text:
    BRODKEY v. LESSER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 26, 1913.
    Rehearing Denied May 24, 1913.)
    1. Election oe Remedies (§ 3) — Legal and Equitable.
    A suit for specific performance of a contract to purchase, which was dismissed, was not an election of remedies by the vendor so as to preclude a subsequent action for the difference between the contract price and the sum realized upon a sale of the property.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. §,§ 3, 4; Dec. Dig. § 3.]
    2. Election oe Remedies (§ 3) — Legal and Equitable. '
    In order that a suit for specific performance by the vendor should constitute an election of remedies so as to preclude a subsequent action for damages for breach of contract to recover the difference between the contract price and the amount for which the vendor sold the property, the vendee must show that a specific enforcement of the contract was available.
    [Ed. Note. — Por other cases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by M. A. Lesser against H. Brod-key. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Slay, Simon & Wynn, of Pt. Worth, for appellant. Hunter & Hunter and Theodore Mack, of Pt. Worth, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. '& Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

By a written contract H. Brodkey agreed to purchase from M. A. Lesser certain real estate and to pay therefor the sum of $3,800. Brodkey having refused to comply with the contract, Lesser first sued him for a specific performance of the contract, but later dismissed the suit, sold the property for $3,100, and then instituted this suit to recover of Brodkey the difference between the sum so realized and the contract ■price as damages for the breach of the contract. In addition to a general demurrer and general denial, Brodkey by special plea alleged the former suit by Lesser to specifically enforce the contract and claimed that, as Lesser had thus elected that remedy, he could not thereafter maintain this suit for damages for breach of the contract, as the two remedies were inconsistent and both available to Lesser at the time of the institution of the first suit. Lesser recovered damages in the sum of $300, and from that judgment Brod-key has appealed.

The undisputed evidence shows that the former suit by Lesser to specifically enforce the contract was instituted and dismissed before he instituted the present suit, and appellant insists that the court erred in refusing to instruct a verdict in his favor based upon those facts.

This is the only assignment of error presented in the record and is predicated upon the proposition asserted in the special answer that at the time of the institution of the former suit Lesser had two valid, available, and inconsistent, remedies, one of which was asserted in that suit, and the other was the' remedy asserted in the present suit, and that his election to resort to the remedy for specific enforcement was a waiver of the remedy to sue for damages for the breach of the contract. In 15 Oyc. 259, it is said: “By a preponderance of authority the mere commencement of any proceeding to enforce one remedial right in a court having jurisdiction to entertain the same is such a decisive act as constitutes a conclusive election, barring the subsequent prosecution of the inconsistent remedial right. But in some of the states it is held that the mere commencement of a proceeding is not such a conclusive election as will prevent plaintiff from obtaining a dismissal thereof and from instituting another proceeding to enforce an inconsistent remedial right.” Many Texas authorities are cited in appellant’s brief, such as Greenwall Theatrical Circuit Co. v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302, Hamilton v. Gouldy, 46 Tex. Civ. App. 506, 103 S. W. 1117, Griffin v. Williams, 142 S. W. 981, etc., all of which recognize the general rule of the binding effect of an election between two inconsistent remedies, but none of which, as we construe them, directly sustain the contention asserted by appellant under the assignment now under discussion. In Stone Land & Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544, it was held that the doctrine of elections of remedies did not preclude a vendor of land, who had sued to foreclose a vendor’s lien, from changing the suit by amendment to an action to rescind the sale and recover the land. In our opinion this decision is decisive of the question now under discussion adversely to appellant’s contention.

Furthermore, in order to sustain this special defense, it was incumbent upon appellant, at all events, to show that a specific enforcement of the contract by the suit first instituted was available;' otherwise it cannot be said that appellee had two remedies from which he could elect. Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710. The contract for sale appearing in the statement of facts, after providing that the appellee should furnish to appellant an abstract of title to the land showing a good title in the seller and reciting that appellant had paid earnest money to bind the contract, contained this further stipulation: “If the title to the seller to said property should prove good and the purchaser should fail to comply with his part of this contract, said sum of earnest money above mentioned as paid shall be retained by the seller as and for his liquidated damages agreed to by the parties hereto on account of such default by the purchaser.” In view of the stipulation quoted, it may be that a specific enforcement of the contract could not have been obtained in the former suit, under the decision of Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847. But decision of this question is not necessary in view of the conclusion previously stated.

The judgment is affirmed.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    LESTER v. RILEY.
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1913.)
    1. Evidence (§ 29) — Judicial Notice — Acts OE LEGISLATURE.
    The Court of Civil Appeals will take judicial notice that, at a certain time at which an appeal record was filed, none of the acts of the Legislature at its last regular session had been published.
    [Ed. Note. — For other cases, see Evidence, . Cent. Dig. §§ 36, 37, 39, 43-46, 48; Dec. Dig. § 29.]

      2. Appeal and Error (§ 628) — Appear to Wrong District.
    Where appellant’s failure to file his appeal in the proper District Court of Civil Appeals was caused by the general impression that the Governor had vetoed the act relating to the redistricting of the Court of Civil Appeals, known as the “Single Bill,” and the Supreme Court shared the impression, and the cause was transferred to the proper district, motion to dismiss or affirm on certificate, will be denied.
    [Ed. Note. — For other' cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dee. Dig. § 628.]
    3. Pleading (§ 46) — Parties—Legal Entity.
    Where the pleadings and affidavit and bond in an attachment suit show that plaintiff is suing as a bank by and through its president and solé manager, L. T. L., and that the bank is a private bank owned and controlled solely by L. T. L., and he had in fact no partner, the attachment proceedings will not be quashed on the theory that the plaintiff is not a legal entity, since the pleadings sufficiently show that L. T. L. was the real and only party suing.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 101-103; Dec. Dig. § 46.]
    4. Attachment (§ 202) — Sale of Property —Right to Proceeds.
    Where part of cattle attached did not belong to defendant, and a third person sued plaintiff for such levy, it is error for court to order all the proceeds of the sale of the cattle to be turned over to plaintiff in attachment.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 655, 656, 657; Dee. Dig. § 202.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by L. T. Lester against Tom Riley. From a judgment for defendant, plaintiff appeals.
    Reformed and affirmed.
    A. S. Rollins, of Amarillo, G. W. Barcus, of Weatherford, and Jno. C. North, of Falfur-rias, for appellant. Knight & Slaton, of Hereford, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NTJMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

   HALL, J.

This suit was filed in the district court of Parmer county, by appellant, to recover upon an overdraft charged against appellee by the Bank of Bovina. Writs of attachment were issued by appellant, the first being levied on 125 head of cattle, and an alias writ levied upon an undivided interest, alleged to have been held by appellee in a certain herd of cattle. After the writs were levied the cattle were sold, and the proceeds deposited in the registry of the court. Appellee moved to quash the attachment proceedings, and the court sustained the motion and ordered the money held by the clerk of the court to be turned over to appellee. Judgment was rendered in favor of appellant against appellee, for the sum of $1,802.06, being the amount of the overdraft, less certain credits. The judgment was rendered on the 29th day of May, 1911. The court adjourned for the term on the 8th day of June, 1911, and on the 9th day of June appellant filed his appeal bond. The transcript of the record was filed in the Court of Civil Appeals for the Second District on the 9th day of July, 1911, and ap-pellee has filed a motion in this court, asking that the judgment be affirmed on certificate, or that the appeal be dismissed. It appears from the record and the indorsements thereon that the transcript, together with the statement of facts, and other filed papers, were transmitted by the clerk of the second district to the clerk of this court on the 16th day of September, 1911, and filed here by the clerk of this court on that date. It further appears that since the appeal has been prosecuted, appellant, by writ of -error, has brought the case directly to this court, having filed his transcript with the clerk of this court the 22d day of July, 1912.

