author: HUFF, C, J.

text:
    E. R. & D. C. KOLP v. BRAZER.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1913.
    On Motion for Rehearing, Dec. 13, 1913.)
    1. Principal and Agent (§ 123) — Authority of Agent — Evidence.
    In an action for broker’s commissions on the sale of feedstuff for defendants under a contract between plaintiff and defendants’ agent, evidence held to warrant a finding that such agent was acting for defendants in the premises and that he acted within his authority in writing certain letters on defendants’ behalf to plaintiff and arranging for the payment of commissions for the sale of the material.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.]
    2. Evidence (§185) — Best and Secondaey —Notice to Produce.
    Where plaintiff gave defendants notice to produce the original letters written by plaintiff to them and defendants excused the failure to produce the letters and papers called foi on the ground that the mass was so great that it would take considerable time to find them, etc., plaintiff was properly permitted to introduce carbon copies of the letters as secondary evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 642-660; Dec. Dig. § 185.]
    3. Evidence (§ 168) — Best and Secondaey.
    Plaintiff was employed by the manager of defendants’ St. Louis office to sell defendants’ feedstuff on commission. Defendants closed such office, and all papers, correspondence, etc., in connection therewith, were turned over to it by the former manager. On sales being made, he was in the habit of confirming the same— sending a copy to defendants and one to plaintiff. held, that such confirmations were, in effect, acceptances of the contracts as made and of the proposed purchasers, and that the ex-manager was properly permitted to testify that he sent letters of confirmation of sales to the purchaser on receipt of telegrams from plaintiff that he had made sales to them.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 558; Dec. Dig. § 168.]
    4. Evidence' (§ 243) — Best and Secondary-Letters — Caebon Copies.
    The letters of confirmation were acts and declarations of defendants through their agent and manager, and were admissible as such to bind them.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 908-915; Dec. Dig. § 243.] .
    5. Evidence (§ 471) — Opinions—Statement of Fact.
    In an action for broker’s commissions, a statement of a witness that plaintiff sold certain parties was not objectionable as an opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    6. Depositions (§ 107) — Objections to Answer — Responsiveness—Time of Taking.
    Objections that answers to questions in a deposition are not responsive must be taken by exception before announcement of ready for trial.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 309-319; Dec. Dig. § 107.]
    7. Brokers (§ 54) — Sale of Goods — Right to Commissions — Puechasee Ready, Willing, and Able to Buy.
    In an action for broker’s commissions in the sale of fe.edstuff manufactured by defendants, plaintiff was not required to prove that his customers were ready, willing, and able to buy under the terms proposed, where defendants on being notified of the sales wrote letters to the purchasers and to plaintiff confirming the same.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.]
    8. Brokers (§ 86) — Commissions—Action. _
    _ Where, in an action for broker’s commissions in the sale of feedstuff manufactured by defendants, plaintiff testified that he made the various contracts in question for'the sale of the cars of material, and such fact was not rebutted by defendants, except by general statement that they knew nothing of it, and it was also shown that the sales were confirmed by defendants’ managing agent, and notice sent to the purchasers — with copies to plaintiff and defendants — such proof established a prima facie case, and plaintiff was not bound to prove by each of the purchasers that he had made the contract with them.
    ‘[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by Wm. P. Brazer against E. R. & D. C. Kolp. Judgment for plaintiff, and defendants appeal.
    Affirmed on rehearing.
    .Flournoy, Smith & Storer, of Ft. Worth, for appellants. Baskin, Dodge & Eastus, of Ft. Worth, for appellee.

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

   HUFF, C, J.

On October 25, 1913, we rendered a decision in this ease, reversing and remanding it. Appellee has filed a motion for rehearing and called to our attention errors that we are now persuaded we committed in our- former opinion, in applying the law to the facts of the case; we therefore grant the motion for rehearing and file this opinion as our conclusion ■ of the law governing the ease. We may be permitted to state, partly in justification of our former opinion, that appellee did not brief the case, and we considered the case alone from the brief of appellants and the examination of the record and authorities which we were able to mate at the time.

Wm. P. Brazer, appellee, sued E. R. & D. O. Kolp, the appellants, in the county court of Tarrant county, for $104 for brokerage commission, for the sale of 202 cars of bran, at $2 per car, alleged to have been sold by appellee for the account of appellants during the months of June and July, 1910.

We overrule the propositions presented under the first, second, and third assignments of error, which assail the action of the court in overruling appellant’s special charge to the jury, directing peremptorily a verdict for appellants. The contract in this case was executed by correspondence between Louis J. Jones, the agent and manager for appellants at their St. Louis office, and the appellee. In pursuance to such contract, appellee contracted to sell 202 car loads of the feedstuff handled by appellants, and for which, under the contract, he was to receive $2 per car. Appellants assert.as a proposition that the burden was on the plaintiff, appellee herein, to prove that Jones was appellants’ agent and acting within the scope of his authority, and that the letters in'question should be established as the writing of appellants and appellee. It appears from bills of exception that the signatures to the letters from appellants were typewritten and the letters from appellee were carbon copies. Appellants filed a plea of non est factum in the usual form. We think the jury had ample evidence to justify them in finding that Jones was acting for appellants and had the authority to do so, and that he was acting within the scope of his authority. The appellee testified he wrote the original letters of the carbon copies and sent them by due course of mail to appellants at their office in St. Louis, and that he got the replies thereto by due course of mail. Jones testified he wrote such letters for appellants, acting for them as their agent and manager, giving the substance thereof; and, further, that he turned over the books and correspondence to the appellants. He also testifies that he sent to appellants a copy of such letters when received. The trial court appends as a qualification to the bill of exceptions the following: “Notice was given by plaintiff to defendants, to produce the original letters. Defendant E. R. Kolp testified that Louis 3: Jones had authority to write the letter signed E. R. & D. O. Kolp, and authority to make the brokerage arrangements to pay the $2 a car and to pay for all telegrams as recited in the correspondence.” E. R. Kolp excused himself from searching through his letters and papers, for the correspondence in question, on the ground that the mass and bulk of the papers were so great that it would take considerable time to find them, etc. The court submitted to the jury the question of Jones’ authority and the question as to whether the contract was so entered into. We think there is sufficient evidence to sustain the findings of the jury on that point. Feagan v. Barton-Park Mfg. Co., 42 Tex. Civ. App. 373, 93 S. W. 1076.

The fourth assignment, to the effect that there was error in permitting appellee to read in evidence the carbon copies of letters because not the best evidence, will be overruled. We think from the above statement of the facts it will be seen appellee used sufficient diligence to obtain the originals, and, upon his failure to do so, had the right to resort to secondary evidence, and that there was no abuse of discretion on the part of the trial court in permitting the carbon copies to be read in evidence. McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604. The execution of the letters and copies was established, if not by direct testimony, circumstantial.

The fifth and sixth assignments are overruled. Jones was permitted to testify that he sent letters of confirmation of sales to the purchaser upon the receipt of telegrams from appellee that he had made sales to them. All papers, correspondence, etc., in connection with the St. Louis office, were turned over to appellants by Jones, and they were given proper notice to produce them upon the trial. He also sent a carbon copy of each letter for confirmation, one to appellants and one to appellees. The carbon copies sent to appellees were introduced in evidence, over the objection of appellants, to the effect that such letters were not the best evidence. The confirmations of the sales as made by appellants were in effect acceptances of the contracts as made and of the proposed purchasers. The carbon copies were acts and declarations of appellants through their agent and manager, and were therefore admissible as such, and would bind them. We do not think it was necessary in this case to obtain the original letters to prove that appellants had accepted the purchasers of the contracts as made. When they notified appellee and the sales so made by him were confirmed, we think that the declaration and acts, in so far as appellee was concerned, were original testimony.

The seventh assignment is overruled. The statement of the witness that appellee sold certain parties is not, as we understand the connection in which it is used, a mere opinion of the witness. The objection to the answers of the witness that it is not responsive to the question must be taken by exception on that ground before announcement for trial. There is no exception to the answer because not responsive, shown to have been made before announcement of ready for trial. This exception appears to have been made during the trial. However, we think the answer responsive.

It is insisted under the eighth assignment that appellee should prove that the purchasers were ready, willing, and able to buy under the terms proposed. This rule does not apply where the principal accepts the purchaser and the contract is consummated. Where the appellants wrote letters confirming the sale to the purchasers and also to the appellee, the broker, we think it would be held that he had earned his commission. He furnished ,a purchaser acceptable to appellants, and nothing further was required of him. Watkins Land Mortgage Co. v. Thetford, 43 Tex. Civ. App. 536, 96 S. W. 72; Albritton v. Bank, 38 Tex. Civ. App. 616, 86 S. W. 646; Conkling v. Krakauer, 70 Tex. 735, 11 S. W. 117; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345.

The testimony is sufficient to support the finding of the jury that appellee sold the number of cars of bran to the proposed purchasers named in the exhibit to the petition, for the price and on the terms named, and that he immediately reported the sales as made to appellant’s St. Louis office, and that appellants, through their agent and manager, Jones, confirmed such sales by letters to the proposed purchasers, and also by letter to appellee, and that appellants, as principal, received a copy of such confirmation. The evidence also shows that appellee made out in accordance with the contract a full report of the sales as made and duly transmitted the same in regular course of mail to appellants. This evidence, at least, made a prima facie case. If appellee did not make the contract of sale with the proposed purchasers, the burden shifted on appellants to show it We do not believe it incumbent on appellee to prove by each of the purchasers that he had made the contract with them. He swears that he did make it, and when that fact is not rebutted by appellants, except by the general statement that they knew nothing of it, we think the jury entitled to find such sales were made from the facts so proven — at least the verdict has testimony supporting it. If the contracts were made, as contended, and as established by the verdict, appellants could have enforced specific performance or could have recovered damages for the breach of same. When such is the case, the broker has earned his commission, and a sale is effected in so far as he can do so. The delivery and other details were for the appellants., Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847. We therefore overrule the eighth and ninth assignments of error.

All other assignments are overruled.

We think there was sufficient evidence to support the finding of the jury that Jones was the agent and manager of appellants in employing appellee and in confirming the' sales made by appellee, and that he was acting at the time within the scope of his authority. Having concluded that we were in error in our former opinion, we grant the appellee’s motion for rehearing and also overrule appellants’ motion to reverse and render.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

It is asserted that the court misunderstood the facts in the record, and that Jones was not in the employment of the appellants, as shown by the facts in the record. Jones swears he was in the employment of appellants until August 1, 1910, and that during the months of June and July the appellee Brazer reported sales by wire to the St. Louis office, of which he was then in charge, and during those months Jones sent out confirmations of the sales to the purchasers and mailed a copy to the appellee, and one copy to appellants’ office in Oklahoma City, and one to their office in Ft. Worth. E. R. Kolp swore the contract expired with Jones June 15, 1910, and there is a written contract between Jones and appellants which shows it was to continue until June 15, 1910. Kolp admits by his testimony that Jones remained in the St. Louis office for a month and 15 days after that date in charge of the office, but says he had no authority to do any business. On the 3d day of August following, appellants wrote from their Ft. Worth office to the appellee Brazer that they had closed their St. Louis office, and that the business theretofore transacted from that office would be divided between the Oklahoma City and Wichita offices, and the affairs of the St. Louis office would be wound up from Ft. Worth, and “if there are any communications regarding which you desire to make would be glad to hear from you.” They further say they will quote for shipment from Wichita and hope a nice business may result. The testimony of Brazer and Sullivan show that on June 30, 1910, appellee rendered appellants a statement of the sale of 152 cars of bran, giving the names of the parties to whom sold, date sold, and price, and on July 30, 1910, a like report of the sale of' 50 cars. Appellants were notified to produce the originals. From the record it appears they were not so produced, and carbon copies, which appellee produced, were introduced in evidence. After these reports, appellant notified appellee on August 3, 1910, that they had closed their office at St. Louis and would quote shipments thereafter from Wichita and solicited further business. We think this testimony shows, not only that Jones was the agent of appellant when he entered into the contract with Brazer, but also when Brazer made and reported the sales. If the testimony of Brazer, Jones, and Sullivan is true, these sales were made and reported to appellants. In their letters they recognize the fact that Brazer had been making sales, for them from their St. Louis office. These acts of Jones and Brazer they do not disaffirm, but instead notified Brazer they expected to continue business with him from their Wichita office and expressed the hope for a nice business. At any rate, the jury believed Brazer, Jones, and Sullivan and accepted their testimony and disregarded that of E. R. Kolp.

Counsel contends that the original letters and telegrams were attached to the depositions of Brazer as Exhibit 5. This is a statement by attorneys, but the record in this case does hot disclose that fact. The record shows in this case that copies of confirmations of the sales are set out in Exhibit 3 to the deposition, and Exhibit 3 covers 16 pages of the statement of facts and the confirmation of the sales purport to be addressed to the respective purchasers to whom Brazer says he sold, confirming the sale. If Jones is to be believed, he sent these confirmations to the purchasers — a copy to Brazer and a copy to appellants at Oklahoma City, and a copy to them at Et. Worth. Brazer testified these are the copies he received. Kolp says he never got any such reports of confirmations. The jury accepted the testimony of Jones, Brazer, and Sullivan. 'We think therefore the evidence sufficient to show Jones was the agent of appellants, and that he, in acting for appellants, confirmed the sales; also, notifying appellee that the sale was confirmed. This was the act of appellants, and as such was admissible as the acts and declarations made by them and substantially admitting the sale.

We have been severely taken to task for stating that E. R. Kolp excused himself from searching through his letters and correspondence in question on the ground that the mass and bulk was so great that it would take considerable time to find them. In speaking of the correspondence between the appellants and Jones, E. R. Kolp says: “I do not know where some of that correspondence is. I did not have any occasion to look for it. * * * I read the depositions in which he said he sent us copies of the correspondence. I have not looked for copies of that correspondence. The reason I did not was that it was not necessary. I did not think it was needed. There is a mass of stuff that comes there. * * * You could not have a building large enough to keep all these copies from four or five offices. Whenever he made a sale of bran, he was supposed to send us an account of it.” The trial court qualified the bill of exceptions taken to the admission of this evidence, that appellants were given notice to produce all letters, papers, and correspondence in relation to the transaction. Jones testifies the notices of sales were sent appellants and were sent through June and July. Brazer testifies that these were notices of confirmation of the sales received by him from appellants., The record does not show any other sales made by Brazer. The correspondence, as well as Kolp’s testimony, in several places, shows that he knew Brazer was making the sales. The jury accepted the testimony offered by appellee and rejected Kolp’s testimony. We do not think we have treated appellants unfairly in the record, but have gone over it carefully several times. We think we have correctly quoted the record or its effect and those facts which support the findings of the jury, and, but for the seeming disposition on the part of counsel to attribute to us oversight in examining the record, we would not have filed this additional finding.

The motion of the appellants is overruled.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. WALCK et ux.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Release (§ 58) — Fraud — Question for Juby.
    In an action against a telegraph company for injuries to a wife falling over a guy wire and stob in a public street, defended on the ground that the wife and her husband had released all claims, evidence held to justify the submission to the jury of the issue whether the release in form including the company, was procured by fraud.
    [Ed. Note. — For other eases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.]
    2. Release (§ 17) — Fraud—Effect.
    A telegraph company, when sued for injuries to a pedestrian falling over a guy wire in a public street, relied on a release reciting that the pedestrian and her husband released from liability a railroad company and all persons or companies. The preliminary negotiations for a settlement were had between a claim agent of the railroad company and the husband and wife, who believed that the claim agent represented only the railroad company. The claim agent, with knowledge of that fact, failed to disclose the stipulation releasing other companies as well, and the husband and wife in reliance on his representations signed the instrument without reading it. Held, that the claim agent was guilty of fraud excusing the husband and wife from their failure to read the instrument, and the telegraph company could not rely thereon to defeat an action by them for the injuries.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.)
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by George F. Walck and wife against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Yeale & Davidson, of Amarillo, for appellant. E. T. Miller and Barrett & Jones, all of Amarillo, for appellees.

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

   HENDRICKS, J.

The appellees, Geo. F. Walck and wife, Ellen Walck, sued the Western Union Telegraph Company for injuries alleged to have been sustained by the wile at Des Moines, N. M., on account of falling over a guy wire attached to one of áppellant’s telegraph poles and'a “stob” In a public road or street, while traveling from her home at night to said town. The result of the fall, on account of pregnancy, produced a miscarriage and premature birth of a child, and consequent suffering and weakness. The matter of the injury, the negligence of the telegraph company and its original liability, aside from the matter of a release, are not seriously at issue upon this appeal. The question principally involved arises upon the following release, executed by the appellees, as a determination of their rights, and we omit certain notations and statements upon the release which we do not think are germane to the discussion.

“In consideration of the sum of two hundred fifty and no/100 dollars ($250.00) to me in hand paid by the Colorado & Southern Railway Company, receipt whereof is hereby acknowledged, I, do hereby fully and forever compromise and settle with and release and discharge said railway company and all railway companies whose lines are operated by or in connection with the said the Colorado & Southern Railway Company, of which are a part of the system of the said company, and any and all persons or companies of every description, who, or which, may have contributed in any manner by any act or omission, from any and all claims, demands or causes of action which now exist, or may hereafter arise, by reason of any and all personal injuries, of whatever character or description, sustained by me on or about the 9th day of December, 1911, at or near Des Moines, state of New Mexico, while walking along street or road I struck a guy wire to a telegraph pole and fell to ground. At the time of said accident I was pregnant and the blow resulted in premature birth of child which lived about two hours. Also for all expenses incurred by reason of the said accident and also for loss of services and companionship of my said wife, Nora Ellen Walck.

“Bill for Voucher.

“Meaning and intending hereby to 'discharge and hereby discharging said companies and persons and each of them from any and all demands and claims .as fully as if said injuries, whether present or future, were all described herein in detail.

“I have read and fully understand the foregoing instrument and agree to same and hereto afiix my hand at Des Moines, N. M., this third day of February, A. D., 1912, as my free and voluntary act and deed. Nora Ellen Walck. [Seal.] George F. Walck. [Seal.]

“Correct. Calculations correct.' [Signed] W. F. Dobeeki. [Signed] R. H. Doolittle, Claim Agent. [Signed] J. H. Bradbury.

“Approved: [Signed] J. D. Welsh, General Superintendent.

“Approved: [Signed] S. G. Arscott, .for Vice President.

“The above account has been examined, found correct and is hereby approved for payméñt. [Signed] J. H. Bradbury, General Auditor. ' ■

“Witnesses to signatures: J. M. Kimmel, address, Des Moines, N. M.; C. JlNiehoús, address,-.

“Received February 3rd, 1912, from the Colorado & Southern .Railway Company, in full payment of above account. Two ' hundred and fifty and no/100 dollars. $250.00. Note: The receipt to this voucher must be dated.

“Voucher is made, or when signed by another.”

It is noted that in literal language the Western Union Telegraph Company is not a party to the instrument, but claims to be embraced in the following language: “Any and all persons or companies of every description, who, or which, may have contributed in any manner by any act or omission” — which, connected with the releasing and discharging clause of the instrument, provide for its exoneration from damages. This release was attacked by the appellees on the ground of fraud, alleging that the same was void: “Because at the time of and before same was signed, the Colorado & Southern agents and servants who procured such instrument as was signed procured same by representing that the said railway had nothing to do with the said wire or telegraph line; that they were not liable in any way to him; that the railway had sold its interest in the said telegraph line, and that they would give him $250 as a donation or gift, and that same would not interfere in any way with his real claim against the Western Union Telegraph Company (against) whom said servants said he could recover; * * * that the said paper was signed late at night while said wife was in bed sick, and in no condition to, and when she did not and could not, read or understand said release,' and plaintiff himself had no glasses, and waá unable to read at night, and did not read and could not read said instrument but relied on said servant’s and agent’s representations; * * * and that said instrument was signed with the specific understanding and assurance that it would not interfere with said plaintiff’s cause of action.” Ap-pellees further alleged that “the parties who procured said instrument undertook to tell plaintiff the substance and form of same, and assured him that it was as above set out,” and with the further allegation that plaintiff and his wife believed the representations made and relied upon same when the instrument was executed."

The fifth assignment of error, which we think is the first one material in this record which we should notice, is that the court erred on account of the submission of the eighth paragraph of his main charge to the jury, complained of by three propositions as follows:

(1) That the charge “directs the jury that they may find for the plaintiffs on a state of facts not proven on the trial of the case.”
“(2) The failure of the claim, agent Niehous to acquaint appellees with the fact that the effect of the release was to discharge the appellant, and the fact that appellees signed the release in question without knowledge of its true contents, effect, and import would not be sufficient to avoid the release.
“(3) In the absence of proof that plaintiff was prevented from reading the release, or that it was misread to him, it was error for the court, in the eighth paragraph to allow the jury to find against the release; it being on its face a full and complete satisfaction of plaintiff’s damages and a release of all persons and corporations.”

The following is- the paragraph of the charge complained of: “On the other hand, if you believe from the evidence that C. J. Niehous, the claim agent of the Colorado & Southern Railway Company, represented to plaintiffs that the said railway company was not liable to them, but that any claim they might have was against the defendant, Western Union Telegraph Co., and that the said receipt and release contract, signed by them, would not interfere in any way with their cause of action, if any, against defendant telegraph company; and you believe further that the $250 mentioned in said contract of release was a mere gratuity or gift from said railway company and said Niehous, and not a settlement of the case; and you further believe from the evidence that the plaintiffs believed said representations to be true, and that they in good faith received and accepted said sum as a gift or gratuity and not as a settlement and satisfaction of any damages or losses which they may have sustained by reason of the accident in question; and you further believe that said Niehous paid over to plaintiffs the money, and procured from them the said release, and that in so doing he represented to them that said release was merely a receipt for the money; and you further believe that they accepted said money and signed said receipt and release without knowledge, on their part, of the true contents, effect, and import of the same, and that said Niehous purposely withheld and concealed from plaintiffs that said instrument purported and had the effect of releasing any claim for damages they may have had against the Western Union Telegraph Company — then, if you so find and believe from the evidence, the said release will not operate as an acquittance to said telegraph company, and would not deprive plaintiffs of the right to recover in this case, if you believe they are entitled to recover under the evidence and the law given you elsewhere in this charge.”

The evidence discloses that prior to the execution of the release, preliminary negotiations with reference to settlement had been made between the parties, the claim agent Niehous having been in Des Moines three or four days prior to the execution of the release, for the purpose of investigating the matter, that upon his last visit, immediately prior to the execution of the release, appellees, Walck and wife, had offered to accept $400 in settlement of their claim against the Colorado & Southern Railway Company, and that at this time said claim agent representing the said railway company, offered the sum of $250, which was rejected. We conclude that at no time during the negotiations did appellees Walck know that the claim agent Niehous was in any manner representing the Western Union Telegraph Company, but believed that he was representing solely and exclusively the Colorado & Southern Railway Company. We find that the appellees inquired of this claim agent, at the time of the last visit that the latter made to Des Moines for the purpose of settling the claim prior to the execution of the instrument, if the Western Union Telegraph Company was concerned in the matter of settlement, and that said Niehous answered that he did not know. We find that the appellees did not have any knowledge of the true contents, effect, and import of said instrument at the time of its execution. Niehous says: “They asked me whether the Western Union was concerned. I told them I did not know, and I did not at that time,” but “before I went to Des Moines [the last time when he made the settlement] I learned that the Western Union was concerned.”. Again he said: “I never said anything about the Western Union being concerned in the release. They were once talking about the Western Union, and I told them I did not know about it.” He further says, meaning at the time of the settlement: “It was not necessary for me to mention the Western Union. T did not purposely leave out the Western Union. It just happened that nothing was said about it.” He claims that the night the release was made he said nothing to the appellees, except that he informed them that the release was a full release for the accident and the injury. He also says that appellees understood the release, and we presume and find that this is the manner this witness claims they understood it: “I did not say ‘against all companies’ [meaning, of course, that he did not inform them that it was a release against all companies]. I said, ‘Do you understand that you are through with this matter, and that this releases for this accident entirely?’ ” Of course the question is naturally suggested, With whom and with what compames the appellees had finished their negotiations? As stated, these people had been dealing with him as the agent of the Colorado & Southern, and not as a representative of the Western Union. They had asked him if tlie Western Union was concerned in settlement, and lie liad informed tliem that they were not. Unless they had some other knowledge from another source, not apparent in this record, we do not understand how it could he urged that this witness imparted any information, especially with reference to the Western Union- Telegraph Company, and we find that the communications which he claims he actually made are in the nature of suppression and deceit. He knew that they were dealing with him as the agent of the railway; even according to his own testimony he had acquired information before the night of the settlement that the Western Union was directly interested, and upon paying them cash in the sum of $250 upon that particular occasion, he immediately drew upon the Western Union for the full amount, evidently for reimbursement. We think this witness was mistaken when he says that it was not necessary for "him to mention the Western Union when this release was executed, and that “it just happened” that nothing was said about the matter, and that a consistent course to exclude information with reference to the. real beneficiary of this release and of this settlement, for the purpose of obtaining a settlement of this character from these people, was in reality practiced by this claim agent. We find that he informed the appellees he was a lawyer, and that he informed them that he knew that the Colorado & Southern was not liable for any damages with reference to the guy wire over which the woman stumbled, and further informed them that their ground of action was against the Western Union, and that he understood the situation because he was an attorney. On the night of the execution of the release, a smoky lantern was the light afforded for that purpose. In accordance with the verdict of the jury and the testimony of the appellees, by which we are bound, we find that the appellees did not read this release upon this occasion, and that neither Walck nor his wife knew that the language purporting to release their claim for damages “against all companies” was contained in said instrument. We also conclude : That upon this particular night this claim agent improperly suppressed the fact to these people that the Western Union Telegraph Company was interested in said settlement, and further find that they would not have signed the same if they believed that it purported to settle their claim against that company. The 30th of January, at the time the appellees demanded $400 and $250 was offered, was the date of the principal negotiations between the agent and the ap-pellees, and on February 1,1912, immediately following, Mrs. Walck dictated the following letter, written by her husband, however signed in her name, and which was an attempted offer of acceptance of the $250, the proposition previously rejected by them: “Des Moines, N. M. Feb. 1, 1912. Mr. C. J. Niehous, 827 Cooper Building, Denver, Colo. —Kind Sir; As I am not getting my health here as fast as I ought to and I will have to be taken away from here at once to a lower altitude, and have to be treated there by a good doctor for my hips as I am getting weaker and the circulation is not right in my lower limbs; I have come to think that I will better take the $250.00. Now this is small for my suffering and the loss of my baby, and it will take nearly all of it to pay our debts here for we must pay our doctor. I have been since the night of the 9th of December, 1911, until now not' able to do anything, and have been in pain most of the time. Please let us know just when you will be here. I think the C. & S. R. R. Co. ought to furnish us tickets to Shattuck, Okla. I am, Very Respectfully, Mrs. Nora Ellen Walck, Des Moines, N. M.” That the agent Niehous received said letter on the morning of the 3d of February, arriving at Des Moines, N. M., at 11 o’clock at night, said settlement having been effectuated between 11 and 12 — about 30 minutes being consumed for that purpose — and that upon the particular' occasion Mrs. Walck, who in this record was at least acting as the agent of her husband, with reference to some of the negotiations and the writing of said' letter, was in bed and in a weakened condition.

The appellant’s first proposition leveled at the charge of the court, quoted by us, complaining that it was a submission to find for the plaintiff on a state of facts not proven on the trial of the cause, is not sustained by the record; and the second proposition, that the failure of the claim agent to acquaint appellees with the true contents of the release would not be sufficient to avoid said release, is a singling out by appellant of one particular phase of the evidence, which, with other evidence in the case, we think is sufficient to sustain the verdict of the jury as to the voidability of said instrument; and, as to the third proposition, that in the absence of proof that plaintiff was prevented from reading the release, or that it was misread to him, the court (erred in its submission of said charge to the jury, we think that the line of authorities apply that (although we should assume that the most of the acts and representations were made just a few days prior to the execution of the release) the appellees had the right to rely upon the statements of the claim agent, and if they did not read the release, were thrown off their guard, believing that it was solely a settlement with the Colorado & Southern Railway Company, and that the Western Union was not concerned in it; Even if' most of the representations were made on the 30th of January, upon which appellees relied, the appellant’s agent knew at the time he received the letter on the 3d of February, accepting the $250 proposition, that these people believed that they were accepting a proposition with the Colorado & Southern Railway Company, and with no other company, and his conduct, at the time the release was executed, relative to the suppression of material facts, connected with the statements made by him and the negotiations which had transpired between them prior to that time, indicate a case of fraud, which, we are inclined to think, even if there were some opportunity afforded to the appellee to read the release at the time it was executed, was calculated to throw the appellee off his guard, and it does not lie in the mouth of appellant to say, “You should have read the release, and if you did not do so, you are bound by its contents.”

The case of Labbe v. Corbett, 69 Tex. 503, 6 S. W. 809, decided by the Supreme Court of this state, speaking through Justice Stay-ton, was one involving a transaction whereby Corbett agreed that Labbe should have the use of 1,000 “picked” ewes for the period of three years, and under this agreement 1,000 ewes were delivered. The trial court instructed the jury as follows: “The jury are further instructed' that if the defendant Labbe knew of the diseased condition of said sheep when he received them, under said contract, or by the use of ordinary care and diligence could have known of their diseased condition, then they are further instructed that such diseased condition of said animals, or subsequent loss therefrom, is no defense in this. action to the plaintiff’s demand, and you will find for the plaintiff.” The appellant assigned this charge as error. The Supreme Court, in commenting on this charge complained of and given by the trial court, used the following language: “This charge is assigned as error, in that it makes the appellant liable, although the jury may have believed that the appellee made the misrepresentations alleged to have been made by him, if by the exercise of ordinary care and diligence the appellant might have ascertained that the representations were not true. * * * ” In this case the real diseased condition of the sheep was known by ap-pellee when the same were delivered, and the appellant, with his agents, in person received the sheep, and it seems that some of the agents who were with' him at that time knew of the diseased condition, but that appellant did not. The Supreme Court said, “The misrepresentation alleged to have been made was one material in character, and, if made, calculated to prevent an examination by the appellant for himself to ascertain the true condition of the sheep, and it related to a matter of which the ap-pellee, from his own statement, had actual knowledge,” and quoting from the English case of Railway Company v. Kisch, L. R. 2, H. L. 120, Justice Stayton continues: “When once it is established that there has been any fraudulent misrepresentation by which a person has been induced to énter into a contract, it is no answer to his claim to be relieved from it to tell him that he might' have known the truth by proper inquiry. He has a right to retort upon his objector, ‘You, at least, who have stated that which is untrue * * * for the purpose of driving me into a contract, cannot accuse me of want of caution, because I relied implicitly upon your fairness and honesty.’ ” The ap-pellees, Walck and wife, said that they relied on the statements made by Mr. Niehous, and the husband said that Niehous “acted very friendly with him.” Justice Stayton concluded that such a charge, under the evidence in that case, to the effect that if a man receiving the sheep could have known of their diseased condition by the use of ordinary care, in .view of the fraud and misrepresentation, was error, and upon that and another ground reversed the cause. In this case the jury having found the fraudulent representations, and the fact that the appellees relied upon the same, we are inclined to think and so hold that appellant is not in a position to complain of the verdict of this jury, and believe that a clear cause of fraud was made out against appellant.

In this connection, the ninth assignment of error is a complaint because the court refused to give in charge to the jury a requested instruction, to the effect that if the jury find that the witness Niehous presented to plaintiff and his wife the release in evidence, and they had the opportunity to read the provisions of said release and knew or could have known by the exercise of ordinary care the contents of said instrument, and knew or could have known by the ex'er-cise of such care that they were releasing all other companies and persons who might have been connected with the placing of the guy wire in question, and further believed that no deception was practiced by Niehous against plaintiffs to find for the defendant company. If no deception was practiced by Niehous against the man and his wife, of course they could not recover in any event, and the question of fraud, we take it, was amply submitted to the jury, at least as against the objections we find in this brief leveled at the charge of the court. If there were fraud in the transaction, which the jury found, we believe that a sufficient analogy exists between this case and the Labbe-Cor-bett Case for its application to this record, and in holding that the other elements of the special charge submitted by appellant, with reference to the opportunity to read the release and the matter of appellees’ negligence in not reading the same, were inappropriate to this ease. That part of the special charge is, in substance, the same as the court gave, discussed in the Labbe-Corbett Case, and which Justice Stayton condemned as improper. Again, the Supreme Court has said: “The defendant in error claims that Mrs: Conn was guilty of negligence in signing the deed of trust without readifag it, and therefore the court ought not to reform the instrument according to her testimony. If the failure to read the instrument was unexplained, and there was no reasonable excuse for it, this proposition would be correct, but, when the party is misled by the fraudulent representation of the other party, and caused, by confidence in such person and his representations, to sign the instrument without reading it, this does not constitute such negligence as will deprive the mater of the instrument of equitable relief from the consequences of the fraudulent representation. Chatham v. Jones, 69 Tex. 744 [7 S. W. 600].” Conn v. Hagan, 93 Tex. 338-339, 55 S. W. 323.

Appellant asserts that certain representations were made beforehand, and if those were not repeated or made at the time of the execution of the instrument, and if they had the opportunity to read the same, there could be no recovery. In view of the previous negotiations, when the letter was dictated by Mrs. Walck and written by her husband, and 'received by Niehous and accepted by him, which appellant insists was done in discussing another phase of the case, the settlement and . release are bound to have been based, and their minds met, upon what had transpired, and the Western Union was excluded between these parties from all negotiations, and with reference to which the claim agent had full knowledge. Confining this opinion to questions distinctly raised, and not considering questions outside of the scope of the assignments and propositions made by appellant, and having attempted to carefully consider this record and all the assignments of the appellant, and believing that the cause should be affirmed, we overrule all other assignments not discussed by us; the previous discussion, we believe, sufficiently concluding the material assignments af appellant.

Affirmed.


author: MOURSUND, J.

text:
    MIXON v. WALLIS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 26, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Judgment (§ 199) — Notwithstanding Verdict — Grounds.
    Judgment non obstante veredicto is permissible only when there is undisputed evidence, outside of the facts found by the jury, on which a verdict should have been directed'.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.]
    2. Trespass to Try Title (§ 41) — Evidence oe Title — Sufficiency.
    In trespass to try title, wherein an inter-vener and the defendants B. claimed under the ten-year limitation by virtue of the fact that their ancestor had had the adverse possession of a part of the land continuously for ten years before the suit and had cultivated during that time five or six acres, evidence held not to show that the ancestor had conveyed to defendant M. 160 acres including'the land improved, so as to preclude the intervener and the certain defendants from asserting title to 160 acres by virtue of the ancestor’s improvements and possession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    3. Adverse Possession (§ 107) — Boundaries —Statutory Provisions.
    Rev. Civ. St. 1911, art. 5676, providing that adverse possession shall be construed to embrace not more than 160 acres, including the improvements, or the number of acres actually inclosed, should the same exceed 160 acres, does not give a possessor 160 acres in separate parcels to be selected by him or any one else, but contemplates that he shall receive 160 acres in a body designated by the court, and one cannot acquire a parcel in one corner of a survey and another parcel in another corner; the total aggregating 160 acres.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 624; Dec. Dig. § 107.]
    4. Deeds (§ 8) — Adverse Possession — Purchaser — Rights Acquired.
    The location .of land claimed by adverse possession within Rev. Civ. St. 1911, art. 5676, providing that adverse possession shall bo construed to embrace not more than 160 acres including the improvements, is fixed to a certain extent, and a purchaser from the possessor must take notice of that fact, and of the fact that he acquires no title unless he purchases' the land whose location is so fixed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 13-18, 408-412; Dec. Dig. § 8.]
    5. Adverse Possession (§ 107) — Title Acquired-Conveyances.
    Where a third person acquiring title by adverse possession to 160 acres in a survey claimed by plaintiff did not acquire any title to the particular 160 acres claimed by defendant under a supposed conveyance from the third person, and defendant surrendered to plaintiff, plaintiff was not prejudiced by the supposed conveyance, and he could not appropriate the land acquired by the third person.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 624; Dec. Dig. § 107.]
    6. Courts (§ 107) — Decisions—Withdrawal of Opinions — Effect.
    Where an appellate court withdraws an opinion, it should, in deference to the court’s wishes, be treated as if never rendered.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 360; Dee. Dig. § 107.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Suit in trespass to try title by Lockhart H. Wallis against Mrs. C. Bonin and others in which Ira Mixon intervened. From a judgment for plaintiff, the intervener appeals.
    Reformed and affirmed.
    See, also, 146 S. W. 651.
    F, F. & E. T. Chew, of Houston, for appellant. Baker, Botts, Parker & Garwood and Atkinson & Atkinson, all of Houston, for ap-pellee.

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

   MOURSUND, J.

This is a suit in trespass to try title, instituted by appellee Wallis against Mrs. C. Bonin and her husband, T. R. Bonin. Masterson Irrigation Company, Geo. D. Childress, H. Yoakum, H. J. Miller, W. G. Richbourg, K. C. Barkley, J. F. McQueen, Thos. B. Mitchell, R. B. Cheshire, administrator, H. Masterson, Ingham S. Roberts, D. H. Hardy, the firm of Hardy & Roberts, W. L. Thompson, and Wm. Metzler to recover the Andrew Lawson one-third league of land. Ira Mixon intervened, complaining of plaintiff and all defendants except Bonin and wife, claiming the land in controversy, pleading the ten-year statute of limitation in support of his title, and praying judgment against all of said parties for the title and possession of the land, and further praying that, if his plea for the recovery of the entire tract be not sustained, then that he be allowed to recover 160 acres thereof, to include his improvements, and to be surveyed off for him under the direction of the court. Bonin and wife pleaded not guilty the ten-year statute of limitation, and prayed that if Mrs. Bonin’s title to the entire tract be not sustained, then that 160 acres including her improvements be surveyed under the direction of the court and set aside to her.

All parties took part in the impaneling of the jury, but, after the pleadings were read, all defendants except Bonin and wife withdrew their defenses and admitted that Wallis had title, while Bonin and wife and Ira Mix-on admitted that plaintiff had record title to the land, but claimed 160 acres of the land in controversy under their plea of limitation of ten years. Thereupon the case was submitted upon the following special issues:

"Question 1. Do you find, or do you not, that O. Mixon had ‘peaceable’ and ‘adverse’ possession of any part of the Andrew Lawson one-third of a league, cultivating, using, or enjoying the same for 10 years continuously before the date of the filing of this suit, which was on the 14th day of January, 1910?” To which the jury answered: “We find he did.”
“Question 2. If you answer the foregoing question in the affirmative, you will then answer the following question: How many acres do you find that he so had in possession inclosed, cultivating, using, and enjoying the same?” To which the jury answered: “We find he had five or six acres.”
“Question 3. Do you find, or do you not find, that Mixon recognized the right of Lopez to the barn and the lot or inclosure around it and held the same from the time Lopez left until the time of his (Mixon’s) death, under the permission given him by Lopez or by Converse who was the agent for Richards, the owner, and that Mixon recognized the right of Lopez or Richards to the barn, which was a part of the land?” To which the jury answered: “We find he did not.”

Upon these findings the court, upon motion of Wallis, entered judgment that the Bonins and Mixon recover of Wallis six acres upon which their improvements are situated, to be surveyed off and partitioned to them; that Wallis recover of all defendants and the in-tervener Mixon all of the land except said six acres; that plaintiff might have a writ of possession for the land awarded him at any time after 60 days from date of the judgment, and that all defendants and the-intervener recover of plaintiff all costs. An appeal from this judgment taken by Mixon and the Bonins was dismissed by the El Paso-Court of Civil Appeals because the judgment was not final on account of its failure to dispose of the issue between the intervener and the defendants other than the Bonins. See-146 S. W. 651. On August 9, 1912, on motion of Wallis, judgment was entered nunc pro-, tunc, which disposed of the issue between the intervener and the Bonins as against the-other defendants. Appeal was perfected by Mixon and the Bonins. The court granted the motion of plaintiff Wallis for a judgment in his favor notwithstanding the verdict, on the ground that the undisputed evidence showed that C. Mixon, former husband of Mrs. Bonin and father of Ira Mixon, had, about seven years prior to the trial of the cause, conveyed to William Metzler 160 acres out of the Andrew Lawson survey and had placed Metzler in possession thereof, which was still held by Metzler, who had improvements thereon. The theory adopted by the court was that by reason of the facts so-found C. Mixon had applied his claim to the-160 acres held by Metzler and had exhausted his claim to the Lawson survey.

By various assignments the appellants question the right of the court to enter judgment for plaintiff for all the land except six acres, and contend that judgment should have been entered for appellants for 160 acres to include their improvements. It is not denied that the findings of the jury are such as to warrant and require a judgment in favor of Ira Mixon and the Bonins for 160 acres of land, unless the facts are such as to justify a judgment non obstante veredicto under the theory adopted by the court. It is only when there is undisputed evidence outside of the facts found by the jury, by reason of which a judgment should have been instructed in favor of the party in whose favor judgment was rendered, that a judgment non obstante veredicto can be upheld. Fant v. Sullivan, 152 S. W. 515.

It. becomes necessary therefore to investigate the evidence to see whether it was of such a character as to justify the court in ignoring the findings of the jury and render judgment contrary thereto. Plaintiff on one side and the intervener and the Bonins on the other stubbornly fought out the issues submitted to the jury, and it appears that the intervener put defendant Metzler upon the witness stand for the purpose of showing that O. Mixon had claimed the entire tract of land, and, after denying such to be the fact, he finally admitted it to be true. Incidentally, he testified that he built his first improvements on the land with O. Mixon’s permission, about eight years before the trial, and, being asked to state whether or not he had a contract to buy the land from Mixon, he said: “Yes, we had a hind of contract. As to its being a written contract, will say there was something made, but I don’t hnow what went with it. I have tried to find it and can’t find it. It was before the time of that controversy out there between Childress and Mr. Wallis, and Yoak-nm and Cheshire and all the rest of them; that was about two years before that.” Upon being ashed whether he ever paid Mixon anything on the contract, he replied: “No, sir; I never did pay him anything on it.” On cross-examination he testified: “One hundred and sixty acres I bought from Mr. Mixon, that is what I bargained for. I went into possession of it, and am in possession of it now under my purchase from him; I thought I was going there and getting the land, and it would be all right, and I went to worh. It has been about seven years ago that I bought this 160 acres of land from him. We made a hind of a contract on it. I went into possession and got 160 acres with his permission. I didn’t build on it, but I put a fence on it and farmed there, and I am there now. I later built on it. I have been building on it now, and my house is there now. I claim that 160 acres by virtue of my contract with Mr. Mix-on. Then after that, two years after that, why they came and they claimed it, I mean Mr. Childress, Cheshire, and that crowd, and they went. I got a deed from them, a piece of a deed. Wallis never did come to me; yes, Wallis came and claimed it. Wallis never said anything to me about it; Mr. Majors was the man that came to my house several times. I went into possession of this 160 acres seven years ago. I put a fence on it, and farmed pn it, and after tha,t I went to building on it. * * * I know the lines of my 160 acres that this man let me have; Mr. Cheshire and one or two more marked it off for me. As to whether or not Mr. Mixon also marked it off, he was with us, and I went into possession of it under my purchase from Mr. Mixon, I thought I was getting that land. That is the instrument, the instrument that I was talking about, that I say I lost. It is gone, .and I don’t know what went with it. That is the contract he gave me; I don’t know what went with it; I did not give any notes for it.”

We copy from his testimony, on redirect examination, the following: “That 160 acres I have got was marked off. It is south, both south and west. It does not take in this barn, and don’t take in this land and those two acres over there. I said it ran south and west. Take the 160 acres, it crossed the road. With reference to these'improvements here that I have just testified about, this 22 acres that is fenced in out there and this barn and garden, etc., with reference to that, my 160 acres Mr. Mixon sold to me is south, south of that. It don’t come up here at all, not quite; I couldn’t say how close. It is on the south side, and then it runs east and west. (Witness marks off the 160 acres on the map.) He (Mr. Mixon) was with us, Mr. Cheshire and others, when we marked it off.” Again: “Mr. Wallis didn’t come down to my house with Mr. Mixon; he didn’t. It was Mr. Majors that came with Mr. Mixon. Mr. Majors is a very large fellow. He is right back there in the courtroom now. He is Mr. Wallis’ father-in-law I think. Mr. Mixon and Mr. Majors, they came to my house on Sunday, I think it was, one Sunday morning. They came to me about me signing up a little paper. I don’t know what that was;. I_couldn’t tell you, Mr. Mixon read it for me. My 160 acres don’t include these improvements here; it has nothing to do with that.” The witness also testified that he had only lived on the Lawson survey a little over two years; that he rented to two or three years from Mr. Mitchell.

Majors testified Metzler told him that he got the land from Childress.

Ira Mixon testified he knew it to be a fact that his father sold some land to Metz-ler, but did not know where the deed was. The Andrew Lawson survey contains 1,476 acres, the east and west lines being 1,500 varas long, while the north and south lines are 5,555.5 varas long. The portions of land inclosed by C. Mixon are situated in the northwest corner of the survey.

We do not think the evidence is such as to warrant the trial court in holding as a matter of law that Mixon parted with the title to 160 acres of the land to Metzler. The testimony of Ira Mixon, an 18 year old boy, relating to a transaction occurring when he was about 10 years old, to the effect that his father sold some land to Metz-ler cannot establish a conveyance in the face of Metzler’s testimony that he only had a “kind of a contract” with C. Mixon. That there was a contract of some kind is undisputed, it is true; but the nature of the contract is vague and uncertain, and the conclusion is irresistible that it was abandoned. Nothing was paid by Metzler, no notes were given, and he rented from' Mitchell and bought from Childress, after which his land was for the first time designated. It is un-contradicted that .Metzler told Majors he bought from Childress. In addition, Metzler filed no answer to the pleadings of inter-vener, but merely pleaded not guilty in answer to plaintiff’s petition. He did not ask that he be given anything on the theory that whatever rights Mixon acquired by limitation passed to him. When Childress and others admitted plaintiff’s title, Metzler did likewise. In the absence of any evidence of the terms of the contract, and with Metz-ler’s own words contradicting his statement that he was holding under the contract with Mixon, together with his utter failure to show that he ever paid any consideration, or complied with any provision of the contract, but on the contrary purchased from another whose title he considered better, we fail to see how it can be said that the evidence was undisputed to the effect that Mixon parted with the title to 160 acres of land to Metzler. Without any issue being made by the pleadings or submitted to the jury as to Metzler’s rights by reason of the contract, the court held that plaintiff, because Metzler admitted plaintiff’s title to be good, should receive Mixon’s land, and that without tendering the price agreed to be paid Mixon by Metzler or inquiring what conditions Metzler had to fulfill and whether he had fulfilled them. Certainly, Metzler himself could never have asked for specific performance by Mixon withbut showing the existence of a contract, and what the contract was, and that he had complied with or tendered compliances with the condition imposed upon him thereby. When sued by Mix-on’s sole heir for the entire survey, and thus notified that such heir claims all the land, Metzler does not set up his contract and tender compliance with its terms, but fails to answer, which strengthens the conclusion so strongly presented by the evidence that Metzler, having purchased from Child-ress and procured a deed, abandoned his contract with Mixon. It is clear the facts were not such as to justify a judgment non obstante veredicto.

Had the title to the land claimed by Metz-ler been in C. Mixon at the time of the contract between them, under the pleading and evidence in this case the court would have been authorized to instruct a verdict against Metzler in favor of intervener.

Appellants make the further contention that, even had the facts indisputably shown a conveyance by C. Mixon to Metzler of the 160 acres claimed by Metzler, still Mixon’s heirs would be entitled to recover 160 acres because the land claimed by Metzler - did not include the improvements made by Mixon; that, as Mixon under the law could only acquire title to 160 acres by virtue of his improvements to include the land on which the improvements wore made, he never acquired title to the 160 acres claimed by Metzler, which lies in the southern part of the survey, and does not include any part of the improvements. Article 5676, Revised Statutes 1911, reads as follows: “The peaceable and adverse possession contemplated in the preceding article, as against the person having right of action, shall be construed to embrace not more than one hundred and sixty acres, including the improvements or the number of acres actually inclosed, should the same exceed one hundred and sixty acres; but when such possession is taken and held under some written memorandum of title, other than a deed, which fixes the boundaries of the possessor’s claim and is duly registered, such peaceable possession shall be construed to be coextensive with the boundaries specified- in such instrument.” This statute does not give the possessor 160 acres-in separate parcels to be selected by him or by any one else, but contemplates that he shall receive 160 acres in a body, and the-same cannot be arbitrarily designated by him nor by the owner of the remainder of the survey, but must be designated by the-court. Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; L. & T. Lumber Co. v. Stewart, 130 S. W. 199.. Mixon could not acquire title to 6 acres in-the northwest corner of the survey, and 154-acres in a separate parcel in the southwest, corner of the survey.

As Mixon never acquired any title-to the 160 acres claimed by Metzler, it follows that Metzler would have acquired no title under a conveyance by Mixon had one been made. Therefore, had such a conveyance been made, plaintiff would not have been prejudiced thereby, but would in a suit have' recovered the land from Metzler. It is impossible to see why plaintiff, upon the theory that such a conveyance was made, should be permitted to avenge Metzler’s supposed wrongs by appropriating the land claimed by Metzler and also that claimed by Mixon. We fail to see how plaintiff can rely upon the doctrine that a purchaser from a co-owner should be protected by setting apart to him the particular tract bought by him if it can be done without injury to the other co-owners. The interest acquired under the statute cited is not undivided in the same sense as would be land acquired under a conveyance calling for an undivided 160 acres in a larger survey. The location of Mixon’s land is fixed to a certain extent, and purchasers must take notice of such fact, and of the • fact that they acquire no title unless they buy. the land whose location is' so fixed. Besides, in this case, as Metzler has surrendered to plaintiff, the latter is in-no way -prejudiced by the supposed Conveyance to Metzler, and loses nothing by reason thereof. -Why should he be permitted to complain of injustice to Metzler? In the case of Snow v. Starr, 75 Tex. 418, 12 S. W. 673, the possessor had improvements partly on sections 3 and 1, and it was held that, although his improvements were partly on section 1, he could not hold said section after conveying section 3, if he claimed section 3 and acquired same by limitation, as by such possession he could only acquire 640 acres, and by making the conveyances he exhausted the title acquired by his possession. His recovery was therefore limited to 9 acres, the amount actually improved on section 1. In the ease of Titel v. Garland, 85 S. W. 466, it was held that where the possessor had inclosed portions of two surveys in one inclosure, and in a suit involving one of the surveys liad unsuccessfully claimed title to 160 acres by virtue of bis possession, be could not afterwards, in a suit involving tbe other survey, claim 160 acres out of same by virtue of such possession. Tbe case was decided upon tbis point alone. Tbe ¡supreme Court granted a writ of error and affirmed tbe judgment (99 Tex. 201, 87 S. W. 1152) upon a different ground from tbe one actuating tbe Court of Civil Appeals, and stated that it was unnecessary to decide wbetber tbe Court of Civil Appeals was correct as to tbe effect to be given to tbe claim made by tbe possessor in tbe first case. From tbe granting of tbe writ it appears tbe Supreme Court doubted wbetber tbe assertion of tbe unsuccessful claim precluded tbe possessor from recovering.

Tbe facts in. tbe cases just discussed are very different from those in tbis ease. Mix-on bad no possession or improvements upon which be could base a claim to tbe 160 acres claimed by Metzler. It could not have been set apart to him by a court, and bis assertion of a claim to it by contracting to sell it, or even a sale of it, could not have divested the title to the 160 acres to which be bad title. Metzler would simply have bad bis remedy upon such warranty as Mixon might have given.

We are of tbe opinion that judgment should have been entered upon tbe verdict, awarding Ira Mixon and tbe Bonins 160 acres of land, to include tbe 6 acres upon which the improvements were made by O. Mixon, as found by tbe jury. All assignments of error are sustained. Upon entering judgment nunc pro tunc, tbe trial court, in bis conclusions of law, expressed tbe opinion herein announced by us, but was deterred from entering judgment in accordance therewith by reason of certain statements made by tbe El Paso Court of Civil Appeals in its opinion reversing and remanding tbe case, which opinion was withdrawn upon discovery of tbe fact that tbe judgment was not final. When an appellate court withdraws an opinion, it should, in deference to the court’s wishes, be treated as if never rendered.

Tbe judgment will be reformed so as to award plaintiff all of tbe tract sued for by him except 160 acres to include the 5 or 6 acres of which C. Mixon bad possession as found by tbe jury, which 160 acres is awarded to Ira Mixon and tbe Bonins, and is to be designated and set apart to them by tbe commissioners named in tbe judgment of tbe trial court. In the matter of costs, tbe judgment will remain as rendered by tbe trial court. As so reformed tbe judgment will be affirmed.

Judgment reformed and affirmed.


text:
    J. M. RADFORD GROCERY CO. et al. v. OWENS et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 22, 1913.)
    1. Injunction (§ 115) —Process — Amendment op Petition.
    Plaintiff sued defendants to restrain tbe execution sale of bis interest in a firm composed of bimself and another, and, after a temporary restraining order was issued, an amended petition was filed by plaintiff and another composing such firm by which they were substituted as plaintiffs, after which a permanent injunction was granted by default. Held, that the court did not have jurisdiction to grant the permanent injunction, where there was no citation or notice to defendants after the filing of the substituted petition and no answer filed thereafter or appearance otherwise made by defendants.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 221, 222; Dec. Dig. § 115.]
    2. Pabtneeship (§ 220) — Enjoining Levy— Intebest in Pabtneeship Property.
    Under Rev. Civ. St. 1911, art. 3743, providing that a levy upon the interest of a partner in partnership property is made by levying a notice with one or more of the partners or a clerk of the firm? a partnership cannot maintain a suit to enjoin the levy of execution upon the interest of a partner, though it would result in suspending the partnership business, since such levy would work no change in possession of the property.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 446-465, 467-469; Dec. Dig. § 220.]
    3. Execution (§ 172) — Injunction — Jurisdiction.
    In a suit to restrain an execution on account of fraud in obtaining the judgment, the writ should be made returnable, under the statute, to the court in which the judgment was rendered.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. § 172.]
    4. Appeal and Eeeob (§ 758) — Fundamental Eeroe — Presentation Below.
    The Supreme Court will notice as fundamental error the rendition of a judgment for plaintiffs on a substituted petition, when -defendants had not been cited and had not filed an answer or otherwise appeared.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    Error to Foard County Court; T. W. Sta-ton, Judge.
    Suit by R. T. Owens and another against tbe J. M. Radford Grocery Company and others. Judgment for plaintiffs, and defendants bring error.
    Reversed and remanded.
    See, also, 159 S. W. 453.
    A. H. Kirby, of Ft. Worth, and R. W. Haynie, of Abilene, for plaintiffs in error. R. S. Houssels and J. Shirley Cook, both of Vernon, for defendants in error.

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

   HENDRICKS, J.

R. T. Owens instituted this suit by original petition and application for injunction against the sheriff of Foard County, Tex., and tbe J. M. Radford Grocery Company, a corporation with its principal place of business in Taylor county, Tex., to restrain tbe sale, under execution, of Owens’ partnership interest in tbe partnership property of Owens & Beaty, a firm composed of D. P. Beaty and R. T. Owens, doing business as a mercantile partnership in said Foard county, Tex. The suit was instituted in the county court of Foard county, Tex., and the county judge awarded a temporary restraining order, and thereafter the Rad-ford Grocery Company filed its plea of privilege to be sued in Taylor county, Tex., further averring that the writ of injunction should be returned to the county court of Taylor county, in which court judgment against the said Owens, upon which this execution was issued, was rendered. Thereafter, by a first amended original petition and with á continuation of the prayer for the writ of injunction, D. P. Beaty and R. T. Owens, composing the firm of Owens & Beaty, were substituted as parties plaintiff in said petition for injunction, and the county court of Foard county entered final judgment and perpetuated the temporary order against the Radford Grocery Company and the said sheriff of Foard county, restraining the sale, under execution, of said Owens’ interest in the partnership property.

No citation or any notice to the Radford Grocery Company or the sheriff of Foard county appear in the transcript, and the amended cause of action mentioned both. There does not appear in the transcript any answer filed by either of the parties defendant, or any appearance, by any method, of said defendants in court, with reference to said cause of action.' It is to be noted that the plea of privilege of the Radford Grocery Company is addressed to the original petition of the said Owens and not to any petition in which Owens & Beaty, as constituting a partnership, are parties' plaintiff.

It is clear that the county court, upon this substituted petition, with the substituted parties plaintiff composing the partnership of Beaty & Owens, could not render a judgment in their favor perpetuating the temporary restraining order without the Radford Grocery Company and the sheriff of Foard county having been notified of said suit or making an appearance in court in some manner in answer to said new cause of action, and this judgment will necessarily have to be reversed upon that ground.

Plaintiffs in error raise the question in this court that the county court of Foard county erred in assuming jurisdiction in this case for the reason that the injunction was to restrain the enforcement of a judgment of the county court of Taylor county, and that said latter county and not Foard county had jurisdiction of said matter. They raise the further question that, when an execution is issued out of the county court of one county, an injunction, restraining the enforcement of said execution, is returnable to and triable in the court from which the execution issued, and that no other court has jurisdiction to determine said matter, citing the statute and numerous cases on that subject in our state; and the affirmative and negative of these questions are the only matters briefed by the parties in this cause. The original petition filed by Owens, as well as the amended petition by Owens & Beaty, contain allegations of fraud leveled at the judgment, addressed more specifically to occurrences at a certain day of a certain term of the court, and an alleged showing that, although the cause was tried, no final judgment was rendered by the judge at that term of the court, and pointing to an alleged fraudulent entry of judgment upon the. trial docket, which was not carried into the’minutes of the court and never approved by the trial judge. There is no allegation, however, that a final judgment was not entered at a subsequent term of the court, but the plaintiffs allege that, if such judgment was made and entered at such subsequent term, the judgment debtor, Owens, had no notice of the rendition of said judgment. In the amended petition, in which the members composing thp partnership became the parties plaintiff, and in whose favor the judgment perpetuating the injunction was rendered without notice, there appear the following allegations in substance: That Owens & Beaty were a mercantile firm, and that the stock of goods on hand at the time of the filing of this suit and of the levy by the sheriff was of the reasonable value of $1,000; that said firm was and is indebted to numerous creditors for the purchase of merchandise in the sum of not less than $1,-500; that the evidences of indebtedness due the firm and collectible will not exceed $200; that, upon an adjustment of the personal accounts due the firm by each of the partners, the said Owens (the judgment debtor in this instance) will be due the said firm not less than $700; “that, if the said business is now suspended and the partnership dissolved, a large amount of said business and trade will be destroyed and a large amount of the notes, claims, and accounts will be rendered uncol-lectible, and the said Beaty will thereby be rendered unable to dispose of said goods at a price that will enable him to pay the creditors of said firm and pay his personal claims against said firm; that if said business is now closed the assets of the firm will be wholly insufficient to pay the indebtedness now due by said firmthat the plaintiff R. T. Owens, “has no present interest in and to the stock of goods levied upon as aforesaid.”

Although not briefed, we may presume that the pleader in this instance is attempting .to place the status of this case within the rule enunciated by Justice Wheeler in the case of Rogers v. Nichols, 20 Tex. 719-726, decided in 1858, in which cause the. facts disclosed that the sheriff levying upon the partnership property of one of the partners for his individual indebtedness actually seized said property and was proceeding to sell the same wlien enjoined by other parties who bad been partners with him in said business, wbieb is not alleged in this cause, and the Supreme Court held that: “If the plaintiffs lien (the other partners) was reserved bona fide, and if, as they allege, the partnership effects were not sufficient to satisfy partnership debts, and the other partner would have, upon a final adjustment of the accounts, no interest in the partnership effects, the sale by the sheriff ought to be restrained.” In that case the partner and judgment debtor, Davis, had contracted to purchase the interest of the other partners, who sought the injunction and who retained a lien upon the property to secure them against the liabilities of the firm, and no distinction was made by Judge Wheeler, and there may not be any between this contractual lien and the ordinary equitable lien of the partner to subject property for that purpose in applying a principle for the right of injunction. However, in studying the underlying reason permitting the writ of injunction in that cause, we note the fact, as stated above, that the sheriff had taken possession of the partnership property in that instance; and Judge Wheeler, continuing, following Judge Storey, says: “If the debtor partner will have, upon final settlement, no interest in the partnership funds, and if the other partners have a lien upon the funds not only for the. debts of the partnership but for the balance ultimately due to them, the sale may most materially affect their interests” — and, following with the real reason why it will affect their interests, it is said: “It may be very difficult to follow the property into the hands of the various vendees; and the lien of the other partners may be displaced or other equities arise by intermediate bona fide sales of the property to purchasers without notice; and the partners may have to sustain all the chances of supervening insolvencies of the immediate vendees.”

It would be useless for us to attempt to review numerous decisions of the courts of other states upon this question, except to say that it seems to have been held both ways, but from our investigation we believe that in all the cases there has been an actual seizure of the partnership property by the officer, when the injunction is granted; and we are unable to find any decision either affirming or denying the right of injunction under a statute similar to ours, originally passed in 1875: “A levy upon the interest of a partner in partnership property is made by leaving a notice with one or more of the partners, or with a clerk of the partnership.” Article 3743, Revised Civil Statutes 1911. The Supreme Court of this state, in the case of Middlebrook v. Zapp, 79 Tex. 321, 15 S. W. 258, in commenting upon this provision, says that it was the intention of the Legislature “not only to provide that manner of levying upon such interests but to exclude any other,” and further says: “The object of the statute was to protect the interests of the partner or partners, who are not defendants in the execution, and the provision is eminently wise and just.” Judge Willson, in the case of Howell Bros. v. Jones & Owen, 3 Willson, Civ. Cas. Ct. App. § 208, involving a levy upon partnership property for an individual debt of one of the partners, said; “The property remains in the actual possession of the firm and is never in fact in the possession of the officer. When the officer sells it under the execution, he does not deliver it to the purchaser, as in ordinary cases of the sale of personal property under execution. The purchaser becomes the legal owner of whatever interest the execution debtor may have in the same, and he is left to ascertain and adjust that interest with the other partners and with the creditors of the partnership.” In view of this statute, passed subsequently to the rendition of Judge Wheeler’s decision, and the evident purposes of the same, as Justice Gaines says, to protect the interests of the partners who are not defendants in the execution, we hold that the injunction by the partnership in this cause is improper, even upon proper notice and the appearance of the other parties to the case. Our discussion and holding in this matter is on account of reversing and remanding the cause, as a matter of direction to the lower court. We are unable to see the injury alleged by the defendants in error in this matter, as there can be no change of possession of this property, and if Owens has no interest he is necessarily uninjured, also the partnership and the other partner. The laboring oar for the ascertainment of this interest, after the sale of the property under execution, if the sale should be made, is as much upon the purchaser at execution sale as upon the other partner. We place no legal value upon the allegation as to the suspension of the partnership business for the reason that, in every sale of a partner’s interest in partnership property under this statute, a dissolution of the partnership necessarily follows; and hence in every case an allegation of that character as an asserted equity, for the benefit of the other partners, which would always occur, would necessarily suspend the sale under execution, although the statute was followed. Of course we are not attempting to anticipate in every respect the course that this proceeding should take in the trial court, but believed it incumbent, in view of another trial, to settle the question of injunction by the partnership, as applied to this case.

It inevitably follows that if there is an attempted reinstatement of the preceding petition, or one of a similar nature, by Owens individually, for the purpose of restraining this execution, on account of the lack of judgment, or on account of fraud in obtaining the same, in the county court of Taylor county, Tex., the writ in this cause should be returnable under the statute to that court in which the judgment was rendered.

The matter of the judgment obtained in favor of the partners, Owens and Beaty, upon an amended causé- af action, although not briefed, is required to be noticed by us as fundamental error. No such judgment, without notice or appearance by the defendants, could have been rendered.

Reversed and remanded.

HALE, J., not sitting:


author: RICE, J.

text:
    INTERNATIONAL & G. N. R. CO. v. BOLES.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 19, 1913.
    Rehearing Denied Dec. 17, 1913.)
    1. Agbicultube (§ 8) — Weeds on Right oí Wat — Penal Statutes — Constbuotion.
    Rev. Civ. St. 1911, arts. 6601, 6602, prohibiting railroad companies from permitting Johnson grass to mature on the right of way, ánd- imposing a penalty in favor of contiguous landowners for its violation, is penal, and should he strictly construed.
    [Ed. Note. — For other cases, see Agriculture, Dec. Dig. § 8.]
    2. Agbicultube (§ 8) — Injury to Adjoining Land — Gbowth of Johnson Gbass — “Contiguous” Land.
    Land which was separated from a railroad right of way only by a parallel public road, which was condemned, from the landowner was “contiguous” to the right of way within Rev. Civ. St. 1911_, art. 6602, permitting one owning land contiguous to the right of way of a railroad company which has permitted Johnson grass to mature on its land to recover a certain sum and actual damages; the fee of the public road still remaining in the landowner.
    [Ed. Note. — For other cases, see Agriculture, Dee. Dig. § 8.

    For other definitions, see Words and Phrases, vol. 2, pp. 1495-1497.]
    3. Eminent Domain (§ 317) — Ownership of Fee.
    A county, condemning land for a public highway, only acquired an easement therein; the fee remaining in the original owner.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 834-840; Dee. Dig. § 317.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by George E. Boles against the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Chambers & Baskin, of Cameron, Doremus, Butler & Henderson, of Bryan, and Wilson, 'Dabney & King, of Houston, for appellant. E. A. Camp, of Rockdale, for appellee.

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

   RICE, J.

The appellee in 1912 was the owner of a 63-aere tract of land, over the south end of which ran a 60-foot public road, leading from Rockdale to Thorndale, in said county, which had been previously condemned by the county for a public road. The International & Great Northern Railway Company’s right of way ran immediately-south of said public road and parallel therewith. The north line of the right of way was fenced, and appellee’s -inclosure extended to the north line of said public road, and ran parallel with the right of way fence, leaving-said public road between his inclosure and the railway right of way. The proof shows, and the court found, that during the months of April, May, June, July, and August of said year said railway company permitted Johnson grass to go to seed upon its right of way, from which it was transferred to plaintiff’s land, and he had -been put to considerable expense and trouble to prevent it from spreading and going to seed thereon, and this suit was brought by him to recover damages against the railway company therefor. The case was tried by the court without a jury,resulting in. a judgment in favor of appellee, for the sum of $101, the amount he had been compelled to expend in an endeavor to protect his land from the encroachments of said grass, from which judgment' appellant has. prosecuted this appeal.

The defense was based on the contention that said tract of land was not contiguous to appellant’s right of way, and therefore he had'no right to recover under the Johnson grass statute (articles 6601, 6602, Rev. Stat. 1911). We think it is true, as contended by appellant, that this statute, being penal in its nature, should be strictly construed; but when such construction is applied to the facts of this case, we think it falls within the letter of the statute, and that the two tracts of land are contiguous in contemplation of law. The statute - (article 6601) makes it unlawful for any railway company doing business in this state to permit any Johnson grass to mature or go to-seed upon its right of way; and the succeeding article (6602) provides that if it shall; appear, upon the suit of any person owning,, leasing, or controlling land contiguous to the right of way of such railway, that such company has permitted any Johnson grass to-mature or go to seed upon its right of way, such person so suing shall recover from such, company the sum of $25, and any additional, sum as he may have been damaged by reason of such company’s permitting said grass to-mature or go to seed upon its right of" way, provided such owner shall not recover in the event he permits Johnson grass to mature or go to seed upon his own land.

The field notes of appellee’s tract of land called for the railroad right of way; and, notwithstanding the county had condemned this strip of land for public road-purposes, it only acquired an easement therein; the fee remaining in appellee. See 37 Gyc. 200 to 208, inclusive; Clutter v. Davis, 25 Tex. Civ. App. 532, 62 S. W. 1107; O’Neal v. City of Sherman, 77 Tex. 182, 14 S. W. 31, 19 Am. St. Rep. 743; State v. Travis County, 85 Tex. 435; 21 S. W. 1029; Elliott on Roads and Streets, p. 522. In 37 Cyc., supra, it is said: “The laying out of a highway gives to the public a mere right of passage,' and the owner of the soil is not thereby divested of his title to the land.” See, also, Lewis on Eminent Domain, § 589. And upon a discontinuance of the highway, the soil and the freehold revert to the owner of the land. Mitchell v. Bass, 26 Tex. 380; Elliott on Roads & Streets, pp. 670, '671. This being true, the county in this case merely possessed the right of easement over said public road, but appellee owned the title thereto, for which reason, in the present case, his land extended, in the literal sense, to the right of way of said railway company, and was absolutely contiguous thereto in the meaning of this statute, for which reason the case must be affirmed.

The writer, however, speaking for himself only, is also inclined to the view that appel-lee’s tract of land in contemplation of this statute was contiguous to appellant’s right of way, irrespective of whether or not he owned the fee to the scrip of land over which this public road ran. While it is true, as contended by appellant, that in its literal sense the word “contiguous” means adjacent, touching, near, adjoining, etc., still in a broader sense, the one in which the word was probably used in the statute, appellee’s tract was contiguous to the railway right of way, since it was only separated therefrom by the public road. This law must be construed with reference to the purpose the Legislature evidently had in view in its enactment, that of protecting land lying along or adjacent to railroad tracks from being injured by reason of the spread of Johnson grass, which might be permitted to mature on the right of ways. Throughout the agricultural districts of this state prior to the enactment of the statute in question, railway companies had been the cause of Johnson grass spreading to adjacent tracts of land, through which they ran, to the detriment of the landowners. This statute was intended to remedy this growing evil by requiring them, under penalty, to prevent such grass from going to seed upon their right of ways, and this purpose must be considered in construing it. Surely it must have been intended to protect those who came within the spirit, as well as within the letter, of the statute.

The question arises, Who are contiguous landowners within the meaning of the law? In order for plaintiff to be damaged, must his tract actually abut on the right of way, or can the statute be so extended in its application as to reach and protect those whose tracts would abut except for an intervening public road? I think so. A public road, in my opinion, is not such a contiguous tract of land as would prevent the application of the statute, because such public road would need no such protection. It could not be thus injured, and therefore it was not the intention of the Legislature to protect it from the spread of such grass; but the tract of land upon which it abuts was the subject of its protecting care. Is this tract contiguous in the sense in which the word is used? Is it not in fact the next or adjoining tract? Certainly, it is so in the sense that no other tract intervenes. Suppose a river or a creek flowed between the railway and the land in question, instead of a public road, could it be urged, with any degree of plausibility, that a farm so situated was not contiguous to the right of way, simply because so separated? Just as much damage or injury would be occasioned from the grass in the one instance as in the other. It is a matter of common knowledge, I take it, that Johnson grass seed can be carried by the wind, or otherwise across streams, roadways, and even over adjoining tracts of land. A 60-foot roadway would not prevent the spread of this grass on the abutting tract, if it were allowed to mature and go to seed upon the adjoining right of way, because it might be carried by the wind across such road. We think the Legislature, in using the expression “contiguous land,” must have intended to protect all tracts that would be actually contiguous to the railway right of way, were it not for such roadway, street, stream, etc.

The cardinal rule in construing a statute is to arrive at the intention of the lawmakers in its enactment (Suth." Stat. Const. § 234); and this intent must be sought in the language of the statute (Id. § 237). And in arriving at the meaning of a particular word, we may consider the whole statute, as well as the purpose of the law. Chancellor Kent has well said: “In the exposition of a statute the intention of the lawmakers will prevail over thé literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the, context, from the occasion and necessity of the law, from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion.”

Our Revised Statutes provide: “That the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but that said statutes shall constitute the law of this state respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with the view to effect their objects and promote justice.” R. S. 1911, p. 1719, sec. 3.

In New Orleans Water Works Co. v. Ernst (C. C.) 32 Fed. 5, 6, it wás held that a person whose property was separated from a river only by a street or public highway was a contiguous person within the meaning of the law. And in Board of Supervisors v. Blacker, 92 Mich. 646, 52 N. W. 951, 16 L. R. A. 432, it was held that, notwithstanding the constitutional provision to the effect that each representative district shall consist of convenient and contiguous territory, two counties separated by a large body of water were convenient and contiguous in contemplation of law.

Again, in Vogel v. Little Rock, 54 Ark. 335, 15 S. W. 836, where it was sought to annex the village of Argenta to the city of Little Rock, which was separated therefrom by the Arkansas river, the application being resisted on the ground that the same was not 'contiguous to the city, since it was separated therefrom by a navigable stream, it was held that the territory was contiguous within the meaning of section 922 of Mansf. Dig., authorizing municipal corporations to annex contiguous territory lying in the same county.

If the fact that the title to the roadway was not in the appellee in the present instance would defeat his right of recovery, then it seems it would result in bringing about a condition of things as I think not contemplated by the lawmakers in the enactment of this statute. Doubtless throughout this state miles of county roads parallel one side or the other of the various lines of railway traversing the state; and if the respective counties through which these roads extend should hold title by deed or otherwise to said public highways, then, under the construction contended for by appellant, we would have the anomalous condition of landowners on the one side of such railways being protected from the encroachments of Johnson grass permitted to mature and go to seed on their right of ways, while those on the opposite side would be left unprotected. This, in my opinion, was never contemplated; but, on the contrary the statute, I believe, was intended to operate so as to protect contiguous landowners on both sides of such railway right of ways, notwithstanding such tracts might abut upon a public road, intervening between them and said railways; and for this additional reason, outside of the one heretofore expressed, I think that the proper disposition has been made of this case, but the decision herein is based alone on the reasons first assigned. On account, however, of the importance of the question involved, I have considered it not improper to give expression to the above views entertained by me.

Judgment affirmed.