text:
    INTERNATIONAL & G. N. RY. CO. v. OWENS.
    (No. 5347.)
    (Court of Civil Appeals of Texas. Austin.
    April 15, 1914.)
    1. Appeal and Error (§ 757

      ) — Record — Questions Presented for Review.
    Where defendant’s brief did not set out plaintiff’s petition or even its substance, defendant’s contention that its general demurrer was improperly overruled cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    2. Appeal and Error (§' 837) — Demurrer-Evidence.
    In determining on appeal the propriety of the overruling of defendant’s general demurrer, the evidence cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-¿272, 3274-3277, 3289; Dec. Dig. § 837.]
    3. Appeal and Error (§ 917) — Record — Questions Presented.
    Where the record shows no ruling on defendant’s general demurrer, or that any was requested, it will be presumed on appeal that the demurrer was waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. § 917.]
    4. Appeal and Error (§ 703) — Record — Questions Presented por Review.
    Where the record showed. that appellant requested only one instruction that was refused, appellant’s assignment of error complaining or the refusal of several requested instructions cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2931; Dec. Dig. § 703.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by Ose Owens against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Chambers & Baskin, of Cameron, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellant. Morrison & Lewis, of Cameron, for appellee.

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

   KEY, C. J.

In this case the plaintiff recovered a verdict and judgment against the defendant for the value of a mule which was killed on defendant’s track in the town of Gause by a passing train on defendant’s road, and the latter has appealed.

The first assignment charges that the trial court committed error in overruling the defendant’s general demurrer to the plaintiff’s petition. The statement in appellant’s brief in support of that assignment does not purport to contain even the substance of all that was alleged in the petition, but, in addition to stating that certain facts were alleged, states that certain facts were proved by the evidence. Of course, the testimony cannot be considered in determining the sufficiency of a pleading. Besides, the record does not show that the court made any ruling upon the general demurrer, or that it was requested so to do, and therefore that demurrer must be considered as waived.

The second and fourth assignments object to certain paragraphs of the court’s charge, which objections we hold are without merit, and the assignments are overruled.

The third, fifth, and sixth assignments charge that error was committed by the refusal of certain requested instructions. The record shows that appellant requested only one instruction that was refused, and no error is assigned upon the action of the court in refusing that instruction. Hence we hold that the record does not sustain the assignments, and for that reason they are overruled.

No reason for doing otherwise has been made to appear, and therefore the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    JACKSON v. TAYLOR.
    (No. 7762.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.)
    1. Landlord and Tenant (§ 326) — Farm Leases — Construction.
    Where a farm lease on shares required, the tenant to plant specified crops, and provided that, as soon as the crops were gathered, the land should revert to the possession of the landlord, the tenant is not, where the specified crop failed, entitled to the same share of a substitute crop; the lease expressly providing for the possession to revert to the landlord.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1367-1378; Dec. Dig. § 326.]
    2. Landlord and Tenant (§ 331) — Farm Leases — Evidence.
    Where a lessee of a farm on shares claimed part of the hay raised after the failure of the crop required by the lease, evidence that landlords in that vicinity allowed their tenants to harvest hay grown after the usual crops had failed .because of drought, just as if it had been the crop planted, is admissible on the question of whether the landlord agreed to allow the lessee to harvest such hay.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dee. Dig. § 331.]
    3. Trover and Conversion (§ 54) — Measure of Damages.
    Where a landlord converted hay belonging to the tenant, the measure of damages is the market value of the hay converted; hence the expense of hauling the hay to market would be immaterial.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 252, 255-257; Dec. Dig. § 54.]
    4. Landlord and Tenant (§ 331) — Cropping Contract — Evidence.
    Where a landlord converted hay belonging to his tenant, the measure of damages is the market value of the hay, and so evidence that the tenant had agreed to sell the hay at a fixed price is inadmissible, where the landlord had no notice of such contract.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.]
    5. Trover and Conversion (§ 54) — Damages — Measure.
    Where a landlord converted hay belonging to her tenant, she cannot recover expenses incurred in baling the hay.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 252, 255-257; Dec. Dig. § 54.]
    Appeal from Young County Court; E. W. Fry, Judge.
    Action by Mary S. Taylor against G. W. Jackson. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.-
    C. W. Johnson, of Graham, and Theodore Mack, of Ft. Worth, for appellant. R. F. Arnold and Kay & Akin, both of Graham, for appellee.

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

   CONNER, C. J.

G. W. Jackson was a tenant of Mary S. Taylor for the year 1911, and this suit was instituted by the latter to recover some Colorado grass hay alleged to have been converted by Jackson. The plaintiff, at the time of the institution of the suit, sued out a sequestration writ which was levied upon the hay. The defendant having failed to replevy the hay, the plaintiff did' so, and the same, 2,200 bales valued at 40 cents per bale, was delivered to her by the sheriff. The plaintiff claimed the hay by virtue of her ownership of the land under the terms of a written lease to the defendant. The defendant also claimed under the lease, and further specially pleaded an oral agreement with the plaintiff by the terms of which he (the defendant) was to cut and bale the hay free of cost to the plaintiff and to deliver to her one-fourth as rent. A trial before a jury resulted in a verdict and judgment for the appellee, and the defendant has appealed.

The written lease between the parties provided that Jackson was to plant, work, and gather on the land rented to him 75 acres of cotton, 15 acres of corn, 5 acres of sorghum cane, and 10 acres of maize, and to deliver to Mrs. Taylor one-fourth of the cotton, one-third of the corn, and one-third of the wheat, oats, millet,- and sorghum (also permitted) raised on the premises. The lease further stipulated that the crops should be planted, worked, and gathered in due season, and on failure or refusal to so do by the tenant the landlord might have it done and take the cost out of the tenant’s part of the crops. It was further "provided that “as soon as a crop is gathered, of could have been gathered by the use of proper industry, the land returns to the possession of the landlord for his disposal, for the next succeeding year, and at any time after the small grain has been taken off that the land may be used by the landlord, but not to the injury of the tenant or crops on the ungathered part of the premises.”

The proof shows that Jackson properly plowed and planted some 15 acres of corn and some 75 to 80 acres of cotton and a number of . acres in .sorghum, but that there was an utter failure of from 25 to 30 acres of the cotton and some of the sorghum land because of a severe drought. Upon this part of the land, which had been cultivated and left level, Colorado grass sprang up and was allowed to grow, and later in the season was harvested and partly baled by Jackson; he tendering the plaintiff one-fourth thereof as rent. The defendant Jackson and his son both testified, as- substantially alleged in his answer, that after the failure of the crops he went to Mrs. Taylor and stated the situation to her and inquired whether she thought it best that he try to plant the land in maize or sorghum, or let it remain for the growth of Colorado grass, and that Mrs. Taylor stated that he might exercise his own judgment in the matter, which he did to their mutual profit. Mrs. Taylor, however, denied any such agreement. •

. The majority at least are of the opinion that the written lease did not confer upon the defendant a right to the Colorado grass in question, and that therefore there was no error in the charge of the court so instructing, as complained of in the fourth as-" signment, and in refusing special charges Nos. 2 and 3 of contrary import, as urged in assignments Nos. 8 and 9.

We are of the opinion, however, that the court erred in excluding the testimony of G. W. Wiley, J. E. Parsons, and Robert Mc-Laren," as urged in the second assignment, to the effect that it was the custom in the neighborhood of the rented premises during the year 1911 for the tenant to harvest Colorado grass grown upon lands upon which the usual crops had failed because of the drought and take three-fourths thereof, rendering to the landlord one-fourth. The testimony, as shown by the bill of exception taken to its exclusion, was offered “to corroborate the defendant Jackson in his claim of a verbal understanding with the plaintiff,” and was objected to on the ground that it was immaterial. The conflict between the plaintiff and defendant on the issue of the subsequent agreement, upon which alone the case was submitted by the court, was sharp, and we think the evidence tendered admissible for the purpose offered as a circumstance rendering more probable the evidence of the defendant and his son in favor of the agreement. See Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604; Paine v. Argyle Merc. Co., 133 S. W. 895; and the recent case by this court, No. 7827, E. B. Carver et al. v. Power State Bank, 164 S. W. 892, not yet officially reported. Eor the error of the court in the exclusion of the testimony, we think the judgment must be reversed, and the cause remanded for a new trial.

In the event of a recovery by appellant, his measure of damage will be the market value of the hay converted by the plaintiff, less the part, of course, due her as rent, and hence the cost of hauling the same to market would be immaterial, as the court below ruled. So, too, the court properly rejected evidence that appellant had sold part of the hay baled by him at 50 cents per bale; there being no evidence that the appellee had notice of any such contract. If in fact appellant should show himself entitled to recover under the special agreement set up by him, the plaintiff would not be entitled to a deduction of the expenses incurred by her in baling that part of the, sequestered hay that she did, as was instructed by the court, in the second paragraph of his charge. See Ripy v. Less, 55 Tex. Civ. App. 492, 118 S. W. 1084; Tignor v. Toney, 13 Tex. Civ. App. 521, 35 S. W. 881.

We find no error in other rulings of the court, or anything requiring further notice, but, for the error discussed, it is ordered that the judgment be reversed, and the cause remanded for another trial.


author: CARL, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. FOETCHE.
    (No. 5262.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 15, 1914.
    Rehearing Denied May 6, 1914.)
    Carriers (§ 134) — Carriers of Goods — Actions — Evidence—Sufficiency.
    In an action against a railway company for injury to a shipment of cabbages on account of the improper icing of the car in which it was made, evidence held sufficient to sustain a verdict against the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. § 134.]
    Appeal from Wharton County Court; J. R. Bowen, Judge.
    Action by Otto Foetche against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintitf, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Proctor, Vandenberge & Crain, of Victoria, and W. L. Hall, of Wharton, for appellant. John A. Barclay and P. J. Alexander, both of Wharton, for appellee.

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

   CARL, J.

Appellee, Otto Foetche, sued the Galveston, Harrisburg & San Antonio Railway Company for $305.25, alleging that he shipped over appellant’s line a ear load of cabbage from Kreigel, in Wharton county, to San Antonio, in Bexar county; the grounds of negligence upon which recovery was sought being unnecessary delay in shipment and improper and insufficient icing of the car in which such shipment was made. It was alleged that, on account of the insufficient icing of said car and delay in delivery, the cabbage became unsalable, and was a loss, except $5 for which the car was sold. Appellee alleged that he paid $25 for icing the car, and that the cabbage were worth $280.25, thus making the $305.25 sued for. Appellant answered by general demurrer, general denial, and specially denied any negligence on its part, and pleaded over on cross-action for $91.20 for ice furnished in icing the car, less $25 paid by appellee, and $5 for which the cabbage were sold. The jury gave the plaintiff judgment for $305, less $40 paid for ice, and judgment was rendered in appellee’s fávor for $265, from which judgment this appeal is taken.

The evidence shows that the car was loaded at Kreigel Station on the 22d and 23d of August, 1912, and. left that place about 4 o’clock p. m. of the last-named date, and reached San Antonio at 9:05 p. m. on August 24, 1912. It was shown by the plaintiff and his witnesses that the cabbage were sound when placed in the car; that sound cabbage could be hauled in a car for 30 hours, the .time these were in route, without any ice; and that they would spoil in an improperly iced car much quicker than if no ice was used whatever.

Appellant showed that this car came to Wharton on August 17th loaded with peaches consigned to H. E. Moore & Son. It was there until August 21st, while the peaches were being sold out. Witnesses testified that the ear was cold and in good condition during that time, and that on the day it arrived 1,500 pounds of ice were placed in the bunkers, on the. 19th 1,500 pounds more, and on the 20th another 1,500 pounds, while on the 21st 2,000 pounds more were put in, when the ear was carried to Kreigel, seven miles from Wharton. And further that in the afternoon of August 23d the car came back to Wharton loaded with cabbage, and a witness says he put 2,000 pounds of ice in the bunkers, and' says the car appeared to be in good condition. The witness Brady, for appellant, said that he put 6,000 pounds of ice in the bunkers at Rosenberg at 11:50 p. m. August 23d. Voelcker, the agent for appellant at San Antonio, says the car came in at 9 :05 p. m. the 24th, and was in bad condition. The next morning (Sunday) he put 8,200 pounds of ice in the car.

There seems to be no dispute that the car was not delayed .in shipment. So the sole question is as to whether there is sufficient evidence upon which the jury could base the finding that the car was insufficiently iced, either at the time the cabbage were put in or in transit, and whether that was the proximate cause of the decay of the same. Some of the witnesses testified that, while the car was dripping from the bunkers when it came, it was not dripping so much later and before it left.

Is it a legitimate inference from this testimony that the car was not properly iced, and, if it was not, did that fact cause the decay of the cabbage? There is no contention that the goods were not spoiled when they reached San Antonio, about 30 hours after they left the shipping point, and the evidence is sufficient to show they were sound when placed in the ear. It is also in evidence that cabbage improperly or insufficiently iced will ruin sooner than if no ice was put in, and that, if not iced at all, the shipment should have been made so as to leave the' cabbage in good condition.

We think it a' legitimate inference from the testimony, and that the jury was warranted, in concluding, that appellant did not sufficiently ice the car at the beginning, and that this fact caused the loss. Texas & P. Ry. Co. v. Copper, 38 Tex. Civ. App. 61, 84 S. W. 694. There being positive evidence that the cabbage were sound when placed in the car, and were ruined when they reached San Antonio, 30 hours later, coupled with the showing as to the manner of icing the car at and before the loading, would justify the conclusion that the negligence of the rail-way caused the injury. The assignments are all overruled, and the judgment is affirmed.


author: KEY, C. J.

text:
    BRIGHTMAN et al. v. BRIGHTMAN.
    (No. 4246.)
    (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.
    Motion to Affirm on Certificate Denied April 29, 1914.)
    Appeal and Error (§ 1127) — Affirmance— Motion.
    A motion to affirm on certificate must be denied, where the transcript accompanying- the motion does not contain a copy of the judgment which» the motion seeks to have affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432 — 1410; Dec. Dig. § 1127.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Action between O. O. Brightman and others and O. P. Brightman, next friend, etc. There was a judgment for the latter, and the former appeal.
    On motion to affirm on certificate. Motion denied.
    W. A. Anderson and Dee Upton, both of San Angelo, for the motion.

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

   KEY, C. J.

This is a motion to affirm on certificate, and it must be overruled because the transcript which accompanies the motion does not contain a copy of the judgment which the motion seeks to have affirmed. In House v. Williams, 40 Tex. 351, and H. & T. C. Ry. Co. v. Greenwood, 40 Tex. 362, it was held that in order to confer jurisdiction and authorize an affirmance on certificate by that court, it was necessary that the transcript which accompanied the motion to affirm should contain a copy of the judgment and appeal bond; and in Supreme Council v. Anderson, 36 Tex. Civ. App. 615, 83 S. W. 208, this court made the same ruling, and overruled a motion to. affirm on certificate because the transcript did not contain a copy of the judgment. Following the cases cited, the motion asking for an affirmance on certificate is overruled.

Motion overruled.


text:
    FT. WORTH & R. G. RY. CO. v. JONAS.
    (No. 5304.)
    (Court of Civil Appeals of Texas. Austin.
    March 4, 1914.
    Rehearing Denied April 29, 1914.)
    Trial (§ 260*) — Instructions.
    Where the charge given did not clearly and specifically present a defense, the denial of two special charges, either of which would have supplied the omission, is erroneous, though only one of them need have been given.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.]
    Appeal from McCulloch County Court; Harvey Walker, Judge.
    Action by J. M. Jonas against the Ft. Worth & Rio Grande Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Andrews, Ball & Streetman, of Houston, Harris & Harris, of Ballinger, and Wright, Wynn & Harris, of San Angelo, for appellant. Shropshire & House, of Brady, for ap-pellee.

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

   KEY, C. J.

This is a suit for damages caused by fire, which resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

Overruling all others, we sustain the second and fourth assignments of error. One of the defenses relied upon was the contention that at the time in question the engine from which the sparks escaped which were alleged to have caused the fire was equipped with the most approved appliances in use to prevent the escape of fire, that the same were in good repair, and that the engine was being carefully and skillfully handled. The court instructed the jury that, if the defendant was not guilty of negligence on the occasion in question, to return a verdict for it, but did not apply that defense as specifically and clearly as appellant had the right to have done. Two charges were asked upon that subject, either of which would have supplied the omission in the court’s charge, and the refusal to give those charges is made the subject-matter of the second and fourth assignments. It was not necessary to give both of the refused charges; but one of them should have been given. Railway Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Railway Co. v. Johnson, 98 Tex. 76, 81 S. W. 4; Railway Co. v. McKenzie, 30 Tex. Civ. App. 293, 70 S. W. 237.

Por the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: RICE, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. LEUSCHNER.
    (No. 5314.)
    (Court of Civil Appeals of Texas. Austin.
    March 11, 1914.
    Rehearing Denied April 29, 1914.)
    1.Railroads (§ 411*) — Injuries to Stock— Negligence.
    Where an animal is killed on the track at a point where a railroad company is not required to fence its tracks, as within the depot grounds, the owner must show negligence by the company in order to recover therefor.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dee. Dig. § 411.*]
    2. Railroads (§ 425*) — Injuries to Stock— Proximate Cause.
    The railroad company’s negligence must be the proximate cause of injury to stock on the track, to entitle the owner to recover therefor.
    [Ed. Note. — Por- other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. § 425.*]
    3. Railroads (§ 443*) — Injuries to Stock-Action— Sufficiency of Evidence — Negligence.
    Evidence, in an action against a railroad company for injury to the stock on the track, held to show that the trainmen were not negligent in failing to blow the whistle or sound the bell or keep a lookout.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*]
    4. Railroads (§ 441*) — Injuries to Stock-Burden of Proof — Negligence.
    The burden is on the owner to show negligence by the trainmen resulting in injury to stock on the track, -and not on the railroad to introduce evidence of exoneration.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.*]
    Appeal from Palls County Court; W. E. Hunnicutt, Judge.
    Action by J. G. Leuschner against the International & Great Northern Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Neff & Taylor, of Waco, for appellant. T. B. Bartlett and Prentice Oltorf, both of Marlin, for appellee.
   RICE, J.

Appellee’s mule was killed by appellant’s north-bound train on the early morning of September 27, 1912, at Otto, and this action is brought to recover damages therefor, alleging negligence on the part of appellant in the failure to blow the whistle or sound the bell at the time the mule was killed, notwithstanding the same was seen by its engineer in time to have prevented the injury. He also charged the failure on the part of appellant to fence its track at said point, and that the train was running at a high rate of speed when the animal was struck; that the engineer failed to keep a lookout, notwithstanding animals were in the habit of grazing at said point, which fact was alleged to have been known to appellant’s operatives. Appellant answered by general exception, general denial, and specially that the place where the animal was killed was within the depot grounds, switch limits, switch tracks and yards, and at a public crossing in the town of Otto, where it could not fence its track without imperiling the lives of its employés, and at a place where it was not required to fence its right of way. A jury trial resulted in a verdict and judgment for appellee, from which this appeal is taken.

At the conclusion of the evidence appellant moved the court to peremptorily instruct the jury to return a verdict in its behalf, which was refused, and upon which error is assigned. The evidence shows that the animal was struck by the early morning train passing north, through the town. There was no evidence in behalf of the plaintiff showing the circumstances under which the animal was struck; but, on the contrary, appellant’s evidence showed that the animal was killed within the depot grounds at Otto, about midway of the switch limits, and at a point where the company was not required to fence its track. The fireman testified that: “We whistled for the road crossing about 500 or 600 yards south of the depot, and gave the station whistle about 300 or 400 yards from the depot and rung the bell. The mulé suddenly stood in front of the train on the track. I hallooed to the engineer that there was a mule on the track, but we could not stop. We tried to stop; we turned on the air and whistled. We struck the mule on the crossing and knocked it off. When I first saw the mule he was coming on the track on the crossing; it was not possible to stop the train — we tried. The engineer sounded the whistle; I rung the bell from the time we whistled to the station. The headlight was burning; it was about half daylight and half dark. We were going between 25 and 30 miles an hour.”

Garner,' the engineer, testified that he remembered the occasion when the mule was killed; “that the mule suddenly appeared on the track and the fireman hallooed, ‘Uncle Joe! There is a mule on the track.’ I was very close to him before I saw him. I had begun to stop for the station; I tried to stop; could not scare him off. I blew the proper signal. I saw the mule first before the fireman. The fireman had been ringing the bell; I applied the emergency brake and whistled. When I saw the mule, we were not oyer 20 feet away.”

There was no evidence showing or tending to show that they, or either of them, had ever seen animals there before, or knew that animals were in the habit of grazing at said point.

Where an animal is killed at a point where the company is not required to fence its track (as in the present case) it then devolves upon the owner to show negligence on the part of the company before he will be entitled to recover, and that such negligence was the proximate cause of the injury. See I. & G. N. Ry. Co. v. Bandy, 163 S. W. 341; Ry. Co. v. Bennett, 126 S. W. 607; Ry. Co. v. Graham, 155 S. W. 653; Ry. Co. v. Bailey, 150 S. W. 962; Ry. Co. v. Conley, 142 S. W. 36; Ry. Co. v. Anson, 101 Tex. 198, 105 S. W. 989; Ry. Co. v. Matthews Bros., 158 S. W. 1048.

In the instant case, appellee has failed to meet this burden; but, on the. contrary, the company has completely exonerated itself from blame by showing, as it has done, that it was not negligent in the respects charged, which it was not required to do under the circumstances. It is said in 2 Wharton on Evidence, § 1268, that “the defendant is not called on to bring evidence of exoneration until the plaintiff has made a prima facie case.”

We think the court erred in refusing to instruct a verdict in behalf of appellant, as requested, on the ground that the evidence wholly failed to show liability on its part; and, since the case appears to have been fully developed, it becomes our duty to render such judgment as the trial court should have done, for which reason we reverse the judgment of the court below, and here’ render the same in favor of appellant.

Reversed and rendered.


text:
    ELIAS v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.
    (No. 5,316.)
    (Court of Civil Appeals of Texas. Austin.
    March 11, 1914.
    Rehearing Denied April 29, 1914.)
    1. Carriers (§ 94) — Carriage of Goods— Actions — Burden of Proof.
    In an action against a railroad company for converting a car load of cotton seed, plaintiff was entitled to recover, where he showed a delivery to the railroad company, unless it appeared that the shipment had been delivered to the consignee.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    2. Evidence (§ 354) — Private Writings — Books and Accounts.
    Where plaintiff, a ginner, produced all- of the written slips and accounts kept by him and his clerk at his gin and constituting all the bookkeeping necessary in his business, and showed that such bookkeeping was regularly kept, and the entries regularly made, the court erred in admitting only such of the documents as were made by plaintiff, excluding those made by the clerk.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.]
    3. Carriers (§ 94) — Carriage oe Goods— Actions — Evidence.
    In an action against a railroad company for converting a shipment of 63,478 pounds of cotton seed, evidence that plaintiff, a ginner, had purchased 65,000 pounds in excess of the amount shipped out and sold, excluding the shipment involved, was admissible to support his claim that such shipment was delivered to the railroad company.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    Appeal from Bastrop Co.unty Court; J. B. Price, Judge.
    Action by A. M. Elias against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    S. L. Staples, of Smithville, and N. A. Rector, of Austin, for appellant. Orgain & Maynard and Page & Jones, all of Bastrop, for appellees.

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

   KEY, C. J.

The following is conceded to be a correct statement of the nature and re-suit ¡of - this •' suit, contained in appellant’s brief: “This suit was instituted in the county court bf- Bastrop county by appellant against the Missouri, Kansas & Texas Railway Company of Texas, and the Smithville Oilmill Company, a private corporation, located in Smithville, Bastrop county, Tex. The petition alleged that appellant, .who resided at Primm, a station on the line of the defendant railway company, in Fayette county, on or about the 22d day of October, 1911, loaded one of defendant’s' freight cars with 63,478 pounds of cotton seed, which was of the value of $533.50, to be. transported by the defendant railway company from Primm;, in Fayette county, to Smithville, in Bastrop county, and to be delivered by it to the defendant the ■Smithville Oilmill Company, to which latter company the plaintiff had already sold said seed for said sum of $533.50, to be paid to appellant upon the delivery of said seed in the yard of said oilmill company, and after the same had been weighed. The petition further alleged that there was no agent or depot building at the town of Primm, but that for a number of years the railway company, when any freight of cotton, cotton seed, wood, or any kind of freight was to be shipped from said station to any other point, would leave empty cars at said station to be loaded by its freight patrons, who, in turn, would notify the station agent at Smithville that said cars had been loaded for shipment, and thereupon the trainmen of said railway company would stop at said station and take said car on its passing train to the point designated;, and that this custom had existed for a number of years, and had been adopted by the railway company for its own convenience and that of its customers; that, when said car mentioned was loaded with cotton seed, the agent at Smithville was notified of that fact, and that its destination was the Smithville Oilmill Company at Smithville, Tex.; that,-in pursuance of said notice, on or about said October 22d, one of defendant’s trains, in passing Primm station, hitched onto said car of cotton seed, and hauled the same away from said Primm station, and carelessly and negligently refused and failed to deliver the same to said Smithville Oilmill Company, or destroyed or converted the same to its own use, and was therefore liable to plaintiff for the value of said cotton seed. And, in the alternative, the petition alleged that, if the defendant railway company did, in fact, deliver said car of cotton seed to the defendant the Smithville Oilmill Company, then that the defendant Smithville Oil-mill Company had converted said cotton seed to its own use, and has refused to pay to appellant the value of said cotton seed, the sum of $533.50; that both defendants have refused to pay plaintiff said sum of money, to plaintiff’s damage the value of said cotton seed. The defendant railway company answered; by demurrer and special exceptions (which were not presented), and also by general denial. The defendant oilmill company answered by general demurrer (which was not presented) and by general denial. The case was tried before the court without a jury, and judgment rendered that plaintiff take nothing by his suit, and that defendants recover all costs by them respectively incurred. Appellant filed his motion for new trial, which was overruled, to which he excepted, and gave notice of appeal to this court, and presents this cause for reversal upon the following assignments of error, which errors were called to the court’s attention in his motion for a new trial.”

To that statement counsel for appellee railway company merely add that no request was made of the court to file conclusions of fact and law; and we add that none were filed.

Opinion.

Under the first and second assignments of error appellant contends that the judgment of the court is contrary to, and not supported by, the testimony, and we sustain that contention. We do not care to discuss the evidence in detail, and deem it sufficient to say that it shows with reasonable certainty that the car load of cotton seed referred to was delivered to and received by the railway company; and, such being the case, appellant was entitled to a judgment against the railway company, unless it was made to appear that that defendant had delivered the cotton seed in question to its codefendant, the oilmill company. In any event, upon the testimony contained in the record, the plaintiff was entitled to judgment against one of the defendants, and the trial court should have determined which of the two was liable, and ren- . dered judgment accordingly.

We also sustain the third assignment, and hold that the court committed error when it sustained the objection urged against the testimony referred to in that assignment. The excluded testimony comprised all of the written slips, statements, and accounts kept ’ by. the plaintiff and his clerk at his gin; and, according to the bill of exception, they would have shown the entire amount of seed purchased during that season, and they constituted, in effect, all the bookkeeping that was done, and all that was necessary to be done, in the conduct of the plaintiff’s business as a ginner. In other words, the bill shows that the papers referred to comprised the plaintiff’s entire bookkeeping relative to purchasing, selling, and handling cotton seed for that season, and plaintiff offered to show that the bookkeeping referred to was regularly and duly kept by himself and his clerk, and that all the entries were regularly and duly made by them. The trial court ruled that the • plaintiff might introduce such of the documents referred to as .were, made or entered by him, but excluded those made and entered by Ms clerk. We tlilnk all the testimony was admissible. McKelvey on Evid. 302, and notes. According to the bill of exception, if tbe excluded testimony had been admitted, it would have shown that the total amount of cotton seed purchased by the plaintiff was about 65,000 pounds in excess of the amount he had shipped out and sold, excluding the car load involved in this suit, and that fact would have tended strongly to support his claim against the railway company.

Eor the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: JENKINS, J.

text:
    SOUTH TEXAS MORTGAGE CO. v. COE.
    (No. 5273.)
    (Court of Civil Appeals of Texas. Austin.
    March 11, 1914.
    Rehearing Denied April 29, 1914.)
    1. Contracts (§ 94) — Rescission for Fraud.*
    Fraud is ground for rescinding a contract. [Ed. Note. — For other cases, see Contracts, Dent. Dig. §§ 420-430, 1160, 1164, 1165 ; Dec. Dig. § 94.]
    2. Contracts (§ 94) — Rescission—Fraud.
    A verbal promise to do something in the future, which is a material inducement to the execution of a contract, and is relied upon by. the promisee, is fraud, authorizing the rescission of the contract, if the promisor had no intention of fulfilling the promise when it was made.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. § 94.]
    3. Evidence (§ 434) — Rescission—Fraud.
    Fraudulent representations need not be em- . bodied in the contract in order to be ground for rescission, notwithstanding that oral evidence is not admissible to vary the terms of a writing.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434.]
    4. Evidence (§ 441) — Parol Evidence Varying Contract — Exceptions to Rule.
    It is presumed that a written contract embodied the whole contract, and previous statements or representations of the parties cannot be brought into the contract by parol evidence, except where the contract consisted of distinct parts, only part of which was reduced to writing, or something was omitted by fraud, accident, or mistake, in which cases parol evidence is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719.1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.]
    5. Vendor and Purchaser (§ 214) — Liability op Assignee.
    The assignee of a land contract is not responsible for the promise of the vendor to the purchaser, unless it contracted to become so.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 436, 442-448; Dec. Dig. § 214.]
    6. Contracts (§ 174) — “Exception.”
    An exception is intended to take out of the contract that which would have been included in it but for the exception.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 765; Dec. Dig. § 174.

    For other definitions, see Words and Phrases, vol. 3, pp. 2538-2544; vol. 8, p. 7656.]
    7.Vendor and Purchaser (§ 50) — Construction of_Contract — Duties op Vendor.
    A provision of a land contract that the vendor will not be responsible for any statements made regarding its property, except as stated in its printed literature or letters signed by its-officers, left its liability for representations not contained in the contract the same as if the provision had not been inserted, so that it would not be bound to open and macadamize a certain street, though its printed advertisement stated that it would do so.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 81; Dec. Dig. § 50.]
    Appeal from District Court, Bell County;. John D. Robinson, Judge.
    Suit by M. Coe against the South Texas Mortgage Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    J. W. Lockett and A. M. John, both of Houston, and M. E. Monteith, of Belton, .for appellant. Jno. B. Daniel, of Temple, for appellee.

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

   Findings of Fact.

JENKINS, J.

The Western Land Corporation was incorporated in 1907, with an authorized capital of $100,000, which was later increased to $500,000. In January, 1911, $377,000 of its capital stock had been paid up. The South Texas Mortgage Company was incorporated January, 1911, with an authorized capital of $300,000, of which $265,-Q00 was paid up. Some, though not all, of the incorporators of the South Texas Mortgage Company had been associated with the Western Land Corporation. Prior to May, 1910, the Western Land Corporation had purchased a tract of land adjoining the city of Temple, and had laid the same off as an addition to Temple, known as the Laurel Heights addition. It entered into an agreement with appellee to sell to him certain lots in said addition, which agreement was evidenced by the following instruments:

“Agreement for Purchase of Lots in Laurel , Heights, Temple, Texas.
“I hereby agree to purchase from the Western Land Corporation, subject to conditions on back hereof, lot No. 10, block No. 8, price $440.00, lot No. 11, block No. 8, price $340.00, as shown on their plat of Laurel Heights, an addition to the city of Temple, Texas, and agree to pay therefor the total sum of $780 as follows: $50.00 in cash with this application, and $20.00 on the 7th day of each . succeeding month until the contract has been paid in full. The conditions on back of this application are hereby made-a part of this contract. Name, M. Coe. Street. City of Gatesville, County Coryell, State of Texas.
“Date, May 7, 1910.
“I hereby certify that the purchaser signed this application.
“Salesman, E. J. Terral.
“No. 23.”

Back of contract:

“Conditions.
“(1) The Western Land Corporation agrees to charge me no interest on deferred payments under this contract.
“(2) In consideration of the waiver of all interest on the installment payments as mentioned- above, I hereby agree to make all payments when due, and, should I fail to pay any installment for a period of thirty days after due (except in case of illness as provided in contract), I hereby agree to forfeit all previous payments to the Western Land Corporation as rental charges for the possession of the property from the date of my contract.
“(3) The Western Land Corporation will pay all taxes on this property until my contract is completed.
“(4) In case of my death before the completion of the installment payments under this contract, and satisfactory proofs of my death having been furnished to the company by my heirs, the Western Land Corporation will deliver to my legal heirs a warranty deed and abstract of title, without further payments on their part, provided my contract is in force at the time of my death, and all payments then due have been paid. I hereby certify that I am not seriously ill on the date of this application.
“(5) Should the lots selected by me be sold when this agreement reaches the office of the Western Land Corporation, I agree to select other lots, or to allow some one to select other' lots for me, and allow this payment to apply thereon.
“(6) The Western Land Corporation will not be responsible for any statements made regarding its properties, except as stated in its printed literature or in letters signed by its officers.
“(7) Our salesmen are only authorized to collect the first payment on each lot, and all further payments must be made directly to the office of the company, except at the risk of the purchaser.”

The Western Land Corporation executed and delivered to appellee its contract for deed, which reads as follows:

“Contract for Deed.
“Know all men by these presents: That the Western Land Corporation, a corporation created and existing under the laws of the state of Texas, with its principal offices and place of business in the city of Houston, county of Harris, in said state.
“For and in consideration of the sum of $50, to them in hand paid by M. Coe, of Gatesville, Texas, the receipt whereof is hereby acknowledged, and the agreement on his part to pay a further sum of $20 on the 7th day of each succeeding month until a total sum of $780 has been paid, the Western Land Corporation agrees that, upon the payment of the said sum of $780 in the manner and at the time above stated, they will execute and deliver to the said M. 'Coe a good and- sufficient warranty deed and abstract of title to lot No. 10, block No. 8, size 50x140 feet, lot No. 11, block No. 8, size 50x140 feet in Laurei Heights, an addition to the city of Temple, Texas, as shown by the map thereof, wliich is recorded in the office of the county clerk of Bell county, in the state of Texas.
“The purchaser above named is entitled to the following benefits under this contract according to the conditions named herein:
“(1) Should the above-named purchaser die before the installment payments herein mentioned are completed, the Western Land Corporation will, upon the receipt of satisfactory proof of death, deliver to the legal heirs of the purchaser, without further payments, a warranty deed and abstract of title, provided that at the time of purchaser's death said purchaser is then the owner of this property, and all payments due up to that time shall have been paid. Should purchaser be seriously ill at time of signing application for pinchase, this clause shall not be binding upon this company.
“(2) The Western Land Corporation agrees to pay all state and county taxes on this property until the installment payments are completed.
“(3) The Western Land Corporation agrees to carry this contract in full force for thirty days after payment is due, and in case of illness will carry this contract for six months on certificate from practicing physician and the payment of a fee of 50 cents per month on each lot.
“(4) The Western Land Corporation will not charge any interest on the deferred payments under this contract.
“(5) In accordance with agreement signed on the 7th day of May, 1910, by the purchaser above named, which agreement is made a part hereof, the said purchaser agrees, in consideration of the waiver of all interest charges on the deferred payments, that he will make all installment payments when due, and, should default be made in the payment of any installment for a period of thirty days after due, except in case of illness, as stated in clause 3, then all previous payments shall be forfeited to the Western Land Corporation as rental charges for the possession of above-named property from date of this contract, and this contract for deed shall be null and void thenceforth. The above-named purchaser shall in that event be likewise relieved from all responsibility under this contract.
“In witness whereof, the said the Western Land Corporation has caused these presents to be signed by its president, and its corporate seal to be affixed and attested by its secretary, this the 12th day of May, A. D. 1910. C. S. Woods, President. [Seal.]
“J. P. Minton, Secretary. [Seal.]
“[Seal of the Western Land Corporation.]”

Subsequent to the execution of said contract the South Texas Mortgage Company purchased from the Western Land Corporation the land comprising said Laurel Heights addition, and assumed all of its written contracts in relation thereto. Subsequent to such purchase appellee filed suit against appellant, alleging, among other things, that, as an inducement for him to enter into the contract with the Western Land Corporation for the purchase of said lots, it promised that it would, at the earliest possible moment, and at its own cost and expense, open Sixth street of the city of Temple from its then terminus, and would macadamize same to and through said addition. Prior to the sale to appellee, the Western Land Corporation had advertised in a Temple paper that it would, open and macadamize Sixth street, as alleged by appellee. Appellee had read this advertisement, and relied on said promise. The opening of said street and macadamizing same would have materially enhanced the value of the lots contracted for by ap-pellee, and, but for the representation that the same would be opened and macadamized in a reasonable time, appellee would not have entered into the contract to purchase said lots.

There is a tract of land between the terminus of. Sixth street and Laurel Heights addition, which neither the Western Land Corporation nor the appellant have ever owned. Sixth street has never been opened through said tract of land, and no part of Sixth street in Laurel Heights addition has been macadamized.

The Jury found that the Western Land Corporation never at any time intended to comply with its promise to open and grade Sixth street, and the evidence is sufficient to sustain this finding. The Southern Mortgage Company knew, at the time it took over Laurel Heights, that the Western Land Corporation had advertised that it would open and macadamize Sixth street.

Appellee complied with his contract until he had paid the sum of $370 on said contract, when he refused to make any further payments, unless appellant would open and grade Sixth street, and, upon its failure to do so, elected to treat said contract as forfeited, and filed this suit to rescind said contract and recover the money so paid by him, with legal interest thereon. Judgment was rendered in accordance with said prayer.

There were other allegations as to failure to grade streets and put down cement sidewalks, upon which the evidence is not so strong in appellee’s favor. Also an allegation as to said Laurel Heights being incumbered with mortgages, which.under the evidence we deem immaterial.

Opinion.

Fraud is ground for the rescission of a contract. Robinson v. Dickey, 36 S. W. 500; 6 Cyc. 286. A verbal promise to do something in the future, which is a material inducement to the contract, and which is relied upon by the promisee, that the promisor had no intention of fulfilling at the time he made the same, is fraud in law, and is sufficient grounds for the rescission of the contract. Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Touchstone v. Staggs, 39 S. W. 189; Hodsden v. Hodsden, 69 Minn. 486, 72 N. W. 562; Read v. Chambers, 45 S. W. 742. Fraudulent representations or promises, in order to furnish grounds for rescission, need not be embodied in the contract. Ranger v. Hearne, 41 Tex. 260; Henderson v. Railway Co., 17 Tex. 576, 67 Am. Dec. 675; Davis v. Driscoll, 22 Tex. Civ. App. 15, 16, 54 S. W. 44.

This does not contravene the rule that oral evidence is not admissible^ to vary the terms of a written instrument. When a contract has been reduced to writing, it is presumed that it embodies the entire contract between the parties, and no previous statements, representations, or promises of the parties thereto will be permitted to be read therein by oral testimony as a part of the contract. Wooters v. Railway Co., 54 Tex. 294; Davis v. Driscoll, supra. The only exceptions to this rule are where the contract was in separate and distinct parts, and only a part thereof was reduced to writing (Rubrecht v. Powers, 1 Tex. Civ. App. 285, 21 S. W. 320), or where something which was intended to be inserted in the written contract was omitted by fraud, accident, or mistake (Bruner Bros. v. Strong, 61 Tex. 557). With the exceptions above stated, fraudulent representations or promises not embodied in a written contract, though they may be sufficient to furnish grounds for a rescission of the same, do not become a part thereof.

This distinction is important in the instant case. This suit is not against the Western Land Corporation, which made the alleged fraudulent promise, but against the assignee of that corporation. The appellant is not responsible for the promises of the Western Land Corporation, unless it contracted to become so. It contracted to become responsible for the Witten contracts of the Western Land Corporation, but none other.

This brings us to the crucial point in this case, viz.: Was the agreement on the part of the Western Land Corporation to open and macadamize Sixth street a part of its written contract with appellee? Sixth street is not mentioned in either of the two instruments hereinbefore set out, and which together constitute the contract with appellee. The sixth clause of appellee’s agreement to purchase reads as follows: “The Western Land Corporation will not be responsible for any statements made regarding its properties, except as stated in its printed literature or letters signed by its officers.” The fifth paragraph of the agreement to sell makes the agreement to purchase a part thereof. The printed advertisement of the Western Land Corporation contained the statement that it would open up and macadamize Sixth street. It is the contention of appellee that said sixth clause of his agreement to purchase had the effect to read into and make a part of the written contract all of the material representations and promises made by the Western Land Corporation in its printed advertisements as fully as if the same had been specially set forth in such written contract. In other words, that the Western Land Corporation, in effect, promised in mHtmff in said contract that it would be responsible for all statements regarding its properties made in its printed advertisements, and that being “responsible” for promises so made meant that it would fulfill such promises. If this contention is correct, the judgment of the trial court should be affirmed, if no other error appears of record; but, if not, the judgment should be reversed.

As we have seen, if the sixth clause, above set out, was omitted from the contract, the promise of the Western Land Corporation made in its printed literature, though fraudulent, and therefore grounds for rescission, as against said corporation, would not have constituted a part of the written contract, and oral evidence would not have been admissible to incorporate them in and make them a part of the written contract. What was in the minds of the parties in inserting the sixth clause? What was its purpose? Had this sixth clause been omitted, the Western Land Corporation would have been responsible for all fraudulent statements made by it or its agents acting within the apparent scope of their authority. The Western Land Corporation had the right to contract with appellee that it would not be responsible for any such statments, in which event such prior statements, whether printed or oral, made by itself or its agents, would have been no defense to the enforcement of the written contract, nor would they have furnished any grounds for its rescission. This assumes, of course, that appellee willingly and knowingly contracted to waive his right to set up such previous statements in avoidance of the contract. Leaving off the exception in said clause, this is just what appellee contracted to do. Without such exception, the clause reads: “The Western Land Corporation will not be responsible for any statements made regarding its properties.”

It is not the office of an exception to create a contract-, but to take out of a contract that which, but for such exception, would have been included in it. Austin v. Willis, 90 Ala. 421, 8 South. 95; Railway Co. v. Robeson, 27 N. C. 393; Loveland v. Clark, 11 Colo. 265, 18 Pac. 548. “An exception exempts absolutely from the operation of an enA gagement or an enactment; a proviso defeats their operation conditionally. An exception takes out of an engagement or an enactment something which would otherwise be a part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse.” Friedman Co. v. Assurance Co., 133 Mich. 212, 94 N. W. 761.

The exception in the sixth clause is, as to the matter therein referred to, as though said sixth clause had not been written in the contract. If it had not been written in the contract, the promises contained in the printed literature, but not embodied in the written contract, would not have been a part of the written contract. We think the evident purpose of said sixth clause was to relieve the Western Land Corporation against any alleged verbal representations, but to leave its legal responsibility just as it was without said clause. The opposite theory is plausible at first blush; but we do not think it is sound.

For the reason that we do not think that the promise to open and macadamize Sixth street was a part of the written contract, we reverse the judgment of the trial court and here render judgment for appellant.

We' here take occasion to commend the attorneys for appellant for fairly stating every fact appearing in the record against their assignments of error and propositions thereunder, as required by rule 31 for the Courts of Civil Appeals. While this rule is not'often flagrantly violated, it is not always complied with as fully as it should be.

Reversed and rendered.


text:
    SOUTH TEXAS MORTGAGE CO. v. ERWIN.
    (No. 5339.)
    (Court of Civil Appeals of Texas. Austin.
    March 11, 1914.)
    .Appeal from \District Court, Bell County; John D. Robinson, Judge.
    . Action between the South Texas Mortgage Company and J. R. Erwin. From a judgment in favor of Erwin, the Company appeals.
    Reversed and rendered.
    M. E. Monteifh, of Belton, and A. M. John and J. W. Lockett, both of Houston, for appellant. John B. Daniel, of Temple, for appellee.
   JENKINS, J.

This is a companion case to No. 5273, South Texas Mortgage Company v. Coe, 166 S. W. 419, this day decided by this court. For the reasons stated in said opinion, the judgment of the trial court in this case is reversed, and judgment is here rendered for appellant.

Reversed and rendered.


author: JENKINS; J.

text:
    EDWARDS v. OLD SETTLERS’ ASS’N.
    (No. 5318.)
    (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.
    Rehearing Denied April 29, 1914.)
    1. Frauds, Statute of (§ 149) — Interest in Land — Lease.
    In a lessee’s action to enjoin interference with its exclusive and quiet enjoyment of the premises, allegations of payment to the lessor according to contract, delivery of possession, and permanent and valuable improvements were all that was necessary to take the verbal lease out of the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 359; Dec. Dig. § 149.]
    2. Monopolies (§ 12) — Conspiracies Against Trade — Agreement in Lease.
    A lessor’s agreement that he would not allow any cold drink stands, shows, exhibitions, dance halls, or platforms on the land he owned within 400 yards of the leased land, or allow any use of such contiguous land antagonistic to the lessee’s purpose and welfare, did not violate Rev. St. 1911, arts. 7796-7809, defining and prohibiting trusts, monopolies, and conspiracies against trade.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.]
    3. Associations (§ 15) — Leasehold Property-Rights oe Members.
    A lease to an unincorporated association which could not own a leasehold estate would not, for that reason, fail for want of a grantee, as the title would vest in its members.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 19-25; Dec. Dig. § 15.]
    4. Frauds, Statute oe (§ 129) — Verbal Lease — Improvements.
    Under the rule that, to take a verbal lease out of the statute of frauds, the improvements relied upon by the lessee must have been made during the lifetime of the lessor, improvements by an unincorporated association under a verbal lease made February, 1911, by beginning of work on a dam and a tabernacle, and on a spring, within a few months, and before lessor died, were sufficient, even though no part of such improvements was completed during the lifetime of the lessor.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.]
    5. Frauds, Statute of (§ 144) — Verbal Lease — Ratification.
    Where a landowner made a verbal lease and died before the lessee made the agreed improvements required to take the contract out of the statute of frauds, his widow, by permitting permanent and valuable improvements to be completed, and accepting the fixed annual rent for two years, and selling other land subject to such lease, thereby ratified such verbal lease, and made it .binding upon herself.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 351; Dec. Dig. § 144.]
    6. Frauds, Statute of (§ 125) — Effect— Contract.
    A contract is not unlawful because not in compliance with the statute of frauds, as the statute presupposes its legality, the enforcement of which is only suspended until the provisions of the statute are satisfied.
    [Ed. Note. — For other eases, see Frauds, Statute of, Cent. Dig. §§ 275-277%; Dec. Dig. § 125.]
    7. Frauds, Statute of (§ 152) — Contract-Pleading — Defense.
    The statute of frauds must be pleaded when relied upon to defeat a contract.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 363-366, 371, 372; Dee. Dig. § 152.]
    8. Associations (§ 24) — Incorporation of Association — Property.
    While the incorporation of a voluntary association does not of itself constitute the corporation the owner of the association’s property, yet, when such property is paid for with money derived from the sale of stock in, and is held in trust for, the contemplated corporation, delivery of possession to it when formed vests it with at least the equitable title to the property.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §-45; Dec. Dig. § 24.]'
    9. Frauds, Statute of (S 158) — Oral Lease —Part Performance — Sufficiency.
    Where an oral lease was made under which the lessee went into possession and made valuable improvements, the fact that it was agreed that the lease should be reduced to writing does not conclusively show that the improvements were made on the faith of the promised written lease, and not on the strength of the oral one.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ . 373-376; Dec. Dig. § 158.]
    10. Evidence (§ 165) — Parol Evidence — Contract.
    When the terms of an agreement are reduced to writing and signed by the parties, the writing is merely the evidence by which the contract can be proved, and, in the absence of fraud, accident, or mistake, is the best evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ '548-555; Dec. Dig. § 165.]
    11. Evidence (§ 121) — Admissibility — Res Gestas.
    In a lessee’s action for an injunction, statements of the lessor as to leasing the premises and delivering possession in so far as res gestas as to delivery of possession were admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, ■ 307-338, 1117, 1119; Dec. Dig. § 121.]
    12. Evidence (§ 229) — Hearsay—Declarations Against Interest.
    In such case the lessor’s declarations against interest were admissible against defendant, who claimed under him with full notice that plaintiff was in possession claiming under a lease.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 822-834; Dec. Dig. § 229.]
    13. Witnesses (§163) —Declarations of Decedent.
    Such declarations were not objectionable as the declarations of a deceased party, where the suit was not against the heirs or executors of the lessor, and where neither of the witnesses were parties thereto.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 670; Dee. Dig. § 163.]
    14. Evidence (§ 157) — Best and Secondary ■ Evidence — Contract.
    A promise to execute a written lease, which lease was drawn and delivered to the lessor, who promised to sign it, but who did not do so, was not the best evidence of the terms of a previous verbal lease, followed by delivery of possession, payment of rent, and permanent improvements.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460-470; Dee. Dig. § 157.]

      15. Witnesses (§ 255) — Contract — Memorandum to Refresh Memory.
    In such case it was permissible for the draftsman to use it as a memorandum to refresh his memory.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874r-890; Dec. Dig. § 255.]
    16. Frauds, Statute of (§ 129) — Yerbal Lease — Improvements,
    . In considering improvements which would take a verbal lease with delivery of possession out of the statute, a dam for the construction of which the lessee had agreed to pay a part, and which, though not on the land leased, created a lake thereon, used for irrigation purposes, and a valuable and permanent improvement, was properly included.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.]
    Appeal from District Court, Williamson County; O. A. Wilcox, Judge.
    Action for injunction by the Old Settlers’ Association against W. W. Edwards. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lightfoot, Brady & Robertson, of Austin, for appellant John D. Hudson, Richard Critz, Sansom & Metcalfe, and Wilcox & Graves, all of Georgetown, for appellee.

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

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

   Findings of Fact.

JENKINS; J.

We adopt the following findings of fact made by the trial judge herein:

“I find that the plaintiff is a corporation duly incorporated under and by virtue of the laws of the state of Texas, and that the defendant resides in Williamson county, Tex.
“I find further that about the 3d day of February, 1911, one G. W. Glasscock, now deceased, made and entered into a verbal contract with F. W. Carothers and W. K. Makemson, and also with the Old Settlers’ Association of Williamson county, Tex., then unincorporated, by the terms of which contract the said G. W. Glasscock agreed to and did lease to the said Carothers and Makem-son, and to the Old Settlers’ Association, unincorporated, the following described tract of land:
“Lying and being situated in Williamson county, Tex., beginning at the north bank of the San Gabriel river, at a stake from which a water elm bears S. 60 E. 18 feet; thence N. 30 W. with the general line of a fence 525 feet to corner; thence S. 61 W. with a fence line 220 feet; thence S. 54 W. with fence line 1,217 feet; thence S. 37% W. 233 feet to a fence; .thence S. 32 E. with a fence line 360 feet to a stake; thence S. 55% W. with fence line to a point 13 feet S. of the N. line of the street in North Georgetown; thence S. 400 feet to a stake; thence S. 35 feet to a large rock in the south edge of the north San Gabriel river; thence down said south edge of said North San Gabriel river to its junction with the South San Gabriel river; thence' with the south bank of the San Gabriel river to a point opposite the mouth of Glasscock’s old millrace; thence across said stream at a right angle to a point on the north bank of said stream; thence up the north bank of said stream to the place of beginning; and containing 33 acres of land, more or less, and being what is known as the Old Settlers’ Grounds near the city of Georgetown, in Williamson county, Tex., and that in addition to said lease that said lease included a right of way from the north end of the causeway just north of the above-described premises, across said river, said right of way leading from the north fend of said causeway along the north bank of said river so as to lead into the above-described 33-acre tract of leased land.
“I find that by the terms of said lease it was agreed about said above-named date that the said Glasscock should receive annual rental for the said premises of $150 per year, due and payable on the 1st day of January, at the close of each year, and that the said Glasscock reserved the right to gather all pecans for his own use on said premises, and further that he reserved the right to get sand and gravel on said premises, and fill all excavations where such sand and gravel is taken, and water for irrigation, domestic, and stock purposes; and I find, further, that the said Glasscock owned the surrounding lands contiguous to said tract, afterwards sold to the defendant herein, and that he agreed as a part of the consideration for said lease, that he would not allow any cold drink stands, shows, exhibitions, dance halls, or platforms on the land he owned within 400 yards of the above-leased land, or allow the use of said contiguous land within 400 yards of said premises for any purpose or pursuit that would come into competition with or antagonize the purpose and welfare of the said Old Settlers’ Association.
“I also find that it was agreed by and between the said G. W. Glasscock and the said Carothers and Makemson and the said Old Settlers’ Association, then unincorporated, that the said Old Settlers’ Association should thereafter be incorporated under and by virtue of the laws of the state of Texas, and that said lease above named was made for the use and benefit of said Old Settlers’ Association, then unincorporated, and that the agreement or contract between the said Glasscock and the said Carothers and Ma-kemson and the said Old Settlers’ Association, unincorporated, was that said Old Settlers’ Association should thereafter be incorporated, and that said lease was made for the use and benefit of said Old Settlers’ Association, unincorporated, at that time, and that, when said Old Settlers’ Association should be incorporated, that said corporation should be the owner of said lease, and should be subrogated to all the rights and equities then owned or held by the said Carothers and Makemson and the said Old Settlers’ Association, unincorporated, and each and all of them, that said lease was to begin on the Sd day of February, 1911, and was to continue for and • during a period of 15 years from said date; and it was also agreed that said lease was to carry with it the right of exclusive possession, use, and control in the plaintiff herein and the Old Settlers’ Association, unincorporated, and also the right of exclusive use and control during all of said lease, subject to the foregoing exceptions.
“I further find that it was agreed, as a part of the consideration for the making of the said lease above named, that the said Old Settlers’ Association should build a tabernacle, and in connection with Williamson county, build a dam or causeway across said river so as to make a lake of water within the boundaries of said leased land, and said causeway to also be used as a public roadway; and it was also agreed that certain improvements were to be made to the springs on said land, and such other improvements as should be necessary for the use and occupancy of said land by said Old Settlers’ Association.
“I further find that, in pursuance of said agreement, the said G. W. Glasscock did deliver actual and open possession and control of said premises to said Old Settlers’ Association of Williamson county, then unincorporated, and that, in pursuance of said agreement, the said Old Settlers’ Association remained in such possession and control until it was duly and legally incorporated under the laws of this state on the 3d day of May, 1912, for the purpose of education, etc., and' that upon its incorporation said actual, open, and exclusive possession of said premises vested and cpntinued in said corporation, that said corporation was subrogated to all the rights, privileges, and equities theretofore owned or held by said Carothers and Makemson and the Old Settlers’ Association of Williamson county, unincorporated, and that it has since said date been in open, exclusive possession of said premises under said lease.
“I further find that, after entering into-said lease, the said G. W. Glasscock died, and that, in the partition and division of said estate of the said G. W. Glasscock, the above-named premises were awarded to and set apart to his widow, Mrs. Helen Glasscock, and that on or about the 5th day of August, 1911, the said Mrs. Helen Glasscock, the then owner of said premises, accepted the first year’s lease money on said premises, to wit, $150, and that on or about the 2d day of August, 1912, she accepted the second year’s lease money, $150, and I find that said money was paid to and accepted by the said Mrs. Helen Glasscock under and by virtue of said verbal or parol contract with the said G. W. Glasscock above named, and that the said Mrs. Helen Glasscock at all times while she owned said land recognized said contract and said lease.
“I further find that, after above-named contract was made, subscription lists were circulated for stock of plaintiff, and that the said G. W. Glasscock assisted in the circulation of said lists, and solicited subscriptions for stock, and assisted in the raising of said stock subscriptions, and that several thousand dollars were raised on said stock subscriptions ; and I further find that this plaintiff and its predecessor, the Old Settlers’ Association, unincorporated, in consideration of said 15-year contract and lease, made valuable improvements on said land in the shape of a large tabernacle, of the value and cost of about $1,500, that they paid out about $900 in the building of said causeway, and several hundred dollars in other permanent improvements on said premises, aggregating about $3,000. I further find that the said G. W. Glasscock assisted in letting the contract for said tabernacle and causeway, and that they were nearly completed at the time of his death, and were in all things built according to contract; and I further find that under the terms of said contract of lease said improvements were to be made as part of the consideration of said lease, and were and are to be the property of the said Glasscock, his heirs and assigns, at the end of said lease; and I further find that the said improvements were made in good faith, relying on said lease, and acting strictly within the terms thereof.
“X further find that said improvements were all paid for out of the proceeds of the sale of the stock of this plaintiff corporation, and that therefore they were all paid for by this plaintiff. I further find that they are valuable and permanent improvements, and were started and. nearly completed during the lifetime of the said G. W. Glasscock, with his full knowledge, consent, and approval, and erected in good faith, acting under and by virtue of the terms of said lease. I further find that they were completed with the full knowledge and consent of the said Mrs. Helen Glasscock.
“I further find that all the aforesaid payments of lease money so made by the plaintiff and its predecessor, and the improvements so placed on said premises by this plaintiff and its predecessors, were paid for and placed thereon in good faith, acting under and relying on said verbal or oral lease above named.
“I further find that after the death of the said G. W. Glasscock, and after the making of said improvements and the payment of said lease money, as above set out, that the said Mrs. Helen Glasscock conveyed the above land and the land surrounding the same then owned by her to W. W. Edwards, the defendant herein, this plaintiff at that time being in full, actual, and notorious possession and control of said 33 acres of land, leased as aforesaid, at the time of said conveyance; and I further find that the defendant Edwards bought said land with both actual and constructive knowledge of the lease rights of this plaintiff at the time of said conveyance, and long before he purchased or contracted to purchase said land as aforesaid, and that at the time he made said contract he was told by the said Mrs. Helen Glasscock about said lease, and it was expressly understood by him that he purchased said land subject to the rights of this plaintiff under said lease.
“I further find that the plaintiff herein, under the terms of said lease, is entitled- to use all dead timber for the use of campers on said premises.
“I further find that at the time of the institution of this suit, and at the time of the trial of this cause, that the defendant was disputing the lease rights of this plaintiff, and was disturbing it in its rights of exclusive possession and control of said premises, and was turning stock therein, and had torn down some of its fences, gates, and other improvementsand I further find' that the purposes of this corporation are not those of profit, but education, as above set out.
• “I further find that temporary injunction has heretofore’ been issued in the terms as set out in the judgment herein, and that said temporary injunction was necessary for the proper preservation of plaintiff’s rights.”

There was a judgment for appellee, and the temporary injunction was. made perpetual.

Opinion.

The court did not err in overruling appellant’s general demurrer. The appellee alleged substantially the facts found by the trial court as above set out. These facts are all that is necessary to take a verbal lease out of the statute of frauds, under the decisions of this state, viz.: Payment according to contract, .delivery of possession, and permanent valuable improvements. Wallis v. Turner, 95 S. W. 63; Lechenger v. Bank, 96 S. W. 640; Bradley v. Owsley, 74 Tex. 71, 11 S. W. 1052; Hutcheson v. Chandler, 47 Tex. Civ. App. 124, 104 S. W. 434; Dixon v. McNeese, 152 S. W. 676; Anderson v. Anderson, 13 Tex. Civ. App. 527, 36 S. W. 817; Wanhscaffe v. Pontoja, 63 S. W. 663.

The allegations as to the delivery of possession by Glasscock to the Old Settlers’ Association, unincorporated, and the delivery of, possession by said association to the appel-lee, are not as specific as they might have been; but we think they are sufficient as against a general demurrer, especially in view of the fact that the evidence fully substantiates these allegations, and there is no pretense that appellant was surprised by such evidence, or suffered any injury by rea-' son of the vagueness of such allegations.

The special exception set out in the second assignment .of error is in effect a general exception to' the petition in so far as it' relates to the statute of frauds, and the same was properly overruled.

The third assignment of error is to the effect that the alleged contract was void as being contrary to chapter 1 of title 130, R. S. 1911, defining and prohibiting trusts, monopolies, and conspiracies against trade. We overrule this assignment upon the authority of Nickels v. Prewitt, 149 S. W. 1096, Malakoff v. Riddlesperger, 133 S. W. 519, and Forrest Photo Co. v. Hutchinson, 108 S. W. 768. The part of the petition to which this exception was directed is as follows: “He [the lessor] further agreed that he would not allow any cold drink stands on his land within 400 yards of said land so leased, for cold drink stands, shows, exhibitions, dance halls, or platforms, or for any purpose or pursuit that may come in competition with or antagonize the purpose and welfare of the said Old Settlers’ Association, as hereinbefore and hereafter alleged.”

It is true, as contended by appellant, that the unincorporated association, as such, could not become the owner of a leasehold estate; but the grant would' not, for that reason, fail for the want of a grantee, as the title, where the grant is made to an unincorporated association, vests in its members. Smith v. Bank, 43 Tex. Civ. App. 495, 95 S. W. 1116. But, under the terms of the verbal lease herein, the unincorporated association, or its members, held the lease in trust for the corporation which was thereafter to be formed, and which was formed. It has discharged that trust by delivering possession of the leased premises to the incorporated association, and neither it nor any of its members are objecting to the title of appellee.

It is true, as a general rule, that the improvements relied upon must have been made during the lifetime of the grantor. Ryan v. Wilson, 56 Tex. 36; Baldwin v. Riley, 49 Tex. Civ. App. 557, 108 S. W. 1192; Altgelt v. Escalera, 51 Tex. Civ. App. 108, 110 S. W. 991; Hammond v. Hammond, 49 Tex. Civ. App. 482, 108 S. W. 1025; Newcomb v. Cox, 27 Tex. Civ. App. 583, 66 S. W. 340. Giving this rule its full force, the improvements made during the. lifetime of Judge Glasscock were sufficient. The dam for which appellee paid as its part $900 and the tabernacle which cost $1,410.18, and the work on the spring which cost $180 were begun, and a great part of the work on them was done, before Judge Glasscock died. In this case -the appellee, with the knowledge and consent of Judge Glasscock, had become legally liable for $900 for- work on the dam, and for the cost of constructing the tabernacle during his lifetime, and we think this is sufficient to meet the demand for improvements, even though no part of said improvements had been made; during the lifetime of the grantor. The rule announced in the cases above cited is correct as applied to the facts of those cases;, but every case where the statute of frauds' is invoked must stand upon its own equities. Wells v. Davis, 77 Tex. 639, 14 S. W. 237; Altgelt v. Escalera, supra; Morris v. Gaines, 82 Tex. 258, 17 S. W. 538; Bone v. Cowan, 37 Tex. Civ. App. 519, 84 S. W. 386.

However, if no work bad. been done, -and no legal liability therefor incurred, during tbe lifetime of Judge Glasscock, we tbink tbe judgment should nevertheless be .affirmed. In such case Mrs. Glasscock would have taken the title held by her deceased husband, and might have repudiated the lease contract, as he might have done, prior to improvements being placed on the land, or legal liability therefor incurred; but she might also have ratified said contract and thereby make it binding upon her. This she did by permitting the work to be finished as specified in the contract, which added permanent and valuable improvements to her land, and by accepting the annual rent for two years. She is not denying the validity of the contract; but, if she was doing so, she would be estopped by her conduct. Appellant purchased the tract of land which includes the leased premises with full knowledge of all of the facts, and with the express understanding that he did so subject to the lease, and he is in no better position to deny the validity of the lease than Mrs. Glass-cock would have been had she not sold the land.

A contract is not unlawful by reason of its not being in compliance with the statute of frauds. “The statute presupposes its legality, the enforcement of which is only suspended by the statute until its provisions are satisfied,” Bringhurst v. Texas Co., 39 Tex. Civ. App. 500, 87 S. W. 896. The statute of frauds'must be pleaded when relied upon to’ defeat a contract. Patton v. Rucker, 29 Tex. 411; Texas Brewing Co. v. Walters, 43 S. W. 548; Garner v. Stubblefield, 5 Tex. 561. It cannot be effectually interposed by a party who is estopped from availing himself of its benefits. The- maintenance of a parol contract required by the statute of frauds to be in writing rests upon the broad grounds of equitable estoppel. Bringhurst v. Texas Co., supra, 39 Tex. Civ. App. 500, 87 S. W. 893; Lechenger v. Bank, 96 S. W. 640. The equities in this ease are sufficient to estop appellant from asserting the invalidity of the contract.

Appellant insists that the judgment should be reversed for the reason that there was no transfer from the Old Settlers’ Association, unincorporated, nor from Carothers or Makemson, as trustees for said association, to the Old Settlers’ Association, incorporated. There was delivery of possession, and this is all that was necessary. This is not a suit of trespass to try title, in which appellee could be defeated by showing a superior outstanding title in a third party, but a suit for the enforcement of a contract originally made for the benefit of appellee, which is resisted on the ground that it was not in compliance with the statute of frauds. Neither the Old Settlers’ Association, unincorporated, nor any of its members, nor Ca-rothers or Makemson, are denying the title of appellee, and appellant does not connect himself with any title or equities that any of said parties might have by reason of their failure to make a written transfer to appel-lee. It is true that the incorporation of a voluntary association does not of itself constitute the incorporation the owner of the property owned by the unincorporated association (McLeary v. Dawson, 87 Tex. 537, 29 S. W. 1044; Carothers v. Alexander, 74 Tex. 319, 12 S. W. 4); hut, when the property is. paid for with money derived from the sale of stock in the corporation- to be formed, and is held in trust for such contemplated incorporation, as in the instant case, delivery of possession to such incorporation when formed vests it with at least the equitable title to the property.

Appellant insists that the evidence shows that the improvements' were not made under a verbal lease, but upon the faith of Judge Glasscock’s promise to make a written lease. It is true that Judge Glasscock promised to execute a written lease, and that Col. Makemson reduced the same to writing and delivered it to Judge Glasscock, who promised to sign same, and doubtless intended but neglected to do so. But this does not contradict the testimony that he had made a verbal lease and delivered possession thereunder. “Where the parties meet and discuss the proposed transaction, and it is consummated while they are together, • then, in the nature of things, an oral agreement precedes the writing; the latter being the best evidence of the former.” Bringhurst v. Texas Co., 39 Tex. Civ. App. 500, 87 S. W. 896. We ■are accustomed to speak of “written contracts”; but, accurately speaking, there is no such thing as a written contract. A contract is an agreement, a meeting of the minds of the.parties, and, when the terms of the agreement are reduced to writing and signed by the parties, the writing is simply the evidence by which the contract can be proven. In the absence of fraud, accident, or mistake, it is made by law the best evidence. But, when parties have made a contract, the agreement to thereafter reduce the same to writing does not abrogate the oral contract made. Where there was a parol gift of land, and a promise to make a deed to the same, it was held, in Wells v. Davis, 77 Tex. 637, 14 S. W. 237, that improvements placed upon the land in reliance on such promise was sufficient to take the case out Qf the statute of frauds. '

Error is assigned upon permitting several witnesses-to testify to the statements of Judge Glasscock as to leasing the property, and delivering possession thereof. Some of these declarations were res gestae' of the delivery of possession, and were admissible' for that reason. -

They were not hearsay. They would have been admissible against Glasscock as admissions and declarations against his interest, and were admissible against appellant, who claimed under him with full notice that appellee was in possession, claiming under a lease from Glasscock. Hancock v. Tram Co., 65 Tex. 233.

They were not objectionable as the declaration of a deceased party. This was not a suit by or against the heirs, executors, or administrators of Glasscock, and neither of the witnesses were parties to this suit. Wootters v. Hale, 83 Tex. 564, 19 S. W. 134; McBride v. Moore, 37 S. W. 451.

There is no merit in the contention that the written contract was the best evidence of .the terms of the lease. It was not signed. It was permissible for Col. Makemson, who drew the same, to use it as a memorandum to refresh his memory. It was afterwards introduced by appellant, and there was no material variance between it and Col. Makemson’s testimony.

Appellant insists that the evidence as to the dam should not have been admitted for the reason that it was not built on the leased premises. It is true that it is not within the boundaries of the land surveyed by Glasscock and described in the lease drawn up by Col. Makemson which Judge Glasscock promised to sign; but it was a part of the verbal agreement to lease that the association should pay a part of the cost of constructing said dam; the county of Williamson paying the remainder, and using the dam for a public road crossing. It was so stipulated in said written but unsigned lease. Judge Glasscock pointed out the place where the dam should be built. Though the dam was not on the land leased, it created a lake on said property, which the lessor was to be permitted to use for irrigation purposes, and said lake was a valuable and permanent improvement on said property. Such being the fact, it is immaterial.that the dam itself was not on the leased premises.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

KEY, C. J., not sitting.