This court will take judicial knowledge of the fact that at the time of the filing of this record none of the acts of the Legislature at its last regular session had been published. It was generally understood by the bar that the Governor had vetoed what is known as the “Single Bill,” and such impression prevailed until the Supreme Court, in Southern Pacific Co. v. Sorey, 140 S. W. 334, decided that both acts of the Legislature applied, and that by virtue of the provisions contained in the single bill the transfer of this and all other cases appealed under the same circumstances was made from the second court to' this court. On the 20th day of June, 1911, the Supreme Court transferred to this court 94 cases, and there could have been no reason for such transfer if the Supreme Court had understood at that time that the provisions of the single bill were operative. The appellant having used due diligence to prosecute his appeal, and his failure to lodge the same with the proper tribunal not being chargeable to his negligence, upon the authority of the following cases we overrule the alternative motion to dismiss or affirm on certificate and grant the appellant’s counter motion, and consider the same as having been properly filed in this court: Keator v. Whittaker, 143 S. W. 607; Id., 140 S. W. 120; Gordon v. Rhodes, 104 S. W. 786; Heflin v. Eastern Ry. Co. of New Mexico, 155 S. W. 188; G., C. & S. F. Ry. Co. v. McMahan, 20 S. W. 954. When the motions were filed by appellant the question presented has been certified by this court to the Supreme Court, in the case of Heflin v. E. R. Co. of N. M., supra, and pending the disposition of the Heflin Case, all motions in this and other eases of like character have been passed. During this time, as above stated, appellant has brought the case to this court by writ of error, which is numbered upon the docket of this court, “328.” Both cases having been submitted together, cause No. 328 is ordered dismissed from the docket, and we will consider the merits of the controversy upon the record brought here by appeal.

Appellant’s first, second, third, and fifth assignments are submitted together and complain of the action of the court in quashing the attachment proceedings. The substance of appellant’s contention under these assignments is that the allegations of the original petition show that the appellant was plaintiff, and that he was conducting a banking business at Bovina, under the name of the “Bank .of Bovina,” which allegations are substantially carried forward in the amended petition, upon which the case was tried; that the attachment proceedings described appellant as the sole owner and proprietor of the Bank of Bovina. The original petition upon which the attachment proceedings were based, and which alone we must consider in determining the question submitted under these assignments, contains the following allegations: “Now at this time comes the Bank of Bovina, by and through its president and sole manager, L. T. Lester, of Canyon City, Randall county, Tex., and, complaining of Tom Riley, represents as follows: That the said bank of Bovina, hereinafter styled plaintiff, is a private banking institution, located at Bovina, in Parmer county, Tex. (being owned and controlled solely by L. T. Lester of Canyon City, Tex.-), at which place the plaintiff carries on a general banking business,” etc. The bond in attachment recites: “We, the undersigned, the Bank of Bovina, a firm composed of L. T. Lester, who is sole owner and proprietor, as principal, and L. C. Lair and L. E. Cowling as sureties,” etc. — and is further conditioned that “the plaintiff in attachment against the said Tom Riley, defendant, will prosecute its said suit to effect and that it will pay all such damages and costs as may be adjudged against it for wrongfully suing out such attachment.” The affidavit in attachment recites: “Before me, the undersigned authority, on this day personally appeared L. T. Lester, sole owner and proprietor of the Bank of Bovina, and acting for said bank, which is plaintiff in attachment,” etc. The writ of attachment contains this recitation: “To satisfy the demand of the Bank of Bovina, a firm composed of L. T. Lester, who is the sole owner and proprietor, and that yoq keep and secure in your hands,” etc. The grounds set up in the motion to quash are in substance: (1) Because it appears from the affidavit that the plaintiff to the suit was not a legal entity; that it was neither an natural nor an artificial person. (2) Because the affidavit shows that the debt therein described is not due to any legal entity. Therefore the plaintiff described in the affidavit could not maintain a suit on it. (3) Because the affidavit and bond affirmatively show that it is not the obligation of legal entity; plaintiff described therein being neither a natural nor artificial person. And (4) Because the attachment bond shows on its face that it is not a contract to indemnify the defendant, entered into by any legal entity as a principal, and, the principal not being bound, no obligation rests upon the sureties.

The trial court is apparently sustained by W. & A. Ry. Co. v. Dalton Marble Works, 122 Ga. 774, 50 S. E. 978, Mexican Mill v. Yellow Jacket Silver Mining Co., 4 Nev. 40, 97 Am. Dec. 510, and other cases cited in the brief. Appellee also refers us to the case of Frank v. Tatum, 87 Tex. 204, 25 S. W. 409, which holds that a suit by a partnership must be maintained not in the partnership name, but in the name of the individuals composing the firm. Cases dealing with the question of partnership can have little or no bearing upon the question to be determined here. It is uncontradicted that the Bank of Bovina was merely the “trade-name” of the appellant Lester, under which he was conducting a private bank at Bovina, and that he had no partner. The question presented by these assignments has been passed upon by James, Chief Justice, of the fourth district, at San Antonio, in the case of Lester v. Ricks, 140 S. W. 395. It appears from the facts of that case that the appellant there is also the appellant in the instant case, and the language used is applicable here. “The first question to consider is whether or not the suit was brought and the attachment writ sued out by a patty recognized as capable of maintaining an action and of procuring said writs. The writs were sued out while the original petition was the only pleading in the case. While this petition styled the Bank of Bovina as the party appearing, it states in the same place and connection, that said Bank of Bovina is owned by L. T. Lester of Canyon, Randall county, Tex. This was an allegation of the identity of the bank at Bovina and Lester, and in our opinion Lester figured in the petition as the real plaintiff. Upon the trial of the case on that petition the allegation of the identity of the bank of Bovina and Lester, if established, would in our opinion have warranted the court in rendering judgment for or against Lester, and with that allegation in the petition, had judgment been given in the name of the Bank of Bovina, it would have been res adjudicata as to Lester. Under this view, the affidavit and bond for the attachment were in fact his affidavit and bond.” We think, further, that the conditions of the bond in this case are such that a suit could be instituted against Lester; and, under proper allegations and proof, if the facts justified it, judgment might be had against him by appellee if it had been wrongfully sued out. If there had been no statement in the pleadings or attachment proceedings, showing that the “Bank of Bovina” was merely the name under which L. T. Lester conducted his banking business, and it had not been shown that the “Bank of Bovina” was a corporation or a partnership, appel-lee’s motion should have been sustained; but, under the authorities quoted, we think the court erred in quashing the attachment proceedings.

It is shown by the record that a part of the cattle levied upon probably belonged to third parties, and that such third parties had filed an independent suit against appellant for such levy. Appellee testified that he did not own a part of the cattle. It is therefore error for the court to order the proceeds of the sale of that portion of the cattle delivered to him. Having held that the court erred in quashing the attachment proceedings, we reform the judgment rendered below to the extent of foreclosing the attachment lien upon the proceeds of the cattle, and the judgment, as reformed, is affirmed.


author: RICE, J.

text:
    HALL v. CARTER.
    (Court of Civil Appeals of Texas. Austin.
    May 7, 1913.
    Rehearing Denied June 4, 1913.)
    1. Nuisance (§ 32) — Pleadinct and Promt.
    Where, in a suit to enjoin a nuisance and for damages, the court granted an injunction and awarded damages for discomfort only, the admission of evidence of depreciation in the market value of plaintiff’s property on account of the nuisance was not erroneous; plaintiff praying for damages for depreciation in the market value in the event that the injunction was refused.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 77-83; Dec. Dig. § 32.]
    2. Nuisance (§ 3) — Pkivate Nuisance — Livery Stables.
    While a livery stable is not a nuisance per se, it may be so conducted as to become injurious to the health or comfort of adjoining property owners and abated on account thereof.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.]
    3. Nuisance (§ 3) — Pkivate Nuisances — What Are.
    In determining whether a lawful business is a nuisance, locality must be considered; for a business proper in a business neighborhood may be a nuisance when carried on in a residential district.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.]
    4. Nuisance (§ 33) — Private Nuisance — Liveky Stables.
    Evidence held to support a finding that a livery stable was a private nuisance justifying equitable relief and damages for temporary discomfort.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 84-89; Dec. Dig. § 33.]
    Appeal from District Court, San Saba County; Clarence Martin, Judge.
    Action by J. A. Carter against J. M. Hall. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Faver & Allison, of San Saba, for appellant. G. A. Walters, of San Saba, for appel-lee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

This suit was brought by appel-lee against appellant to enjoin him from conducting a livery stable so near his residence as to constitute a nuisance, and for actual damages for impairment in value thereof, for temporary discomfort, and for exemplary damages. Appellant pileaded general denial. A trial before the court without a jury resulted in a judgment in favor of appellee, awarding him $75 damages for temporary discomfort, and a permanent injunction.

The evidence shows that prior to this controversy the parties hereto were neighbors, engaged in business in Richland Springs and living on adjoining lots. Appellant, who had been conducting his business in a different portion of the town, was compelled, on account of the expiration of his lease, to remove his stable; and, when it was ascertained that he contemplated locating it on his lot adjoining, appellee’s residence, the latter undertook to dissuade him from doing so, offering to aid him in getting another location, and protested against the location of the stable near his residence, finally threatening suit if appellant persisted in doing so. Notwithstanding this objection and proffered aid to secure another location, appellant, disregarding both, erected the stable on his own lot adjacent to appellee’s dwelling and some 33 feet therefrom. The building was about 35 or 40 feet wide by about 80 feet long, in which appellant kept his vehicles and livery horses. The stable fronted on the same street with appellee’s residence. This was a public stable, and the evidence shows that it was so conducted as to be offensive and disagreeable to appellee and his family; that they were disturbed at night by the noises of the horses and the calls of customers, and annoyed by the dust and flies created thereby ; that appellee’s dining room, kitchen, and bedroom were so located as to be in full view of the stable and back lot thereof, and the droppings from the horses were frequently removed during meal times, to the annoyance and discomfort of the family. About a year before the erection of this stable, appellee had purchased this lot and established his home thereon, which was located in the principal residence portion of the town, some two blocks away from the business district.

There was no error, we think, in the introduction of evidence going to show depreciation in the market value of appellee’s property on account of the location of the stable adjacent thereto, for the reason that he only sought to recover such damages in the event that the injunction was refused, but prayed in the alternative that if the injunction be granted then he should recover damages only for personal discomfort occasioned by the nuisance up to the date of trial. The judgment of the court granted the injunction, but awarded damages merely for such personal discomfort. Therefore no error is shown.

The remaining assignments urge the insufficiency of the evidence to sustain the judgment. While a livery stable is not a nuisance per se, yet, if so conducted as to become harmful to the health or comfort of adjoining property owners, it will be held so, and abated on account thereof. Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665; Hockaday v. Wortham, 22 Tes. Civ. App. 419, 54 S. W. 1094; Dargan v. Waddill, 31 N. C. 244, 49 Am. Dec. 421; Coker v. Birge, 10 Ga. 336; Catlin v. Valentine, 9 Paige (N. Y.) 575, 38 Am. Dec. 567; Dry Goods Co. v. Reinman & Wolfort (Ark.) 143 S. W. 1089; 29 Cyc. p. 1182.

Locality is to be considered in determining whether there is a nuisance, for what might be a nuisance in one locality might not be so in another. Thus, a business which might be perfectly proper in a business or manufacturing neighborhood, may be a nuisance when carried on in a residential district; and, conversely, a business which, with its incidents, might well be considered a nuisance in a residential portion of a city or village, may be proof against complaint where conducted in a business or manufacturing locality. 29 Cyc. 1157.

The trial court, after a full consideration of the evidence, having seen fit to hold that the stable was so located, kept, and conducted as to be a nuisance, situated as it was in the residence portion of the town, we feel disinclined to disturb its finding; and, no error having been otherwise shown, its judgment is affirmed.

Affirmed.


author: FLY, C. J.

text:
    SHAENFIELD et al. v. HALL SAFE & FIXTURE CO.
    (Court of Civil Appeals of Texas. San Antonio.
    May 14, 1913.
    On Motion for Rehearing, June 4, 1913.)
    1. Sales (§ 23) — 1Construction oe Contract —Acceptance.
    A clause in an order that it was subject to the seller’s approval, and that nothing but shipment or delivery should constitute an acceptance by the seller, was for the seller’s benefit, and, notwithstanding such provision, he might accept the order in some other way.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. § 23.]
    2. Sales (§ 23) — Terms as to Acceptance-Waiver.
    Where alterations were made in the safe at the request of the buyer, there was an acceptance of the order, though the safe was not shipped at once because the buyer requested the seller not to ship it, and the 'buyer could not thereafter revoke his order, as the provision that acceptance should be by shipment or delivery was waived by both parties.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. § 23.]
    3. Sales (§ 384) — Seller’s Action and Damages — Measure oe Damages.
    Where a safe was not completed when the buyer’s order was countermanded, the seller could not recover the contract price, but only. the difference in its value at the place of manufacture when the cancellation of the order was received and the contract price, not including ’the freight and storage on the safe thereafter shipped.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. § 384.]
    4. Commerce (§ 46) — Regulation—Sales oe Goods.
    A foreign corporation engaged in interstate commerce may not be controlled by the foreign corporation laws of this state.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113, 126; Dec. Dig. § 46.]
    5. Sales (§ 384) — Construction—Countermand oe Order.
    A clause in a contract of sale denying the buyer’s right to countermand the order did not impose an additional burden or liability on the buyer, who had no right to breach the contract in the absence of such clause and whose breach had the same effect with it as without it.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dee. Dig. § 3S4.]
    Appeal from Bexar County Court for Civil Cases; Geo. W. Huntress, Judge.
    Action by the Hall Safe & Fixture Company against Abe Shaenfield and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Lytle & Brown, of San Antonio, for appellants. Arnold & Carl, of San Antonio, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit for $505.27, instituted by appellee, alleged to be due for a safe and freight and storage. The suit was brought against Shaenfield Bros. & Co., composed of Abe Shaenfield, Sam Shaenfield, and Dave Shaenfield. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee for $455.60. The suit was based on an order made by appellants on appellee, for a certain fireproof safe. In the order was the clause: “This order is given subject to your approval and nothing but shipment or delivery shall constitute an acceptance of same by Hall Safe & Fixture Company.” The order was dated September 13, 1910. On October 10, 1910, appellants requested a change in the cabinet work, and that when completed the safe be held ready for shipment upon advice of appellants. Ap-pellee sent appellants a guaranty that the safe was fireproof, which appellants approved on October 19, 1910. On November 16, 1910, appellants sent a message by telegraph to appellee to cancel the order for the safe, which was refused by appellee, and on .November 29th the safe was shipped from St. Louis to San Antonio by appellee. Appellants refused to receive and pay for the safe.

The clause in the contract as to what should constitute acceptance of the order was for the benefit of appellee alone, and if it saw proper to accept the order in some other manner it had the power and authority to so accept. This was evidently done with the knowledge and consent of appellants, for the correspondence shows that pursuant to the order the safe was being manufactured, changes were made in it at the instance and request of appellants, and a guaranty of the fireproof condition of the safe was sent by appellee and approved by appellants. The safe was not shipped at once because appellants requested appellee not to ship it because'appellants were about to move their business in San Antonio from Soledad to Flores street and did not wish to receive it until they got into their new place of business. The provision in the contract as to acceptance was for the benefit of appellee and cannot be used by appellants as an excuse for their refusal to comply with the terms of the contract. If it could have been so used, it was destroyed as an excuse by the waiver of its terms by both parties. The sale made by the agent was ratified and accepted by appellee. If there was any delay in the shipment, it was caused by the request of appellants, and the revocation of their promise was made after the contract had been accepted by appellee. Williams v. Rogan, 59 Tex. 438; Railway v. Neeley, 64 Tex. 344.

It was shown by appellee that “the cabinet work on this safe was elaborate and had to be specially made at the factory and was partially completed when the telegram countermanding order was received.” There can therefore be no question that the safe was not completed when the order for it was countermanded, and under that state of facts appellee could not recover for the contract price of the safe, but the measure of damages would be the difference in the value of the safe at the place of manufacture when the notice of cancellation of the order was received, and the contract price. That measure of damages rests on the rule, as stated in different text-books, that “where the contract of sale is executory and for an article which is not in existence at the time of sale, but is to be manufactured or made or is to be grown, no property therein passes to the vendee until the thing is not only completely finished and ready, but is either actually delivered to him, or at least is set aside and appropriated to him and accepted by him.” That rule has been approved in several Texas cases. Gammage v. Alexander, 14 Tex. 420; Tufts v. Lawrence, 77 Tex. 526, 14 S. W. 165. In the case last cited the appellees had ordered from appellant a “soda water apparatus.” They lived in Brown-wood, Tex., appellant lived in Massachusetts, and the apparatus ordered had to be manufactured after the order was given, and the articles were completed and shipped on June 4, 1885. Before they were shipped, on June 2, 1885, appellees notified appellant by wire not to send the soda fountain. The • articles ordered at that time had been completed, and nothing remained to be done except to connect some inside parts and test the apparatus and pack it. The fountain was made to order for appellees. The goods were shipped two days after the telegram was received, and appellees refused to accept them, and appellant sued appellees for the contract price, and a verdict and judgment were rendered in favor of appellees. The Supreme Court held: “The telegram sent by appel-lees on the 2d day of June and received by appellant before the goods were ready for delivery was a repudiation of the contract. After it was received appellant had. no right to proceed with the performance or to recover the contract price as if the property in the goods had passed to the appellees. His remedy was to sue for damages for breach of contract, and he was entitled to recover the difference between the contract price and the value of the goods in the condition they were in when he received the notice at the place of their manufacture.”

In the case of Tufts v. Stuart, 23 S. W. 834, this court, in a similar case, held: “Plaintiff, under the facts in this case, could not recover the contract price of the goods from defendants; but he was entitled to recover all damages that accrued to him up to the time of the repudiation of the contract. The goods were to be manufactured after the order was received, and it has been uniformly held that, where goods are to be manufactured after an order is received, the contract is an executory one, and no title would pass until the article is not only completely finished and ready, but is either actually delivered to the vendee or at least set aside and. accepted by him.”

The foregoing cases fix the measure of damages applicable to this case, and the court erred in instructing the jury that they should find for the contract price and storage account. Appellants are not liable for the freight or storage, or any other sum which may have accrued after the message of repudiation of the contract was received by ap-pellee. It had no right to ship the goods and incur any additional expense, but should have endeavored to decrease rather than increase the damages after the message was received. The measure of damages is the difference in value of the safe when the message was received and the contract price. Appellants are entitled to recover that amount, whatever it may be, and nothing more.

There is no merit in the contention that appellee, being a foreign corporation doing business in Texas without a permit, could not prosecute this suit. Appellee was engaged in interstate business, and was not controlled by the foreign corporation laws of Texas. Miller v. Goodman, 91 Tex. 41, 40 S. W. 718; s. c., 15 Tex. Civ. App. 244, 40 S. W. 743; Woessner v. Cottam, 19 Tex. Civ. App. 611, 47 S. W. 678; Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857.

The clause in the contract denying the right to appellants to countermand the order did not impose any additional burden or liability on appellants. They bad no right to breach the contract in the absence of that clause and the breach had the same effect with it as without it. Appellants are liable for damages for breach of the executory contract, and could breach it in spite of any clause in the contract to the contrary.

The other questions raised by appellants are immaterial. In fact, the only question in the case is the amount of damages sustained by appellee by a breach of the contract, which it may recover under proper amendments of its petition.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The opinion of this court is not in conflict with the case of Palestine lee & Fuel Co. v. Walter Connally & Co., 148 S. W. 1112, decided by the Court of Civil Appeals of the Sixth Supreme Judicial District. In that case there was an order by appellant on ap-pellee for machinery; the contract price being $2,400. Appellant countermanded the order at a time when the machinery was completed, but was not quite ready for shipment, and appellee sued to recover the damages arising from a breach of the contract, and not, as appellee herein did, for the contract price of the machinery. In that case the manufacturer recovered the difference between the contract price and the price for which the machinery was sold, amounting to $1,102. The court, in affirming the judgment, held: “From the facts found by the trial court, it appeared that the ownership of the machinery never passed to appellant (citing the cases cited by this court). Therefore, when appellant by its letter of May 23d countermanded its order for the machinery, it exercised a right it possessed, subject to an obligation it thereby incurred to pay to appellees the damages they thereby suffered.” In that case the court also held that appellee could have treated the property as that of appellant and sold it and then recovered the difference between that price and the contract price. It is not held that appellee could ship the machinery to the appellant and then recover the contract price for it as was done in this ease. The opinion in that case is in perfect harmony with the opinion in this.

The motion for rehearing is overruled.


author: SPEER, J.

text:
    WHITMAN et al. v. ALDRICH et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 5, 1913.
    Rehearing Denied May 24, 1913.)
    1.Appeal and Error (§ 750) — Assignments op Eeeobt-Conclusions op Law — Eppect.
    Assignments of error which do not attack the findings of fact by the court below, but only the conclusions of law, raise only the question of the sufficiency of the findings to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.]
    2. Landlord and Tenant (§ 66) — Estoppel op Tenant — Adverse Possession.
    Where one claiming land under the statute of 5 and 10 year limitations was in possession thereof under a lease, his possession is not adverse to the landlord, in the absence of a repudiation by him of his tenancy.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 199-209; Dec. Dig. § 66.]
    3. Evidence ■(§ 265) — Admissions—Recitals in Deeds — Eppect.
    A recital in a deed that the land conveyed thereby was deeded to the grantor by his father and mother is not sufficient to establish the existence of the deed referred to as against those not in privity with the parties to the deed containing the recitals.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.]
    4. Tenancy in Common (§ 15) — Adver'se Possession.
    The plea of limitations is not available to parties who have been in possession as tenants in common with the claimants of adverse interest.
    [Ed. Note. — -For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.]
    5. Judgment (§ 732) — Conclusiveness — Matters in Issue but Not Decided.
    Where a judgment in a former suit to try title to lands affirmatively shows that the lands derived through one conveyance only were covered by judgment, such judgment is not res judicata between the same parties as to lands derived, through a different conveyance, even thopgh such lands were within the pleadings in the former case.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1260, 1261; Dec. Dig. § 732.]
    6. Judgment (§ 713) — Conclusiveness— Matters in Issue on Pleadings.
    All matters put in issue by the pleadings, and which could have been adjudicated in the suit, are concluded by the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.]
    7. Appeal and Error (§ 877) — Parties Entitled to Allege Error — Error Not Af-pecting Appellant.
    Where in an action for partition between numerous parties, appellants have recovered all the land to which they are entitled, they cannot complain of error in the court in awarding to certain of the appellees land to which appellants have no claim.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    8. Cancellation op Instruments (§ 47)— Evidence — Agency Coupled with Interest.
    Evidence that an attorney in fact had not complied with the terms of his powers of attorney, coupled with an interest, and had made misrepresentations to his principals, held, sufficient to warrant a judgment canceling the powers of attorney.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 102, 103; Dec. Dig. § 47 ; Contracts, Cent.- Dig. § 1199.]
    Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.

      Consolidated actions of trespass to 1 try title by J. J. Sweet and others against W. P. Whitman and others, and for partition of the same land by A. A. Aldrich and others against W. P. Whitman and others. Prom a judgment determining the interest of the various parties and ordering a partition, W. P. Whitman, Edward S. Emery and others, Jane Yarborough and others, and T. G. Carney appeal.
    Affirmed.
    Scott & Key, of Haskell, W. T. Andrews, of Stamford, Chapman & Coombes, of Anson, A. G. Foster, of Rule, and Sanders & Wilson, of Haskell, for appellants. H. G. McConnell, of Haskell, Tandy & Hosey, of Ft. Worth, and Thomason & Thomason, of Haskell, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   SPEER, J.

This is a consolidation of two suits, originally brought in the district court of Haskell county; the first being an action of trespass to try title by J. J. Sweet et al. against W. P. Whitman et al., and the second being an action by A. A. Aldrich et al. against W. P. Whitman et al. for a partition of the same land, being a 1,280-acre survey patented to Isaac Parker as assignee of Richard Finch on August 12, 1857. The facts concerning the entire controversy are thus found by the trial court:

“(1) This is a controversy of various claimants over 1,280 acres of land situated in Has-kell county, Tex., patented to Isaac Parker, as-signee of Richard Finch, on the 12th day of August, 1857, by patent No. 915, vol. 3, and it is conceded by all of the parties to this suit to have been the community property of Isaac Parker and his wife, Lucy W. Parker, whose name before her marriage was Lucy W. Chatham. Isaac Parker was married twice, first to Lucy W. Chatham prior to 1836, and lived with her until her death on August 29, 1867; they had four children by said marriage, to wit, Isaac Duke Parker, William E. Parker, Virginia A. Parker, who married Ballard, and Lucy Ann Parker, who first married Johnson and after the death of her first husband married S. C. Haile. Isaae Parker was married the second time to Virginia Hill in the year 1869 and lived with her until his death, which occurred in the year 1882. Said Virginia Hill Parker died October 24, 1904. That by his second marriage Isaac Parker had three children, as follows: Adam Parker, who died in the year 1905, was never married and left no issue; Sallie V. Parker, who- married J. B. Sikes, and who is now living; Rebecca Parker, who married Boone, and after his death she married one Rawlins, and they are now living. Isaac Parker lived with his wives in Texas from the year 1836 until his death.
“Isaac Duke Parker died in the year 1902 and left the following children as his sole and only heirs: R. B. Parker, Duke Parker, Alex E. Parker, Josey Parker, all now living. Josey Parker married a man. by the name of Thomas, from whom she is separated. Isaac D. Parker was married twice and has a son by the name of Sam Parker, who died leaving one son, named Loyd Parker, and who is now living.
“William E. Parker died on the 22d of January, 1858, leaving five children, viz., Lucy Parker, Mhry Parker, T. J. Parker, W. C. Parker, and Daniel G. Parker. Lucy Parker married one Sweet and had four children at the time of her death, viz., Jeff Sweet, Andrew J. Sweet, Charlie Sweet, and William S. Sweet, all living, except Charlie, who died leaving a son, Charley, now living. Mary Parker married one Thrasher, and she and her husband are dead, leaving one child, Mary Thrasher, who married C. D. Bell and is now living. T. J. Parker married and had three children: Laura, who married one Kuntz and is now living, Agnes, who died unmarried and without issue, and W. H. Parker, who is now living. W. C. Parker died without issue leaving a wife named Pheobe, who is now the wife of W. L. Harris and is living. W. C. Parker left a will devising all of his property to his widow. Daniel G. Parker is now living.
“Virginia A. Parker, daughter of Isaac Parker, married one Ballard, and they by said marriage had two children: Nannie, who was married to one Fulton, now living. The husband and other child of Virginia A. Parker are dead. The child left no issue. Virginia A. Ballard died in 1861.
“Lucy Ann Parker was married twice; first married to William F. Johnson, and second time to S. C. Haile. Both husbands are dead. Johnson died in 1849 and Haile on the 5th day of May, 1903. Mrs. Haile, formerly Lucy Ann Parker, died in the year 1875, on the 11th day of July, and all lived in the state of Texas up to the time of their respective deaths. As a result of her marriages, Lucy Ann Parker had eight children, two by the first marriage and six by the second marriage. The children by the first marriage were Mary Johnson, who married John Kyle, and Jane W. Johnson, who married J. C. Yarborough; by the second, Josephine Haile, who married John Murchison, Lucy Haile, who married F. A. St. Amant, Texann Haile, who married E. L. Simpson, Laura Haile, who married John E. Reagan, and Isaac George Haile and Chester Haile. Mary Johnson married John Kyle, and John Kyle died in the year 1878, and Mary Kyle died in 1879 and left four children, viz., Lou Bartee, wife of W. J. Bartee, Mary Rickard, wife of J. D. Rickard, Elizabeth Olinkscales, wife of Robert Clinkscales, and W. J. Kyle, all living. Jane W. Johnson married J. C. Yarborough in 1884 and both of them are living. Josephine Haile married John Murchison in 1868, and both of them are living. Lucy Haile married F. A. St. Amant in 1874, and both are living. Texann Haile and E. L. Simpson were married in 1877, and both are living. Laura Haile married John E. Reagan in 1884, and both are living. Isaac George Haile died in the year 1868 and left no wife or children. Chester Haile is now living and was born on the 20th day of July, 1868.
“J. E. Paramour and his wife, Sarah Lou Paramour, who are not connected by descent with the heirs of the original Isaac Parker, but are parties through whom some of the parties to this suit claim by reason of deeds from' Isaac Parker and the inheritance and descendants of said vendees, and they are here set out for a better understanding of this ease. J. P. Paramour and his wife, Sarah Lou Paramour, were married in 1858, and both of them are dead. J. P. Paramour died in 1884, and Mrs. Paramour died in the year 1868, and both died in the state of Texas. They had three children by said marriage, to wit, Cassie, Claronteen, and Jennie, all girls. Cassie died after having married and left no issue. Jennie married Jim Douglass in the year 1878 and died in the year 1899, leaving four children surviving her, to wit, Ola, Estella, Lillie Bell, and Lee, all living. Their father, Jim Douglass, is living. Ola married Robert MeVey, who is living. Claronteen Paramour married R. C. Barbee in the year 1884, and she died in the year 1886; she had one child, which also died in the year 1886 at the age of one year, leaving its father surviving it and its only heir.
“(lb) W. S. Green, a remote vendee, claiming through Isaac Parker, died intestate on the 4th day of October, 1903, and there was no administration on his estate, and no necessity for one. Said W. S. Green left surviving him as his only heir at law his wife, Mary E. Green, and the following children: Tom I-I. Green, George L. Green, Lillie S. McDonald, Mary Elizabeth Green, Margaret E. McDonald, Elizabeth O. Green, all of age, and the minors, Nora E. Parris, Lena May Green, Willie E. Green, and Bessie Irene Green. ,
“(lc) The following, parties claim through remote vendees of Isaac Parker: Francis F.. Emery, Jr., Edward S. Emery, and Maria S. Emery, who are the only children and sole surviving heirs of Francis P. Emery, deceased. Francis P. Emery, Jr., is the duly qualified and independent executor without bond of the estate of Francis P. Emery, deceased.
“The above facts as to heirship, and the facts above set forth, are undisputed by any of the parties to this suit.
“(2) The court finds: That on October 27, 1865, Isaac Parker, the patentee, and his wife, Lucy W. Parker, conveyed to Lucy Ann Haile and her children, jointly, 320 acres undivided interest in the l,2S0-acre survey in controversy in this suit. íhe court finds that the children then living were Jane W. Yarborough, Texann Simpson, Josephine Murchison, Lucy St. Amant, Laura Reagan, and the following four, children of Mary Kyle, deceased, to wit: W. N. Kyle, Lou Bartee, Mary Rickard, and Elizabeth Glink-scales. That George Isaac Parker died in 1868, and his heirs then living were his mother and father, Lucy Ann Haile and S. 0. Haile. That Chester Haile was born after the execution of said deed and took nothing by virtue of the same.
“(3) That in the case No. 358 in the district court of Haskell county, Tex., styled Yarborough v. Whitman et al., filed on the 28th day of April, 1904, this particular 320 acres of land deeded to Lucy Ann Parker-Haile and her children was in litigation, and judgment was rendered in said cause in said court disposing of said 320 acres of land among the parties to said suit, which was afterwards on, to wit, March 14, 190S, affirmed by the Court of Civil Appeals for the Second district, in which said suit Yarbor-ough et al. v. Whitman et al., said land was awarded as follows: 163% acres set apart to the heirs of Lucy Ann Haile, as follows: Jane Yarborough, Josephine Murchison, Lucy St. Amant, Texann Simpson, Laura Reagan, and the following four heirs of Mary Kyle, deceased, to wit: W. L. Kyle,. Lou Bartee, Mary Rickard, and Elizabeth Clinkseales. Chester Haile was a party to said suit but recovered nothing. In said cause H. G. McConnell, a defendant in that suit and a defendant in this suit, recovered -103% acres of land, and E. P. Thomason, R. C. Barbee, Jim Douglass, Estella Douglass, Lillie Douglass, Lee Douglass, Ola MeVey, and her husband, Robert MeVey, recovered 53% acres.

That a suit for the partition of the interest respectively recovered in said cause was filed in the district court of Haskell county, Tex., styled A. A. Aldrich et al. v. W. P. Whitman et al., and another suit was filed in the district court of Haskell county, Tex., No. 672, on the 8th day of July, 1910, styled A. J. Sweet et al. v. W. P. Whitman et al., and said actions were both by the order of the court consolidated under the style of A. A. Aldrich et al. v. W. P. Whitman et al., No. 696, and the respective pleadings in said consolidated case constitutes the issue in this case. The court finds that for the purpose of this present suit, and the action and issues therein that the findings and disposition of the 320 acres of land deeded by Isaac Parker and wife to Lucy Ann Haile and her children jointly on the 27th day of October, 1865, and disposed of in the original suit in the district court of Haskell county, Tex., and affirmed by the Court of Civil Appeals for the Second Supreme Judicial District of Texas, as above- set forth, should not be disturbed in this action, and the court finds as a fact that the respective interests found by the court heretofore in said suit are binding on all of the parties hereto.

“(4) The court finds that on the 14th day of October, 1868, Isaac Parker, the original patentee of said land,; deeded to his grandsons, the sons of William E. Parker, to wit, W. C. Parker and T. J. Parker, 320 acres out of the 1,280-acre tract jointly, and that one W. S. Green, by regular chain of title, is the owner of 160 acres of said 320 acres so deeded by Isaac Parker, and that W. P. Whitman by regular chain of title is the owner of the other 160 acres of said 320 acres, all of which constitutes an undivided interest in this said 1,280-acre tract of land.

“(5) The court further finds that on the 20th day of June, 1879, I. D. Parker, a son of the original patentee, Isaac Parker, executed a deed to one Henry Kink to 320 acres, an undivided interest in the 1,280-acre tract in issue in this suit, which deed was filed for record August 11, 1879, and in which deed said I. H. Parker recited that said land was deeded to him (the said I. D. Parker) on the 27th day of October, 1865, by Isaac Parker and Lucy W. Parker, but said alleged deed from Isaac Parker to I. D. Parker, as recited in the deed from I. D. Parker to said Henry King, was not offered in evidence in this ease, and the deed itself is not disclosed from any record in this case.

“(6) The court finds that by the will of Isaac Parker, the original patentee, dated the 11th day of April, A. D. 1874, and probated in the county court of Parker county, Tex., in May, 1883, and which will was offered in evidence in this case, there is the following recital: ‘Whereas, I have heretofore given by deeds of gift to the four children of the issue of myself and my first wife, Lucy W. Parker, all of my estate, that it was and is my will and desire that they should have’ — and then proceeds to will his property to other parties, reciting: T give to my son Isaac D. Parker his separate share, and to my daughter Virginia A. her separate share, and to the children and heirs of my son Wm. E. Parker the full share which their father, the said Wm. E. Parker, would have received if he had been living at the time said deed of gifts were made, and to Lucy Ann Haile her separate share, thereby making all of the provisions for the aforesaid children that I at that time thought, and that I at the present writing do think, taking my circumstances into consideration.’ The said will does not specify what property particularly was given to either of those children, and the court finds as a fact that at the time the said deeds of gift referred to were made, if made, said Isaac Parker owned other lands and property than the 1,280 acres in controversy in this suit.

“(7) The court further finds as a fact that the parties to this suit, who are contesting the claims of the Emery heirs, and who are no.t attempting to claim through said supposed deed from Isaac Parker to his son, I. D. Parker, aforesaid, are and have been in possession as joint tenants or otherwise of the land in controversy in this suit from the time this land was originally inclosed some time in the early ’80’s.

“(8) The court, therefore, finds that the evidence is insufficient to raise a presumption that a deed was made from Isaac Parker and his wife, Lucy A. Parker, to Isaac Duke Parker, to any portion of the 1,2S0 acres of land in this suit, as recited by Isaac Duke Parker in the deed to King, as above set forth.

“(9) No deed was offered in evidence from Isaac Parker, patentee to William E. Parker, his son, or to his daughter, Virginia A. Parker, and Ballard, and no one is claiming through said deed to any portion of the land in controversy in this suit.

“(10) The court finds that Francis F. Emery, Jr., Maria S. Emery, and Edward S. Emery, defendants in this suit, claim in this suit, through the said alleged deed from Isaac Parker and wife to Isaac Duke Parker by regular chain of title from Isaac Duke Parker down to and including them, an undivided interest in this land.

“(11) Lucy Parker, the first wife of Isaac Parker, died August 29, 1867, and that only 320 acres of this land had been deeded away up to that time by Isaac Parker to his daughter Lucy Ann Haile and her children, and that at the death of Lucy W. Parker her interest of 480 acres remaining in this land, it being community property, passed to her son Isaac Duke Parker and her daughter Lucy Ann Haile, 240 acres each, an undivided interest.

“(12) That, after the death of Lucy W. Parker, Isaac Parker married Virginia Hill in 1869, and that as aforesaid, after the death of his first wife, he deeded 320 acres of this' land to W. O. Parker and T. J. Parker, his grandsons, and sons of William E. Parker, jointly, which has heretofore and as above set forth been found to be the property — 160 acres each of W. P. Whitman and W. S. Green, heirs.

“(13) This leaves 160 acres of this 1,280-aere tract at the death of Isaac Parker in 1882 which the court finds was disposed of by his will to Virginia Hill Parker, his widow, and to Adam Parker and Rebecca. Rawlins and Sallie V. Sikes. That, at the death of Virginia Hill Parker, the second wife of Isaac Parker, in 1904, and the death of said grandson of Isaac Parker, to wit, Adam Parker, without issue, and who died in 1905, their interest passed to Rebecca Rawlins and Sallie V. Sikes.

“(14) The cou£t further finds that 340 acres inherited by Lucy Ann Haile from her mother’s community interest in said land passed to King and Paramour and their ven-dees by regular chain of title from Lucy Ann Haile and S. C. Haile, her second husband. And that G. W. Thomason, by virtue of a contract with the Paramour heirs, acquired a one-half interest in the Paramour interest in said lands for services rendered to said heirs in representing them in this and other suits involving the title to their interest in said lands.

“(15) The court finds that on the 9th day of April, 1904, Virginia Parker, the second wife of Isaac Parker, Rebecca Boone, after-wards married to J. B. Rawlins, and Adam Parker executed a power of attorney to T. G. Camey, one of the defendants in this suit; that on the 13th day of August, 1904, Laura Kuntz and husband, L. L. Kuntz, executed a power of attorney to said T. G. Carney ; that on the 9th day of April, 1904, Sallie V. Sikes and her husband, J. B. Sikes, executed a power of attorney to T. G. Carney, a defendant herein; that on the 30th day of March, 1904, D. J. and E. J. Parker executed a power of attorney to the defendant T. G. Carney; and that on the 6th day of October, 1904, W. S. Sweet and J. J. Sweet executed a power of attorney to said defendant T. G. Carney. The court finds that each of said powers of attorney contained the following provisions authorizing the said defendant T. G. Carney, as attorney, for said parties, to recover and reduce to possession, by suit or otherwise, their undivided interest in the survey in controversy in this suit, and to any and all other property said parties may own, granting to their said attorney authority to do and perform any and all acts and things necessary to be done in and about said business as fully as they might do if personally present with power of substitution, and ratifying and confirming the acts of their said attorney, and contains the further recital: ‘That whereas the said T. G. Carney will have to incur considerable expense and will have to employ legal counsel to assist him in said business, in consideration of same and of services performed and to be performed by said Carney in his behalf they do hereby give, grant, sell, and convey and deliver to said T. G. Carney one-half of all sums of money or other property, and one-half undivided interest in all sums of money or other property, and a one-half undivided interest in all lands recovered by virtue of power conferred. The said one-half interest conveyed to said Carney is conveyed to him charged with all costs and attorneys’ fees hereinafter to be incurred in any future litigation concerning said premises, and that no compromise was to be made by said Carney without the written consent of the grantors.’

“(16) The court further finds that, after the execution of said powers of attorney aforementioned to T. G. Carney, no suit or action was brought by the said Carney for the possession of said lands.

“(17) That on the 3d of December, 1910, Rebecca Rawlins and her husband, J. B. Rawlins, executed a power of attorney coupled with a one-third interest to Louis H. Tandy and George E. Hosey, and that on the 31st of December, 1910, Sallie V. Sikes and husband, J. B. Sikes, executed a power of attorney coupled with a one-third interest to L. H. Tandy and George E. Hosey. That said powers of attorney constituted and appointed said Tandy and Hosey their attorneys in fact to recover and reduce to possession all the undivided interest of the grantors in the Richard Finch survey of 1,280 acres involved in this suit, for a consideration of legal services rendered and to be rendered by the said grantee, granted, sold, and conveyed to said Tandy and Hosey an undivided one-third interest in ¿11 of the lands or other property or money which they can realize under the power of attorney here'in, and in consideration of services and the prosecution of suit within a reasonable time after date of power of attorney for the recovery of the property above mentioned, and the grantors agree to assist the grantees in the prosecution of said suits and .to bear their pro rata part of all necessary expenses, the taking of depositions, and thereafter to provide costs and appeal bond, when necessary. That thereafter, on the 8th day of July, 1910, said Tandy and Hosey filed suit for the grantors in said powers of attorney, along with other heirs of Isaac Parker, deceased, in the district court of Haskell county, Tex., styled A. J. Sweet et al. v. W. P. Whitman et al., wherein W. P. Whitman and T. G. Carney were made parties defendant in said suit. And that in said suit citation was issued on the Sth day of July, 1910. and served therein on the defendant W. P. Whitman on the 9th day of July, 1910, and served on the defendant T. G. Carney on the 14th day of July, 1910. The court further finds that the defendant T. G. Carney never took any action under said powers of. attorney or filed any suit thereunder, nor filed any pleadings on behalf of the parties granting him said power of attorney until the 28th day of May, 1912, in consolidated case No. 696, styled A. A. Aldrich et al. v. W. P. Whitman, et al., being the present case.

“(18) The court finds that on the 22d day of July, 1904, the said T. G. Carney wrote the parties from whom he received powers of attorney that the land in question in this suit had been held by commen for 50 years and held by rich men under 16 years’ limitation by deed from the state of Texas, and that the parties controlling it were worth over $100,000, and that he would have a hard fight, but that he had worked on the case for two years; he represented to them that he had power of attorney from most of the heirs, and power to bring suit and reduce the land to possession, and that they were to give him one-half of what he could gain, and that they would not be out a dollar for anything. That on the 12th day of July, 1911, when he was brought in as a party defendant to said cause, he wrote to Mrs. J. B. Sikes, one of the parties from whom he held a power of attorney, that he had at last succeeded in getting her claim as one of the heirs of Isaac Parker before the court, and that he had two good firms of lawyers employed in the case. That he represented to said parties in order to secure said powers of attorney that he would act promptly. The court finds from the testimony of Mr. Carney when on the stand that the only reason that he gave that he had not taken any action under the powers of attorney held by him was that he could not get all of the heirs to join in powers of attorney to him, and the court finds that, otherwise than in spending some money in attempting to hunt up the other heirs claiming an interest in the land, Mr. Carney had done nothing toward the execution of the powers of attorney for the parties from whom he held them, and that he made representations that were not true.

“(19) The court finds that Adam Parker, one of the parties through whom T. G. Carney held power of attorney in this case, coupled with an interest, died in 1905, never having revoked the power of attorney or otherwise having taken any adverse action to said Carney.

“(20) The court finds that this 1,280 acres of land was first inclosed about 1890 by A. .H. Tandy with other lands in a pasture of over 10,000 acres. That in the fall of 1899 A. H. Tandy sold out his leases and fences around the Pinch and other surveys to J. W. Johnson and son, who built a fence along the west line of the Pinch survey and inclosed it with other lands in a pasture of less than 5,000 acres.

“(21) The court finds that S. W. Scott, as agent for Edward S. Emery and Emery heirs, collected rents on 320 acres of said inclosed lands of the 1,280 acres in this suit from A. H. Tandy and remitted it to them. And that, after the land was inclosed by Johnson as aforesaid in a pasture of less than 5,000 acres, said Scott gave said Johnson a rental lease on 320 acres of the land, undivided interest claimed by the Ernerys in this case, and collected rents therefrom. Johnson continued to hold possession as aforesaid and to pay rents thereon until he sold out to Whitman, one of the defendants in this case, in the year 1901, and that Whitman succeeded Johnson in possession of this land and fenced the 1,280 acres to itself and paid lease money to the agent of the Ernerys for the Emery interest in said survey of 320 acres, and also lease money was paid on other portions of said land, one being to H. G. McConnell for a 320-acre interest, the undivided interest of W. C. King, by the respective parties in possession, being Tandy, Johnson, and Whitman, respectively, since about 1890. That said Whitman also leased and paid lease money on 160 acres of the land claimed in this ease by the W. S. Green heirs to G. R. Couch, as agent, from about 1901 down to the present time; and that prior to that time J. W. Johnson paid lease money on said 160 acres to G. R. Couch for the Green heirs for the years about 1S99, 1900; and that prior to that time, from in the ’80’s down to the time that Tandy sold out his leases to Johnson, A. H. Tandy leased a 160-acre interest in the Richard Pinch survey, undivided, claimed by the Green heirs, from their agent, G. R. Couch, and paid lease therefor to said Couch.

“(22) A tax deed was introduced in evidence executed by A. D. Tucker, tax collector of Haskell county, Tex., dated the 4th day of April, 1889, purporting to convey the interest of an unknown owner in 480 acres of the Richard Pinch survey of 1,280 acres involved in this suit, to A. H. Tandy for a consideration of paying the taxes for the year 1888, amounting to $10.50, together with $5.25 penalties and costs and having the usual recitations in tax deeds made under the old law; said deed reciting that it conveys to A. H. Tandy a specific 480 acres of the said Richard Pinch 1,280-acre survey, situated in Haskell county, Tex., and giving the metes and bounds thereof, the same as that claimed by the defendant W. P. Whitman in this case. Said tax deed was filed for record the 10th day of March, 1898; a deed was also introduced from A. H. Tandy to J. W. Johnson, purporting to convey all of his interest in the Richard Pinch survey of 1,280 acres involved ’ in this suit, dated the 6th day of September, 1901, describing the land by patent and volume number and by the original grantee. This deed was duly filed for record in Haskell county, Tex., on the 6th day of December, 1901. J. W. Johnson executed a quitclaim deed to the defendant W. P. Whitman in this case, convey-iny all of his interest in the Richard Pinch survey of 1,2S0 acres, describing the survey number and the patent number which is referred to for further description, dated the 6th day of December, 1901, and filed for record on the 6th day of December, 1901, in the deed records of Haskell county, Tex. • — the last two deeds above mentioned being quitclaim deeds.

“(23) The court finds that on April 1, 1909, Mary Y. Smith, a feme sole, deeded to W. P. Whitman, defendant in this ease, for the sum of $2,400 all of her undivided interest of 160 acres of land in the 1,280-acre survey in controversy in this suit, and it was agreed in open court by all of the parties to this suit that the defendant W. P. Whitman took whatever interest passed from the deed of Isaac Parker, the original patentee, in this case, to his grandson, W. O. Parker, by regular chain of title. The defendant W. P. Whitman when on the stand testified that Mary Y. Smith wrote him that she had a son who was sick and a consumptive, and that she needed the money for this 160 acres of land, and that for sympathy for her under the circumstances he (Whitman) paid her for this land, not recognizing her legal right of it, but claiming it as his own, as a part of the 480 acres which he claims under the tax deed above introduced in evidence in this case.

“(24) The court finds from the testimony of the defendant W. P. Whitman that about December, 1901, while in possession of this land for himself and others on the particular 480 acres which he claims under the tax deed, and thence by regular chain of title to himself, he carried a surveyor out to the land and had the 480 acres surveyed out, and that he cut a right of way out on the east side of the land, about 30 feet wide, and that he drove stakes at a distance of about 250 to 300 yards apart all around the land, and put down stakes for corners of the 480 acres; and the defendant W. P. Whitman also testified that he put stock pens on the land and fencing on the west end of the land which cost him about $125 altogether for the fencing and stock pens, also that he cleared about 67% acres of said land after December, 1901, which he testified was worth $450. Defendant Whitman testified that he did not fence the 480 acres off to himself that he had in the whole 1,280-acre pasture because the fence would be in his way, and the water was on the east part of the 1,280 acres, and that he had no water or tanks on this 480 acres.

“(25) The court'finds also that the defendant Whitman had paid the taxes on the 480 acres of land each year from 1901 down to the present time, and that he used this land in connection with the balance of the 1,280 acres, about 800 acres of which he had leased from other claimants of the land, for the purpose of pasturage for stock; said 800 acres being the undivided interest of other claimants in the 1,280 acres, all the claimants being tenants in common.

“(26) The court finds as á conclusion of fact that the above facts are not sufficient to show title in the defendant W. P. Whitman by limitation under the statutes plead.

“(27) The court finds that the heirs of Ducy Ann Haile, who were parties in the case of Yarborough v. Whitman, acting by virtue of their attorney in fact, A. A. Aldrich, on the 10th day of August, 1908, conveyed to A. O. Poster and S. W. Scott an undivided 40g/c acres of their interest in the Richard Pinch 1,280-acre survey involved in this suit.

“(28) The court finds that on the 11th day of December, 1891, W. O. King' executed a power of attorney to H. G. McConnell, authorizing him to sue for and recover and to take into his possession, divide, and partition 320 acres undivided out of the Richard Pinch l,2S0Lacre survey, being the same land conveyed to W. C. King and J. P. Paramour by S. 'C. Haile and wife, Lucy Haile, by deed dated November 30, 1876, granting to said attorney, in consideration for services rendered and to be rendered in fee simple, an undivided one-third interest in said land above described.”

Upon these facts the following conclusions of law were made and upon which judgment was entered:

“The court from the above and foregoing findings of fact and the record in this case therefore concludes as- a matter of law the parties to this suit should recover as hereinafter set forth, viz.:

“(a) That the plaintiffs A. A. Aldrich and George W. Crook do have and recover of and from all other parties to this suit the title and possession of an undivided 81V3 acres in and to the Richard Pinch 1,280-acre survey.
“(b) That the defendant H. G. McConnell do have and recover of and from the plaintiffs and all other defendants in this suit the title and possession of an undivided 103Vs acres of the Richard Pinch 1,280 survey.
“(c) That the defendant W. P. Whitman do have and recover of and from the plaintiffs and from all other defendants the title and possession of an undivided 160 acres of the R. Pinch survey of 1,280 acres.
“(d) That the defendants A. D. Poster and S. W. Scott jointly have and recover of plaintiffs and all other defendants an undivided 40¡¡/o acres of the Richard Pinch survey of 1,280 acres.
“(e) That the interveners, heirs of W. S. Green, deceased, to wit, Mary E. Green, surviving widow of said W. S. Green, and his children and sole heirs, to wit, William H. Green, Lillie S. McDonald, and husband, T. S. McDonald, George K. Green, Mary Elizabeth Green, 'Margaret E. McDonald, and husband, E. B. McDonald, Elijah G. Green, and the minors, Nora E. Parris, and her husband, Tommie Parris, Lena M. Green, AVillie E. Green, Bessie I. Green, all minors and appearing herein by their next friend, Mary E. Green, do have and recover of and from the plaintiffs and defendants herein the title and possession of an undivided 160 acres of the Richard Pinch survey.
“(f) That the defendants Francis P. Emery, Jr., Edward S. Emery, and Maria S. Emery, in their individual capacity as the heirs of P. P. Emery, Sr., and P. Emery, Sr., deceased, do have and recover of and from plaintiffs and defendants herein an undivided 240 acres in and to the Richard Pinch survey.
“(g) That the interveners L. H. Tandy and George E. Hosey do have and" recover the title and possession of an undivided 44Vs> interest in and to the Richard Pinch survey from the parties to this suit.
“(h) That the defendants Sallie V. Sikes and husband, J. B. Sikes, and Rebecca Raw-lins, formerly Rebecca Boone, and her husband, J. B. Rawlins, do have and recover an undivided SSs/o acres in the Richard Pinch l,2S0-acre survey from the other parties to this suit.
“(i) That the defendant T. G- Carney do have and recover the title and possession of an undivided 26V3-acre interest in and to the Richard Pinch 1,280-acre survey from the other parties to this suit.
“(j) That the defendant Josephine Murchison, and husband, John Murchison, Lucy St. Amant and husband, P. A. St. Amant, and Laura Reagan and. husband, John E. Reagan, part of the heirs of Lucy Ann Haile, do have and recover tiie title and possession of an undivided interest of 40 Vo acres in and to the Richard Finch survey of 1,280 acres from the other parties hereto.
“(k) That the defendants G. W. and Y. L. Thomason, jointly, do have and recover the title and possession in and to an undivided interest of 220 acres in and to the Richard Finch 1,280-aere survey from the other parties to this suit.
“(1) That the defendant R. C. Barbee do have and recover of and from, the other parties to this suit the title and possession of an undivided interest of 362/3 acres of the Richard Finch 1,280-acre survey.
“(in) That the defendants Jim James Douglass, Estella Douglass, Lillie Douglass, Lee Douglass, Ola McVey, and her husband, Robert McVey, do have and recover of and from the other parties to this suit an undivided interest of 36V3 acres and the title and possession of same in and to the Richard Finch survey of 1,280 acres.
“(n) That commissioners of partition, composed of the following parties, to wit, H. M. Rike, G. R. Couch, and E. M. Morris, should be appointed to partition this land and report their action to the next regular term of this court, according to the respective interest above set forth and in accordance with law.”

A number of parties have appealed, and four separate briefs for appellants have been filed, among them one for W. P. Whitman, one for Edward S. Emery et al., one for Jane .Yarborough et al., and one for T. G. Carney, and these will be disposed of in the order named.

Appellant Whitman claimed an undivided one-eighth interest in the survey which the judgment gave him. He also pleaded the statutes of five and ten years’ limitations as to an additional 480 acres described by metes and bounds and disclaimed any interest in the residue of the survey. He appeals from that part of the judgment which denied a recovery upon the pleas of limitation. All of the assignments of error presented by this appellant complain of the court’s conclusions of law, and nowhere do they attack his finding of fact upon which such conclusions are predicated. In such a case the sufficiency of the findings to support the judgment is the only question raised by the assignments. Rushing v. Spreen, 142 S. W. 49.

The findings show that .appellant and his vendors Johnson and Tandy were in possession under a lease from the appellees and their vendors; the lease describing the leasehold as an undivided interest in the survey. Appellant’s holding, therefore, cannot be adverse to appellees, in the absence of a repudiation of such tenancy, and there is no showing of any such repudiation. Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St Rep. 709.

The appellants Emery and others, who recovered 240 acres, complain that they were not awarded a total of 320 acres, assigning error to the court’s refusal to find in' favor of the existence of a deed from Isaac Parker to their grantor, I. D. Parker, conveying the 320 acres claimed by them. The claim is made that the recital in the ancient deed of I. D. Parker to Henry King, dated June 20, 1S79, along with other circumstances in evidence, was sufficient to establish the existence of such a deed. It is well settled, however, that the general rule is that recitals in a deed are only evidence against the parties and their privies and do not affect strangers. Teagarden v. Patton, 107 S. W. 909; Schriver v. Taylor, 143 S. W. 231. None of appellees, as against these appellants, claimed through the Parker-King deed.

The other assignments that these appellants should have recovered upon their pleas of limitations are answered by finding No. 7 to the effect that the appellees are and have been in possession as joint tenants or otherwise of the land in controversy during the time necessary to appellant’s prescription.

One of the most interesting questions presented is the contention of appellants Yarborough et al. that appellees Thomason et al. should be confined to a recovery of the 53% acres recovered by them in the case of Yarborough v. Whitman et al., No. 358, in the district court of Haskell county (50 Tex. Civ. App. 391, 110 S. W. 471), upon the plea of res adjudicata. It is true the pleadings in that suit were such as to authorize the recovery of all the lands recovered (293% acres) by appellees in this action, but the decree entered expressly shows that the recovery was confined to “an undivided interest of 53% acres in and to the 320 acres of land situated in Haskell county, Tex., about 6 miles north of the town of Haskell, the same being an undivided interest of 320 acres in and to a survey of 1,280 acres of land .patented to Isaac Parker, assignee of Richard Finch, on the 12th day of August, 1857, by patent No. 915, vol. 3, said 320 acres having been conveyed by the said Isaac Parker and his wife, Lucy W. Parser, to their daughter Lucy Ann Haile and to her children jointly on the 27th day of October, A. D. 186*5.”

It cannot be controverted as a general principle that the judgment or decree of a court of competent jurisdiction is final, not only as to those matters accurately determined thereby, but also as to those matters comprehended in the pleadings and decree. In other words, all matters, put in litigation by the pleadings and which could have been adjudicated in the suit are concluded by the judgment. But there are exceptions to this well-recognized rule, an important one of which is a case where an inspection of the judgment relied on to sustain the defense of res adjudicata discloses affirmatively that the claim last asserted had not been adjudicated. Pishaway v. Runnels, 71 Tex. 352, 9 S. W. 260. This case falls within the exception, as the above quotation from the judgment abundantly discloses.

The appellees Thomason and others were permitted by the judgment to recover only 53% acres of the land involved in the former suit, and the land recovered in the present case in excess thereof was by virtue of conveyance from Lucy Ann Haile and husband of land not included within the conveyance from Isaac Parker and wife, Lucy, to their daughter Lucy Ann Haile, which conveyance alone, as already shown, was embraced within the adjudication on the former appeal. The trial court did therefore observe strictly the former judgment as among all the parties and as to all the land properly embraced within its decree. Again, these appellants cannot complain of the recover^ of the appellees Thomason and others, since at all events they have recovered all the interest to which they could possibly be entitled; their only claim being through the deed of Isaac Parker and wife to Lucy Ann Haile and her children, and, if there has been any error in the quantity of land awarded to the appellees, the same affects only the wife and children of Isaac Parker’s second marriage, who took the residue of his estate by will.

None of appellant Carney’s assignments attack the corut’s findings of fact. The judgment is assailed because not supported by those findings. We think, however, the facts disclosed support the judgment canceling the powers of attorney given to this appellant, and this conclusion disposes of every assignment.

Upon the trial court’s findings of fact, which we adopt as our own, we approve his conclusions of law and affirm the judgment.