text:
    KYNERD v. SECURITY NAT. BANK et al.
    (No. 8005.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1918.
    Rehearing Denied Dec. 14, 1918.)
    1. Principal’ and Surety <®=»182 — Discharge op Note — Payment by Surety.
    Where, when note became due, surety thereon for a valuable and adequate consideration purchased it and collateral note from payee, helé, note was discharged so that right, if any, which surety or payee had thereafter against makers, would be on an implied promise to pay, although surety on the day that he purchased notes obtained a loan from payee and delivered notes to it as security.
    2. Pleading <®=>252(1) — Amendment — Contradictory Allegations.
    Allegations of trial amendment contradictory of and repugnant to distinctly alleged fact in amended petition of which trial amendment was a part is ineffectual.
    3. Courts <§=»121(1) — District Court — Jurisdiction — Amount.
    Where plaintiff surety had lost his interest in note sued on by its payment, and amount of interest alleged to have been paid by him to secure its extension was less than $500,. district court had no jurisdiction to render judgment for him.
    Error from District Court, Dallas County; W. E. Whitehurst, Judge.
    Suit by the Security National Bank and another against W. D. Kynerd and others. Judgment for plaintiffs, motion of defendant named for new trial overruled, and he brings error.
    Reversed and remanded.
    Etheridge, McCormick & Bromberg, of Dallas, for plaintiff in error.
    Leake & Henry, Cecil L. S'impson, and Monta R. Ferguson, all of Dallas, for defendants in error.
   TALBOT, J.

The Security National Bank of Dallas, Tex., a corporation created under the laws of the United States, and H. W. Ferguson, as plaintiffs, instituted this suit against W. IX Kynerd, the plaintiff in error, and others, M recover on a note of $12,500, bearing interest at the rate of 10 per cent, per annum, and providing for the payment of 10 per cent.- of the principal and interest of said note as attorney’s fees if the same was placed in the hands of an attorney for collection. The plaintiffs also sought a foreclosure on a certain note for $16,000 charged to have been pledged as collateral security for the payment of the note sued on. The plaintiff H. W. Ferguson separately prayed judgment for $436.90, on account of alleged payments of matured interest on the notes mentioned above.

Plaintiffs alleged in their second amended petition, filed January 11, 1917, in substance, that on the 3d day of December, 1915, defendants J. P. Smith and W. D. Kynerd executed and delivered their certain promissory note for the principal sum of $12,500, payable to the order of plaintiff Security National Bank 60 days after its date; that said note bore interest from maturity at the rate of 10 per cent, per annum until paid, and provided for 10 per cent, additional on the principal and interest unpaid, for attorney’s fees, if said note was placed in the hands of an attorney for collection; that said note was payable at the office of the Security National Bank and indorsed on the back thereof by plaintiff H. W. Ferguson; that said note was secured by a note for $16,000- pledged as collateral security executed by J. J. Marshall on March 18, 1915, payable to the order of J. P. Smith, which collateral note was, in turn, secured by a vendor’s lien against a tract of 90.4 acres of land, a part of the Thomas Lagow league in Dallas county; that on or about February 15, 1916, the said $12,500 note became due and payable, and, not being paid, was by the consent of plaintiff Security National Bank renewed and extended by the defendants J. P. Smith and W. D. Kynerd executing their certain note for $12,500 in renewal thereof, indorsed by the plaintiff H. W. Ferguson, payable to plaintiff Security National Bank four months after its date, bearing the same rate of interest and providing for attorney’s fees as did the original $12,500 note, and was likewise secured by the said $16,000 vendor’s lien note; that the plaintiff H. W. Ferguson, in indorsing said original and renewal notes of $12,500, did so with the express and implied understanding between him and the makers of said notes, J. P. Smith and W. D. Kynerd, that he, the said Ferguson, was not to become responsible on said notes jointly and severally with them as makers of said notes, but that his liability was only secondary; that when said original note became due on or about February 15, 1916, it became necessary, in order to secure an extension and renewal thereof, to pay the interest thereon in advance, and plaintiff Ferguson paid on said interest for the benefit of defendants the sim of $167.50; that a prior and superior lien existed against the aforesaid tract of 90.4 acres of land to the lien securing the said $-16,000 vendor’s lien collateral note, to secure a note for $13,470.72, executed by the Western Lumber & Creosoting Company, and payable to Four States Life Insurance Company of Tex-arkana, Ark., which note bore interest from date at 8 per cent, per annum, payable semiannually; that an interest payment therebn fell due on March 13, 1916, and, in order to protect the said collateral note for $16,-000, plaintiff Ferguson was compelled to contribute and did pay on said interest for the benefit of defendants the sum of $269.40.

It is further alleged in said amended petition: That on or about June 17, 1916, for a valuable and adéquate consideration, the plaintiff H. Ww Ferguson purchased from plaintiff Security National Bank the said original and renewal notes of $12,500 so executed by defendants J. P. Smith and W. D. Kynerd, together with the aforesaid $16,-000 vendor lien collateral note attached thereto as collateral to secure same. That plaintiff H. W. Ferguson is now the owner of said notes and of said collateral note hypothecated to secure payment of the said principal note. That on the same day, to wit, the 17th day of June, 1916, plaintiff H. W. Ferguson attached and delivered all of said notes and collateral to plaintiff Security National Bank, to secure a loan obtained by him on said day from said bank, and that plaintiff Security National Bank is thereby the present legal holder of said notes and collateral, which are held by the said Security National Bank of Dallas as pledges to secure the indebtedness of the said Ferguson, which indebtedness is evidenced by the note of H. W. Ferguson, of date September 15, 1916, payable 90 days after date to the order of the Security National Bank of Dallas, in the principal sum of $12,599 with interest at the rate of 8 per cent, per annum from date until paid, and the usual provision for 10 per cent, attorney’s fees, if placed in the hands of an attorney for collection; said note payable at the office of the Security National Bank in Dallas, Tex. It is further alleged that the notes executed by the defendants are past due and unpaid, and that defendants, though, of ten requested, have failed and refused to pay said notes, or any part of them; that said notes have been placed in the hands of attorneys ;■ and that plaintiffs have agreed to pay them the fee provided for in said notes, which they say is reasonable. There are other allegations relating to attachments sued out by plaintiffs and their levy upon certain described tracts of land, but it is unnecessary for the purposes of this appeal to quote or state those allegations. Plaintiffs in their amended petition prayed that upon trial they recover of defendants “as the respective interests of plaintiffs may appear against said defendants, the principal interest and attorneys’ fees provided for in said note; that the lien held by them against said $16,000 vendor lien note, to secure the payment of notes so due by defendants be foreclosed; and that said collateral note be sold,” etc.

In addition to the foregoing judgment prayed for by both plaintiffs, the plaintiff H. W. Ferguson prayed that he recover of defendants the said sums of $167.50 and $269.40 paid by him as interest. To plaintiff’s said amended petition the defendant W. D. Kynerd pleaded general and special demurrers, a general denial, and other matters not necessary to state. By trial amendment plaintiffs pleaded: That the note in the principal sum of $12,500 of date on or about February 15, 1916, made by J. P. Smith and W. D. Kynerd, and indorsed on the back thereof by H. W. Ferguson, payable to the order of the Security National Bank, described in the petition of plaintiffs, was never in fact paid or extinguished. That, at the time the said note was indorsed by the Security National Bank to H. W. Ferguson without recourse, it was distinctly and expressly understood that the note was to be again reindorsed by the said H. W. Ferguson to said Security National Bank, and that the said note was to he in all respects kept alive and an enforceable demand against the parties to the said note. That the said note in the entire transaction was kept alive, and was intended to be kept alive, for the benefit and protection of the rights of the Security National Bank, the payee, in said note. That the note executed by H. W. Ferguson payable to the order of the Security National Bank of date June 17, 1916, was not intended to extinguish the said note signed by Kynerd and Smith as makers, but both of said notes were kept alive for the full protection of the rights of the Security National Bank, the payee, in each of said notes, and it was never at any time intended that there should be a divestiture of title, or interference with the title of the said Security National Bank in the said note executed by Kynerd and Smith for the full protection of its rights under said original note which was never canceled or surrendered, but always held in the. custody of the said Security National Bank for its full protection against the makers and other parties thereto, and such was the distinct and explicit understanding of all the parties to the transaction, and no part of the said transaction would have been had except for the said agreement and understanding as to the whole, which said transaction as a whole was the real and true consideration passing between the parties, and prayed as in their amended petition.

In response to plaintiffs’ trial amendment,defendant W. D. Kynerd, the plaintiff in error here, pleaded a general demurrer, and specially excepted thereto “because the allegations thereof are contradictory of and repugnant to the allegations of the plaintiffs’ second amended original petition filed herein on January 11, 1917.” He also pleaded a general denial, etc. His demurrers were overruled, and a trial resulted in favor of the plaintiff Security National Bank against him and J. P. Smith for $14,571.12, and in favor of the plaintiff H. W. Ferguson for $460.40; no recovery being allowed Ferguson on the notes sued on. Plaintiff in error’s motion for a new trial was overruled, and he now has the case before this court on writ of error.

The first, second, and third assignments of error relate to and complain of the trial court’s action in overruling the plaintiff in error’s demurrers. The propositions under the first two of these assignments are to the same effect, namely, that the cause of action of the defendants in error Security National Bank and H. W. Ferguson, if any they had, was not on the note on which they sued, but was on an implied contract or promise of the makers of said note to reimburse the surety; under the third the proposition is that a trial amendment, the allegations whereof are contradictory of and repugnant to the allegations of the petition of which it is made a part, is vulnerable to exception. The counter propositions of the defendants in error are, in substance, first, that according to the allegations of their pleadings the note sued on was not paid and extinguished by the transactions alleged between the bank and Ferguson, but that the holder of said note was entitled to enforce its collection against the makers Smith and Kynerd; that said note was a secured note, the collateral to which could only be realized upon by keeping that note alive for that purpose, and enforcing the same according to its terms, and in this right either Ferguson or the bank would be protected in equity; that, if there had been error in overruling the general demurrer to plaintiff’s petition, this was cured by the filing of the trial amendment which amplified the statement of the original cause of action and pleaded fully and specifically the facts in relation to the real transaction between the bank and Ferguson; that, if there had been error in overruling the demurrers to plaintiffs’ petition and same had not been cured by plaintiffs’ trial amendment, same was rendered harmless by the final disposition of the case which denied any recovery to Ferguson on account of the note of Smith and Kynerd sued on; that the allegations of the trial amendment filed by plaintiffs were not inconsistent with the allegations of plaintiffs’ amended petition, and a good cause of action for a recovery on the note sued on was presented by plaintiffs.

We think the propositions asserted by the plaintiff in error are at least substantially correct. From the allegations of the petition it appears, as has been seen, that the note for $12,500 sued on was executed by Smith and Kynerd as makers, indorsed by H. W. Ferguson, and delivered to the Security National Bank, together with a vendor’s lien note for $16,000 as collateral security. As between Smith and Kynerd, Ferguson, as indorser, was secondarily liable on said $12,-500 note and stood in the position of surety. It further appears from the allegations of the petition ‘that, when said $12,500 note matured, Ferguson as indorser or surety thereon, for a valuable and adequate consideration, purchased it and the $16,000 collateral note from the Security National Bank, and thereby became the owner and holder of said notes. There is no allegation that, at the time or before Ferguson indorsed the $12,500 note and became liable thereon, it was understood and agreed between him and the makers and payee of the note, or either of them, that in the event he paid off and satisfied the note it was to be transferred or assigned to him as the owner thereof with all the rights of the original payee to sue and recover thereon. It was alleged that on .the same day - Ferguson purchased the note he obtained, from the payee thereof, the Security National Bank, a loan, and that to secure the. same he delivered the $12,500 note and the $16,000 collateral note to said hank; that the indebtedness due by Ferguson to the bank by reason of said loan was evidenced by his (Ferguson’s) note in the principal sum of $12,599, bearing interest at the rate of 8 per cent, per annum and providing for the payment of the usual attorneys’ fees, if placed in the hands of an attorney for collection. As has already been shown, the Security National Bank and H. W. Ferguson by their trial amendment pleaded, in substance, that the note of $12,500 sued" on was .never in fact paid or extinguished; tha-t at the time the said note was purchased by Ferguson and indorsed by the ■ bank to .him without recourse it was distinctly understood that the note was to be again reindorsed by said Ferguson to the bank and kept alive for the benefit and protection of the bank; that the note executed by H. W. Ferguson payable to the order of the Security National Bank of date June 17, 1916 (September 15, 1916), was not intended to extinguish the note signed by Smith and Kynerd, as makers, and indorsed by Ferguson, but that both of said notes were kept alive for the protection of the rights of said bank, and that it was never intended that there should be a divestiture of the title of'the said bank in the Smith and Kynerd note; that such was the distinct understanding of the parties, and no part of the transaction would have been had except for the said agreement as to the whole, and yet there is no effort in this suit on the part of the bank to recover against Ferguson as indorser of the note sued on, or otherwise. Our conclusion is that in the state of the pleadings the demurrers of the plaintiff in error should have been sustained.

In the very early case of Holliman v. Rogers, 6 Tex. 91, it was held that payment of a note by a surety extinguishes the note, and the surety has his remedy by suit upon the implied promise or assumpsit, and not by suit upon the note. Subsequent to. this decision, contrary rulings seem to have been made by the Supreme Court in several cases, notably Sublett v. McKinney, 19 Tex. 439; but in Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528, the Supreme Court expressly overruled Sublett v. McKinney and adhered to the holding in Holliman v. Rogers, supra. In Faires v. Cockerell will be found a review of the cases in conflict with Holliman v. Rogers and an interesting discussion of the rights and remedies of a co-obligor who pays more than his proportional'part, as well as those of a surety , who has paid the debt of the principal obligors. It is there distinctly announced that when two or more persons enter into a joint or joint and several obligation, by which they agree to pay a sum of money for another, the law implies a promise from each of such obligors to each of " the others that each will indemnify the other in case he pays more of the obligation than his proportional part, and that, if to such obligation there be one or more obligors, the law implies a promise from each of the principal obligors to the surety or to each of the sureties, if there be more than one, that they, the principal ob-ligors, and each of them, will indemnify any surety that pays any part of the obligation; that^ if there be more than one surety on such contract, the law likewise implies a promise from each surety to each other surety that, in case he shall discharge the obligation tp an extent greater than his share, they will each reimburse him to the extent of the liability of each of them upon said obligation. It is further announced in that case that the promises just stated are raised by the law at the time the contract is made and grow out of the relations of the parties to each other. The Supreme Court further announced that, from a careful examination of the authorities, the conclusion was reached that “when the creditor has no security from either of the payors, and the debt itself holds no lien upon property, nor is for any reason entitled to priority over other debts of the debtor, the payment of the debt by a co-ob-ligor or surety satisfies the original debt, and the party paying has his right of action against the others upon the implied promise raised by law for reimbursement according to their several liabilities,” and that “when the creditor in such a contract has a security from the principal obligor, ⅜ * ⅜ or if the debt itself constitutes a lien upon the property of the debtor, as a vendor’s lien, or if from its nature it be entitled to priority in payment of other debts of the debtor, the person paying the debt, not being a volunteer, will be subrogated to the securities, liens, and priorities of the creditor to the extent that he makes payment on the debt; and if it be necessary, from the character of the Hen or security, in order to do full justice between the parties, equity will treat the original debt as subsisting, "so far as may be necessary to accomplish that end.”

The defendants in error cite, among others, the case of Faires v. Cockerell, supra, in support of their proposition thai even had H. TV. Ferguson paid off in cash to the bank, since the note of Smith and Kynerd was a secured note, the collateral to which could only be realized upon by keeping the original note alive for that purpose and enforcing the same according to its terms, either Ferguson or the bank would be protected in equity in that right. If by their proposition it is intended to be asserted that if equity would treat the note of Smith and Kynerd indorsed by Ferguson, and which was secured by the collateral note of $16,-000,.as subsisting for the purpose of enabling Ferguson and the bank, or either of them, to make available such security it would keep it alive for the purpose of furnishing them a cause of action upon the note and upon which they might sue and recover according to its terms, the proposition is not, in our opinion, sound and is not supported by either of the cases cited. We do not understand that the Supreme Court holds, or intended to hold, in Faires v. Cockerell, that if the creditor, in a contract like the one involved in this suit, has a security from the principal obligor, the surety paying the note is not confined to his right of action upon the implied promise of the principal obligor to reimburse him, but in such ease may sue upon the note. It is clearly deducible, if not obvious, from the discussion of the court, that they did not intend to so hold. In Sublett v. McKinney, supra, it was held that the surety is entitled, upon payment of the debt of the principal, not only to have the full benefit of all the collateral securities which the creditor has taken as an additional pledge for his debt, but that he is entitled to be substituted for the creditor as to the very debt itself, and to have it assigned to him; but, ¡as we have hereinbefore stated, that case was expressly overruled by the case of Faires v. Cockerell, and the rule announced in Holliman v. Rogers, supra, adopted and followed.

In Faires v. Cockerell, it is'correctly held that the surety can recover from the principal debtor only the amount that he has paid, and therefore, if he has paid only half of the debt, he is only entitled to recover that much, and that he cannot recover that upon the note or contract without other proof, for he must show how much he has paid. Hence it is not true that he is subrogated in that case to the position of .the creditor who recovers upon the contract according to its terms without other proof. In the case referred to, he is not subrogated to all the rights of the payee, but only partially so, and the contract must be read as an obligation to pay one-half of its face, when the language expresses a promise to pay the whole sum. It is further said that, if the surety makes different payments on the debt, his right of action accrues upon each payment, and therefore the statute of limitation begins to run against the surety paying at the time of each payment; and illustrative of the error or impracticability of the doctrine that the surety is subrogated to all the rights of the payee, and his cause of action is upon the note signed by him as surety, it is pointed out that, if he has made different payments and his cause of action is upon the note, he has upon the same note as many periods of limitation as he has made payments, and that, if the surety makes payment of the whole debt the last day before the note would be barred by limitation, he would have four years from that date to sue upon the note; and it would run in' such case for eight years, instead of four, as prescribed by the statute. The error of the opinion that the surety is subrogated to the debt, says Mr. Story, in his work on Equity Jurisprudence (section 499c), which is approved in Faires v. Cock-erell, “seems to have arisen from confounding the right of the surety on payment of the debt to be substituted for the creditor, and to have an assignment of any independent collateral securities, with the supposed right to have the original debt assigned.” It is also remarked in Faires v. Cockerell that it has been held by our court and others that, where one is subrogated to the securities held by the creditor, he is not entitled to recover the rate of interest expressed in the judgment or note which is the evidence of the debt; and such holding furnishes additional reason for the conclusion that in no event is the surety, who pays his principal’s debt, subrogated to the the debt itself and all the rights of the principal to enforce the note or contract evidencing the debt according to its terms.

In the case of McCavick v. McBride, 189 S. W. 795, it was asserted that it appeared from the evidence in that case, without contradiction, that the appellee did not satisfy or extinguish tire debt, but, as is alleged in the present case, purchased the -note therein sued on from the bank and thereby became in law the owner of the note and entitled to all the rights and remedies against the appellant that the bank had when it acquired the note; but this court under the authority of the Faires Case, held that, by the payment of the original debt and the supposed acquisition of the note thereby as purchaser by the appellee McBride, the note was extinguished and McBride’s remedy was upon- the implied promise to reimburse him and not upon the note. In the case at bar, the security held by the payors of the note sued on was the $16,000 note delivered to them as collateral, and was a separate transaction complete within itself. Clearly it was not necessary, it occurs to us, from the character of such security, in order for Ferguson to make it available in enforcing the implied promise of Smith and Kynerd to reimburse him for the payment or purchase of the $12,500 note indorsed by him, that said note should be kept alive. When he paid off and discharged as surety the said $12,500 note, equity subrogat-ed him to the $16,000 note as collateral to the implied promise, and it was not essential, in order to do full justice between the parties, that the original debt be treated as subsisting. The fact therefore- of the existence of the $16,000 note does not operate to render inapplicable the principle announced in Faires v. Cockerell and McCavick v. McBride, supra.

Under the authorities we are constrained to hold that the right of action of Ferguson in this case, according to his pleadings, was upon the implied promise arising out of the relation of the parties, and not upon the note upon which he and his coplaintiff, the Security National Bank, 'sued. The trial amendment filed by the defendants in error does not, in our opinion, alter the case. The allegations of that amendment, to the effect that it was not intended to extinguish the note sued on, but that the intention was at the time of the alleged purchase of the note by Eerguson from the bank to keep it alive for the benefit and protection of the rights of the bank, etc., were ineffectual to show such intention and understanding. This is true for the reason that the allegations of the trial amendment of defendants in error were contradictory of and repugnant to the distinctly alleged fact in the amended petition, of which the said trial amendment was a part; ■that Ferguson did “for a valuable and adequate consideration purchase the note; that the bank indorsed it to him; and that he became the owner thereof.” Having, according to these allegations, purchased and paid off the note, the legal consequences resulting therefrom are that the note was extinguished, and no suit could thereafter be maintained upon it, and that the only remedy of Ferguson, the surety, or the bank, if it had any remedy at all against the makers of said note, was upon the implied promise. The allegations of the trial amendment were doubtless ineffectual to keep the note sued on alive and furnish the defendants in error a cause of action upon it, for the additional reason that the implied promise on the part of the principal obligors in the note to reimburse the surety in the event he paid the note was raised by the law at the time the contract of suretyship was made, and there is no allegation that this legal obligation, by an understanding of all the parties to the transaction at that time, was set aside or limited, and that, in the event Ferguson paid off the note or became the purchaser thereof, the note should be assigned to him with all the rights of the original payee to sue thereon and enforce it according to its terms. The allegations are, as we understand them, to the effect that it was the understanding and intention of H. W. Ferguson and the Security National Bank, at the time it is alleged that Ferguson purchased the note sued on, and that of Smith and Kynerd, the principal obligors, that the note should not be extinguished, but assigned to Ferguson as the owner thereof, and kept alive for the protection of the bank, etc. The status and legal rights of the parties, as we understand the law, were fixed at the time the note was executed and indorsed by H. W. Ferguson, and that no agreement or intention of Ferguson, the surety, and the bank, the payee, at the time surety purchased the note and paid it off, could change those rights or the legal consequences which would otherwise result from such purchase and payment. The consideration paid by Ferguson for the note in suit is not specifically alleged. The allegation is simply that—

“For a valuable and adequate consideration he (Ferguson) purchased from plaintiff Security National Bank the said original and renewal notes of $12,500,” etc.

The statement made by defendants in error in their brief, that “the petition of plaintiff shows upon its face that the only act done by H. W. Ferguson in connection with an adjustment of the note declared upon was ta execute his own note to the bank, which noti of Ferguson had not been paid and was past due at the time of the trial of the case in the court below,” does not seem to be borne out by the record before us. It is alleged, in effect, that on the same day Ferguson purchased the note sued on he secured a loan from the bank of $12,599, and executed his note therefor, and that he delivered the $12,-500 note made by Smith and Kynerd and indorsed by him, and which he purchased from the bank, together with the $16,000 collateral note, to the bank to secure the payment of his said note for $12,599 executed for the loan he had obtained; but nowhere is it expressly averred that the $12,599 note was executed and delivered to take up the note sued on. On the contrary, it is alleged that the $12,599 note was executed by Ferguson for the loan he had obtained from the bank. But if it is a warranted inference from the alleged practically contemporaneous transactions that the note of $12,599 mentioned was the consideration for the alleged purchase of the note sued on, or whatever may have been the consideration for the purchase by Ferguson of tbe note indorsed by him and sued on in this action, it is manifest from the pleadings that the bank was satisfied with it, and indorsed without recourse and delivered to Ferguson the $12,500 note. The allegations of the amended petition show that Ferguson for a valuable and adequate consideration purchased the note, and it appears from the trial amendment of the defendants in error that “said note was indorsed by the Security National Bank to H. W. Ferguson without recourse.” The allegations show that the bank was satisfied, and that the debt due it by Smith and Kynerd as principal obligors and Ferguson as surety was discharged. This being true, neither Ferguson nor the bank had any cause of action upon it. It seems that the implied promise of Smith and Kynerd to reimburse Ferguson for paying off the note is not the subject of assignment (Holliman v. Rogers, supra); but, if it is, there is no allegation of such assignment. The only theory upon which the bank sought to recover was that the note sued on had not been extinguished. So that if it should be conceded that Ferguson’s cause of action was subject to assignment, yet in this state of the pleadings, since we hold that the note was extinguished by the purchase and payment of Ferguson, it does not appear that the bank would have any right of recovery whatever upon the implied promise.

Thei substance of the fourth and last assignment of error is that the trial court erred in rendering judgment in favor of the plaintiff H. W. Ferguson for $406.40, because that court was without jurisdiction of said amount. Ferguson claimed, as we have shown, that when the $12,500 note indorsed by him matured he was compelled to pay the interest demanded in order to secure an extension, amounting to $167.50, and in addition thereto was compelled to pay on an installment of interest which had matured on the collateral note of $16,000, $269.40, to preserve that security, and prayed separately for judgment in his favor for the aggregate of these two amounts. Ferguson having no right of action on the note sued on, and the amount of the interest alleged to have been paid being less than $500, we think this assignment is well taken.

The note sued on having been paid off and extinguished, and the allegations of the trial amendment not alleging facts showing a cause of action in either of the defendants in error on the note sued on, but the facts alleged in said trial amendment being contradictory and repugnant to the allegations of the petition, of which it is made a part, the whole petition was obnoxious to the demurrers urged by plaintiff in error, and said demurrers should have been sustained. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; McCavick v. McBride, 189 S. W. 795; Rowe v. Horton, 65 Tex. 89; Barry v. Screwmen’s Ass’n, 67 Tex. 250, 3 S. W. 261; Steinback v. City of Galveston, 41 S. W. 823.

It follows from the conclusions reached that it is our duty to reverse the judgment of the district court, and as, in our opinion, the case should have been disposed of on plaintiff in error’s demurrers, with the right of defendants in error to amend, the ease will be remanded.

Judgment reversed, and cause remanded.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    RICHARDSON et al. v. HARLESS.
    (No. 6088.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1918.
    Rehearing Denied Dec. 11, 1918.)
    Arpead and Error @=>931(1) — Review — Judgment.
    In deference to the trial, court, the testimony of the successful party should be accepted as true by the appellate court.
    Error from Bexar County Court; John H. Clark, Judge.
    Action by Ben F. Harless against Mrs. J. D. Richardson and another, begun in justice court and appealed by defendants to the county court, and, from a judgment there for plaintiff, defendants bring error.
    Affirmed.
    Gordon Bullitt, of San Antonio, for plaintiffs in error.
    R. H. Ward, of San Antonio, for defendant in error.
   MOURSUND, J.

Defendant in error sued plaintiffs in error in justice’s court of Harris county, and upon the sustaining of a plea of privilege the cause was transferred to the justice’s court, precinct No. 1, of Bexar county. From a judgment in favor of plaintiffs in error, an appeal iwas taken by defendant in error, and judgment rendered in his favor in the county court. Defendant in error sued to recover a diamond ring or $115, its value, shipped by him to plaintiff in error Mrs. J. D. Richardson, plaintiffs in error’s answer, in so far as it is material to the assignments of error, was to the effect that Mrs. Richardson was not indebted to defendant in error in any amount; that the diamond ring was fully paid for by a chance purchase by her in a certain box sale, known and designated by defendant in error as the “Harless 2nd Diamond, Box Bale,” which was at that time carried on by defendant in error; that she paid the full amount of $5 demanded by defendant in error; that he accepted the same; and that the box containing the diamond ring was expressed to her in pursuance of said chance so purchased by her. They further alleged that said purchase and contract of purchase, and sale, was a lottery and chance agreement, and violated the statutory law of Texas, and that the contractual acts of defendant in error were therefore void.

Defendant in error replied to this pleading with a general denial.

The evidence discloses that in the Houston Post of June 5, 1914, defendant in error inserted an advertisement, of “Harless 2nd Diamond Box Sale,” stating in substance that boxes would contain articles that are regular $5 values, in addition to scores of other articles worth up to $395, many of which were enumerated. Mrs. Richardson, on June 5, 1914, sent defendant in error a money order for $5 for “one of Harless 2nd Diamond Box sale” Saturday June eth. She stated that he should send contents of diamond box by “sealed express,” and that, “You may return money order if your sales are not made by mail.” Defendant in error received this letter and expressed to Mrs. Richardson a diamond ring, writing her that he was shipping her the ring on approval, and that he would make her a special price on same of $115; that he thought it was as fine a stone as the one he sold her in San Antonio. He received no reply, and on June ,15th wrote her again. On June 16th, he sent her a draft for $5, and asked that the ring be returned by return mail. On the same day he talked to her over the telephone and asked her what she was going to do about the ring. She said that she did not know whether she would return it or pay for it; that her husband was going to Galveston in a few days and would come by and see about it. The draft was returned in a letter by Mrs. Richardson. On June 24th, defendant in error wrote Mr. Richardson, asking for the ring or the money, and stating that he had ¡nade the price very plain when he shipped the ring. Finally, Mrs. Richardson told him she intended to keep the ring; that she had paid for it. Defendant in error testified the box sale was declared off, after the chief of police had notified him it would constitute a violation of law, and that he did not ship the ring to Mrs. Richardson in pursuance of the advertisement, but shipped it on approval. Mrs. Richardson testified she did not receive the letter of June 6th, but received those dated June 15th and 16th.

Plaintiffs in error contend: (1) That the evidence conclusively shows a completed contract of sale to Mrs. Richardson of the ring for $5; (2) that the ring was sent pursuant to a “lottery or chance” transaction, in violation of law, and that he cannot take advantage of his violation of the law, and there* fore is not entitled to recover.

Taking defendant in error’s testimony to be true, which must be done in deference to the judgment of the trial court, it appears that he did not accept the $5 in payment of a box in the lottery, if it was a lottery; that in fact the box sale scheme had been abandoned. Even if her letter be considered as an acceptance of his advertised offer, and as making, a contract for a box in the sale, the fact that he failed to comply with such contract would not authorize a judgment depriving him of property he offered to sell her at a certain price. If the scheme was unlawful, as contended by plaintiffs in error, they would be unable to enforce the compliance of defendant in error with his offer to send a box. The minds of the parties never met on a contract by which defendant in error was to sell Mrs. Richardson the diamond ring in question for $5. The ring was sent to her on approval at a price of $115, which is not strange in view of statements in her letter concerning a former purchase of a diamond ring from him. She declined to pay the price, but refused to return the ring. Defendant in error did not send the ring pursuant to any sale conducted on the lottery plan, nor does he rely upon any such sale to recover. It therefore appears there is no merit in either of the contentions made by plaintiffs in error.

Judgment affirmed.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BRADX, J.

text:
    THOMAS et al. v. DERRICK.
    (No. 5972.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 27, 1918.)
    1. Appeal and Ebrob ⅞=»555 — Matters Reviewable — Objection.
    . Where the record shows that appellants objected to the court’s charge, and the authentication of the judge shows that these objections were presented and overruled, and that appellants excepted to the action of the court before the charge was read to the jury, an assignment is sufficient, although the formal bill of exceptions was stricken out by order of this court.
    2. Appeal and Ebrob <S=»742(1) — Matters Reviewable — Assignments op Eeeoe — Pboposition.
    A statement under a proposition, which is confined to a statement of the pleadings and the issues sought to be raised, and does not undertake to set out the substance of the evidence bearing on the proposition, is insufficient.
    3. Bills and Notes @=»537(1) — Extension-Evidence.
    Telephoning to holder of note regarding extension, and failure of holder to keep promise then made to meet maker, did not even raise a question for the jury on the issue as to whether there was agreement for extension.
    4. Tendee <®=>7 — Action on Note.
    A tender by the maker to the payee of a note does not constitute a tender as to the holder of the note, where the maker knows that the payee no longer has any authority in the matter.
    5. Appeal and Eeroe <⅜=>555 — Matters Reviewable — * ‘Exception’ ’ — Sufficiency.
    Where the formal exception was stricken out, and the transcript only showed that a charge was presented to the court and refused, and that defendant excepted, as shown by the indorsement of the judge on the special charge, the notation and authentication are insufficient to constitute an “exception” under the statute.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Exception.]
    Appeal from District Court, ■ McLennan County; Geo. N. Denton, Judge.
    Action by B. H. Derrick against Webb Thomas and others. Judgment for plaintiff, and defendants Thomas and Friedsam appeal.
    Affirmed.
    G. W. Barcus and Alva Bryan, both of Waco, for appellants.
    W. L. Eason, of Waco, for appellee.
   BRADX, J.

Appellee, B. H. Derrick, instituted this suit against appellants, Webb Thomas and I. W. Friedsam, and one T. O. Westbrook, alleging that by general warranty deed, dated February 11, 1915, John F. Rowe conveyed to Westbrook a certain tract of land in McLennan county, Tex., and that as a part of the consideration for the said conveyance Westbrook executed to Rowe ■ six negotiable promissory notes of same date as the deed, and due on or before November 1, 1916, 1917, 1918, 1919, 1920, and 1921, respectively. The notes bore - interest from date at the rate of 8 per cent, per annum, and provided for 10 per cent, attorney’s fees; also containing a clause that the failure to pay any one of said notes,' or any installment of interest, should, at the election of the holder, mature all of the notes. The first three notes were for $200 each, the fourth and fifth for $250 each, and the sixth for $240. The vendor’s lien was retained in the deed and in the notes to secure the payment of same.

The petition alleged that prior to November 1, 1916, the maturity date of the first note, John F. Rowe, the payee, sold, indorsed, and delivered all of said notes to the plaintiff, Derrick, who at the date of the filing of the petition was the owner and holder of the notes and lien securing same. The petition further alleged that in March, 1915, Westbrook and wife conveyed the land to Friedsam and Thomas, who assumed payment of the notes and agreed to pay the same. Plaintiff further alleged that, at the maturity of the first note, defendants having failed and refused to pay the same, he exercised the option to mature all of the notes, and demanded payment. It was alleged that the notes were placed in the hands of an attorney, W. L. Eason, for collection, and that plaintiff was entitled to recover the attorney’s fees specified.

Westbrook made no defense, but Friedsam and Thomas pleaded a general denial, and also that John F. Rowe was the owner and holder of the notes in suit, and that he had extended the time of payment of the first note; that before the expiration of the extension period said defendants tendered to Rowe the amount due on the first note, together with interest. Said defendants claimed that thereby plaintiff was not entitled to declare all of the notes due; that no attorney’s fees had accrued, and no interest after the alleged tender; and they asked for judgment over against Rowe, in event they should be held liable to plaintiff. No service was had on Rowe, and he was dismissed from the suit.

The court instructed the jury to return a verdict for plaintiff against all of the defendants for the amount due on all of the notes, with interest and attorney’s fees, and for foreclosure of the vendor’s lien, and verdict and judgment were rendered accordingly. Upon motion of the appellee, filed in this court, to strike out all of appellants’ bills -of exception and all assignments of error, this court ■ sustained so much of the motion as related to the bills of exception, and ordered stricken from the record all the bills, but overruled the motion as to the assignments! of error.

Appellants’ first assignment of error com-, plains of the court’s action in peremptorily instructing the jury to return a verdict for plaintiff, because defendants had pleaded an extension agreement with Rowe, who, it is claimed in said assignment, was admittedly the agent of appellee, Derrick, and also because it was pleaded that appellants had made a tender to Rowe of the amount of the first note prior to the institution of the suit, or the placing of the notes in the hands of an attorney for collection. The assignment contends that the testimony made these defenses issues of fact, which appellants were entitled to have the jury pass upon, and that it was error to take these issues from the jury by the peremptory instruction.

Appellee objects to the consideration of this assignment of error, because the specific objections to the court’s charge were embodied in a formal bill of exception, which bill was stricken out by the order of this court heretofore referred to. Appellee further objects to the consideration of said assignment because of the alleged insufficiency of the statement under appellants’ first proposition.

An inspection of the record shows that appellants objected to the court’s charge in peremptorily instructing a verdict for plaintiff, substantially as set forth in said assignment, and the authentication of the judge shows that these objections were presented and overruled, and that appellants excepted to the action of the court before the charge was read to the jury. We consider this a substantial compliance with the statute, and that the assignment is sufficient, independently of the formal bill of exception, which was taken, but stricken out by order bf this court. Under the authority of Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184, we hold that no formal bill bf 'exception' was necessary, and that the exception above 'indicated was sufficient to entitle the objections to.be considered on appeal. Therefore the appel-lee’s first objection to said assignment is overruled.

As to the second objection to this assignment, the statement under appellants’ first proposition is doubtless deficient, in that it seems to be confined to a statement of the pleadings of defendants and the issues sought to be raised, and apparently does not undertake to set out the substance of the evidence bearing on the proposition. However, the statement of facts is not at all voluminous, and, in view of .the disposition we shall make of this case, we have decided to overrule the second objection also, and to consider the assignment.

If it should- appear from the record in this case that the pleadings and evidence show a. valid extension agreement between appellants and appellee, and that before the expiration of the extension period appellants made a legal and sufficient tender to appel-lee of the amount due upon the first note in controversy, or if an issue of fact was raised by the evidence upon these defenses, it is obvious that the trial court erred in taking the case away from the jury and in peremptorily instructing for the plaintiff. Hence it becomes material to consider what issues were made by the pleadings, and what were the facts proven upon the trial.

Eirst, it should be stated that the claimed agency of John P. Rowe in making the alleged extension agreement was not an issue in the case, because appellants did not plead that Rowe made an extension agreement as agent for the appellee, Derrick; but their answer alleged that the agreement was made with Rowe alone, and that Rowe was himself the owner and holder of the notes at the time of the alleged agreement and tender.

Upon the trial, appellee, B. H. Derrick, testified that he never at any time agreed to an extension of any of the notes in controversy; that he never even promised to meet Mr. Thomas and to discuss the question of extension with him. In this he is supported by the testimony of John E. Rowe. Mr. Derrick further testified that he acquired and became the owner of all the notes early in 1916, not later than March, and this testimony is undisputed. He further testified, without contradiction, that the notes were turned over by him to Mr. W. L. Eason, an attorney, for collection, on November 7, 1916, and it is also an undisputed fact that he had agreed' to pay Mr. Eason the attorney’s fees provided in the notes. Mr. Derrick further testified that Mr. Rowe did not inform him that he had made any agreement with .Mr. Thomas to extend the notes or interest for a few days, and he denied that a tender of any part of the notes was ever made to him by Thomas.

The evidence shows that a notice was sent to appellant Priedsam by the Central Texas Exchange National Bank, dated October 31, 1916, notifying him that the first note would be due November 1, 1916, and requesting attention. Appellant Thomas admitted that he had knowledge of this notice prior to the time that he claimed to have had the alleged extension agreement with Mr. Rowe.

It was also an undisputed fact that on November 8, 1916, W. D. Eason, attorney for appellee, notified appellants, and also T. O. Westbrook, by letter that he held for collection, for account of B. P. Derrick, the owner, the notes in controversy, and also notified them that Mr. Derrick had exercised the option of declaring all the notes due, because of nonpayment of the first.

John P. Rowe testified to the visit of Mr. Thomas to his office on November 8, 1916, and to the request of Mr. Thomas to talk to Mr. Derrick; but he denied that Mr. Derrick had agreed to come to his (Rowe’s) office to discuss the matter. He further testified that Mr. Thomas on one occasion did speak to him about trying to get him to carry the note for him for about 10 days, but that he informed Mr. Thomas that the notes belonged to Mr. Derrick and that he had no rights in the matter at all.

The testimony of both Derrick and Rowe wholly fails to show any agreement to extend the notes, or any of them, and is insufficient to even raise an issue upon that question. The testimony of Mr. Rowe shows that appellant Thomas, after he left the office of Rowe on November 8th, undertook to tender Rowe some money, presumably the amount of the first note, which he refused to receive, assigning as his reason, that it looked like Thomas wished to put him in the attitude of settling the difference between himself and Derrick.

Appellant Thomas testified as ’ a witness in his own behalf. He stated that prior to November 1, 1916, he had received no notification with reference to the notes, but that on November 6th he called on Mr. Rowe, who refused to accept the interest, and wanted him to take it up with Mr. Derrick; that he called at the bank to pay the notes on November 7th, but that that day was a holiday, and he could not get into the bank; that the following day he was informed by the bank that Mr. Rowe had the notes, and he went to see Rowe about them; that this was the occasion when he had the conversation over the telephone with Mr. Derrick, and when he claimed that Derrick promised to come down to Rowe’s office to see him. He admitted that while he was in Mr. Rowe’s office on November 8th, waiting for Mr. Derrick, he knew that the notes were in Mr. Eason’s hands for collection, and that Mr. Eason’s office adjoined Mr. Rowe’s office, but that he never went to Mr. Eason’s office to see about the notes, nor did he make any attempt to tender the amount of any of the notes to Mr. Eason; that about November 14th or 15th he received the letter of Mr. Eason, demanding payment and advising that all the notes had been'declared due, but that he did not thereafter communicate with said attorney. He testified that he offered to pay Mr. Derrick over the telephone from Mr. Rowe’s office, and that Mr. Derrick promised to come down, but that he never came.

These are the only witnesses who testified at the trial, and the above are substantially all the facts bearing upon the issues. We have carefully examined the statement of facts, and especially the testimony of appellant Thomas, and we do not find that he ever testified to any extension agreement made with appellee, Derrick; and he testified to no facts which would, in our opinion, raise that issue. Neither do the facts show any agreement to extend the notes made with the payee and former holder of the notes, John F. Rowe; nor are there any facts or circumstances in the record tending to make that an issue of fact for the jury.

As to the alleged tender, it does appear that appellant Thomas tendered the amount due on the first note, with interest, to John IP. Rowe, on November 8, 1916, but at that time Rowe was no longer interested in the notes; they were the property of appellee Derrick and had been placed with his attorney, W. L. Eason, for collection, which fact was known to said appellant.

From the foregoing facts, we conclude that there was no evidence on the trial sufficient to raise an issue of fact to go to the jury, upon either the issue of an agreement to extend the notes or the tender of payment to appellee. Those being the only issues really raised by the pleadings, we are of the opinion that the court properly instructed the jury to find for the plaintiff. The first assignment of error is, therefore, overruled.

The second assignment of error complains of the action of the trial court in failing and refusing to give to the jury appellants’ special charge No. 1, which attempted to present the alleged defenses of an extension agreement and tender of payment. Appellants’ bill of exception complaining of the court’s action in refusing such charge has been stricken out by this court, and the assignment is not supported by any proper bill of exception. The transcript, however, does show that this charge was presented to the court and refused; and the defendant excepted as shown by the indorsement of the judge on the special charge. We do not think the notation and authentication of the judge sufficient to constitute an exception to his action .under the statute, and the assignment should not be considered. However, we are of the opinion that the evidence did not raise the issue sought to be submitted in the said special charge requested and refused, for the reasons indicated above in disposing of the first assignment of error; and if the assignment should be considered, we think it without merit, and it is therefore overruled.

Appellants’ third assignment of error complains of the trial court’s action in failing and refusing to submit to the jury special charge No. 2, requested by appellants. This assignment is in the same situation as the 'second assignment of error with reference to the bill of exception, and also as to the absence of any evidence whatever to raise the issues sought to be submitted in said special charge. Therefore this assignment is also overruled.

The fourth, fifth, sixth, and seventh assignments of error all complain of the action of the trial court in failing and refusing to prepare and deliver a written charge to the jury, and in giving a peremptory instruction for plaintiff, because it is claimed therein that there were issues of fact made by the evidence under the defenses pleaded by appellants, which were proper to be passed upon by the jury.

In view of the disposition we have made of the first assignment of error, we believe there is no merit in any of the last four assignments. They are controlled by the same rule, and, having concluded that there was no evidence sustaining or raising an issue of fact under any of the defenses pleaded by appellants, the conclusion is compelled that the trial court properly instructed a verdict for plaintiff, and therefore the fourth, fifth, sixth, and seventh assignments of error are also overruled.

Finding no reversible error in the record, the judgment is affirmed.

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


author: GRAVES, J.

text:
    DOLEN et al. v. LOBIT et al.
    (No. 7617.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 23, 1918.
    Rehearing Denied Dec. 19, 1918.)
    1. Adverse Possession <&wkey;115(5) — Relation or Landlord and Tenant — Question for Jurt.
    In trespass to try title, where defendant claimed title by adverse possession, whether defendant was a tenant of plaintiff held for the jury.
    2. Landlord and Tenant &wkey;>7 — Basis or Relation — Nature oe Contract.
    The relation of landlord and tenant rests at last upon a contract, and, while it need not be express, there must exist such facts as to the acts, conduct, and intention of the parties as will properly give rise to one by implication.
    3. Landlord and Tenant <&wkey;66(3) — Advebse Possession bt Tenant.
    Assuming that defendant, an employé of a partnership using land of plaintiff with his consent without payment of rent, was a tenant of the plaintiff, such relation was ended by dissolution of the partnership and abandonment of the land, although the employé was given fences remaining after a prairie fire, where the land was open to the public and unfenced for two years before defendant re-entered and fenced it. Pleasants, C. J., dissenting in part.
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Trespass to try title by L. Lobit and others against I. S. Dolen and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Campbell, Myer, Myer & Freeman, of Houston, for appellants.

      Maco & Minor Stewart and R. W. Ilouk, all of Houston, and Albert J. De Lange, of Galveston, for appellees.
   GRAVES, J.

Appellees sued appellants in the court below in trespass to try title to recover 597.85 acres of land In the J. W. Moody survey in Harris county, Tex. Among other pleas, the latter set up their claim to the land under the statute of ten years’ limitation.

At the close of the evidence, upon motion of appellees, the court peremptorily instructed a verdict in their favor, upon which judgment was duly entered, and appellants present this appeal.

A number of assignments of error are urged, differing in form and manner of statement, but all directed against the court’s action in giving the peremptory instruction. The main contention is that the question of whether or not appellants’ possession and occupancy of the land was as tenants of appel-lees, or of those who held under appellees was one of fact for the jury to determine under all of the evidence, and should not have been taken from them by the court. This contention, we think is easily correct, without giving to the evidence what seems to us to be its full force. As we read the statement of facts, it was well-nigh if not indeed conclusively established that no such tenancy existed, and that the independent and adverse possession of the land by the Dolens began early in 1898 and continued uninterruptedly down until the time of the trial; but this court is not asked to render judgment in favor of appellants, their sole complaint being that the court below erred in taking the case from the jury. Accordingly, we merely sustain so much of the various assignments as presents that error, and reverse and remand the cause for another trial.

The issue of tenancy referred to arose out of the following transactions between and among the various persons interested:

In 1SS9 or 1890, J. C. Hutcheson and I. R. Baker began the conduct of a partnership cattle business near Cypress in Harris county, keeping their cattle ,and horses in pastures known, respectively, as the H. R. pasture, the Big pasture, the Kelley Hill pasture, and the Pony pasture; the last named being used exclusively for cow ponies. From 1891 or 1892 to about June, 1895, appellant I. S. Dolen worked for the firm of .Hutcheson & Baker as their ranch foreman, looking after and earing for their stock in these different pastures; they furnishing him while engaged in their services the Rock Roberts house to live in. In 1890, the 597.85 acres in controversy, together with other lands, was inclosed by Hutcheson & Baker in what was thus known as the Pony pasture, under consent to them that it might be so inclosed from M. Levy and J. Lobit, predecessors of appellees in title thereto; no rent being paid them for the privilege.

Hutcheson & Baker sold all their partnership cattle in 1894, delivered them in the spring of 1895, and immediately dissolved their partnership; both members going out of the cattle business. A few cow ponies may have been left over; but, after thus selling their stock, the firm had but a single transaction, which was to fatten some beeves, closing that out in March, 1896. The firm did not use the Pony pasture, in whicn was included the land in controversy, after the delivery of their stock in the spring of 1895, and soon thereafter a prairie fire almost completely destroyed its east string of fence and seriously damaged the west string. I. S. Dolen ceased working for the firm of Hutcheson & Baker in June, 1895, and Baker died in June, 1896, just before his death giving Dolen his interest in such wire and posts as this fire had left in the east string of the Pony pasture fence. J. O. Hutcheson, the other member of the firm, subsequently gave Dolen his interest also in the remnants of wire and posts left in this fence after the fire. Neither Hutcheson nor Baker knew what use Dolen intended to make of these remnants of posts and wire, neither gave him consent to take or use any part of the Moody land, neither knew that he had any intention of fencing or using any of it, and, according to the testimony of Dolen, it lay out on the commons, unfenced, and used by the public generally for over two years subsequent to the fire following their discontinuance of its use; but early in 1898 I. S. Dolen, having in the meantime bought 87½ acres in the Roberts survey to the south, and 175 acres in the Gary and Barrow surveys to the east and .south of the Pony pasture as constructed and maintained by Hufcheson & Baker, built a substantial three-strand barbed wire fence so as to inclose within it the 597.85 acres in controversy and the 87½ and 175 acre tracts thus purchased by him. While in doing this he used such posts and wire of the old Hutcheson & Baker fence around their Pony pasture as were fit for the purpose and substantially followed its lines along the north and part of the east sides, he extended its south and east strings in order to include the three additional tracts he had purchased, and drew in its west string to the line between the Merritt and the Moody surveys,' thus comprising within what was thereafter generally known in that community as “Do-len’s pasture,” in all 860.35 acres, as against 597.85 acres of the Bloody only as -used by Hutcheson & Baker.

Dolen testified, and in all essential features he was corroborated by other witnesses, that from and after the fixing up of this new fence by himself, though never having known who owned it, he intended to and did claim the Moody 597.85 acres openly and notoriously against the world; that he continuously kept, used, and occupied it for the operation of his dairy business until the date of this trial, at all times maintaining his fences and gates up and closed, and keeping his stock within and other people’s stock out of it, having actually lived on the adjoining Gary 160 acres since 1900; that Hutcheson & Baker not only had nothing whatever to do with his so taking possession of and occupying the Moody land, by any agreement with him, or otherwise, but neither of them knew of it.

There are distributed through the statement of facts some circumstances, which, taken and considered apart from their relation to the body of the testimony as a whole, may to some extent tend to impeach the accuracy and the continuity of the above recitation of conditions attending and surrounding Dolen’s possession and use of the land in suit, and upon these the appellees lay much stress in their brief; but we think by no indulgence toward them, nor favorable allowance for them, do they conclusively establish that Dolen’s possession of the land was a lawful one, begun under Hutcheson & Baker and continued without substantial change by himself, and was not adverse, as is contended in support of the trial court’s judgment. Upon the contrary, as suggested at the outset, were that contention here made, this court would be inclined to hold that the record discloses the exact reverse; to say the least of it, the issue was one of fact for the jury.

The relation of landlord and tenant rests at last upon a contract, and, while it need not be express, there must exist such facts as to the acts, conduct, and intention of the parties as will properly give rise to one by implication. Ruling Case Law, vol. 16, p. 541; 1 Woods on Landlord and Tenant, § 1; 24 Cyc. pp. 876, 877, and 882.

If the testimony we have summarized from the evidence could be said to raise an issue of tenancy of Dolen under Hutcheson & Baker at all — since he was merely their hired ranch foreman, looking after the cow ponies they kept upon a tract of land he, during their tenure, neither lived upon, knew who were the owners of, nor in any manner exercised any dominion over other than keeping up the fences — such relation could not have survived the dissolution of their partnership, their consequent abandonment of the use of the land in 1895, and its having lain out on the commons, unfenced, and used by the public generally from that date until Dolen refenced it early in 1898, because any relationship of tenancy, which may have existed between Hutcheson & Baker and the owners of the land ended with the former’s abandonment of its use.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

PLEASANTS, O. J.,

dissenting in part.

See 207 S. W. 964.
      <&^>For other cases see same topic and KEY-NITMBER in all Key-Numbered Digests and Indexes


text:
    SUMMIT PLACE CO. v. TERRELL.
    (No. 5978.)
    (Court of Civil Appeals of Texas. San Antonio.
    July 1, 1918.
    On Motion for Rehearing, Nov. 6, 1918.)
    1. Appeal and Error @=524 — Map Not Attached to Finding — Consideration.
    Although record fails to show that map was attached to findings of fact, where there is a complete map among papers which were attached to statement of facts, and both parties rely on such map, it will be considered by court ■ on appeal, there being no dispute concerning fact that it is a part of statement of facts.
    2. Exchange oar Property @=3(1) — False Representations — Evidence.
    Where plaintiff received title to a lot 114 feet wide, representation of defendant witl whom he exchanged property, that lot had ll-l feet front, would be literally true, although the 114 feet included 16 feet taken up by sidewalk and private parking, and judgment for plaintiff cannot be sustained on the ground that fraud was perpetrated by means of such representation.
    3. Exchange of Property @=’4 — Contract-Construction.
    Where plaintiff exchanged property with defendant for lot represented by defendant to be 114 feet wide, but which plaintiff alleged was only 98 feet wide, held that deed, when construed as a whole, vested in plaintiff the fee to sidewalk space and title to private parking, so that lot was 114 feet wide as represented.
    4. Dedication @=48 — Sale op Lot — Rights op Grantee.
    Previous dedication of sidewalk, by map duly recorded, and by reference made a part of deed, precludes grantee from using sidewalk space for building purposes.
    5. Deeds @=111 — Instruction—Conflicting Clauses.
    If deed contains conflicting clauses, which cannot be reconciled, the clause wi(l be retained which gives the greatest estate, and the clause in conflict therewith rejected.
    6. Deeds @=90 — Ambiguity—Construction in Favor op Grantee.
    Any ambiguity must be resolved in favor of the grantee.
    7. Boundaries @=20(1) — Streets—Abutting Owners.
    The owner of a lot abutting on a street acquires the fee to the middle of the Street. .

      On Motion for Rehearing.
    S. Dedication .<&wkey;18(l) — Streets.
    Deed expressly stating that all streets and alleys are dedicated to the public generally, and especially to the city, that red lines on map indicate public sidewalks, four feet wide, and that green shadings indicate private parking between the sidewalk and curbing, would constitute a dedication to the public of an easement in sidewalk space, but not in strip designated private parking.
    9. Dedication <&wkey;19(4) — Filing Map — Effect.
    If intention of maker of map was to include sidewalk space and private parking space as portions of corner lots, such intention was adopted by the owner when it recorded the map.
    Error from District Court, Bexar County; W. F. Ezell, Judge.
    Supplemental motion for rehearing by plaintiff and motion for rehearing by defendant.
    Defendant’s motion overruled, and plaintiff’s motion granted and judgment reversed. For former opinion, see 203 S. W. 1110.
    MeAskill, Simmang & Mauermann and Leonard Brown, all of San Antonio, for plaintiff in error.
    John W. Turner and Barrett & Barrett, all of San Antonio, for defendant in error.
   MOURSUND, J.

While the court recited in his findings of fact that a copy of a portion of the map of Summit Place addition, and of the instrument dedicating streets in said addition, is attached to the findings of fact, the record fails to show that this was done; but there is a complete map of said addition among the papers which had been attached to the statement of facts and became detached in some way. This map is relied upon in the briefs of both parties, and, there being no dispute concerning the fact that it is a part of the statement of facts, we conclude that we erred in refusing to consider it when We originally decided this case (203 S. W. 1110).

The only representation pleaded and relied upon is that plaintiff in error represented lot 6, block 7, in Summit Place addition, as containing 114 feet front on Queens-borough Court. Plaintiff in error contends that the lot in question does in fact contain 114 feet, and therefore the representation made by Roos was in fact true. In his brief defendant in error says:

“Just how it can be contended that defendant in error got 114 feet is something more than we can conjecture; but, if he did, this case should be reversed and rendered.”

The question, therefore, is, did defendant in error by his deed obtain title to a lot containing 114 feet? The deed describes the lot as lot No. 6, block 7, as shown by the map of Summit Place. There is no statement as to the size of the lot. The map shows that the lot lies west of Howard street, and fronts on Queensborough Court. The black line between lots 5 and 6 is marked “154.17,” and the line at the rear of the lot is marked “114.0.” These are the only figures appearing with reference to such lot. There is a green shaded line along the front and the side on Howard street, and at the corner red lines cross each other just inside the green shading, and run out to the street. The map has indorsed on it a duly acknowledged dedication of streets and alleys in Summit Place, executed by the Summit Place Company, through its president, J. O. Terrell, and attested by defendant in error, who at that time was secretary of the company. That instrument contains the following statement :

“The red lines on map indicate public sidewalks 4 feet wide, and the green shadings indicate private parking between the public sidewalk and the curbing along the streets.”

The right was reserved therein by the company for three years to construct such sidewalks and curbings as it might desire. The deed contains the following provision;

“That such residence shall be as much as two stories in height, and cost and be fairly worth not less than ten' thousand dollars ($8,000.00), and no part thereof, except the steps descending from the gallery or building, shall be located nearer than fifty (50) feet from the curb line on the front of said premises, nor nearer than ten (10) feet from the side lines of said premises, and shall face the front line of said premises, to wit, on Queensborough Court; that no outbuildings or private stables, or any part thereof, shall be erected, placed, or permitted on said premises at a distance of more than fifty (50) feet from the rear line of said premises, and not less than forty feet from any side street; that no fences or copings whatsoever more than three (3) feet in height shall be erected, placed, or permitted upon said premises at a distance nearer than seventy-five (75) feet from the front line of said premises, and not nearer than forty feet from any side street, and no fence or coping shall be erected on any lot outside of the proposed sidewalks as shown by the recorded plat of said addition, and provided, further, that the four-foot strip designated on the map of said addition as a sidewalk is dedicated to the public for such purposes, and the Summit Place Company reserves the right to build a sidewalk along said strip as provided in said map.”

Defendant in error admitted that, if the sidewalk and priv'ate parking be included as a part of the lot, it contains 114 feet. It is contended that the map shows that measurements were to be made from the sidewalk. This contention is based on the fact that the lot across Queensborough Court from lot 6 has its back line marked “114,” and the green space marked in small figures “12,” such marls being near the front of the lot. From this Is deduced the theory that the 114 does not include the 12; but upon what can such theory rest? The “114” is written much larger than the “12,” and it is just as plausible that it relates to the entire line upon which it is placed as that it was only intended to marls part of it, and that the “12” was placed for the purpose of showing how much of the 114 was talsen up by private parking. The width of the sidewalk is not delineated on the map, nor is the space reserved therefor marked at the rear end' of the lot; and therefore the figures 114, even aiecording 'Jto defendant in error’s theory, would include the sidewalls, for the line is unbroken until it intersects the green shading. If the figures along the lines exclude the green shading, then the figures indicating the depth of the various lots also are arrived at by measuring only to the private parking. Attention is also called to the fact that the figures “114.0” appear inside of the lot; but as every figure relating to the lots appears inside of them, and none on the outside, no theory can be deduced that-such figures were intended to only mark the distance to sidewalks or private parking. When the map, which is fairly accurately drawn, is considered carefully, and distances represented by the lines of the various lots are compared, it is found that lot 6 and the lot opposite it, which has the same front, must run to the curb in order to get the distance of 114 feet. This is easily ascertainable by comparing the front lines of the 100 feet inside lots and lot 3, block 1, which has a front of 98 feet, with the lines on said lot 6 and the lot opposite it, measuring such lines west from the red sidewalk line instead of the curb. Of course, if lot 6 extends only to the sidewalk, the other corner lots also extend to the sidewalk. If defendant in error’s theory that measurements are to be made from the sidewalk be taken as correct, we are confronted with the fact that corner lots, whose rear lines are marked 100 feet, are mapped on a different scale from the inside lots, whose rear line is also marked 100 feet, and, furthermore, that said lot 6, conveyed to defendant in error by plaintiff in error, is mapped on a different scale from the other lots in the same block. While there are a few inaccuracies in the map, when it is taken as a whole a comparison of lines shows that the comer lot distances must be taken from the curb in order to credit the drawer of the map with using the same scale in mapping the entire addition.

Defendant in error seeks to deduce from one of the restrictions in the deed an intent to make the sidewalk the boundary of lot No. 6. The provision is to the effect that no building shall be placed nearer than 10 feet from the side lines. If the side line of No. 6 was the curb line, the building could be placed on ground designated for sidewalk; therefore it is contended that by side line was meant the line of the sidewalk, and that lot 6 would be bounded by the sidewalk. We do not believe this provision could be given the effect of limiting lot 6 to 98 feet, and thus reserving to the grantor the fee in the space for sidewalk and private parking. There is nothing in the deed showing a separate conveyance of such parcels. They are either conveyed as part of lot 6 or not at all. The lot conveyed is referred to in all of the building restrictions as the “premises,” and the “curb line on the front of said premises” is mentioned, and it is provided that no fence or coping shall be erected on any lot outside of the proposed sidewalks, as shown by the recorded plat of said addition. These recitals indicate clearly that the premises conveyed, namely, lot 6, block 7, extends to the curb. It is true that if the “side lines” of said premises, as used by the drawer of the deed, be assumed to be the curb lines, a building could be placed so as to extend two feet over the sidewalk. An intention to permit that to be done would be in direct conflict with the intent expressed, to reserve for the benefit of the public as a sidewalk the space designated for that purpose, and, as the grantor would naturally not undertake to grant any rights of which it had previously divested itself, it is reasonable that the real intent was to require the building to be erected not less than 10 feet from the sidewalk line, as to corner lots.

The previous dedication, duly recorded, of the sidewalk space made part of the map, and therefore, by reference, a part of the deed, precludes the grantee from using the sidewalk space for building purposes.

If the deed be viewed as having conflicting clauses, which cannot be reconciled, the clause will be retained which gives the greatest estate, and the clause in conflict therewith will be rejected. The deed, as a whole, would be construed to vest in the grantee the fee to the sidewalk space and the title to the private parking, with the restriction’that he is not permitted to place any fences thereon.

Any ambiguity must be resolved in favor of the grantee, and, when the deed is considered as a whole, it is apparent that the lot conveyed includes the sidewalk space and the private parking space. If this was a suit involving title to said strips of land, the grantor could not maintain a contention that the same were not parts of the lot conveyed by it. The deed shows by several recitals that such strips are part of the premises conveyed, and it cannot be contended that such rights as the grantee has therein passed to him by reason of his purchase of property abutting thereon.

The owner of a lot abutting on a street acquires the fee to the middle of the street; but it is hardly probable that the owner of a lot, if specifically limited to the sidewalk as .Ms line,' would own the fee in the land used for sidewalk, and that designated merely as “private parking,” and then- the fee to the middle of the street. We conclude that the court erred in holding that lot 6 has a frontage on Queensborough Court of only 98 feet. The representation alleged to have been made by appellant is literally true. It follows that no judgment can be sustained on the ground that fraud was perpetrated by means of such representation.

Tire conclusion announced by us is derived, as a matter of law, from the deed and the map made part thereof. If such instruments left the intent vague as to what was conveyed, the verbal testimony of those who were instrumental in laying out and platting the addition supports the construction adopted by us. Even the defendant in error believes that he became entitled under the deed to some kind of estate or rights in the private parking space. His theory was that the sidewalk and private parking was not a part of the lot, and he expressed the opinion that he did not get 114 feet, but also stated that if he did he.could not use it. He also said:

“As to making no claim to it, I wouldn’t want to allow anybody to build a negro shanty there or anything of that kind; I think it belongs to the public. I think probably I own to the middle of the street, but I couldn’t utilize it; couldn’t handle it.”

In speaking of sales of lots by him in the same addition, defendant in error said:

“In these deeds I sold by the lot and specified from the curb measurements. I can’t recall if in these deeds I made I sold from the curb, but I am sure I sold this corner lot at one time; that I explained how it was. I explained that there were sixteen feet there in the curb and sidewalk, and explained how it was measured.”

There was no allegation that Roos represented the lot as containing 114 feet, exclusive of sidewalk space and private parking, nor did defendant in error testify to any such representation. Defendant in error did not allege that Roos knew appellee was laboring under the mistaken belief that the lot contained 114 feet, measuring from the sidewalk, and that he fraudulently concealed from appellee the fact that such belief was erroneous. Defendant in error made a mistake in his construction of what Roos meant by Ms statement,, and would not have taken lot 6 at $60 per foot had he known that he was expected to alloiw for the 16 feet included in sidewalk and private parking; but this is not a case based on any allegation of mistake, but a suit for damages for fraud, and, as the representation relied upon is shown as a matter of law to have been literally true, the court erred in Ms conclusions of fact and judgment.

We do not wish to be understood as approving the theory as to measure of damages upon which this case was tried.

The order overruling plaintiff in error’s motion for rehearing is set aside, and a rehearing . granted upon said motion and the supplemental motion for rehearing; the judgment of affirmance heretofore entered in this cause is set aside, and judgment rendered in lieu thereof that the defendant in error take nothing by his suit, but that he recover all costs incurred in the trial court up to the trial of the cause, it not being clear when the taxes were paid, and that plaintiff in error recover of defendant in error the remainder of the costs incurred in the trial court as well as the costs of appeal.

On Motion for Rehearing.

The defendant in error’s motion for rehearing presents the contention, in substance, that by virtue of the acts of Summit Place Company, in making and filing for record the map, accompanied by the deed of dedication, the space designated for private parking and sidewalk became portions of the street, and that the right of the purchaser of lot 6 to use such sidewalk space and private parking space would be only such right as he has in common with the public. Defendant in error does not appear to be entirely clear as to whether the parcel is a public park or part of the street. While the contention is urged, and frequently repeated, that it is a part of the street, he relies on the cases wherein it has been held that to lay out a town and designate a plat as “Park” will be held to constitute a dedication of such space as a public park, in the absence of anytMng to show a contrary intention. If tMs parcel was dedicated to the public as a park, the owner of every lot in Summit Place addition will be confronted with problems relating to ingress and egress and the control of what is to be planted in front of his residence. “In order to constitute a dedication of private property to public use, it must clearly appear that the owner intended- to absolutely and irrevocably set apart the land for public use.” Atlanta v. Railway, 56 Tex. Civ. App. 226, 120 S. W. 923.

The deed of dedication expressly states that all streets and alleys are thereby dedicated to the public generally, and especially to the city of San Antonio, subject to certain conditions therein named, one of which relates to poles, wires, sewers, water and gas mains, all of wMch are to be placed in the alleys. After the express dedication of the streets and alleys, appears the statement: “The red lines on map indicate public sidewalks, four feet wide, and the green shadings indicate private parking between the public sidewalk and the curbing along the streets.” This statement does not constitute any express dedication, such as was made with respect to the streets and alleys, but the mere designation of the sidewalk space as intended for public sidewalks, would doubtless be sufficient, and it has so been considered -by us, to constitute a dedication to the public pf an easement in such space for sidewalk. The designation of a strip as “private parking” cannot be considered on the same footing as to lay out a town and mark a square or other parcel as “Park,” in which case the intention would ordinarily be disclosed to make it a public park. We know of no clearer way to negative the idea that parting is to be public parking than to designate it as private parking.

Wle. have heretofore pointed out that the maker of the map, in indicating the width of lot 6 at 114 feet, took as parts of said lot the sidewalk space and the private parking space. This is proved conclusively by the fact that, unless we attribute such intention to the maker of the map, we must attribute to him the making of a map upon which the corner lots are laid out upon a different scale from the inside lots.

Of course, if the intention of the maker of the map was to include the sidewalk space and the private parking space as portions of the corner lots, such intention was adopted by Summit Place Company when it had the map recorded.

The cases cited by appellee in the motion do not aid in determining the question at issue. The instrument indorsed on the map does not state that the sidewalk space and the private parking space constitute parts of the street. On the contrary, the statement is made that the private parking lies between the sidewalk and the curbing along the streets. Of course lot 6 could have been made to extend only to the sidewalk, in which case, doubtless, a black line would have been draiwn so as to clearly show its boundary, and the front line would have been marked “98” instead of “114.” It is also clear that the company could make the lot include the sidewalk space and private parking space, subject to an easement in favor of the public for sidewalk, and restrictions as to the use of the space designated as private parking. When the map and its accompanying deed of dedication are considered together, it clearly appears that Summit Place Company stipulated that lot 6 was 114 feet wide; that such distance was obtained by treating the lot as extending to the street indicated on the map; that the lot was burdened with an easement in favor of the public for sidewalks; and restrictions concerning the use of that part between the sidewalk and curb, imposed for the purpose of enhancing the beauty and symmetry of the addition.

If it could be held that there is such ambiguity as rendered it necessary to resort to circumstances attending the making of the map and its accompanying instrument, the uncontradicted testimony of Walker and Roos as to the plan on which the addition was laid out would resolve the ambiguity against defendant in error’s contention. This testimony was not contradicted except in so far as it contained statements to the effect that defendant in error participated in conferences resulting in the formation of the plan for laying out and selling the property. The extent of defendant in error’s connection with the company is covered by the trial court’s sixth finding of fact, copied in the original opinion. While it is true that Summit Place Company could not convey something it had already parted with, and if the map and deed of dedication showed clearly that lot 6 only had a front of 98 feet, the deed to defendant in error could not change that fact, under the testimony of Walker it appears that a general form of deed was prepared as a part of the plan for laying out and selling the addition, which form was to be used in all conveyances. This being true, the provisions of the deed in evidence cast light on the intent of the company with respect to the map and its accompanying instrument, and, as before pointed out, the deed treats the private parking as part of the lot, for it expressly provides that “no fence or coping shall be erected on any lot outside of the proposed sidewalk.”

As defendant in error has failed to prove the falsity of the representation that lot 6 contained 114 feet front on Queensborough Court, he cannot recover, for that is the only representation relied on in his pleading.

Defendant in error’s motion for rehearing is overruled.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes