed in the safe. That money is placed to the credit of the Corsicana Transit Company. We make an entry in our books of the amount of money collected from the cars. The Corsicana Transit Company did not have books in which to keep a record of its business; that credit I just mentioned was made on the books of the Corsicana Gas & Electric Company. We show the collections from the cars of the Corsicana Transit Company in the books of the Corsicana Gas & Electric Company, but the money so collected is placed to the credit of the Corsicana Transit Company. In answer to your question as to why it was that we used the books of the Corsicana Gas & Electric Company, in which to enter the receipts of the Corsicana Transit Company, I will say that we did that simply because it was less trouble to transact the business that way than it was to have two distinct sets of books. We would collect the money from the cars of the Transit Company once a day, and on the books of the Gas & Electric Company we would make a notation as to how much was collected and credit it to the Corsicana Transit Company. We had one book that belonged to the Corsicana Transit Company, which was separate and distinct from the books of the Corsicana Gas & Electric Company, that was what was called the cash fare book. I sometimes used the employés of the Corsicana Gas & Electric Company to do work for the Transit Company, but when I did that the Transit Company would pay them for such work; the Transit Company would pay the Gas & Electric Company for that work. The Gas & Electric Company, in doing that work, or furnishing power, would be paid for that by the Transit Company, just like it was a third party. Some of the employés of the Transit Company were separate in their work from the ém-ployés of the Corsicana Gas & Electric Company. There was ño employé who was the em-ployé of both the Corsicana Gas & Electric Company and the Corsicana Transit Company at the same time.”
    The evidence warrants the findings of fact that the motorman in charge of the car was guilty of negligence in operating the street car as alleged, proximately causing the death of the child, and the evidence warrants the amount of the verdict. The Corsicana Transit Company was the owner of and was operating the street car and .railway, and the motorman cansing the death was'its employé. The Corsicana Gas & Electric Company was not the owner or hirer of, nor was it operating, the railway or car in copartnership or jointly with the Transit Company. The Cor-sicana Gas & Electric Company was by contract paid a fixed sum for ground rent for car barn and for superintendency of the financial and corporate affairs of the transit company, and received no profit nor pay besides said fixed sum as compensation and the pay for electric current.
    McClellan & Prince and Woods & Kerr, all of Corsicana, for appellants. Richard Mays and Luther A. Johnson, both of Corsi-cana, for appellee.

      Application for writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above). The appellant Corsicana Gas & Electric Company predicates error upon the refusal of the court to peremptorily instruct, as requested, a verdict in its favor, because the evidence fails to show it to be liable under the statute for the death of the child. The petition fairly charged, as we interpret it, the two things: (1) That the Gas & Electric Company and the Transit Company were operating a street, railway “as a copartner-, ship,” or jointly, and (2) that the Gas & Electric Company “owned” the street railway property. We concluded that the Corsicana Transit Company through its motorman was guilty of negligence proximately causing the death of the child. We have further concluded as applicable to the two things pleaded by appellee that, in point of fact as disclosed by the evidence, the Gas & Electric Company was a distinct existing corporation and did not own and was not operating the street railway or car by hire or as a partner with or jointly with the Corsicana Transit Company, a distinct and separate corporation. Giving legal effect to the facts so found, it is believed that the Corsicana Gas & Electric Company may not be held liable for the death of the child. Article 4694, Vernon’s Sayles’ Stat.; Lange v. Burke, 69 Ark. 85, 61 S. W. 165; White v. Land & Water Co., 18 Tex. Civ. App. 634, 45 S. W. 207; Lipscomb v. Ry. & Express Co., 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804.

The Corsicána Transit Company by its assignment of error insists that the court committed fundamental and prejudicial error in failing to peremptorily charge the jury to bring in a verdict in its favor, upon the ground that such company had been legally dissolved and was no longer in existence at the time of the suit. The transit company appeared and made answer to the merits of the suit, and evidence was, offered in defense against its liability charged in the petition. And it appears there was evidence showing that on April 7, 1913, at a meeting of the stockholders and directors of the transit company, there was voluntary dissolution of the corporation. The stockholders of the corporation properly signed the resolution dissolving the corporation, and filed the same with the secretary of state, who issued, a certificate of dissolution. It is believed it may not be said that there was error, as contended by appellant, in the precise assignment of error, on the part of the trial court in refusing to direct a verdict in its favor on the merits of the case, for judgment would have to be rendered on the verdict. The necessary legal effect of the dissolution is merely to abate the action against the corporation. 5 Thompson on Oorp. (Ed. 1895) § 6723; 10 Cyc. p. 1316. If appellant was dissolved as a corporation the remedy was to abate the action, the same as the suggestion of death of a defendant would abate an action. And taking the proof as a suggestion to the trial court that the corporation was nonexistent,' such suggestion may be considered as raising the question of the right of such corporation to prosecute an appeal. Being nonexistent as a corporation by dissolution, the dissolution terminates its existence, so that it has no capacity to prosecute an appeal. State v. Loan & Trust Co., 113 Iowa, 439, 85 N. W. 638. The corporation may only appeal from a judgment declaring a forfeiture of its charter. Railway Co. v. Jackson, 85 Tex. 605, 22 S. W. 1030.

The Judgment against the Corsicana Gas & Electric Company is reversed and here rendered in its favor with costs, and the appeal by the Corsicana Transit Company is dismissed. The appellee and the sureties on the Corsicana Transit Company’s bond will each pay one-half of the costs of appeal. The judgment as to the Southern Traction Company will remain undisturbed.
      <SS=>F or other cases see same topic and KEY-NUMBER in all Key-Numbered Digest-, and Indexes


author: JENKINS, J.

text:
    ROBERTS-BROWN LUMBER CO. v. VICKERY.
    (No. 5662.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1916.)
    Sales <S=o221 — Liability lor Price — Purchase erom Purchaser.
    Where a lumber company sold and shipped three carloads of lumber to a partnership, which arranged with defendant to receive the three carloads and to satisfy therefrom previous orders of the partnership’s customers, defendant to receive the difference between the wholesale or invoice price and the retail price of the lumber fdr unloading, taking care of, and delivering it, and to remit to the lumber company for the balance, defendant was liable to the lumber company, after performing his contract, with the partnership, only for the invoice price of the balance of the lumber, since he took title to the lumber from the partnership, and not from the lumber company.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 604, 605, 607, 60S; Dec. Dig. <®=»221.]
    Appeal from Hamilton County Court; J. L; Lewis, Judge.

      Suit by tbe Roberts-Brown Lumber Company against W. R. Vickery. From a judgment for plaintiff for $318.13, plaintiff appeals.
    Judgment affirmed.
    A. R. Eidson, of Hamilton, for appellant. H. E. Trippet, of Hico, and J. W. Bleker, Jr., for appellee.
   JENKINS, J.

The appellant shipped three carloads of lumber from Shreveport, La., to Brown Lumber Company, Richland Springs, Tex. This lumber was turned over to ap-pellee, who delivered a portion thereof to certain parties who claimed to have bought same from the Brown Lumber Company. The determinative issues in this case are issues of fact, viz.: Who sold the lumber to appellee? To whom did it belong when it was delivered to appellee? These issues were found by the court in favor of appellee, as appears from the following findings of fact:

“(1) I find that the Roberts-Brown Lumber Company, a corporation doing a wholesale lumber business, with its principal office at Shreveport, La., about September 16, 1911, sold to the Brown Lumber Company, of Richland Springs, Tex., three cars of lumber, f. o. b. on cars at Shreveport, La., at an agreed price of $1,094.55.
“(2) I find that the Brown Lumber Company, of Richland Springs, Tex., was a firm composed of R. Willbanks, of Walnut Springs, Tex., J. R. Dofflemyre, of San Saba, San Saba conuty, Tex., and J. B. Brown, of Pleasant Hill, La.
“(3) I further find that it was the intention of said firm to place R. Willbanks at Richland Springs, as general manager of their yards, and that J. -R. Dofflemyre was to be connected with the yard, either in the capacity of a salesman or as a trader, that is, trading lumber for stock, which stock was to be shipped to the other member of the firm J. B. Brown, and by him traded for lumber. Some time- subsequent to the shipment of the three cars of lumber above referred to, and before they reached their point of destination, or before they reached Richland Springs, Tex., the said Brown Lumber Company concluded not to open their yards at Rich-land Springs, and concluded to dispose of the lumber they had in transit.
“(4) R. Willbanks and J. R. Dofflemyre, representing the firm of Brown Lumber Company, made a trade with the defendant W. R. Vickrey on or about the 10th day of October, 1911, whereby they were to divert the above referred to three cars of lumber, which were then at Lo-meta, Tex., to the defendant W. R. Vickrey, who was then in the lumber business in San Saba, Tex., on the following terms, to wit: That the said W. R. Vickrey was to take the said lumber and unload same in his yards, Brown Lumber Company was to pay the excess freight and whatever demurrage there should be on the lumber, and the said W. R. Vickrey was to deliver for them, the said Brown Lumber Company, $650 worth of this lumber that they represented to him they had already sold to patties living near .San Saba, as follows: “To Mat Kuykendall $365 worth of lumber at retail price; to H. G. Galloway $160 worth of lumber at retail price; to Prank Chamberlain, $125 worth of lumber at retail price. Defendant was to deliver this lumber to these parties when called for; the Brown Lumber Company having already traded the lumber to these parties for stock. The defendant was to receive the difference between the wholesale or invoice price and the retail price of the lumber for unloading, taking care of, and delivering said lumber. He was to remit to the mill for the balance of said lumber, less the freight and demurrage.
“(5) I find that, in pursuance of this contract, the defendant W. R. Vickrey took charge-of these said cars of lumber when they were-delivered to him, unloaded the same, and, in'fact, delivered to the above-named parties the $650' worth of said lumber above referred to.
“(6) I further find that after the delivery of the above-described lumber, and after the freight and demurrage charges were taken out, there was still due on the three cars of lumber to the Brown Lumber Company the sum of $3X8.13,. and I find according to the contract made between the defendant Vickrey and R. Willbanks and J. R. Dofflemyre, representing the Brown Lumber Company, this sum- was to be paid to the Roberts-Brown Lumber Company; and I find that W. R. Vickrey has never paid that sum.
“(7) I find that the statement that W. R. Vickrey made on October 21, 1911, to the Roberts-Brown Lumber Company, of Shreveport, La., in reference to these three cars of lumber, was made by him at that time for the purpose of notifying said company thát the cars were received, the amount of the extra freight due on said cars, the amount of demurrage due on said! cars, and that said statement was not made by him for the purpose of changing or altering his-contract with the Brown Lumber Company, and that at the time he told them to charge this account he intended to furnish them with mem-oranda of credit slips for lumber delivered to-the said Mat Kuykendall, Prank C. Chamber-lin, and H. G. Galloway, as well as expense bills for freight and demurrage.
“(8) I find that W. R. Vickrey mailed either to the Roberts-Brown Lumber Company or to J. B. Brown his check for $318.13, which was the amount due by him to said Roberts-Brown Lumber Company under Ms contract with the Brown Lumber Company. I find that said check was either lost or misplaced, and has never been cashed, and I further find that W. R. Vick-rey is entitled to pay the Roberts-Brown Lumber Company the said sum of $318.13, with interest from January 1, 1912, to the date of this-judgment at the rate of 6 per cent.
“(9) I find that all letters and statements from; the Roberts-Brown Lumber Company to Vick-rey were received by him after he made his contract with the Brown Lumber Company, and I find that the lumber in question was the property of the Brown Lumber Company during alL the transactions had between the Brown Lumber Company and W. R. Vickrey, and that the-Roberts-Brown Lumber Company had no interest or title in the lumber, as they sold it to the-Brown Lumber Company on open account, f. o. b. Shreveport, La., and that when Vickrey wrote Roberts-Brown Lumber Company giving statement and agreeing therein to pay for the-lumber he had in mind his trade with Will-banks and Dofflemyre, and did not intend to promise the Roberts-Brown Lumber Company-any more than called for by said trade, and that the statement of the lumber contained in the three cars was made as a basis for settling the excess freight and demurrage, as per said contract. As a matter of law, from the foregoing facts I find that defendant Vickrey owes the plaintiff $318.13, with interest thereon from. January 1, 1912, at the rate of 6 per cent, per annum, and renders and enters judgment accordingly.”

The evidence is sufficient to sustain the-findings of the court. These findings of fact are sufficient to sustain the judgment, for which reasons the judgment of the trial court, is affirmed.

Affirmed.
      (@=sPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■HODGES, J.

text:
    WALTER CONNALLY & CO. v. CONTINENTAL STATE BANK OF BIG SANDY et al.
    (No. 1668.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 2, 1916.)
    Mortgages <§=>127, 494, 654^-Fobeclostjre— Judgment — Description oe Property — Certainty.
    Against mortgagors of chattels and real estate, and subsequent mortgagees and purchasers with knowledge of the property being mortgaged, description in a mortgage, judgment of foreclosure, and sheriff’s deed, stating number and kinds of gin machinery, also the ginhouse in which it is operated, and the lot on which the house is located, it being stated to be “at-in U. county,” and reference being made to the records of Ü. county for further and better description, is sufficient; the property being capable of identification by aid of extrinsic evidence.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 249, 1441-1445, 1582-1591; Dec. Dig. <§=>127, 494, 554.]
    Appeal from District Court, Upshur County; R. M. Smith, Judge.
    Action by Walter Connally & Co. against the Continental State Bank of Big Sandy and another. From an adverse judgment, plaintiff appeals.
    Reversed and remanded.
    Price & Beaird, of Tyler, for appellant. Warren & Briggs, of Gilmer, and J. P. Hart, of Big Sandy, for appellees.
   ■HODGES, J.

In April, 1915, the appellant filed this suit against the Continental State Bank and W. F. Collins, seeking to recover the title and possession of a certain tract of land in Upshur county and some gin machinery located thereon. All the property is ■described more in detail in the plaintiff’s ■petition. Collins filed no answer to this suit. The Continental State Bank answered by a general demurrer, general and special denials, and a plea of not guilty.

The evidence offered by the appellant show- • ed that on June 4, 1912, it sold to W. F. Collins two gin stands and some gin machinery, in payment for which Collins gave four ■promissory notes aggregating $1,400, and at the same time executed a mortgage for the ■purpose of securing the payment of those notes. The mortgage contained the following description of the property:

“Two 60-saw right-hand Pratt huller gins; .two 60-saw class C feeders; one 120-saw right-hand steel lint fule [flue] system; one 120<-saw battery condenser; two iron dust flues .for condenser; one revolving double box 5" screw power press complete with regular equipment, including steam tramper and fittings; one 2/60-saw elevator system complete from wagon to fan, including fan and fan countershaft; one seed blowing elevator complete; one 11x15 Skinner engine complete with all regular fixtures, including foundation bolt and steam and -exhaust pipe; one 42x12 horizontal tubular boiler complete with regular fixtures including inspirator and whistle; also all belting, shafting and pulleys and other appurtenances necessary .to complete the above outfit; also the ginhouse in which the above machinery is located and operated, and the lot or parcel of ground upon which said house and machinery is located. For further and better description of gin lot reference is here made to the records of Upshur county.”

Following this description in the mortgage was the stipulation that:

“The machinery was located and to be located at - in Upshur county, Texas, and to remain personalty wherever located.”

Upon the failure of Collins to pay the notes at maturity the appellant instituted a suit in the district court of Smith county against Collins and the Continental State Bank, in which it recovered a judgment for the amount duei, and a foreclosure of the mortgage. The appellee bank was made a party to that suit upon the ground that it claimed some kind of an interest in or lien upon the property involved. In due course of time an order of sale was issued upon that judgment, and all of the property, both the machinery and the ginhouse and lot, were levied upon and sold by the sheriff and purchased by the appellant. The sheriff thereafter made a proper conveyance to appellant of the same. The description in the judgment and the sheriff’s deed followed that in the mortgage, and was no more definite. Some time after this sale of the property and its purchase by ■the appellant, the Continental State Bank foreclosed a mortgage held by it upon the same property, taken subsequent to that of the appellant. It seems that another sale was made under that judgment of foreclosure,- at which the property was purchased and taken possession of by the bank. The evidence further tended to show that the officers of the bank had actual notice of the appellant’s prior mortgage and that it was on the machinery purchased by Collins from appellant in 1912. Collins testified that at the time he executed the mortgage to appellant he had a verbal contract to purchase the gin lot from its former owner; that the tract consisted of one-half an acre of land, which he was then using as a gin lot and on which he intended to locate this particular machinery; that it was so located and operated, and was there when seized and sold by the sheriff in obedience to the judgment rendered in favor of the appellant.

When the mortgage executed by Collins to the appellant, and the judgment rendered in favor of the appellant against Collins, were offered in evidence, counsel for the appellee Continental State Bank .objected to their introduction, upon the ground that they were void because of the insufficiency of the description of the property. The court refused at that time to sustain the objection, and permitted the evidence to go to the jury. At the conclusion of the testimony, however, he gave a peremptory instruction to the jury to return a verdict for the defendants. The giving of that charge is the principal' error urged on this appeal.

We must assume, in the present state of the record, that the peremptory instruction complained of was prompted by a conclusion on the part of the trial court that the description in the judgment and mortgage was too indefinite to constitute sufficient evidence to sustain a recovery by the appellant.

The sufficiency of a description in instruments of this character depends largely upon circumstances and the relative' situation ■ of the parties to the controversy. A description which might be insufficient to constitute record notice of a prior conveyance or mortgage might be sufficient as between parties to such instruments and those having actual knowledge of the identity of the property intended to be mortgaged or conveyed. While the description here under consideration is somewhat vague, it cannot be said that it is so indefinite as to render void the instruments in which it appears. The following cases appear to sustain that conclusion: Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885; Ranck v. Howard Sansom Co., 3 Tex. Civ. App. 507, 22 S. W. 773; Watt v. Parlin & Orendorf Co., 44 Tex. Civ. App. 439, 98 S. W. 428; Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 247; Harless v. Jester, 97 S. W. 138; Panhandle National Bank v. Emery, 78 Tex. 498, 15 S. W. 23; Johnson v. Brown, 65 S. W. 485; Scaling v. First National Bank, 39 Tex. Civ. App. 154, 87 S. W. 715.

■ In consideration of the sufficiency of the description of the gin machinery, let us suppose that the appellant had sold to Collins property corresponding to that description, and had taken a mortgage to secure the payment of the purchase money, in which the description was no more specific than| is here given. Could Collins successfully resist a foreclosure, upon the ground that the description was too indefinite? Could he say that no property had been mortgaged? We think not. For as between the parties to that contract such details as were necessary to identify the property might be easily supplied by parol evidence. The same liberality would be justified in dealing with subsequent purchasers and mortgagees who had actual knowledge of the identity of the property contemplated in the mortgage.' Parol evidence may be resorted to to supply details not in conflict with a written general description. In Giddings v. Day, 84 Tex. 605, 19 S. W. 682, Chief Justice Stayton quoted as follows from a former decision of the Supreme Court:

“The construction of a deed, being matter of law, is for the court If, therefore, the land intended to be conveyed by it be so inaccurately described that it appears, on an inspection of the deed, the identity of the land is altogether uncertain, and cannot be determined, the court should pronounce it void; but when the uncertainty does not appear upon the face of the .deed, but arises from extraneous facts, as in other cases of latent ambiguity, parol evidence is admissible to explain or remove it. In such case, the deed should not be excluded from the jury, but should go to them along with parol evidence, to explain or remove such ambiguity; and the identity of the land is then a mixed question of law and fact, to be determined by the jury under the instructions of the court.”

Continuing, the court sáid:

“This rule is as applicable to deeds made to consummate sales made by sheriffs under executions as to deeds made by private persons.”

In Wilson v. Smith, 50 Tex. 365, the court, after discussing the sufficiency of a description, said:

“Apparently the court held the defendant’s title insufficient because of uncertainty of description of the .land sold in the sheriff’s deed and in the levy. If so, we are of opinion that the court erred. Certainly the deed cannot be pronounced void upon mere inspection, for it cannot be said that it appears from the face of the deed that the land conveyed cannot be identified by the aid of extrinsic evidence.”

■ The rule as to personal property is no less liberal than that which applies to descriptions of real estate. There is nothing which appears upon the face of the mortgage- or the judgment in this instance- which indicates that a more definite description of the personal property could have been given. Nor is there anything appearing upon the face of the mortgage or judgment which indicates that the property cannot be distinguished from the property of a like kind. The evidence was uncontradicted upon the trial that this particular machinery intended to be mortgaged and corresponding to the general description given in the written evidence was in fact identified; that it was the same that was purchased by Collins from the appellant, and was situated upon a gin lot formerly belonging to Collins and then in the possession of parties holding under the appellee bank. The testimony further shows that the appel-lee bank knew that this property had been purchased by Collins and mortgaged by him to the appellant at the time it took its mortgage, and also when it foreclosed the lien under which it claimed possession of the property.

The evidence, we.think, was sufficient to-support a finding in favor of the appellant as to the personalty, and for that reason alone the court committed reversible error in giving the general peremptory instruction.

The next inquiry, then, is as to the sufficiency of the description of the real estate. This is described as follows:

“Also the ginhouse in which the above machinery is located and operated, and the lot or parcel of ground upon which said ginhouse and machinery are located. For further and better description of gin lot reference is here made to the records of Upshur county.”

If the gin machinery could be identified and its location established, that in itself would he sufficient to locate and identify the lot upon which the mortgage lien was to operate. The reference to the deed records of Upshur county indicates that the property was situated in that county. While this was insufficient to furnish’ a description, it is enough to show the situs of the property. Collins testified that he had previously contracted for a lot consisting of a half acre of land, upon which he owned and operated a gin, and upon which this particular machinery was to he located at the time of its purchase, and upon which it was actually located and operated thereafter. There is no confusion as to the quantity of land or as to its exact situation. The description in the mortgage and judgment made plain the following facts: That the land intended to be incumbered was a gin lot owned by Collins, situated in Upshur county, on which was located the gin machinery bought by Collins from the appellant. As between Collins and the appellant, the former could not say that such a description was void for uncertainty. Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Mann et al. v. State, 116 Ind. 383, 19 N. E. 181; 1 Jones on Mortgages, §§ 65 and 66; 3 Devlin on Deeds, § 1012. In the last-cited authority it is said:

“And generally the rule may be stated to be that the deed will be sustained if it is possible from the whole description to ascertain and identify the land intended to be conveyed.”

Mr. Jones in his work on Mortgages, as cited above, says:

“When the objection is merely to the indefiniteness of the description it does not lie with the mortgagor to say that he conveyed the property by a description so loose or indefinite that no title could pass upon a foreclosure sale of the property.”

Eor the reasons stated, the judgment of the district court will be reversed, and the cause remanded.
      <g^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.'

text:
    HOCH HARDWARE CO. v. TROPICAL OIL CO.
    (No. 5656.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1916.)
    FRAUD &wkey;>12 — Misrepresentations — Good Faith.
    Where representation of an oil company that it had obtained orders for the oil which it sold to a hardware company was true, and its promise to send such orders to the hardware company to aid it in selling the oil was made in good faith, its subsequent failure to send such orders did not amount to legal fraud, and furnished no basis for rescission of the contract.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 14; Dec. Dig. <&wkey;12.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Suit by the Tropical Oil Company against the Hoeh Hardware Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    H. Zdaril, of Taylor, and Nunn & Love, of Georgetown, for appellant. Melasky & Moody, of Taylor, for appellee.
   Findings of Fact.

JENKINS, J.'

The appellant is, and at the time of the transactions herein referred to was, a corporation doing a retail hardware business, at Taylor, Williamson county, Tex. The appellee was a corporation doing a wholesale business. In April, 1914, the duly authorized agent of appellee was engaged in taking orders for goods from persons in the vicinity of Taylor. It was agreed between said agent of appellee and the appellant, acting through its general manager, that appellant would assist appellee’s agent in procuring such orders, and that instead of the ap-pellee’s filling the same, it was to bill goods to appellant at wholesale prices, and appellant would fill said orders at retail prices. Shortly thereafter the agent of appellee represented to the appellant that, together with some orders taken by appellant, he, had procured enough orders from solvent purchasers in the vicinity of Taylor to make a carload, and that he would ship the goods covered by such orders to appellant, who was to receive and pay for same at wholesale prices, and promised appellant to send it said orders. The goods were shipped and received by ap-pellánt, of the value of $520.66 at wholesale, but none of said original orders were sent to appellant. Copies of some of said orders were sent, and appellant filled the same and remitted to appellee the wholesale prices thereof, amounting to $120.66. Appellant demanded of appellee that it send all of said orders, and upon its failure to do so notified appellee that it held the unsold goods subject to its order. The case was submitted to a jury on special issues. The appellant contends that by reason of the form of the questions, the answers of the jury are not sufficiently intelligible to form the basis of the judgment herein, which was for appellee for the sum of $400. With this we do not agree. The jury found substantially that the ap-pellee represented to the appellant that it had secured orders from solvent parties in the vicinity of Taylor for all of the goods shipped to appellant; that appellant agreed to purchase-said goods at the price alleged by appellee; that it relied upon said representation, and but for said representation and the. promise to send said orders, it would not have purchased said goods; that said representations were true, and that the promise to send said orders was made in good faith; that said promise was not complied with. The evidence is sufficient to support the findings of the jury. Appellant resisted appel-lee’s suit for the remainder of the purchase price of said goods ($400) on the ground that the contract was obtained by fraud, and offered to return the portion of the goods unsold of the value of $303.22.

Opinion.

The evidence showing that the representation of appellee, viz., that it had obtained orders for the goods which were sold to appellant was true, and that the promise to send such orders to appellant to aid it in selling the goods was made in good faith, the subsequent failure to send such orders does not amount to legal fraud, and furnishes no basis for rescission of the contract. Bigham v. Bigham, 57 Tex. 238; Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Mayer v. Swift, 73 Tex. 367, 11 S. W. 378; Moore v. Cross, 87 Tex. 567, 29 S. W. 1051, 12 R. C. L. p. 254.

Binding no error of record, the judgment of the trial court is affirmed.

Affirmed.
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author: HARPER, C. J.

text:
    JENKINS et ux. v. GUARANTY STATE BANK OF PALESTINE.
    (No. 617.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 2, 1916.)
    1. Homestead &wkey;>96 — Liability fob Debt— • Pubchase-Money Lien.
    If vendees conveyed land to satisfy purchase-money debt, leaving a deficit, and a parcel was reconveyed to them under agreement that the lien reserved was for the original purchase price, the amount thereof would attach, though the parcel was occupied as a homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. &wkey;96.]
    2. Homestead <&wkey;115(2) — Pubchase-Money Lien.
    But if such transaction was simulated to avoid the constitutional prohibition against mortgaging the homestead, no hen would attach.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 186-190; Dec. Dig. <&wkey;>115(2).J
    3. Appeal and Eeboe <&wkey;1010(l) — Review-Findings of Fact.
    The court on appeal cannot disturb a fact finding if sufficiently supported by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. <&wkey;> 1010(1).]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Suit by the Guaranty State Bank of Palestine against Alex Jenkins and wife. Judgment for plaintiff and defendants appeal.
    Affirmed.
    Kay & Seagler, of Palestine, for appellants. Funderburk & Strickland, of Palestine, for appellee.
   HARPER, C. J.

This suit was brought by appellee against appellants upon a promissory note for $58, interest and reasonable attorney’s fees, as provided in the note, and for foreclosure of vendor’s lien upon certain 20 acres of land. The appellants answered (as applicable to the' assignments of error urged here) that they owned a tract of land containing 83.4 acres which was their homestead; that they owed one Dupuy, on account of a certain judgment, the sum of $565 ' and an additional amount of $81.60 for other-causes, which they were unable to pay, and had no property subject to execution; that they were induced through coercion and intimidation on the part of said Dupuy and one Edwards, in consideration of the payment of the said indebtedness, to convey all of said land, except 20 acres, to said Edwards ; that on the 19th day of December, 1912, the defendants, in pursuance of the above agreement and under the circumstances inducing same, executed and delivered to J. R. Edwards a deed which the defendants were told and believed conveyed to the said J. R. Edwards 63.4 acres of the above-mentioned land, and did not include therein the 20 acres above mentioned; that it was not their intention and was not the purpose of said agreement to convey to the said J. R. Edwards more than the said 63.4 acres which did not include the said 20 acres; that defendants have since been informed that the field notes in said deed actually covered and embraced the entire 83.4 acres of land above mentioned; that they have been informed that on the same day said Edwards executed a deed to them for the 20 acres of land described in plaintiff’s petition, which contains the reservation of vendor’s lien; that the transactions above mentioned, to wit, the conveyance of said land by defendants to the said J. R. Edwards and the reconveyance on the same day and as a part of the same transaction of the said 20 acres of same by the said J. R. Edwards to defendants, were simulated and made, without the knowledge and consent of defendants, for the purpose of creating a lien on defendants’ homestead, in violation of and for the purpose of evading the homestead exemption laws of Texas; that said transactions are void and without force and effect; that said note sued on in this suit is without consideration and is void, and cannot be enforced against the defendants or their said homestead; that they never received the $58 cash mentioned in the conveyance from them to the said J. R. Edwards, and that the $58 mentioned in the said deed from the said J. R. Edwards to defendant Alex Jenkins, which is claimed to be evidenced by the note sued on in this suit, was not and is not for the purchase money due on said 20 acres of land, nor for taxes due thereon, nor for work and material used in constructing improvements thereon; that the said note was transferred by said Edwards to appellee with full knowledge upon the part of both parties of the above facts. Trial before the court resulted in judgment for appellee for $58 and interest, attorney’s fee of $501 and foreclosure of the lien on the* 20 acres of land. To which exception was taken and notice of appeal given.

The court made the following findings of fact and conclusions of law:

“I find that the note sued on was executed by the defendant Alex Jenkins.
“I find, at the time of the execution of the note, there was a valid, subsisting judgment in this district court against the defendant Alex Jenkins, which judgment foreclosed a vendor’s lien on the 83 acres of land deeded by Jenkins and wife on the - day of -to J. R. Edwards.
“I further find that on same date the defendant Jenkins was owing to J. A. Dupuy other indebtedness than said judgment, and the other indebtedness aggregated the sum of $646.
“I further find that Alex Jenkins agreed with J. R. Edwards, after advising with Gov. Campbell as to the legality of the transaction as to how to raise the money, it was agreed that Jenkins and his wife would convey to Edwards the entire 83 acres of land for $600, which $600 lacked $58 of paying the total indebtedness, and it was further agreed that 20 acres of land should be reconveyed to Alex Jenkins, for which Alex Jenkins was to and did execute the note in controversy in this suit.
“I further find that J. R. Edwards was at the time advised by his counsel (Gov. Campbell) that the lien included in this way, as to the 58 acres would be a valid lien.
“I further find that the entire 83 acres of land, as the 20 acres embrace a part of the S3 acres, was the homestead of Alex Jenkins and his wife, and that the 20 acres¡ on which the lien is foreclosed, in this case, is now the homestead of Alex Jenkins.
“I further find that the entire transaction of the two deeds, sale of the 83 acres of land and resale of 20 acres was one and the same transaction, and that the $58 note in controversy was intended by plaintiff to take the part of the balance of the judgment by this court, hereinbefore referred to, for the vendor’s lien against the 83 acres of land; in other words, the $58 note is a part of the same indebtedness as the judgment.
“I further find that $50 is a reasonable attorney’s fee for counsel for plaintiff.
“I conclude that plaintiff ought to have judgment for the amount of the note and interest, the reasonable attorney’s fee, with foreclosure of a vendor’s lien, expressed in the note, on the 20 acres of land, as prayed for in their petition.”

The first assignment reads:

“The court erred in its finding of fact, reading ‘that the $58 note in controversy was intended by plaintiff to take the part of the balance of the judgment of'this court, hereinbefore referred to, for the1 vendor’s lien against the 83 acres of land; in other words, the $58 note is a part of the same indebtedness as the judgment,’ for the reason, that the evidence in this case shows that the judgment debt was entirely canceled and paid in the sale of the land by Alex Jenkins and wife to J. R. Edwards, for the deed from Alex Jenkins and wife to J. R. Edwards states that out of said $600 paid for said land a judgment in the sum of $565 rendered in the district court of Anderson county, Tex., in favor of J. A. Dupuy et ah, and against Alex Jenkins et ux., was paid; that plaintiff’s officers and agents prepared these instruments, and knew the contents thereof, and knew the legal effect of the statements therein contained, and expressed the real intention of all parties concerned at the time of said transaction.”

The second assignment is substantially to the same effect, and both will be discussed together. The only propositions urged under these assignments is that the finding of facts and the judgment of the court thereon, based upon testimony relative to a particular transaction, which is manifestly contrary to the original and final intentions and agreements of all the parties to the transaction, are erroneous, and not binding upon the appellate court.

Judging by the statements and argument, the question sought to be raised by these assignments and propositions is that the $58 amount.of the note sued upon is not part of the amount for which judgment was rendered, and lien foreclosed as a part of the original purchase price of the lands. Therefore that part of the judgment foreclosing a lien upon the lands for said amount which is a homestead is null and void.

If the sale of the 83.4 acres to Edwards was made by appellants in settlement of a part of the original purchase price of the land and all of the debt not a part thereof, and it did not settle all of the claim of Dupuy, but by agreement between the appellants and Edwards the 20 acres was recon-veyed to them for the note of $58 sued upon, with the understanding that the $58 represented a part of the original purchase price of the land for collection of which a lien was retained, then the lien would attach to secure its payment. Johnson v. Arrendale, 30 Tex. Civ. App. 504, 71 S. W. 45.

But if the sale of the entire tract and the resale of 20 acres to appellants was simulated to avoid the provisions of the Constitution, prohibiting the mortgaging of homesteads, then the present plaintiff, appellee, cannot recover. Sanger Bros. v. Brooks, 101 Tex. 115, 105 S. W. 37.

The court in this case has found as an affirmative fact that the note sued on is a part of the original purchase price, a part of the same indebtedness as the judgment, and thus holds that the lien exists to secure its payment, and there is evidence sufficient to support this finding of the court, and in such case we cannot disturb it. Sanders v. Rawlings, 77 S. W. 41.

The third and last assignment is that the judgment for attorney’s fee of $50 is not a “reasonable” fee as provided for in the note. The answer is that all the evidence without contradiction is that such an amount is a reasonable fee, and the trial court did not err in so holding.

Affirmed.
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