text:
    TEXAS NOVELTY ADVERTISING CO. v. BAY TRADING CO.
    (No. 6083.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1918.
    Rehearing Denied Dec. 4, 1918.)
    1. Justices of the Peace <&wkey;206(l) — Petition FOE C'EKTIOEAEI — DISMISSAL—EFFECT.
    Pinal judgment rendered by justice of the peace, vacated when a petition for certiorari was granted by county court, is not revived by the dismissal of the cause by the county court.
    2. Injunction <®=>118(4) — Pleading.
    In injunction suits, the material and essential elements which entitle plaintiff to relief shall be sufficiently certain to negative every reasonable inference arising from the facts so stated, from which it might be deduced that he might not under other supposable facts connected with the subject thus be entitled to relief.
    3. Injunction <&wkey;>26(4) — Pbosecution of Suit. . .
    An injunction will not be grafted to enjoin further prosecution of a suit upon ground that plaintiff recovered a judgment from a justice of the peace in another county on the same cause of action, where such judgment was vacated by a petition for certiorari granted by the county court.
    Appeal from District Court, Calhoun County; John M. Green, Judge.
    Action by the Texas Novelty Advertising Company against the Bay Trading Company. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    C. C. Carsner, of Victoria, and Carey Leg-gett, of Port Lavaca, for appellants.
   SWEARINGEN, J.

This is an appeal by L. J. Thompson and D. W. Campbell, composing the partnership styled the “Texas Novelty Advertising Company,” from an order, made in chambers, by the judge of the district court in the Twenty-Fourth judicial district of Texas, refusing to enjoin the Bay Trading 'Company, a corporation, from the further prosecution of its suit pending in the county court of Calhoun county, Tex.

From appellants’ petition it appears that they sued the Bay Trading Company in the justice of the peace court in Hill county, Tex., upon a written contract, and obtained a judgment in that court; that the Bay Trading Company petitioned the county court of Hill county for a writ of certiorari, which was granted and the transcript of the entries was filed in the county court; that the cause was dismissed by the county court of Hill county after the writ of certiorari had been granted.

The petition further alleges that the Bay Trading Company filed a suit involving the identical cause of action litigated as stated above, in the justice of the peace court in Calhoun county, Tex., obtained a judgment in its favor in said Calhoun county, from which the Texas Novelty Advertising Company appealed to the county court of Calhoun county, Tex.

The district court was petitioned by the Texas Novelty Advertising Company to enjoin the Bay Trading Company trom the further prosecution of the suit thus appealed by the Novelty Company to the county court of Calhoun county, Tex. The prayer for this injunction is that it “be made permanent, if for no other reason than upon the maxim, ‘It is for the public good that there be an end to contentions.’ ”

Appellants contend in this court that they have obtained a final judgment in the cause of action, and that a court of equity will protect them ih the enjoyment of the rights acquired by that final judgment and restrain the parties bound by that judgment from causing vexation by a multiplicity of suits. This rule does not apply to the facts of the case set forth in appellants’ petition for the injunction, because the appellants have no final judgment rendered in Hill county. The justice of the peace did render a final judgment, but this judgment was vacated when the county court of Hill county granted the petition for a certiorari. The subsequent dismissal of the cause by the county court did not revive the judgment of the justice of the peace of Hill county. Harter v. Curry, 101 Tex. 188, 105 S. W. 988; Harper v. Dawson, 167 S. W. 311; Southwestern L. Corp. v. Neese, 161 S. W. 1090.

If the certiorari was dismissed upon one of the grounds provided by statute, and a writ of procedendo ordered issued as provided by article 756, R. S. 1911, it could be contended that the judgment of the justice’s court was in full effect las if no effort had been made to take it to the county court; but the petition for injunction leaves the matter in doubt whether such a judgment was entered or whether the cause was dismissed, and in fact the allegations tend more strongly to show that the cause was dismissed than that the certiorari was dismissed. Vernon’s Sayles’ Civ. St. art. 756; Roberts v. McCamant, 70 Tex. 743, 8 S. W. 543; Miller v. Holtz, 23 Tex. 138. “The rule of pleading that the statements of a party are to be taken most strongly against him is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not under other supposable facts connected with the subject thus be entitled to relief.” Schlinke v. De Witt County, 145 S. W. 660, § 1, and authorities there cited.

It follows from the rule announced by the authorities cited that the granting of the writ of certiorari vacated the judgment of the justice of the peace, and the dismissal by the county court left the parties as they were before any suit was ever filed in any court.

Under these conditions, the Bay Trading Company has the legal right to have its contention adjudicated by a court Raving jurisdiction of tbe cause alleged. This right was exercised' by filing tbe suit in the justice court in Oalboun county, which suit was prosecuted to a final judgment in favor of the Bay Trading Company, but which judgment has been nullified by the appeal taken by tbe Novelty Company to the county court of Calhoun county, Tex., where it is now pending.

There is no allegation in appellants’ petition for injunction that the justice of the peace court in Calhoun county did not have original jurisdiction of the cause, nor that the county court of Calhoun county was without appellate jurisdiction. In the absence of these allegations,, we must hold that these last-mentioned courts did have jurisdiction.

The Constitution, art. 5, § 19, provides that justices of the peace shall have jurisdiction n civil matters of all cases where the amount in controversy is $200, or less, and article 5, § 16, provides that county courts shall have appellate jurisdiction in cases civil of which justices’ courts have original jurisdiction, provided the judgment appealed from shall exceed $20. The amount of the judgment disclosed by appellants’ petition for injunction is $95.

Appellants’ petition for injunction shows no facts that will confer upon the district court jurisdiction to enjoin the Bay Trading Company from| prosecuting the cause appealed by appellants to a final judgment in the county court of Calhoun county. The judgment of the district court, appealed from, is correct.

The judgment is affirmed.
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source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    PIERSON et al. v. FARMERS’ STATE GUARANTY BANK.
    (No. 6111.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Judgment <&wkey;883(ll) — Se^-Ojt^-Mutual Judgments. ■
    Courts of law have power to set off mutual judgments, such power depending, not upon statute, but upon the general jurisdiction of the court over its suitors.
    2. Execution <&wkey;172(4) — Mutual Judgments —Temporary Injunction.
    A petition alleging a final enforceable judgment in favor of plaintiff as against defendants and a final enforceable judgment in favor of defendants as against plaintiff, without showing whether the two suits grew out of the same transaction or if defendants’ judgment was upon a liquidated claim, and that alleged insolvency of defendants, justified issuance of temporary injunction against levy of execution.
    Appeal from District Court, Cameron County; W. B. I-Iopkins, Judge.
    Action by the Farmers’ State Guaranty Bank against D. B. Pierson and others. From an order granting a temporary injunction, defendants appeal.
    Affirmed.
    G. R. Whitley, of San Benito, and Mc-Collum Burnett, of San Antonio, for appellants.
    J. M. Mothershead, of San Benito, and Jones & George, and James A. Graham, all of Brownsville, for appellee.
   SWEARINGEN, J.

This is a suit by the Farmers’ State Guaranty Bank, appellee, against L. B. Pierson, Selma Pierson, McCol-lum Burnett, and George R. Whitley, and the sheriff of Cameron county, Texas, Mr. W. T. Yann. The purpose of the suit is to set off two judgments in favor of the respective parties and enjoin the defendants from levying execution to satisfy their judgment.

A temporary injunction was ordered by the court without a hearing. From this temporary injunction appellants prosecute this appeal.

The petition contains the following allegations :

“Plaintiff shows: That heretofore, to wit, on the 27th day of March, 1917, the defendants L. B. Pierson and Selma Pierson, in the district court of Cameron county, Tex., in cause No". 2810, styled L. B. Pierson et al. v. Farmers’ State Guaranty Bank, recovered a judgment against this plaintiff in the sum of $3,000 with 6 per cent, interest thereon from the 27th day of April, 1914, together with all costs of suit. That thereafter said cause was duly appealed to the Court of Civil Appeals of the Fourth Supreme Judicial District of Texas, which last-named court affirmed the judgment and decision of the district court of Cameron county, Tex. (201 S. W. 424), which judgment and decree of said appellate court was duly certified for observance to the said lower court and mandate of said appellate court filed in said district court on the 18th day of April, 1918. Whereupon, the said L. B. Pierson and Selma Pier-son, and said McCollum Burnett and George R. Whitley, acting with them, applied for and caused to be issued out of the district court of Cameron county, Tex., an execution on said judgment, which execution is now in the hands of said W.- T. Vann, as sheriff of Cameron county, Tex., and is for the sum of $3,720, the amount now due upon said, judgment, and $60.-80 costs, and that, if not restrained by the injunction and order of this court, said W. T. Vann, sheriff as aforesaid, will proceed to seize and sell the property of this plaintiff in satisfaction of said judgment and the amount of money recited in said execution, to the great and irreparable injury of this plaintiff, as hereinafter more fully shown, and against which said acts and threatened acts of the said sheriff, this plaintiff has no adequate remedy at law, as will be hereinafter more fully explained.
“Plaintiff shows that, as aforesaid, said judgment was rendered in favor of the said L. B. Pierson, but that in truth and in fact, as this plaintiff is informed and believes, and on such information and belief charges the fact to be, the said judgment and cause of action upon-which judgment was rendered was prior to the rendition thereof and at the time of rendition thereof, and is now and has always been, the property of the said D. B. Pierson, and that he is the real and beneficial owner of said judgment and the rights secured thereby, and the said Selma Pierson has no interest therein. Plaintiff further shows that said defendants Burnett and Whitley are claiming some interest in said judgment and under some form of transfer made by the said L. B. Pierson to them, but that said transfer, if any in fact exists, was and is colorable and assimilated, not made in good faith and made with the full notice of the rights of this plaintiff, as hereinafter set out, and said transfer was made for the purpose of defrauding this plaintiff, and placing said judgment beyond the reach of this plaintiff under the facts herein alleged. "Wherefore, plaintiff says that, for the purpose of this suit, said judgment in law and in equity is now the property of the said Tj. B. Pierson; that all of the defendants herein named are insolvent, and have no property in this state or anywhere else, so far as this plaintiff knows and is informed and believes, and on such information and belief alleges the fact to be, subject to execution; and that said B. B. Pierson cannot, nor can any of the other defendants named herein except the said sheriff, "W. T. Vann, who is sued herein in his official capacity only, be compelled to respond in damages on the matters and things herein set oufc-.
“Plaintiff shows that on the 9th day of September, 1914, in the district court of Harrison county, Tex., in cause No. 1795, styled ‘P. O. Beard v. B. B. Pierson et al.,’ this plaintiff recovered a judgment against the said^B. B. Pierson, who is the same B. B. Pierson in this suit, for the sum of $2,499.42 with 10 per cent, interest thereon from the date of said judgment, together with all costs of suit, the amount now due this plaintiff upon said judgment being the sum of $3,434.36. After the rendition of said judgment, said cause was appealed to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas at Texarkana, Tex., and said judgment as to the said B. B. Pierson was in all things affirmed and permitted to stand, and is now a valid, subsisting, and enforceable judgment and claim owned and held by the plaintiff against the said B. B. Pierson for the amount thereof, as above specified, and the said B. B. Pierson being now insolvent, as herein-before alleged, this plaintiff in equity is entitled to offset the judgment herein first described as rendered in the district court of Cameron county, Tex., with the judgment in cause No. 1795, rendered in Harrison county, Tex., and that if said judgment rendered in the district court of Cameron county, Tex., is not by the equitable powers of this court offset and paid by the judgment in cause No. 1795 rendered in the district court of Harrison county, Tex., plaintiff will suffer great and irreparable injury, and if it is compelled to pay the amount of money specified in the execution now in the hands of W. T. Vann, as hereinbefore alleged, such payment will be a total loss to this plaintiff.”

It is a well-established rule that courts of law have power to set off mutual judgments, depending, not upon statute, but upon the general jurisdiction of the court over its suitors. Simpson v. Huston, 14 Tex. 476.

Appellants contend that the set-off should have been adjudicated in the suit which resulted in the judgment against appellee, and, because it should have been therein set off, the appellee has not shown sufficient diligence to be entitled to the equitable relief herein sought.

If it affirmatively appeared that the two suits grew out of the same transaction, or if appellants’ judgment was upon a liquidated claim, the question of diligence would have been considered by the trial court. If the cause of action, which resulted in the judgment in favor of B. B. and Selma Pier-son, was a suit for damages for conversion, appellee could not have pleaded in set-off its liquidated claim, because forbidden by the statute. Vernon’s Sayles’ Ann. Rev. Civ. St. art. 1329. That the petition stated a sufficient cause to justify the court to issue the temporary injunction is sustained, we think, by the following authorities: McManus v. Cash & Luckel, 101 Tex. 261, 108 S. W. 800; Wright v. Treadwell, 14 Tex. 255; Simpson v. Huston, 14 Tex. 476; Hanchett v. Gray, 7 Tex. 549; Dutton v. Mason, 21 Tex. Civ. App. 389, 52 S. W. 651.

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


author: FBY, O. J.

text:
    RANKIN-HILL CO. v. ALBERTSON-LEWIS CO.
    (No. 6085.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1918.
    Rehearing Denied Dee. 4, 1918.)
    1. Sales <&wkey;>45 — Failure to Deliver — Defenses — Insolvency.
    Where purchaser of canned goods sued for failure to deliver and defendant interposed plaintiff’s insolvency, the question of insolvency was immaterial, where, if insolvent, defendant knew plaintiff was insolvent at the time of making the contract, and plaintiff offered cash for the goods.
    2. Appeal and Error <&wkey;882(14) — Scope op Review — Invited Error.
    In action for damages for failure to deliver goods sold, where defendant sought to prove plaintiff’s insolvency, and to have that issue submitted to the jury, defendant could not complain of the manner in which the instructions submitted the question of insolvency, and at the same time contend that it was immaterial whether plaintiff was insolvent.
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Action by the Albertson-Bewis Company against the Rankin-Hill Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. G. Cook, of Sinton, and G. R. Scott and Boone & Pope, all of Corpus Christi, for appellant.
    J. C. Houts, of Sinton, for appellee.
   FBY, O. J.

Appellee instituted this suit against appellant to recover damages arising from the breach of a contract to deliver to appellee certain canned articles, which it was alleged had been purchased by appellee from appellant at a certain price, said articles to be delivered at a certain time and to be paid for in certain payments after delivery. The defense was that, when the contract was made, appellee was largely indebted to appellant on other transactions, and it was agreed that the order for the canned articles was not to be filled until appellee substantially reduced, by payments, the existing indebtedness, and that appellee wholly failed to reduce the indebtedness, and consequently appellant refused to fill the order for the canned goods. It was also alleged that no price had ever been agreed upon for the goods, nor had any quantity been determined upon. The cause was submitted to a jury on special issues, and, upon tbe answers thereto, judgment was rendered in favor of appellee for $290.

The facts indicate that appellant did not deliver the goods to appellee because they had increased in value; it being shown that appellee offered to pay cash for the goods if they were delivered. The jury found that the contract was as alleged by appellee, and that there was no agreement to pay off a former indebtedness, as a condition to obtaining the canned articles. The jury found that appellee was solvent. If appellee was insolvent when the goods should have been delivered, it was insolvent when the contract was made, and appellant well knew its condition. Under the circumstances the question of insolvency was of no importance. Appellee offered cash for the goods.

It appeared from the evidence that the hulk of the debts owed by appellee was in the shape of promissory notes held by appellant, and the latter had agreed to carr£ the indebtedness over another year.

The third assignment of error is overruled. In the first and second assignments of error- complaint is made that the question of insolvency was not presented as desired by appellant, and in the third assignment it is contended that it was utterly immaterial whether appellee was insolvent or not. If that be true', the matter of insolvency had no effect on the judgment of the court; but, if it had, appellant cannot be heard to complain, because it sought to prove insolvency and sought to have insolvency submitted to the jury. The manner in which insolvency was presented is not attacked in the brief.

The judgment is affirmed.
      <S=5Por other cases see same to¡>ic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    LA INDEPENDENCIA, S. A., et al. v. McADAMS.
    (No. 6089.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1918.)
    1. Sales <&wkey;81(3) — Construction of Contract-Time for Delivery.
    Where sales contract called for delivery of goods “during the month of March, 1916, and as quickly as possible,” seller was required to deliver not later than March 31st.
    2. Sales <&wkey;418(2) — Action by Buyer — Failure to Deliver — Damages.
    Where seller agreed to deliver goods “during the month of March, 1916, and as quickly as possible,” buyer’s measure of damages upon seller’s failure to deliver is measured by the difference between the market value of the goods on the last day of delivery, March 31st, and the contract price.
    Error from District Court, Webb County; J. F. Mullally, Judge.
    Action by Y. O. McAdams against La Inde-pendencia, S. A., an alien corporation, and others. Judgment for plaintiff, and defendants bring error,1
    Reversed and remanded. J
    Mann & Henry, of Laredo, for plaintiffs in error.
    Greer & Hamilton, of Laredo, for defendant in error.
   MOURSUND, J.

Y. O. McAdams, on April 17, 1916, sued La Independencia, S. A., an alien corporation, chartered in the republic of Mexico, for alleged breach of contract to deliver three 12,000-gallon tanks of cotton oil seed and 25 bales of cotton seed linters, of 500 pounds each. The contract was in writing, and bound McAdams to pay 58 cents per gallon for the oil and 5 cents per pound for the linters. The contract contained the following provisions:

“The above company, through their president, has received payment of $8,800 on this agreement. The balance due on this contract to be paid to the said company when this agreement is fulfilled and completed. The said oil and linters is to be delivered in Laredo, Tex., during the month of March, 1916, and as quickly as possible.”

Plaintiff’s allegations as to the damages sustained are as follows:

“That the said oil was so contracted to plaintiff as hereinbefore alleged at the rate of 58 cents per gallon, and the defendant obligated, bound, and promised to deliver the same for said 58 cents per gallon. That since the date upon which said oil was to be so delivered it has greatly enhanced in value, and the market price thereof is 70 eentp per gallon, f. o. b. Laredo, Tex., and that by its failure and refusal to so deliver the said oil to this plaintiff, in accordance with said contract, the defendant has damaged this plaintiff in the sum of 12 cents per gallon, being the difference between the contract price and the present market price and value of said oil, amounting in the aggregate to $4,320, in which sum the said defendant is justly liable and owing this plaintiff, and for which he prays judgment.
“That by reason of the defendant’s failure and refusal to deliver to this plaintiff the linters at 5 cents per pound the plaintiff has been further damaged in the difference between the said 5 cents per pound and its present market value, which this plaintiff alleged to be 7% cents per pound, and that thereby and therein this plaintiff has been damaged in the sum of 2% cents per pound, amounting in the aggregate to $312.-50, in which sum the defendant is further justly due, owing, and liable to this plaintiff.”

To this petition the defendant interposed a general demurrer, a general denial, and a special plea, to the effect that McAdams had agreed to pay to the Murray Company $8,800 as a part of the purchase money for the oil and linters in order to enable defendant to purchase certain machinery of the Murray Company; that an agent of the Murray Company and McAdams acted together in negotiating the trade, and there was a privity of interest between said company and McAdams, in that said company wanted to sell the machinery and McAdams wanted to buy the oil and linters; that McAdams failed and refused to pay the $8,800, and thereby breached the contract, and defendant was under no further obligation to deliver him the oil and linters.

In reply to this plaintiff alleged, that he was in no way interested in or connected with the Murray Company, and assumed no obligation to or in behalf of said company; that defendant knew the delivery of the oil and linters to plaintiff was a condition precedent to the payment by plaintiff of any sum whatsoever; and that it was agreed that, upon such delivery being made, plaintiff, as an act of accommodation to defendant and the Chavez Mill Company, would pay, out of the contract price to the Murray Company, the sum of $8,800.

Judgment was rendered in favor of plaintiff for $4,022.45.

By the first assignment it is contended that the court erred in rendering judgment, basing the damages on what the oil and linters sold for in April, 1916, when, if there was a breach of the contract, such breach occurred in March, 1916, and the measure of damages was the difference between the contract price and the market value in March, at which time the oil and linters were to be delivered. Of similar purport is the third assignment, in which it is contended that the court erred in rendering judgment for the plaintiff, as the pleadings asked for damages that could not be given under the law, and there were no pleadings alleging or calling for damages. that could be given.

The contract provided that—

“The said oil and linters is to be delivered in Laredo, Tex., during the month of March, 1916, and as quickly as possible.”

This means that the contract was to be fulfilled not later than during the month of March. The additional agreement to deliver as soon as possible may be discarded for all practical purposes. It is a promise by defendant to deliver as soon as possible, but is coupled with an agreement that delivery any time in March shall constitute a compliance with the contract. There is no allegation of any agreement to extend the time of delivery. It is alleged in the petition that the goods had greatly advanced in value, but it is not stated what it was worth at the time the contract was breached, but at the time the suit was filed, viz. April 17, 1916. The proof corresponded to the allegation. No facts are alleged which would justify measuring plaintiff’s damages by any other than the general rule applicable to cases of breach of contract. That rule would entitle plaintiff to recover such amount as he lost by reason of the market value of the goods being greater, on the last day allowed for delivery, viz. March 31, 1916, than the price he contracted to pay. Sedgwick on Damages (9th Ed.) § 737; Cotton Seed Co. v. Cotton Oil Co., 25 Tex. Civ. App. 614, 61 S. W. 433; Stahr v. Hickman Grain Co., 132 Ky. 496, 116 S. W. 785. As the petition fails to show what the oil and lintersl were worth on March 31,1916, it fails to show that plaintiff suffered any damages recoverable under the law. Linnartz v. Lawrie, 192 S. W. 789; Montgomery v. McCaskill, 189 S. W. 797. Plaintiff’s pleadings and evidence were both insufficient to support the judgment rendered in this cause. The first añd third assignments are sustained.

It is contended in the second assignment that the evidence showed that plaintiff had agreed to pay $8,800 to the Murray Company for defendant as part payment for the oil and linters, and that he failed to do so, and thereby breached the contract sued on by him.

The contract recites that $8,800 had been received by defendant, through its president, on the contract. As a matter of fact no money had been received by defendant, and it had been agreed that $8,800 was to be paid by plaintiff to the Murray Company, and credited by said company on a purchase by the Chavez Mill Company of certain machinery from the Murray Company, and the Chavez Mill Company in turn was to credit defendant with said amount on a purchase of stock. The contract sued upon was witnessed by Duncan, an agent of the Murray Company, who, after the contract was signed, wrote the Chavez Mill Company that he had received from defendant $8,800, with instructions that such amount was to be applied as part payment on the contemplated contract between his company and the Chavez Mill Company, and to be credited when said contract is approved. It appears from the testimony of Fuentes, the president of defendant company, that said company had subscribed for certain stock in the Chavez Mill Company, and its officers wanted this $8,800 to apply on such subscription, in order to get at once a controlling vote of the board of directors of said Mill Company; that after the contract was signed the Murray Company informed them it would not ship the machinery until the money was paid; and that then he (Fuentes) first learned that McAdams had not paid the $8,800. He testified that Mc-Adams had agreed to pay the money at once. This was flatly contradicted by Mc-Adams and Duncan, who testified ■ that all parties knew the $8,800 was not to be paid until the oil was delivered to McAdams .at Laredo; that defendant’s officers wanted to make a showing that they had $8,800, so they could procure the controlling interest in the Chavez Mill Company; and that was why the $8,800 was described in the contract as cash, and why Duncan gave a receipt showing the Murray Company had been paid $8,800 by defendant company. The parties agreed that the contract did not recite the real agreement, in so far as it stated that the $8,800 had been paid to the president of defendant company. They also agreed that it was to be paid to the Murray Company, but disagreed as to the time when it was to be paid. The evidence sustains the finding of the court that the agreement was to the effect that the money was to be paid by plaintiff to the Murray Company upon delivery of the oil and linters to him, and that plaintiff was not a party to such arrangements as were made between Duncan and the officers'of defendant company to enable the defendant company to receive immediate credit from the Chavez Mill Company for $8,800. The second assignment is overruled.

By cross-assignment it is contended that the . court erred in failing to render judgment for the full amount sued for by plaintiff, with interest. This cross-assignment must, of course, be overruled, in view of our holding that plaintiff failed to allege and prove any damages recoverable under the law. Had it been proper to take the value of the goods at the time the suit was filed as a basis for measuring the damages, the court would have been justified in disregarding the testimony of the plaintiff, as to value, and accepting that of Johnson.

The judgment is reversed, and the cause remanded.
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author: HIGGINS, J.

text:
    WILLARD et al. v. KNOBLAUCH.
    (No. 890.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1918.)
    1. Appeal and Error <&wkey;692(l) — Bill op Exceptions — Requisites.
    Bill of exceptions to the overruling of objections to questions propounded to witnesses, which failed to show what the answers were, presents no reversible error.
    2. Prize Fighting <&wkey;l — Legality.
    Prize fighting is unlawful under the laws of both Texas and New York.
    3. Landlord and Tenant t&wkey;29(l) — Lease op Premises — Training por Prize Fight — . Right to Recover Rent.
    Lessor may recover rental of building let to prize fighter for training quarters, although lessor knew of the purpose for which the building would be used, since, to recover, it was only necessary to show a letting of the premises, a promise to pay the rent, and default; the action for rent not being founded on lessee’s unlawful agreement with another to engage in a prize fight, and' it not being unlawful to train for a prize fight.
    Appeal from El Paso County Court, at Law; W. P. Brady, Judge.
    Action by Charles F. Knoblauch against Jess Willard and others. Judgment for plaintiff, and defendants appeal.'
    Affirmed.
    O. R. Armstrong, of El Paso, and A. E. Crane, of Topeka, Kan., for appellants.
    Beall, Kemp & Nagle and Harold Potash, all of El Paso, for appellee.
   HIGGINS, J.

Knoblauch rented certain premises to appellants and brought this suit to recover unpaid rents. The premises were used by Willard as training quarters for a pugilistic encounter, in which he proposed to engage with that distinguished Texan Jack Johnson, in Juarez, Mexico. Willard is another distinguished Texan, sometimes known as the “Cowboy Fighter.” It seems that this fight was to settle the rival claims of the Texans to the “Heavyweight Championship of the World.” The fight did not take place in Juarez for reasons unnecessary to mention. From a judgment in favor of Knoblauch the “Cowboy Fighter” and his manager, Tom Jones, appeal. The case was tried without a jury.

Error is assigned to the overruling of objections to questions propounded to various witnesses regarding the law of Mexico as to the legality of prize fights. The bills taken fail to show what the witnesses answered, and therefore present no reversible error. West End Dock Co. v. Galveston, 55 S. W. 752; Ry. Co. v. Day, 22 S. W. 772; Fields v. Haley, 52 S. W. 115; Ry. Co. v. Demsey, 40 Tex. Civ. App. 398, 89 S. W. 786. But whatever the answers may have been is immaterial under the view we take of the merits of the case.

As to those assignments which complain of the sufficiency of the evidence to support certain findings of fact made by the trial court, it is sufficient to say that the evidence amply supports the same.

The contract between Willard and Johnson to fight was made in New York. Prize fighting is unlawful under the laws of both Texas and New York.

There is no merit in the contention that recovery of the rents cannot be had by reason of the unlawful nature of prize fights. Every contract incidentally connected with or- growing out of an illegal transaction is not necessarily tainted with its vice. In determining whether a demand connected with an illegal act can be enforced, the test is; Does the plaintiff require any aid from the illegal transaction to establish his case? In order for Knoblauch to recover, it was only necessary to show a letting of the premises, promise on the part of defendants to pay the rent, and default. It was wholly unnecessary to show the proposed use. His mere kno.wledge of the use for which the premises were intended, namely, training quarters for a prize fight, does not preclude recovery of the rentals. This action is in no wise founded upon the unlawful agreement of Johnson and Willard to engage in a prize fight, nor is it brought to enforce any of its stipulations or conditions. The premises were let for training quarters, and it is not unlawful for persons to train for a prize fight in Texas. Under the authorities, we think it clear that recovery was properly allowed by the court below. Oliphant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363; Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787; Bishop v. Honey, 34 Tex. 245; Futch v. Sanger, 163 S. W. 597; De Leon v. Trevino, 49 Tex. 88, 30 Am. Rep. 101; Boggess v. Lilly, 18 Tex. 200.

All assignments of error and supporting propositions have been considered, and no reversible error is presented. We deem it unnecessary to discuss the same in detail.

Affirmed.
      igrmFor oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    WEIL v. ABEEL.
    (No. 5964.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Dismissal and Nonsuit <&wkey;10 — 'Voluntary Nonsuit — Time oe Taking.
    Where court stated that he considered the demurrer to plaintiff’s evidence well taken, hut extended time for counsel for plaintiff to present authorities, plaintiff was entitled to take voluntary nonsuit, under Rev. St. 1911, art. 1955, giving plaintiff the right,-in cases tried without a jury, to take a nonsuit any time before a decision is announced; the court, though expressing opinion, not having sustained demurrer.
    2. Dismissal and Nonsuit <&wkey; 12 — Volunta-by Nonsuit.
    The right to take a nonsuit is liberally construed by the courts.
    3. Dismissal and Nonsuit <&wkey;15 — Voluntary Nonsuit — Discbetion.
    Plaintiff’s right to take a nonsuit before a final decision is announced is a statutory right under Rev. St. 1911, art. 1955, and is not a matter of discretion for the court.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by Charles B. Weil against Alfred Abeel. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.

      G. W. Barcus and Edgar & Chas. Witt, all of Waco, for appellant.
    .Boggess & Ñaman and J. D. Williamson, all of Waco, for appellee.
   RICE, J.

We adopt appellant’s statement of the nature and result of the suit, which is as follows;

“Appellant brought this suit against appellee, claiming that the Pathfinder Motor Car Company, a corporation organized under the laws of California, doing business in California, was indebted to appellant in the sum of $4,155 on a rental contract, and that the appellee owned 398 of the 400 shares of stock that had been issued in said corporation, and that the corporation had refused to pay the debt, and that, by reason of the statutes and Constitution of California, the appellee as stockholder in said corporation was responsible for the debt in proportion to the amount of stock he held in the corporation, and appellant sought judgment against the appellee under the laws of California, specially pleading said statute and Constitution.
“The defendant answered by some special exceptions, a general demurrer, and special answer that he was not liable until all of the assets, of the corporation had been exhausted.
“The cause was tried before the court, and, after plaintiff’s testimony was introduced, the defendant demurred to the testimony of plaintiff and asked for a judgment for the defendant. The question was discussed, and, before the court rendered a judgment or announced its decision, the plaintiff asked that he be permitted to take a nonsuit. The court overruled the motion of the 'plaintiff to take a nonsuit, and sustained the demurrer of defendant to the testimony of the plaintiff and rendered judgment for the defendant, to which action of the court the plaintiff excepted,” and prosecutes this appeal.

The first assignment complains that the court erred in refusing to permit appellant to take a nonsuit in this cause; he at the conclusion of the testimony and before a decision was rendered having requested that he be permitted to do so, which was refused by the court.

Upon this subject, in order to show what occurred between counsel and the court, we copy from appellant’s bill of exception, as follows:

“ ‘Be it remembered that upon the trial of the above styled and numbered cause that same was tried before the court without a jury, and after the plaintiff had closed his testimony and rested in the introduction of testimony that the defendant demurred to the evidence of plaintiff, and asked the court to render judgment for the defendant, and the court stated that he considered the demurrer well taken and started to make his docket entry thereof, when the attorney for plaintiff requested the court to give counsel until 2:00 'o’clock in the afternoon in which to produce authorities to show that said demurrer should not be sustained, and stated to the court that, if they did not find any decisions supporting their position, they would then probably ask to take a nonsuit; and the court stated: “I will give counsel for the plaintiff until 2:00 o’clock this afternoon to present authorities combating the demurrer presented by counsel for defendant on any of the issues raised, but as a courtesy to counsel.” And in view of the court’s expression that he considered the demurrer well taken, and especially in respect to the absence of proof that the statute was in force and effect at the time of accrual of liability under this contract of lease. Therefore, in view of these expressions of the court, the court will not permit plaintiff to take a nonsuit,, as plaintiff has stated that he would do, if he’ could not find any law in support of his position.’
“And thereafter at 2:00 o’clock counsel for plaintiff requested the court to give him until the next day to present authorities upon the question of liability of defendant, and the next day when the court convened, and before the court had made any statement, the counsel for plaintiff stated: ‘If the court please, in this case of Charles Weil v. Alfred Abeel, we have made search and we have found some authorities that we think will support our position. They are rather of a doubtful nature. In view of the position also that the court stated he will take as to the assets of the corporation, we think it best to take a nonsuit, and we ask at this time to be permitted to take a nonsuit. In support of that proposition, I want to submit to the court a Supreme Court decision in the 155 Southwestern.’
“The court stated, T will hear your decision,’ and thereupon counsel for plaintiff read several authorities and discussed the question as to whether or not plaintiff could take a nonsuit, and then followed a general discussion between the court and the attorneys for plaintiff and defendant as to whether the nonsuit could be taken, and plaintiff presented several authorities to the court and the counsel for the defendant resisted said motion, and the court after said discussion stated, as follows: ‘It is within the court’s discretion to grant a nonsuit, and it cannot' be reviewed, and that is the reason why I stated that I was not in favor of nonsuits, because I am not going to exercise that discretion as long as I think the party has had ample time to develop his case. If he fails to do so, it is not any concern of mine. As far as this case is concerned, the action is purely technical, based upon a very unusual and peculiar provision of the laws of California. They are not laws recognized in Texas only through the comity of other states, if at all. In addition to that, the facts disclosed that there were assets that had not been exhausted, and according to my ruling even under the California statute you are not entitled at this time to maintain your suit. It was the duty of the plaintiff to exhaust his remedies that are required to be exhausted first before instituting this action; it is the court’s duty to protect both litigants, and see that they come within their rights as prescribed by law and no more. It works just as much of a hardship upon the defendant to he required to defend this suit over again as it would work a hardship on plaintiff to refuse to allow a nonsuit. I think, both parties having had their day in court, it is the court’s duty where the law is clear, and I consider it clear on the subject, to observe the law. If I felt like the plaintiff had not had a fair showing in that he had not had an opportunity to develop his case, it would be a different question, and I would exercise my discretion if I felt like he was really entitled to a new hearing; but I do not feel like it. In this case, as a matter of fact, these questions have been discussed by us at different times'on demurrers, and both sides had fair knowledge of the court’s opinion and the court’s attitude as to the legal questions. I distinctly stated when the demurrer to the testimony was presented that I considered the demurrer well taken, and, as Mr. Ñaman said, I was reaching for my docket to put it over here and open it, and counsel for plaintiff asked me to give them time within which to present authorities. I then stated that I did not think they could present authorities that would bear them out, but as a matter of courtesy I would give them that time. Counsel for defendant then stated: “Well, if we do not find any testimony (authorities) supporting our position, we will take a nonsuit.” I don’t think you are entitled to a nonsuit, and I will refuse the application.’ ”

Article 1955 of the Revised Statutes, among other things, provides that the plaintiff shall have the right, when a case is tried before the court without a jury, to take a nonsuit any time before a decision is announced. In the present case we do not regard what was done by the court as an announcement of his decision on the question presented. It is true that he did say, as shown by the bill, that he considered the demurrer well taken; but after this he extended the time for counsel to present authorities on the question, showing clearly that he had not come to a decision thereof, because we presume, if counsel had found authorities in his favor which convinced the court that he was wrong in his conclusion, he certainly would have followed them and granted the motion. To merely state that he considered the demurrer well taken was not, in our judgment, equivalent to sustaining it, and what was said by the court was, under the circumstances, more in the nature of an expression of his views upon the question under discussion. See Adams v. Ry. Co., 137 S. W. 441; Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Kidd v. McCracken, 105 Tex. 383, 150 S. W. 885; and Pye v. Wyatt, 151 S. W. 1086.

In discussing a similar question, Mr. Justice Dibrell, in Kidd v. McCracken, supra, said:

“It seems to us to be immaterial to the exercise of the right to take a nonsuit that the plaintiff is made aware of the court’s view of the case from the expression of the court’s opinion, or from any other source. Such knowledge may serve as the vital reason why the party desires to get his case out of court. His information of how the court will decide cannot affect the plaintiff’s right to a nonsuit, where the decision has not been announced. The statute is plain upon the subject, and we think does not mean that the plaintiff is denied the right to a nonsuit where he gathers from the opinion of the court in discussing the case what his decision will he. That is not the language, nor is it the meaning of the law. There is a wide and well-recognized difference between the ‘opinion’ and the ‘decision’ of a court. The strongest case that can be made against plaintiff under the undisputed facts is that the court, in discussing the evidence and the law, expressed an opinion that would lead naturally to the conclusion that he intended, at the proper time to decide the case adversely to plaintiff. Jtlowever, the time had not arrived for him to announce his decision, for he had yet to pass upon the admissibility of certain testimony that had been admitted conditionally, and his decision of the case upon its merits was yet suspended.”

So, in the present case we regard what was said by the court more in the nature of an expression of its opinion as to what he intended to do, rather than what he had done. It is true that the court remarked, at the time when he extended the time for counsel to present authorities, that he would hear them, but would not permit him to take a nonsuit. This is shown to have been based on the idea that his right to permit or refuse the nonsuit was discretionary, rather than one based upon what the law might be in relation thereto. The right to take a nonsuit is liberally construed by the courts, and in cases above referred to it has been held that counsel had the right to discuss the matter with the court, and if the court suggests, or indicates,' that he is going to decide against plaintiff, the plaintiff has the right to dismiss. The fact that the court makes such intimation is often the reason why a nonsuit is taken. As said by counsel for appellant, it is a statutory right given to plaintiff to dismiss his case at any time before a decision is announced.

In the instant case, we think the court had not announced his decision, and erred in refusing to grant the nonsuit. Eor which reason, the case is reversed and the cause remanded.

Reversed and remanded.

       — .Vn, other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GREENWOOD, J.

text:
    INSURANCE CO. OF NORTH AMERICA v. O’BANNON.
    (No. 2775.)
    (Supreme Court of Texas.
    Nov. 27, 1918.)
    1. Insurance @=>282(1) — Forfeiture—:Title on Interest oe Insured — Construction.
    Provisions malting an insurance policy on a building void “if the interest of the insured be other than unconditional and sole ownership,” or if the building be “on ground not owned by insured in fee simple,” relate to time of issuance of policy, and subsequent sale of ground does not forfeit policy.
    2. Insurance @=3282(1) — Construction Against Forfeiture.
    The construction of an insurance policy provision that the policy shall be void, if insured building be on ground not owned by the insured in fee, as relating to date of policy’s issue, being reasonable, should be adopted to avoid the never-favored forfeiture.
    3. Insurance @=>328(2) — Forfeiture — Change of Interest — Construction.
    Whore the owner of an insured building conveyed the land, reserving title to the building, with right to remove by a certain date, there was prior to such date no change of interest or title m the property, to work a forfeiture under a change of interest forfeiture clause.
    4. Insurance @=>32S(2) — Change .of Title-Forfeiture — Increase of Risk.
    A fire insurance policy is not violated by a change of title not of a nature to increase the motive to burn, or diminish the motive to guard the property from loss by fire.
    Error to Court of Civil Appeals of Fifth. Supreme Judicial District.
    Suit by R. A. O’Bamion against the Insurance Company of North America. From a judgment of the Court of Civil Appeals (170 5. W. 1055), affirming a judgment of the district court for plaintiff, defendant brings error.
    Affirmed.
    Locke & Locke, of Dallas, for appellant.
    Jones & Hassell, of Sherman, for appellee.
   GREENWOOD, J.

The defendant in error recovered a judgment against plaintiff in error in an action on an insurance policy, which was affirmed by the court of civil appeals (170 S. W. 1055), and this writ of error is prosecuted to reverse those judgments.

The property insured was a one-story frame dwelling in the city of Sherman. On December 21, 1912, as the result of negotiations extending over about one year, defendant in error, who then owned the dwelling and the land on which it stood, conveyed the land, by warranty deed of himself and wife to the trustees of the Sherman independent school district, for a recited consideration of ?9,000 in cash. The trustees contemporaneously delivered back to defendant in error a written acknowledgment that under the real contract between the parties the buildings on the land were to he retained by defendant in error and wife, who were to have a reasonable time, but in no event to be longer than February 1, 1913, to remove the buildings from the land, and that only $4,500 of the purchase money had been actually paid, and the remaining $4,500 was to be paid on.the removal of said buildings. While the policy of insurance was in force, on January 17, 1913, the house was destroyed by fire. At that time tbe bouse bad not been removed from the land conveyed to tbe trustee, but arrangements bad been made by defendant in error to have tbe work of removal begun on the Monday next following the date of the fire.

The insurance policy is in the form adopted for Texas by the state insurance board, being identical with the New Fork standard form.

The following are the provisions on which plaintiff in error relies to defeat the payment of the policy, to wit:

“The entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, * * * or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

It is admitted that the insured was the unconditional and sole owner in fee simple of the land, including the dwelling, at the time of issuance of the policy; and, since the language of the policy clearly admits of the construction that the clauses forbidding that “the interest of the assured be other than unconditional and sole ownership,” and that the building insured be “on ground not owned in fee simple,” both relate to tbe time of issuance of tbe policy, we cannot doubt that tbis construction should he adopted in order to avoid the never-favored forfeiture. Dumphy v. Commercial Union Assurance Co., 107 Tex. 111, 174 S. W. 814; Bills v. Hibernia Ins. Co., 87 Tex. 551, 29 S. W. 1063, 29 L. R. A. 706, 47 Am. St. Rep. 121.

In the case of Parsons, Rich & Co. v. Lane (In re Millers & Mfrs. Ins. Co.) 97 Minn. 98, 106 N. W. 485, 4 L. R. A. (N. S.) 231, 7 Ann. Cas. 1144, cited with approval in the able opinion of the Court of Civil Appeals, it is-said:

“The policj' provides that ‘this entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on a ground not owned by the insured in fee simple.’
“There are some authorities which hold that this provision refers only to subsequent changes in the title, but they rest upon an unnatural construction of the language of the policj'. The words used refer to the present, and not to the future, and the conditions' relate to facts as they exist at the date of the policy.”

The remaining clause relied on by plaintiff in error plainly relates to the future,, and declares a forfeiture to follow—

“any change, other than by the death of an insured, in the interest, title, or possession of the subject of insurance, except change of occupants without increase of hazard.”

The property was still in the possession of defendant in error when the dwelling burned, but it is claimed that such a change had taken place in both his interest and title as to prevent his recovery.

Given a reasonable construction, there was no change of “interest” in the subject of this insurance. The Supreme Court of Kansas rightly interpreted the word “interest” when it said:

“The word ‘interest,’ as used in the policy, is not synonymous with ‘title’; it means some right different from title; it cannot mean a greater estate than title, since title, as there used, was intended to mean the entire estate. It must therefore have been used with the meaning generally attached to it, when used in contradistinction to title, as ‘any right, in the nature of property, less than title.’ Anderson’s Law Dict. 562. ‘In the narrower sense it was used, in the English common law of real property, to designate a right less than an estate.’ Century Diet. vol. 4, p. 3142. This we think is the sense in which it was used in the policy. In the interpretation of the policy this word is important. The form of the policy was intended to cover two classes of risks. There are large interests in real estate owned by persons who have neither title nor possession. The form of this policy is adapted to the insurance of such interests, as well as to the insurance of property where the insured is the owner of the title. Where the insured is the owner of only an interest in the estate, the word ‘interest,’ used in the forfeiture clause has force, and any change in such interest would forfeit the policy; but where the insured is the owner of the title the word ‘interest’ has no application. In the latter case, if any change takes place in the title, the policy is forfeited.” Garner v. Milwaukee Mechanics’ Insurance Co., 73 Kan. 127, 84 Pac. 717, 4 L. R. A. (N. S.) 656, 117 Am. St. Rep. 460, 9 Ann. Cas. 459.

We are equally sure there was no change of “title” within the reason of the language embodied in this policy.

Under the writings between defendant in error, joined by his wife, and the trustees, the title to the subject of insurance — i. e., the one-story frame dwelling — was in defendant in error at the date of the fire. Even where a forfeiture of the insured’s title to certain buildings was expressly provided for, on failure to remove same by a fixed date, a United States Circuit Court sitting in Massachusetts refused to hold that there urns any breach of this condition, upon the fire occurring prior to the expiration of. the time allowed for the removal; the court declaring;

“The land is not insured, and if the actual property covered by the risk conforms to these various conditions as to absolute ownership it would seem to be sufficient. The assured owned the buildings originally, and it had never parted with any interest in them. While it had conveyed the land upon which they were situated to the city of Boston, it had not parted with either the title or possession of the property insured. It had only agreed that, if the buildings were not removed within a certain time, they should be forfeited. So far as appears, the assured was preparing to remove them within the time stated; unless a further extension should be gx-anted: Until the ownership was taken away by forfeiture or otherwise, it would seem to be complete.”

Washington Mills Emery Manufg. Co. v. Commercial Fire Ins. Co. (C. C.) 13 Fed. 646.

On the same facts, the Supreme Court of (Massachusetts reached the same conclusion, which it expressed in these words:

“It is not material whether the clause operates technically as an exception, or as an agreement detaching the buildings from tho realty and making them personal property, which 'was to belong to, and be at the disposal of, the grantor. The buildings were not conveyed to the city, but remained the property of the plaintiff. It is not necessary to consider what would have been the rights of the parties after October 1, 1878 (the date for forfeiture of the insux-ed’s title for failure to remove the buildings), as the buildings were burned before that time.” Washington Mills Emery Manufg. Co. v. Weymouth Ins. Co., 135 Mass. 504.

It is settled law in this state that a fire insurance policy is not violated by a change of title—

“not of a nature calculated to increase the motive to burn, or diminish the motive to guard the property from loss by fire.” New Orleans Ins. Co. v. Gordon, 68 Tex. 149, 3 S. W. 720; Home Mut. Ins. Co. v. Tompkies, 30 Tex. Civ. App. 404, 71 S. W. 813.

And, as observed by this court in Gordon’s Case:

“Vigilance in the cax'e of the property is not likely to be diminished when the assured is the only one who can possibly suffer by its destruction.”

We cannot hold otherwise' than that the entire burden of the loss at thé date of this fire fell on defendant in error, save as he was indemnified by the policy sued on.

There was no breach of any condition of the policy, and the judgments of the district court and of the Court of Civil Appeals are affirmed.
      <§=3For other cases see same topic, and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON OIL CO. OF TEXAS v. BOYKIN et al.
    (No. 2540.)
    (Supreme Court of Texas.
    Nov. 27, 1918.)
    1. Logs and Logging <§^>3(11) — Purchase of Timbee — Removal—Time.
    Instruments which merely convey timber with a license to remove, without stipulating time for removal, imply that timber must be removed within a reasonable time.
    2. Logs and Logging <@=>3(10) — Standing Timbee — Conveyance. ■
    Under contract of sale of standing timber, giving purchaser liberty to go upon land and remove timber as would be convenient to him, title passed to only so much timber as might be removed within a reasonable time, since removal clauses should not be construed as covenants.
    3. Logs and Logging <@=»3(7) — Contracts— C on stbuction — Intent.
    Contracts of sale of standing timber, like other contracts, should be interpreted in such manner as will best carry out intention of parties.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by the Houston Oil Company of Texas against ,B. Boykin and others. Judgment for defendants was affirmed by the Court of Civil Appeals (153 S. W. 1176), and plaintiff brings error.
    Affirmed.
    Hightower, Orgain & Butler and W. H. Davidson, all of Beaumont (H. O. Head, of Sherman, of counsel), for plaintiff in error.
    Roi Blake, of Jasper, and Hamilton & Hamilton, of Hemphill, for defendants in error.
    L. A. Carlton, of Houston, amicus curiae.
   GREENWOOD, J.

This case involves the construction of the following written instruments:

“State of Texas, County of Jasper.
“This memorandum of agreement between Jake Norsworthy, Cyrus Boykin and Ms wife, Malinda Boykin, and Alfred MeEarlane’ and his wife, Paralee, witnesseth: That the said Jacob Norsworthy, Cyrus Boykin and his wife, Malinda, and Alfred MeEarlane and his wife,' Paralee, in consideration of the sum of $400 to them in hand paid by August Rinstrom, have bargained and sold to the said August Lin-strom all of the merchantable pine timber now standing and growing upon two hundred and twenty-five aeres of land in Jasper county, Texas, part of the Edward Good headright league. [Here follow field notes.] And the said Jack Norsworthy, Cyrus Boykin and his wife, Malinda, and Alfred MeEarlane and his wife, Pa-ralee, agree that the said Linstrom, his heirs, executors, and assigns, shall have liberty to go upon the said land to cut and fell said trees and to carry the same in such manner as shall be convenient to him.
“Witness our hands this the 24th day of May, A. D. 1900. Jack Norsworthy.
“Malinda Boykin.
“Cyrus Boykin.
“Paralee MeEarlane.
“Alfred MeEarlane.”
“State of Texas, County of Jasper.
“This memorandum of an agreement between Anthony MeEarlane and August Linstrom wit-nesseth: That said Anthony MeEarlane, in consideration of $50 to him in hand paid, by August Linstrom, have bargained and sold to August Linstrom all of the merchantable pine trees now standing and growing upon fifty acres of land in Jasper county, Texas, part of the Edwbrd Good headright league, and subdivision in a three hundred acre tract conveyed to Jack Norsworthy by Miss L. D. C. Good. [Here follow field notes.] And the said Anthony MeEarlane agrees that the said August Linstrom, his heirs and assigns, shall have liberty to go upon said land to cut and fell said trees and cany the same away in such manner as shall be convenient to him.
“Witness my hand this the 24th day of May, A. D. 1900.’ Anthony MeEarlane.
“Amanda MeEarlane.”

The adjudged cases are generally in accord, and meet our full approval, in construing instruments like the above, which merely convey timber with a license to remove same, without stipulating the time within which it may or must be removed, as implying the removal of the timber within a reasonable time. 17 R. C. L. 1082; Montgomery County Devel. Co. v. Miller-Vidor Lumber Co., 139 S. W. 1020 (3).

The cases are in utmost conflict, however, in declaring the legal consequences of clauses in conveyances of growing timber, express or implied, for removal of the timber within a limited time, be it within a stipulated or reasonable term.

Some of the decisions, notably in Alabama and New Hampshire, adopt the view that such a clause does not prevent an absolute title to the timber from passing to the ven-dee; the agreement to remove being interpreted as - a mere covenant of the vendee. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58; Hoit v. Stratton Mills, 54 N. H. 109, 20 Am. Rep. 119; Pierce v. Finerty, 76 N. H. 38, 76 Atl. 194, 79 Atl. 23, 29 L. R. A. (N. S.) 547.

Other decisions declare that a timber deed or contract with such a clause passes to the vendee a present title to the timber defeasible by failure to remove the timber within the limited time. Beauchamp v. Williams (Tex. Civ. App.) 115 S. W. 133; Macomber v. Railway Co., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713; Lumber Co. v. Corey, 140 N. C. 462, 53 S. E. 300; McRae v. Stilwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513.

Many cases, and perhaps the weight of modern authority, support the rule that timber deeds and contracts, containing time limits for the removal of the timber, pass no title whatever, save to so much of the timber as the vendee may remove within the time limited. Carter v. Clark & Boice Lumber Co. (Tex. Civ. App.) 149 S. W. 278; North Texas Lumber Co. v. McWhorter (Tex. Civ. App.) 156 S. W. 1153, 1154; Mengal Box Co. v. Moore, 114 Tenn. 596, 87 S. W. 415, 4 Ann. Cas. 1047, and note, page 1050; Young v. Camp Mfg. Co., 110 Va. 678, 66 S. E. 843.

The reason for the rule last stated is well expressed in the opinion of Justice Levy in the case of Carter v. Clark & Boice Lumber Co. (Tex. Civ. App.) 149 S. W. 278, in the following language:

“Having agreed to a limitation upon the right of removal, then the right of the purchaser to the timber is acquired by the act of removal and appropriation; and, as appropriation of the timber as such is dependent upon the removal from the soil, the intention of the parties would appear to be a contract of sale of such timber only as is removed within the time limited.”

As several opinions have pointed out, it does not make much practical difference, with respect to the rights and remedies of the parties, whether we consider that the purchaser under these deeds and contracts acquires a present defeasible title or acquires title to only the timber removed. King v. Merriman, 38 Minn. 47, 35 N. W. 570. The far-reaching difference is between the cases holding either of the doctrines last mentioned and the cases holding, on the contrary, that the purchaser gets an absolute title to all timber described in the granting clause of the deed or contract, and that the removal clausé operates only as a covenant.

After deliberate consideration, we find ourselves unable to concur in the conclusion that the removal clauses should be construed as mere covenants of the vendees. In Alabama, the Supreme Court refused to extend relief to one who had allowed the time limit to expire without removing timber contracted to him, for the reason that the vendee could not enter the land to remove the timber without committing a trespass and equity’s process and powers could not properly be so employed as to aid in a trespass. Mt. Vernon Lumber Co. v. Shepard, 180 Ala. 148, 60 South. 825. It would seem useless to affirm that one has a title and then declarei the-title incapable of enforcement or protection in law or equity. The Supreme Court of New Hampshire refused to award damages to a timber vendee, against a vendor, who refused to allow him to cut timber, after the expiration of the contractual time limit, notwithstanding the court was committed to the doctrine that the clause fixing the time for removal of the timber did not prevent the vendee from being still invested with absolute title, and, in refusing such damages, the court indicated that it might not be disposed to adhere to the doctrine had it not become a rule- of property in that state. Pierce v. Finerty, 76 N. H. 38, 76 Atl. 194, 79 Atl. 23, 29 L. R. A. (N. S.) 547. It cannot be denied that, if the rule be adopted that the vendee of timber, under deed or contract fixing a limited time for removal, express or implied, has an absolute title to timber not removed, after expiration of the time limit, this title must be treated as an empty and barren one, because nonenforceable, or it must be treated as entitling its holder to the timber on compliance with such conditions as may be determined to be just and equitable. We are not at all inclined to adopt that construction of contracts which would give to parties nonenforceable titles, and we do not believe that it would comport with the true intention of the parties for us to adopt a construction which would make the ultimate rights of each party ascertainable only after judicial inquiry. Moreover we cannot sanction any rule which in its nature invites and encourages differences and litigation.

It is the plain duty of this court to interpret these contracts, like all others, in such manner as will best carry out the intentions of the parties. And we conclude that no rule will better accomplish that end than the one already approved by some of our Courts of Civil Appeals, under which title passes, under contracts like those set out herein, to only so much timber as may be removed within a reasonable time.

The jury found that a reasonable time expired before the institution of this suit to enjoin the timber cutting by the assignee of the vendee in these contracts, and this finding has been approved by the Court of Civil Appeals. The evidence supports the findings, and it follows that the judgments of the district court and of the Court of Civil Appeals should be affirmed; and it is so ordered.
      <g£»For other cases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON OIL CO. OF TEXAS v. HAMILTON et al.
    (No. 2539.)
    (Supreme Court of Texas.
    Nov. 27, 1918.)
    1. Logs and Logging <@=»3(11) — Contracts —CONSTRUCTION—REMOVAL Ok TIMBER— Time.
    A contract evidencing owner’s transfer of standing timber to purchaser, with right to all the time purchaser or his assigns should demand for its removal, and providing they should be forever entitled to have and hold such timber and right of way for its removal, held an absolute sale of timber, with unlimited time for removal.
    2. Injunction <§=52 — Removai oe Timber by Owner oe Land.
    One acquiring an estate in fee in standing timber, with unlimited time for removal, may, when necessary to preserve his property therein, enjoin the fee owner of land from cutting and appropriating such timber.
    Error to Court of Civil Appeals of Hirst Supreme Judicial District.
    Suit by the Houston Oil Company of Texas against Allen Hamilton and others. From a judgment of the Court of Civil Appeals (153 S. W. 1194), affirming a judgment of the district court for defendants, plaintiff brings error.
    Reversed and rendered for plaintiff.
    Hightower, Orgain & Butler and W. H. Davidson, both of Beaumont (H. O. Head, of Sherman, of counsel), for plaintiff in error.
    Roi Blake, of Jasper, and Hamilton & Hamilton, of Hemphill, for defendants in error.
    L. A. Carlton, of Houston, amicus curias.
   GREENWOOD, J.

The rights of the parties to this writ of error depend upon» the legal effect of the following written instrument, to wit:

“The State of Texas, County of Jasper.
“Know all men by these presents, that I, W. C. Parsons, of the county of Jasper and state of Texas, for and in consideration of the sum of three hundred dollars cash to me in hand paid by the Reliance Lumber Company, have bargained, sold, transferred, and delivered, and by these presents do bargain, sell, transfer, and deliver, unto said Reliance Lumber Company (a corporation duly incorporated under the laws of the state of Texas), of the county of Jefferson and state aforesaid, all the merchantable pine timber now standing and growing upon the following described tract of land, situated on the east bank of the Neches river in Jasper county, Texas, and being a part of the Marvin Bill one-third league survey: [Here follows description.] To have and to hold the said timber on the above-described premises, together with the right of way into, upon, through, and across said land, for the purposes of removing said pine timber thereupon, unto the said Reliance Lumber Company, its successors and assigns, forever. And I do hereby covenant and agree that the said Reliance Lumber Company shall have all the time it demands in which to remove said timber from off said land, and that said timber and land is free from all incum-brances of every kind whatever, and I do bind myself, my heirs, executors, and administrators, to -warrant and forever defend the right, title, ■and possession of said pine timber, together with the right of way on, into, across, and through said land, unto the said Reliance Lumber Company, its successors and assigns, against every person whomsoever claiming or to claim the same or any part thereof.
‘‘Witness my hand at Jasper, Texas, this 12th day of June, A. D. 1900. W. C. Parsons.”

Prior to 1910, the plaintiff in error acquired the rights of the Reliance Lumber Company under the foregoing instrument, as its assign. Prior to 1910, the defendants in error had become the owners of such title to the land as remained in W. C. Parsons ■after the execution of the foregoing instrument. In 1910 the defendants in error began cutting timber described in said instrument. The purpose of this suit by plaintiff in error is to enjoin such timber cutting by defendants in error.

Relief was denied to plaintiff in error by the trial court and by the Court of Civil Appeals, upon the ground that the instrument executed by W. C. Parsons to the Reliance Lumber Company, its successors and assigns, evidenced a sale of only such timber as might be cut and removed within a reasonable time, and that a reasonable time had already elapsed, after the date of the instrument, before defendant in error began to cut timber. 153 S. W. 1194-1196.

The owner of growing timber land certainly can, by contract, invest a purchaser, or his assigns, with title to the timber as an interest in the land, or with the right to cut and remove the timber, or any part thereof, at such time or times throughout the future as the purchaser or his assigns may elect, and to appropriate the timber after it has become a chattel by severance. Lodwick Lumber Co. v. Taylor, 100 Tex. 272, 98 S. W. 238, 123 Am. St. Rep. 803; 17 R. C. L. 1080. Where the terms of a writing plainly evidence the intent - of the owner to grant to a purchaser or his assigns a perpetual estate in growing trees, as part of the land, or a right, to be exercised at any time at the will of the purchaser or of his assigns, to enter the land and sever and appropriate the trees, then such writing cannot be construed as implying that the trees must be removed within only a reasonable time, for an obligation cannot be implied in contradiction of the precise agreement by which the parties have bound themselves.

We are of the opinion that the language of the instrument from W. C. Parsons admits of no other construction than as investing plaintiff in error, as the assign of the Reliance Lumber Company, with the right to have the described timber remain on the land until plaintiff in error, or its assigns, might elect to remove and appropriate same. The language is in substance that the Reliance Lumber Company, its successors and assigns, shall forever be entitled to have and to hold both the timber and the right of way to, upon, through, and across the land, for the purpose of removing the timber, and' ffie grantor binds himself, his heirs, executors, and administrators, to forever warrant and defend unto the Lumber Company and its assigns the title to the timber and the license to enter at will on the land for the removal of the timber. As if to avoid any possibility of this habendum and warranty being so construed as to require a removal at any time other than at the free and unrestrained will of the purchaser, the clause is inserted that the grantee shall have “all the time it demands in which to remove said timber off said land.”

The conclusion we have reached is in accord with that announced in the case of Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803. The words “forever in fee simple,” in the granting clause in the instrument there construed, did not more unmistakably rebut an intent for the timber not removed within a reasonable time to belong to the grantor than do the following words in the instrument here construed, vis¡.:

“To have and to hold the said timber on the above-desmbed premises, together with the right of way into, upon, and across said land, for the purpose of removing' said pine timber thereupon, unto the said Reliance Lumber Company, its successors and assigns, forever.”

To say that one may have “forever” to enter land and remove timber therefrom is to deny that one is limited to a reasonable time for such entry and removal.

The opinion in the Lodwick Case cites Washburn, Real Property, 16, where a rule is stated, which is conclusive against the claims of defendants in error. Washburn says:

“But, if the owner of land grants the trees growing thereon to another and his heirs, with liberty to cut and carry them away at his pleasure, ‘forever,’ the grantee acquires an estate in fee in the trees, with an interest in the soil sufficient for their growth, while the fee in the soil itself remains in the grantor.”

Here we have the-kind of instrument which it was pointed out in Lancaster v. Roth, 155 S. W. 602, could not be properly construed otherwise than as without restriction as to time for the timber’s removal, when the Tex-arkana Court of Civil Appeals said:

“Looking to the contract in this case, we find a sale of ‘standing and growing timber’ for a valuable consideration, - which has been paid. It is clear that Roth intended to sell, and Lancaster intended to buy, all the timber falling within the description contained in the conveyance. Lancaster was ‘to have and to hold all and singular the said timber forever.’ The title was expressly warranted by Roth, and a lien reserved to secure the unpaid purchase money. Had there been no modifying provision inserted, this deed should be construed as an absolute conveyance of the timber as an interest in the realty, with no requirement for its removal thereafter.”

Defendants in error cannot claim any other right than such as Parsons possessed after his conveyance of the timber to the Reliance Lumber Company and its assigns. Yet the want of merit in the claims advanced in behalf of defendants in error, if urged by Parsons, was clearly demonstrated by the Supreme Court of Mississippi, in the case of Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 South. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540, where it is said:

“The interest of the purchaser of this timber under his deed has no less claim to the protection of the law than the interest which the seller retains in the soil. The seller of this timber seeks to have the court do that which is in plain conflict with the rights which he has conveyed. By warranty deed he has sold this timber, received money for it, and now seeks to breach his own warranty by a proceeding in an equity court to cancel his deed.”

The judgments of the district court and of the Court of Civil Appeals are reversed, and judgment is here entered perpetually enjoining defendants in error from cutting, removing, or selling the merchantable pine timber, standing and growing on June 12, 1900, on the land described in plaintiff in error’s original petition.
      <§=For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes '