author: RICE, J.

text:
    S. A. STONE & CO. v. DAVIS & MOORE.
    (No. 5355.)
    (Court of Civil Appeals of Texas. Austin.
    April 17, 1915.)
    1. Sates <§=5201 — Presumption—1Title.
    A contract entered into in April, whereby plaintiff agreed to sell to defendant certain steers at a certain price per head, deliveries to be made between then and the 1st of July following, and whereby the buyer agreed to feed cotton seed cake each day until delivered, or not later than June 1, 1910, passed the title to the buyer, though they remained in possession of the seller for feeding and pasturing until the price was paid.
    [Ed. Note.-í-Eor other cases, see Sales, Cent. Dig. §§ 529-541; Dec. Dig. <§=>201.]
    2. Sales <§=201 — Delivery—Conditions.
    That the cattle were to be fed on cotton seed cake - while they were to be held in the pasture was not a condition precedent to the passing of the title, but an independent condition or covenant, and the sale was complete without performance of such condition by the seller.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 529-541; Dec. Dig. <§=>201.]
    3. Sales <§=>116 — Rescission by Buyer.
    Where, notwithstanding the breach of the condition as to feeding for about two days, no substantial damage resulted to the buyer, he had no right to rescind.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 290; Dec. Dig. <§=>116.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by S. A. Stone & Co. against Davis & Moore. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    On the 30th of April, 1910, the parties hereto entered into a written contract, whereby appellees agreed to sell and deliver to appellants 420 to 430 steers then located in the Richards and Caldwell pastures in Travis and Bastrop counties; Stone & Co. agreeing to pay therefor $52.50 per head for 400 head thereof and $40 per head for the remainder, deliveries to be made at any time between then and the 1st of July next thereafter. Ap-pellees agreed to feed about 300 head of said steers four pounds of cracked (cotton seed) cake each per day until delivered, or not later than June 1, 1910.' The sum of $4,250 was paid by appellants on said contract as earnest money, which was to be held until the last delivery, when it was to be taken into account and applied thereon; it being agreed and understood between the parties that said cattle were to be held in said pastures until delivered.' About two weeks thereafter appellants shipped out and sold on the market 134 head of said 300 steers, for which they paid appellees the sum of $52.50 per head, making a profit thereon of $675.83. About the last of May appellants,. discovering that appellees had failed on two different days to feed the -remaining 164 head the cracked cake, as required by said contract, made an effort to notify appellees thereof, and in a few days thereafter did notify them thereof, and refused to accept or receive any more of s-aid cattle on the ground that appellees had breached said contract in this respect, declaring the contract at an end, and demanding to be placed in statu quo. In order to minimize the loss, if any, on said cattle on account of decline in the market or otherwise, said parties on the 10th of June made a second contract, whereby it was agreed, without prejudice to their respective contentions, that appellees should sell the balance of said cattle on the market not later than the 15th of July, for the best price obtainable, and, after paying the cost of said sale, should apply the remainder in liquidation of the amount claimed to be due them by appellants on said contract and pay the balance, if any, to appellants, which was accordingly done; and appellants thereafter brought this suit against appellees to rescind said contract and to recover the sum of $1,102.44, which would be the amount due them, if it be conceded that they were entitled to rescind, contending that the stipulation to feed said cattle constituted'an essential part of said contract, without which it would not have been made, and by reason of the breach thereof said cattle failed to take on flesh, as they otherwise would have done, whereby appellants were damaged. Appellees, after a general and special demurrer, relied upon a general denial. A nonjury trial resulted in a judgment in favor of ap-pellees, from which appellants have prosecuted this appeal.
    The court filed its conclusions of fact and law, and found, among other things: That said 300 head of steers which appellees agreed to feed with cotton seed cake were kept in separate pastures from the others, and that said steers had been fed with cracked cake during the preceding winter and were in good condition at the date of the contract. That prior to its execution the parties thereto had inspected said cattle and examined the stock of cracked cake belonging to appellees, stored on the premises for the purpose of feeding said. cattle, and the parties had estimated that the quantity of cake on hand would be sufficient to feed said steers the amount and for the period provided in the contract. That appellees fed said steers all of said cake which they had on hand at the execution of the contract, but that during the latter part of May, for at least two days, and possibly a few other days, they failed to feed said steers the cracked cake as specified in the contract. That ap-pellees had placed in charge of said cattle persons who were experienced in handling and feeding cattle, instructing them to feed said cattle each day, as provided in the contract, and had no knowledge of such failure to so feed them. That, immediately following the days upon which said cattle were not fed, they looked slightly drawn, hut that during the month of May, and especially during the latter part thereof, the grass in said pastures was good, and the injury to said cattle hy reason of the failure to feed same was small, and the effect thereof upon said cattle but temporary. Said cattle readily fattened upon the grass in said pasture, after the feeding had. ceased. That about the dates of the failure to feed said cattle, and of appellants’ refusal to accept same, the market value of cattle had declined. That plaintiffs made no effort to account to defendants for the profits realized by them on the sale of the 136 head of cattle delivered about May 13, 1910, until the filing of their amended original petition, on September 18, 1913, which was something over three years after the institution of the suit.
    White, Cartledge & Graves, of Austin, for appellant. Batts & Brooks, of Austin, for appellees.
   RICE, J.

(after stating the facts as above). The trial court filed the following conclusions of law, which we adopt:

“(1) I conclude that the title to said cattle passed to the plaintiffs by the written contract executed by the parties on the 30th of April, 1910, and that the condition in said contract providing for the feeding of said cattle was an independent condition.
“(2) I conclude that, under the facts and circumstances of this case, the plaintiffs were not entitled to a rescission of said contract, and that, if they suffered any injury by reason of its breach, their proper remedy would be a suit for damages.”

The title to said steers passed to appellants, notwithstanding the fact that they remained in the custody of appellees for the purpose of feeding and pasturing and until the purchase price was paid. See Midland Nat. Bank v. Strickland, 32 Tex. Civ. App. 91, 74 S. W. 588; Barker v. Bushnell, 75 Ill. 220; Puckett v. Reed, 31 Ark. 131; McCrae v. Young, 43 Ala. 622; Worth v. Northam, 26 N. C. 102. In Midland Nat. Bank v. Brookland, supra, as shown by the syllabus, where plaintiff sold to .defendant a lot of stoves then stored in a warehouse, agreeing that they might remain there until called for, and defendant executed his note for their price, but before the stoves were called for they were destroyed by fire without fault on the seller’s part, it was held that in law the delivery was complete, and, the title having passed to the purchaser, he could not resist payment of the purchase price because of such loss. Judge Templeton in said case Quotes from Mr. Storey as follows:

“The principle is sound that a continuance of the' possession of the vendor does not prevent the delivery being complete, if nothing further remains to be done on either side, and the possession is by mutual consent. There is nothing in reason or principle to make the present case different, simply because the bales of cotton remained in the plaintiff’s warehouse. It was part of the bar-gain that they should so remain, and a part of the consideration of the promise.”

In Hotchkiss v. Hunt, 49 Me. 221, it' is said:

“Where, by the terms of the agreement, or by fair implication therefrom, the article thus sold or resold is to remain in the possession of the vendor for a specific time or for a specific purpose, as a part of the consideration, and the sale is otherwise complete, the possession of the. vendor will be considered the possession of the vendee, and the delivery will be complete and sufficient.”

See, also,.Storey on Sales, § 300.

The fact that the cattle were to be fed on cake during the 30 days that they were to be held in.' the pasture was not a condition precedent to the passing of title, but was an independent condition or covenant, and the sale, we think, was complete without the performance of such condition. See Springfield Seed Co. v. Walt, 94 Mo. App. 76, 67 S. W. 938; Bladsworth v. Rosenblatt, 20 Misc. Rep. 357, 45 N. Y. Supp. 931; Dox v. Dey, 3 Wend. (N. Y.) 356; Magnolia Compress Co. v. Smith, 75 Ark. 503, 88 S. W. 563; Eastern, etc., Ry. Co. v. Rand, 16 C. B. 2; Haynes v. Hayward, 41 Me. 488; Neill v. Whitworth, L. R. I. C. P. 684.

The court having found that, notwithstanding the breach of said condition, no substantial injury or damage resulted to appellants therefrom, we therefore conclude that the court did not err in the further holding that no right to rescind existed. Einding no error in the judgment of the trial court, the same is in all things affirmed.

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


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    O’REILLY v. CRYER.
    (No. 5424.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 3, 1915.
    Rehearing Denied April 28, 1915.)
    Brokers @=5=61 — Employment-Commissions —When Eaened.
    A broker employed to procure a purchaser who produced a purchaser ready, willing, and able to buy on obtaining good title has earned Ms commission, though the owner contracting to sell to the purchaser is unable to convey good title, and because of that fact the purchaser refuses to carry out the contract.
    TEd. Note. — For other cases, see Brokers, Gent. Dig. §§ 77, 78, 92, 93: Dec. Dig. @=61.]
    Appeal from Bee County Court; T. M. Cox, Judge.
    Action by P. E. O’Reilly against Dan Cryer. Prom a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    B. D. Tarlton, Jr., and H. S. Boanham, both of Beeville, for appellant. Beasley & Beasley, and J. Ed Daugherty, all of Beeville, for appellee.
   CARL, J.

Appellant, P. E. O’Reilly, sued Dan Cryer, appellee, to recover 8505.50 commission for the sale of 674 acres of land belonging to appellee, at $15 per acre. Appellant urges that under his contract of employment he was to receive 5 per cent, of the sale price for effecting a sale at the stipulated price; that by effecting a sale was meant that he should produce a purchaser who was ready, willing, and able to buy; and this, he alleges, he did, but defendant refused to s%ll or failed to consummate the sale by reason of a defective title.

. Appellee, after denying the material allegations, alleges that, since no time was mentioned in which defects of title might be cured he should have had a reasonable time for that purpose after such defects Were pointed out. And he pleads that the purchaser called off the deal without giving him any opportunity to mend the defects in, title to the land, and that, therefore, appellant did not effect a sale by producing a purchaser who was ready, willing, and able to buy.

The case having been tried on special issues, the questions asked and answers thereto by the jury are as follows:

“(1) Was it proven by the preponderance of the testimony that defendant, Dan Cryer, entered into an agreement with H. Borchers, as a part of which said agreement the said Cryer agreed to furnish to the said Borchers an abstract showing clear title in him to the lands? Answer: Yes.
“(2) Whether or not you find that it was proven by the preponderance of the testimony that the defendant, Dan Cryer, entered into an agreement with H. Borchers obligating himself to furnish to said Borchers an abstract showing clear title in said Cryer to the land, then, under all the circumstances of the case, did said Cryer have a reasonable time or opportunity before the negotiations were broken off by the said Borch-ers within which to furnish such an abstract to the said Borchers? Answer: No.
“(3) Was it a part of O’Reilly’s contract of employment with Cryer to sell Cryer’s land that O’Reilly was not to receive his commission of 5 per cent, until a sale had been finally consummated? Answer: It was not a part of the contract.
“(4) Was Cryer willing to have the abstract completed and to perfect and cure such objections and defects therein as had been pointed out to him by Borchers’ attorney? Answer: Yes.
“(5) Did Borchers or his agent and attorney, Boales, break off the negotiations for the sale of the land without demanding or requesting of Cryer that he cure or perfect the objections or defects in the title to said land pointed out by Boales, and without giving Cryer an opportunity to meet such objections? Answer: Yes.”

Upon the answers so returned, the court entered judgment for defendant, Cryer, and O’Reilly has appealed.

•rne undisputed evidence shows that Borch-ers agreed to buy the land, and went to Bee-ville with his money ready to close the deal, and that he would have closed the deal if the title had been good. And the overwhelming testimony shows that one of the main considerations was that the purchaser was to have immediate possession of the farm. Borchers said:

“I agreed to buy the crops on the place separate from the land. Cryer said he would turn the place over to me if I bought the crops. I bought the crops to get immediate possession of it. Cryer did not make any proposition to me to clear up the title that I remember. I did not make a proposition to him to clear up the title. It was the understanding between Cryer and myself that if I took the crops I took the place at once. * * * Cryer did not at that time, nor as far as I can remember, intimate to me that he would clear up the title or make the abstract good. All I wanted, and all I requested in my negotiations with Mr. Cryer, was that he furnish me a good title to the land. Mr. Cryer did not at that time, nor as far as I can remember, intimate to me that he would clear up the title or make the abstract good.”

This is also indicated by Cryer’s own statement:

“ ‘Now, if you want this place, I tell you what I’ll do: If you will give me $1,000 for my crops, I will turn the place over to you as soon as we make the deed.’ And he said he .didn’t have any teams, and I said: T will sell you a team and put them in.’ So I sold him two mare mules and two horse mules for $350, and then he wanted some corn, and I told him that he could have what I had for 50 cents per bushel ; and then he said that he didn’t have any plows, and I told him that I would give him plows enough; that I would throw them in; and finally he said: ‘All right; when can you get your deed up or furnish me an abstract?’ I said: ‘Yes; I can furnish you an abstract, but it isn’t here; it is in San Antonio. * * * Now, I will write to Hill to send that abstract to Beeville. About when can you be there?’ He said: T will be in Beeville Monday.’ I said: ‘All right.’ That was on Thursday morning, and he said he would be here Monday — I think it was Thursday; I am not certain — and I wrote to I-Iill to send the abstract here to the Commercial Bank, and when I got here Monday the abstract was not here. We waited until Monday evening. Mr. Borchers was here, and he asked me if I had gotten my abstract, and I said: ‘No; it hasn’t come, but it ought to be here to-day.’ And I waited until evening and called for my mail, and it didn’t come; so I went to the phone office and phoned Hill to send that abstract down, and he said: T will send it down to-morrow.’ That would be Tuesday ; so late Tuesday evening it came in with the mail, and Mr. Borchers phoned Mr. Boales to come down at the same time when I phoned for my abstract; so Boales came down Tuesday evening on the train, and I turned that abstract over to him Tuesday night, and he examined that abstract Tuesday night and all day Wednesday.”

Mr. Cryer further testified:

“I told him that the abstract had not been brought down to date at that time. I didn’t tell him of any other defects. * * * When Borch-ers called for that abstract I knew that he meant for that abstract to show that I had title. * * * j-Ie didn’t want to buy the crops; didn’t want to pay the $1,000. But he finally agreed to pay that if I would give him immediate possession of the place. * :,t * That was about the 20th of March, I reckon. 1-Ie didn’t object very strenuously to buying the crop in order to get immediate possession of it; he did offer to pay me that $1,000.”

So it will be seen that both. Borchers and Cryer understood that immediate possession was to be given, and Cryer fixed the time in which to get his abstract down from San Antonio. Borchers went home and got his money and returned to Beeville Monday, the day Cryer had set, and then, when the abstract did not arrive Monday, Borchers remained until Tuesday, when it did arrive. Then he set his attorney to work so they could close the deal, and Thursday report was made that the title was bad. They then differed as to how much it would take to perfect the title, and thereupon Cryer went and employed an attorney. The abstract of title was introduced in evidence, and it did not show a good title. Also the opinion of an attorney for a loan company, in which many specific defects were pointed out, is in evidence, and the record shows that it took from March 20th until in November to get the title in such shape that this loan company would make the loan, and it cost Cryer a good sum of money to have those defects cured. Among other things, Cox, the attorney employed, had to get some quitclaim deeds from the Thomas Redmon heirs, and he obtained affidavits to show the heirship of Cry-er, for the record title did not stand in his name, and also affidavits to show' limitation title. He got a certified copy of the A. J. Davis patent and a quitclaim deed from the tax collector. There were two or three outstanding evidences of title cleared up, and one or two that could not be cleared up. He got a quitclaim deed from Wilson and Marsden, attorneys in fact for B. M. Odem. An affidavit was obtained to show that M. J. Cryer was a widow, and the title from her to D. C. Cryer and W. R. Cryer was shown by an affidavit as to their heirship to her, and by showing that she died without a will. Some releases were obtained from various and distant parts of the state. Cox says that he used diligence, but the delay was caused in getting papers executed and returned. These quitclaim deeds, affidavits, etc., were not shown in the abstract submitted to Borehers, but were in the supplement. There was also an old suit pending against the Redmon heirs. This is enough to show that the defects in the title were not merely fanciful, insubstantial, and meaningless matters without merit, but were such as any prudent lawyer would see and ask to be corrected in passing upon the title.

Borehers did not agree to wait a reasonable time to pach up defects, but then and there agreed to buy and pay cash, if Cryer furnished him a clear title. This Cryer agreed to do, and failed in the time he had himself fixed for so doing. Knowing, as he did, that Borehers wanted immediate possession — so much so, indeed, that he bought the crop, teams, and tools — Cryer was not in a position to claim time in which to make an attempt to perfect a title which it took him about six months to accomplish.

The jury found that Cryer was to give Borehers a clear title, and that O’Reilly’s commission did not depend on the final consummation of the sale. His duty was to produce a purchaser ready, willing, and able to buy, and this he did. He had done all he could do, and that the title was not good was no fault of his.' Cryer fixed the time himself in which to get ready to close, and was not able to meet it. But, even if he had been entitled to a reasonable time in which to cure the defects, which we do not concede under the facts in this case, he could not have done so, under all the facts and circumstances of this case.

Under the findings Nos. 1 and 3 of the jury and the- facts proven, O’Reilly was clearly entitled to hi$ commission, and the judgment of the trial court is reversed, and judgment is here rendered that appellant, P. E. O’Reilly, do have and recover of and from appellee, Dan Cryer, the sum of $505.50, and interest thereon from March 20, 1913, at 6 per cent, per annum, and all costs of the court below and of this court, for all of which he may have execution.

Reversed and rendered.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numb.ered Digests and Indexes


author: BUCK, J.

text:
    TEXAS & P. RY. CO. v. EDDLEMAN.
    (No. 8131.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 13, 1915.
    Rehearing Denied April 17, 1915.)
    1. Appeal and Error <@=>1062 — Harmless Error — Special Issues — Verdict Sustained by Other Findings.
    Where plaintiff’s automobile was struck by a backing train at a street crossing, the submission of special issues whether the flagman was at his post on the crossing and was using due care, and, if not, whether the collision would have occurred if he had done so, was not reversible error, although not based on the pleadings, where the verdict was sustained by findings on other issues submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <§=> 1062.]
    2. Appeal and Error <@=>1062 — Harmless Error — Special Findings — Verdict Sustained by Other Findings.
    Where plaintiff’s automobile was struck by a backing train at a street crossing, special findings that the view of the track was obstructed by a switch shanty was not prejudicial error where the sufficiency of the judgment did not depend thereon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <@=> 1062.]
    3. Railroads <@=>347 — Operations—Buildings near Track — Evidence.
    The erection and maintenance of buildings near a railroad track, although not necessarily constituting an independent ground of. negligence, may be shown on the question of contributory negligence and of the exercise of due care in the operation of trains near such buildings.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. <@=>347.]
    4. Appeal and Error <@=>.1070— Harmless Error — Special Verdicts.
    A finding upon an immaterial issue in a special verdict, if the judgment does not conflict with the findings on material issues, is immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <@=> 1070.]

      5. Railroads <@=>347 — Obstructions of Crossings — Evidence.
    Where a plaintiff’s automobile was struck by a backing- train at a street crossing, evidence that plaintiff deviated from the direct route and went around a switch shanty at the crossing because hacks were lined up on the other side was admissible on the issue of contributory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. <@=>347.]
    6. Appeal and Error <@=>1052 — Harmless Error — Error Favorable to Complaining Party.
    Where plaintiff’s automobile was struck by a backing train at a street crossing, the admission of plaintiff’s testimony that, if the bell on the locomotive had been rung,- lie would have heard it, could, not be complained of by defendant where the jury found specially that the bell was in fact rung.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. <©=> 1052.]
    7. Appeal and Error <©=>1062 — Harmless Error — Measure of Damages.
    Where plaintiff’s automobile was struck by a backing train at a street crossing, the submission of a special issue as to the reasonable cost of repairing an automobile was not prejudicial to defendant as not submitting the proper issue of damages, where such measure was submitted in another special issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <§=> 1062.] .
    8. Trial <©=>351 —Special Findings —Requests — Accident at Crossing.
    Where plaintiff’s automobile was struck by a backing train at a street crossing, a special finding as to whether the collision would have occurred if the train had not been moving faster than six miles an hour, stating an element of proximate cause not in itself objectionable, was proper in the absence of a request that other elements be included.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. <©=>351.]
    9. Railroads <§=>348 — Collision at Crossing-Speed op Train.
    In an action for injuries sustained in a collision between plaintiff’s automobile and defendant’s train at a street crossing, evidence held to support a special finding that the train was moving faster than six miles an hour.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 822, 823, 827; Dec. Dig. <©=>348.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by W. H. Eddleman against the Texas & Pacific Railway Company. From a judgment for: plaintiff, defendant appeals.
    Affirmed.
    Thompson & Barwise and George Thompson, all of Ft. Worth, for appellant. A. B. Curtis, of Ft. Worth, for appellee.
   BUCK, J.

On March 5, 1913, appellee’s automobile was struck by appellant’s train of cars which was backing westward on its track across Main street, in the city of Ft. Worth, Tex. Appellee was driving his automobile at the time, and, in an effort to reach the front of the Union Depot, drove around and south of the flagman’s house on defendant railway company’s right of way. Plaintiff alleged negligence on the part of the defendant railway company:

“(1) Because of the presence of the flagman’s house, which he alleged obstructed plaintiff’s view eastward, from which direction the train was backing; (2) because the defendant railway company failed to sound the whistle on its locomotive or ring its bell within 80 rods from this public crossing, the crossing being alleged to be situated in an incorporated town or city, and did not continuously ring said bell, as required by law, up to the time the train reached said crossing; (3) that the train which ran into said automobile was running in excess of 6 miles an hour at the time of the accident, which excess speed was prohibited by an ordinance of the city of Ft. Worth; (4) that said defendant railway company failed to exercise ordinary care, in that it did not have a man on the watch-out on the hind end of the rear car of said train; and (5) that it had no watchman at said crossing as they [it] usually and customarily had.”

Negligence was alleged against the Northern Texas Traction Company in having one of its cars standing on or near the railroad track, so as to further obstruct plaintiff’s view up said railroad track eastward.

The defendant railway company denied negligence in any of the respects named, and pleaded contributory negligence on the part of plaintiff in failing to keep a lookout for said approaching cars and train, and in choosing a dangerous way to cross the tracks when there was a safe way open and available to him, and further, alleged that it had a flagman on duty, and that it had an employs on the hind end of the rear car for the purpose of keeping a lookout, and further denied the excess speed alleged. The traction company denied any negligence and any participation in the injury alleged by plaintiff.

The cause was submitted to a jury on special issues in the county court, and from a verdict and judgment in favor of plaintiff and against the defendant railway company for the amount sued for, to wit, $145.30, and in favor of the traction company upon an instructed verdict, the railway company appeals.

The pleadings of all parties in the court below were largely oral, and the transcript includes such oral pleadings, with the exceptions of counsel, the remarks and rulings of the court, and the remarks of counsel interlarded therein. In passing, we feel that it is incumbent upon us to suggest that this practice should not be encouraged; that it unnecessarily enlarges the transcript, and renders it difficult for an appellate court to readily determine the issues involved in the suit.

The cause was submitted to the jury on 13 special issues tendered by the plaintiff and 9 by the defendant railway company. Issue No. 9 submitted by plaintiff was as follows:

“Did the flagman, Walter Carnahan, at or immediately prior to said collision, remain at the position and use the care and prudence that an ordinarily prudent person would under the same or similar circumstances?”

Issue No. 10 reads:

“If you have answered ‘No’ to question No. 9, then would said collision have occurred if said Carnahan had remained at the position and used the care and prudence of an ordinarily prudent person under the same or similar circumstances ?”

In appellant’s first, second, and third assignments error is charged, because of the submission of these two issues; it being claimed that such issues were not based upon any pleading in the case, and were therefore improper. It will be remembered that the appellee alleged as one of his grounds of negligence on the part of appellant that:

“They were guilty of negligence in that they had no watchman here at this crossing, as they usually and customarily have, and should have in order to prevent the plaintiff going on the tract, and that that act of negligence proximately caused said damage.”

Appellant urges that this allegation only presents the issue of whether or not it was negligent in failing to have a watchman on duty at this crossing, and not whether or not such watchman exercised ordinary care to prevent injury to plaintiff Even though it be conceded that the pleadings did not raise the issues submitted however, since appellant’s liability was sufficiently fixed to sustain the verdict and judgment by the jury’s finding as to other issues' submitted, and especially as to the issue of excessive speed of appellant’s train at the time of the accident, we are of the opinion that the assignments mentioned in any event do not present reversible error, and hence they are overruled.

In its fourth assignment error is urged to the action of the court in overruling appellant’s special exception No. 2, which was directed to that part of plaintiff’s petition which reads as follows:

“Plaintiff amends and pleads that the Texas & Pacific Railway Company had on its right of way and on the crossing and on the public highway a switch shanty or house that obstructed the view of plaintiff and other persons passing on the west side of the shack, so that plaintiff could not see up eastward in the direction that the train was backing into the street from, and that the maintaining and keeping of this shack so as to obstruct his view was an act of negligence, and the failure to exercise due and ordinary care, but contributed proximately together with this negligence in backing, without proper safeguards, into the plaintiff, and contributed proximately to the damage caused.”

There was no issue of fact submitted to the jury based upon this pleading, unless issues Nos. 7 and 8 submitted by plaintiff can be said to be so predicated. Issue No. 7 reads as follows:

“Were there any obstructions that prevented plaintiff from seeing eastward along the track of said Texas & Pacific Railway Company until plaintiff in said automobile reached a point going southward as far south as the front of the watchman’s shack?”

And issue No. 8 reads:

“If you have answered ‘Yes’ to question No. 7, then what were said obstructions?”

To issue No. 7 the jury answered, ‘Yes;’ and to issue No. 8 they answered, “Shack, street car, and telephone booth.”

While the erection and maintenance of buildings and other obstructions on or near to a railway company’s tr.ack may not constitute an independent ground of negligence, yet their presence is admissible in evidence as a circumstance which may shed light upon whether or not the plaintiff exercised due care and was free from contributory negligence, and as to whether or not, under the circumstances, the defendant exercised due care in the manner in which it operated its trains in the vicinity of such buildings or other obstructions. Railway Co. v. Harris, 22 Tex. Civ. App. 16, 53 S. W. 599; I. & G. N. Ry. Co. v. Knight, 91 Tex. 660, 45 S. W. 556; M., K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 956.

But in any event the judgment does not depend for its sufficiency on the findings of the jury upon these two issues. “A finding upon an immaterial issue in a special verdict, if the judgment does not conflict with the findings on material issues, is immaterial.” Kelley v. Ward, 94 Tex. 289, 60 S. W. 311. Hence the fourth assignment is overruled, and likewise the fifth, which is predicated upon the action of the court in submitting issue No. 7, quoted above. Railway Co. v. Rogers, 91 Tex. 52, 40 g. W. 956.

Under its sixth assignment appellant urges error by the court in admitting over objection the following question propounded by counsel for plaintiff to plaintiff:

“Now, why did you start to turn around there, Mr. Eddleman, going the way you were?”

The defendant objected to said question for the reason that it was irrelevant and immaterial and had no bearing upon any issue of this case. No objection is urged under said assignment to the answer of the witness, but bill of exceptions No. 10 discloses that the witness answered as follows:

“I intended when I started to cross there to go in this side of the little house, you understand, and we kept going along. The hacks were standing all backed up until I could not get through on this side. Then we went on until we got about where the car and hacks were backed up, just about where the car was, and we had to go around.”

We believe that said question and answer were admissible and relevant upon the issue of plaintiff’s contributory negligence vel non. Therefore the sixth assignment is overruled.

The seventh assignment complains of the admission of testimony of the witness McFarland to the effect that, if a 30-pound bell on the engine of defendant’s train had been ringing as said engine approached the public crossing where the accident occurred, he would have heard the same. Appellant urges that the answer of said witness was irrelevant, immaterial, and called for a conclusion of the witness, and therefore invaded the province of the jury. It has been held by numerous authorities that a witness may testify as to a conclusion when the facts upon which the conclusion are based appear. Railway Co. v. Richards, 83 Tex. 206, 18 S. W. 611; T. & P. Ry. Co. v. Warner, 42 Tex. Civ. App. 280, 93 S. W. 489. Appellant cites us to the case of. Railway Co. v. Anderson, 126 S W. 928, in support of this assignment, which merely holds that, where positive evidence was introduced by the defendant that the bell on the engine was rung, and plaintiff’s witnesses testified that they did not know whether it was rung .or not, an instruction basing actionable negligence on a failure to ring the bell is without evidence to support it. But the answer of the jury in reply to special issue No. 3 submitted by plaintiff, to wit, “Did the defendant, Texas & Pacific Railway Company, or its agent, continuously ring the bell of its said locomotive for a distance of at least 80 rods to said Main street crossing as it came to said crossing?” was, “Yes.” The finding of the jury being in favor of the appellant upon this issue, it cannot complain of the admission of any testimony which, at the most, only tended to show that said bell was not rung. Said witness McEarland, in answer to the question propounded, státed:

“I did not hear any locomotive bell ringing as I approached the crossing there; my hearing is good in this ear, but it is not in this one. I can hear reasonably well—as well as the ordinary man. If a 30-pound locomotive bell had been continuously ringing as that train approached the Main street crossing there I think I would hear it.”
On cross-examination he answered:
“I don’t know whether I heard the whistle or not, and I do not remember the bell.”

The assignment presenting no material error, it is overruled.

In its eighth specification the appellant urges error in the submission of issue No. 12 submitted by plaintiff, which was as follows:

“What was the reasonable cost to plaintiff of making the repairs to said automobile which were necessitated by said collision?”

To which the jury answered:

“Amount prayed for.”

It is urged that this issue does not submit the proper measure of damages. Inasmuch as the thirteenth special issue does submit the proper measure of damages, to wit, the difference in the reasonable market value of the automobile immediately before and immediately after said collision, and the jury found that such difference was $300 to $350, we cannot see how appellant is injured by the submission of said issue No. 12.

In its ninth specification appellant complains of the submission of issue No. 6 submitted by plaintiff, which reads as follows:

“If you have answered ‘Yes’ to question No. 5, then would the collision have occurred if said train had not been moving more than six miles per hour?”

The issue merely embodies an element of proximate cause not of itself objectionable, and if, in connection with it, defendant wished other elements submitted, request therefor should have been made, particularly in view of the fact that the court gave in its charge an instruction as to the meaning of proximate cause, to which definition no objection was urged. We therefore find no error in the submission of issue No. 6, and the assignment is overruled.

The tenth assignment urges that the finding of the jury upon the issue submitted by the court as to whether the train as it approached the crossing where the alleged accident occurred was moving at a greater rate of speed than 6 miles per hour is wholly unsupported and contradicted by the evidence submitted on the trial of the case. W. H. Eddleman testified:

“It seemed to me like the train backing across was going mighty fast * * * I do not suppose it was going over 10 miles, or maybe 15 miles. It was going pretty rapid. I should judge the train was going about 10 or 15 miles an hour, to the best of my knowledge.”
Ohas. H. McEarland testified:
“In my opinion, the train was coming at a rate of speed of from 16 to IS miles an hour. You bet it was coming over 6 miles an hour.”

Without quoting further testimony, we believe that the finding of the jury upon this issue was amply supported by the evidence, and, accordingly, the assignment is overruled.

Finding no reversible error, the judgment of the trial court is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    TEXARKANA & FT. S. RY. CO. v. BRASS.
    (No. 7188.)
    (Court of Civil Appeals of Texas. Dallas.
    March 20, 1915.
    Rehearing Denied April 24, 1915.)
    1. Appeal and Error <@^759-t-Assignments of Error—Specification of Errors—References to Record.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, providing that in all cases of appeal or writ of error to the Courts of Civil Appeals a trial shall be on an error in law either assigned or apparent on the face of the record, where the assignment of error assembles at the proper place in the brief a group of facts which may be verified by reference to the pages of the transcript and the statement of facts pointed out in the assignment, the whole of such assignment must be considered.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <§r=>759.]
    2. Carriers <@^>153 — Carriage of Goods— Foreign Shipments — Limitation of Liability-Negligence.
    A carrier of goods may limit its liability by stipulation in the bill of lading for loss of a foreign .shipment, although it will be liable for loss occurring through an excepted cause, if its negligence contributed thereto.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 687-690; Dec. Dig. <@^153.]
    3. Carriers <®=j136 — Carriage o'f Goods— Delivery to Carrier—Evidence — Directing Verdict.
    In an action against a carrier for loss of baled cotton through fire, where the evidence was insufficient to show delivery of the shipment to the carrier, or its negligence contributing to the loss, it was error to direct a verdict for plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 478, 596-598; Dec. Dig. <§=136J
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Franz Brass against the Texar-kana & Ft. Smith Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and set aside, and judgment rendered for defendant.
    Glass, Estes, King & Burford, of Texar-kana, for appellant. C. M. Smithdeal, of Dallas, and Morrow & Morrow, of Hills-boro, for appellee.
   RASBURY, J.

Heretofore, upon objections by appellee to the sufficiency of the record, we affirmed this case without considering the assignments of error; our action being based upon the failure of appellant to bring into review by sufficient bill of exception the action of the trial court in refusing to give a peremptory instruction directing verdict for appellant and in giving such instruction in favor of appellee. We refused to consider the assignments on the ground: (1) That the bill of exceptions preserving the objections of appellant to the action of the court as stated did not comply with the amended practice act; and (2) that the action of the court in instructing verdict for appellee was not, under the evidence in the record, error apparent on the face of the record. We now conclude that we were in error in the latter respect and that the assignments of error do disclose fundamental error or error apparent on the face of the record. We therefore withdraw our original opinion and herewith restate and reconsider the appeal as a whole on appellant’s motion for rehearing.

Appellee sued St. Louis Southwestern Railway Company originally, and appellant subsequently, to recover the value of certain baled cotton destroyed by fire, while on the platform of a compress company at Athens, Tex., where it had been delivered for transportation and for which appellant had issued its bill of lading prior to the time of the fire. Upon trial appellee dismissed the case as against the St. Louis Southwestern Railway Company, and at the conclusion of the testimony the trial judge instructed the jury to return verdict for appellee for the number of bales of cotton sued for, referring to the jury for their determination the value thereof, which they found to be the amount of the judgment herein, and upon which instruction and verdict judgment was accordingly entered, and from which this appeal is taken.

The sworn and undenied pleading and the testimony develop the following essential facts: Prior to January 3, 1908, appellee’s cotton was on the platform of a cotton compress at Athens, Tex., for the purpose of being compressed preliminary to shipment from Athens, to Port Arthur, Tex., over the line of the Texas & New Orleans Railway Company, and for which purpose said company had issued bills of lading. Upon request of appellee, and due to the fact that the cotton was to be shipped to the German Empire, appellant on said January 3, 1908, issued and delivered to appellee, in lieu of the local bills of lading theretofore issued to appellee by said Texas & New Orleans Railroad Company, export or foreign bills of lading in which appellant acknowledged receipt of and ■ agreed in connection with other carriers on the route to transport the cotton to the port of Port Arthur, Tex., and thence to the port of Bremen, Germany, and there deliver same to the consignee. Appellant had no line of railway at Athens, Tex., but after compression had it not burned, the cotton would have been delivered to and received by the Texas & New Orleans Railway Company, under authority of the bill of lading issued by appellant and by it delivered to appellant at the junction of appellant’s line of railway with the line of said Texas & New Orleans Railroad Company, and by appellant in turn transported as heretofore stated. On January 9, 1908, the cotton for which recovery was had was destroyed by fire set out by sparks emitted negligently from the engines of the St. Louis Southwestern Railway Company, while being operated in proximity to said cotton so stored on the compress platform. In addition to the provisions of the bill of lading already quoted, it also provided that “no carrier * * * in possession of the property herein described shall be liable for loss thereof or damage thereto by causes beyond its control, or by floods or by fires,” or for “loss or damage not occurring on its own road or its portion on the through route nor after said property is ready for delivery to the next carrier or to consignee.” The evidence as to the value of the cotton at the time -it was destroyed supports the finding of the jury on that issue.

The appellant at the conclusion of the trial requested the court to instruct verdict for it, tendering such a charge. This the court refused to do, indorsing such refusal upon the charge, and instead peremptorily directed verdict for appellee, to which action appellant at the time filed written exceptions, asserting that by the undenied pleading and undisputed evidence appellee was not, as a matter of law, entitled to recover, but that, on the contrary, appellant was. The action of the court, as related, constitutes appellant’s first assignment of error. In limine, however, appellee objects to consideration of the assignment for the reason, among others, that “there is no bill of exception in the record affirming the truth of the facts set out in said assignment of error.” This objection is grounded upon the amendments to the practice acts passed by the Thirty-Third Legislature (Acts 33d Leg. c. 59) as construed in the leading case of St. Louis Southwestern Railway Company v. Wadsack, 166 S. W. 42, and followed by this and practically all the other Courts of Civil Appeals and in which the Supreme Court has denied the writ of error. W. R. Case & Sons Cutlery Co. v. Folsom, 170 S. W. 1066; Texas Midland R. R. v. Fogleman, 172 S. W. 558; Horton v. Texas Midland R. R., 171 S. W. 1023, and cases cited. In a reply brief, however, appellant presents the • facts contained in its first assignment of error as matter constituting fundamental error or error apparent on the face of the record. Article 1607, Vernon’s Sayles’ Texas Civil Statutes 1914, provides that causes in this court shall be submitted and considered in a variety of ways, among others, “on an error in law, either assigned or apparent on the face of the record.” What is error apparent on the face of the record as contemplated by article 1607 has necessarily been fruitful of discussion, and as a consequence much has been said upon the point. In the leading case of Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, it was ruled that by error apparent on the face of the record is meant that which may be “seen upon looking at the face of the record; that is, the assignment itself, the fact pointed out by it.” Thus it is seen that the “record” and the “assignment” -referred to in the opinion contemplate facts taken from the actual record and appropriately assembled in the brief as constituting the claimed fundamental error, and pointed out by the assignment. Such in fact is the holding in the case cited, since it is there ruled that “the fact pointed out by it” (the assignment) must disclose the error. This view is sustained by rule 34 of this court (142 S. W. xiii), providing that, in propositions relating to fundamental errors of law apparent upon the record, “enough must be stated to make the error of law which pervades the case obviously apparent, without requiring the court to search through the record to find error, which they will not do unless properly pointed out.”

The refusal of the court below to give the requested peremptory charge and in giving such charge for appellee was not the only fact pointed out by the assignment, and we were in error in grounding our refusal to consider the assignment on that isolated fact, because, even though properly excepted to, the giving or refusing of such charge may or may not have been error, depending entirely upon the evidence and the facts and inferences deducible therefrom. On the contrary, when, as is the case here, the assignment assembles at the proper place in the - brief a group of facts, the verity of which can be sustained by reference to the pages in the transcript and the statement of facts pointed out in the assignment, the whole must be considered.

So, .considering such facts now it is apparent therefrom that the verdict directed by the court was unauthorized because it appears from the undisputed facts that the cotton was never actually or constructively delivered to appellant, was not -destroyed while in its possession, nor as the result of its negligence. As related prior to the issuance of the bill of lading by appellant, the cotton was on a compress platform at Athens, Tex., under contract of carriage by the Texas & New Orleans Railroad Company after compression from Athens to Port Arthur, Tex. For his own convenience appellee desired a through or foreign bill of lading in lieu of the local bill by which the cotton was then covered, and, for reasons not apparent from the record, sought same from appellant, instead of the Texas & New Orleans Railroad Company. . The desired bill of lading was issued by appellant, and by its terms, which were assented to by appellee, it provided, in effect, that appellant’s liability should be limited to the loss or damage occurring on its own line or its portion on the through route, and that appellant should not be liable for any loss thereof or damage thereto by causes beyond its control or by floods or by fire. As stated, the cotton was destroyed while on the platform of the compress by fire due to the negligence of the St. Louis Southwestern Railway Company. In connection with the facts recited, it is well settled that in cases 'of foreign shipments the carrier has the unrestricted right to limit its liability, and that when the shipper delivers his freight for foreign transportation under bill of lading limiting the carrier’s liability the limitations are enforceable. Houston, East & West Texas Ry. Co. v. Inman, Akers & Inman, 134 S. W. 275," and cases cited. Such rule, is, however, subject to the limitation arising as matter of law that the carrier will be liable for the loss occurring through the excepted cause if the negligence of itself or its servants contributed thereto. Mo. Pac. Ry. Co. v. China Mfg. Co., 79 Tex. 26, 14 S. W. 785.

Having in mind the recited facts and the principles of law governing the parties, it is clear that the case pivots upon whether there was a delivery to appellant of the destroyed cotton, and whether its destruction was. due to the negligence of appellant. We have reached the. conclusion that the facts fail to show delivery to appellant or any negligent act on its part contributing to its loss. The cotton was originally delivered to the compress by appellee for compression and delivery to the Texas & New Orleans Railroad Company, which company had issued bill of lading for transportation to Port Arthur, Tex. Just what relation that condition created as between appellee and the Texas & New Orleans Railroad Company is immaterial as relates to appellant. But it does establish beyond controversy that when appellant issued its bill of lading tbe cotton was in tbe possession and control of appel-lee, or its agent tbe compress company, or its agent tbe Texas & New Orleans Railroad Company, and that such possession continued unchanged until it was destroyed by tbe negligent acts of tbe St. Louis Southwestern Railway Company. Such conclusion is sustained and emphasized by tbe further fact that appellant bad neither depot nor line of railway in Athens, and that it was the intention of the parties and an undeniable fact that it could not receive and transport the cotton over its line of railway until it had been carried by the Texas & New Orleans Railroad Company to the junction of its line of railway with that of appellant, and of which appellee had full knowledge, since it was so provided by the terms of the bill of lading issued to him. Much cannot be said on the issue,, since the facts are brief and fairly susceptible only of the conclusion we have reached. ' There being no delivery of the cotton to appellant, nor any act of negligence on its part contributing to its loss, there was as a consequence no liability, and there being no liability the court was without authority to direct verdict for appellee, from which the further result follows that fundamental error or error apparent of record is disclosed.

For the reasons stated, and believing our former holding erroneous, the judgment of the lower court is reversed ánd set aside, and judgment here rendered for appellant.
      cgs^Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©c=>ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    McCULLOUGH et ux. v. HURT et al.
    (No. 7327.)
    (Court of Civil Appeals of Texas. Dallas.
    April 10, 1915.)
    1. Appeal and Error <@=500 — Review—Refusal op Requested Charges.
    The refusal to give requested charges will not be reviewed, where the bills of exception fail to show that the charges were requested and refused, and the refusal excepted to before the charge was read to the jury, as required by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <©==> 500.]
    2. Mortgages <@=372 — Sale Under Power— Admissibility of Evidence.
    In a suit to recover land by a grantee from a trustee under a trust deed to secure a loan, where the pleadings and evidence showed no irregularity in a trustee’s sale which rendered it void or subject to attack for inadequacy of consideration, it was not error to exclude evidence as to the value of the land.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1102, 1103, 1105-1117; Dec. Dig. <§=>372.]
    3. Mortgages <§=>353 — Sale Under Power— Validity—Notice.
    Notice to the debtors of the trustee’s sale of the land under the trust deed prior to such sale is not a prerequisite to a valid sale.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1050; Dec. Dig. <@=353.]
    4. Appeal and Error <©=>1058 — Harmless Error — Exclusion of Evidence — Fact Otherwise Established.
    Where the defendants’ testimony as to the value of land was uncontradicted and they were in no way impeached, they were not prejudiced by the exclusion of other evidence as to the value.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. <§=>1058.]
    5. Appeal and Error <@=>742 — Assignments op Error — Generality.
    An assignment that the court erred in excluding testimony to prove that the signatures of deeds of trust introduced in evidence were procured by fraud, as alleged in defendants’ answer, under which the .proposition was that, where the signature of an instrument is obtained by fraud and the signer did not know the nature and character of the instrument or its legal effect, the instrument is void and of no effect and not binding on the maker, and evidence thereof is inadmissible, is not sufficiently specific to be entitled to consideration, and the proposition does not cure the defect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    6. Appeal and Error <@=>742 — Assignment of Error — Statement—Necessity.
    An assignment of error is not entitled to consideration, where there is not such a statement of the evidence subjoined thereto as is sufficient to explain and support the proposition and to enable the court to determine the question.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742.]
    7. Appeal and Eeeob; <@=>1056 — Evidence— Admissibility — Materiality.
    It is not error to exclude evidence offered to show fraud which is wholly insufficient to justify a finding of fraud.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <§=>1056.]
    8. Appeal and Error <@=>1056 — Harmless Error — Exclusion of Evidence — Admission of Facts.
    Where the defendants in open court admitted that plaintiffs were entitled to the land sued for if defendants executed a certain deed of trust, the exclusion of evidence that the execution of the deed was procured by fraud was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <@=>1056.]
    9. Trial <@=>139 — Taking Question from Jury — Sufficiency of Evidence.
    Where neither the evidence admitted nor that offered and excluded was sufficient to authorize a finding of fraud, it was not error to refuse to submit that issue to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig.^ §§ 332, 333, 338-341; 365; Dec. Dig. <@=
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by E. E. Hurt and another against Jesse McCullough and wife. Judgment for the plaintiffs, and defendants appeal.
    Affirmed.
    J. C. Patton and Lee Richardson, both of Dallas, for appellants. T. F. Lewis, N. G. Turney, M. G. Owen, and E. E. Hurt, all of Dallas, for appellees.
   TALBOT, J.

The appellees, E. E. Hurt and M. G. Owen, brought this suit against the appellants, Jesse McCullough and his wife, Lula McCullough, to recover lots 2, 3, and 4 in block 368 in the city of Dallas, Dallas county, Tex'., and, in the event they were not entitled to recover the said lots, for judgment on the note described in' their petition dated March 10, 1911, with foreclosure of the lien of a deed of trust given by appellees on said lots to secure N. G. Turney in the payment of said note. The petition alleges, in substance: That on January 10, 1908, defendants were in possession of said land, owing said city taxes duly levied and assessed against said land, interest thereon and penalties, which had been accumulating since 1885, and then aggregating $293.36, besides cost, and owing the county of Dallas, and state of Texas, taxes duly levied and assessed on said land, interest thereon and penalties, amounting to $108.16, besides costs, which had so accumulated. That on or about said January 10, 1908, at the special instance and request of defendants, M. L. Leonard advanced for them $410, and paid therewith said city, county, and state said indebtedness, aggregating $414, and therefor took defendants’ note of that date bearing interest from date at 10 per cent, per annum, payable in one year to said Leonard’s order, and took their deed of trust of even date on said land to N. G. Turney, trustee, properly acknowledged for registration, to secure payment of said note. That default was made in the payment of said note and the interest due thereon, and at defendants’ special instance and request said Turney took up said note for them, and on January 10, 1910, merely in renewal thereof, defendants executed to the order of said Turney their note of that date for $410, bearing interest from date at 10 pqr cent, per annum, due in one year; and to secure the payment of same also executed to said Turney, trustee, their deed of trust on said land .duly acknowledged for registration, and that said note in suit, and said deed of trust securing its payment, were executed, properly acknowledged by defendants, and recorded, merely to renew and extend the loan. That thereafter, on the 10th day of March, 1911, said last above-mentioned note with all interest thereon being unpaid, the said Jesse McCullough, defendant,'made, executed, and delivered to said N. G. Turney his other certain promissory note in writing, bearing said date, wherein and whereby he promised to pay to the said N. G. Turney, one year after - said date, the sum of $504.22, with interest from its date at the rate of 10 per cent, per annum. That the proceeds of said note were to take up and extend the former note of January 10, 1910, executed and delivered by defendants to said N. G. Turney, and recites that it was given exclusively for money 'advanced to pay taxes on the property above mentioned, and said note was in fact an extension of the said note for $440 dated January 10, 1910, with the addition thereto of $10 and interest, which by mutual mistake had been left out of said note for $440. That, to secure the payment of said note for $504.22, the defendants made, executed, and delivered to said N. G. Turney a deed of trust upon said property, which, like the former notes and deed of trust, was executed, properly acknowledged by defendants, and recorded. That all of said notes and deeds of trust gave said payees, respectively, conventional subrogation to the tax liens along with deed of trust liens. That said deeds of trust authorized sale of the property therein described on default in the statutory form. That nothing was ever paid by defendants on any of said notes. That, after proper notice, said trustee regularly sold said land on June 3, 1913, pursuant to power given in said last-mentioned deed of trust, and bid it in for his debt, and as trustee deeded the lands to said Turney; and that said Turney sold and deeded the land to plaintiffs.

Defendants answered by general demurrer, plea of not guilty, and specially that the land sued for was the homestead of the defendants, and that the deed of trust thereon, under which a sale was made, through which plaintiffs claim, was void and said sale conveyed no title; that said deed of trust was void because it was executed to N. G. Turney, trustee, to secure a note payable to N. G. Turney; that the trustee’s deed executed under the said trustee’s sale was void because it was executed by N. G. Turney, grantor, to N. G. Turney, grantee; that the said trustee’s deed was void because said trustee’s sale was made under a foreclosure of a deed of trust purporting to have been executed on March 10, 1913, to secure a note due one year after date, said foreclosure and said trustee’s deed purporting to have been made on June 3, 1913, said foreclosure being premature. They further alleged, in substance, that about three years prior to the filing of their answer, the exact time not remembered, they received notice - that their state, county, and city taxes on the ■ property in question were due, and that as they had always considered N. G. Turney as their lawyer they, went to him for advice; that, said Turney advised that as they had no money with which to pay the taxes to get some one to loan it to them; that one Mrs. Leonard, who was present, agreed to and did lend them the money to pay said taxes; that subsequently the said Turney had appellants to come back to his office and sign an instrument, the nature and legal effect of which they did not know; that they were illiterate and ignorant negroes and inexperienced in business matters; that they were told by the said Turney, in whom they had every confidence, to sign the instrument, that they could trust him; that he would see that they were treated right,, and that he would protect them; that relying upon the said statements of said Turney, and believing them to be true, they signed said instrument, which, they have since been informed, was a deed of trust to said Turney on their said property to secure him in certain moneys ; that said statements of the said Turney that they could trust him and that he would protect them were false and fraudulent, but unknown to appellants at the time; that they were not treated right and protected by the said Turney, but, on the contrary, the said Turney, without the knowledge or consent of appellants or either of them, did on or about the 5th day of September, 1918, execute what purports to be a deed of conveyance, conveying the land herein sued for to appellees for a recited consideration of $SOO, when in fact no consideration passed for such conveyance, and the same made for the sole purpose of cheating and defrauding appellants out of their said property. It is further alleged:

“That they (appellants) were cheated and defrauded, in that on or about June 3, 1913, the land and property herein sued for was advertised and sold by N. G. Turney. That said sale was made and the deed executed without any notice having been given to these defendants or either of them, and the said defendants were not aware that said land had been sold under said deed of trust until after the suit had been filed. That if they had been informed by N. G. Tur-ney that foreclosure proceedings were going to be taken they could and would have obtained the money to pay their note. That plaintiffs have conspired and colluded with the said Tur-ney to deprive them of their said property, as Jesse McCullough went to plaintiff Hurt and wanted him to make a settlement of this matter and offered to make arrangements to raise the money necessary to settle said indebtedness and even offered said Hurt to convey to him one-half of said property for said purpose” — which was refused.

It is further alleged that if appellants are deprived of their said property they will suffer damages to the value of the same, which is charged to be $2,500, and they prayed that the said N. G. Turney be made a party to this suit and be required to show why appellants should not have judgment against him 'for their damages, in the event appel-lees received the land in controversy. N. G. Turney was made a party to the suit and made full reply to the allegations of the appellants’ answer, but we deem it unnecessary to set out the same. The case was tried May 6, 1914, and the single issue of whether the defendants executed the deeds of trust involved in the controversy was submitted for the determination of the' jury, and, that issue having been resolved by the jury in favor of the plaintiffs, judgment was entered that they recover the land sued for and that defendants take nothing on their plea for damages. From the judgment so rendered, this appeal' is prosecuted.

The first and second assignments of error complain of the court’s refusal to give certain special charges requested by appellants. The action of the court in refusing these charges cannot be reviewed for the reason that the record fails to show that exceptions were taken to the refusal of said charges, as required by the act of the Thirty-Third Legislature, Session Acts 1913, p. 113. That the refusal of special charges requested, under the provisions of the act of the Legislature cited, must be disregarded on appeal unless the appellant shows by bill of exception taken and incorporated in the record that such special charge was requested and refused and its refusal excepted to at the time, is settled by numerous decisions of our Courts of Civil Appeals. Some of the decisions so holding we cite. Insurance Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Culver, 168 S. W. 514; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Becker & Cole, 171 S. W. 1024; Horton v. Railway Co., 171 S. W. 1023.

The third assignment of error is that:

“The court erred in sustaining plaintiffs’ objection to the testimony of J. E>. Robinson as to the value of the land in controversy.”

The proposition, in substance, is that when a deed of trust appears on its face to be given on land to secure a debt for the sum of $504.22, and when it is alleged that said land is reasonably worth $2,500, and that the deed of trust was procured by fraud and was foreclosed without notice to or knowledge of the mortgagor, testimony as to the value of the land is material and relevant. There was no error, so far as shown by the record, in this action of the court. Neither the pleadings nor the evidence shows any such irregularity in the trustee’s sale as rendered it void or subject to attack for mere inadequacy of consideration. The only irregularity claimed, or proof offered to show, was that appellants were not served with personal notice by the trustee, Turney, of the sale of the land prior to such sale, and such notice was not a prerequisite to valid sale under the deed of trust, and hence no irregularity. Fischer v. Simon, 95 Tex. 234, 66 S. W. 447, 882. There is no contention that notice of the sale, as is required in judicial sales, was not given. If the allegations to the effect that the deed of trust was procured by fraud affects the question of the admissibility of the testimony, then the answer is that no such misrepresentations on the part of N. G. Turney were alleged or proved as would have warranted a finding that the deed of trust was so procured. Again, the value of the property was shown to be worth $2,500 by the testimony of appellant Jesse McCullough and his wife, and their testimony was in no way impeached or contradicted. In this attitude of the evidence relating to the issue, it is not at all probable that appellants suffered any injury by the exclusion of the testimony of the witness Robinson.

The fourth assignment of error is as follows:

“The court erred in sustaining plaintiffs’ objection to and excluding the testimony offered by defendants whereby it was sought to prove that the signatures of the deeds of trust introduced in evidence were procured by fraud as alleged in defendants’ second amended answer.”

The proposition is:

“Where the signature of an instrument is obtained by fraud and where the person so signing such instrument did not know the nature •and character of such instrument or the legal effect thereof at the time it was signed, the said instrument is void and of no effect and is not binding- upon the maker thereof, and evidence thereof would be admissible.”

This assignment is not sufficiently specific to entitle it to consideration, and the proposition under it, if not just as general, does not cure the defect in the assignment. But, if either the assignment of error or the proposition urged under it is sufficient to point out the error complained of and comply with the rules, still there is not subjoined thereto such a statement of the evidence or proceedings as is necessary and sufficient to explain and support the proposition contended for and enable this court to determine the question therefrom, and without such a statement the assignment is not entitled to consideration. But looking to the two bills of exception found in the record, and to which we have simply been referred, we find that the testimony excluded, as shown by the first bill, was wholly insufficient to justify a finding that the deed of trust in question was procured by fraud, and that the second showed the exclusion of testimony of practically no more probative force in establishing such a fact than that shown in the first; and, besides, that the second bill bears an indorsement to the effect that said testimony had already been given by the witness.

Again, the following recital is found in the judgment entered in the case:

“And it appearing to the court that plaintiffs’ cause of action is evidenced by the notes, deed of trust, and deeds described in the pleadings of plaintiffs and of said Turney and the evidence, and admissions of said Jesse McOullough and Lula McOullough in open court that said plaintiffs are entitled to recover the land in suit of said Jesse McOullough and Lula McOullough, provided they executed the deeds of trust aforesaid, which they plead that they did not execute and testify that they did not remember to have executed, the court submitted that issue to the jury.”

According to the admission here recited, every issue in the case was eliminated, except the issue of whether appellants actually signed the deeds of trust in question, and, under such circumstances, the charge of the appellants that Turney under whom appellees Hurt and Owen claim, procured said deeds by fraud became immaterial, and the testimony for that reason was properly rejected. But however this may be, as indicated before, the testimony offered to show fraud was insufficient to support a finding that the. deed of trust was procured by any such method, and there was no error in excluding the testimony in any event.

The next contention is. that the court erred in submitting the case to the jury on the single issue as to whether the deeds of trust involved in the suit were executed by the defendants and in refusing to submit to the jury whether or not the execution of the same was obtained by fraud. Neither the evidence admitted nor that offered and excluded was of sufficient probative force to authorize a finding that either of the deeds of trust referred to was procured by fraud, and, if there was any issuable fact in the case for the determination of the jury, it was the single issue submitted by the court, and this assignment must be overruled. For the reason already stated, the sixth assignment of error will also be overruled.

The material allegations of the pleadings of the plaintiffs and N. G. Turney, and the verdict and judgment of the court, are amply supported by the evidence, and said judgment will be affirmed.

Affirmed.
      <S£=P°r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    WARD CATTLE & PASTURE CO. v. FORD.
    (No. 5458.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 14, 1915.)
    1. Pleading <§=129 — Allegation—Failure to Traverse — Admission.
    In an action for work and materials performed and furnished on a certain house, where the .petition’s allegation that the work was done on a house owned by defendant was not denied,, it admitted ownership.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 27CK-275; Dec. Dig. <§=129.]
    2. Appeal and Eeeoe <§=173 — Admission of Evidence.
    In an action for the value of work and materials, performed and furnished on a house, alleged to belong to defendant, where defendant’s pleadings did not deny its ownership, but the court improperly permitted the introduction of evidence in denial, defendant could not complain that the jury disregarded its evidence on the-point.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. <®=173.]
    Appeal from Matagorda County Court; W. S. Holman, Judge.
    Action by E. L. Ford against the Ward Cattle & Pasture Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Krause & Wilson, of Bay City, for appellant. James O. Perry, of Palacios, and J. W. Conger, of Bay City, for appellee.
   FLY, C. J.

This is a suit brought by ap-pellee against appellant to recover $622.71,, for labor performed and material furnished on a certain house belonging to appellant. The canse was tried by jury and resulted in a verdict and judgment for appellee in the sum of $622.71.

That the work was done and the material furnished by appellee is not denied, and the only defense seems to be that the corporation did not authorize the work to he done or the material furnished. The evidence is ample to sustain a finding that the work not only was done at the request of appellant, but that it got full benefit of the same. The stock of the corporation was owned by Mrs. B. Q. Ward and her son R. E. Ward, and another son and a daughter. Mrs. Ward made the contract with appellee in the name and in the interest of the corporation, and it was afterwards ratified by the other stockholders, and especially R. E. Ward, the president. The latter, as well as his mother and sister, were present when the work was done, and he said whatever his mother and sister wanted done was all right. After the work was done and the bill presented to appellant, it wrote a letter admitting that the work was done at its ranch and that it would pay the same as soon as approved by Mrs. Ward. It was alleged in the petition that the work was done in a house owned by appellant, and that allegation was not denied by appellant, which amounted to an admission that it did own the house.

There was no basis for the introduction of any testimony tending to show that the ranch on which the work was done belonged to Mrs. Ward. The evidence should not have been admitted, but the court submitted the issue as to whether the work was done and material furnished on the ranch of appellant, and they found in the affirmative. Ownership, by the pleadings, was admitted to be in appellant. No deed was introduced to show that the ranch house was owned by Mrs. Ward. The jury was justified in rejecting the oral evidence on that subject. Appellant, in its answer, made no claim that the work and material were not furnished for its house, and the illegal evidence as to ownership was of no avail, and appellant cannot complain if the jury did not regard its evidence on the subject, although the question was improperly presented to the jury. Appellee, and not appellant, had cause to complain that the issue was presented to the jury.

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


text:
    OLDS MOTOR WORKS v. CHURCHILL et al.
    (No. 8115.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 20, 1915.
    On Motion for Rehearing, April 17, 1915.)
    1.Trial <©=>253 — Instructions — Completeness.
    In an action for injuries in being struck by an automobile driven by one of the defendants, where the question was as to the ownership of the machine, a requested instruction to find the title in the driver, if before the accident he had agreed to purchase the car, and if nothing remained to complete the transaction, except the payment of the price .and delivery, was properly refused as omitting the-element of the intention of the parties to consummate a sale.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <§=>253.]
    2. Appeal and Erbor <§=>232 — Reservation op Exceptions — Request poe Instructions.
    In an action for injuries in being struck by an automobile driven by one of the defendants in a trial trip made in view to its purchase, where the issue as to whether the ownership of the machine was in the driver was submitted to the jury without instructions as-to what would constitute passage of title, a requested instruction that title was in the driver if, before the accident, he had- agreed to purchase the car, and nothing remained, except to-make payment and delivery, while incorrect, operated as a request for proper instructions as-to the passage of title, and was sufficient when presented in a separate assignment of error, both in the motion for a new trial below and in appellant’s brief, to warrant a consideration-of error in failing to charge on the issue of ownership.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. <§£=>232.]
    3. Evidence <§=>121 — Res Gestas — Statements as to Ownership.
    In an action for injuries by being struck by an automobile, where the issue was as to whether the driver had bought the machine, evidence of a statement, .by the driver, that “as long as he had purchased the car, he would like to drive it,” was admissible as a part of the res gestse to show the intention of the party to purchase the car.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. <§=>121.]
    4. Evidence <§=>148 — Res Gestas — Statements as to Ownership.
    In an action for injuries by being struck by an automobile, where the issue was as to whether the driver had purchased the machine, evidence of a statement made by him over the telephone to his brother that he had bought the ear was admissible to show an intention to purchase it.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. § 438; Dec. Dig. <§=>148.]
    On Motion for Rehearing.
    5. Appeal and Error <§=>742 — Assignment-oe Error — Form.
    The failure to comply with rule 31 (142 S. W. xiii), requiring, in an assignment of error, a brief statement of such proceedings contained in the record as are necessary to explain the proposition submitted with a reference to the pages of the record, does not require the court, when such assignment has nevertheless been examined and ruled on, to reconsider the decision and refuse to consider sueh assignment: the purpose of the'rule being merely to conserve the time of the court and prevent unnecessary labor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=742.]
    Appeal from District Court, Tarrant County; Theodore Mack, Special Judge.
    Action by E. E. Churchill and others against the Olds Motor Works and others. From a judgment for plaintiff, defendant named appeals.
    Reversed and remanded as to appellant Olds Motor Works and appellee Churchill.

      Lassiter, I-Iarrison & Rowland, of Ft Worth, for appellant. Hunter & Hunter and Thos. F. West, all of Ft. Worth, for appel-lees.
   BUCK, J.

This suit was filed in the Sixty-Seventh district court of Tarrant county, Tex., by E. E. Churchill against the Olds Motor Works, the Oldsmobile Company, and W. H. Owens, to recover damages for personal injuries alleged to have been received by plaintiff in an accident occurring in the city of Ft. Worth August 16, 1918. From a verdict and judgment for plaintiff for $8,500 against the Olds Motor Works, the latter appeals.

The plaintiff alleged in his petition that the defendant companies had contracted on August 16, 1913, through their agent, D. E. Ford, to sell “a large and powerful automobile” to defendant W. H. Owens, of Denton, Tex., and that delivery of said car was to be made at Ft. Worth, and' that said Ford was at Ft. Worth on said day to demonstrate said automobile and teach said Owens how to run it, and that, before the delivery of said car, the said Ford, acting for said defendant companies, together with said Owens, were operating said car when the accident occurred resulting in the injuries to plaintiff. Negligence was alleged against Ford as agent and against both defendant companies, as well as Owens.

Owens answered by general denial and general demurrer. The defendant companies answered that the car in question had formerly belonged to the defendant Olds Motor Works, that Ford was its agent, but alleged that said car had, prior to the accident, been sold to Owens, and it thereupon ceased to be the property of the Olds Motor Works, and further denied that said car was being' operated by said Ford at the time of the accident, or was under his control.

The cause was submitted on nine special issues, which were answered favorably to plaintiff on the questions: (1) Of the Olds Motor Works’ ownership of the car; (2) of the car’s being operated by its agent Ford at the time of the accident; (3) as to the question of said Olds Motor Works’ negligence; and (4) as to the plaintiff’s lack of contributory negligence — whereupon a judgment was rendered by the court in favor of Owens and the Oldsmobile Company but against the Olds Motor Works in the sum named.

The main issue involved in the trial court was as to the ownership of the car, and ás to whether, at the time of the accident, it was under the control and being operated by Owens or by Ford, as the agent of the defendant companies. Negligence in the operation of the car was practically admitted and amply sustained by the evidence.

D. E. Ford, the agent of the appellant, met W. H. Owens by appointment at Ft. Worth on the afternoon of Saturday, August 16th, to endeavor to sell him an automobile. They drove around the city in the car Ford was trying to sell, during which drive Owens operated the car for some 15 minutes and satisfied Ford, as the latter states, that he was capable of operating the car without danger of accident. After the drive, they went to the garage, where Ford was keeping the ear and examined the car somewhat in detail. Owens then signed an order for the car, according to the terms of which order the car was to be delivered at Ft. Worth, Tex., f. o. b., on said August 16, 1913, at an agreed price, which order was also signed by said D. E. Ford, salesman.

It was agreed that Owens and Ford should go to Denton the following Monday morning and be there at the opening of the bank where Owens claimed to have his account, whereupon Owens should pay the purchase price and the car should be delivered to him by Ford. After supper Saturday night Owens and Ford went driving again, Owens driving the car, and at about 8 p. m., while he was attempting to turn from Weatherford street onto Commerce street, the car ran into plaintiff and his little son, knocked them down, and dragged them for some distance.

In its ninth assignment, appellant complains of the failure and refusal of the court to give its special charge No. 2, which was as follows:

“If you should believe from the evidence that in the afternoon, before plaintiff received his injury, D. E. Ford and W. H. Owens operated on the streets of Ft. Worth the car that after-wards struck plaintiff, and that Owens examined said car, and that Owens definitely agreed with Ford that he would take said car at an agreed price and would pay for the same, and that nothing remained to be done in order to complete the transaction between said parties, except for Owens to pay the price and receive complete delivery, and that, after such agreement was made (if the same was made), the car was again taken out on the streets by Owens or by him and Ford and was being operated by Owens at the time of the injury to plaintiff, then you will find, in answer to the special issue relating to that matter, that the title to the car in question had passed to Owens before the injury to plaintiff, and said car was not the property of the Olds Motor1 Works at that time.”

Issue No. 6, submitted to the jury, was: “At the time of the injury, if any, to the plaintiff, who owned the automobile that was being operated?” To which question the jury answered: “Olds Motor Works.” Nowhere in its charge did the court submit any instructions to the jury as to what in law would constitute a passing of title from appellant to W. I-I. Owens, and the jury were left to decide a mixed question of fact and law involved in this issue without any instructions from the court to guide them. The special charge submitted by appellant, quoted above, was incorrect, in that it' omitted at least one important element of the conditions which would constitute a sale, to wit, the intentions of the parties to the transactions. Hence we hold that the court did not err in refusing to give said requested charge. Therefore this assignment will he overruled.

But the tenth assignment presents a more serious question. This assignment is as follows:

“Even if this defendant was not entitled to have its special charge No. 2 given in the exact form presented, still said special chai’ge operated as a request to give the jury correct and appropriate instructions as to the legal principles that should guide and control them in determining whether or not the ownership of the automobile had passed from the Olds Motor Works to W. H. Owens; hence the failure of the court to give the jury correct and appropriate instructions on the subject mentioned was error.”

The appellant, in its objections to the court’s charge, urged:

“There is error in submitting to the jury said question No. 6, the issue of legal ownership of the automobile, without giving the jury any instructions to guide them in the determination of such question of ownership.”

And its amended motion for new trial alleged error in the court’s failure to give appropriate instructions upon this issue. Hence we find that the question whether error was committed in this respect is presented to us in proper form for our consideration. With reference to this matter, we believe the rule to be that when the court fails to charge on a material issue, and a special charge is requested, though incorrect, but sufficient to call the court’s attention to the omission, the court should submit a proper instruction on that issue; and if proper exception is taken to such failure of the court, and a separate assignment is presented, both in the motion for new trial in the court below and in ap■pellant’s brief, he may successfully urge the error of omission in the appellate court. But when the court has submitted a correct general presentation of the issue, if either party desires a fuller charge on that issue, he must tender to the court a correct charge, and, upon his failure to do so, he cannot avail himself of the court’s omission. Railway v. Cusenberry, 86 Tex. 525, 26 S. W. 43; Railway v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Railway v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80 (writ of error denied); Electric Co. v. Harry, 37 Tex. Civ. App. 90, 83 S. W. 737; Cement Co. v. McBrayer, 140 S. W. 388, and cases there cited; Railway Co. v. Browder, 144 S. W. 1042.

In this case the court utterly failed to give the jury any instruction to enlighten them as to the law pertaining to one of the controlling issues, to wit, the ownership of the ’ automobile. Therefore we hold that the duty of the court to give such instruction was sufficiently invoked by the tender of the requested charge No. 2, which, though incorrect or defective in some respects, under the circumstances mentioned sufficiently called the court’s attention to the omission in its ■main charge. Hence the tenth assignment is -sustained.

In view of another trial, it may be well for us to state that the evidence, to the exclusion of'which the first assignment is directed, as to the statement of Owens to Ford, testified to by the latter, to the effect, “He stated to me that as long as he had purchased the car he would like to drive it,” is admissible, and not subject to the objections urged. It is a part of the res gestee of the transaction, and tends to shed light upon what was the real intention of the parties at the time, though its exclusion probably does not present reversible error, because practically, or at least in effect, the same testimony was admitted in other portions of Ford’s deposition.

Likewise we think that the part of the question and the answer thereto, to the exclusion of which error is urged in the second assignment, which recites what Mr. Owens said over the phone to his brother about having bought the car, is admissible for the same purpose, and, if offered independent of that portion thereof referring to what Mr. Ford wrote his sales manager, should be admitted.

As to other assignments, we do not feel that they pertain to matters likely to arise upon another trial.

For the error mentioned, the judgment of the trial court is "reversed and the cause remanded as to appellant and appellee Churchill, and is undisturbed as to the other two appellees.

On Motion for Rehearing.

Appellee presents a very vigorous motion for rehearing. We feel satisfied as to the correctness of the legal proposition decided by us in disposing of appellant’s tenth assignment of error. But in overruling the motion for rehearing we wish to.add a few words in answer to the very spirited contention that, in considering appellant’s tenth assignment of error, we violated rule 31 (142 S. W. xiii), which requires, among other things, a brief statement of such proceedings, as contained in the record, as will be necessary and sufficient to explain and support the proposition submitted under the assignment with a reference to the pages of the record. Can it be said that there was no statement whatever under the assignment? There was a statement referring- us to the statement under the preceding assignment, which set forth the charge which had been requested and refused by the court. This reference we thought sufficient to show the proposition appellant was seeking to establish; that is, that, in view of a general objection to the charge because of an omission, the specially requested charge, although insufficient in form, nevertheless was sufficient to call the trial court’s attention to the omission in the general charge complained of. It is true that the statement failed to disclose that the proper objection had been made to the court’s charge, or that a bill of exception had been taken to the refusal of the special charge. And it is further true that appellee in his original brief objected to a consideration of assignment No. 10 on this ground, and we doubtless would have been fully authorized to refuse to consider it. Appellee’s objection to the assignment, however, was as follows:

“There is no statement in any of the assignments of error to the effect that bills of exceptions were reserved. See statement following seventh assignment, brief of appellant, pages 36 to 40; eighth assignment, page 40; ninth assignment, page 51; tenth assignment, page 53; eleventh assignment, pages 54 and 55. The. twelfth assignment is not followed by any statement whatever. Brief, page 55. Therefore rule 31 has again been violated.”

It will be noted that the objection to the statement under the tenth assignment is embodied among like objections to a number of other assignments, and in some way, not now recalled, at least some of us overlooked the objections to a consideration of the tenth assignment. It is doubtless true that numerous decisions may be found, perhaps some on the part of this court, in which assignments so failing in statement have been disregarded; but the question now is: Whether having considered and determined the assignment, shall we, because of the failure to note the appellee’s objections and the reason therefor, reverse our ruling, refuse to consider the assignment, and affirm the judgment? We think not. As stated, we entertain no doubt of the correctness of our original conclusion. In the consideration of the assignment, we, as a matter of fact, did refer to the record, and as a matter of fact found that the proper bills of exception had been taken. So that the failure complained of is merely formal. The purpose of the rule evidently is merely to conserve the time of the court and prevent unnecessary labor that may be avoided by statement of the necessary fact with a reference to the page of the transcript where it is exhibited. But it would be extremely technical to say that an announcement made in the disposition of an assignment should be set aside after the court had made the necessary investigation and found that the record in truth contained the facts necessary to show that the party was entitled to have his assignment considered. We are unwilling, at least, to go thus far, and it is accordingly ordered that the motion for rehearing be overruled.
      <@=5>For other cases see same topic and KEY-NXJMBER in all Key-Numtoered Digests and Indexes