text:
    ARMSTRONG v. GIFFORD.
    (No. 5879.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 6, 1917.
    Rehearing Denied June 30, 1917.)
    1. Pleading <&wkey;S(7) — Answer — Construction oe Contract.
    An answer alleging that an alleged right of plaintiff “was never agreed or contemplated by” a contract between the parties, “nor was there any provision therein” conferring such right, was not subject to exception as attempting to construe the written contract.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 18.]
    2. Vendor and Purchaser <&wkey;196 — Rents and Crops.
    When there is no agreement to the contrary, the rents and crops from land that has been purchased pass with the deed to the land.
    [Ed. 'Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 404-406.]
    3. Vendor and Purchaser <&wkey;196 — Rents and Profits.
    When a deed is given and the vendor remains in possession of the premises, he is treated as is the mortgagee in possession of mortgaged property, and will be held liable to the vendee for the rents and profits of the property ; the title having passed to vendee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 404-406.]
    4. Vendor and Purchaser <&wkey;152 — Rents and Crops.
    Where, under a contract for land purchase, the purchaser had a right to a deed at any time he complied with the contract, the purchaser, when he complied with the contract, had a right to a deed that would embrace everything attached to the soil, including unsevered crops, and also all unpaid rents that were not then due.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 304, 305.]
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by R. A. Armstrong against G. C. Gifford. From judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Gaines & Corbett, of Bay Ctty, for appellant. Hall & Barclay and Kelley & Hawes, all of Wharton, for appellee.
   FLY, C. J.

This is a suit instituted by appellant to recover of appellee the sum of $2,-835.90, alleged to be due for services rendered by appellant in procuring a purchaser for certain lands belonging to appellee. While the suit was pending G. C. Gifford died, and by an amended petition Mrs. Annie Gifford and! B. C. Roberts, the independent executors of the will of said G. C. Gifford, were made parties. Why the suit is still styled as it was originally is not apparent, but we follow the style of the case as presented by the record, although the representatives of the dead man are the beneficiaries of the appeal bond. The cause was heard before a jury, and a verdict instructed in favor of appellee.

This suit is based on a contract between appellant and appellee, dated February 21, 1913, by which appellant, in consideration of $1,000, was given an option on 531 acres of land of what is known as the Waterhouse & Sugar lands in Wharton county, until August 1, 1913, at $60 an acre. The contract provided that the consideration should be one-' fifth in cash and the balance in one, two, three, and four years, and appellant was given the right to sell the land on or before August 1, 1913, on the same terms of his op-tion, and appellee agreed to make a deed to the vendee. Appellant was also given the right, with the consent of appellee, to subdivide the land, and sell not. less than one-half of it at $80 an acre. It was also provided that, if appellant sold the land for more than $60 an acre, the profit should go to appellant, but that he should take a proportionate amount of the notes to have a lien secondary to those taken by appellee. In the event of a sale of a part of the. land appellant was to deliver to appellee all moneys and notes received from such sale. To pay the $1,000 cash provided for appellant was to convey to appellee nearly 4 acres of land in the town of Wharton, but appellant before the expiration of the Contract was given authority to sell the 4 acres for more than $1,000.

Afterwards, on August 9, 1913, some dispute having arisen as to whom the rents of the 531 acres should belong, another contract was drawn providing that possession of the land should not be given until January 1, 1914, and that the land in Wharton should be rec'onveyed to appellant, and it was further provided:

“And whether said deed be made to said Armstrong, or to some other person at Ms direction, the right of said Armstrong shall exist to claim said rents and crops and to sue for and recover same in his own name, provided he or the vendee, or both, were entitled to a deed under said contract which would have passed the rents and crops, and as if a deed had been executed thereunder, in accordance with the terms of said contract,' and the right of said Gifford to claim and retain said rents and crops shall exist if such right existed under said contract, without regard to the language of the deed now to be made, to the said Armstrong or his order, or the terms stipulated in said deed.”

It is provided in the last contract that the ehapges as to the interest not beginning until January 1, 1914, or other matters therein, should in no way affect the rights of the parties under the original contract, as to rents and crops,, but that their rights should rest strictly on the terms of the original contract.

The fourth assignment of error assails the action of the court in overruling a special exception to that part 'of the answer which alleged that:

“It was never agreed or contemplated by said contract, nor was there any provision therein that plaintiff should receive any commission or compensation for the sale of land, except as stated in said paragraph that in case he should sell the land for more than $60 per aere he should take a proportionate part of the notes for the excess, upon the terms stated.”.

The only objection to the pleading is that it is an attempt to construe the written contract, and it seems that appellant feared that it might in some way interfere with the prerogative of the court to construe the contract. We fail to see any merit in the assignment.

The fifth and sixth assignments of error complain of the action of the court in overruling other special exceptions to the petition, neither of which should have been sustained. The answer is not open to any of the objections to it made through the exceptions. The answer did not claim that the contract was revocable, but that appellant was seeking to avoid its provisions'.

When there is no agreement to the contrary, the rents and crops from land that has been purchased pass with the deed to the land. Porter v. Sweeney, 61 Tex. 213; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572. There was no deed made until August 13, 1913, when the land was c'onveyed to G. A. Harrison by G. C. Gifford. That deed was made in pursuance of the contract of August 9, 1913, between appellant and Gifford, in which it was agreed that a deed would be made in which rents' would not be mentioned, and that no interest would be charged on the notes until January 1, 1914, at which time possession was to be given the vendee. It was also provided that the status of the rents should be as fixed by the contract of February 21, 1913. It follows that the making of the deed did riot, under the terms of the contract, affect the rents, and the rights of the parties remain as they were fixed by the original contract.

With these preliminary matters settled, the only issue in this case is: Did the making of the contract carry with it the obligation upon the part of the owner of the land when he made the deed to convey the crops then growing upon the land, but which were not in existence when the contract was executed? In other words, would specific performance of the contract involve the duty to convey the crops with the land? Upon the answer to that question depends the decision of this case.

When a deed is given, and the vendor remains in possession of the premises, he is treated as is the mortgagee in possession of mortgaged property, and will be held liable to the vendee for the rents and profits of the property. The reason for this rule in the case of a mortgage is that the title still remains in the mortgagor, and he is entitled to the usufruct of the land, and in the case of the vendor the title has passed from him to the vendee and he is entitled to the rents and profits. Mortgage Co. v. Gill, 8 Tex. Civ. App. 358, 27 S. W. 835; Devlin, Real Estate, § 862c; Siemers v. Hunt, 28 Tex. Civ. App. 44, 65 S. W. 62, 66 S. W. 115; Hotel Co. v. Gammon, 41 Tex. Civ. App. 1, 91 S. W. 337.

Under the terms of the original contract appellant had the right to a deed for the land at any time that he complied with the terms of the contract and that deed would be a clear-cut conveyance of the land, without any reservation except what might arise from the contract. Under the plain unequivocal language of that contract, nothing could be reserved in connection with the land except the vendor’s lien to secure the purchase money notes and that arises only by implication. The evidence establishes beyond question that a purchaser was found before August 1, 1913, who was ready, willing and able to comply with the terms of the contract. This fact was recognized by G. C. Gifford, who was ready and willing to give the deed as he had contracted to do, if he could reserve the crops growing on the land. No such reservation had been made in the contract, and the execution of the deed will date back to the date of the contract. No doubt appellee would have been authorized to have severed the crops from the land at any time before, but when he did not do this he was compelled under the terms of the contract to execute a deed to the land which would embrace everything attached to the soil and all unpaid rents, that were not due at the time when the deed was executed or should have been executed. Devlin on Real Estate, § 862a; Kessee v. Sloan, 69 Miss. 369, 11 South. 631; Allen v. Hall, 66 Neb. 84, 92 N. W. 171; Scott v. Sloan, 72 Kan. 545, 84 Pac. 117; Siemers v. Hunt, 28 Tex. Civ. App. 44, 65 S. W. 62, 66 S. W. 115.

It has been held that, where the owner of land conveys it before the accrual of rent, he cannot recover the proportionate amount that would be due at the time of delivery of the deed. Hammond v. Thompson, 168 Mass. 531, 47 N. E. 137. A person who has contracted to sell land, but who retains the title and possession, is held to the same liability for rents and profits as a mortgagee in possession. Ashurst v. Peck, 101 Ala. 499, 14 South. 541.

When the contract of February 21, 1913, was executed appellant had an equitable title to the land, and when that was perfected, and became a legal title, appellant was entitled to the rents and profits of the land. The facts in the Alabama case herein cited are similar to those in this case, and the court said:

“It is a familiar rule, declared in many of our decisions, that the relation of a vendor of lands, who has retained the title and bound himself to convey on payment of the purchase money, to his vendee, is analogous to that of mortgagee to mortgagor. All the incidents of a mortgage attach to it. We hold, therefore, that such a vendor in possession of the lands is accountable to the vendee or his assignee for rents and profits to like extent that a mortgagee in possession is accountable.”

This rule applies, not only to rents, but to growing crops, and a deed will convey such crops, unless there is a special reservation of them in the deed. Devlin, Real Est. § 980b; Newburn v. Lucas, 126 Iowa, 85, 101 N. W. 730; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; Porter v. Sweeney, 61 Tex. 213.

When the deed was made by Gifford to Harrison, the crops would have passed to him, but for the agreement that appellant should have the rights given by the contract of February 21, 1913. Under our view of the case, appellant would be entitled to recover the value of the crops received by Gifford, deducting therefrom the amounts received by the tenants and the amounts advanced in raising the crops and gathering them.

It is argued that it was not in contemplation of the parties that the crops should pass with the land, because, when the contract was made, the crops had not been planted; but it was known to the parties that the sale of the land might be consummated at any time before August 1st, when the crops were either matured or well advanced. They were charged with knowledge that the crops growing when the deed was executed, being attached to the soil and undisposed of, would be a part of the realty. The crops could have been severed from the land before that time either by gathering, sale, or mortgage; but they had not been so detached, and the presumption is that it was the intention of the parties that the crops should go, as the law directs, with the land. It may appear to.be a hardship to the owner of the land that the fruits of his labor should thus be taken; but he could have protected himself by contracting to retain the crops, or by selling- the same.

This court is not in possession of sufficient facts upon which to render judgment, ■ and the judgment will be reversed, and the cause remanded.
      gsaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    BURNETT et al. v. GIBBS.
    (No. 8771.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 26, 1917.)
    1. Landlord and Tenant <§=>77 — Lease — Oral Assignment — Consideration.
    Where a lease provided that the lessor at any time might forfeit the lease upon nonpayment of rents, and further secured the lease moneys by lien upon the stock and'properties owned by the lessees situated upon the property, payment of all amounts due and overdue under the lease was consideration for a verbal assignment of the lease by the lessees to one who advanced the money to pay the rent due.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 232.]
    2. Landlord and Tenant <§=>8014 — Evidence-Sufficiency.
    In an action involving conflicting claims to a ranch in which plaintiff claims under a written assignment of a lease, and defendant claims under an alleged previous verbal assignment, evidence held to show a sufficient verbal assignment to defendant in consideration of his payment of all amounts dne under the lease.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 231.]
    3. Landlord and Tenant <§=>8014 — Lease-Assignment — Notice to Landlord.
    Evidence held to show that the lessor had notice of the defendant’s acquisition of the remainder of the term of the lease and impliedly consented thereto.
    [Ed. Note. — Eor other eases, see Landlord and Tenant, Cent. Dig. § 231.]
    4. Dandlord and Tenant <®=>77 — Lease— Oral Assignment — Presumption.
    Where the consideration for the verbal assignment of a lease was the payment of all amounts due thereunder, the fact that the as-signee subsequently deducted such amount as a part of the expense of a transaction in cattle by assignor and assignee for which assignee had paid all expenses will not alter the effect of the verbal assignment, but the appellate court must presume that when the settlement was made the expenses, including the item that assignee had paid lessor for the lease, were deducted from the sale price of the cattle in accordance with the agreement between assignor and assignee in the absence of evidence to the contrary.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 232.]
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    • Suit for injunction .between T. H. Burnett and others and W. H. Gibbs. From the decree, T. H. Burnett and others appeal.
    Affirmed.
    Brookreson & Howell, of Benjamin, for appellants. J. A. Wheat, of Seymour, for ap-pellee.
   CONNER, C. J.

This controversy arises out of conflicting claims to what is known as the Ward ranch in Knox county, comprising some 12,357 acres of land. The claim of appellants rests upon a written assignment of a five-year lease made by the owner, Ward, to M. Davis and his son, C. C. Davis, which expires on the 1st day of September, 1917. The original lease to Davis & Son contained a provision that the premises should not be sublet during the term of the lease, but the assignment of the lease to appellant, which was executed on the 17th day of March, 1917, by M. Davis & Son, had indorsed thereon the consent of the owner in the following terms:

“I, W. T. Ward, hereby agree to the foregoing assignment of this lease.
“[Signed] W. T. Ward.”

Appellee claimed the right of possession under an alleged verbal assignment of the premises from M. Davis & Son during the last days of October, 1916.

The court denied appellants’ prayer for an injunction restraining appellee from the use of the premises, and granted the prayer of appellee for an injunction restraining appellants from interfering in any manner with appellee’s possession.

The case as presented, to us is substantially one of fact only, or perhaps it would be more accurate to say that the only material question presented on this appeal is whether the evidence is legally sufficient to support the judgment of the court in favor of appellee’s title as asserted and alleged by him in his answer. We think the question must.be answered in the affirmative.

It is undisputed that Ward was the owner of the premises in controversy, and as such that he leased the ranch to M. Davis & Son for a period of five years ending on the 1st day of September, 1917. It is also undis-putéd, as alleged, that Davis & Son undertook to assign their lease to appellants on the 17th day of March, 1917, and that Ward consented thereto as evidenced by his indorsement, which we have quoted. Testimony favorable to appellee, however, is to the effect that some time in October, 1916, the son, O. 0. Davis, who was in charge of the ranch, found himself 'unable to secure the money with which to pay the year’s lease then overdue some two months, and that he approached the appellee, stating that he was going down to Ft. Worth to attend the Fat Stock Show, and that if he could not get the money that appellee could have the pasture. Ap-pellee testified that later G. O. Davis phoned him from Ft. Worth that:

“I can’t get a cent. If you want that pasture,’ go to it. * * * I can’t find the old man anywhere.”

Appellee thereupon, as C. O. Davis, according to appellee’s testimony, had theretofore in substance proposed, advanced to Ward, the owner, the lease money for the entire year, together with accrued interest for the overdue time, plus also some $17 Ward claimed as a balance on the previous year, and took over and went into possession of the pasture for the unexpired time of the lease. The clear implication from appellee’s testimony is that the lease was then assigned to him in consideration of having paid Ward the amounts so due from Davis & Son. It cannot be said that there was no consideration accruing to Davis & Son for the lease executed by them to Ward, provided that Ward at any time might forfeit the lease upon nonpayment of rents, and further secured the lease moneys by lien upon the stock and properties owned by Davis situated upon the ranch, and it was at least apparently to the interest of Davis & Son to be relieved of these burdens.

It further appears that soon after appellee took over the ranch he purchased certain cattle and placed them upon the ranch, and that O. 0. Davis remained thereon and fed and assisted in later marketing the cattle. Davis testified that the original agreement with appellee was that appellee should . pay the amounts due on the lease contract to Ward, and that they would go “in cahoots” for the remainder of the term, and that it was pursuant to this understanding that appellee later bought the cattle, which were marketed at a profit of some $3,000, which was equally divided between appellee and Davis & Son. But appellee denies any such agreement. His testimony is to the effect that, inasmuch as Davis was upon the ranch having horses and other things adapted to the purpose, he agreed with Davis to buy the cattle, feed them, and market them, and give to Davis as a mere working interest one-half of the net profits that might arise out of the business. The court heard the parties on this issue and determined it in appellee’s favor, and we must accept the conclusion.

Appellants insist that the owner, Ward, did not give his consent to the subletting agreement under which appellee claims, and that therefore it is invalid, but we think appellee’s evidence tends to show very strongly that Ward had notice of appellee’s acquisition of the remainder of the Davis term, and impliedly consented thereto. Appellee testified to the effect that upon receipt of the phone message from O. O. Davis while in Ft. Worth he called up Mr. Ward and informed him that he wanted to pay the amount due for the remainder of the term. Ward would not consent to receive the money without appellee’s agreement to pay interest and back rents, as hereinbefore stated. To this appellee at first demurred on the ground that he was getting the pasture but for ten months, brut finally agreed to pay the amounts demanded by Ward, who thereupon drew’ a draft upon appellee having notation of what it was for; that this check went through the bank of which one of the appellants was a working member. Appellee went into immediate possession of the ranch, and we think it evident from the testimony that both Ward and appellants knew of appellee’s assertion of title, and there is no evidence that Ward at any time ever objected to the subletting to appellee. It further appears that appellants háve not thus far paid to Davis & Son the consideration promised by them for the conveyance. Appellants therefore in no event can claim to be innocent purchasers for value.

There is a further contention in behalf of appellants arising out of the fact that upon the sale of the cattle referred to appellee as part of the expense of that transaction deducted the sum that he had theretofore paid Ward as lease money. This circumstance, however, we do not think can be held to alter the effect of the verbal assignment of the lease to appellee. So far as the record discloses, this deduction may have been in strict accord with the agreement between appellee and Davis for the feed and sale of the cattle purchased by appellee. Appellee without dispute, so far as the testimony shows, purchased and paid for the cattle and purchased and paid for the feed and advanced all moneys necessary to the accomplishment of the undertaking, and we must presume that when the settlement was made that the expenses, including the item that appellee had paid Ward for the lease, were deducted from the sale price of the cattle in accordance with the agreement between Davis and appel-lee; for there is no evidence, as we construe it, indicating otherwise. At least there is certainly no evidence that Davis made any objection at the time. True, it is a circumstance that may tend to support Davis’ claim that appellee paid the lease moneys to Ward pursuant to the agreement, as he states it, between appellee and him to go in “cahoots,” but as such the circumstance is by no means conclusive.

We conclude that the judgment must be affirmed; and it is so ordered.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    SCHULZ et al. v. DAVIS et al.
    (No. 5916.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 13, 1917.
    Rehearing Denied July 2, 1917.)
    Appeal and Ekkob <@=1010(1) — Review — Findings op Fact.
    The court of appeals is bound by the district court’s finding of fact, having evidence to sustain it, that it is not for the best interest of the people in a certain school district to be divided into two districts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981, 4024.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by M. Schulz and others against J. R. Davis and others. From an adverse judgment, plaintiffs appeal.
    Affirmed.
    D. A. McAskill, O. B. Black, and R. L. Edwards, all of San Antonio, for appellants. Lewright & Douglas, of San Antonio, for appellees.
   SWEARINGEN, J.

This is an appeal from a decree of the district court which denied appellants’ petition for a temporary restraining order and for a writ of mandamus.

Appellants alleged that the various persons named as defendants, in averred capacities, refused to create two districts out of common school district No. 23, in Bexar county, Tex.; that they were taking unnecessary steps to have an election to raise the maintenance tax arid also to have an election to bond the district No. 23 for the purpose of building a high school in the town of Elmendorf, which town is located in the said district, but about 1% miles north of the south end of the district; that this location was inconvenient to the many children of scholastic age of three of the appellants, namely, Woessner, Weller, and Streich, because these children lived near the north end of district No. 23, which was about 6 miles long, and to get to the school in the town of Elmendorf some of them would have to travel 17 miles and cross creeks and gullies, at times swollen from rains. Considering the exhibits as part of the petition as requested, it appears that there is a second school, about SV2 miles north of Elmendorf. The mandamus was desired to compel the school authorities to create the two school districts petitioned for, and which the district court was prayed to order established. The injunction was to restrain the holding of the two elections. The irreparable injury alleged was that if the elections were held, the tax and bonds would be voted, and, if voted, would be executed, and, if executed, would be sold, and, if sold, the district No. 23 could not be divided and be free from the tax and indebtedness. Appellees answered that there were two schools in the district No. 23, one near the northern end and the one in Elmendorf near the southern end; that it was for the best interest of the district to maintain two schools and improve both. The evidence showed a marked conflict in the desire of the residents of the 'district. The minority, it seems, who lived in the northern end, did not wish a high school in Elmendorf for which they were to be taxed, while the majority were anxious for the one district and the high school at El-mendorf for which the whole district was to bear the tax. The evidence further showed no necessity for division, inasmuch as there are and will be sufficient conveniently located schools. After hearing all the testimony the district court 'determined that there was no necessity for a division of the district No. 23.

While there have been some conflicts in the several decisions as'to the power of a district court over the decisions of county school trustees and commissioners’ courts, there is no conflict in the rule that this appellate court is bound by the findings of the district court on issues of facts where there is evidence to sustain those findings. In this case the district court found, as shown by its decree, from the evidence, that it was for the best interest of the people in common school district No.’ 23, Bexar County, Tex., for said district not to be divided into two districts, and we do not feel authorized nor inclined to disturb that conclusion of the district court.

The judgment is affirmed.


text:
    VOELTER et al. v. HOLDERBY.
    (No. 5883.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 13, 1917.
    Rehearing Denied June 30, 1917.)
    Injunction <§=175 — Dissolution — Evidence.
    Evidence held to show no defense to deod of trust or secured note, given as liquidated damages, or justification for delaying sale thereunder; so that temporary injunction of sale, granted in suit to cancel note and deed of trust, was properly dissolved.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 388.]
    Appeal from District Court, Grimes County; S. W. Dean, Judge.
    Suit by Ernest J. Yoelter and another against Thad <J. Holderby. From an adverse order, plaintiffs appeal.
    Affirmed.

      Haynes Shannon, of Navasota, for appellants. H. L. Lewis, of Navasota, and E. A. Berry, of Madisonville, for appellee.
   SWEARINGEN, J.

This is an appeal by E. J. Voelter and his wife from an order of the district court dissolving a temporary injunction, previously granted without notice. The court dissolved the temporary injunction.

Appellant by his petition sought the cancellation of a note for $1,000, and the cancellation of a deed of trust on his wife’s separate property securing the $1,000 note. The note and deed of trust were duly executed by Voelter and his wife. The note was payable to appellee, and after maturity appellee instructed the trustee named in the deed of trust to sell the land to pay the note, which the trustee was proceeding to do.. Appellant alleged material injury and inadequate legal remedy, etc., and prayed for the temporary restraining order. The grounds for cancellation of the note and deed of trust were that the note was given as liquidated damages in the event appellants, the payers on the note, made default in the purchase of certain lands from appellee by January 2,1915.

Appellant alleged that he did not make default, but that appellee refused to sell the land; that appellee failed to comply with several of the conditions of the trade, one of which was that appellee agreed to- furnish an abstract which he did not do. It was alleged that the contract was concerning the sale of land, and was not in writing, and there was no written memorandum thereof; that the agreement was conditioned upon the ability of appellant to borrow $5,000 with which to make the first cash payment. As stated, when this was presented to the court in chambers, a temporary restraining order was entered by the court. Subsequently, ap-pellee’s motion to dissolve the temporary injunction came on to be heard, all parties were present, and a full hearing had, with the resuít stated. In appellee’s motion to dissolve he denied all ''the allegations stating appellants’ cause of action.

The evidence shows beyond a doubt that the parties made a contract for sale of described land by appellee to appellants, subject bo condition of abstracts approved by the same firm of lawyers and payment of $5,000 cash January 2, 1015, by appellants. It shows that appellee demanded and appellants executed the $1,000 note and deed of trust to be used as liquidated damages to appellee if appellant failed to comply with the contract. The deed from appellee to appellants was executed completely and delivered in escrow, together' with the purchase-money notes and the $1,000 forfeit note and deed of trust. A written contract of sale was executed explaining all these instruments, and was duly recorded. The escrow holders were instructed by the parties to this suit to deliver the deed and abstract to appellants when the $5,000 cash was paid, if paid on or before January 2, 1915, and to cancel the $1,000 forfeit note and release the deed of trust. They were also instructed by the parties to deliver the deed to appellee, and also the forfeit note and deed of trust if default was made by appellants in the $5,000 cash payment on January 2, 1915.

Appellants, through no fault of appellee, failed to pay the $5,000 cash on the date specified. The papers held in escrow were disposed of in accordance with the original escrow instructions. Appellee demanded payment of the forfeit note after the default on January 2,1915, viz., on January 8, 1915. Appellant stated he did not have the money with which to pay it. Thereupon one Mims, who-held a mortgage on the land appellant had contracted to buy, offered to lend appellant. $1,250 on his note secured by deed of trust, on the land of Mrs. Voelter. This appellant Ernest J. Voelter agreed to-. The new note- and new deed of trust were prepared and executed by Ernest J. Voelter, but held and not to take effect until the wife, Mrs. Voelter, would sign the new note and execute the new deed of trust. Mrs. Voelter refused to sign, the new note and deed of trust.

The record shows conclusively that appellants have no legal defense to the $1,000-forfeit note or to the deed of trust, but owe it according to its terms, and the evidence furnishes no justification whatever for delaying appellee in the due collection of the note by having the land sold as provided in the deed of trust.

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


author: JENKINS, J.

text:
    BAKER v. HOLMAN.
    (No. 5798.)
    (Court of Civil Appeals of Texas. Austin.
    June 20, 1917.)
    1. Carriers <®=M33 — Shipments op Stock — Evidence.
    In suit for shrinkage of cattle shipped from delay, it was proper to permit testimony of the-usual time for shipments over the route of such, shipment between the shipping point and destination, although given by a witness who had accompanied only'the shipment in suit over such-route; it appearing he had accompanied shipments -between such points over another route, and that the agent routed the shipment in suit upon application for the most direct route.
    [Ed. Note. — For other cases, see Carriers,. Cent. Dig. §§ 583-587, 606.]
    2. Carriers <®=»133 — Shipments ok Stock — Evidence.
    In such action the account' sales rendered by the commission company selling the cattle at • destination was inadmissible to show their-weight when sold, such account sales not being proven by the commission company, as might have been done by showing such weights were entered in their books in the regular course of business at or about the time the cattle were-weighed, from report then made to them by the party weighing such cattle.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606.]
    Appeal from Robertson County Court; J. L. Goodman, Judge.
    Action by J. K. Holman against James A. Baker, receiver of International & Great Northern Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    AVilson, Dabney & King, of Houston, Do-remus, Butler & Heriderson, of Bryan, and Perry & Woods, of Franklin, for appellant.
   JENKINS, J.

Appellee brought suit ■against appellant to recover damages on account of the shrinkage in the weight of two ■carloads of cattle alleged to have been occasioned by negligent delay in transporting the same from Franklin, in Robertson county, to Ft. Worth, Tex. The case was tried before a jury on a general charge, and judgment was rendered for appellee.

Appellant assigns error upon the refusal of the court to give peremptory instruction in its behalf, basing the same: First, upon accord and satisfaction; and, second, upon failure of plaintiff to offer any proof as to the difference in the market value of the cattle in the condition in which they were received and in the condition that they would have been received but for such delay.

AAe do not think that the testimony is conclusive as to accord and satisfaction. The difference in the market value of the cattle in the condition in which they were received and in which they should have been received but for the delay is immaterial, inasmuch as appellee was not seeking to recover upon that theory, but only for the amount of the shrinkage caused by delay. For the reasons stated, the first and second assignments ■of error are overruled.

We think there is reversible error in the refusal of the court to give either one or the other of the special charges as shown by the third and fourth assignments of error. These charges submitted the issue of accord and satisfaction to the jury. This issue was raised by the evidence, and should have been submitted.

We think there was error also in refusing to give the fifth assignment of error, which was to the effect that, if the jury found in favor of the plaintiff, they should credit the damage found with the sum of $23.25, which the uncontradicted evidence shows to have been paid to plaintiff upon his claim for damages. This amount was paid for a cow that was crippled. The value of said cow is included in the suit for damages herein.

We do not think there was any error in permitting the witness Hawkins to testify as to the usual time, for shipments between Framklin and Ft. Worth via the International Railway and the Houston & Texas Central Railroad. While this was the only shipment that he had accompanied over these lines, he had accompanied other shipments over the International and another line from Franklin to Ft. Worth, and knew the time usually consumed in making such shipments. When he applied for cars to the agent of the International, he state'd that he wished the cattle to be shipped over the most direct route, and that the agent routed him over the International and the Houston & Texas Central via Hearne. This amounts to a declaration by the International Railway Company that the shipment was by the most direct route, and, if so, certainly it should have been made within as short a time as other shipments were usually made over other connections between the same places. No evidence was introduced by appellant tending to contradict the testimony of the witness Hawkins as to the usual time in which such shipments were made. The fact as to such time was known to appellant, and certainly if the testimony of the witness Hawkins had not been correct it would have introduced some evidence to the contrary. Such objection is purely technical, and does not deserve any consideration at the hands of this court.

Appellant assigns error upon the admission of the account sales rendered to appellee by the commission company at Ft. Worth, which sold said cattle; the purpose of this testimony being to show the weights of the cattle at the time they were sold in Ft. Worth. We sustain this assignment of error. We think it necessary to prove by said commission company that the weights as stated by them in the account sales were correct. This might have been done by showing that such weights were entered in their books in the regular course of business at or about the time the cattle were weighed from reports then made to them by the party weighing such cattle. The account sales tendered, not being proven by the party rendering same, were hearsay as to appellant.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new tfial in accordance with this opinion.

Reversed and remanded.
      ffin=>For other cases see,same top.io and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    CRAFTS et al. v. McALLEN.
    (No. 5819.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 13, 1917.
    Rehearing Denied July 2, 1917.)
    1. Tbesbass to Tby Title <@=»39(3) — Evidence — Admissibility.
    Testimony of C. for plaintiffs in trespass to try title, in which neither party deraigned title from sovereignty, so that right to recover had to be based on limitations or prior possession, on both of which plaintiffs relied — they claiming under G., who had conveyed to C., and to whom later O. reconveyed — that 0. did not get possession because W., under whom defendant claimed, had leased the land from G., and was in possession under the lease, is not subject to the objections that defendant knew nothing about any lease to W., or that it was an immaterial issue why O. did not get possession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 54.]
    2. Trial @=>350(3) — Materiality of Special Issue — Trespass to Try Title.
    The special issue in trespass to try title, whether W., under whom defendant claims, originally acquired possession as tenant of G., under whom plaintiffs claim, is not immaterial; as an affirmative answer would conclusively show prior possession, which, in the absence of evidence showing a superior title in defendant, was important to plaintiffs’ case, neither party deraigning title from sovereignty.
    [Ed. Note — For other cases, see Trial, Cent. Dig. §§ 829, 831.] .
    3. Appeal and Error @=1062(5) — Harmless Error — Special Issues.
    Submission to the jury of an immáterial special issue is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218.]
    4. Trial @=352(1) — Form of Special Issui?.
    The evidence in trespass to try title, in which plaintiffs claim under G., and rely on limitations and prior possession, showing that whatever possession of lands was taken by G. and her husband was under claim of ownership in G., special issues as to whether they took possession of the land in issue, and, if so, when they took it and how long they kept it, were not objectionable because not limited in form to possession by her.
    [Ed. Note. — For other cases, see Trial, Cent. Dig.-§ 840.]
    5. Appeal and Error <@=>1002 — Review — Findings on Conflicting Evidence.
    Findings by jury on conflicting evidence, on special issues, cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]
    6. Trespass to Try Title @=41(1) — Title to Support-Possession.
    Prior possession of G., plaintiff’s grantor, warrants judgment for plaintiff in trespass to try title, defendant showing no superior title by limitations or otherwise; W., under whom defendant claims, having entered as G.’s lessee, and there being no affirmative proof that G. did not have title.
    v [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by John J. .Young and another individually and as executors of John McAllen, deceased, against Rafaela L.'Crafts and others. From an adverse judgment,' defendant John J. Kleiber appeals.
    Affirmed.
    J. C. Scott, of Corpus Christi, for appellant. Graham, Jones & George, of Brownsville, for appellees.
   MOURSUND, J.

This is an appeal by John I. Kleiber alone from a judgment in favor of John J. Young and James B. McAllen, individually and as executor of the will of John McAllen, plaintiffs, against said Kleiber and others, for a small tract of land in Cameron county.

This suit was filed on November 14, 1904, in the form of an action of trespass to try title, but idaintiffs specially pleaded title by limitation of ten years. Defendant Kleiber answered by plea of not guilty and pleas of the statutes of limitation of three, five, and ten years. The pleadings are numerous and lengthy, but the above statement will answer for the purpose of disposing of the questions presented upon this appeal. There have been two previous appeals. 139 S. W. 41; 166 S. W. 3.

The special issues, the answers to which furnished the basis for the judgment against appellant, were as follows:

1. “Did the plaintiffs in this cause, or the persons under whom they claim, Severo Garza and Noberta Garza, have adverse and peaceable possession of the land in controversy, cultivating, using, and enjoying the same, under a claim of ownership in person, or by and through their tenants, for more than ten years next before the 4th day of March, 1893?” Answer: “Yes.”
2. “Did the Welcome A. Crafts mentioned in the proceedings in this cause acquire possession of the land in controversy originally as tenant under' Noberta S. de la Garza?” Answer: “Yes.”
3. “Did Severo Garza or his wife, or both of them, go into possession of the land in controversy under a claim of ownership and make improvements thereon?” Answer: “Yes.”
4. “If, in answer to preceding issue No. 3, you should find that the said Noberta Garza or Se-vero Garza, either or both, went into possession of the land in controversy under claim of ownership and made improvements thereon, then you will find and state when they went into such possession.” Answer: “1868.”
5. “If in answer to special issue No. 4 you should find that Noberta Garza or Severo Garza, or either of them, went into possession of the land in controversy, under claim of ownership, and made improvements thereon, at a time 'stated by you, in person or through their tenants, then you will find how long they remained in possession of said property prior to March 4, 1893." Answer: “21 years.”
6. “Did Welcome A. Crafts go into possession of the said land in controversy? If yes, when?” Answer: “Yes; in 1889.”
7. “If, in answer to preceding special issue No. 6, you find that Welcome A. Crafts went into possession of the land in controversy, then you will find and answer the following: Was Noberta Garza asserting ownership to, or in possession of, said lands at the time that Welcome A. Crafts went into possession of the same?” Answer: “Yes.”

Appellant Kleiber requested the court to submit issues based on his pleadings with regard to the acquisition of title by limitation but the court refused to submit such issues, and no complaint is made concerning the ruling. As neither party deraigned title from the sovereignty, the right of the plaintiffs to recover the land must be based upon limitation or prior possession, and plaintiffs relied upon both theories. They claimed under Noberta S. de la Garza who had conveyed the land to Frank Champion on October 19, 1889, and to whom Champion reconveyed it on March 4, 1893. Champion testified that be did not get possession of the land for the reason that Welcome A. Crafts had leased it from Mrs. Garza and was in possession thereof under such lease. Defendant Klei-ber, who claims the land under said Crafts, asked that such testimony be stricken out on the grounds: First, that Kleiber did not know anything about any lease or pretended lease by Crafts; second, that it was an immaterial issue as to why Champion,,,did not get possession of the land. The court overruled the objections, and the first assignment of error complains of such ruling. The testimony was not subject to the particular objections, urged thereto in view of the issues involved in this case. Collins v. Davidson, 6 Tex. Civ. App. 73, 24 S. W. 858; Camp v. League, 92 S. W. 1062. The first assignment is therefore overruled.

'The second assignment is also overruled.

It cannot be said that special issue No! 2 was immaterial, for the answer thereto, if in the affirmative, would conclusively show prior possession, which in the absence of evidence showing a superior title in appellant was important to appellee’s case. But had the question been an immaterial one, the error in submitting it could not have injured appellant.

The third assignment is overruled.

Assignments 4, 5, and 6 relate to special issues 3, 4, and 5, the contention being that the court erred in so framing said issues us to include an inquiry with reference to Severo Garza, for the reason that as plaintiffs claim under a deed from Noberta the inquiry as to Severo was -immaterial and improper. While there is a dispute with reference to the amount of land first taken into possession and used by Severo and his wife, Noberta, the undisputed evidence shows that they took possession under a claim of ownership in Noberta, by virtue of a gift, and maintained such possession until the death of Severo, which occurred about 1SS5, and after-wards Noberta continued in possession until she leased it to Crafts. We fail to see how appellant could have been prejudiced by reason of the wording of the issues. The assignrhents are overruled.

Appellant by assignments 7, 8, 9, and 10 contends that the answers returned by the jury to special issues 1, '3, 4, and- 5 are unsupported by the evidence. We conclude that the testimony supports the findings of the jury, and overruled the assignments. The overruling of these assignments means, of course, that we conclude the evidence, supports the findings of the jury as to all of the land described in the petition. In fact no objection was urged to the issues to the effect that there was no evidence justifying their submission, nor was any request made that as to any particular portion of the land a verdict should be instructed for appellant, but there is a contention presented under the eleventh assignment'in substance that as to a certain triangular parcel out of the land sued for containing 1.79 acres the evidence fails to show possession and use by Severo and Noberta of such character as to justify the answers to the special issues. At the time John S. Hord surveyed the Severo Garza labor, viz. November 25, 1889, the 1.79 acres was included as a part of said labor; the testimony of Jas. B^. McAllen was to the effect' that the land in controversy (the description of which included the 1.79 acres) was occupied and inclosed by Severo Garza in 1872. This testimony is contradicted by Surveyor Hanson, who testified that the 1.79 acres was not included in the original boundaries of the Severo Garza labor. The conflict was solved by the jury in favor' of McAllen’s testimony, and we cannot sustain appellants’ contention.

Appellees contend that even though we were to find the evidence sufficient to sustain their claim of title by limitation as to such 1.79 acres, the judgment should not be reformed so as to deprive them of said parcel, basing their contention upon the theory that they are entitled to recover, all of -the land' sued for by virtue of the pfior possession of Noberta Garza. There is no doubt that the evidence shows Noberta Garza to have been in possession of all of the land sued for prior to leasing the same to Welcome A. Crafts; it is also true that appellant failed to show a superior title to the land, and that he acquired title through parties who claimed and held under Guafts, and he makes no contention upon this appeal that he acquired title by limitation. It therefore appears, as contended by appe-lees, that they were entitled to recover the land sued for by virtue of the prior possession of Noberta Garza. House v. Reavis, 89 Tex. 626, 35 S. W. 1063; Watkins v. Smith, 91 Tex. 589, 45 S. W. 560; Boyd v. Miller, 22 Tex. Civ. App. 165, 54 S. W. 411; Cook v. Spencer, 91 S. W. 813; Teagarden v. Patten, 48 Tex. Civ. App. 571, 107 S. W. 909. There was no affirmative proof by appellant that Noberta had no title, such as was held to prevent a recovery on prior possession in the cases of Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967, and Richardson v. Houston Oil Co., 176 S. W. 628.

The judgment is affirmed.
      «g^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      tfs^pFor oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    POSEY v. HANSON.
    (No. 5791.)
    (Court of Civil Appeals of Texas. Austin.
    June 20, 1917.)
    1. Pleading <®^204(3) — Petition—Genekal Demubbee — Pleading Good in Pabt.
    If a petition to rescind a sale of real estate and cancel deeds and recover compensation for personal services was defective in other respects, but stated a cause of action for the personal services, a general demurrer should have been overruled.
    [Ed. Note. — For other cases, see Pleading, Gent. Dig. §§ 486, 487.]

      2. Evidence (®=o135(1) — Admissibility— Similar Acts — Motive. ■
    In an action to rescind, a sale of real estate and cancel deeds, on ground of fraud, evidence that the defendant charged with wrongful intent was guilty of similar acts and conduct at or about the same time was admissible, since, when it becomes necessary to decide whether or not a particular act was done with intent to defraud, proof of other similar acts is admissible to explain the motive.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 392, 394, 405.]
    3. Deeds @^211(3) — Evidence—Damages.
    Proof that as the result of the fraud the purchaser obtained possession of the property and deprived the vendor of its' revenue for an entire season was a sufficient showing of actual damage.
    [Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 644, 645.]
    4. Deeds <®^>211(3) — Evidence—Damages.
    Proof that the purchase-money notes given by the purchaser are worth only a small percentage of their face value was a sufficient showing that plaintiff was actually damaged.
    [Ed Note. — Por other cases, see Deeds, Cent. Dig. §§ 644, 645.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Suit by Gust Hanson against W. R. Posey arid others. Judgment for plaintiff, and named defendant appeals.
    Affirmed.
    Martin Paust, of New Braunfels, and W. Trenckmann, of Austin, for appellant. Geo. W. Mendell. Jr., of Austin, for appellee.
   KEY, C. J.

“This is a suit to rescind a sale of certain reril estate, to cancel certain deeds, and to recover compensation for personal services. There was a nonjury trial, which resultéd in judgment for the plaintiff, and W. R. Posey, one of the defendants, has appealed. Carr, the other defendant, has not appealed. The trial judge filed findings of fact which are sustained by the testimony, and which read as follows:

“ft) On the 20th day of September, 1915, plaintiff was .the owner and in possession of the tract of land together with the gin situated thereon described in plaintiff’s petition.
“(2) On said date the plaintiff executed and delivered to the defendant T. W. Carr a warranty deed to said tract of land, together with the gin situated thereon, in consideration of which the defendant T. W. Carr executed and delivered to the plaintiff a deed to certain land situated in the state of Oklahoma, and delivered to the plaintiff certain promissory notes of the face value of $1,300, and executed and delivered to the plaintiff a promissory note for the sum of $480, due on the - day of -, A. D. -, secured by the vendor’s lien upon said gin tract of land, and promised plaintiff and agreed with plaintiff that he would pay certain indebtedness due by plaintiff to Walter Tips, of Austin, and the Continental Gin Company, of Dallas, which debts were secured by the chattel mortgages upon the gin machinery situated upon said premises. The said debt due to said Walter Tips, principal and interest, is now approximately $800, and the debt due to said Continental Gin Company, principal and interest, is approximately $800. Upon the reguest of the defendant Carr plaintiff did not place of record the deeds delivered to him to the Oklahoma property. And the deed executed by plaintiff to the defendant Carr for the gin property has never been placed of record.
“(3) That immediately upon the execution of said deed the defendant Carr took possession of said gin and gin property and operated the same by agents through the ginning season of 1915, collecting all fees and tolls for the operation of said gin, and collecting certain fees and tolls due to the plaintiff arising out of the previous operation of said gin. Throughout said ginning season the plaintiff worked for the defendant Carr in the operation of said gin, for which labor said defendant agreed to pay him, but the defendant has failed and refused to pay plaintiff for his services, and has failed and refused to pay the indebtedness due Walter Tips and the Continental Gin Company, or any part thereof, and has failed to make any arrangement with reference to the payment of the same.
“(4) The notes of the face value of $1,300 delivered by defendant Carr to plaintiff as a part of the consideration for. said ginning property are worth only a small per cent, of their face value. The evidence does not disclose the value of the Oklahoma land conveyed to plaintiff nor the condition of the title to said land.
“(5) The defendant Carr at the time of the execution of said deed by plaintiff to him did not intend to pay any of the indebtedness assumed by him or agreed by him to be paid in consideration of the sale of said property to him, but said defendant’s promise to pay said indebtedness as assumed and agreed to be paid by him was fraudulently made with the intention of inducing plaintiff to execute said deed; plaintiff relying upon said representation was' induced thereby to execute said deed.
“(6) During the September term, 1915, of the district court of Comal county, Tex., the defendant Posey procured a judgment against the defendant Carr for the sum of $2,667.97, and costs. On the 23d day of September, 1915, am abstract of said judgment was filed in the county clerk’s office of Travis county, Tex. Thereafter an execution was issued upon said judgment and levied upon the gin property in controversy herein. On the 1st day of February, 1916, said gin property was sold by the sheriff of Travis county, Tex., under said execution, the defendant Posey purchasing said property at such sale for a consideration of $100. 'This suit has been filed by the plaintiff against the defendants prior to said sale and a lis pendens notice of such suit had been placed of record in the proper records of Travis county, Tex.; and the plaintiff gave notice at the time of such sale of his claims as set out in this case.
“(7) I conclude that plaintiff’s service rendered to the defendant Carr in the operation of said gin were reasonably worth the sum of S3 80.” ,

Opinion.

The first assignment of error challenges the correctness of that portion of the judgment which overruled a general demurrer to the plaintiff’s petition. If the petition was defective in other respects, it stated a cause of action against the defendant Carr for $1,200 for personal services, and for that reason the general demurrer should have been overruled. However, we do not agree with appellant’s contention as to the other phase of the case, and hold that as against a general demurrer the petition stated a cause of action for rescission and cancellation.

The second assignment of error complains because tbe court permitted the witness T. B. Newcomb to give testimony tending to show that about the same time the defendant Carr had overreached and defrauded him in a deal similar to the one involved in this case. Under that assignment counsel for appellant submit only one proposition, which reads as follows:

“In an action for the recovery of property, where plaintiff’s claim is based on alleged fraud of the defendant in obtaining possession thereof, testimony to show that such defendant had been guilty of fraud and misrepresentations in transactions with another person is inadmissible.”

That proposition is too broad, and does not state the law correctly. When a fraudulent or other unlawful intent is charged as to a particular transaction, the weight of authority seems to support the doctrine that it is permissible to prove that the litigant charged with such wrongful intent was guilty of similar acts and conduct at or about the same time. In considering that subject in Day v. Stone, 59 Tex. 612, our Supreme Court said:

“It seems to be the settled doctrine, sustained by numerous adjudicated cases, that where the issue involves the fraudulent sale or conveyance of property, that evidence of other like conveyances by the same parties at or about the same time are admissible. The ground for the admission of such evidence is that, where transactions of a similar character, executed by the same parties, are closely connected in time, the reasonable inference is that they proceed from the same motive. Heath v. Page, 63 Pa. 108 [3 Am. Rep. 533]; Hovey v. Grant, 52 N. H. 569; Battles & Webster v. Laudenslager, 84 Pa. 452; Hall v. Naylor, 18 N. Y. 588 [75 Am. Dec. 269]; Simons v. Vulcan Oil, etc., Co., 61 Pa. 218 [100 Am. Dec. 628].”

The principle announced in that case was reaffirmed in Hunter v. Lanius, 82 Tex. 684, 18 S. W. 201, and Cook v. Greenberg, 34 S. W. 688.

Intent is a condition of the mind, and as a general rule those who charge that a particular act was done with an evil intent must rely upon circumstances to show the existence of that mental condition; and this is true whether the question arises in a criminal or civil case. And the better rule is that, when it becomes necessary to decide whether or not a particular act was done with intent to defraud or with other evil intent proof of similar acts at or about the same time is admissible as circumstances tending to explain the motive with which the act under investigation was done. Prof. Wig-more in his valuable treatise on evidence has elucidated that subject in a very satisfactory manner. 1 Wigmore on Evidence, § 302.

The third assignment of error challenges the finding of the court to the effect that at the time the defendant Carr agreed to pay the debts owing by the plaintiff and secured by mortgages upon the gin property he did not intend to do so, and that he made that promise with the fraudulent intention of inducing the plaintiff to deed the property to him. We overrule that assignment, and hold that the finding referred to is supported by testimony.

Under the fpurth and last assignment of error appellant submits but one proposition, which is:

“In an action for fraud.actual damages must be shown.”

The proof shows that as a result of Carr’s fraud he obtained possession of the gin property, and of the revenue derived therefrom for one entire season, which possession and revenue would have been enjoyed by the plaintiff had not Carr committed that fraud, and this shows that the plaintiff was damaged. Besides, appellant does not challenge the finding of the court to the effect that the notes of the face value of $1,309 delivered by Carr to plaintiff as part of the consideration for the gin property are worth only a small per cent.- of their face value, which finding of Itself shows that the plaintiff has been damaged.

No reversible error has been shown, and the judgment is affirmed.
      —itTnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©saFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    CARLISLE v. FROST-LLEWELLYN LUMBER CO.
    (No. 705.)
    (Court of Civil Appeals of Texas. El Paso.
    May 24, 1917.
    Rehearing Denied June 28, 1917.)
    1. Venue <®=>22(1) — Place oe Bringing Actions — Joint Defendants.
    Where one defendant accustomed to deal with plaintiff secured lumber from plaintiff for the other defendant on her guarantee to pay therefor, the other defendant agreeing in turn to pay her, and the account being carried on the books of the plaintiff as against the other defendant, the liability of defendants was joint, so as to permit suit on the account against both of them in the county where either resided.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 35.3
    2. Venue <§=>32(2) — Place oe Suit — Residence oe Defendant.
    If a defendant pleads over against a code-fendant, he thereby waives his plea of privilege to be sued in the county of his own residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 49.]
    3. Frauds, Statute oe <®=»23(3) — Oral Promises — 'Validity.
    An original promise to pay for lumber seeur-ed for use of another made before the sale of the lumber was not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19.]
    Appeal from Palo Pinto County Court; J. T. Ranspot, Judge.
    Suit by the Frost-Llewellyn Lumber Company against Mrs. A. E. Carlisle and another. Judgment for plaintiff, and defendant Car-lisle appeals.
    Affirmed.
    W. H. Penix, of Mineral Wells, and Adams & Stennis, of Dallas, for appellant. W. Percy Smith, of Mineral Wells, for ap-pellee.
   WALTHALL, J.

This suit was instituted by the appellee, Frost-Llewellyn Lumber Company, against appellants, Mrs. A. E. Car-lisle and one Nelson Hoffman, in tlie justice court of precinct No. 5, Palo Pinto county, Tex. Appellant, in due time, filed and urged in that court her. plea of privilege to be sued in Dallas county, and, subject to her plea, filed her answer. Judgment was rendered in the Justice court overruling said plea of privilege, and against both defendants. Appellant perfected appeal to the county court, and again urged her said plea. The plea was overruled in the county court, and judgment there rendered in favor of ap-pellee against both defendants. Mrs. Car-lisle alone prosecutes this appeal.

Her first and second assignments complain of error in overruling her plea of privilege to be sued in Dallas county, the county of her domicile at the time of filing the suit. The ground of error in the' first assignment is, in substance, that appellant resided in Dallas county and her codefendant, Nelson I-IofCman, resided in Palo Pinto county; that no cause of action was alleged against Hoffman, and that Hoffman was and is an improper and lictitéous party defendant; and was made defendant for the fraudulent purpose of laying the venue of the suit in Palo Pinto County. The second assignment is based on the statement that the cause of action alleged against Hoffman is not the same, hut a different cause from that alleged against appellant. The appellee’s pleading in the county court, omitting the formal parts, alleges:

“That on or about the 22d day of January, 1914, the plaintiff sold to Mrs. A, E. Hoffman a bill of lumber, items of which áre set out in the account filed herein, aggregating the sum of $160.40, and that the lumber was sold to her at her special instance and request, and at her request was delivered to Nelson Hoffman; that Nelson Hoffman agreed with Mrs. Carlisle and promised her that he would pay Frost-Dlewellyn Lumber Company for.the lumber, and we are suing Sirs. Carlisle on her purchase and promise to pay for the lumber; we are suing Nelson Hoffman on his promise to pay for the lumber”

—then states certain credits, one of which made by Hoffman, and other facts not necessary to quote here. The case was tried without a jury and the court filed the following findings of facts:

“(1) That the plaintiff is and was at the time of filing this suit a private corporation, duly incorporated under the laws of the state of Texas, engaged in the lumber business in the city of Mineral Wells, in Palo Pinto county, Tex.
“(2) That !Mrs. A. E. Carlisle is a feme sole, and resided at the time of the purchase of the lumber for which the account herein sued on was made in the city of Mineral Wells, Palo Pinto county, Tex., and was engaged in running a hotel in the city of Mineral Wells. She had done 'considerable trading with Frost-Llewellyn Lumber Company, and had run an account with them, and had always paid her bills promptly.
“(3) Nelson Hoffman is a negro and resides, and at the time of filing this -suit resided, in Mineral Wells, Palo Pinto county, Tex. At the time of the purchase of the lumber he was working for the defendant Mrs. A. E. Carlisle, and had been working for her for more than three years.
“(4) Nelson Hoffman was not known to any of the officers of Frost-Llewellyn Lumber Company, nor to any of their employés, and they had never heard of him, nor did he know any of the officers' or employés of said plaintiff. Hoffman never did buy, or attempt to buy, any lumber from Frost-Llewellyn Lumber Company or any of its officers or employés. About six months after said lumber was purchased, J. C. Llewellyn, president of plaintiff, became acquainted with Hoffman, and this was the first time that any one having any connection with ■ plaintiff had ever seen Hoffman.
“(5) A few days before the purchase of the lumber, the said defendant Nelson Hoffman, requested the said Mrs. Carlisle to make arrangements for him, the said Hoffman to get some lumber, and told her he wanted to build a little house, and told her he would pay for same. In compliance with this request, the said Mrs. Carlisle called Mr. J. C. Llewellyn, president of Frost-Llewellyn Lumber Company, over the telephone and told him to send the lumber to Nelson Hoffman, and that she would pay for it. She told him that Hoffman was working for her, and that she could hold the money out of his wages. Relying upon her promise to pay for the lumber, Llewellyn agreed to deliver the lumber to Nelson Hoffman, which was later done. After Mrs. Carlisle had talked to Mr. Llewellyn, and had made arrangements to have the lumber delivered, and before same was delivered, she told Hoffman that she had made arrangements for the lumber at Frost-Llewellyn Lumber Company’s, and Hoffman again agreed to pay for same. Lt was agreed between Hoffman and Mrs. Carlisle that Mrs. Carlisle should hold out of his wages what he could spare to pay on the account each week.
“(6) At the request of Mrs. Carlisle, the account was carried on the books of the company in the name of Nelson Hoffman, she stating at the time of the purchase of the lumber that she wished this, done so as to keep it separate from her account, and so that she would know how much to collect from Hoffman.
“(7) At the time of the filing of this suit and of the service therein and trial thereof, Mrs. A. E. Carlisle was a resident of Dallas county, Tex., and Nelson Hoffman was a resident of precinct No. 5 of Palo Pinto county, Tex., where this suit was filed.
“(8) L find that the plaintiff sold said lumber and parted with same solely upon the credit of the defendant Mrs. A. E. Carlisle, relying solely upon her statement that she would pay for same, and that the credit was to the said Mrs. A. E. Carlisle, and not to the defendant Nelson Hoffman.
“(9) L find that the value of the lumber sold to the said defendant Mrs. A. E. Carlisle, and delivered to the defendant Nelson Hoffman, was $157.80, and that the defendant Nelson Hoffman has paid $8 on said account, leaving a balance due of $149.80.”

The above is as much of the findings as is necessary to state.

The only question presented under the two assignments is: Was there a common obligation resting upon both defendants to pay for the lumber? Russell & Co. v. F. W. Heitmann & Co., 86 S. W. 75; K. C., P. & G. Ry. Co. v. Bermea L. & L. Co., 54 S. W. 324; Beauchamp v. Chester, 39 Tex. Civ. App. 234, 86 S. W. 1055.

Appellant’s proposition, substantially, is that where there is no cause of action shown against the resident defendant, the non resident defendant is entitled to have the case transferred to the county and precinct of her residence. There can be no question as to the correctness of the proposition. If Hoffman is not liable in the suit, the case .should be ordered transferred to Dallas county. The court found that Mrs. Carlisle ordered the lumber and had it delivered' to Hoffman, and agreed that she would pay for it. Before the lumber was delivered Hoffman requested Mrs. Carlisle to make arrangements for him to get the lumber, and agreed with her that he would pay for it. Mrs. Carlisle in an-anging for the lumber stated that she could hold the money out of Hoffman’s wages, showing that Hoffman was to pay for the lumber and pay through her; that is, Hoffman was not buying the lumber from Mrs. Carlisle, but was making arrangements for the credit through her, and was to make payment to appellee through her. Hoffman was acting in making arrangements for the credit, and for the purchase and delivery of the lumber, and for the payment of it entirely through Mrs. Carlisle. She, on her part, before its sale and delivery, and as a part of the transaction, agreed with appellee that she would pay for the lumber. At her request the account was carried on the books of the company against Hoffman. Hoffman so understood it, and paid part of the account.

The facts found by the trial court, in our opinion, clearly show a joint liability of both Mrs. Carlisle and Hoffman. There is no merit in the second assignment that the cause of action against both defendants was-not one and the same cause. The case was first tried in the justice court, where the pleadings are oral, and while the transcript does show that pleadings in that court of Mrs. Carlisle, the judgment entered in the justice court reads in part:

“And it appearing to the court that said debt was incurred for the sole benefit of Nelson Hoffman, it is ordered, adjudged, and decreed by the. court that the defendant Mrs. A. E. Carlisle do have and recover from Nelson Hoffman what amount she may have to pay on said judgment to Frost-Dlewellyn Lumber Company, and that she have her execution.”

If she pleaded over against her codefendant as the judgment indicates, she would thereby waive her plea of privilege. Barbian v. Gresham, 156 S. W. 365; Amarillo Commercial Co. v. McGregor Milling & Grain Co., 156 S. W. 1124; Keeling & Field v. Walter Connally & Co., 157 S. W. 232; and cases there cited.

Appellant’s third and fourth assignments are largely based on assertions of facts not found by the court, and contrary to the court’s findings. If appellant’s promise to pay for the lumber was conditioned on her ability to collect the money from Hoffman, there might be something in her contention that, for some reason, she could not collect the money. But the court did not find her promise to be so conditioned. The promise to pay for the lumber as alleged in the pleadings and as the court found was an original agreement and .undertaking on the part of appellant, made before the lumber was sold and delivered to Hoffman, and was not within the statute of fraud. Muller v. Riviere, 59 Tex. 641, 46 Am. Rep. 291; Span v. Cochran, 63 Tex. 242; Lyons v. Daugherty et al., 26 S. W. 146.

The ease is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    ARNOLD v. PRODUCERS’ OIL CO.
    (No. 8634.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 28, 1917.)
    1. Mines anb Minerals <®=»77 — Oil Lease— Breach.
    Where a lease of land provided that the-lessee was to sink three oil wells, to certain depth unless oil should be found in paying quantities at a less depth, and that the lessee could abandon any part of the land to the lessor, whereupon he would hare the right to lease the lands so abandoned to others, the act of the lessee in representing to plaintiff that no oil was found and in executing a release was not a breach of the lease contract in the absence of a showing that lessor has been deprived of any part of his land or any oil, gas, or other minerals issuing therefrom, or that by alleged false statements of the lessee’s agent the lessor was deprived of an opportunity to sell his land advantageously.
    [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 204.]
    2. Libel and Slander <@=3130^Slander of Title — Elements of Cause of Action.
    A lessor of oil lands had no cause of action for slander of title to the property or slander of the character of the property because of statements made by the lessee’s agent that the well drilled on the land contained no oil in paying quantities, in the absence of a showing that such statement was made to or in the hearing of third persons.
    [Ed. Note. — Por other cases, see Libel and Slander, Cent. Dig. § 386.]
    Appeal from District Court, Clay County;. Wm. N. Bonner, Judge.
    Action by R. E. Arnold against the Producers’ Oil Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wantland & Parrish and Taylor, Allen & Taylor, all of Henrietta, for appellant. Kay & Akin, of Wichita Palls, for appellee.
   BUCK, J.

Suit was brought January 31, 1916, by appellant against the appellee, a corporation, for damages in the sum of $148,-700, and for cause,of action the plaintiff alleged that he was, on September 29, 1911, the owner of 1,487 acres of land in Young county, and on said date plaintiff and defendant entered into a certain written contract whereby, in consideration of the payment by defendant of $20 in cash, and the promise to pay royalties on all oil found upon the premises, plaintiff leased to defendant said land, and defendant undertook to develop said land for oil, gas, or other minerals; that defendant sunk a well on said land to a depth of 2,171 feet, and thereupon ceased operations; that at some depth unknown to plaintiff a large amount of oil, to wit, oil in paying quantities, and, if not in paying quantities, then oil in such quantity as to materially increase the value of said land for oil purposes, was found by defendant; that defendant, for the purpose of deceiving plaintiff and of hiding the value of such well, and for the purpose of defrauding plaintiff out of royalties and incomes which would arise to plaintiff from such well, if developed as provided in said written contract, willfully, knowingly, and maliciously packed and plugged said well and reported to plaintiff that no oil had been found. It was further alleged that said asserted false report was made by defendant for the purpose of securing leases on other lands near by and adjacent to plaintiff’s land, and to reap the benefit therefrom. It was further alleged that plaintiff ,did not discover said ■asserted fraud until after he had accepted from defendant a release ot the oil lease theretofore executed by plaintiff to defendant, and that he (plaintiff) did not discover said alleged fraud on the part of defendant until September 1, 1915, on which date.plaintiff for the first time discovered that the representations made by defendant and its agents were false, and discovered for the first time that defendant had in fact struck ■oil in said well; that he had no means of discovering the fraud alleged to have been peipetrated upon him by the defendant before said time. The last plea 'was in a supplemental petition, and by way of answer to ■defendant’s plea of the two-year statute of limitation.

The cause was tried before a jury, and up■on the conclusion of the evidence the court instructed a verdict for defendant, and upon the return of the verdict rendered a judgment for the defendant. Erom this judgment the plaintiff has appealed.

We confess we have been at some loss to determine just what was the character of the suit intended by plaintiff, whether for breach of the lease contract or for alleged slknder of plaintiff’s land, but, taking either view of the matter we conclude that the ■court did not err in instructing a verdict and rendering a judgment for defendant. By the terms of the lease contract appellee was to sink three wells on appellant’s land, each of said wells to be bored to a depth of 2,000 feet unless oil or gas should be found in paying •quantities at a less depth. It was further provided that the grantee should have the right to abandon any part of said lands covered by the lease, and should execute a release for such land abandoned- to grantor, and that thereupon the grantor should have the right to lease such land so abandoned to other parties. The evidence fails to show that appellant has been deprived of any part of his land, or of any oil or gas or other mineral issuing therefrom, and there is neither allegation, in the way of special damages, nor proof that by reason of the alleged false statement of appellee’s agent appellant was deprived of any opportunity to sell his land advantageously and at a better price than it would have brought at the time of trial, or at the time of filing of, the suit. So far as the record discloses, appellant still has his land and all the minerals which existed therein at the time of the making of the lease contract, or at the time of the making of the alleged false statement. Hence we conclude that no breach by defendant of the lease contract was shown, and that appellant was not authorized, either by the pleading or by the evidence, to recover damages by reason of any failure of appellee to comply with the terms of said lease contract.

If the plaintiff below sought to cast his action as for slander of title to property, he fails to allege or prove one essential element of slander and libel, to wit, the publication of the alleged libelous words. It is elementary that words reflecting on the character of a person or the title of a thing must be published before they become actionable as for slander or libel. Plaintiff does not allege that the defendant’s agent or agents stated to, or in the hearing of, third persons, that the well drilled contained no oil in paying quantities, or was a “duster,” nor does the evidence show such to be the case. Plaintiff below testified that Mr. Prather, who was supervising the drilling as a representative of the defendant corporation, told Mm: “We are going to quit; there ain’t nothing in it.” He also testified that he thought the driller also informed him that they had not struck oil. The evidence further fails to show that oil discovered in September, 1915, on the surface of the water flowing out of the abandoned well was in paying quantities. Hence we conclude that we cannot disturb the judgment on the theory that plaintiff’s cause of action as pleaded was for slander of title to the property, or of slander of the character of the property, if there be such a cause of action included within the common-law action of slander of title. Therefore we conclude that the trial court did not err in instructing a verdict.

All assignments of error are overruled, and the judgment is affirmed.

Affirmed.
      Éx^sFor oilier cases see same topic and REV-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    HUNTER v. STATE.
    (No. 4519.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.
    Rehearing Denied June 29, 1917.)
    1. AboRtjojst <&wkey;ll — Attempt — Sufficiency op Evidence.
    Evidence held sufficient to sustain a conviction of attempted abortion.
    [Ed. Note — Por other cases, see Abortion, Cent. Dig. § 22.]
    2. Abortion &wkey;>l — Attempt—“Calculated.”
    Under Pen. Code 1911, art. 1073, declaring one using means “calculated,” but failing, to produce an abortion, guilty of-attempt, it is not necessary that they almost produce it, but it is enough that drugs, which, when administered in proper doses, would produce it, were procured and administered with the specific purpose and intent, and that its consummation was defeated wholly or largely by the girl’s robust, healthy physical condition.
    [Ed. Note. — Por -other cases, see Abortion, Cent. Dig. §§ 1-5.
    Por other definitions, see Words and Phrases, Pirst and Second Series, Calculate — Calculated.]
    3. Criminal Daw <&wkey;93S(3) — New Trial — Newly Discovered Evidence.
    Where defendant.knew what witness would testify, if he told the truth, he cannot have a new trial on his testimony as newly discovered, though he, because he did not want to get mixed up in the case, would not before the trial say what his testimony would be.
    [E'd. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2308.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Luther Hunter was convicted, and appeals.
    Affirmed.
    p Ratliff & Spencer, of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for an attempted abortion.

The indictment is in strict conformity to Mr. Branch’s form (2 Branch’s Ann. P. C. § 1818), and conforms also strictly with-the statute (P. C. arts. 1073 and 1071), and is sufficient

The testimony of both Miss Emma Poore, the prosecutrix, and appellant, was that: About Pebruary 28, 1913, they became engaged to be married. That on June 1st he seduced her, and on that day had sexual intercourse with her by virtue of his unlawful seduction of her. That he repeatedly during the next two or three months had sexual intercourse with her. She was then but little over 15 years of age. That about August 1st he got her pregnant. About September 1st she discovered that her monthlies did not come on, and at once communicated to him her condition. He then told her he would get her some medicine to bring her around all right, or to do away with the child, if she would take it. She told him she would take it. In a short time he took her a pint bottle of darkish yellow looking stuff, which he told her was cotton root tea; that he made it himself. She did not know what it was, but it tasted a little bitter. That in accordance with his directions and in his presence she drank half of it at one time, and on the same day she drank the other half. Later he inquired what effect it had, and she told him it had none. In a day or two thereafter he brought her another bottle which he told her was the same stuff, and she took it at two doses at his direction. A few days still later he went to see her again, and she told him that neither bottle of the medicine he had furnished her, and which she drank as he. directed, had produced any effect upon her. He then told her he would go to Pt. Worth and would get some out of a drug store that would do the work. In a few days he brought back to her another bottle of mgdicine, which he said was ergot, and that he had gotten it at Pt. Worth. This bottle contained a reddish black looking stuff. He told her to take 12 drops of it every three or four hours. She did this for a day or two, but it had no effect. He came back and asked how she was getting along, and she told him. He then told her to take larger doses, which .she did in his presence, drinking all that was left in the bottle at one drink or dose, about two tablespoonfuls; and when he found this did not have the desired effect, he told her he would make arrangements with Dr. Blanton to let her have some medicine that would destroy the child and for her to go to see him. In a few days he told her he had seen Dr. Blanton and made the necessary arrangements with him. She then went to Dr. Blanton, told him her symptoms, and he started to fix up something for her. She then asked him if he knew who she was, and he said he did not. She told him who she was, and he then threw up his hands and said: “I can’t give you anything. I would be as deep into it as he is;” and he refused to give her anything. In due time her baby was born, and was living when this trial was had in January, 1917. Soon after this appellant left the state and went to Oklahoma. The grand jury indicted him for seduction of Miss Poore. About two years later they brought him back from Oklahoma for trial for seduction. He thereupon offered to marry her, which she indignantly refused after that lapse of time and after his outrageous treatment of her, and he thereby succeeded in having the prosecution for seduction dismissed. He was then indicted for this offense and convicted, as stated.

Only one physician testified, Dr. Reeves, who swore that both ergot and cotton root tea, or brew, in certain doses have a special effect upon the pregnant uterus, and large doses of either might produce an abortion, and when taken in quantities sufficient to produce an abortion, it would likely make the person sick. That he did not think that 10 or 12 drops of ergot taken three or four times a day for several days would be calculated to produce an abortion. That a pregnant woman could take as much as two or three teaspoonfuls or a tablespoonful of ergot and not have any bad results, and yet this much might produce symptoms leading up to emptying the uterus. That while a half pint of the official fluid extract of cotton root taken internally at one time would produce very marked symptoms and probably death, he did not know about the home brew cotton root, because he could not tell what strength it had. That the physical condition of the patient, her age, condition of the stomach, as to whether empty or full, and various other things would play a part in the effect a specific dose of either the cotton root preparation or ergot would have if taken internally. That an ordinary therapeutic dose of ergot might be considered anywhere from 15 drops to a teaspoonful, ordinarily about a half teaspoonful. The usual dose of cotton root is not quite so large, yet it could be given in about the same proportion.

Appellant admitted his engagement to Miss Poore; that by virtue thereof and his promise to marry her, he seduced, and got her pregnant, as she claimed; that he had avoided conviction for her seduction by his offer to marry her when brought back and about to be tried therefor and her refusal to then marry him. He admitted that he told her he would make her something to cause her to come around all right, and while he admitted telling her what he would get and what he did get and give her as being cotton root brew, or tea, and ergot, he denied that the drugs or stuff he had given her was either of these, but claimed that it was nothing but burnt or scorched sugar and water, and claimed he made all of it himself, and got none of it from any drug store. He denied that he had made any arrangement with 'Dr. Blanton for her to go and get medicine from him that would produce an abortion. He denied that he ever said a word to Dr. Blan-ton on the subject either directly or indirectly.

The case was tried before the county judge without a jury. Among other things he specifically found the courtship, engagement to marry, seduction of her by reason thereof, and his getting her pregnant. That just before he was to be tried for seduction of her he offered to marry her, and thereby escaped from punishment for that offense. After finding that early in October he called on her and learned from her that after she had taken the first bottle of medicine according to his directions it did her no good, the judge specifically further found as follows:

“I find that the defendant, on learning that the first lot of medicine given by him to Miss Poore had done her1 no good, immediately brought her a second bottle of the same kind of colored liquid which he informed her was also extract of cotton root, and directed her to take it all, assuring her that it would certainly set her up; but it did no more good than the first bottle had done, although she took every drop of it. I find that the defendant, on learning that his second batch of medicine had not accomplished what he desired, brought to Bliss Poore a small vial of a different kind of medicine of a reddish tinge, and directed her to take just a few drops at a time, saying it was ergot, and that if she would take it according to directions, it would certainly do the work, and that she would soon be relieved of her trouble and distress. But that this medicine, called ergot by defendant, and all of which was taken by Miss Poore, failed as completely, as had the cotton root, to destroy the foetus and produce an abortion. X find that the two pint bottles of fluid delivered by defendant to the prosecutrix to be a decoction of cotton root brew; and the small vial of medicine of a reddish tinge, which he directed her to take, to be ergot, and not parched sugar, as testified to by defendant. I find that the defendant, when he became aware of Bliss Poore’s pregnant condition, that he told her to get ready and they would marry on the first Sunday in November, 1913; but that instead of carrying out this promise, the defendant, without intimating his intentions to her in any way, left Texas and went to Oklahoma, where he remained till brought back about two years later in the custody of an officer on a charge of seduction of the said prosecutrix. I find that the fluids, when administered in proper doses and under certain conditions, will produce abortion of a pregnant woman. I find that defendant procured and administered these medicines and induced prosecu-trix to take same with the specific purpose and intent of causing her to abort; and that there was at all times a guilty intent in the mind of defendant to procure an abortion upon the said Miss Emma Poore, and that its consummation was defeated wholly or largely by the robust, healthy physical condition of the girl, which enabled her to throw off and eliminate the toxic effect of the drugs and medicines administered to her 'by the defendant, with intent to accomplish his unlawful and felonious design.”

And. yet he fined appellant only $100; the lowest punishment authorized by law.

The evidence was amply sufficient to sustain the court’s finding and appellant’s conviction. Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602; Cave v. State, 33 Tex. Cr. R. 335, 26 S. W. 503. Appellant relies upon Williams v. State, 19 S. W. 897, and Fretwell v. State, 43 Tex. Cr. R. 510, 67 S. W. 1021, for reversal. The Williams Case was reversed because the lower court failed to give one of the defendant’s special charges, but this court expressed doubt as to the sufficiency of the evidence to have sustained a conviction because of the testimony of the medical expert witnesses — the doctors. The effect of their testimony in that case was much more favorable to that defendant than the doctor’s testimony in this case was. There were also other facts testified to in that case tending to cause the court to indicate the evidence therein might be insufficient. , The testimony in the Eretwell Case showed that the pregnant woman did not take the medicine as prescribed by the appellant therein, but took very much less quantities than he had directed, and the doctors therein testified that as actually taken by her it was not calculated to produce an abortion. The testimony in that case was nothing like as strong as in this case.

The statute (article 1073, P. C.) prescribing this offense is:

“If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion; provided, it be shown that such means were calculated to produce that result.”

Or, as transposed by Judge Hurt in the Oave Case, supra:

“If the accused shall use means to produce an abortion which was calculated to have that effect, he is guilty of an attempt to produce an abortion, though the means used should fail to produce an abortion.”

The statute clearly does not mean that the means used shall actually produce an abortion, for if it did, the offense would not be attempted abortion, but would be the complete offense of abortion. And neither does the statute mean that the means used shall almost produce abortion or just barely fail to do so before this offense can be committed, but only says, if the means used were calculated to produce an abortion. The judge in his special findings of fact found that it was cotton root brew and ergot which appellant administered to Miss Poore, and that said medicines when administered in proper doses would produce abortion, and that he procured and administered these medicines to her with the specific purpose and intent of causing her to abort, and that its consummation was defeated wholly or largely by the robust, healthy physical condition of the girl, .which enabled her to throw off and eliminate the toxic effect of these drugs and medicines.

The court did not err in refusing appellant a new trial on account of his claimed newly discovered testimony. This matter is not presented by any bill of exceptions. Whether any evidence was heard by the court on this ground of his motion for a new trial is not disclosed, nor if there was evidence, what the evidence was. This would be all that is necessary to pass upon this point, but we will further state the matter as shown by his motion for a new trial.

His motion in effect shows that he knew before the trial that Miss Poore would testify what he told her about Dr. Blanton, and of. her interview with Dr. Blanton, and the result thereof, as shown above. He disputed her on this point on the trial, claiming that he did not tell her that he had arranged with Dr. Blanton, nor to go to him for medicines, and he swore, as shown above, that he had never said a word to Dr. Blanton either directly or indirectly. He now produces the affidavit, attached to his motion, of Dr. Blanton, wherein he swears:

“I do state that he [appellant] has never at any time approached me or asked me in any way to prescribe medicine of any kind for the purpose of procuring an abortion. I never at any time discussed the matter of the pregnancy of Miss Poore with him or any one representing him. I furthermore state that I never told him what my testimony would be until after he was tried and convicted at Decatur, for the reason that I did not wish to get mixed up in the case.” £

So that it is clearly seen that he knew before the trial what Dr. Blanton would swear if he swore the truth. There is nothing to show that Dr. Blanton would have testified falsely against him. The fact that Dr. Blanton would not tell him what his testimony would be because he did not want to get mixed up in the case would not make his testimony newly discovered. He could not wait and experiment with the court, and if convicted then claim that Dr.' Blanton’s testimony .was newly discovered. This ground of his motion for a new trial under all the authorities was wholly insufficient to entitle him to a new trial. White’s Ann. C. C. P. § 1149, and authorities there collated; Gray v. State, 65 Tex. Cr. R. 206, 144 S. W. 283; Stewart v. State, 76 Tex. Cr. R. 54, 172 S. W. 979; Henson v. State, 74 Tex. Cr. R. 282, 168 S. W. 89; Black v. State, 71 Tex. Cr. R. 625, 160 S. W. 720. It is needless to cite the many other authorities.

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