text:
    MILLER BROS. & CO. v. H. LESINSKY CO.
    (No. 836.)

    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.
    Rehearing Denied May 2, 1918.)
    1. Justices of the Peace <@=>92 — Pleading —Answer—Sufficiency of Allegations— Accord and Satisfaction.
    An answer alleging a bona fide controversy between the parties as to the amount due, that defendants had sent its draft with a letter saying it was in full payment, which draft plaintiff collected, under the rules applicable to justice and county courts, sufficiently pleads accord and satisfaction.
    2. Accord and Satisfaction <@=>27 — Taking Case from Jury.
    With conclusive evidence of a bona fide controversy between the parties over the amount due, and undisputed evidence that plaintiff cashed defendant’s check sent with a letter stating it was in full payment, an instructed verdict for defendant upon the ground of accord and satisfaction was not error.
    Appeal from El Paso County Court at Law; W. P. Brady, Judge.
    Suit by Miller Bros. & Co. against the H. Lesinsky Company in the justice court, and upon appeal to the county court an instructed verdict was rendered for the defendant, from which the plaintiffs appeal.
    Affirmed.
    McKenzie & Loomis and W. E. Loose, all of El Paso, for appellants. J. U. Sweeney and W. M. Coldwell, both of El Paso, for appellee.

      Second petition for rehearing denied June 6, 1918.

   HARPER, C. J.

This suit was instituted by appellants in the justice court for the sum of $115.51, alleged to be due for goods, wares, and merchandise sold and delivered to appellee under written contract. Appealed to the county court, and from a judgment in the latter court based upon an instruction to the jury, it comes to this court upon appeal.

Defendant denied the execution of the written contract sued on under oath; denied under oath that the sworn account sued on was just, and true, and unpaid, and further pleaded accord and satisfaction in that there was about January 4, 1913, a bona fide controversy and dispute between the parties as to the amount due for goods delivered, for the price of which this suit is brought; that defendant sent to plaintiff its check for the sum of $967.41, inclosed with a letter saying that it was in full payment of the amount by defendant to plaintiff; that plaintiff collected the amount of the draft and appropriated it to their own use; that by said acts they accepted the amount in full payment of the demand aforesaid; therefore there is an accord and satisfaction.

The appellants urge many assignments and propositions, but all seem to be addressed to: First, the sufficiency of the answer to be the basis of proof of accord and satisfaction; second, as to whether certain evidence was admissible in proof thereof; and, third, as to whether there is any evidence that there was not a bona fide controversy as to the justice of the appellant’s claim at the time the check was sent for the smaller amount in settlement of the whole — which would require the court to submit the question to the jury, instead of instructing a verdict for defendant as it did. We think it conclusively appears from the above statement that tile answer was sufficient, under the rules applicable to justice and county court, to admit the evidence.

We are further of the opinion that the evidence conclusively shows that there was a bona fide dispute between the parties as to the amount due on the account prior to the time the check was sent to plaintiff, and that jt is practically undisputed that the check sent was accompanied by a sufficiently clear- and definite statement that it was in full payment of the amount due, and that the creditor plaintiff cashed it and appropriated the money. Therefore the court did not err in instructing a verdict for defendant upon the ground of accord and satisfaction. Bergman Produce Co. v. Brown, 172 S. W. 554.

Affirmed.
      (gssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    KUEHN v. LEUBNER et al.
    (No. 845.)
    (Court of Civil Appeals of Texas. El Paso.
    April 18, 1918.)
    Appeal and Error <f»773(2) — Failure to File Briefs — Motion to Dismiss.
    No briefs having been filed by appellant, ap-pellee’s. motion to dismiss appeal for failure to file briefs will be granted; there being no showing that a copy of appellant’s brief was filed in the trial court, or that there was a waiver of such filing.
    Appeal from San Saba County Court; W. Y. Dean, Judge.
    Controversy between R. W. Kuehn and Carl Leubner and others. Kuehn appeals.
    Appeal dismissed.
    Flack & Flack, of San Saba, for appellant. Walker & Burleson, of San Saba, and John P. Dewald, of Pendleton, for appellees.
   WALTHALL, J.

This is an appeal from the county court of 'San Saba county. The transcript was filed in the Court of Civil Appeals at Austin, Texas, on May 9, 1917. On order of the Supreme Court, the case was transferred to and filed in this court on November 22, 1917. There are no briefs filed by appellant, nor is there a showing that a copy of appellant’s brief was filed in the trial court, or a waiver of such’ filing. Appellees filed a motion herein to dismiss the appeal for failure to file briefs.

The motion is sustained, and the appeal is dismissed.


author: SWEARINGEN, J.

text:
    MONTGOMERY v. GALLAS.
    (No. 6001.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 3, 1918.
    Rehearing Denied May 1, 1918.)
    1. Set-Off and Counterclaim <®=^29(2) — Matters Arising out of Plaintiff’s Cause of Action.
    Where, after default in payment of two of a series of four notes secured by a mortgage, the parties agreed to an extension of time, and possession of property was given to the mortgagee, with right to use the same for a specified work, when property should be redelivered, a cause of action for breach of such agreement arose out of the cause of action to recover on notes and foreclose mortgage, and was incident to and connected therewith, and could be set up as a counterclaim.
    2. Chattel Mortgages <§=>166 — Construction.
    Under agreement, after default in notes, that mortgagee was to take possession of the working outfit covered by mortgage and continue to use the same in the performance- of road work for M. and P„ and that profits should be paid to mortgagor or applied in liquidation of notes, the use, without objection, of the outfit in the construction of roads which mortgagor had not contracted with M. and P. to build was not wrongful, and all that mortgagee was required to pay was profits actually earned, and not the reasonable value of the use of the outfit.
    3. Chattel Mortgages <@=^165 — Depriving Mortgagor oe Use oe Property — Damages.
    Where, after completion of work under agreement that mortgagee was to take possession of the working outfit covered by mortgage and continue to use same, paying profits to mortgagor or applying same in liquidation of notes, and return of property, mortgagee by an illegal sequestration deprived mortgagor of use .of part of the property, mortgagor was entitled to set-off and reasonable value of the use thereof from such date to the date of the trial in an action by plaintiff on the notes, although part of property of which mortgagor was deprived remained in the hands of the sheriff and was not used by the mortgagee.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by W. T. Montgomery against Paul Gallas. Ffom judgment rendered, plaintiff appeals.
    Judgment reformed and affirmed.
    W. R. Abernathy, of McKinney, and Marshall Eskridge, of San Antonio, for appellant. Don A. Bliss, of San Antonio, and G. R. Smith, of McKinney, for appellee.
   SWEARINGEN, J.

Appellant, W. T. Montgomery, brought this suit to recover the amount of three notes made by appellee, all of which were past-due and unpaid, and to foreclose a chattel mortgage lien on the mules and personal property described in the mortgage. Appellee, Paul Gallas, answered, admitting the notes and mortgage, but alleged a cross-action against appellant,' by which appellee sought to set off the amount of the debt evidenced by the notes. The amount alleged in the counterclaim or cross-action was very much greater than the amount of the notes. Special issues were submitted to a jury. Judgment was rendered in favor of appellant for the sum of $481.26 and a foreclosure of the mortgáge lien.

In reply to appellant’s cause of action based upon the three notes for $1,148.67 each and chattel mortgage, appellee admitted the cause of action, but for a cross-action alleged that appellant, on December 6, 1915, wrongfully took possession of all the property described in the said mortgage and thereby prevented appellee from finishing the work contracted with Montgomery &' Perkins, which work appellee would have completed by February 6, 1916, and for which appellee would have made a profit of $1,500. It was further alleged by appellee that 'the reasonable value of the use of the said property thus wrongfully seized by. appellant was $1,000 a month, and that appellant unlawfully retained possession of the said property until June 22, 1916, at which time most of the property was delivered to appellee in a greatly damaged condition. The damage was assessed at $5,000. Appellee further alleged in the cross-action that in July, 1916, appellant again wrongfully deprived appellee of the possession of his said property by an illegal sequestration. A part of the property, consisting-of a few of the mules and some of the equipment, was replevied by appellee himself, but a large portion of the property, all of which was described, was replevied by appellant, while a smaller portion has never been re-plevied, but still remains in the possession of the sheriff, who holds same claiming a lien for costs of taking and keeping. The reasonable value of the use of the property replev-ied by appellant and of that held by the sheriff from the date of the seizure by virtue of the sequestration up to the day of the trial is alleged to be $10,000. Exemplary damages were also alleged and prayed for. There are other allegations in the cross-bill, but the foregoing substantially states the counterclaim material to the questions presented for review.

To appellee’s cross-action appellant answered in a supplemental petition, alleging that appellant took possession of the mortgaged property on December 6, 1915>, under an agreement with appellee by the terms of which appellant was to continue to use the same in performing road work for Montgomery & Perkins in Collin county, Tex.; that appellant in accordance with this agreement did use the teams and equipment for said work until June 22, 1916, when appellant delivered the property in good condition to appellee. The supplemental petition alleged that all the profits made by the use of said property were paid to appellee or for his benefit either upon his order or a valid judgment of a court; that appellant received none of the profits to credit upon the three notes sued upon. The foregoing summary of the pleadings by no means presents a hme verba version, but we think is ample for our purpose.

The sequestration was quashed. The evidence shows that appellee owed four notes of $1,148.60 each to appellant, all secured by a chattel mortgage on the teams and equipment of appellee, and all dated September 1, 1915, and maturing in 60, 90,120, and 150 days from date respectively. On December 6, 1915, two of the notes matured and were unpaid. On that date appellee agreed with appellant for the latter to take possession of the entire outfit, all of which was at that time being used in the building of roads under subcontract with Montgomery & Perkins in Collin county, Tex. It was further agreed that all profits made by said “outfit” should be credited upon the said notes or paid to the order of appellee. This agreement of December 6, 1915, was oral and made between appellee and W. T. Montgomery, appellant, and was not made with the partnership of Montgomery & Perkins. In accordance with this agreement appellant used the outfit on various roads for Montgomery & Perkins. The entire profits earned by the outfit from July, 1915, until June 22, 1916, was $2,858.10. Of this sum appellant received $1,477.80 in payment of cash paid on the order of appellee and in liquidation of the first of the four notes, which first note is not sued for herein. All the balance was paid by Montgomery & Perkins on the order of appellee except about $548.38, which was paid to satisfy a garnishment judgment in favor of Marueheau Grain Company against Montgomery & Perkins. On June 22, 1916, appellant delivered the outfit to appellee. At this time the three notes were past due and unpaid and secured by the chattel mortgage. Appellee moved a part of the “outfit” to Kaufman county, a part to Henderson county, and left a part in Collin county. In July, 1916, appellant caused all the property to be seized by sequestration proceedings. He himself replevied that part seized in Kaufman county, and used same for profit from that time until the date of the judgment herein. The reasonable value of the use of same was $2,290. The portion seized in Collin county was not replevied by any one, but remained in the possession of the sheriff until the time of the trial. The reasonable value of this latter part, from the time seized until the date of the judgment, is $600. The balance of the outfit appellee replevied within ten days after seizure.

The first assignment complains of the trial court’s order overruling appellant’s exception to appellee’s second amended answer. The substance of the exception is that allegations in the answer which, were assailed alleged an unliquidated demand that was not founded upon appellant’s cause of action; that did not arise out of it and was not incident to nor connected with it.

The cause of action alleged by appellant in his original petition was founded upon promissory notes made by appellee payable to appellant and upon a chattel mortgage on teams and tools executed by appellee to secure the payment of the amounts evidenced by the notes. The answer admits the appellant’s cause, but, in offset or as a counterclaim, alleges that after the maturity of two of the notes appellee could not pay them, and thereupon an additional agreement for the payment of the notes was agreed to by appellant and appellee, by which supplemental agreement the time for foreclosing the_ chattel mortgage was extended by appellant :and the possession of the mortgaged property given to appellant, with the right to use same for a specified work; it being expressly agreed that upon' completion of that work in a reasonable time the property would be redelivered to appellee. The breach of this supplemental agreement is the foundation of appel-lee’s counterclaim. The breach alleged is that in violation of the agreement appellant used the property for work other than that agreed upon and refused to redeliver the property to appellee within a reasonable time. Appellee alleged that 60 days was a reasonable time, and alleged that the property was withheld contrary to the agreement for 6 months and 20 days. The value of the use of the property for the excess period was alleged.

We think this supplemental agreement by which appellant obtained possession of the property arose out of appellant’s cause of action and was incident to and connected with it. Spears & Kattmann v. Insurance Co., 31 Tex. Civ. App. 567, 72 S. W. 1018; Tyson v. Jackson Bros., 41 Tex. Civ. App. 128, 90 S. W. 930; Bateman v. Hipp, 51 Tex. Civ. App. 405, 111 S. W. 972. We overrule the first assignment.

The second assignment complains that the judgment erroneously allowed appellee an item of $1,176.40 as an offset against the amount of the notes. The judgment recites that this $1,176.40 was the reasonable value of the use of appellee’s teams and equipment while in the possession of appellant for the period beginning March 6, 1916, and ending June 22, 1916. We infer from the contentions of counsel that the “outfit” was used by appellant for the first 90 days after December 6, 1915, in completion of the roads begun by appellee, and that after 90 days appellant used the “outfit” in the construction of roads- that appellee had not contracted with Montgomery & Perkins to build, which, it is contended, was a wrongful use by appellant, and because of the wrongful use the court decreed the damages to be the reasonable value for the period of the unauthorized work.

In order to sustain such a decree by the court, it must have been determined by the court that the verbal agreement between ap-pellee and appellant of December 6, 1915, by which appellant came into possession of the outfit, expressly bound appellant to use the outfit only in completion of the subcontract begun by appellee and unfinished on December 6, 1915; and further bound appellant to return the outfit to appellee upon the completion of said subcontracts. We do not believe the verbal agreement contained the limitation which the trial court must have placed upon it. On December 6th two of the four notes were past-due; nothing had been paid on any of them. Appellant could at that time have foreclosed his mortgage lien and thereby have forced the payment of his notes, or at least have caused appellee to lose his outfit, for he had no money to meet his debts nor to operate the outfit.

Montgomery offered to postpone the foreclosure and defer the collection of the notes, and further offered to procure the money for operating the outfit and also offered .to advance to appellee money to maintain his family ; all on condition that appellee would surrender to appellant the possession of the outfit. This was agreed to by appellee. It was further agreed that the profits earned by tbe outfit while being used by appellant should be paid to the order of appellee or be applied to the liquidation of one or more of the four notes held by appellant against appellee, or be applied to payment of the cash advanced by appellant upon appellee’s order for the maintenance of the latter's family. No special work was provided for or against by the agreement, neither was any definite time for the retention of possession fixed. Ap-pellee did not object to have his outfit used for building any of the roads on which appellant used them. Appellee seems to have received, possession on June 22, 1916, by agreément with appellant, for at that time only one of the four notes was paid, the other three were still unpaid and long past due. Under the verbal agreement appellant had the right to use the “outfit” on all the construction work performed while in his possession, and by that agreement the compensation to be paid to appellee was the profits that the outfit actually earned under appellant’s management. Appellant could not be charged with what might be proved to be the reasonable value of that use, for such was not the agreement.

The jury found that the entire profits earned by the outfit from July, 1915, to June 22, 1916, was $2,858.10, and further found that ail of this $2,858.10 was legally paid by Montgomery & Perkins to appellee or for his debts. None of it. was paid on any of the three notes herein sued upon. The item of $1,176.40 was erroneously allowed appellee as an offset to the notes sued upon herein by- appellant.

The second assignment is sustained for the reasons stated, which also disposes of the third.

The fourth, fifth, sixth, and seventh assignments complain of error in the admission of testimony. The testimony was properly admitted upon the issues made. We overrule the fourth, fifth, sixth, and seventh assignments.

The eighth, ninth, tenth, and eleventh assignments present error in different rulings of the trial court, but all are founded upon the general proposition that it was error to charge appellant with the reasonable value of the use of appellee’s teams and equipment from July, 1916, until the time of the trial hereof.

In July, 1916, appellant sequestered all the outfit. Appellee replevied a part of it. Appellant replevied a portion and a portion was not replevied by either party, but was left in the possession of the sheriff who seized it by virtue of a sequestration writ. The sequestration was quashed upon motion. The evidence showed that appellant used that portion replevied by him. We think appel-lee was wrongfully deprived of the possession of the two portions of his outfit not re-plevied by him, and that appellant was properly charged with the reasonable value of the use of these two portions from the time appellee was deprived of their possession until the trial. The jury found the reasonable value of the use to be $2,890. This amount should -have been awarded appellee as an offset against appellant’s cause of action. The trial court allowed only $2,790, whereas it should have allowed $2,890.

The assignments numbered 7, 8, 9, 10, and 11 are overruled.

We have considered all of appellee’s cross-assignments and overrule all of them except the seventh and eighth, which complain that the trial court allowed only $2,790 when it should have allowed $2,890. This cross-assignment is sustained.

Eor the reasons expressed in our review of the second assignment, we reform the judgment of the trial court by eliminating the item of $1,176.40 allowed as offset in favor of appellee; and because of the error discussed in our consideration of the seventh and eighth cross-assignments, we increase the item of $2,790 allowed by the trial court for use of the outfit after July, 1916, to $2,890.

In view of these changes, we here reform the judgment so that appellant shall recover of appellee the sum of $1,557.66, together with interest at the rate of 10 per cent, per annum from May 26, 1917, instead of $481.26. In all other respects the judgment is affirmed.
      <@s»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@x=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    EL PASO ELECTRIC RY. CO. v. BENJAMIN et al.
    (No. 833.)
    (Court of Civil Appeals of Texas. El Paso.
    April 4, 1918.
    On Rehearing, May 2, 1918.)
    1. Street Railroads ®=117(5) — Personal Injuries — Jury Question.
    Where the evidence shows that the collision and consequent death of plaintiff’s wife was proximately caused by the negligence of the motorman of defendant’s street car, and that deceased was not contributorily negligent, a peremptory instruction for the defendant was not warranted.
    2. Negligence <©=5136(30) — Imputed Negligence.
    The negligent failure of the driver of an ¿utomobile to yield the right of way to- a street car as required by city ordinance, and which resulted in a collision, is not imputable, as a matter of law, to one riding as a mere guest.
    3. Street .Railroads <@=^118(13) — Crossing Accidents — Care Required.
    An instruction that plaintiff’s deceased wife was not guilty of contributory negligence, if she was a mere guest and in no control over the automobile, unless she failed to keep a lookout for defendant’s street car, and failed to warn the driver of its approach, or negligently rode with the curtains as they were, held fair to defendant.
    4. Th.tat. <@=^251(8) — Instructions—Applicability to Case.
    Refusal of an instruction drawing distinction as to whether defendant’s street car ran into the automobile or the automobile ran into the street car, causing the death of plaintiff’s ■wife, was not error, where the petition was broad enough to cover either phase of the case.
    5. Street Railroads @=>90(3) — Injuries — Lookout — Law oe the Road.
    An ordinance providing that drivers shall look out for and give the right of way to vehicles approaching street crossings from the driver’s right does not relieve a motorman from the duty to look out for an automobile approaching from his left.
    6. Street Raileoads @=>117(8) — Injuries to Persons on Track — Question for Jurt.
    Where there was ample evidence that the motorman was negligent in not having his car under reasonable control on approaching the street crossing, where it collided with an automobile causing the death of plaintiff’s wife, the court properly submitted the issue to the jury.
    7. Death @=>104(6) — Measure of Damages— Instruction — “Pecuniary Benefit. ’ ’
    An instruction that by “pecuniary benefit” is meant, not only money, but everything that can be valued in money, and in the case of minor children the reasonable pecuniary value of the nurture, care, and education, if any, the jury believed from the evidence they would have received from their mother, deceased during their minority, had she lived, but that the jury would not allow anything for grief or sorrow or for the loss of the mother’s society, affection, or companionship, held proper.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Pecuniary Benefit.]
    8. Death @=>91 — Mitigation.
    That children have an older sister, who might nurture and care for them as their mother would have done, is not to be considered in mitigation of damages for death of mother.
    9. Appeal and Error @=>1053(2) — Harmless Error.
    Assignments of error as to the admission of evidence present no reversible error, where the court instructed the jury to disregard the same for all purposes, and where such evidence was competent and admissible in rebuttal of evidence offered by defendant, and admitted over plaintiff’s objection.
    10. Death <@=>99 (4) — Excessive Yerdict — Pecuniary Loss.
    Damages awarded to two minor children, in respective sums of $3,000 and $6,000, for the wrongful death of their mother, held not excessive, nor indicative of passion or prejudice.
    On Rehearing.
    11. Trial @=229, 240 — Instruction—Argument and Repetition.
    Appellant’s .offered ' instruction, which was argumentative, and, if given, would have been an undue repetition of defense issues submitted in the main charge, was properly refused.
    Appeal from District Court, El Paso County; Ballard Cold well, Judge. '
    Suit by F. H. Benjamin and others against the {El Paso Electric Railway) Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed. Rehearing denied.
    Davis, Goggin & Harrington, of El Paso, for appellant. Goldstein & Miller, of El Paso, for appellees.
   HIGGINS, J.

Mrs. F. H. Benjamin was riding as a guest of Mrs. R. L. Morris in an automobile being driven northerly on Octavia street, in the city of El Paso. The car was driven by Mrs. Morris. At the intersection of Octavia and Arizona streets, the automobile collided with a street ear of appellant, which was going westerly on Arizona street. As a result of the collision, Mrs. Benjamin was killed. The undisputed evidence shows that Mrs. Benjamin had no control over the operation of the automobile. This suit was brought by her surviving husband and children to recover damages resulting from her death. Yerdict was returned and judgment rendered for $9,000, in favor of two of the minor children, apportioned as follows: To Katherine Benjamin, $3,000; to Margaret Benjamin, $6,000. Nothing was awarded the other plaintiffs. From this judgment, the defendant appeals.

It is assigned as error that a peremptory instruction in defendant’s favor should have been given, and that the evidence is insufficient to support the verdict and judgment. There is .evidence in the record that the collision and consequent death of Mrs. Benjamin was proximately caused by the negligence of the motorman operating the street car, and that it was not caused or contributed to by any negligence on the part of the deceased. An issue of fact was raised, which it was the province of the jury to pass upon, and its finding is supported by the evidence. It will serve no purpose to incumber this opinion with a statement of the evidence supporting this conclusion. In this connection it is asserted that the failure of the automobile to yield the right of way to the approaching street car, as required by city ordinance, was the cause of the accident, and therefore the accident was the result of no negligence on the part of defendant. The finding of the jury establishes defendant’s negligence as a proximate cause of the accident, and, conceding that the failure of the automobile to yield the right of way was a contributing negligent cause, yet the negligence in this respect of Mrs. Morris, the driver, was not imputable to the deceased. Railway Co. v. Kutac, 72 Tex. 643, 11 S. W. 127; Railway Co. v. Rogers, 91 Tex. 52, 49 S. W. 956; Railway Co. v. Gibson, 83 S. W. 864; Lyon v. Phillips, 196 S. W. 995.

The refusal of defendant’s special charge No. 4 presents no error, for the reason that every defensive issue therein submitted was sufficiently covered by the general charge and special charge No. 5 given at defendant’s request.

Error is assigned to that portion of paragraph 9 of the charge which reads:

“The negligence of the driver, Mrs. Morris, if any, cannot be imputed to Mrs. May Benjamin, unless Mrs. Benjamin had some control over the operation of the automobile.”

The entire paragraph reads:

“The negligence of the driver, Mrs. R. L. Morris, if any, cannot be imputed to Mrs. May Benjamin, unless Mrs. Benjamin had some control over the operation of the automobile. Defendant relies, in part, on the contributory neg-Iigence of Mrs. May Benjamin, and in this connection you are instructed that if you find that Mrs. May Benjamin was negligent in riding in the automobile with the curtains as they were, and that such negligence, if any, proximately caused or proximately contributed to cause her injuries, plaintiffs cannot recover; or if Mrs. Benjamin failed to keep a lookout for the approach of the street car, and failed to warn the driver of the automobile, Mrs. Morris, of the approach of said car, and if you find that Mrs. Benjamin was negligent in failing to keep a lookout for the street ear, or in failing to warn Mrs. Morris of its approach, and that such negligence, if any, of Mrs. Benjamin proximately caused or proximately contributed to cause her injuries, plaintiffs cannot recover, and your verdict will be for the defendant.”

Under the authorities in this state, the negligence of Mrs. Morris in the operation of the car, if any, cannot be imputed to the deceased. See authorities, supra. The instruction quoted presented fully all defensive issues presented by the" evidence arising out of the actions of the, deceased at the time and place of the accident. It covered fully all suggested phases of contributory negligence of deceased and is in accordance with the rule announced in the Kutac Case. It was not misleading, and, if anything, imposed a greater burden upon appellees than the law required.

It is complained that:

It was error to refuse defendant’s special charge which reads: “ ‘If you believe from the evidence that the street car of the defendant did not run into the automobile in which Mrs. Benjamin was riding, hut that said automobile ran into the street car, you will find for the defendant’ — because plaintiff’s case was based upon damages alleged to have been sustained as the proximate consequence of defendant’s street car running into the automobile in which Mrs. Benjamin was riding, .and plaintiffs were not entitled to recover if the automobile ran into the street car and the street car did not run into the automobile.”

That a collision occurred is undisputed. This could not be, unless the two objects ran into each other. This charge seeks to draw a fine-spun and technical distinction, which we think is unwarranted. However this may be, the allegations in the petition are broad enough to cover either phase of the case, so it makes no difference whether the car ran into the automobile, or vice versa.

Under the eighth and ninth assignments, complaint is made of the submission of the motorman’s failure to maintain a proper lookout as the street car approached Octavia street. This proposition is submitted:

“A necessary element of negligence is a legal duty, and without a legal duty resting upon the party charged with the breach of such duty, there can be no negligence or any other species of tort.”

Defendant apparently bases this proposition upon an ordinance of the city of El Paso which reads:

“The driver of all vehicles in or upon every street must look out for and give right of way to vehicles approaching simultaneously from their right at street intersections, excep.t as otherwise provided in this ordinance.”

As we understand appellant’s contention, it is that by virtue of this ordinance there was no legal duty resting upon the motorman to maintain a lookout for the automobile, which was approaching from his left. We do not conceive this to be the law. Upon the contrary, it was the duty of the motorman to keep a proper lookout for all persons attempting to cross the car tracks at the intersection of public streets. Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 520; Railway Co., v. Phillips, 37 S. W. 620; Railway Co. v. Gibson, 83 S. W. 863.

The tenth and eleventh assignments complain of the submission of the motorman’s failure to exercise ordinary care to avoid a collision after discovering the approach of the automobile; the proposition advanced being as follows:

“The court by its charge nullifies the city ordinance that requires the automobile to give right of way to the street car, and adopts the contrary rule, that it was the duty of the motorman, upon discovering the approach of the automobile, to use such care and caution as a man of ordinary prudence would commonly use under the same or similar circumstances to give right of way to the automobile.”

We do not see how the submission of this issue nullifies the ordinance. The ordinance certainly does not have the effect of relieving the driver of a vehicle from exercising ordinary care to avoid collision with a vehicle which he sees approaching from his left. The ordinance prescribes a rule of the road, but a driver is not thereby relieved of the duty to use ordinary care to avoid injury to one who is not observing the rule.

There was ample evidence to raise the issue of negligence on the part of the motorman in not having his car under reasonable control in approaching the Octavia street crossing. The court, therefore, properly submitted the issue.

The court’s charge defined pecuniary benefit as follows:

“By pecuniary benefit is meant, not only money, but everything that can be valued in money, and, in the case of minor children, the reasonable pecuniary value of the nurture, care, and education, if any, you believe from the evidence they would have received from the said May Benjamin, deceased, during their minority, had she lived. If you find for the plaintiffs, you will not allow them anything for .any grief or sorrow for the death of the said May Benjamin, or for the loss of her society, affection, or companionship.”

This definition, is the approved and accepted charge upon that subject in this state. It correctly states the law, and was properly given. Railway Co. v. Williams, 117 S. W. 1043; Railway Co. v. McVey, 99 Tex. 28, 87 S. W. 328; Railway Co. v. Hurdle, 142 S. W. 902; Railway Co. v. Younger, 90 Tex. 387, 38 S. W. 1121. Under these authorities, such an instruction is proper, even though the evidence shows that the mother made no contribution of money for the benefit of the family, or minor children. Under the authorities cited, the definition was correct, and all of the objections urged against it are overruled.

It is further objected to this charge that it was tantamount to an order that the jury put a pecuniary value upon the nurture, care, and education that would have been received from the mother, and find that value in favor of the minor children, though the jury believed the nurture, care, and education that the minors would receive from their adult sister was of more value than that which they would have received from their mother, had she lived. The charge is not subject to the criticism indicated. The fact that the minor children had an adult sister, who to some extent would supply the place of the mother, does not in any wise operate to mitigate the damages for which appellant is liable, for the negligent killing of Mrs. Benjamin. Younger Case, supra.

Assignments 19 to 25 complain of the admission of improper evidence. They present no reversible error for two reasons. In the first place, the court withdrew the same from the jury, and instructed it to disregard the same for all purposes. Church v. Waggoner, 78 Tex. 203, 14 S. W. 581. Furthermore, it was competent and properly admissible in rebuttal of evidence offered by defendant, and admitted over plaintiff’s objection. For this reason, defendant is not in a position to complain of its admission.

The remaining assignments assert that the verdict in favor of the two minor children, for $3,000 and $6,000, respectively, is excessive, and shows that it was the result of passion and prejudice. We do not regard the amount of the verdict as excessive, or as indicating passion or prejudice. Railway Co. v. Johnson, 10 Tex. Civ. App. 254, 31 S. W. 255; Railway Co. v. Riden, 194 S. W. 1163.

Affirmed.

On Rehearing.

Appellant urgently insists that we erred in holding that defendant’s special charge No. 4 was properly refused, for the reason that every defensive issue therein submitted was sufficiently covered by the general charge No. 5, given at defendant’s request.

We adhere to this ruling, but it may be well to say that it was properly refused for the further reason that it was argumentative; further, that to have given the same would have been an undue repetition of defensive issues submitted in the main charge and special charge No. 5.

Motion for rehearing is overruled.
      <@=5jE’or other oases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes

      cgsjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    EAST SIDE REALTY CO. v. FOWLER.
    (No. 7928.)
    (Court of Civil Appeals of Texas. Dallas.
    March 30, 1918.
    Rehearing Denied May 4, 1918.)
    Injunction <@=U23 — Pleading and Pboof —Title to Land — Deed.
    In a suit for injunction to compel removal of a ditch constructed by defendant across plaintiff’s land, a special warranty deed to plaintiff from his vendor was admissible as a link in his chain of title, though plaintiff’s allegations did not show title from the sovereignty of the soil, where he testified without objection that he was the owner of the lot, and there was other evidence carrying his title back to the sovereignty of the soil, and there was neither plea nor proof that any one other than plaintiff owned the land.
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Suit by D. E. Fowler against the East gide Realty Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    H. E. Kenny and Walter M. Nold, both of Dallas, for appellant. George & Hardwicke, of Dallas, for appellee.
   RAINEY, C. J.

This suit was instituted by appellee against appellant for a mandatory injunction, alleging that appellee was the owner of a certain lot, describing it, and further, in substance:

“That said property was situated in the residence portion of the city of Dallas, and was suitable for building purposes; that on or about January 1, 1915, defendants, without plaintiff’s knowledge or consent, dug a ditch through said property practically the width and entire length of said property, from three to four feet deep, for the purpose of turning surface water that gathered and accumulated upon the property of defendant, situated some distance from the property in question; that by reason of the excavation all the surface water accumulating on contiguous property was caused to flow through said ditch and over plaintiff’s land each time it rains, by reason of which plaintiff’s property has been irreparably injured, ruined as a residence lot, said ditch creating a nuisance and endangering the lives and health of the occupants of any residence which might be erected thereon; that the damage resulting therefrom is incapable of ascertainment; that plaintiff has no adequate remedy at law, and if defendants are permitted to maintain said ditch, such act will ripen into permanent easement, and plaintiff would be deprived of the use of the lot and the value of the land; that the sale of said property by reason qf the excavation is greatly impaired; that defendant, without plaintiff’s authority or consent, had willfully trespassed upon said property, built and maintained said ditch, caused surface water to be turned thereupon; that the lot in question is more valuable to plaintiff than its reasonable market value. Plaintiff prayed that a mandatory injunction be granted requiring the defendants to restore said lot to its former condition, for costs of suit.”

Appellant answered by general demurrer and general denial.

A trial resulted in a judgment in favor of appellee, fr.om which this appeal .is taken. The evidence fully established the material allegations of the appellee’s petition.

Only one assignment of error is presented, by appellant, which is:

“The court erred in admitting in evidence, over the objection of this defendant, the deed from D. [B.] L. Wade to D. E. Fowler, purporting to convey to him the property which is alleged to be the property for the restoration of which is sought a mandatory injunction against this defendant, because it was not alleged or proven that plaintiff was in possession of said property, and it was not alleged or proven that plaintiff’s supposed grantor had any title to said property, all of which more fully appears from this defendant’s bill of exception Ño. 1.”

The proposition submitted under this assignment is:

“This being a suit for mandatory injunction to restore to plaintiff in its former condition a lot of land alleged to have been appropriated by defendant by digging a ditch therethrough, practically the size of the lot, it was error for the trial court to admit in evidence, over defendant’s objection, a deed purporting to convey the land to plaintiff, there being no allegation or proof that plaintiff was in possession of the land or that his supposed grantor had any title thereto.”

The deed objected to by appellant and admitted in evidence is in the usual form of warranty deed, except the warranty is restricted to those claiming by, through or under the grantor and was executed by B. L. Wade to D. E. Fowler, conveying the lot in controversy.

The objection to the introduction of said deed was that there was no allegation in ap-pellee’s petition showing title from the sovereignty of the soil in plaintiff.

The deed was a muniment in th'e chain of title, but there was no connection shown with the sovereignty of the soil by it. Yet with other evidence introduced by the appellee it was admissible as a circumstance to prove ownership in the lot in appellee, who by oral testimony, without objection, testified that he was the owner of said lot, and the agent of appellant admitted the ownership to be in appellee. Such oral proof was sufficient to establish ownership in . the lot. Wetzel v. Satterwhite, 59 Tex. Civ. App. 1, 125 S. W. 93; Campbell v. Peacock, 176 S. W. 774; 17 Cyc. 484.

There was no plea or proof that appellant or any one other than appellee owned the land.

The evidence fully sustains appellee’s right to a recovery, and the judgment is affirmed.

Affirmed.
      <g=»Por oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    NUECES COUNTY DRAINAGE DIST. NO. 2 et al. v. GARRETT, County Treasurer.
    (No. 6018.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 17, 1918.)
    Mandamus <®=v106 — Counts' Treasurer — Mingling Funds — Shortage on Predecessor.
    Where a county treasurer has defaulted, and it is impossible to ascertain from which funds the money was taken, his successor cannot be compelled by mandamus to pay the full amount of funds due to a drainage district, and it is immaterial that he may have wrongfully paid money out of other funds; and Rev. St. 1911, art. 700, prohibiting the diverting of interest and sinking funds, and article 2608, requiring a special bond for drainage funds, have no application.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Proceedings in mandamus by Nueces County Drainage District No. 2 and others against H. N. Garrett, County Treasurer. From a judgment denying the writ, applicants appeal.
    Affirmed.
    R. B. Russell, of Corpus Christi, for appellants. E. H. Crenshaw, Jr., of Kingsville, and J. M. Taylor, of Corpus Christi, for ap-pellee.
   FLY, O. J.

Nueces county drainage district No. 2, the First State Bank of Robs-town, and C. C. Brendle, George H. Peters and L. T. Messer, drainage commissioners for said district No. 2, applied for a writ of mandamus directed against appellee, the treasurer of Nueces county, to compel him to pay over to the drainage district and its designated depository, the First State Bank of Robs-town, Tex., the sum of $11,466.48, which it was alleged belonged to said drainage district and had been deposited with the treasurer for safe-keeping, and which the treasurer refused to pay to the said district, and which it needed and required to pay off certain bonds that were about to mature. Ap-pellee answered that, if, the money was ever collected and paid to the treasurer of Nueces county, it was paid to his predecessor in office, H. C. Gussett, and that it was blended and mingled with other funds and other sums of money belonging to the county; that after appellee qualified as treasurer the said Gussett delivered to him the sum of $55,-433.15; that said Gussett did not designate any part of the money as belonging to appellants, and did not give any information by which it could be ascertained what part should be credited to the drainage district; that said Gussett should have delivered to appellee the sum of $82,208.84, and consequently there was a deficit of $26,775.69, and it was impossible to determine in what fund or funds such deficit exists; and that the payment by appellee to appellants of the sum demanded by them would inevitably deplete pro tanto the other public funds that belong to Nueces county. The writ of mandamus was denied.

The evidence sustained the allegations in appellee’s answer. The evidence indicated a shortage in the funds delivered to appellee by his predecessor of more than $26,000; of a mingling and blending of all the funds in the hands of the treasurer, making it impossible to determine out of what particular fund the defalcation was taken. This court adopts the conclusions of fact of the trial court.

Appellee was in no position to determine what part of the funds in his hands belonged to the drainage district, or what pro rata of the money turned over to him should be allotted to each particular fund. There was nothing so sacred or peculiar about the drainage money that it could not be appropriated by an officer who had it in charge. It was mingled with other moneys belonging to the county, and appellee would at his peril pay out of the depleted sum delivered to him the full amount of the money belonging to the drainage district. The fact that he may have paid checks on other funds would not form the basis for a writ of mandamus to pay the one in controversy. It may be that he assumed an authority in those instances which he had no legal right to assume. He cannot be compelled to assume such power in this instance.

Article 700, Revised Statutes, does not sustain the contention that the treasurer should be compelled by mandamus to pay the entire amount of the money belonging to appellants out of the depleted county funds. It merely provides that no city or county treasurer shall honor any draft upon the interest or sinking fund provided for any of the bonds of such city or county, nor pay out or divert the same from the purposes for which it was collected. It does not intimate that, if it should be stolen or embezzled, the treasurer should replace it out of other county funds.

Article 2608, Revised Statutes, which is cited by appellants, merely provides that the county treasurer shall be the drainage district treasurer, and shall give a certain character of bond. It does not point to the conclusion that a successor to a defaulting treasurer can be compelled to pay out of mingled funds of the county the amount of the drainage fund, but rather indicates a suit on a bond to obtain the money. There are authorities holding a contrary doctrine to that contended for by appellants.

In the case of City of Austin v. Cahill, 88 S. W. 536, the funds had been commingled and a writ of mandamus was sought to compel the payment of a certain fund. The court held:

“In the present case it clearly appearing from the record that other parties not before the court are interested in the funds sought to be appropriated to the payment of appellee’s judgments, and that they will be materially affected by the issuance of the writ, and it also appearing that appellee is seeking to require the appropriation of funds collected and held by the city as an interest and sinking fund, it appearing that no separate accounts were kept for interest and sinking funds, but that the same were blended, and that it would be impossible to determine from the record how much of said fund belonged to one and how much to the other, we conclude that this case falls clearly within the rule announced by Judge Stayton, and that the writ should not be granted, and that there was error in the judgment of the court overruling appellants’ exceptions to said petition.”

The opinion referred to is in the case of Railway v. Jarvis, 80 Tex. 457, 15 S. W. 1089.

The writ of mandamus does not lie when anything remains to be done or fact to be ascertained. Thus in the case of Clayton v. McWilliams, 49 Miss. 311, cited by Merrill on Mandamus, § 42, a writ of mandamus was applied for to compel the county treasurer to pay a warrant of the board of police; it appearing that it was to be in Confederate money. The court held that the difference in value in that money and legal money could not be ascertained, and the writ should not issue. In this case it was impossible for ap-pellee to know which funds had been left in the depleted treasury, and he could not be compelled to pay out one fund to the detriment of another, and probably thereby subject himself to a suit by those interested in other funds. Appellants doubtless will be able to collect their money, but not by mandamus.

The judgment is affirmed.
      ©=5kor other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    DECKER v. RUCKER.
    (No. 8791.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 23, 1918.
    On Correction of Judgment, April 6, 1918. Rehearing Denied April 27, 1918.)
    1. Boundabies @=46(1) — Settlement by Pa-bol Ageeement.
    Boundary disputes may be settled so as to pass title by definite and unconditional parol agreements between the owners of abutting tracts.
    2. Boundabies @=46(1) — Settlement by Pa-eol — Validity oe Ageeement.
    Where the former owner of plaintiff’s tract agreed with the former owner of defendant’s tract to a line surveyed as a boundary between the tracts, upon condition that his tract should not be left with less than 80 acres, and defendant admits that plaintiff was entitled to recover, unless defeated by some special defense pleaded, the line surveyed cannot be held to be the true boundary.
    3. Evidence <@=>265(5) — Admissions—Bound-abies.
    Defendant’s admission that plaintiff was entitled to recover, unless defeated by some of the special defenses pleaded, was an admission that plaintiff’s deed and the deeds through which ho deraigned title conveyed the legal title to the strip in controversy.
    4. Boundabies <@=>48(6) — Acquiescence—Ee-xbot.
    In suit involving title to a strip of land on a boundary between the tracts of plaintiff and defendant, plaintiff’s failure to protest against improvement of strip, and his apparent silent acquiescence in claims asserted by owners of defendant’s tract, held at most to show that the true boundary line was where defendant claimed it to be.
    5.- Boundaries <@=>47(3) — Acquiescence in Improvements — Ignorance.
    Mere silence and failure of plaintiff to protest against improvements by defendant at great expense of a strip on the boundary would not estop plaintiff from claiming the strip as against defendant, where plaintiff did not know the location of the true boundary line at the time the improvements wore made; the means of ascertaining the true boundary being as open to defendant as they were to plaintiff.
    6. Boundaeies ©=347(3) — Estoppel — Improvements.
    Allegations that defendant was ignorant of the location of the boundary lino, that the same was known to plaintiff, and that by silence of plaintiff defendant was induced to make improvements on the strip in controversy, were necessary to show an estoppel against plaintiff.
    7. Boundaries ©=>47(5) — Estoppel.
    Binding that when the survey was made by T., L., who then owned defendant’s tract, informed W., who then owned plaintiff’s tract, of his intention to sell the land by the acre, and up to the line located by T., and that W. replied that he would agree to said line, that it suited him just so he had his 80 acres, and that pursuant to said agreement B. sold to M., up to said line, would not show an estoppel: first, because there was no proof that L. was thereby placed in a worse position; second, because there was no proof that -by reason of such conditional agreement M. was induced to buy such excess in acreage; and, third, because none of the facts were pleaded by defendant as an estoppel against plaintiff.
    8. .Trespass to Try Title ©=>59 — On Correction op Judgment — Value op Improvements — Findings.
    A finding of the value of the improvements placed by defendant on the strip in controversy was essential for rendition of final judgment for value of improvements by the court, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7763-7768, as to damages for improvements in trespass to try title, and as to judgment or decree reciting estimated value of the premises without the improvements.
    Error from District Court, Erath County; W. J. Oxford, Judge.
    Suit by J. T. Decker against Bill Rucker. Judgment for defendant, and plaintiff brings error.
    Reversed and rendered in part, and reversed and remanded in part.
    Chandler & Pannill, of Stephenville, for plaintiff in error. Hickman & Bateman, of Stephenville, for defendant in error.
   DUNKLIN, J.

This suit involved the title to a strip of land, but was in reality a controversy over the location of the boundary line between a tract of land owned by plaintiff, J. T. Decker, and a tract owned by the defendant, Bill Rucker; the disputed line being the west boundary of plaintiff’s tract and the east boundary of defendant’s tract. The trial was without the aid of a jury, and upon findings of fact and conclusions of law, which were reduced to writing and filed by the trial judge, judgment was rendered in favor of the defendant, from which plaintiff has prosecuted this writ of error. Upon the trial the defendant admitted title in plaintiff to the land in controversy, except in so far as it might be defeated by facts specially pleaded in his answer as defenses to the suit, which defenses will now be noticed. The statutes of limitation of three, five, and ten years were all pleaded, but the court failed to sustain any of those pleas presumably, because of a lack of evidence to support them.

Another defense specially pleaded was that about the year 1900, one Geo. Reaves, who was then the owner of plaintiff’s tract, and H. J. Bingham, who was then the owner of defendant’s tract, by agreement established the boundary line between the two tracts, the location of which was then in dispute between them, and that according to the line as so established defendant is the owner of the strip of land in controversy. But this defense was not sustained by the court and need not be further noticed.

Other defenses pleaded were as follows: First, that during the year 1910 there arose a dispute between D. P. Lester, who then owned the tract now owned by the defendant, and Jno. M. Webb, the then owner of the tract now owned by plaintiff, as to the true location of the boundary now in controversy, and by agreement between them then made the line was located and fixed on the ground, in accordance with which location the land in controversy lies within the boundaries of the land described in Lester’s deed and in defendant’s deed; and that ever since said agreement as to the boundary line the same as then fixed has been recognized and acquiesced in by said Webb and his subsequent vendees, including plaintiff.

Another special defense pleaded was one of estoppel, and is as follows:

“Defendant also says that independent of the agreement set out in the preceding paragraph, that the plaintiff by his own words, conduct, and actions has agreed to the boundary line above described in the following manner: That after plaintiff had purchased the land upon which he now resides, and after the defendant had purchased the land upon which he now resides, the plaintiff knowing that defendant’s deed-called for the boundary line herein described and mentioned, and knowing that said defendant claimed said boundary line as the true division line between the lands of plaintiff and the defendant, stood by and permitted and watched, without protest, the defendant shrub, grub, and plow six acres on defendant’s side of the agreed boundary line, and a portion of the land herein sued for, at an enormous expense to defendant, without in any wise objecting to or protesting against it, and without informing this defendant that he (plaintiff) claimed any portion of said land. Wherefore defendant says that such actions on the part of plaintiff was in fact and in law an agreement that the boundary line herein described was the true division line between the land of plaintiff and the defendant, and that the plaintiff having failed to speak when it was his duty to speak, is now estopped to deny said agreed boundary line and set up another and different one.”

Defendant pleaded further improvements in good faith, and in the alternative prayed for judgment for their value if the land should be decreed to belong to plaintiff.

Following are the findings of fact and conclusions of law filed by the trial judge:

“I find: That plaintiff has a deed to and is the owner of 80 acres of land, more or less, out of the said D. B. Madden survey, and that defendant has a deed to and is in the possession of 50acres of land of tlie said Madden survey, which land lies west of and adjoining the land of plaintiff. That the said tract of land now owned by defendant was originally called and conveyed as a 40-acre tract, more or less. That it was generally understood to contain more than 40 acres. That in the year 1904 R. R. Shelton, who was then the owner of the said 40-acre tract of land, conveyed same to N. O. Spic-er, and just before said Spicer bought said land from Shelton the said Shelton pointed out the four corners to said tract of land, and that Spicer bought same with reference to said corners, and deeded same to said Spicer as 40 acres of land, more or less. That at that time one Marion Shelton, a brother of said R. R. Shelton, owned and was in possession of the land now owned by plaintiff, and had knowledge of and acquiesced in said corners.
“I find corners of said 40-acre tract so pointed out to said Spicer by the said R. R. Shelton were as follows: The southwest corner a gun barrel in ground; the southeast corner a sandstone; the northeast corner a petrified rock in ground; and for the northwest corner, a rock in the ground. That all of these corners appeared at that time to be old and well established. That there is, and was not at that time, a division fence between the land owned by plaintiff and the land owned by defendant, but there is an old fence on the land belonging to plaintiff about 40 or 45 yards east of and parallel to the line between the petrified rock and the said sandstone. That said fence was generally recognized as not being on the line separating said two tracts of land. That said N. O. Spicer sold said 40-acre tract of land to E. R. Spicer, who bought said tract of land with reference to said corners pointed out by R. R. Shelton. That said E. R. Spicer was present when the corners to said tract of land were pointed out to the said N. O. Spicer by said Shelton. That said E. R. Spicer in turn sold same to D. P. Lester, and that in each of the transfers just mentioned said land was deeded as ‘40 acres, more or less.’ That while said D. P. Lester owned said tract of land, he cleared and put into a state of cultivation something like 4 acres alongside and just west of the line between the petrified rock and sandstone, which line was then recognized as the division line separating the 40-acre tract and the 80-acre tract. That at this time one John Webb owned and was in possession of said 80-acre tract. That said Webb knew that said Lester was putting said land in cultivation, and never said anything to the said Lester about being over the line, and never objected to Lester’s clearing said land. That while Lester owned said tract of land, he procured one Thompson, a surveyor, to survey his said land. That while D. P. Lester was having said land surveyed, he called the said John Webb, who still owned the 80-acre tract of land, for the purpose of agreeing upon and establishing a permanent division line between said two tracts of land. That said surveyor located the northeast corner of said 40-aere tract of land at the petrified rock in the ground. That the said D. P. Lester stated to the said John Webb that he wanted to sell his land by' the acre, and for that reason he was having same surveyed. That Lester asked Webb if he (Webb) would agree that said petrified rock should mark and establish the true division line between their said two tracts of land. That the said Webb thereupon stated that he would agree to said line; that it suited him, just so he had his 80 acres. That pursuant to said agreement with Webb the said survey by Thompson, the said Lester sold said tract of land to Walter Macon by the acre, and deeded same as 50% acres, which was the amount of land found by said Thompson to be included within the four corners of the 40-acre tract hereinbefore mentioned. That there never was at any time a fence marking the division line between said two tracts of land. That after said Macon purchased said land, Webb told said Macon that he supposed the petrified rock and the sandstone marked the true division line between said two tracts. Macon suggested to Webb, who still owned the 80-acre tract of land, that they would go in together and build a partition fence on said line, to which Webb then agreed, but their agreement was never carried out.
“I further find: That during the time that Walter Macon owned the land now owned by defendant, plaintiff purchased the said 80-acre tract of land from the said John Webb. That at the time plaintiff purchased said land, he knew that the said Macon claimed to the petrified rock and sandstone. That shortly afterwards plaintiff took one Ohas. Long to the said petrified rock on the north line of said survey, and then and there told the said Long that said rock marked the division line between his land and the land now owned by defendant, and that said petrified rock was his northwest corner. That during the year 1912 the defendant bought and moved onto said land now claimed by him. That his deed calls for 50% acres of land. That defendant knew of no dispute concerning the boundary line between his land, the land now owned by plaintiff, and the corners were well marked and defined, and defendant bought with reference to them. That plaintiff and defendant agreed in the presence of one Ohas. Long to build a division or partition fence between their said lands from the petrified rock on the north to the said stone on the south. That there was at the said time about 20 acres of land of the 40-acre tract in cultivation. That immediately upon moving upon said tract of land, which was in December, 1912, defendant told plaintiff that he intended to put some land in cultivation. That during the months of January and February the defendant cleared, grubbed, and shrub-bed and put into a good state of cultivation about 3 acres of land adjoining and just west of the line from the petrified rock to the said sandstone, or up to the division line established by Thompson. That all the time defendant was putting said land into cultivation the plaintiff was working close by on said 80-aere tract of land, and saw the defendant daily, and knew that the defendant was clearing up to the line between the petrified rock and sandstone. That at no time did plaintiff inform defendant that he (defendant) was over the line on plaintiff’s land, nor did plaintiff raise any objections to the work being done by defendant. That during the months of January and February, 1914, the defendant began clearing and putting into a state of cultivation more land on the east side and adjoining the land which he had put into cultivation the year before, and which land is now in controversy. And the defendant put into a state of cultivation something like 6 or 6% acres of his said tract of land, all of which said cultivated land is now-in controversy. That the difference in the market value of said land before and after same was put into cultivation is $20 per acre. That nothing was ever said between plaintiff and defendant about the boundary line between them until late in the winter or early in the spring of 1914. That it was generally understood that the strip of land lying between the line established by Thompson and the old fence on plaintiff’s land belonged to no one in particular, and that this strip of land was an excess. That in the latter part of the winter of 1914 defendant and plaintiff talked about measuring their said land and dividing the supposed excess between them, and then building a fence on the line. That at said time nothing was said about putting said line west of said petrified rock and sandstone. That during March, 1914, Decker, plaintiff herein, employed MeKewn Johnstobe, county surveyor of Erath county, Tex., to survey his (Decker’s) tract of land, and that it was then ascertained, after said survey was made, that there was not 80 acres of land in said tract east of the line established by Thompson. From this finding a dispute arose between plaintiff and defendant, which resulted in the bringing of this lawsuit.
“Conclusion of Law: Upon the foregoing facts, I conclude as a matter of law that plaintiff should take nothing, and that the defendant should be discharged with his costs.”

It is well settled that disputes as to boundary lines may be settled by parol agreements between owners of abutting tracts. Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340. But as the enforcement of such an agreement may result in the transfer of title by a parol agreement contrary to the statute of frauds, the agreement should be definite and unconditional, and in the absence of an agreement of that character title will not pass.

.It will be noted that in the court’s findings, Webb, the former owner of plaintiff’s tract, did not definitely agree on the line surveyed by Thompson as the boundary line between the two tracts. His agreement, as shown by the court’s finding, was upon the condition that his tract should not be left with less than 80 acres, and according to another finding his tract does not contain 80 acres if the line surveyed by Thompson be taken as the true boundary.

In fact, defendant’s admission that plaintiff was entitled to recover, unless defeated by some of the special defenses pleaded, was an admission that plaintiff’s deed and the deeds through which he deraigned title conveyed the legal title to the strip in controversy; in other words, that the alleged agreed boundary was not the boundary described in the field notes of those deeds. It follows, therefore, that the line surveyed by Thompson cannot be held to be the true boundary by virtue of the alleged agreement on the part of Webb and Lester.

The most that could be said of the failure of plaintiff to protest against the action of defendant in improving the land in controversy and of his apparent silent acquiescence in the claims asserted by the owners of defendant’s tract to title up to the line surveyed by Thompson would be to show that the true boundary was in fact where defendant claimed it to be. But, as noted above, defendant admitted that such was not its true location, but that it was in fact where plaintiff claimed it to be.

The allegations contained in the plea of estoppel urged by the defendant and quoted above were, if true, insufficient in equity to estop plaintiff from claiming the land in controversy as against the defendant. They consist merely of silence, and a failure to protest against the improvement of the disputed strip by the defendant at great expense to the latter. The plea even fails to contain allegations that defendant was ignorant of the location of the true boundary line, that the same was known to the plaintiff, and that by the silence of plaintiff defendant was induced to make such improvements. At all events, those were necessary elements of an estoppel. Blum v. Merchant, 58 Tex. 400; Equitable Mfg. Co. v. Norton, 71 Tex. 683, 10 S. W. 301; Steed v. Petty, 65 Tex. 490. Furthermore, there is an absence of proof that when such improvements were made 'plaintiff knew the true location of the boundary line. On the contrary, the evidence shows that he did not acquire such knowledge until long after the improvements were made, and then only by an actual survey of the land. Further still, the means of ascertaining the true location of the line by an actual survey of the land was equally as open and available to defendant when he made the improvements as they were to plaintiff.

The findings by the trial judge that when the survey was made by Thompson, Lester, who then owned defendant’s tract, informed Webb, who then owned plaintiff’s tract, of his intention to sell the land by the acre and up to the line so located by Thompson, and that Webb replied that he would agree to said line, that it suited him just so he had his 80 acres, and that pursuant to said agreement Lester sold to Macon up to said line, would not constitute an estoppel for several reasons: First, there was no proof that Lester was thereby placed in a worse position. In fact the proof showed that he sold to Macon more land than he in fact owned. Second, there is no proof that by reason of such conditional agreement on the part of Webb, Macon was induced to buy such excess in acreage. On the contrary, Macon testified that when he purchased from Lester he knew nothing of said agreement by Webb. Louisiana & T. Lumber Co. v. Dupuy, 52 Tex. Civ. App. 46, 113 S. W. 973. Third, none of those facts were pleaded by the defendant as an estoppel against the plaintiff.

For the reasons indicated, the judgment denying plaintiff a recovery of the land sued for is reversed, and judgment is here rendered in his favor for the property. But judgment is also rendered in favor of the defendant against plaintiff for the value of improvements placed on the land, as found by the trial court, to wit, $20 per acre for 9 acres, or in tie aggregate of $180.

Reversed and rendered.

On- Correction of Judgment.

Upon original hearing we overlooked the fact that the trial judge failed to find the value of the strip of land in controversy without the improvements placed thereon by appellee. Hence, there is lacking one of the essential findings for the rendition by this court of final judgment for the value of such improvements. See Vernon’s Sayles’ Tex. Civ. Stats, arts. 7763 to 7768, inclusive. Furthermore, in appellee’s plea over the value of such improvements was limited to a sum less than that found by the trial judge, a fact which was overlooked, and to which our attention was not called in any of the briefs.

Accordingly the former judgment of this court on original hearing in fayor of appellee for the value of such improvements is set aside, and the cause is remanded for a new trial of that issue only, but our former judgment, reversing the judgment of the trial court with respect to the title to the land in controversy and rendering a judgment in appellant’s favor therefor, is left undisturbed.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=»]Tor other eases seé same topic and KEY-NUMBER in'all Key-Numbered Digests and Indexes


text:
    O’CONOR et al. v. SANCHEZ et al.
    (No. 5996.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.
    Rehearing Denied May 1, 1918.)
    1. Appeal and Error «&wkey;548(5) — Review — Absence of Bills of Exception.
    In the absence of bills of exception, the Court of Civil Appeals cannot consider assignments based on objections to the introduction of testimony.
    2. Judgment <&wkey;951(3) — Partition—Decree —Statutory Warranty — Parol Evidence.
    Decree of partition created a statutory warranty in writing similar to a general warranty expressed in a deed, and such statutory warranty cannot be enlarged or restricted by parol evidence.
    3. Appeal and Error &wkey;>1054(3) — Judgment on Inadmissible Testimony — Reversal.
    Though parol testimony, improperly admitted to restrict the statutory warranty created by decree of partition, was introduced without objection on trial without a jury, the judgment based upon the inadmissible testimony should be reversed.
    4. Appeal and Error t&wkey;1054(3) — Reversal —Evidence.
    If there are pleas supported by admissible testimony, or the testimony is admissible under pleas other than one of statutory warranty arising from decree of partition, judgment in accordance with inadmissible parol testimony restricting the statutory warranty will not be reversed.
    5. Trespass to Tey Title <&wkey;35(l) — Alternative Pleas — Right to Correct Prior Partition.
    Where a paragraph of the second amended petition' alleged a trespass to try title, to which defendants answered by plea of not guilty, the formal alternative pleas permitted the issue of an equitable right in plaintiffs to correct partition between the parties because the original decree was founded on a mutual mistake of matter constituting its basis.
    6. Partition <&wkey;95 — Decree Founded on Mistake — Suit on Warranty or in Equity.
    Parties to a partition wherein decree was founded on a mutual mistake of matter constituting its basis could sue either upon the statutory warranty or in equity, and allege the two causes alternatively in the same pleading.
    7. Trespass to Try Title &wkey;>35(l) — Decree — Statutory Warranty — Mistake — Evidence.
    In support of plaintiff’s allegation that decree m a prior partition suit between the parties was based on the belief that the parties to the suit owned all the land partitioned, and that this belief was a mistake unknown to any of the parties, it was permissible for defendants to plead and prove in rebuttal that there was no mistake or ignorance, but that all parties knew of the superior outstanding title, and that such risk became a part of the partition, and on such an issue, made by the equitable cause of action pleaded, parol testimony restricting the statutory warranty arising from the decree of partition was admissible in evidence, and, after admission, could' properly have been made a basis of the judgment for defendant.
    8.Appeal and Error i&wkey;1011(l) — Review-Finding on Conflicting Evidence.
    The Court of Civil Appeals is constrained to concur in the trial court’s finding of fact on conflicting testimony.
    Appeal from District Court, Webb County; V. W. Taylor, Judge.
    Suit by Thomas O’Conor against Dario Sanchez and others, in which other parties intervened. From the judgment for defendants, plaintiff and the interveners appeal.
    Affirmed.
    H. G. Dickinson, of Laredo, for appellants. Asher R. Smith, of Laredo, Hicks, Phelps, Dickson & Bobbitt, of San Antonio, Greer «fe Hamilton, of Laredo, John C. Scott, of Corpus Christi, and Wm. Aubrey, of San Antonio, for appellees.
   SWEARINGEN, J.

Thomas O’Conor instituted this suit against the appellees herein, seeking compensation for damages suffered by him by reason of the allegation that a decree of partition awarded to him a certain part of a tract of land containing 95,182 acres, all of which was owned by the parties to the partition suit as tenants in common, and that he had, subsequent to the partition, been ousted from his allotted land by a paramount title which existed prior to the date of the partition decree. The other appellants herein intervened in the suit and alleged for their cause of action the same facts alleged by appellant O’Conor, except that they alleged that they had received a different body of land from the one received by O’Conor, and the amount of their claim differed. The cause was submitted to the court without a jury. Judgment was rendered in favor of appellees and against all the appellants.

The general statement of the pleadings made in appellants’ brief is sufficient for the purposes of this opinion:

“On the 22d day of July, 1903, by his original petition filed on said date, amended by his second amended petition filed December 22, 1915, Thomas O’Conor brought this action of trespass to try title and for repartition against his former cotenants, parties to said judgment, or those in possession holding under them, to recover his interest in that portion of the tract of land partitioned, not claimed or recovered by the state of Texas, and he alleged in his petition that his portion of the land consisted of 35,131 acres, giving its metes and bounds, and its location can be seen by reference to the foregoing map; it being all the land lying east of the dotted black line on the map running north and south. He also alleged in his petition that the defect in the title to the land which had been allotted to him existed at and before the rendition of the decree of partition by the district court of Webb county; that the defect in the title existed at the time the land was allotted to him and during the time it was held by him and his cotenants; that they never had any title to the land allotted to him, but the same belonged to the state of Texas; that the defect in the title was not known to him at the time the land was allotted to him or at any time prior to the rendition of the judgment of the district court of Travis county; that the decree of partition was rendered by the district court of Webb county inadvertently and under a misapprehension of the true state of the title to the land partitioned thereby; that the parties to said decree were mutually mistaken as to the area or extent of the land to which they as tenants in common held a legal and valid title, and that he never acquired by said decree any title to the land allotted to him, from which he had been ejected and ousted by said judgment in favor of the state, and he prayed judgment for the recovery of 7,380 acres of land, the same being his proportionate share of the 35,131 acres aforesaid, and for the partition of the said 35,131 acres, or that in case a partition could not he equitably made, that he recover from the defendants as warrantors by contribution equitably made the valué of the said 7,350 acres on the date that he was evicted and ousted from the land allotted to him with legal interest from that date. Tr. pp. 15 to 25. After the said Porferia Garza de Villareal, Juan E. de Garza, and Mariana de la Garza were evicted and ousted from the land partitioned and allotted to Abraham de la Garza as above stated, they intervened in this suit brought by Thomas O’Conor, and in their petition of intervention they pleaded for their cause of action the same facts pleaded by him in reference to the title and also pleaded for the same character of relief, differing" only as to the amount of recovery. Pending suit Mariana de la Garza died and her devisee, Porferia G. de Berreda, and her husband, C. Berreda, became parties to the suit in her place.
“The defendants in their answers pleaded the several statutes of limitation and divers and sundry other pleas, the chief of which were: First, that Thomas O’Conor and Abraham de la Garza, prior to the judgment of partition, desired the land that was allotted to them respectively because it was more valuable than the land on the east side of the tract, acre for acre, and that they had knowledge of the defect in the title to the land they wanted and they agreed to have that land allotted to them and assume the risk of defective title in consideration of obtaining the same acreage of it as they would have obtained if all the land in the tract to be partitioned were of equal value, acre for acre; and, second, that.they, the defendants, were not notified of the pendency of the suits brought by the state against plaintiff and the interveners and were unable to defend the title to the land in dispute therein, and consequently the plaintiff arid interveners could not recover from them in this suit.
“The defendant Sarah J. Spohn, who claimed an interest in the land partitioned and allotted to A. E. Spohn and others as stated above, pleaded a cross-action against the other parties to the suit, who held the said 35,131 acres, to recover her proportionate share, or its value, of the said 35,131 acres, on account of the loss of her share of the 9,000 acres recovered from her and others by the state as explained above. Elizabeth Hebberd and others also pleaded a cross-action against the parties to said suit who held the 35,131 acres of land to recover their proportionate share, or its value, of the 35,131 acres, owing to the failure of title to the 2,022.-13 acres of land partitioned and allotted to them as above stated.”

The undisputed facts are that by suit No. 891, styled Arthur E. Spohn et al. v. Thomas O’Conor et al., a tract of 95,182 acres of land claimed to be owned in common was partitioned among the parties to that suit; that the land awarded to appellants by that decree was taken from them subsequently by a paramount title which existed at the time the partition decree was rendered. The various dates relied upon by appellees to prove limitation of various periods are all undisputed. The title of each of the appellees was received in the manner pleaded, which is not disputed.

The facts put in issue by a sharp conflict of the testimony are those found in favor of appellees by the trial court’s fifth paragraph of its findings of fact, as follows:

“Fifth. That the agreement embodied in said interlocutory and final decree of partition was agreed to by the parties thereto for considerations following, to wit: The portion of the entire tract fronting on the Rio Grande river, which were the portions thereof allotted to De la Garza and O’Conor, on account of their so fronting on the river, where permanent water could be obtained for irrigation and other valuable uses, and on account of water holes on the same located away from the river, and on account of it being supposed that coal deposits existed therein, and for other reasons, was much more valuable, not less than 33% per cent., than the other landsin the tract away from the river, where the portions set aside in said partition to the other parties to the said partition suit were located. _ The title to that portion of the land so fronting on the river, including the portions that Were set aside to De la Garza and O’Conor and a part of the lands that were set aside to the Spohns and Hamiltons, was of doubtful validity, and the fact that the title was doubtful to such portion of said tract was well known to De la Garza and O’Conor at and before the time said preliminary and final decrees of partition were rendered in cause 891. Both O’Conor and., De la Garza were anxious to have their said interests in said tract set aside to them in sev-eralty so as to front on the Rio Grande river and to include said supposed coal lands and water holes, and they proposed to the other parties to the said partition that if said other parties would agree that O’Conor’s and De la Garza’s interests in said tract of land should be allotted to said O’Conor and De la Garza so that they would get that portion of said tract so fronting on the Rio Grande river containing said supposed coal deposits and water holes, in the quantities stated in said agreement, out of said portions of said tract which they were so anxious to have set aside to them, and that if the other parties to said partition would agree to receive their interests in said tract of land out of the remainder of said grant, away from said river, in the quantities stated in said agreement embodied in said interlocutory partition decree, they, the said O’Conor and De la Garza, would assume the risk of the title to the land so desired by them, respectively, and that in consideration of said assumption of risk of title by O’Conor and De la Garza the other parties to said partition agreed that the wishes of the said O’Conor and De la Garza in the premises should be complied with, and that the partition should-be had and the decree therefor made and entered so that said De la Garza and O’Conor should thereby receive their said agreed interests in said tract of land located in the manner and upon those portions of said grant as so requested and desired by them, and that the other-parties to said partition should receive several interests out of the remaining portions of said-grant, away from the river. That the parties to said partition decree thereby agreed, in substance, that notwithstanding the portions of said grant which were thus to be allotted to said O’Conor and De la Garza were, acre for acre, in excess value of those portions which were to be-allotted to the other parties to said partition, the difference between such values was offset by the doubtful validity of the title to the land to be allotted to said O’Conor and De la Garza. That the other parties to said partition were induced by said proposal and agreement of said De la Garza and O’Oonor to make said agreement embodied in said interlocutory decree of partition and the consent to the making of and entry of said decrees of partition, and that but for said proposal and agreement on the part of said O’Oonor and De la Garza to assume the risk of the title to the lands allotted to them the other parties to said partition would not have agreed to same, and in consideration of O’Conor and De la Garza so assuming the risk of the title of the portion of the land on the river the parts that were requested by O’Conor and De la Garza on the river were, under and in pursuance of said agreement, allotted to them so as to front upon the river, as if they were in fact of the same value, acre for acre, as the portions of the tracts away from the river, where the other parties received their portions. And their assumption of this risk of title was the consideration inducing the other parties to the partition decrees to agree to said decrees, and without this assumption of the risk of title upon the part of O’Conor and De la Garza it would not have been agreed that they should have their land allotted to them so as to front upon the river, as if they were of the same value, acre for acre, as the other portions of the tract away from the river, and the said preliminary and final decrees of partition would not have been assented to by the other parties to the suit, and such decrees of partition would not have been rendered. Said lands were so allotted to all said parties in accord with said agreement, and after said final decree of partition had been rendered the parties thereto took and thereafter held possession of the several parcels of land therein allotted to them respectively.”

There is evidence to support this finding, and in deference to the court’s finding we adopt this finding as our own.

The first six assignments are based upon objections to the introduction of testimony, but as there are no bills of exception we are not permitted to consider these assignments.

The seventh assignment is:

“The court erred in finding in paragraph fifth of the findings of fact and conclusions of law that the considerations that moved the parties to the suit entitled A. E. Spohn et al. v. Thomas O’Conor et al., to agree to interlocutory decree and final decree of partition.,_ were that the portions of land allotted to plaintiffs Thomas O’Conor and Abraham de la Garza, under the interveners’ 'claim, were of greater value per acre than those allotted to the other parties to said suit, and that the title to the lands allotted to O’Conor and De la Garza was of doubtful validity, of which they had knowledge, and that they accepted said lands and assumed the risk of the defect of title to the same. Such finding was entirely erroneous as there was no legal, competent, or admissible evidence to sustain the same.”

The twelfth assignment is that the court ■ erred in rendering judgment based upon those facts found by the court and stated in the above-mentioned fifth paragraph of the • court’s findings of fact.

The legal principle which appellants seek to invoke by the seventh and twelfth assignments is that the decree of partition rendered in suit No. 891, to which all parties :,in this suit were parties or privies, heirs or alienees, created a statutory warranty of title in writing, similar to a general warranty expressed in a deed, and that this statutory warranty created by the decree of partition cannot be enlarged or restricted by parol evidence. This contention asserts an established rule of law if applicable to the facts of this case. Garrison v. Richards, 107 S. W. 861; Warren v. Clark, 24 S. W. 1105; Bingham v, Bingham, 57 Tex. 238; Harn v. Phelps, 65 Tex. 592.

It is contended further that, inasmuch as the testimony which established the fact found by the court in its said fifth paragraph of findings of fact was parol and did restrict the statutory warranty created by the decree of partition, it was not admissible testimony; and, further, that, even though this illegal testimony were introduced without objection in a trial before the court without a jury, the judgment based upon this inadmissible testimony should be reversed. This contention of appellants also correctly states the law. Mr. Justice Hodges, in Garrison v. Richards, 107 S. W. 867, states the rule- thus:

“The court having considered that erroneous testimony in the_ disposition of the case, and based his conclusions of law upon it, its admission injuriously affected the final result and became reversible error.”

All of the foregoing contentions by appellants are based upon the allegations in the final pleadings of appellants which seek to vouch appellees by force of the statutory covenant of warranty created by the decree of partition. Ver. Sayles’ R. T. C. St. art. 6115; Ross v. Armstrong, 25 Tex. Supp. 355, 78 Am. Dec. 574; Harn v. Phelps, 65 Tex. 592; Warren v. Clark, 24 S. W. 1105. However, if there are pleas supported by testimony that is admissible, or if the testimony is admissible under pleas other than the one of statutory warranty, then the judgment will not be reversed. H. E. & W. Tex. Ry. Co. v. Adams, 63 Tex. 200-206.

The fourte.enth paragraph of appellants’ second amended petition alleges the statutory warranty and the pleadings state a cause of action by reason of that warranty. If this were the only cause stated, it may be that appellants’ seventh and twelfth assignments should be sustained. But in the thirteenth paragraph of the said second amended petition a trespass to try title suit is alleged. To this appellees answered by the plea of “Not guilty.” These formal alternative pleas permit the issue of an equitable right in appellants to correct the partition because the original decree was “founded upon a mutual mistake of matter constituting its basis.” Ross v. Armstrong, 25 Tex. Supp. 355. In addition to the trespass to try title allegations and the “Not Guilty” plea, appellants in the fifteenth paragraph of the second amended petition allege a cause of action based entirely upon mutual mistake.

It is well settled in Texas procedure that appellants could sue either upon the ■warranty or sue in .equity. ■ The one right does not exclude the other. Harn v. Phelps, 65 Tex. 592-599; Ross v. Armstrong, 25 Tex. Supp. 374; Grigshy v. Peak, 68 Tex. 235, 4 S. W. 474, 2 Am. St. Rep. 487; Rawle on Covenants for Title (5th Ed.) § 277, p. 446; Coleman v. Lueteke, 164 S. W. 1119; Bussell v. King (Tenn. Ch. App.) 48 S. W. 310. It is also settled that these two causes may be alternatively alleged in the same pleading.

In support of the allegation that the decree rendered in the partition suit No. 891, was based upon the belief that the parties to the partition suit No. 891 owned all the land partitioned, and that this belief was a mistake unknown to any of the parties, it was permissible for appellees to plead and prove in rebuttal that there was no mistake or ignorance, but that all parties knew of the superior outstanding title and that such risk entered into and became a part of the partition. Bussell v. King (Tenn. Ch. App.) 48 S. W. 310. Upon such an issue made by the equitable cause of action pleaded, the evidence objected to should have been admitted in evidence, and being admitted could properly be made the basis of the judgment herein rendered- by the trial court. Railway v. Adams, 63 Tex. 206.

Upon this issue there was conflicting testimony. The trial court weighed all this testimony, tested the credibility of the witnesses, and resolved the issue in favor of the appellees. We are constrained to concur in that finding of the trial court. The seventh and twelfth assignments are overruled.

We are inclined to believe that the trial court erred in finding that the evidence failed to prove that appellants were ousted from the land allotted to them by partition decree by paramount title which existed at the time of the decree, and we are disposed to sustain the ninth and fourteenth assignments presenting this error. However, as the judgment is supported by the pleadings and evidence discussed by us in our consideration of the seventh and twelfth assignments, we hold that the errors presented in the ninth and fourteenth assignments will not authorize a reversal of the judgment.

The tenth assignment seems to answér itself. The error alleged is that the court found that none, save appellants, were notified to appear and defend the suits by which appellants were ousted from their allotted parts of the common land. The reason given for the assertion that this finding of fact is error is that notice is not required. The evidence amply sustains the finding complained of. We overrule' the tenth assignment.

The thirteenth assignment complains that the court erred in rendering the judgment herein, because it is based upon the finding of fact above mentioned. We are of the opinion that the judgment is sustained by the issues pleaded and proven which are discussed in our consideration of the seventh and twelfth assignments of error. If error is presented in this thirteenth assignment, the error does not justify a reversal.

The eleventh assignment is that the trial court erred in finding the value of the land when partitioned, because the finding is contrary to the great weight and preponderance of the evidence. While there was conflict in the testimony, there was sufficient evidence to support the court’s finding, and we do not feel authorized to .disturb it. The eleventh-assignment is overruled.

The eighth assignment is also overruled,, because the error, if any, is not such as to-require a reversal.

Appellee J. O. Spohn submits four cross-assignments presenting two propositions of law, which we have duly considered and find without merit, and therefore we overrule-them.

The ten cross-assignments submitted by the appellees Mrs. K. S. Hamilton, H. J. Hamilton, and A. O. Hamilton present no-errors deemed material, and same are overruled.

The judgment is affirmed.
      &wkey;jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes