author: LANE, J.

text:
    HERMANN v. SCHROEDER.
    (No. 6729.)
    (Court of Civil Appeals of Texas. Galveston.
    March 16, 1915.
    On Motion for Rehearing, April 12, 1915.)
    1.Trial <§=312 — Conduct of Jury — Instructions after Submission.
    Under Rev. St. 1911, art. 1975, providing that additional instructions may be given upon any question of law arising in the case on application of the jury therefor, the court can answer a written question relating to the law applicable, which was propounded by the jury after they had retired to consider their verdict.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. <§=312.]
    2. Trial <§=325 — Deliberations of Jury-Understanding of Instructions.
    It is not error for the trial court to refuse to summon jurors before it, after the verdict, to interrogate them as to whether they correctly understood the instructions, where there was nothing in the instructions that could have misled them as to the law.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 765-767; Dec. Dig. <®=325.]
    3. Trial <§=260 — Requested Charge — Repetition of Given Charge.
    In a boundary suit, where the defendant pleaded adverse possession, and the court had charged that in connection with the plea of limitation, if at any time prior to the beginning of the suit defendant was in adverse possession or the land in controversy for a period of ten consecutive years, he would have title by limitations, defining peaceable possession and adverse possession, that to acquire such title the possession must be continuous for ten years, and if there is a break in the possession, which indicates the abandonment of the actual possession, or if there are intervals between the defendant’s possession, so as not to leave ten years’ continuous actual possession, it will not support the plea of limitations, that if one holding the possession holds it in subordination to the title of another, or, before acquiring complete title by limitations, admits the title of the other or promises to vacate, or does not hold adversely to the other, he cannot, as against such other, hold or acquire title by limitations, and that limitation cannot extend beyond the boundaries claimed in the deed, unless the land claimed outside of such boundaries is in the actual, peaceable, and adverse possession of the claimant for ten years continuously before the suit is filed, it was not error to refuse a requested charge that, unless the defendant had actual, visible, open, -notorious, peaceable, and adverse possession of the land in controversy for more than ten years continuously-and without interruption and without knowledge or admitting the title of the plaintiff, they should find for the plaintiff on the issue of limitations.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=260.j
    4. Appeal and Error <§=758 — Questions Presented — Brief — Assignments of Error.
    Under Court of Civil Appeals rule 29 (142 5. W. xii), requiring the plaintiff in error to file a brief of the points relied on confined to the distinct specifications of error¿ which shall be cqpied in the brief, and providing that each assignment not so copied and accompanied with its appropriate propositions and statements shall be regarded as abandoned, error in instructing the jury as to the form of their verdict, if they found for defendant, cannot be reviewed, where the assignment, as copied in the brief, related only to error in the form of the verdict, if they found for plaintiff, though the statement under the assignment gave the instruction as to the form of a verdict for defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. <§=758J
    5.Boundaries <§=33 — Actions—Burden of Proof.
    In a boundary line suit, where plaintiff alleged that the land in controversy was not included in defendant’s deed, he has the burden of proving that allegation.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. <§=33.]

      , On Motion for Rehearing.
    6, Boundaries <@=>43 — Actions — Recovert of Part—Description.
    In a boundary line suit, where plaintiff is not entitled to recover all the land described in the petition, he may recover a portion thereof, even though his proof does not describe it sufficiently for the jury to locate it.
    [Ed. Note.—For other cases, see Boundaries, Cent. Dig. § 208; Dec. Dig. <@=43.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by G. H. Hermann against John F. Schroeder. Judgment for the defendant, and plaintiff brings error.
    Affirmed, and motion for rehearing overruled.
    J. W. Lockett, of Houston, for plaintiff in error. Carlton, Townes & Townes, of Houston, for defendant in error.
   LANE, J.

G. H. Hermann, plaintiff in error, brought this suit against John F. Schroeder, defendant in error, to recover about 4.91 acres of land situated in Harris county, Tex., and for damages.

It is an undisputed fact that in 1872 A. J. Shepherd owned a large body of land; that he sold Schroeder 20 acres in 1872, and some years later he sold Hermann a large body of land which joined Sckroeder’s 20 acres on the east, west, and south.

Plaintiff in error in the fifth paragraph of his petition alleged:

“That, in addition to being a trespass .to try title suit, this is also a boundary line suit; that defendant owns lands north of and adjoining the land hereinbefore described and sued for, and this plaintiff is informed and believes that defendant is asserting that his tract of land embraces and includes the land hereinbe-fore described and sued for, and that he is also claiming that his south line extends down upon and embraces the hereinbefore described land, and that he is also claiming that the land owned by the plaintiff, instead of embracing the hereinbefore described and sued for land, only extends to the south line of the land here-inbefore sued for. But this plaintiff respectfully alleges that the land sued for and hereinbefore described is not any part of the land owned by the defendant, and that the land owned by the defendant, if any, does not embrace nor include any part of the land herein sued for, but there is a dispute between plaintiff and defendant as to the true location of the boundax-ies of their respective properties and as to the true location of the dividing line between their respective properties.”

Defendant in error, John F. Schroeder, answered (1) by plea of not guilty, and (2) by plea of limitation of three, five, and ten years.

The case was tried before a jury, and a verdict and judgment were rendered for defendant in error for the land sued for. The evidence was amply 'sufficient to support .the verdict and judgment on either theory of ap-pellee’s answer.

After the jury had been charged by the court- and had retired to consider their verdict, they returned into open court and propounded to the court in writing the following question:

“Does the fact that the plaintiff Hermann requested the defendant Schroeder to move the south fence back off fi-om the land claimed by the plaintiff Hermann deprive Schi-oeder of peaceable possession of the land which he had acquired by limitation in the absence of Her-mann having brought suit?”

To this question the court ■ answered in writing, “No.” The action of the court in making such answer is assigned as error.

The mere statement of the assignment is sufficient to show that the complaint is without merit. Article 1975, Revised Statutes 1911, provides that additional instructions may be given upon any question of law arising in the case, upon application of the jury therefor, and therefore the assignment is overruled.

The second assignment is as follows:

“The court erred in refusing to grant plaintiff’s motion to summons the jurors who decided this cash and take their testimony as to whether they misunderstood and were confused by the charge of the court on the question of limitation, and as to their understanding and meaning of the question asked the court, and of the court’s answer thereto, and whether or not the allegations in plaintiff’s motion requesting the same are true.”

We know of no law, either statutory or otherwise, which requires or authorizes the court to make such inquiry of the jury as was requested in this case. The jury is presumed to be composed of men of ordinary intelligence, who understand the court’s charge. If such practice as here suggested were indulged in, it would soon become intolerable. There is no allegation or intimation that the jury, or any member of the same, was guilty of misconduct. The jury, nor any member thereof, cannot impeach their verdict by stating, after they have rendered the same, that they did not understand a plain charge of the court. There was nothing in the question propounded by the jury to the court, nor in the answer of the court to such question, that was calculated to or could have misled the jury or any member thereof, and therefore the court did not err in refusing appellant’s request, as indicated in the assignment.

The third and fourth assignments complain of the court’s charge. There is no merit in such complaints. The charge complained of was called for under the pleadings and evidence, and was not upon the weight of the evidence, as contended by appellant.

The fifth assignment is as follows:

“The court erred in refusing to charge the jury as follows, as requested in plaintiff’s charge No. 5, refused by the court, to wit: ‘Unless you believe from the evidence that the defendant has had actual, visible, open, notorious, peaceable, and adverse possession of the land in controversy for more than ten years continuously and without interruption and without knowledge or admitting the title of plaintiff, yon will find in favor of plaintiff upon the issue of limitation for all or such part of the land in controversy, as the defendant has not had continuous, actual, peaceable and adverse, open, notorious,' and hostile possession of for ten years continuously before the institution of this suit and after the plaintiff’s cause of action accrued.’ ”

The court charged the jury as follows:

“In connection with defendant’s plea of limitation, you are charged that if you believe from the evidence that, at any time anterior to bringing this suit, Schroeder was in peaceable and adverse possession of the land in controversy, cultivating, using or enjoying the same, for a period of ten consecutive years, then you are instructed that he would have title by limitation to the same, and, if you so find, you will let your verdict be for the defendant Schroeder. ‘Peaceable possession,’ as above used, means continuous possession not interrupted by adverse suit to recover the land. The term ‘adverse possession,’ as used above, means the actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”

The court also gave appellant’s special charges Nos. 8, 9, and 10, which are. as follows:

No. 8: “In order to acquire title by limitation as in this case, it. is necessary that the possession must be continuous for ten years; and if there is a break in the possession which indicates the abandonment of the actual possession, or if there are intervals between the different possessions, so as to not leave ten years’ continuous actual possession, it will not support the plea of ten years’ limitation.”
No. 9: “If one holding actual possession of land holds the same in subordination to the title of another, or, before having acquired complete title by limitation, admits the title of the other, or promises to vacate the same, or does not claim adversely to such other, he cannot, as against such other, hold or acquire title by limitation.”
No. 10: “Limitation cannot extend beyond the boundaries described in the deed, unless the land claimed outside of such boundaries is in the actual, peaceable, and adverse possession of the claimant for ten years continuously before the suit is filed.”

In view of the charges given by the court, as above set out, it is apparent that the court did not err in refusing the requested charge, refusal of which is complained of in the fifth assignment, as the substance of such special charge was sufficiently given in the charges given by the court. The charge given by the court complained of'by appellant’s sixth assignment was a correct instruction under the pleadings and evidence of the case, and the court did not err in giving same to the jury.

The seventh assignment in appellant’s brief insists that' the court erred in instructing the jury that, if their verdict should be in favor of plaintiff, the form of their verdict should be:

“We, the jury, find in favor of plaintiff and against the defendant for the land sued for.”

The assignment is quoted verbatim as found in appellant’s brief: The charge complained of is favorable to appellant, and of which he has no cause to complain. But in the statement under the assignment it is stated that the court also instructed the jury that:

“If they should find in favor qf defendant, the form of the verdict should be: ‘We, the jury, find in favor of the defendant and against the plaintiff for the land sued for.’ ”

This last statement, however, is no part of the assignment as found in the brief. In the argument under this assignment, it is contended by appellant that the effect of the court’s charge complained of was to instruct the jury that they should find for the successful party the whole of the land sued for, while the jury should have been instructed that they might find for such party the whole or any part thereof.

Appellant’s complaint might be answered by saying that the assignment found in his brief presents no such complaint, as is set out in his statement or argument under said assignment, and therefore such statement anjd argument cannot be considered, as the same is nowhere in appellant’s brief assigned as error; and, even if assigned in the record as error, such assignment cannot be considered, because the same was waived by not assigning same as error in appellant’s brief. Rule 29 (142 S. W. xii) made by the Court of Civil Appeals of Texas, providing for filing of briefs in this court, provides:

“The appellant, or plaintiff in error, in order to prepare properly a case for submission when called, shall have filed a brief of the points relied on in accordance with and confined to the distinct specifications of error (which assignments shall be copied in the brief) and to such fundamental errors of law as are apparent upon the record, each ground of error being separately presented under the proper assignment; and each assignment not so copied and accompanied with its appropriate propositions and statements shall be regarded as abandoned.”

Should we consider, however, said statement and argument as an assignment, the same would not present reversible error. After a careful examination of the entire statement of facts, we fail to find any description whatever of any land sued for or claimed by appellant other than the whole of the 4.91-aere tract described in his petition. Several witnesses testified that prior to 1893 there was a small piece of land near the southwest corner of Schroeder’s inclosure which was not within his inclosure at that time, but no witness gave even a remote description thereof; hence we conclude that, as appellant had sued to recover from defendant the 4.91 acres of land so described in his petition, he should have made proof, describing any smaller portion of the land sued for, so as to enable the jury to locate the same, and to enable the court to instruct the jury with reference thereto. If appellant was unable to point out what land, now claimed by Schroeder and sued for by him, other than that described in his petition, if any, which he contends was not under Schroeder’s fence in 1893, the court could not instruct the jury with reference thereto, nor could the jury locate the same. For the reasons pointed out, we overrule said assignment No. 7.

The eighth assignment complains that the court erred in charging the jury that the burden of proof was upon plaintiff, by a preponderance of the evidence, to show that said land was not included and embraced in the deed from Shepherd to Schroeder.

This is purely a boundary suit as brought by appellant, and in his petition he so alleges, and also further alleges that the land sued for is not any part of the land owned by Schroeder, and that it was not included within the field notes in Schroeder’s deed. The charge of the court practically followed the ■ allegations of appellant’s petition, and properly instructed the jury as to the burden of proof, and was not error. We cannot believe that any jury of ordinary intelligence could have been misled in this case to the injury of appellant by the charge complained of.

This disposes of all of appellant’s assignments, and, as we find no reversible error committed in the trial of this cause in the court below, the judgment of the trial court is in all things affirmed.

Affirmed.

On Motion for Rehearing.

The trial court instructed the jury that, should their verdict be in favor of plaintiff, the form of such verdict should be: “We, the jury, find in favor of plaintin and against defendant for the land sued for.” Appellant’s seventh assignment in his brief assigns such charge as error. In passing on this assignment in the original opinion, this court pointed out that such charge was favorable to appellant, and of which he could make no just complaint. We also called attention to the fact that, under appellant’s said assignment, he makes the statement that the court instructed the jury that, if they should find in favor of defendant, the form of their verdict should be, “We, the jury, find in favor of the defendant and against the plaintiff for the land sued for;” that such.statement was no part of the assignment presented in appellant’s brief, but made only as a statement thereunder; and that, under rule 29 for the Oourt of Civil Appeals, this court would not consider such statement as any part of the assignment in said brief. This was a sufficient and complete answer to appellant’s seventh assignment. But, without any necessity for so doing, in the original opinion we made the following statement:

“Should we consider, however, said statement and argument as an assignment, the same would not present reversible error. After a careful examination of the entire statement of facts, we fail to find any description whatever of any land sued for or claimed by appellant, other than the whole of the 4.91-acre tract described in his petition. Several witnesses testified that prior to 1893 there was a small piece of land near the southwest corner of Schroeder’s inclosure which was not within his inclosure at that time, but no witness gave even a remote description thereof; hence we conclude that, as appellant had sued to recover from defendant the 4.91 acres of land so described in his petition, he should have made proof, describing any smaller portion of the land sued for, so as to enable the jury to locate the same, and to enable the court to instruct the jury with reference thereto. If appellant was unable to point out what land now claimed by Schroeder and sued for by him, other than that described in his petition, if any, which he contends was not under Schroeder’s fence in 1893, the court could not instruct the jury with reference thereto, nor could the jury locate the same. For the reasons pointed out, we overrule said assignment No. 7.”

In appellant’s motion for rehearing be insists that such holding is erroneous and not the law. In this'contention appellant is correct, and we now recede from the holding complained of in the original opinion. But as such holding was not at all necessary to a proper decision of the question presented by appellant’s assignment, as hereinbefore pointed out, we see no reason to change our conclusion that the judgment of the lower court should be affirmed, and therefore the motion is overruled.

Overruled.
      ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other'cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    BROOCKS v. MOSS et al.
    (No. 6786.)
    (Court of Civil Appeals of Texas. Galveston.
    March 24, 1915.
    Rehearing Denied April 8, 1915.)
    1. Contracts <@=>162 — Construction—Meaning of Language.
    The court, in construing a written contract, must construe the entire writing, and if possible harmonize all the provisions.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. <@=»162.]
    2. Logs and Logging <@=>3 — Conveyance of Standing Timber — Construction.
    A deed of standing timber, which gave the grantee the right to cut and remove the timber within a specified time, and an additional term, or so much thereof as might be required, by payment of a specified sum per acre per annum for each additional year that might be taken to remove the timber beyond the original time, gave the grantee the specified years in which to remove the timber and the additional time, or so much thereof as might be necessary; but, if the timber was removed in less than the specified time, the rights of the grantee terminated on such removal.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <@=>3.j
    3. Logs and Logging <@=>3 — Conveyance oe Standing Timbee — Rights Acquired.
    A deed of standing timber, which gives the grantee the right to cut and remove the timber within a specified period and so much additional time as may be required, on making a specified payment to remove the timber, limits the time to cut and remove the timber, and the grantee must exercise the right within that time.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <§=>3.]
    4. Logs and Logging <@=>3 — Sale oe Standing Timbee — Rights of Purchaser.
    Where a grantee of standing timber, to cut and remove the same within a specified period, cut the timber within the period, the timber cut became personalty, and title passed to the grantee on the severance, the price being paid in advance, and the owner could not appropriate the timber cut, but not removed, within the period.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <@=>3.]

      Appeal from District Court, Tyler County; A. B. Davis, Judge.
    Action by Jack Moss and another against John H. Broocks and others. From a judgment for plaintiffs, defendant named appeals.
    Affirmed in part, and reversed and rendered in part.
    V. A. Collins, of Beaumont, and Joe W. Thomas, of Woodville, for appellant. Mooney & Sholars, of Woodville, for appellees.
   McMEANS, J.

On August 16, 1905, Jack Moss and his wife, L. E. Moss, sold to H. P. Weir and his assigns all the timber then standing and growing on 331 acres of land, situated in Tyler county, belonging to them. Whatever title Weir acquired under this conveyance passed to John H. Broocks by Weir’s conveyance to him. The deed conveying the timber, omitting its formal parts and the description, is as follows:

“Eor and in consideration of the sum of nineteen hundred and eighty-six dollars to us in hand paid by H. P. Weir, of San Augustine county, Texas, have granted, sold and conveyed, and by these presents grant, sell and convey unto the said H. P. Weir, all of the timber now standing and growing on three hundred and thirty one (331) acres of land situated in the county of Tyler, state of Texas. (Being the land described in the deed.) It is further agreed that the said II. P. Weir, or his assigns, shall have from this date three (3) years in which to cut, fell and remove said timber, from said land, as above described, and if at the expiration of said three (3) - the said H. P. Weir, or his assigns, have not cut and removed said timber an additional term of two (2), or so much thereof as may be required, is to be granted on payment of 10 cents per acre per annum for each additional year that may be taken to remove said timber beyond the time originally granted in this contract. And it is further agreed, that the said Weir, or his assigns, shall have the only and exclusive right to build upon said land a tramroad, wagon road and railroad, a right of way 60 feet wide is hereby granted for said railroad or tramroad to remove said timber and timber on tracts adjacent and beyond; provided that said railroad, tramroad or wagon road shall not run through any of the cultivated land without special agreement. The said Weir, or his assigns, shall pay the taxes upon the timber on the land hereby conveyed which occurs on and after January 1, 1907; after the timber on said land has been cut off and all improvements, such as railroads or tramroads, removed. Then all timber rights to said Weir, or his assigns, shall be forfeited. To have and to hold, all and singular, the above-described timber, with all the rights thereto, unto the said Weir or his assigns; and we do hereby bind ourselves, our heirs, our executors and administrators, to warrant, and forever defend the title to said timber against the claims of each and every person whomsoever lawfully claiming or to claim the same, or any part thereof.”

Weir paid to Moss and wife in cash the consideration stated in the deed. While the deed recites that Weir should have three years from its date in which to fell and remove the timber, and the additional period of two years thereafter, or so much thereof as may be required to remove the timber, by the payment of 10 cents per acre per an-num for each additional year, the real agreement was that Weir should have five years to cut and remove the timber and two years additional by paying 10 cents per acre per annum for the added time. Neither Weir nor his assignee, Broocks, cut or removed any of the timber during the five-year period, nor until a short time before the expiration of the additional period of two years, when Broocks, through his agent, B. B. Barlow, entered upon the land and began to fell the timber and to cut it into sawlog lengths; his purpose being to raft the timber to Beaumont and sell it to lumber manufacturers. At the expiration of the full period in which Broocks had to remove the timber — that is to say, seven years after the date of the deed — Broocks had felled and cut into saw-log lengths 101,000 feet of lumber, of the stumpage value of $3 per thousand feet. Jack Moss then brought this suit against Weir, Broocks, and Barlow in the form of an action of trespass to try title for the recovery of the land described in the deed, and sought and obtained a temporary injunction against the defendants restraining them from further cutting the timber and from removing any of the timber that had been felled by Barlow, the agent of Broocks. The defendants afterwards sought to have this-injunction dissolved, but were unsuccessful.

Defendants Weir and Barlow filed answers in which they disclaimed any interest in the timber or land. Defendant Broocks answered by a plea of not guilty, and further pleaded by way of cross-action that he had felled 124,000 feet of timber before the expiration of the seven years in which he was,, by the terms of the deed, entitled to cut and remove the timber, and that he was the absolute owner of the same, and that plaintiff had thereafter appropriated the same, and he prayed for judgment against plaintiff for its value.'

Plaintiff dismissed as to defendant Barlow, and a trial of the case before the court without a jury resulted in a judgment in favor of plaintiff against defendants Weir and Broocks for the land sued for, and for the timber thereon, and perpetuating the injunction theretofore granted. From this judgment the defendant Broocks alone has appealed.

The controlling questions presented' on this appeal arise upon the construction of the deed, and are these: (1) Did the deed convey a fee-simple title to the timber, and, for sustenance thereof, an interest in the land; or (2) did the deed convey the timber as personal property to be removed within seven years from its date? Preliminary to a discussion of these questions we shall dispose of another upon which appellant lays-considerable stress.

It will be observed from what has before been stated that the deed contains two apparently conflicting provisions, viz.: (a) That the grantees should have seven years within-which to fell and remove the timber; and (b) that the right to fell and remove the timber should be forfeited after the timber had been cut off and all improvements pub upon the land by the grantee had been removed. Appellant contends that this last provision evidences the' right of the grantee to the timber until such time as it had been removed, even if not removed within the time fixed in the deed, and that until it was removed his right thereto was not impaired by the time limit fixed for such removal. The testimony is undisputed that the grantee placed no improvements upon the land, and consequently there were none to remove, so that part of the provision is out of the ease.

It is a well-known rule of construction of written contracts that the entire writing and all of its provisions must be construed together, and all be made to harmonize, where this is possible. We think that the provisions, when properly construed, are not in conflict. The grantors simply intended to •give the grantee five years unconditionally within which to remove the timber, and two years additional time, or as much thereof as might be necessary, if the timber had not been cut and removed within the five-year period; and we think that 'by the insertion of the provision, “after the timber on said land has been cut off, * * * then all timber rights to said Weir or his assigns shall be forfeited,” it was intended to mean, and that the parties so contracted, that, if the timber should be cut and removed before the expiration of the time prescribed, such rights in the land as were granted by the deed should then end. It was shown on the trial that the timber purchased was such as was suitable for being manufactured into lumber; and we think that by the insertion of the clause quoted - it was intended that in the event such timber should be felled and re9 mored in a shorter period than that expressly given — and the evidence shows that all of it could have been removed within eight months — the rights conferred by the deed then ceased. In other words, it was intended by the grantor that should the grantee remove the timber within a shorter period than that provided, to preclude him from re-entering upon the land to remove timber which previously had not been of suitable size for manufacture into lumber, but which, before the expiration of the longest time fixed by the deed, had grown to such size. This construction harmonizes the provisions and permits Both to stand.

The question then recurs: Did the deed convey a fee-simple title to the timber, and, for sustenance thereof, an interest in the land? We think not. Taking the deed with all of its provisions, we think that it granted only the right to cut and remove the timber and fixed a period within which this might be done, after the expiration of which time the right ceased. There is no doubt that the deed granted rights ’ which could have been enforced by the grantee or his assigns, by complying with the terms prescribed, and that these rights could have been exercised at any time within the limits fixed by the contract. But we do not think that . when the parties themselves agreed as to the time within which the rights might be exercised, and when it is clear that it was intended that such rights should not be exercised after a given time, the courts should ingraft upon the contract, by construction, a meaning that the parties did not intend to give it. This is not like the case of Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803, for there the owner sold, in fee simple, the timber on his land, unconditionally, and without stipulation of any kind to indicate that the timber was sold as personalty; and it was held that the title to the timber passed absolutely to the purchaser, and that the conveyance carried with the title to- the timber the right' to the use of the soil for its sustenance, and of entry upon the land for its enjoyment, and that no such limitation as that the timber must be removed within á reasonable time could be imported by construction. But here a time was fixed within which the grantee might exercise the right to cut and remove the timber; and we think that this case falls therefore within that line of cases which hold that a deed Conveying timber, and fixing a period within which it may be removed, is, in effect, a conveyance of only such of the timber as is actually removed within the time limit prescribed. Carter v. Clark, 149 S. W. 278; Beauchamp v. Williams, 115 S. W. 133; Lodwick Lumber Co. v. Taylor, 99 S. W. 195; 28 Am. & Eng. Ency. Law (2d Ed.) 543. It follows therefore that it is our conclusion that the deed conveyed the standing trees as personalty only, and that the effect of failure of the appellant to remove them within the period prescribed in the deed worked a forfeiture of his right to the timber not so removed. Beauchamp v. Williams, supra.

But quite another question arises upon the right of appellant to the timber which had -been felled and cut into sawlog lengths by him before the time limited in the deed had expired, and the removal of which by appellant was prevented by the injunction sued out by the appellee. This timber had been severed from the soil at a time when the appellant had the right under the deed to cut and remove it, and it thereupon became personalty. It had been paid for in advance, and the title to it upon its severance became vested in appellant. 32 Cyc. 673; Lancaster v. Roth, 155 S. W. 601. Appellee admits, that' he appropriated this timber to his own use and benefit. The proof shows that the timber as cut into sawlogs measured 101,000 feet, and was of the reasonable market value of $3 per thousand feet, amounting to $303. We think that under these facts the court should have rendered a judgment in favor of appellant and against the appellee for the value of the timber cut before the expiration of the time limited in the deed.

Our conclusion is that so much of the judgment of the court below as is in favor of the appellee for the land and the standing timber remaining upon it should be affirmed, and that that part of the judgment which denied to appellant a recovery for $303, the value of the felled timber, should be reversed and judgment should be here rendered against the appellee and J. M. Sumrell and J. A. Mooney, the sureties on his injunction bond, for said sum, and it has been so ordered.

Affirmed in part. Reversed and rendered in part.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    BROOCKS v. GUILMARTIN.
    (No. 6791.)
    (Court of Civil Appeals of Texas. Galveston.
    April 15, 1915.
    Rehearing Denied April 15, 1915.)
    Costs <@=3260 — Appeal fob Delay — Damages.
    Where plaintiff in error filing his petition and bond for writ of error and obtaining a writ of supersedeas took no steps to file a transcript in the court of appeal, and filed no briefs, and on the day before submission of the cause filed a motion to dismiss, and no statement of facts or bill of exceptions were filed, the writ of error was sued out for delay, and the judgment would be affirmed with damages.
    [Ed. Note. — For .other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. 260.1
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Action by J. F. Guilmartin against John H. Broocks and another. From a judgment for plaintiff, defendant Broocks appeals.
    Affirmed, with damages for delay.
   PLEASANTS, C. J.

This suit was brought

by appellee against appellant and John Polk to recover upon three promissory notes executed by said Polk in favor of appellee and to foreclose a vendor’s lien upon a tract of land described in the petition. It is alleged in the petition that the land had been sold by defendant- Polk to defendant Broocks, who had assumed the payment of said notes. Judgment is asked against both defendants for the amount due upon the notes and for foreclosure of the vendor’s lien. The defendant Polk answered admitting all of the allegations of plaintiff’s petition and praying that he have judgment over against the defendant Broocks for whatever amount plaintiff might recover against him. The defendant Broocks answered by general demurrer and general denial. The trial in the court below without a jury resulted in a judgment in favor of plaintiff against both defendants for the amount due upon said notes and for foreclosure of the vendor’s lien upon the land described in the petition. This judgment was rendered on the 19th day of January, 1914. An entry on the judge’s docket recites that defendant Broocks appeared by attorney and in open court admitted “the indebtedness sued on.” The judgment was not excepted to and no notice of appeal was given. Thereafter on March 27, 1914, defendant Broocks filed his petition and bond for writ of error and obtained the issuance of a writ of supersedeas. He took no steps to procure and file a transcript in this court. Appellee on May the 28th applied for and procured a transcript which he filed in this court on June 8, 1914, within 90 days after waiver of service of writ of error had been filed. No statement of facts has been filed, and the record contains no assignment of error, nor bill of exceptions. Appellee, on December 16, 1914, filed in this court a motion reciting the foregoing facts and asking that the case be affirmed with 10 per cent, damages for delay. This motion was taken with the case. On March 3, 1914, the day before the cause was submitted, appellant, who has filed no briefs, filed a motion to dismiss the appeal.

We have examined the record and find-no error or irregularity of any kind, and the facts shown by the motion to affirm, and which we have before stated, compel the conclusion that the petition for writ of error was sued out and the execution of the judgment of the court below suspended for the sole and only purpose of delaying plaintiff in the collection of his debt. This being so, plaintiff had the right to bring up the record and have the judgment of the court below affirmed with 10 per cent, damages. Granberry v. Jackson, 132 S. W. 508.

It follows from these conclusions that the motion to dismiss should be overruled, and the motion to affirm with 10 per cent, damages granted, and it has been so ordered.

Affirmed, with 10 per cent, damages for delay.


author: MeMEANS, J.

text:
    AVERILL v. WIERHAUSER.
    (No. 6812.)
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1915.)
    1. Trial <@=>403 — Trial by Court — Findings —Duty to Make Findings.
    Under Rev. St. 1911, art. 2075, providing that the judge of any district or county court shall have ten days after the adjournment of the term in which to prepare findings of fact and conclusions of law, when demand is made therefor, a failure of the trial judge to file such findings when requested before the expiration of ten days after adjournment is, in the absence of a statement of fact, error requiring reversal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 954-956; Dec. Dig. <@=j403.]
    2. Appeal and Error <@=^527 — Record on Appeal-Findings of Trial Court.
    Findings of fact and conclusions of law, filed at a date later than allowed by law, are a nullity, not part of the record on appeal, and cannot be considered for any purpose.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-2383; Dec. Dig. <@=> 527.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.

      Action between W. C. Averill and H. J. Wierliauser. From a judgment for H. J. Wierbauser, W. C. Averill appeals.
    Reversed and remanded.
    Hightower, Orgain & Butler, of Beaumont, for appellant.
   MeMEANS, J.

This case was tried before the court without a jury, and resulted in a judgment for appellee, whereupon the appellant in open court requested the trial judge to file separately in writing his findings of fact and conclusions of law, and thereafter, before the expiration of ten days after adjournment of the court for the term, the appellant, through his counsel, called to the attention of the trial judge the fact that a written request for such findings and conclusions had been filed, and that such request must be complied with within ten days from the adjournment of the court for the term; but, notwithstanding all this, the trial judge failed to file such findings and conclusions within said time, but several days after said time did file an instrument in writing purporting to be such findings and conclusions. Appellant duly preserved a bill of exceptions to the action of the court in failing to file such findings and conclusions within ten days after adjournment, and the action of the court in this regard is the basis of appellant’s only assignment of error. No statement of facts accompanies the transcript filed in this court.

Article 2075, Revised Statutes 1911, provides:

“The judge of any district or county court shall have ten days after adjournment of the term at which a cause may be tried in such court in which to prepare his findings of fact and conclusions of law in cases tried before the court, when demand is made therefor.”

It has been too often held, to require further discussion than to cite some of the eases so holding, that, in the absence of a statement of facts, the failure of a trial judge to file findings of fact and conclusions of law in a case tried before him, when seasonable request has been made therefor, is such an error as to require reversal. Buckner v. Davis, 129 S. W. 639, and authorities cited; Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Sutherland v. Kirkland, 134 S. W. 851; Scroggins v. Neece, 138 S. W. 789. It has been further held that findings of fact and conclusions of law filed at a date later than the time allowed by law are a nullity (Velasco Fish & Oyster Co. v. Texas Co., 148 S. W. 1184), and are not a part of the record on appeal (Emery v. Barfield, 156 S. W. 311; Maverick v. Burney, 30 S. W. 566; King v. Baldwin, 37 S. W. 971), and cannot be considered for any purpose (Beaumont Imp. Co. v. Carr, 32 Tex. Civ. App. 615, 75 S. W. 327). In Hanks v. Holt, 148 S. W. 599, it is held that,, where the court failed to file findings and conclusions in time, they could not be

made a part of the record by attaching same to the bill of exceptions to such failure.

For the error in failing to file findings of fact and conclusions of law within the time prescribed by law, the judgment of the court below as to appellant is reversed, and the cause remanded.

Reversed and remanded.
      <@r^>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    BRUCE v. STARK et al.
    (No. 6828.)
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1915.)
    Trial <S=403— Findings of Fact and Conclusions — Failure to File.
    Where the defeated- party duly requested the trial judge to file his findings of fact and conclusions of law, but the judge failed to do so within the ten days after the adjournment of the term within which they may be filed, under Rev. St. 1911, art. .2075, the judgment will be reversed, and the case remanded.
    [Ed. Note. — For other cases, see Trial, Cent. Eig. §§ 95A-956; Dec. Dig. <@=»403.]
    Appeal from Orange County Court; O. R. Sholars, Judge.
    Action between E. L. Bruce, trustee, and W. H. Stark and others. From a judgment for W. H. Stark and others, E. L. Bruce appeals.
    Reversed and remanded.
    Smith, Crawford & Mead, of Beaumont, for appellant. B. F. Pye, of Beaumont, for appellees.
   LANE, J.

This case was tried before the court without a jury, and judgment was rendered for appellees, whereupon appellant, in open court, requested the trial judge to file conclusions of law and findings of fact, which said request is made evident by the recitals in the judgment entered in the cause on the 6th day of April, 1914.

On the 23d day of April, 1914, and before the court adjourned, counsel for appellant filed his written request to the court to file a statement of his conclusions of law and findings of fact. The term of court at which said cause was tried adjourned on the 25th day of April, 1914.

On the 1st day of July, 1914, more than 60 days after adjournment of court, appellant presented, had approved, and filed his. bill of exception to the failure of the trial judge to file his conclusions of law and facts in said cause. In approving said bill the trial judge added thereto the following:

“Believing this case would not be appealed, I did not sooner file my conclusions. They are in the record.”

On the 23d day of July, 1914, nearly three months after adjournment of court, the trial judge filed what purports to be his findings of fact and conclusions of law, and the same is now in the record. There is no statement of facts in the record. The action of the court in failing to file his conclusions of law and findings of fact is the basis of appellant’3 only assignment of error.

Under the provision of article 2075, Revised Statutes 1911, and the authorities cited in the opinion in the case of Averill v. Wierhauser, 175 S. W. 794, handed down by this court on this day, the judgment of the lower court in this cause should be, and the same is, hereby reversed, and the cause remanded.

Reversed and remanded.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CASSADY.
    (No. 8123.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    March 6, 1915.
    On Motion for Rehearing and Additional Findings, April 3, 1915.)
    1. Master and Servant @=>265 — Res Ipsa Loquitur.
    The doctrine res ipsa loquitur applies in an action for injuries sustained by a servant through the master’s negligence.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 877-908; 955; Dec. Dig. @=>265.]
    2. Master and Servant @=>265 — Defective Bridge — Derailment op Train — Res Ipsa Loquitur.
    In an action for the wrongful death of plaintiff’s husband, a brakeman on defendant’s train which was derailed and wrecked upon a trestle, evidence examined and held to sustain a verdict for plaintiff on the theory that the derailment itself, with the surrounding circumstances, and the condition of the trestle, showed that the wreck was caused by some unexplained defect raising an inference of negligence on the part of the defendant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. @=>265.]
    3. Master and Servant @=>124, 235 — Inspection-Bridges.
    A railroad company owes the duty to its employes to inspect its roadway and bridges so as to make them reasonably safe, and the employes .have the right to rely on the proper performance of such duty.
    [Ed. Note. — For other cases, see Master and Servant, Cent.. Dig. §§ 235-242, 710-722; Dec. Dig. @=>124, 235.]
    Appeal from District Court, Cooke County; C. W. Spencer, Judge.
    Action by Emma Cassady against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Chas. C. Huff, A. H. McKnight, and J. M. Chambers, all of Dallas, and Garnett & Garnett, of Gainesville, for appellant. Stuart, Bell & Moore, of Gainesville, for appellee.

       Writ of error pending in Supreme Court.

   BUCK, J.

This suit was filed in the district court of Cooke county, Tex., by Mrs. Emma Cassady, as administratrix, for the benefit of herself, as the widow, and of the three minor children of herself and deceased, H. S. Cassady. The latter was killed August 8, 1913, in a wreck alleged to have been caused by the negligence of the defendant company. A trial was had before a jury, and from a verdict and judgment for $12,000, apportioned $3,000 to the widow and $3,000 to each of the three children, defendant appeals.

The only question raised by appellant under its three assignments, which we will consider together, goes to the sufficiency of the evidence to establish the negligence of defendant proximately causing the accident which resulted in the death of deceased.

While crossing a bridge or trestle over a creek and slough the tender left the rails and was thrown across the track at an angle of some 45 degrees, the water tank thereon was overturned and cast to the side of the dump, and the head 12 cars fell through the bridge and were demolished. The deceased was the head brakeman, and at the time of the accident was located somewhere near the front of the train; just where he was at the time or in what position he was the evidence does not disclose very clearly, but he was probably up near the tender. -He was found at the bottom of the dump in a badly injured condition, and died shortly after-wards, at about 1:40 p. m. on said date. There is no question raised as to whether his death was caused directly from the injuries received in the accident. Deceased was 32 years old at the time of his death.

The bridge was 20 or 21 bents long. The average length of a bent, as testified to by the bridge foreman, M. P. Whitehurst, was 13 feet and 6 inches. The 3 bents on the south end of the bridge were not destroyed. This witness testified that in August, 1912, a year prior to the accident, the bridge was practically renewed; that he drove 5 new bents, the 5 on the south end, and 3 of which were not destroyed in this accident, and “renewed the entire deck; that means from the piles up.” The putting in of new piles on these five bents was necessitated by a former wreck, which tore these 5 south bents out.

In plaintiff’s petition she alleged:

“That the bridge and the track and the approaches to the bridge for about 10 or 15 feet south of said bridge and the supports of the same and the rails on the same gave way, fell, spread, and turned as the engine, tender, and cars approached, passed onto, and crossed said bridge; and the engine, tender, and cars of said train, upon which said H. ¡3. Cassady was riding in the discharge of his duties as aforesaid, were thereby caused to leave the rails, fall, and turn over, and said Cassady was precipitated and thrown to the ground and fatally injured and killed; and that the said bridge, tracks, approaches, supports, and rails on the same at said place were defective, unstable, and not sufficiently strong to support said engine, tender, and cars, and were not able to support, hold up, and carry the same; and defendant was guilty of negligence in permitting the same to be and remain in said condition; and that said negligence was the proximate cause of said H. S. Cassady’s injury and death, as aforesaid, without any negligence on his part contributing thereto.”

Defendant denied:

“That said bridge, approaches, supports or the rails on same were defective, and that they were not sufficiently strong to support said engine, tender and cars; and that it was negligent in permitting the same to be and remain in that condition; and that said alleged negligence was the proximate cause of H. S. Cassady’s injuries and death.”

It further alleged the exercise by it of ordinary care in the construction and maintenance of said bridge, supports, approaches, etc., and denied that the wreck was caused by any defect in any part of said bridge or track.

While there is some direct proof that the piles under and supporting this bridge were decayed, and had been so decayed for some months, yet plaintiff relies, in part at least, as ground for showing negligence on the part of the defendant, on the principle of res ipsa loquitur. Defendant urges that this principle does not apply in suits involving the relationship of master and servant as it does in suits by. a passenger against a common carrier. While appellant cites us in its brief to certain holdings that seem to make a distinction in the application of this rule between causes of action arising between passenger and carrier and those arising between master and servant, yet a careful review by us of the authorities bearing upon this principle leads us to believe that the great weight of authority in this state is against such distinction. The leading case on this point is that of McCray v. G., H. & S. A. Ry. Co., 89 Tex. 168, 34 S. W. 95. This was an action for the death of a brakeman, caused by a steel rail falling from a freight car, the one immediately in front of the car on which deceased was riding, and catching on some cars standing on an adjacent track, being thrown against deceased and causing his death. In an able opinion by Justice Brown,now Chief Justice, the Supreme Court says:

“It is a general rule that, when a servant sues his master or employer for damages arising from injuries caused by the negligence of the latter, the plaintiff must prove the negligence of the defendant, and that proof of the accident and injury alone will not be sufficient to authorize a recovery. However, it is well settled by authority that the circumstances attending the. injury may be sufficient to establish the fact of negligence without any direct proof thereof. In the case of Railway Co. v. Crowder, 63 Tex. on page 504, Judge Stayton, after stating the general rule, says: ‘There is no doubt that cases occur in which the accident is of such character as of itself, when considered in connection with the facts which necessarily appear in showing the áccident; to amount to sufficient proof of the want of due care by the defendant, and of the exercise of due care by the plaintiff, to authorize a jury to find both facts, without any direct proof on either point; but this does not affect the question of burden of proof, but relates rather to the sufficiency of the evidence furnished by the accident itself. The burden of proof resting on the plaintiff upon the issues of negligence of the defendant 'and his own exercise of due care requires that he should show the facts surrounding and leading to the accident, and if from these, when shown, a jury may reasonably infer negligence in the defendant contributing to the injury, and the exercise of due care by the plaintiff, then he is entitled to a verdict; but, if he does not show how the accident occurred by which be was injured, by showing his own relation to it, and the other surrounding facts, some or all of which may appear from the character of the accident itself, then he has not gone with his evidence as far as the law requires him to go to authorize a recovery.’ Mr. Wharton, in his work on Negligence (section 421), having stated the general rule, says: ‘But the very nature of the accident may of itself, and through the presumption it carries, supply the requisite proof.’ In Shear. & R. Neg. § 59, the author, having likewise stated the general rule upon the subject, continues: ‘In many cases the maxim res ipsa loquitur applies. The affair speaks for itself. It is not that in every case negligence can be assumed from the mere fact of the accident and of injury, but in these cases the surrounding circumstances, which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant’s duty and of his negligence to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer. * * *’ In Scott v. Docks Co., 3 Hurl. C. 596, the court announced the same rule in the following language: ‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.’ The doctrine announced in the foregoing quotations is amply sustained by the authorities, both English and American, of the multitude of which we. cite the following: Cooley, Torts, p. 697; 2 Thompson on Neg. p. 1227 et seq.; Holbrook v. Railroad Co. [12 N. Y. 236, 64 Am. Dec. 502]; [Brehm v. Railway Co.] 34 Barb. [N. Y.] 256; Barnowsky v. Helson [89 Mich. 523] 50 N. W. 989 [15 L. R. A. 33]; Howser v. Railroad [80 Md. 146] 30 Atl. 906 [27 L. R. A. 154, 45 Am. St. Rep. 332]. * * * In Howser v. Railroad Co., cited above, the plaintiff was walking along a footpath near the track of the railway, when a train of'cars loaded with railroad ties passed by him, and one of the ties fell of, striking the plaintiff, causing his injury. There was no other proof of negligence, and the court held that this proof was sufficient to submit the case to the jury. After reviewing many of the cases upon this question, the court says: ‘These and many other English and American cases clearly establish the fact that it is not requisite that the plaintiff’s proof, on occasions of this kind, should negative all possible circumstances which would excuse the defendant, but it is sufficient if it negative all probable circumstances which would have this effect.’ In the case of Rose v. Transportation Co. [C. C.] 20 Blatchf. 411, 11 Fed. 438, the plaintiff was injured by the explosion of a boiler. There was no evidence of negligence, except the facts surrounding the explosion itself. The court, in speaking of the application of the rule hereinbefore stated, said: ‘It is contended, however, that it was error to instruct the jury that they might infer such negligence from the fact of the explosion, and it is argued that such a presumption only obtains when the defendant is under a contract obligation to the plaintiff, as in the case of common carrier or bailee. Undoubtedly, the presumption has been more frequently applied in cases against carriers of passengers than any other cases of negligence, but there is no foundation in authority or in reason for any such limitation of the rule of evidence, as the presumption originates from the nature of the act, not from the relations between the parties. It is indulged as a legitimate inference whenever the occurrence is such as, in the ordinary course of things, does not take place when proper care is exercised, and is one for which the defendant is responsible.’ It was the duty of the railroad company to place the cai-s in the hands of its employes in a condition reasonably safe to be handled by them in the course of transportation. If the car was not in such condition, either from defects in the car itself or on account of improperly loading the rails thereon, and the injury to the deceased resulted from such unsafe condition, the defendant would be liable for damages occasioned by reason of the injury. This car was in the keeping and under the control of the defendant. The loading of the rails was done by it or by its servants; and, if the accident was such that it would not probably have occurred, in the ordinary course of transportation, if the car had been properly loaded, the circumstances attending the accident would furnish sufficient evidence to authorize a verdict for the plaintiffs if no explanations were given by the defendant. If there be an explanation which would excuse the defendant, it has the means of making the proof, and should do so; and the plaintiffs should not be required to negative every circumstance which might possibly arise whereby the accident might have occurred. The district court erred in instructing the jury, under the circumstances of this case, to find a verdict for the defendant.”

The holding that the rule of res ipsa loquitur applies as well in cases between employs and employer as between cases of passengers and carriers, as enunciated in McCray v. Railway Co., quoted from above, has been adhered to by the Supreme Court of this state in a long line of unbroken deci'sions, though there are some decisions by the Courts of Civil Appeals apparently, and in one case, at least, explicitly, opposing such general application of the rule. In the case of Jones v. Shaw, 16 Tex. Civ. App. 290, 41 S. W. 690, in which writ of error was denied, the plaintiff brought suit for injuries alleged to have been sustained by reason of the negligence of the defendant railway company. 1-Ie alleged that he was seriously injured by reason of the unsound and dangerous condition of the trucks and framework of the trucks and appliances thereon attached to and used by the defendant as receiver of the Et. Worth & Denver City Railway, in connection with a certain freight car. In one of its assignments the appellant urges:

“(1) There was no proof of any negligence on the part of the defendant; (2) there was no proof that any of the appliances used by defendant were defective; (3) the proof conclusively shows that the accident was unavoidable and beyond the control of defendant.”

In discussing this assignment, the court said:

“The servant has á right to rely upon the presumption that the master will use ordinary care in securing competent and diligent inspectors, and require them, at proper and reasonable intervals, carefully to inspect every car in its trains, while on the master’s road; and any defect in such cars, or any part of them, which could have been discovered by such skilled and competent inspectors by the use of ordinary care, in the application of their peculiar skill and knowledge in discovering defects, and which is the cause of injury to the servant, will render the master liable. From the evidence of appellant’s witnesses it is clear that without some defect in these trucks or their fastenings, or in the wheels, they should have continued in use in good and safe condition for 15 or 20 years, and the wheels should have lasted and been safe for 5. The track was in good, condition, straight, and safe. The car was heavy, but empty. The train was running at ordinary speed; yet, without any apparent cause, this car drops at one corner, leaves the rails, and its trucks become detached, and are found broken, and the injury occurs. The jury had a right to infer from these facts that the car or trucks or wheels or bolster, or some other part of the outfit, was defective. McCray v. Railway Co. [89 Tex. 168] 34 S. W. 95. This was the only reasonable conclusion to be drawn from the fact that the wreck occurred under such circumstances, because* under the circumstances as detailed by appellant’s own witnesses, there must have been a defect in this car somewhere, else the wreck would not have occurred. The appellant’s evidence shows no other cause for it; in fact, affirmatively shows that no other cause existed.”

In the case of Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764, the court uses the following language:

“Where the particular thing causing the injury has been shown to be under the management of the defendant, or its servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation that the accident arose from want of care.”

In Railway Co. v. Thompson, 116 S. W. 106, in which case the facts disclose that the deceased engineer was killed by derailment of a train, the Court of Appeals for the Fourth District says-

“There was evidence tending to show that defendant’s track where the derailment occurred was defective and the rails out of alignment; in fact, appellant concedes there was such evidence, when it seeks to avoid the prima facie case of negligence it makes by proving the rails were disjointed and placed out of alignment by trespassers. The track, in which the evidence tends to show such defect existed, was under .the peculiar management and control of defendant and its servants, and the derailment was such an accident as, in the ordinary course of things, does not happen, if those having the care, control, and management of the track use ordinary care to keep and maintain it in a reasonably safe condition for operating trains. Therefore the derailment itself affords reasonable evidence, in the absence of explanation, that the accident arose from want of ordinary care. Washington v. M., K. & T. Ry. Co. [90 Tex. 314] 38 S. W. 764; McCray v. Railroad Co. [89 Tex. 168] 34 S. W. 95; Railway Co. v. Wood, 63 S. W. 165; Railway Co. v. Cherry [44 Tex. Civ. App. 344] 98 S. W. 898; Railway Co. v. Harris [48 Tex. Civ. App. 434] 107 S. W. 109. The case belongs to that class where the very nature of the accident, of itself, through the presumption it carries, supplies the requisite proof of negligence; that is, the circumstances in evidence tend to show that the accident would not have happened if due care had been exercised. * * * Therefore, when the plaintiffs introduced evidence sufficient to warrant the jury in finding that the particular thing causing the injury was under the management of defendant, and the accident was such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it devolved upon the defendant to so ex-' plain the occurrence of the derailment as to remove the presumption qf its negligence which arose from its happening. In other words, when plaintiffs introduced evidence reasonably sufficient to show that the derailment was caused by defendant’s track being out of alignment, the burden was upon defendant to show that such defect neither arose nor continued through its negligence. This it undertook to do hy proving that the defect was caused by trespassers; and that after it was produced ordinary inspection on its part would not have detected it in time to have averted the accident. * * " The state of the evidence is not such as would authorize us to hold, as a matter of law, that defendant discharged this burden in either respect ; but, in our opinion, it is such as required its submission to the jury, and, the verdict being against the defendant upon such issue, we are not prepared to say that the evidence is insufficient to support it.”

In the case of Railway Co. v. Cason, 129 S. W. 394, this court, speaking through Justice Speer, says:

“A question has arisen whether or not the rule is ever applicable to a case involving the relation of master and servant, and some courts have held flatly that it is not. Broadway v. S. A. Gas Co., 24 Tex. Civ. App. 603, 60 S. W. 270. But there is no reason for this holding when the rule is rightly understood, and the false conclusion doubtless has grown out of the fact that for reasons presently to be stated the rule is less frequently applied to that character of actions. The first test to support the rule laid down in the definition above quoted is that the thing is shown to be under the management of the defendant or his servants. This obviously means servants other than the plaintiff; and, since most master and servant cases fail to measure up to this standard, the rule itself perhaps has been thought to have no application.”

As before stated in this opinion, the facts show that the tender left the rails and ran along on the ties for some distance. The evidence further shows that the cars in the train next behind the tender followed the tender off the track, and in so doing gathered up the ties before them, and in a measure stripped the bridge of rails and ties, and that, while the tender did not go through the bridge to the bottom of the ravine, but remained attached to the engine, which was left standing on the north side of the bridge, yet the first car behind the tender did go through the bridge and fall to the bottom of the slough, as well as the other 11 or 12 cars behind that car. Are we able to say or conclude from the circumstances surrounding the accident itself, as well as from the testimony of witnesses that the bridge or its supports were in a defective condition, which caused or contributed to cause, the accident in question? Burt Huyett, a witness for plaintiff testified:

“I saw the pilings and bents on that bridge, and saw the bridge that crossed the slough, which is north of Denton about five or six miles. I noticed that some of the pilings were badly decayed up to the top of the ground. There seemed to be quite a good deal of piling there in that bridge that was badly decayed about the top of the ground.”

This witness stated the time about which he was testifying was in October, 1912. He further testified that there had been some new work done there, but that such work had been done some time prior to his inspection of the bridge; that the pilings looked to be cypress; that oak pilings were preferable; and that they made a sounder and safer bridge than pine pilings or cypress. He stated there was a good deal of pilings in the bridge that were badly decayed. It is true that appellant has made, both in its brief and in the oral argument, a vigorous attack on this witness, but the trial court and the jury who heard him testify are in a better position to judge of his credibility than this court, and it seems that one walking over a bridge and carefully examining its construction and the condition of the material composing the same would be, other things being equal, in a better condition to testify as to said conditions than one passing along in a motor ear running at the rate of 10 or 15 miles an hour, or in a cupola of a caboose of a freight train, or on the rear platform of a fast-running passenger train. It is true that Mr. Geo. B. Johnson, superintendent of the joint tracks, testified that he was on the last train that passed over this track running south from Whites-boro to Ft. Worth at the head of the derailed train, and, in fact, met the derailed train at the first track (switch) south, 1% miles; that it was his purpose in going over this division to look out for conditions; that he passed along going north on the 8th day of August about 9 o’clock a. m., and returned about 12:45 p. m.; that while going north he was riding at the rear end of a passenger train, and on returning he was riding in the cupola of the caboose of a freight train. He states that he does not remember looking at the bridge in question as he passed over going south; that there might 'have been something wrong with the bridge when he passed over it, but it was nothing to cause it to tremble.

George Housden, a witness for the defendant, testified that he was working on the section including this bridge; that he was over that part of the section about 8 o’clock the morning of the accident; that he went over the track in a motor ear; that he never went down and examined the bridge; that the motor car was running about 10 or 15 miles an hour. 1-Ie further testified that it looked to him like the trains that ran over this track were running about 60 or 65 miles an hour, and that it took a pretty good bridge to stand the pressure. The evidence further showed that 20 miles an hour was the speed limit on this division. E. O. Johnson, locomotive engineer, witness for defendant, testified:

“My train ran around or passed the train on which Brakeman Cassady was working at Den-ton, leaving Denton just ahead of that train, and as my train was pulling away from the water tank at Mingo the train which was after-wards derailed was pulling up to the water tank, and we could not have been over ten minutes ahead of them over Elm creek bridge” — -Elm creek bridge being just south of the bridge where the wreck occurred.

He further testified:

“My engine, 534, was the largest switch engine that was permitted on the joint track at that time. I think it weighed about 150 tons. On August 7, 1913, going south over this bridge, we made about 20 miles an hour, and when passing over the same north just ahead of the train that was derailed we made 30 miles an hour, under special permission given by dispatcher.”

The evidence further showed that 40 trains had passed over this bridge going north and south during the day of and prior to the accident. Mr. Johnson, the superintendent, testified:

“It is a fact that running heavy trains and a good many trains over tracks is a strain on a bridge, and is more of a strain than if you run a few trains and light ones. It is a fact that an immense train with a heavy tonnage, when it comes plunging on a bridge that way, going north, makes a great pressure on the uprights that are holding that bridge, and has a tendency to press them over to the north.”

J. A. Copper, engineer, testified in behalf of the defendant:

“My train was running at a speed from 40 to 50 miles an hour when we passed over that bridge.”

C. R. Mock, engineer, witness for the defendant, testified:

“We crossed this bridge at about 25 miles an hour.”

C. C. Hotchkiss, another witness for the defendant, and an engineer, testified:

“I suppose I was running about 25 or 30 miles an hour when my train passed over this point.”

M. P. Whitehurst, a witness for the defendant, and bridge foreman for this division, testified:

“It had been some time since there had been any work done on that bridge prior to the accident. I believe the last work we did on that bridge — I think I lined it up maybe in the winter, a little, along about January. I lined it up in January prior to the accident in August. The work we done on it, we sort of lined it up. Sometimes they get out of line a little, and we went over that division working, and when we found anything out of line we lined it up. I don’t believe we done any work on it prior to January. I don’t believe we done any work on that since the summer before. The bridge was practically renewed the summer before. In August, 1912, I drove five new bents in this bridge. * . The piles that we drove were the first five bents on the south end of this bridge. Those were the five new bents. The reason that we put in new bents there there were, five bents torn out; there had been a wreck on the south end of this bridge and it tore down five bents.”

He further testified:

“I inspected this bridge in May before this wreck occurred in August. The way I inspected the bridge I went over the road in a little motor car that we have for that purpose, with an inspection bar that we keep for that purpose. In making an inspection of that kind I do not make same from the car; I get off it and go down under the bridge and feel of each piling and each piece of timber in the bridge; that is, I feel of it with this bar.”

He denied that there was a rotten piece of timber in the bridge in May when he inspected it last. He further testified:

“It is a fact that the wheels had gone about 40 feet on the ties from the end of the bridge until it started to tear the bents down. * * * I do not know if I have ever renewed any of the bents from.the fifth bent north since I have been on the joint track. I do not know of my own knowledge when the north part of that bridge was driven. There was more of the old part of the bridge went down than of the new. There was only two new bents that went down.”

1-Ie further testified:

“We had wooden bridges. I do not know whether iron bridges áre stronger than wooden bridges, but they can do away with making so, many bents. The reason they are substituting' iron bridges for wooden bridges the iron bridges last much, longer.”

Superintendent Johnson further testified:

“When we renew pilings, as a rule, the old bent is renewed. The reason they were renewed about a year before that was probably because the timbers were worn so that it was necessary to renew them to make them absolutely safe. * * « None of the caps or stringers are made of oak. Oak would last better, but it is not necessary to have oak. Yes; it is a fact that oak would last better than pine. Yes; it is true that the reason we had to make the change on these when we did was from the fact that some of them wore out.”

Mr. Whitehurst further testified with reference to the work he did in “lining up” the track across this bridge in January before:

“Yes; we had to kind of prize it over a little; just throwed it over. We had bars for that purpose. The cause of its being out of alignment I said might be from the pilings' getting lower on one side than on the other.”

A. Q-. Nelson, locomotive engineer, and witness for the defendant, testified, in answer to questions propounded by counsel for the plaintiff:

“Supposing that I were going along Elm bridge on the Katy, and my tender got off the track one time, and supposing I was going along there and my . tender got off at the same place again, as to what I would say about that, will say that if it got off at the same place again there would be something wrong with the track.”

Enough of the evidence has been given hereinabove to sustain the finding of the jury that the accident was caused by “the defective and unstable” condition of the bridge, track, supports to the bridge, or approaches to the bridge.

The duty of inspecting the bridges and roadbeds so as to make them reasonably safe for use by trainmen in the discharge of their duties, such as deceased, was incumbent upon the defendant, and the deceased had a right to rely upon the assumption that such inspection or repairs had been done. as .to make them reasonably safe for him in the discharge of his duties. Nor did the fact that the defense introduced witnesses to testify to the effect that due care had been exercised in the inspection of its bridges and track require the jury to accept the testimony of such witnesses as conclusive proof of such inspection, nor preclude the jury from finding, from the circumstances of the accident itself, against such evidence. M., K. & T. Ry. Co. v. Jones, 117 S. W. 1000. Just how the accident occurred, it is true, no witness is able to definitely state, but it is without question that the tender in this train left the track, and it is a reasonable presumption, it seems to us, based upon testimony in the case, and especially that quot ed in this opinion, that such derailment was caused by some unexplained defect raising an inference of negligence as charged. That the appellant company recognized, or its officers in authority recognized, that the tracts and bridges on this division between Whites-boro and Pt. Worth were not in good condition, was evidenced by the order of 20 miles an hour speed limit, but that, in spite of such general orders, the officers permitted, and even specially authorized, trains to run at a speed greatly in excess of such limit. A few minutes before the accident a train, attached to which was an engine of unusual size, passed over this bridge at a speed of SO miles an hour. It is supported by the evidence and also by common sense that, where bridges are in a weakened condition, heavy trains running over them, and especially at an excessive speed, will cause accidents.

We feel that, under the circumstances, we are unable to say, as a matter of law, that the negligence of defendant proximately causing the accident and injuries complained of has not been established by the evidence. Therefore the judgment of the trial court is affirmed.

On Motion for Rehearing and Additional Findings.

We are requested by appellant, in the event its motion for rehearing should be overruled, to file additional findings of fact, which motion is hereby granted in so far as the request for findings upon the question of where, with reference to the south end of the bridge, the evidence shows that the tender left the track is concerned; but as to other matters presented the motion is overruled.

P. G. Johnson, rear brakeman on the train at the time of the accident and witness for plaintiff, testified, in part, as follows:

“Immediately after the accident the engine tank was turned over bottom side upwards down the dump, and the first 12 cars back of the engine were piled up in the bottom of the ravine, and the thirteenth car back of the engine was standing upright on .the bridge stringers, The cars back of the last-mentioned car were on the track. The north 75 feet of this bridge was completely demolished, rails, ties, stringers, and pilings torn out, and the bridge for 28 or 80 feet south of the destroyed portion of the trestle was stripped of rails and ties.”

Jack McKemy, fireman, and witness for plaintiff, testified in part:

“This bridge was totally destroyed, rails, ties, stringers, pilings, and everything, except about two or three bents on the south end of the bridge. The engine tender was off the track north of the bridge, with tank, which had rested on tender frame, lying at the bottom of dump on left-hand side of the track, bottom side upwards. The first 13 cars and train were stacked up and demolished in slough crossed by the bridge where the accident occurred. This stuff was stacked up for 20 feet or more above the bottom of the slough into which they had fallen. * * * When I say demolished, I mean the rails, ties, caps, stringers, and even the pilings under bridge were torn to pieces. The first 13 cars behind the engine dropped into this slough through the bridge, destroying bridge in doing so, and demolishing themselves when they stacked up • one on top of the other in the bottom of this slough. * * * The engine of the train in question was on track undamaged. The frame and trucks of tender were off tracks, but still attached to engine. The tank on tender had tumbled off and rolled down left-hand side of track.”

W. L. Beamer, conductor iu charge of the train, and witness for plaintiff, .testified, in part, as follows:

“The first thing I saw of the accident was when the cars at the head end of the train began stacking up, and the rear train stopped suddenly. I was up in the cupola of the caboose looking ahead of the train, and saw the cars when they commenced to stack up. * * * The engine tender was the first to leave the rails, and first left them about 20 feet west of the west end of the bridge and the trucks and wheels under tender marked about six or eigh' ties, and then began tearing out the rails, ties, and bridge, and completely demolished thf bridge, ties, stringers, caps, piling, and everything for a distance of about 10 bents from the west end.”

It seems that the tracks and bridge where the accident occurred do not lie exactlj north and south, but perhaps northeast and southwest, and the witnesses use the term “south end” and “west end” both in referring to the end of the bridge from which the train approached.

The witness Jack McKemy, on cross-examination, further testified:

“The first thing I knew of this accident was when the tender of the engine jumped the tracks about ten feet -south of the south end of the bridge, where the wreck occurred. I first heard something pop behind me like a gunshot, and on looking back along the train I saw the engine tender turned across the tracks. The tender was not turned across the track at right angles, but was angling across the track sort of southeast and northwest. The tender frame never did become disconnected from the engine, but even after the engine stopped on the north side of this bridge was still attached to the engine. After the tender had pulled clear across this trestle the tank on the tender frame fell off the frame on my side of the train and rolled down the dump.”

M. P. Whitehurst, bridge foreman, and • witness for defendant, testified, in part, as follows:

“I could tell the place where the train left the rails; there was a mark on the rail just about ten feet south of the end of the bridge; it looked like the wheels had got off there and started on the rails, and then hit the ties about the tenth tie from the bridge, where the wheels first struck the ties. There was a mark on the ball of the rail; it looked like the flange of the wheel had stayed right on the ball of the rail, and then ran until it got on the flange of the wheel, and then run off. The place where the wheels showed to have struck the ties was about nine or ten feet south of the south end of the bridge.”

There is considerable evidence by various witnesses as to this matter, but we believe the above-quoted testimony presents fairly the condition of the record upon this point, and therefore we find as a fact that the tender of the engine, if it was the first part of the train to leave the rails, and, if not, that part that did first 'leave the rails, did so just immediately south of the south end of the bridge, probably about ten feet.

It might be well to add that we have not been called on to consider, and therefore do not determine, the question of whether the defects in the bridge, if any, constituted a proximate cause of the accident, inasmuch as appellant presents no assignment raising that question; the only assignments being that there was no evidence to support the verdict and judgment or any of the issues of negligence alleged.

Motion for rehearing is hereby overruled.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HARRIS et al. v. SALVATO.
    (No. 5486.)
    (Court of Civil Appeals of Texas. Austin.
    April 14, 1915.)
    Justices oF the Peace @==>72 — Venue.
    Defendants, residents of one county, sold feed to plaintiff, who was doing business in another, sending bills of lading with drafts attached to a bank located in a third county. Plaintiff paid the drafts, received the bills of lading, and reshipped the feed. There was a shortage. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2308, declares that every suit in justice court shall be commenced in the county in which the defendant shall reside, while subdivision 4 declares that suits upon a contract in writing and promising performance at any particular place may be brought in the county where the contract is to be performed. Held, that the transaction in effect constituted a written promise to perform the contract in the county where the drafts were paid, and plaintiff might there maintain an action in justice court.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 56, 143-145, 235; Dec. Dig. @=»72.]
    Appeal from Robertson County Court; J. L. Goodman, Judge.
    Action by Carlo Salvato against R. G. Harris and another, begun in justice court and appealed to the county court. From a judgment there for plaintiff, defendants appeal.
    Affirmed.
    Geo. A. Watts, of Franklin, for appellants. .Lane, Johnson & Killough, of Hearne, for appellee.
   RICE, J.

In December, 1913, R. G. Harris and H. P. Harris, appellants, were conducting a grain business at McKinney, Collin county, Tex., and appellee was merchandising at Steele’s Store in Brazos county. He ordered from appellants two cars of feed, one of corn and one of alfalfa hay, which were shipped to him in January thereafter by appellants through their correspondents, and at the time of said shipment appellants drew drafts on appellee with bills of lading attached, through the First National Bank of Hearne, Tex., for the price of said corn and hay; said cars being billed to “shipper’s order.” Upon the arrival of said cars at Hearne, the appellee, in order to obtain possession of said corn and hay, was required to pay said drafts to said bank, which he did, who turned same over to him, together with the bills of lading, and, upon presentation of the latter to the railroad company, said cars of corn and hay were delivered to appellee, who had same forwarded to his store in Brazos county. It is clearly shown by the evidence that said cars did not contain the quantity of hay and corn ordered and invoiced to appellee, the same being short to the extent of 27% bushels of corn and 4% tons of hay, which at the prices charged by appellants therefor amounted to the sum of $123.87%, for which amount appellee filed his suit against appellants in the justice’s court at Hearne, Robertson county, claiming: First, that by virtue of said transaction appellants had obligated themselves in writing to perform said contract at Hearne, in Robertson county; and, second, that they knew of said shortage prior to drawing said drafts, by reason of which they had undertaken to perpetrate a fraud upon appellee through the bank, who was an innocent agent, wherefore he was entitled to maintain this action in Robertson county. The only defense interposed was a plea of privilege, duly filed on the part of appellants, alleging that they were residents of Collin county, and prayed that the suit be abated. This plea was by the court overruled, and judgment rendered for appellee in the amount claimed, from which appellants appealed to the county court. When the case was called for trial there, appellants filed an amended plea of privilege. The court, after hearing the evidence, overruled the same and rendered judgment in behalf of appellee for the sum of $123, from which this appeal is prosecuted, appellants urging that the court erred in overruling their plea of privilege, and this is the sole question to be determined.

Article 2308,. Vernon’s Sayles’ Civ. Stats., provides that:

“Every suit in the court of a justice of the peace shall be commenced in the county and precinct in which the defendant, or one or more of the several defendants, resides, except in the following cases and such other cases as are or may be provided by law.”

One of the exceptions named is contained in subdivision 4 of said article, which provides as follows:

“Suits upon a contract in writing, promising performance at any particular place may be brought in the county and precinct in which such contract was to be performed.”

Appellee insists that this subdivision authorizes the bringing of this suit against appellants in Robertson county under the facts heretofore stated, in which contention we agree with him. Upon the payment by ap-pellee of the drafts with bills of lading attached, appellants became obligated to deliver to him the amount of corn and hay so paid for, and entitled appellee to maintain this suit, for a breach of said covenant, in Robertson county. The transaction, in effect, constituted a written promise on the part of appellants to perform the contract at Hearne, which authorized appellee to bring suit for its breach at said place; for which reason we conclude that the court properly overruled the plea of privilege, and rendered judgment for appellee. See Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399; Callender, Holder & Co. v. Short, 34 Tex. Civ. App. 364, 78 S. W. 367; Yett v. Green, 39 Tex. Civ. App. 184, 86 S. W. 787; Yeager v. Focke, 6 Tex. Civ. App. 542, 25 S. W. 662; Morrison v. Jalonick, 1 White & W. Civ. Cas. Ct. App. § 778.

The evidence failed to show any fraud on the part of appellants, as alleged; but, for the reasons hereinbefore indicated, the judgment of the trial court is affirmed.

Affirmed.
      <&s?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    GRAHAM PAPER CO. v. WILLIAMS.
    (No. 759.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 3, 1915.)
    Contracts <@==>1 — “Promise”—Construction.
    A buyer of corporate property, who notifies an unsecured creditor of the corporation thereof, and who states that he believes that within a few days he will be able to offer the creditor a settlement in full and that he will write again as soon as he can tell anything definite, does not thereby promise to pay the corporate debt; for a “promise” is an express undertaking or an agreement to carry a purpose into effect, and the expression of an intention to do a thing is not a promise to do it (citing Words and Phrases, Promise).
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1; Dec. Dig. <§=>1.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Action by the Graham Paper Company against W. J. Williams. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. E. Gee, of Amarillo, for appellant. Syn-nott & Underwood, of Amarillo, for appellee.
   HALL, J.

Appellant filed this suit against appellee upon an account originally made by the Amarillo Publishing Company. This appeal is from a judgment sustaining a general demurrer to the petition. The written promise alleged to have been made by appellee to pay the account is claimed to be in the following letter:

“Replying to your telegram of this morning, I will say that on June 4th, the Amarillo Daily News was sold out under mortgage sale for about one third the amount of the mortgage and to protect myself as much as possible, I bought the institution. There is only about $309.00 more of debts unsecured and it is my intention to take care of these as rapidly as 1 am able. Some of the stockholders have been threatening to bring an action to set aside the sale but L believe I can prevent that as I have gotten control of the balance of the claim under the mortgage and believe that within a few days I will be able to offer you a settlement in full, if I can make an arrangement with you to give me some time to get straightened out and running. I am getting the expenses within the receipts and hope to soon have it doing some good. My attorney advises me not to attempt to make any settlement until I am reasonably certain to be out of danger of a contest, as I would be personally liable, even 'though the company retained the property. Will write you again as soon as I can tell anything definite.”

In our opinion, there is nothing in this letter which can be construed as a promise to pay the debt at all, and certainly appellee could not be held upon any promise therein to pay the debt of a third party. A mere intention to pay unsecured debts whenever the writer is able, and an intimation that he would be able to offer appellant a settlement in full, if he can make arrangements for time and can get the business straightened out and running, is not a promise to pay. The last sentence, in which he says, “Will write you again as soon as I can tell anything definite,” negatives the contention that the writer intended to bind himself by anything contained in the letter.

“The intention necessary on the part of a debtor in binding himself to the payment of a debt is the purpose the man forms in his own mind, and the promise is an express undertaking or agreement to carry that purpose into effect, and the simple expression of the intention to pay the debt is insufficient. Shockey v. Mills, 71 Ind. 288, 36 Am. Rep. 196, and note.
“An intention is but the purpose a man forms in his own mind. A promise is an express undertaking or agreement to carry the purpose into effect. The intention may begin and end with the person who forms it. The expression of an intention to do a thing is not a promise to do it. Conversations made by a bankrupt after his discharge, in which he declares his intention to pay a certain debt, do not amount to a promise binding on the bankrupt. Steward v. Reckless, 24 N. J. Law (4 Zab.) 427.” Words and Phrases, vol. 6, p. 5675.

The petition does not allege that appellee ever received any of the paper sold to the Amarillo Publishing Company, nor any other consideration for the alleged verbal promise; neither is it shown that appellee ever wrote any other letter with reference to the matter, nor that appellant ever accepted any proposal alleged to have been made.

The judgment is affirmed.