author: HARPER, C. J.

text:
    SOUTHWESTERN PORTLAND CEMENT CO. v. PRESBITERO et ux.
    (No. 635.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.
    Rehearing Denied Jan. 5, 1917.)
    1. Trial <&wkey;350(3)—Injuries to Servant-Special Issues.
    In an action for death of plaintiffs’ minor intestate employed by defendant, evidence that the deceased occupied the position of night miller at defendant’s plant and had full charge of the building justified the submission of a special issue as to whether the deceased, at the time of his death, was acting in the course of his employment as miller in the defendant’s building.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 829, 831; Dec. Dig. &wkey;350(3).]
    2. Trial &wkey;>350(6)—Injuries to Servant-Issues.
    In an action for death of plaintiffs’ minor intestate employed by defendant, where the explanatory portion of the charge defined negligence, proximate cause and ordinary care, submission of the question, “Do you find that it was negligence to permit said collar to be in such condition?” was not error, as failing to - present the question of ordinary care in the use of the collar.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 830; Dec. Dig. &wkey;350(6)J
    3. Trial &wkey;>256(10) — Injuries to Servant— Instructions — Necessity of Requests.
    A charge, defining negligence, proximate cause, and ordinary care, without affirmatively charging what degree of care the defendant was, by law, required to exercise in providing for the safety of its employés, was sufficient to reveal the degree of care required, in the absence of a request for a special charge.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 637; Dec. Dig. &wkey;256(10).]
    4. 'Death <&wkey;>72 — Evidence—Admissibility— Pecuniary Condition oe Plaintiff.
    In an action for the death of plaintiffs’ minor intestate employed by defendant, evidence as to the amount of plaintiffs’ property was admissible to show the reasonable expectation of pecuniary assistance from the deceased, but not for the purpose of increasing the amount of damages.
    [Ed. Note. — Eor other cases, see Death, Cent. Dig. § 91; Dec. Dig. &wkey;72.]
    5. Trial <&wkey;255(4) — Instructions—Requests —Purpose of Evidence.
    If the defendant desired the court to limit evidence as to the amount of plaintiffs’ property to the purpose for which it was admissible, it should have presented a special charge to that effect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 632; Dec. Dig. &wkey;255(4).]
    6. Trial &wkey;>127 — Conduct of Counsei>-Evi-dence — Liability Insurance.
    In an action for death of plaintiffs’ minor intestate employed by defendant, where plaintiff alleged that defendant was not insured in the Employers’ Liability Insurance Association, which would have relieved it from actions for, injuries to its employés, a question as to whether defendant had notices posted around its plant that it carried insurance in accordance with the Employers’ Liability Act (Acts 33d Leg. e. 179, pt. 1, § 3), elicited to prove that the defendant was not insured, was not .subject to the objection that it was an attempt to inject into the case the question whether the company is insured, and impress upon the jury that an insurance company, and not defendant, would be called upon to pay the damages assessed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 275; Dee. Dig. &wkey;127J
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Barney Presbítero and wife against the Southwestern Portland Cement Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Burges & Burges and S. P. Weisiger, all of El Paso, for appellant. Jones, Jones & Har-die, of El Paso, for appellees.
   HARPER, C. J.

Appellees, Presbítero and wife, brought this suit against appellant for damages for the death of their minor son, alleged to have been caused by the negligence of the defendant company. They allege, among other things, that the deceased contributed to their support, etc. The defendant answered by general denial; that it had furnished a safe place for deceased to work; that if there were any dangers connected with the operation of the ma-ehinery, the deceased knew of them and assumed the risk; deny that they were guilty of negligence in any of the ways charged, but that deceased left the safe passageway provided for employés without cause, and unnecessarily came in contact with the revolving shaft supposed to have caused his death, and thereby was guilty of negligence against which it could not protect; therefore in no wise responsible. The cause was submitted to a jury upon special issues, and resulted in a verdict and judgment for $3,330, from which this appeal is perfected.

The first ground of error is that the court erred in submitting to the jury the following special issue:

“Do you find from a preponderance of the evidence that at the time of his death John Presbítero was acting in the course of his employment, as miller, in the raw grinding building of defendant?”

—for the reason that it submitted an issue not supported by any evidence. There is-evidence that he occupied the position of night miller at the plant; had full charge of the building; his duties were to look out for the whole building to see that everything was running, etc., and there is positive evidence that he went to work the night o'f the accident. True, there is evidence that some time before the accident he announced that “he was going to get some sleep,” but if he did so, he evidently returned to his place of duty, and the circumstances, as revealed by this record, are sufficient to justify the charge. This disposes of the second, which complains of the refusal of the court to instruct a verdict for defendant upon the same grounds.

The third charges error in submitting the following issue:

“Do you find * * * that it was negligence * * * to permit the said collar to be in such condition?”

—because the question to be submitted was:

“Had the defendant, in permitting its use in the manner and form of its use and the place of its use, failed to exercise ordinary care?”

The explanatory portion of the charge having defined negligence, proximate cause, and ordinary care, it was not error to submit the question complained of.

Whilst the charge nowhere affirmatively charges the jury what degree of care the defendant is by law required to exercise in providing for the safety of its employés, in the absence of a special charge requested by it, we think the charge, submitted as a whole, sufficient to reveal to the jury the degree of care required.

The fourth: The question, “Have you any prope’rty to live upon?” asked of the plaintiff, was a proper subject of inquiry to show the reasonable expectation of pecuniary assistance from the deceased, but not for the purpose of increasing the amount of damages. I. & G. N. R. Co. v. Kindred, 57 Tex. 491: Gulf, C. & S. F. Ry. Co. v. Younger, 90 Tex. 387, 38 S. W. 1121. If the defendant desired the court to limit the evidence to- the purpose for which it was admissible, it should have presented a special charge to that effect.

The fifth complains of the following question propounded to a witness:

“You have no notices posted around the plant out there that your company carries insurance in accordance with the Employers’ Liability Act of Texas ?”

It is well settled that questions which tend to impress upon the jury that an insurance company, and not the defendant, would be called upon to respond for such damages as the jury might assess constitutes reversible error, but this assignment presents a very different question, for this testimony was elicited to prove, that the company was not insured, as provided by the acts of the Texas Legislature, of 1913 (Acts 33d Leg. c. 179, pt. 1, § 3); therefore was not subject to the objection given; i. e.:

“Because it is an attempt to inject into the case the question whether or not the company is insured, to create in the minds of the jurors a prejudice against the defendant company and make them believe that the company was insured with an insurance company,” etc.

The act above cited provides that employs* of a subscriber to the Employers’ Liability Insurance Association has no cause of action against such employer for personal injuries, but must look to the insurance association for compensation. Consolidated Kansas City Smelting & Refining Co. v. Dean, 189 S. W. 747 (opinion rendered at this term). The plaintiff pleaded that the defendant had not taken out a policy, which was not excluded upon exception. Therefore it is not likely that this question and answer had any influence whatever .upon the jury.

For the reasons given, the assignments are overruled, and cause affirmed.
      <$cs>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    LANE et al. v. HERRING, Co. Atty.
    (No. 7637.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Witnesses <&wkey;380(5) — Impeachment—Party's Own Witness.
    A party cannot impeach a witness called by him by showing statements made by the witness contrary to his testimony where there is no claim that the witness misled or deceived the party, though such statements may be called to the attention of the witness to refresh his memory and to give him an opportunity to explain or correct apparent contradictions.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1214, 1219; Dec. Dig. <&wkey;> 380(5).]
    2. Appeal and Error <&wkey;1010(l) — Review— Eindin gs — Verdict.
    Findings by the court or the jury that persons were property tax payers in a school district, when supported by the evidence, cannot and will not be disturbed by the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. &wkey;> 1010(1).]
    3. Elections &wkey;>81 — Bond Elections — Qualification op Voters — “Property Tax Payer.” '
    In view of Const, art. 8, § 1, declaring every character of property within the jurisdiction of the state subject to taxation except that specifically exempted, a person who owned any property subject to taxation, though only a hog or a watch, was a property tax payer within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2831, prescribing the qualifications of voters at an election on the issuance of school bonds; it not being necessary that he own a substantial amount of property.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 75; Dec. Dig. &wkey;>81.
    For other definitions, see Words and Phrases, First and Second Series, Property Tax Payer.]
    4. Elections <&wkey;81 — Bond Election — Qualification of Voters — Taxable Property.
    A thing without value is not subject to taxation, and therefore its ownership does not make the owner a property tax payer qualified to vote at a school bond election.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 75; Dec. Dig. &wkey;81J
    Appeal from District Court, Limestone County; C. S. Bradley, Special Judge.
    Proceedings by J. D. Lane and others against M. Herring, County Attorney, to contest the validity of a bond election in a school district. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    W. T. Jackson, of Groesbeek, for appellants.
   RASBURY, J.

This is a proceeding contesting the validity of an election held in common school district No. 40 of Limestone county for the purpose of determining whether the district should issue bonds in the amount of $3,500 to be expended in the erection of a schoolhouse. It was alleged by appellants, who were plaintiffs below, that 44 votes were cast at said election, 23 being in favor of issuing the bonds and 21 against; and that the commissioners’ court had entered an order declaring the bond issue had carried. It was further alleged that the bond issue had not in fact carried for the reason that three illegal votes had been cast in favor of the bond issue, to wit, the votes of John Burleson, Vernon Burleson, and Ed Stevens, neither of whom owned property in the district, and hence were not entitled to vote because not property tax payers in the district, and the elimination .of whose votes would result in a majority against the bonds. The petition prayed for injunction restraining the issuance and sale of the bonds.

The first assignment complains of the action of the trial judge in excluding certain testimony. By the bill of exceptions supporting- the assignment it appears that appellants called as a witness John Burleson, who it was claimed cast one of the illegal votes for the bond issue and proved by him that he voted at the election in favor of the bonds, and that he was a qualified voter because he was on January 1st, preceding the election, the owner of two hogs of the value of $5 which he had purchased from Ed Lauderdale. After opposing counsel had cross-examined the witness counsel for appellants subjected the witness to further questioning for the purpose of showing that the witness did not own the hogs on January 1st, but had acquired them subsequent thereto, all of which the witness denied. Thereupon counsel for appellants inquired of the witness if he did not on January 1, 1915, at J. M. Jones’ residence, tell Jones that he did not as matter of fact buy Lauderdale’s hogs. This the witness denied. Subsequently appellant called J. M. Jones as a witness by whom he sought to prove that Burleson did make the statements which he denied. Upon objection the witness was not permitted to so testify on the ground that appellant could not in such manner impeach his own witness. If permitted he would have testified that Burleson on February 1, 1915, told him at his • residence that he did not purchase the hogs from Lauderdale in December prior, but subsequent, to January preceding the election. To the action of the court so outlined appellee excepted. Without attempting a discussion of the merits of the rule so widely and generally discussed in-the past we think it clear that the testimony was correctly excluded. The general and settled rule is that a party will not he permitted to show by other witnesses or by direct or redirect examination that the former has made contradictory statements on prior occasions, etc. The rule has its origin in the principle that one who presents a witness to the court in support of his cáse represents him as worthy of belief, and may not impeach him by evidence to the contrary. The rule is, however, subject to the qualification that the witness’ memory may he refreshed by reference to prior contradictory statements ; the object being to enable the witness to explain and correct apparent contradictions, and subject to the further qualification that when a party has in good faith introduced a witness in the belief that he is friendly, but it develops that he is in fact hostile and has misled and deceived the party, the party so deceived and misled is allowed a wider range and will be permitted to show contradictory statements. Chainberlayne, Mod. Law Ev. vol. 5, §§ 3743, 3744; Jones on Evidence (2d Ed.) §§ 853, 854. The trial court followed the rule precisely. The bill of exceptions shows that counsel was permitted to call the attention of the witness to the alleged prior contradictory statements in order to permit the fitness to explain or correct the apparent conflict. But the witness adhered to his original statement. No claim is made that the witness misled or deceived appellant, and hence the other qualification of the general rule is without application. Accordingly, it is our duty to overrule the first assignment of error. In such connection the second and third assignments present the same character of issue, and hence it will not be necessary to discuss same.

The fourth assignment of error is that the evidence is insufficient to sustain the finding that John Burleson and Ed Stevens were property tax payers in common school district No. 40. There is in the record evidence which will sustain the findings of the trial court that both owned property on January before the election subject to taxation. Such question is for the jury, or when jury is waived for the trial judge, and when supported by the evidence cannot and will not be disturbed by the appellate courts.

The fifth assignment asserts that the charge of the court defining property tax payer is erroneous. The court instructed the jury that a property tax payer, within the meaning of article 2S31, Vernon’s Sayles’ Statutes, defining the qualifications of voters in elections to issue bonds—

“is a person who owned property subject to taxation on the 1st day of January, 1915. The ownership of hogs or any interest in hogs; the ownership of a watch; or the ownership of property.”

It is also urged that the court erred in refusing to instruct the jury as requested by appellants that:

“A property tax payer, as meant in this ease, is a person who pays taxes on a substantial amount of property; a person owning a very insignificant amount of property, say under $10, would not be a property tax payer under the meaning of the law.”

The general rule is that every character of property within the jurisdiction of the state is subject to its taxing power, save that which is specifically exempted from taxation. It is so declared by article 8, § 1, of our Constitution-, which was held to be broad enough to “embrace every kind and class of property within the limits of the state.” Hall v. Miller, 110 S. W. 165; Id., 102 Tex. 289, 115 S. W. 1168. As a consequence the personal. property mentioned in the court’s charge, not being by other provisions of our laws exempt from taxation, was with all other property subject to taxation, and being so constituted its owner a property tax payer within the meaning of article 2831, Vernon’s Sayles’ Stats., and entitled, other qualifications being shown, to participate in the school election. For the reasons we have stated the court should not have given the charge requested by appellants. To say that only those who pay taxes upon a “substantial” amount of property would be to adopt a very uncertain and unreliable rule. What one person might regard as a “substantial” amount of property another might consider insignificant, and what one might consider ¿insignificant .another might with much reason regard as substantial. Accordingly, the right to vote at such elections would be stripped of all fixed and certain rights, and in every contest that arose that right would finally depend upon what the judge or the jury considered was a substantial amount of property.

Of course a thing without value cannot be taxed, and hence is not subject to taxation, because without any basis upon which to fix the amount of tax. But as to whether property has a value or not is another question which may be certainly determined under rules of evidence long established. While the amount of the property of those whose votes were challenged was inconsiderable, it was none the less property and under the sweeping provisions of the Constitution subject to taxation, and being so constituted the owners property tax payers within the meaning of the statute referred to.

Finding no error in the record, the judgment is affirmed.
      Gzz>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEX, C. J.

text:
    PHŒNIX CONST. CO. v. WITT & SAUNDERS.
    (No. 5683.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1916.
    Rehearing Denied Dec. 23,1916.)
    Pleading <&wkey;127(2) — Admissions — Plea of Settlement.
    In an action for damages wherein the defendant’s answer averred facts which, if true •entitled it to the benefits of the Employers’ Liability Act (Acts 33d Leg. c. 179) the fact that defendant pleaded a settlement with plain'tiff did not excuse interveners seeking to recover on an assignment of part of the cause of action from pleading and proving that plaintiff had a cause of action against defendant; the plea of settlement not amounting to an admission of such cause of action.
    [Ed. Note. — For other cases, see Pleading, Dee. Dig. <&wkey;127(2)J
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Suit by J. Jeter against the Phoenix Construction Company, in which Wlitt & Saunders intervene, seeking a recovery from the defendant on a part of the cause of action conveyed to them. Judgment that plaintiff take nothing, and for the interveners against the defendant, and defendant appeals.
    Reversed and remanded.
    Homer R. Mitchell, of Dallas, and Scott .& Ross, of Waco, for appellant. W- R- Saunders, Edgar & Chas. Witt, and Chas. B. Braun, all of Waco, for appellees. .
   KEX, C. J.

J. Jeter brought suit for damages sounding in tort against the Phoenix Construction Company. Witt & Saunders, a firm of lawyers, intervened, alleging that Jeter had conveyed to them a portion of his cause of action, and they sought to recover from the defendant the portion so conveyed. The defendant in its answer averred facts which, if true, showed that it was entitled to the benefits of the Employers’ Liability Act, a law enacted by the Thirty-Third Legislature (Acts 33d Leg. c. 179). The case was tried in the court below after this court had decided the case of Middleton v. Texas Power & Light Co., 178 S. W. 956, and before the Supreme Court had disposed of that case. In that case the constitutionality and validity of the act of the Legislature referred to was involved. In this case the trial court sustained exceptions to the defendant’s plea of nonliability because of the act of the Legislature referred to; and, upon proof being made that appellant, with knowledge of ap-pellee’s claim, had made a settlement with the plaintiff, Jeter, and paid him $216, and the interveners had put in evidence the assignment from Jeter to them, judgment was rendered to the effect that the plaintiff take nothing, and that the interveners recover from the defendant the sum of $72 and costs, and the defendant has prosecuted this appeal.

In passing upon the validity of the Employers’ Liability Act, the Supreme Court of this state held that it was valid and free from constitutional objection. Middleton v. Texas Power & Light Co., 185 S. W. 556. Because of that decision we sustain appellant’s first assignment of error, and hold that the trial court committed reversible error when it sustained ajppellee’s exceptions to that portion of appellant’s answer which asserted its nonliability because of that act.

We overrule appellant’s contention that the written assignment offered in evidence was not admissible because it did not convey any portion of the plaintiff’s cause of action. Considering all the terms of that document, we think it should be construed as conveying to interveners a portion of the plaintiff’s cause of action, and not merely a portion of whatever sum he might receive from appellant.

We also overrule appellees’ contention that appellant, by its answer pleading a settlement with plaintiff, admitted that the plaintiff had a cause of action against it. The plea referred to does not constitute such an admission; and therefore, in order for in-terveners to recover, it was necessary for them to plead and prove that the plaintiff had a cause of action against the defendant. No such proof was made. Interveners rested their case upon proof showing that the plaintiff had assigned to them a portion of his cause of action, and that the defendant, with knowledge of that fact, had made a settlement with the plaintiff and paid him $216. Proof that a defendant has paid a sum of money as a compromise and settlement of an existing suit for damages does not constitute an admission in favor of a third person, though claiming under the plaintiff, -that a cause of action ever existed against the defendant.

For the error pointed out, the judgment of the trial court is reversed, and the cause remanded; and if upon another trial the pyoof sustains appellant’s plea under the Employers’ Liability Act, then judgment should be rendered for appellant.

Reversed and remanded.
      <&=sFor other oases see saíne tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    SPEED v. SADBERRY et al.
    (No. 8463.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 11, 1916.)
    1. TeesRass to Try Title <&wkey;6(l) — 1Title of Plaintiff.
    Plaintiff, in trespass to try title, to be entitled to judgment, must show in himself title superior to that under which defendant claims.
    [E'd. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-7, 9, 15, 16; Dec. Dig. <&wkey;6(l).]
    2. Trespass to Try Title <&wkey;38(3) — Presumption from Possession.
    Where defendant in trespass to try title is in possession, there is a presumption of title in him, authorizing recovery against persons failing to make affirmative showing of title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. &wkey;s38(3).]
    3. Trespass to Try Title &wkey;>38(l) — Forfeiture of Public Lands — Burden of Proof —Statute.
    In trespass to try title by plaintiff claiming that the land was forfeited and awarded to him by the general land office, plaintiff must show, not only that an award was made, but that the requirements of Vernon’s Say les’ Ann. Civ. St. 1914, art. 5423, as to forfeiture, had been substantially complied with by the general land office prior to the award.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. <&wkey;>38(l).]
    4. Public Lands <&wkey;172(8) — Forfeiture — Statute.
    By Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5423, prescribing the requirements of a forfeiture of public lands by the general land office, unless entry of forfeiture is made, both on the application of the grantee and in the account kept with the purchaser, no legal forfeiture results.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 541; Dec. Dig. &wkey;172(8).]
    5. Evidence <&wkey;471(26) — Opinion or Conclusion-Certificate of Forfeiture.
    In trespass to try title by plaintiff claiming under a forfeiture and award of lands to him by the general land office, the certificate of the acting commissioner of the office, stating that the records showed that the lands “were forfeited,” was inadmissible, as not tending to establish the fact that the necessary entries had been made in the commissioner’s office, but rather the conclusion or opinion of the maker.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2171; Dec. Dig. &wkey;471(26); Witnesses, Cent. Dig. § 834.]
    6. Appeal and Error &wkey;>854(2) — Review — Reasons Assigned by Trial Court.
    Where the cause was tried by a jury, and the judgment is sustained by the pleadings and proof, it should be affirmed by the appellate court, though the trial court gave erroneous reasons therefor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3408-3410; Dec. Dig. &wkey;S54(2).]
    7. Trial <&wkey;105(2) — Objections to Evidence —Failure—Probative Force of Hearsay.
    In trespass to try title by 'party to whom general land office awarded forfeited lands, where no objection was urged, on the ground that it was hearsay, to defendant’s testimony that, while he had personally never tendered any money to the land office, he knew that his lawyer had tendered it by what the latter told him, the court properly considered such testimony as tending to show application by defendant to have his rights in the forfeited land reinstated, and a tender of the interest due, since hearsay admitted without objection, is not without probative force.
    [Ed. Note. — For other cases, see Trial,. Cent. Dig. § 262; Dec. Dig. @=ol05(2).]
    Appeal from District Court, Young County; J. W. Akin, Judge.
    Action by Arthur Speed against John Sad-berry and anqther. From a judgment for defendants, plaintiff appeals.
    Judgment affirmed.
    Arnold & Taylor, of Henrietta, and Fred T. Arnold, of Graham, for appellant. C. W. Johnson, of Graham, for axipellees.
   BUCK, J.

September 27, 1901, survey 74, grantee B. R. I. R., containing 160 acres and located in Young county, was awarded by the land commissioner to J. F. Gilmore under the act approved' April 16, 1895 (Acts 24th Leg. c. 48), and on October 7, 1902, survey 73, same original grantee and same acreage, and in the same county, was awarded to said Gilmore. Gilmore and wife, on February 1, 1907, conveyed by deed said tracts to T. E. Mills. On December 3, 1909, said Mills and wife conveyed the same land to A. N. Gordon, and on December 3, 1912, said Gordon and wife conveyed to F. P. Burch said two quarter sections. The interest to the state from November 1, 1912, to November 1, 1913, and due on the latter date, remained unpaid up to August 7, 1914, on which latter date there was filed in the office of the county clerk of Young county an instrument signed by the commissioner of the general land office and providing that these two quarter sections were subject to forfeiture for nonpayment of interest due November 1, 1913, and announcing that if said interest was not paid, said two tracts would be on the market for sale August 9, 1914.' In said instrument the land mentioned was classified as agricultural, instead of grazing, as in the award to Gilmore, and the. price placed at $4 minimum, instead of $1 and $1.50, respectively. On October 2, 1914, there was filed in the office of the county clerk of Young county an award, dated 9/25/14, of these two quarter sections, signed by the land commissioner. By this instrument the two tracts in question were awarded to Arthur Speed at $6.55 an acre, date of sale being August 10, 1914. The original award to Speed was made September 24, 1914. On October 27, 1914, said Speed sent to the general land office his money order for the interest, to wit, $11.65, and on November 2d following, the commissioner of the general land office accepted said remittance. On January 11, 1915, appellant filed his petition in the district court of - Young county in form of trespass to try title against John Sadberry and Frank Burch. He alleged that the rental value of said land was $5 per annum, and that the defendants had torn fences, sheds, and houses off said land, since they had unlawfully entered upon the same, of the reasonable value of $400, and he prayed for judgment for the land, rents, and damages. In the defendants’ answer, Sadberry disclaimed any interest in or title to the land except as the tenant of Burch. Burch answered by general and special demurrers, and specially pleaded the 5 and 10 years’ statutes of limitation, valuable improvements made in good faith, and further pleaded title through purchase from the state. He further specially pleaded that it had been represented to him, and he so believed, that he had until November 1, 1914, to pay the interest due the state on said land, and that he was informed, and so understood, that the interest due November 1, 1913, had been paid by his immediate grantor, and that he still believed that the payment for same had been made according to the contract between the defendant and his grantor. It was further alleged that, if any pretended forfeiture had been made by the general land office and its officials for a pretended nonpayment of interest, the same was done without any notice to defendant, and that if he had received such notice, he would have paid such interest. He further pleaded that it had been the immemorial custom of the general land office to issue to the owners of school land notice of arrears of interest that forfeitures might be avoided and the purchaser protected from loss, and, further, that as soon as he learned that interest was due and claimed by the general land office, he did, on August 5, 1914, tender to the general land office all interest due, but that said tender had been refused by the commissioner, on claim that the land had been forfeited, reclassified, and sold, and said commissioner declined to reinstate the defendant in his rights as a purchaser. Defendant, in his pleadings, tendered in court the interest, and also the part of the purchase money due on the original sale, together with patent fee, etc., and prayed that said money be transmitted to the treasurer of the state of Texas. Upon a hearing before the court, judgment was rendered that plaintiff take nothing by reason of his suit, and from this judgment plaintiff appeals.

Appellant presents only two assignments of error, which are as follows:

“(1) The court erred in holding that the defendant F. P. Burch had 90 days after said land was declared delinquent by the commissioner of the general land office within which to be reinstated. (2) The court erred in holding that the defendant had the right to be reinstated in the general land office for the following reasons: The evidence clearly shows that the land in question became delinquent for interest payment on November 1, 1913, and subject to forfeiture then; that the same was forfeited by the commissioner of the general land office on August 4, 1914, and sold to plaintiff on September 24, 1914, and that no effort was made by' the defendants to be reinstated in said purchase until after the land in question was sold by the commissioner of the general land office to plaintiff in September, 1914.”

There are contained in the record no findings of fact and conclusions of law by the' court, and therefore it does not affirmatively appear that the judgment of the court rested upon the basis asserted in the first assignment. The court qualifies plaintiff’s bill of exception upon which this assignment is predicated as follows:

“There was no specific evidence of a default in payment of interest, the defendant showing that, while he did not pay the interest, he had relied on the promise of his vendor and supposed it paid, until the trouble arose. There was -no evidence of forfeiture, except that contained in the certificate of the acting commissioner of the general land office, which was admitted by the court, over objections of defendant, after the trial, ‘forfeited August 4, 1914.’ The defendant testified that between the 1st and 15th of August he made application to the general land office to have his rights reinstated, but the defendant could not be certain as to the exact date. That he tendered the necessary amount of money to pay the interest in default, if any, which action was made through his attorney at Austin, having made the arrangements by wire, and that the said attorney so employed reported that the commissioner had denied the application to be reinstated. The law authorized reinstatement, on payment of defaulted interest any time prior to the intervention of rights of plaintiff, which was September 24, 1914. The burden was on the plaintiff to show his rights intervened before the application for reinstatement was made by the defendant, which application for reinstatement was made not later than August 15, 1914. This, in the court’s opinion, was not done.”

In order for plaintiff to be entitled to judgment, it was necessary that he show in himself title superior to that under which defendant claimed, and, defendant being in possession, there was a presumption of title in him, authorizing a recovery, in this character of a suit, against persons failing to make an affirmative showing of title. Boggess v. Allen, 56 S. W. 195, affirmed in Allen v. Boggess, 94 Tex. 83, 58 S. W. 833; Kirby v. Boaz, 41 Tex. Civ. App. 282, 91 S. W. 642; Allen v. Long, 80 Tex. 261, 16 S. W. 43, 26 Am. St. Rep. 735; Shifflet v. Morelle, 68 Tex. 382, 4 S. W. 843. Appellant cites us to article 5423, 3 Vernon’s Sayles’ Texas Civil Statutes, which article provides for reinstatement of. purchasers’ rights, where the rights of no third person have intervened, and urges that the defendant has not shown himself entitled to reinstatement under the terms of this article.

In order for plaintiff to prevail in this suit, it was incumbent on him to show, not only that an award of the land had been made by the general land office to him, but that the statutory requirements as to a forfeiture had been complied with by the general land office prior to said award. Article 5423, supra, reads in part; as follows:

“If upon the 1st day of November of any year any portion of the interest due on any obligation remains unpaid, the commissioner of the general land office shall indorse on such obligation, ‘Land forfeited,’ and shall cause an entry to that effect to be made on the account kept with the purchaser; and thereupon said land shall thereby he forfeited to the state without the necessity of re-entry or judicial ascertainment, and shall revert to the particular fund to which it originally belonged, and be resold under the provisions of this chapter or any future law.”

To establish a forfeiture it was necessary to show at least a substantial compliance' with the requirements of the statute concerning forfeitures, and a failure to establish any matter, act, or condition, required or provided would fall short of the necessary proof.

The statute, requiring an entry of forfeiture to be made, both on the obligation of the grantee and in the account kept with the purchaser, if proof should fail to show that either of these entries had been made, under the present law, no legal forfeiture would follow. Comanche County v. Brightman, 62 S. W. 973; Brightman v. Comanche County, 94 Tex. 599, 63 S. W. 857; Davis v. Yates (writ denied) 133 S. W. 281; Anderson v. Neighbors, 94 Tex. 239, 59 S. W. 543; Chambers v. Robison, 179 S. W. 123. In the last-cited ease, the Supreme Court, in an opinion by Chief Justice Phillips, holds the affirmative of the proposition just enunciated, and further states that:

“A usage in the land office, long pursued, of declaring forfeitures for nonpayment of interest by simply making an indorsement on the purchaser’s obligation, to which our attention has been directed by the respondents, would be persuasive if the construction of the statute were doubtful. But we regard its provisions as plain.”

We will now direct our attention to the state of the evidence with reference to the forfeiture claimed by plaintiff. After both parties had rested, the plaintiff offered, over the objection of defendant, the following certificate from the general land office:

“General Land Office, State of Texas.
“Austin, September 28, 1915.
“I, J. H. Walker, chief clerk and acting commissioner of the general land office of the state of Texas, do hereby certify that the papers, documents and records of said office show: That survey 74, containing 160 acres, B. R. I. R., purchased from the state October 6, 1901, by J. G. Gilmore, and survey 73, B. R. I. R., containing 160 acres purchased from the state by John F. Gilmore, October 10th, 1902, each situated in Young county, Texas, were forfeited August 4, 1914. * * *
“In testimony whereof, I hereunto set my hand and affix the impress of the seal of said office on the day and date first above written.
“[Seal.] J. H. Walker, Acting Commissioner.”

To the admission of this evidence the defendant objected and preserved a bill of exception thereto, shown in the record. But he does not include in his brief any formal cross-assignment leveled at such action of the court, but contents himself with discussing such action under what he terms “fourth original proposition” of appellee. While we are not prepared to hold that ap-pellee has presented his exception in such a form as would justify our consideration thereof as against a judgment adverse to him, yet we are of the opinion that the objection urged, to wit, that the certificate offered did not tend to establish the fact of necessary entries having been made in the land commissioners’ office, but rather the conclusion or opinion of the chief clerk in the land office that the necessary legal steps to effect a forfeiture had been followed, is well taken, and that the evidence was improperly admitted. The court in his qualification of appellant’s bill of exception No. 1, set out above, states:

“There was no evidence of forfeiture except that contained in the certificate of the acting commissioner of the general land office, which was admitted by the court over objection of defendant after the trial.”

As it does not affirmatively appear that the court, in rendering judgment, did consider this certificate as establishing the forfeiture claimed, in support of the judgment we can presume that he did not do so. While in this qualification, the court states that the evidence shows that later than August 15, 1914, defendant made application to the general land office for reinstatement, and tendered the interest in arrears, and that' said date was prior to the intervention of any rights held by plaintiff.

The evidence showed that the award to plaintiff was made on September. 24, 1914, yet, in determining the correctness vel non of the judgment, we are not limited to the reasons assigned by the trial court. Where the judgment is sustained by the pleadings and proof, the judgment (if the cause is tried by a jury) should be affirmed by an appellate court, even though the trial court gave erroneous reasons therefor. 4 G. J. § 2557, says:

“Where a judgment of the court is correct, it will not be reversed on appeal because the trial court has based its decision on insufficient or erroneous reasons or grounds, or has stated no reasons therefor. And when it does not affirmatively appear on what grounds the decision was made, it is the duty of the appellate court to sustain the court below, if there was any ground disclosed by the record on which the order could properly have been made. So a deci-. sion based on several grounds, one or more of which sustain it, will not be reversed, although some of the grounds are erroneous, at least unless in cases where the ground of decision can be seen to have misled a party to his injury. The ground on which the court below proceeded, it has been held, is not a subject of inquiry in the appellate court. It is the ruling itself, and not the reason therefor, with which the reviewing court is concerned.”

See Railway Co. v. Fowler, 57 Tex. Civ. App. 556, 122 S. W. 593, and other authorities cited in text from which the above quotation is taken.

In thus holding we do not wish to be understood as concluding that the ground given in support of the judgment, in the court’s qualification’ of appellant’s bill of exception is not supported by the evidence. The defendant Burch did testify as stated, in substance, by the court, that through his attorney .at Austin, some time between the 1st and Í5th of August, 1914, and prior to September 24th, he did tender to the general land office the money for the interest, and that this tender was refused by said office on the ground that the land had already been forfeited. While the defendant admitted on cross-examination that he personally had never tendered any money to the land office, and only knew that his lawyer had tendered the same by what his lawyer informed him, yet no objection was urged to the testimony because hearsay, nor any motion made to exclude it. Hearsay admitted without objections is not without probative force. W. U. Tel. Co. v. Hirsch, 84 S. W. 394; Thompson v. F. W. & D. C. Ry. Co., 31 Tex. Civ. App. 583, 73 S. W. 29. In the condition of the record disclosed, we think: the court properly considered said testimony as at least tending to show an application by defendant Burch to have his rights reinstated, and a tender of the interest due, but the judgment rendered may be sustained, not only upon this ground, but also because of failure of proof that forfeiture had in fact ever been legally effected.

From what we have said it follows that both assignments must be overruled, and the judgment affirmed.
      <S=>For other eases-see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes


author: RiASBURY, J.

text:
    LANG v. COLLINS.
    (No. 7651.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 9, 1916.)
    Í. Assignments foe Benefit of Ceeditoes <&wkey;302 — Proof of Claims — Sufficiency.
    As regards sufficiency of a creditors’ statement of claim and supporting affidavit filed with assignee for benefit of creditors, substantial compliance with the statute is enough.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 888; Dec. Dig. <&wkey;302J
    2. Assignments foe Benefit of Ceeditoes <&wkey;302 — - Peoof of Claims — “Distinct” Statement.
    The requirement of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 98, for filing with assignee for benefit of creditors by a creditor of a “distinct” statement of claim., means plain, positive, unmistakable, and intelligible, and is satisfied’ by one that the creditor claims against assignor a certain amount for legal services.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 888; Dec. Dig. &wkey;>302.
    For other definitions, see Words and Phrases, First and Second Series, Distinct.]
    3. Assignments foe Benefit of Ceeditoes <&wkey;302 — - Peoof of Claims — Statement— “Paeticulae Nature” of Claims.
    Within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 98, requiring filing with assignee for benefit of creditors by a creditor of a distinct statement of the “particular nature” and amount of his claim, “particular” means special, not general, and does not require ah itemized statement, and “nature” has reference to the kind, quality, sort or species of claim; and it is enough to disclose that it is for legal services.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 888; Dec. Dig. <&=302.]
    4.Assignments foe Benefit of Ceeditoes &wkey;>302 — Proof of Claims — Affidavit — “Offsets’ ’ — “Credits. ’ ’
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 98, requiring a creditors’ statement of claims filed with the assignee for benefit of creditors to be supported by affidavit “that there- are no credits or offsets that should be allowed against the claim, except as shown by the statement,” is satisfied by statement that “all just offsets have been allowed,” “offsets” including “credits,” which term means payments, “offset” meaning literally to counteract, balance, cancel by contrary claim or sum, and there being no peculiar legal meaning to be attached to the term “offset” as used in the statute.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 888; Dec. Dig. <@=»302.
    For other definitions, see Words and Phrases, First and Second Series, Credits; Offset.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by falter Collins against W. R. Lang. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    It. M. Vaughan and J. D. Abney, both of Hillsboro,' for appellant. Wear & Frazier, of Hillsboro, for appellee.
   RiASBURY, J.

Appellee in the court below sued appellant, who is assignee of James W. Moore, under a general assignment for the benefit of all accepting creditors, to recover $350, the amount of his claim against the assignor, Moore, which had been rejected and payment refused by appellant, assignee. Appellant’s! defense was that the claim was not in compliance with the provisions of article 98, Vernon’s Sayles’ Civ. Stats., by reason of which appellant was without authority to allow and pay same. Trial was before the court, who rendered judgment for appel-lee for $148.60, which was the apportionment to which appellee would have been entitled had his claim been allowed. , From such judgment, this appeal is taken.

Appellee’s' claim and the verification attached thereto is as follows:

“February 15, 1915. James W. Moore, W. R. Lang, Assignee, to Walter Collins, Dr. To amount of account for legal services rendered James W. Moore in district court, and in reference to other matters, up to and including January 16, 1915, $350.00. * * * I, Walter Collins, being duly sworn, state upon my oath that the above and foregoing account is just, true, and correct, and that all just offsets have been allowed.”

The affidavit was followed by the signature of Collins, which’ was in turn followed by the jurat, signature, and official seal of the officer administering the oath.

The appellant contends that both the statement of the account and the affidavit thereto are wanting in some of the essential requirements of tlie statutes. The rule generally and justly applied in the construction of statutes similar to the one involved here is that substantial compliance therewith is sufficient. Crosby v. McWillie, 11 Tex. 94; Walters v. Prestidge, 30 Tex. 66; Hughes v. Potts, 39 Tex. Civ. App. 179, 87 S. W. 708; First State Bank, Teague, v. Hadden, 158 S. W. 1168.

The first contention is that the claim is insufficient because it is not, in the language of the statute, “a distinct statement of the particular nature and amount of” the claim. The statute does provide for such a statement. The substance of the statement or claim under discussion is that the assignor, James W. Moore, is due appellee $350 for legal services rendered in the district court, and in reference to other matters. Is the information so disclosed a “distinct statement of the particular nature and amount” of the claim? We think so. “Distinct” is defined as that which is “plain, positive, unmistakable, intelligible.” Statement) is defined as “a formal embodiment in language of facts or opinions; a narrative; a recital.” The claim, to repeat, is a statement by ap-pellee that he claims against the assignor, James W. Moore, $350 for legal services. Thus it is plain, positive, unmistakable, and intelligible that appellee claims $350 for legal services. No more is meant by the ordinary import of the words used. Accordingly we conclude that the statement of the claim was in such respect sufficient.

The next inquiry is: What is meant by “particular nature” of the claim? Particular,” as used, means special, not general, etc. “Nature,” as used, obviously has reference to the kind, quality, sort, or species of claim, whether for legal services or a claim arising] on contract, or a promissory note, etc. Our Supreme Court, in construing the meaning of “the nature of plaintiff’s demand” as contained in what is now article 1853, Vernon’s Sayles’ Civ. Stats., and which regulates what notice shall be given in the citation served upon defendants, held the provision had reference to the “character or controlling characteristics” of the demand. Pipkin et al. v. Kaufman & Runge, 62 Tex. 545. Thus, when the claim in this proceeding set out that it was for services it was a general statement thereof, but when it went further and disclosed that it was for legal services, it was, within the meaning of the statute, particularized, and hence became a particular statement. It may be argued that by particular statement was intended an itemized statement. But we think the better conclusion'is that, had the Legislature so intended, it would have voiced such intention in words more apt than those used. The obvious purpose of the statute is to require claimants to furnish the assignee notice of the amount and nature of the creditors’ claim, in order that he may independently or with the assistance of his assignor determine its justness, etc.

The second contention is that the claim is insufficient for the reason that the affidavit thereto fails to recite! “that there are no credits or offsets that should be allowed against the claim, except as shown by the statement.” The statute does, provide for the quoted language. In lieu thereof the affidavit in the instant case recites “that all just offsets have been) allowed.” The precise question then is: Does the omission of the term “credits,” the other omitted words being clearly immaterial, render the affidavit fatally defective? In Walters v. Prestidge, supra, an early case, which was based upon the still earlier case of Crosby v. McWillie, 11 Tex. 94, it was ruled, in effect, that since words are used to express ideas, any language which conveys the meaning of those used in the statute will be sufficient. In that case the term “credit” was used in the- affidavit, while the statute also required the use of the term “offset.” Incidentally the identical words are required by the statute we are discussing. The court said that the term “credits” “in its most comprehensive signification” did not include offset, and hence the affidavit was defective. The analogy is that, had the term used comprehended as much as the one omitted, the statute would have been satisfied. Then does the term “offsets,” in its most comprehensive signification, embrace credits? If it does, the affidavit under discussion is sufficient. “Credits,” in its narrow or bookkeeping sense, is opposed to “debits,” and may be said to be a payment on account as shown by the creditors’ boobs. In the larger sense, as sometimes used in tax 'laws, etc., it includes, by some authority at least, things incorporeal, such as the right to demand and recover a sum of money or other thing in possession. 11 Cyc. 1189. “Offset” means literally “to counteract, balance, cancel by contrary claim oil sum.” Century Dictionary. Then, when appellee stated in his affidavit that all just offsets had been allowed, the effect was to say under oath that every claim held against him by appellant which would counteract, balance, or cancel appellee’s claim had been allowed, and conveyed not only 'the same idea that would have been conveyed by the use of the term credits, but a great deal more, because “credits,” as employed in the statutes, as said in Walters v. Prestidge, supra, means payment, which is surely comprehended within the definition of “offset” There is no peculiar legal meaning to be attached to the term “offset” as used in the statute, as might be argued in reference to the remedy of offset provided for in our practice acts, in case that remedy and its application to a given state of facts was an issue.

Believing that the affidavit was in substantial compliance with the statute, the judgment is affirmed.
      <te»For otter oases see same topic and KEY-NUMBER in all'Key-Numbered Digests and Indexes


text:
    LEONARD v. KENDALL et al.
    (No. 7639.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Appeal and Error <&wkey;179(3) — Assignments of Error — Directions of Verdict.
    A peremptory instruction for plaintiff, where the defenses were limitations and fraud, serves as basis for assignments of error raising those issues.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1137; Dec. Dig. <&wkey;> 179(3).]
    2. Contracts <&wkey;313(2) — Anticipatory Breach — Adoption of Renunciation.
    There is not an anticipatory breach of contract by one of the parties renouncing it before time for performance, but only on the other party adopting such renunciation and treating the contract as at an end except for purpose of action for damages.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279; Dec. Dig. &wkey;313(2).]
    3. Contracts <&wkey;313(2) — Anticipatory Breach — Renunciation.
    For the person holding a deed for delivery to state to the vendee, before the time for performance, that under instructions from the vendor he refused to deliver, is not such an unconditional declaration as to amount to a renunciation of the contract, and so serve as a' basis for an anticipatory breach.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279; Dec. Dig. &wkey;>313(2).]
    4. Contracts «&wkey;171(2) — Entire or Sever-able.
    Defendant’s contract to convey land to K., and on completion of the sale to .pay plaintiff a commission for it, is divisible.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 756; Dec. Dig. <&wkey;171(2).]
    5. Brokers &wkey;>63(l) — Right to Commissions —Contract.
    Under contract of defendant to convey land to K. and on completion of sale to pay plaintiffs a commission for negotiating it, right to commission is not necessarily dependent on a conveyance; a broker being entitled to commissions if he secured a customer ready, able, and willing to purchase on the authorized terms, which cannot be defeated by refusal of the principal to convey or by failure of his title.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94 — 96; Dec. Dig. <&wkey;> 63(1).]
    6. Brokers <&wkey;63(l) — Contract for Commissions— Anticipatory Breach — Renunciation.
    As regards anticipatory breach of vendor’s contract to pay brokers their commission contained in contract to convey land to the purchaser, it is not a renunciation thereof for the vendor to refuse to convey to the purchaser.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. <&wkey;> 63(1).]
    7. Brokers <&wkey;63(l) — Contract — Anticipatory Breach — Acceptance of Renunciation.
    Any renunciation by vendor of contract to convey is not accepted, so as to result in an anticipatory breach, entitling broker to sue vendor for commissions which were payable when conveyance was made, by purchaser bringing suit for specific performance.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. <&wkey;> 63(1).]
    8. Limitation of Actions &wkey;>46(7) — Accrual —Anticipatory Breach of Contract.
    There never having been acceptance of any renunciation by vendor of contract to convey and pay commissions, limitations do not, on the theory of anticipatory breach, commence to run against action for commissions till time fixed in contract for payment.
    [E'd. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 246; Dec. Dig. <&wkey;> 46(7).]
    9. Brokers &wkey;>86(7) — Action for Commissions — Fraud—Evidence.
    Mere statement of vendor that the property was worth more than the contract price is insufficient for submission of the defense to action for commissions of fraud of the broker in inducing her to sell at less than its value.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116, 117; Dec. Dig. &wkey;86(7).]
    Appeal from District Court, Dallas County; Kenneth Force, Judge.
    Action by J. S. Kendall, Jr., and others against Mrs. M. L. Leonard. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    W. H. Atwell, of Dallas, for appellant. Dabney & Townsend, of Dallas, for appel-lees.
   RASBURY, J.

Appellees in the court below sued appellant for $2,500, alleged to be due appellees for services rendered appellant in the sale of certain real estate. Appellant’s defense, necessary to detail, was that the action was barred by the four-year statute of limitation, and that appellees were not entitled to recover because of fraud, in that the appellee Kendall, in whom she reposed confidence, deceived her into believing that her property was of the value of $100,-000, while in truth its value was $150,000, thereby enabling said Kendall to buy same himself- while pretending to represent another and also collect for his said firm a commission. There was trial, and at conclusion of the evidence the court directed peremptory verdict for appellees, which was returned; and upon which judgment was rendered accordingly for said sum, with accrued interest. From such order this appeal is taken.

The substance of the facts essential- to a disposition of the appeal are these: On November 12, 1909, appellant owned an improved lot in the city of Dallas. On that day appellant and appellee J. S. Kendall, Jr., agreed in writing that appellant would sell and said appellee would purchase the property described for $100,000, of which sum $1,000 was paid when the contract was executed. The sale was for part cash and part on credit, the cash payment to be $25,000, and the contract set out in detail the amount of cash and the notes to be given in evidence of the unpaid part and how same was to be secured. The contract also contained recitations with reference to the title and what the abstract delineating same should disclose, and provided that deeds, etc., consummating the sale should be executed within 30 days, except that in event the abstract to be furnished by appellant should fail to disclose good title appellant was entitled to an additional 30 days in' which to perfect same, failing in which the contract was to be void and the $1,000 paid by appellee Kendall to be repaid him. The contract was executed in duplicate, one copy being retained by Kendall and the other by appellant, the $1,000 being delivered to J. W. Thompson, appellant’s attorney. The contract also provided that upon completion of the sale appellant would pay Hann & Kendall $2,500 commissions for their services in negotiating the sale. On the day of the execution of the contract Kendall transferred same to S. W. King, Jr., in consideration of $1,000; Kendall acknowledging receipt of the money and King accepting the transfer by written addenda upon the contract. On the following day, or November 13, 1909, appellant and S. W. King, Jr., to whom appellee Kendall had transferred the contract, addressed and jointly signed a letter to American Exchange National Bank, inclosing a deed from appellant to King for the lot which we have described, also check for $24,000, the balance on the agreed cash payment, six notes representing the deferred payments and a deed of trust, all in conformity with the preliminary contract, all being properly signed and acknowledged and accompanied by the explanation that it was agreed between appellant and King that the bank should hold all in escrow under the provisions of the preliminary contract with Kendall until examination and approval of the title, at which time the deed was to be delivered to King, $24,000 and the notes and deed of trust to appellant, and the other provisions of the contract assigned to King to be observed. Upon the letter was an addenda signed by appellant directing the bank to pay Hann & Kendall $2,500 commissions out of the cash deposited with it upon the consummation of the transaction. By successive agreements, taking the form of joint letters addressed to the bank signed by appellant and King and transmitted to the bank through the agency of Hann & Kendall, it was agreed that appellant should have 30 days from January 12, 1910, or until February 12, 1910, in which to perfect her title to the property so sold. The bank assumed the obligation contained in the several agreements. Mr. H. H. Smith, assistant cashier of the American National Exchange Bank, had charge of the transactions we have detailed for the bank. He testified that appellant, subsequent to the transactions we have detailed, notified the bank not to deliver the deed, etc. Also that King and his attorney on February 2, 1910, demanded possession of the deed, which was refused, and that he had then been notified by appellant not to deliver them, and that while his memory for dates was poor he fixed February 2, 1910, as the day King called by the date of a letter from the bank’s attorney whom it had consulted concerning the duty of the bank, although he says the date could have been as late as February 9, 1910. However, it does appear from other evidence that King sued appellant for specific performance of the contract to convey on February 3, 1910. After the termination of the suit for specific performance (Leonard v. King et al., 164 S. W. 1110), which sustained King’s right to a conveyance of the property, the witness Smith, who in the meanwhile had been in said proceeding appointed receiver of the property, delivered the deed to King and the money, notes, and deed of trust to appellant. He did not pay Hann & Kendall the $2,500 commissions. It appears from the testimony of Townsend, who was King’s attorney, that when he and King called upon Smith for the papers he did inform them that appellant had instructed him not to deliver same, but that Smith did not advise them that appellant intended to repudiate her agreement to convby. Townsend also testified that his purpose in filing suit on February 3, 1910, was to have it pending when the contract expired on February 12, 1910. The instant suit was commenced February 9, 1914.

' Appellant testified that appellee Kendall made, her successive offers for her property, beginning with an initial offer of $50,000 and ending with a final offer of $100,000 which she accepted, after conferring with her attorney, J. W. Thompson, and being advised by him to do so, and thereafter signed the contract which we have detailed. She further testified when it was proposed to make the contract of sale run in favor of Kendall she inquired why and the explanation was made that the purchaser King was out of town and that it could in no event make any difference to her as long as she received the $100,000. She acquiesced and the contract was signed. She also testified that she would not have signed the contract or agreed to pay Hann & Kendall $2,500 commission had she known she was selling to Kendall, as she believed all the time that the sale was to be to King. No evidence, however, was introduced relating to the actual value of the property at the time it was sold. Appellant’s testimony as to when she refused to “go ahead,” as she puts it, with the contract was substantially the same as that of the witness Smith.

Appellant’s brief presents six assignments of error accompanied by various propositions. To any consideration of the assignments appellee objects on the ground that each fails to comply with the rules. There are in the final analysis of the case but two issues presented by the record, one being whether the right to recover the commissions agreed to be paid appellee was barred by the four-year statute of limitation, the other whether the case should have been submitted to tbe jury on tbe issue oí fraud in procuring appellant to sell ber property for an amount less than its value. We think tbe action of tbe court in peremptorily instructing verdict for appellee could serve as a basis for raising both issues, and that there is among tbe assignments those which present those issues with reasonable certainty under the rules. We accordingly overrule the objections.

We then come to a discussion of the first question. Appellees’ cause of action was for debt and clearly one “evidenced by or founded upon” a contract in writing, and hence was not barred until four years after the cause of action had accrued. Article 5688, Vernon’s Say les’ Civ. Stats. As disclosed by the facts we have recited the contract for the sale of appellant’s land was to be performed on February 12, 1910, at least each party could await that day for performance, and neither could enforce an earlier involuntary performance. As a consequence appellees could maintain a suit thereon for their commissions at any time within four years thereafter or until February 12, 1914. Appellant, in effect, concedes the rule to be as we have stated it, but asserts that appellant renounced the contract to convey the land on February 2, 1910, at which time appellees’ cause of action for commissions accrued and the statute was set in motion. The rule invoked is a well-settled one and is controlling in cases where applicable. The inquiry then is: What is the rule of renunciation in such cases, and what application has it in this proceeding in view of the facts related? The contract being an executory one, and the time for performance not having arrived, when it is claimed appellant renounced the contract, the precise issue presented is that of an anticipatory breach thereof as distinguished from one during performance or one when performance was due. The controlling American rule in such cases is said to be the English rule, which is:

“That a renunciation of a contract, or, in other words, a total refusal to perform it by one party before the time for performance arrives, does not, by itself, amount to a breach of contract, but may be so acted upon and adopted by the other party as a rescission of the contract as to give an immediate right of action. When one party assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not of course amount to a rescission of the contract, because one party to a contract cannot by himself rescind it. * * * The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he, too, treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation.” Elliott, Contracts, vol. 3, §§ 2027, 2028.

The rule is similarly declared in 9 Cyc. 635, 636, 637, as well as in 6 R. C. L. §§ 384, 385. It is also the rule in this state. Kilgore v. Northwest Texas Baptist Educational Ass’n, 90 Tex. 139, 37 S. W. 598. In the case cited it was said, in effect, that the unconditional declaration by one party that he would abandon a contract yet to be performed was not a breach of it, but only afforded the other party the opportunity of electing to accept such renunciation.

The rule being then as we have stated it, what facts are disclosed by the record in this case that makes the rule applicable? The facts are that Smith, who was the custodian of and held in escrow the deed, notes, and deed of trust executed by appellant and King, respectively, advised King and his attorney on February 2, 1910, that, acting under instructions from appellant, he refused to deliver such instruments. We think such refusal far short of the unconditional declaration held by our Supreme Court to be necessary in such cases, particularly so when it is considered that the time for performance had not arrived, which was the earliest moment when King had the right to demand the instruments held by Smith.

But conceding that the refusal to deliver the several instruments to King* and his attorney in order that they might, as between themselves, close the matters, was in effect a renunciation, there is in the record a total absence of evidence tending to show that appellees elected to accept or act upon such renunciation, so far as relates to their cause of action. From the time of the execution of the contract to convey by appellant and King, wherein appellant agreed to pay appellees’ commissions, no act or declaration by appellees is shown upon which a holding can be based that appellees elected to abide by or act upon the renunciation. Complete silence has been maintained by appellees on that issue since the refusal to deliver the deeds, etc. But it is further contended that King did, on February 3, 1910, elect to accept the renunciation made by appellant, and that his election set the date of the accrual of appellees’ cause of action. We believe the contention untenable and without support in the rule invoked. The contract was to convey the property to King and to pay appellees’ commissions for securing a customer, who would accept same upon the terms therein recited, and was hence a divisible contract. Elliott, Contracts, vol. 2, § 1543. By the contract appellees’ right to commissions was not necessarily dependent upon a conveyance by appellant to King, since by the rule in such cases, which is projected as matter of law into such contracts, the broker is entitled to his commissions whenever he secures a customer ready, able, and willing to purchase upon the authorized terms, which cannot at least be defeated by the refusal of his principal to convey or the fail-ure of his principal’s title. Accordingly a refusal by appellant to convey to King cannot be said to be a direct or implied renunciation of her contract to pay appellees’ commissions, since such declaration is insufficient to support such holding in reference to an independent provision and obligation thereof.

Further, there never was in law on the part of King an acceptance of the renunciation by appellant. As we have seen from the rule stated the renunciation by appellant, if it was a renunciation, did not ipso facto breach the contract. To effect a breach it was necessary for King to have acted upon or accepted appellant’s renunciation. The form of acceptance in this proceeding would ordinarily have been a suit for the damages sustained by him as a consequence of the renunciation. This King did not do. On the contrary, he proceeded in affirmance of the contract by suit for specific performance, which it would be wholly illogical to construe into an election to breach the contract. The most that can be made of the fact that King commenced his suit before the time of performance is that it was prematiirely brought, which fact- is of no controlling importance in this case. The explanation of King’s attorney is that he sued when he did in order that the suit might be pending when the contract expired. It has been said in connection with such explanation that:

“The promisee has an inchoate right to the performance of the bargain, which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as á subsisting and effective contract. Its unimpaired and unimpeached efficacy may he essential to his interests.” 9 Oyc. 636.

It may be that it was for the purpose of keeping open and preserving unimpaired the efficacy of his rights under the contract to convey that induced King to sue, even though prematurely. Such a holding is sustained by the testimony of his attorney, .and is more in consonance with law than it would be to hold that a suit in affirmance of the contract was in fact one in renunciation thereof.

It thus results that there was never at any time an acceptance by either appellees or King of appellant’s breach of the contract, and that the contract itself controls in reference to when the cause of action accrued, which by our statutes was February 12, 1910, and, this suit having been commenced before the expiration of four years thereafter, it was not barred.

On the issue that appellee Kendall deceived appellant as to who was purchasing the property and as to the value of same and induced her to sell it for less than its value, we can only say that the issue is without support, even, in her own testimony. By her admissions she knew that the contract to convey was with Kendall for the benefit of another, and that she was to pay him a commission for his services. On the day aft-. er signing the contract with Kendall she executed deed to King, the one she supposed was to purchase the property. She says in her testimony that the property was worth more than $100,000, but fails to give her own opinion as to its value. Notwithstanding that evidence as to the real value of the property was obviously obtainable from other sources she failed to introduce it.' So that such issue is totally lacking any support from the evidence and the issue as a consequence is not raised in this court.

For the reasons stated and because the record fails to disclose reversible error, the judgment is affirmed. ■
      ©=>For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    BARBIAN v. GRANT et al.
    (No. 8468.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 18, 1916.)
    1. Limitation of Actions &wkey;>37(2) — Suit for Rescission and Damages.
    Where the action for equitable relief of a party induced by_ deceit to buy lands is not barred by limitation, the court will not apply differing standards of limitation to the right to rescission and the right to damages, but, upon establishment of the material allegations showing plaintiff’s right to rescind, will proceed to administer all relief, legal and equitable, to which plaintiff may show himself entitled, such as a judgment for payments made before discovery of the fraud, the value of the property defendants may have placed beyond their power to restore, etc.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 183; Dec. Dig. &wkey;> 37(2).]
    2. Yendob and Pubchaseb <&wkey;45 — Rescission — Question fob Juey.
    In an action for rescission by a party who purchased realty, the fact that defendants denied the fraud charged to them, and denied making the representations, merely presented a conflict in the testimony which it was the jury’s province to determine! ,
    [Ed. Note.. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 77, 78; Dec. Dig. <&wkey;> 45.]
    3. Yendob and Purchaser <&wkey;33 — Rescission — Fraud—Statements Made on Authority of Another.
    The fact that a seller of land, in describing it to the buyer, merely repeated what another had told him of it, did not relieve him of liability to the buyer for rescission if the repeated statements amounted to a representation of the character of the land that induced the buyer to take it, exchanging his land and giving notes therefor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ ¿8, 40-43, 66; Dec. Dig. &wkey;33.]
    4. Vendor and Purchaser &wkey;>123 — Parties Interested as Buyers — Question for Jury.
    In a suit for rescission by the buyer of realty who gave notes and a conveyance of his land, whether certain defendants were jointly interested in and participated with another defendant in the acquisition of plaintiff’s property held for the jury.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 221-227; Dec. Dig. &wkey;123.]

      5. Principal and Agent <S=»171(5) — Acceptance and Retention oe Erdits oe Fraud —Sale oe Realty.
    Where two defendants in a suit for rescission by the buyer of realty participated with another defendant in the acquisition of plaintiff’s property, they could not retain the fruits of the other defendant’s fraud, if any, on the ground that individually they made no representations, since the other defendant was their agent, and an acceptance and retention of the fruits of his fraud subjected them to liability.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 649; Dec. Dig. 4^>171(5).]
    6. Vendor and Purchaser ¡&wkey;118 — Rescission — Tender Back’ oe Land Received— Foreeiture by State.
    Where plaintiff was induced to purchase a tract of state school land by fraud, and such land was not forfeited to the state for failure to pay interest until after the institution of plaintiff’s suit for rescission, wherein a reconveyance was tendered defendants, the forfeiture by the state was no defense to the action.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 210, 211; Dec. Dig. &wkey;118.]
    7. Evidence &wkey;>114 — Relevancy.
    In a suit to rescind a purchase of realty, a defendant should have been required to answer the guestion if it was not true that the $6,000 consideration mentioned in the deed to him for certain land was not in fact paid by a transfer or conveyance of a certain right in a maize header patented to him, and in which the two other defendants owned a certain interest at the time, since an affirmative answer would have tended to support plaintiff’s allegations and evidence that the other two defendants were interested with the witness in the land conveyed to plaintiff.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 125-132; Dec. Dig. &wkey;114.]
    8. Evidence t&wkey;230(l) — Admissions.
    In a suit to rescind a purchase of land for fraud, testimony that a defendant stated in the presence of another defendant that the land was rich and good agricultural land, and was north of a certain town which was not the ease, was admissible as in the nature of an admission against interest.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 835, 840,'845, 851; Dec. Dig. *§=?> 230(1).]
    9. Witnesses &wkey;>379(l) — Contradiction.
    The conversation was also admissible as contradictory of defendant’s testimony on the trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. &wkey;379(l).]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Suit by Peter Barbian against W. C. Grant and others. From a judgment for defendants, plaintiff appeals.
    Reversed, and remanded for new trial.
    J. W. Moffett and Eugene De Bogory, both of Abilene, for appellant. Cunningham & Oliver, B. A. Cox, and Scarborough & Davidson, all of Abilene, for appellees.
   CONNER, C. J.

This is an appeal from a judgment in response to an instructed verdict in a suit instituted by appellant, Peter Barbian, against appellees, W. C. Grant, John Wiltshire, and W. B. Wiltshire, for rescission. As alleged, Peter Barbian on the 2d day of December, 1911, conveyed to the defendants 20 acres of land in Taylor county of an agreed value of $800, and 9 certain promissory notes aggregating $3,165, executed by one T. H. Barksdale and secured by a vendor’s lien upon 120 acres of another survey of land situated in Taylor county, and also gave 16 promissory notes executed by himself aggregating the sum of $3,100, with a credit thereon of $1,550, all of which was given by him in exchange for a tract of '471 acres of state school land situated in Lamb county, Tex.; the plaintiff as part of said transaction agreeing to assume and pay to the state of Texas the interest and unpaid purchase money due upon said 471-acre tract of land.

The plaintiff alleged, in substance, that at the time of said exchange the title to said 471 acres stood in the name of the defendant W. O. Grant, but that, in fact, all of the defendants alike were partners and interested in it together; that the defendants at and before said exchange of properties represented the said 471 acres of land to be good, level agricultural land and situated about six miles north or a little northeast of the town of Olton, the county seat of Lamb county, and of the reasonable market value of $12.50 to $15 per acre bonus over and above the state debt of $5.25 per acre.’ It was charged that the plaintiff was not acquainted with the location and quality of the particular section of land named, but was acquainted with the section of Lamb county in which said land was represented to be, and that he fully trusted in and believed the defendants’ said representations, but that, in truth and in fact, they were false and fraudulent. It was further alleged that in truth said 471 acres of land were situated some 10 or 12 miles south and west of said town of Olton and in the sand hills, where lands were of little or no substantial market or other value. The plaintiff prayed for a cancellation of all the transfers mentioned, and sought to recover thé property that had been so conveyed by him in exchange for said 471 acres of land, together with some $300 of interest and purchase money that he had paid to the state since said exchange. He further prayed in the alternative that, if it should be found that any or all of said property had been so disposed of as that a rescission and recovery could not be had, he then be permitted to recover his damages, which were laid in the sum of $6,000.

The defendant answered by general and special exceptions, by general and specific denials, including a verified denial of the partnership alleged. ’

The court overruled all demurrers and exceptions, except one which will be hereinafter noticed, and, after the introduction of the testimony, gave the peremptory instruction to the jury to find for the defendants.

Appellant first assigns error to the action of the court in sustaining the following exception:

“This defendant specially excepts to that part of plaintiff’s petition in which he asks for damages because the same is barred by the two-year statute of limitation.”

As stated, the conveyances which appellant seeks to rescind were executed on the 2d day of December, 1911, and this suit to rescind, as shown by the record, was not instituted until the 7th day of November, 1914. It thus appears that about three years elapsed between the date of the alleged fraud and the institution of the plaintiff’s suit The plaintiff, evidently with the view of avoiding any attempted defense by limitation, alleged that the fraud specified in his petition had not been discovered by him until on or about the 29th day of September, 1914, setting forth certain circumstances, not thought to be necessary to mention, as a reason why he had failed to discover the fraud earlier. In 25 Cyc. 1181, it is said:

“As a general rule, where the statutes do not otherwise provide, a right of action at law to recover damages for a fraud accrues, and the statute begins to run when the fraud is successfully consummated, not when it is discovered. So, in cases where a purchase of property is induced by fraud, the statute begins to run against the purchaser’s right of action from the time when the sale is completed. * * * But the equitable rule that the statute runs from the discovery of the fraud applies to actions of deceit in those jurisdictions where that rule has been adopted by common-law courts, or has been adopted in statutes applicable to actions at law.”

We have found among our own decisions no case in which the distinction made in the text from which we have quoted has been applied. Most of the cases that we have examined have been cases where a rescission of conveyances or annulment of decrees were sought, and they all recognize the equity doctrine that fraud will prevent the running of the statute in favor of the party who perpetrated the fraud until discovered, or by the use of reasonable diligence it ought to have been discovered. See Brown v. Brown, 61 Tex. 45; Cooper v. Lee, 1 Tex. Civ. App. 9, 21 S. W. 998; Hodges v. Hodges, 27 Tex. Civ. App. 537, 66 S. W. 239; Calhoun v. Burton, 64 Tex. 510; Smalley v. Vogt, 166 S. W. 1; Mitchell v. Simons, 53 S. W. 76. The last two cases cited will be found, we think, on examination to be cases where the plaintiffs merely sought a recovery for damages because of the alleged frauds, and hence would be maintainable as actions for deceit at law. These two cases, however, as do the others cited, proceed upon the assumption that the statute of limitations will not begin to run until the fraud was discovered, or by the exercise of reasonable diligence might have been discovered. So that we would think it reasonably safe to disregard the distinction suggested by the reading from Cyc. and assume, in this state, where distinctions between law and equity are disregarded in the pleadings, to hold that in cases of fraud limitation will not begin to run as against the injured party until the fraud has been discovered, or until it might have been discovered by the use of reasonable diligence. The reason upon which the ruling of the court under discussion was based does not appear from the record. We infer, however, that it was not so much, if at all, because of any distinction to be made in actions for rescission and in actions for damages because of deceit, but rather on the ground that the facts alleged by the plaintiff as his excuse for not having earlier discovered the fraud were wholly insufficient. If we deemed the question material, we perhaps would be inclined to agree with this view of the plaintiff’s petition. Bass v. James, 83 Tex. 110, 18 S. W. 336; Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970; Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S. W. 40; Id., 117 S. W. 1023. But even in those states where the statute runs from the commission of the fraud it is held that, “where purely equitable relief is sought aside from, or in addition to, a mere money judgment, the statute runs only from the date of the discovery.” See 25 Cyc. 1178. And in the case before us the gist — the very essence — of appellant’s -case was for rescission, a purely equitable relief, and against which, under our authorities,- the statute of limitation does not begin to run until four years. Revised Statutes, art. 5690; Cooper v. Lee, 75 Tex, 114, 12 S. W. 483; Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Groesbeck v. Crow, 91 Tex. 74, 40 S. W. 1028.

The plaintiff’s action for rescission therefore not having been barred by limitation, the court will not apply two differing standards of limitation, but upon the establishment of the material allegations showing plaintiff’s right to rescind .will proceed to administer all relief, both legal and equitable, to which the plaintiff may show himself entitled, such as a judgment for payments made to the state before discovery of the fraud, the value of such property, if any, as defendants may have placed beyond their power to restore, etc. See Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S. W. 854; Railway Co. v. Hawkins, 163 S. W. 132; Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; McCord v. Nabours, 101 Tex. 494, 109 S. W. 913, 111 S. W. 144.

Appellant also assigns error to the action of the court in giving the peremptory instruction, and we think the assignment must be sustained. A consideration of appellees’ evidence renders it very plain that it tends to prove his allegations of fraud and misrepresentations relating to the character and location of the 471 acres situated in Lamb coun-, ty. Indeed, appellees’ testimony, at least apparently, makes a clear ease for rescission.

The fact that the defendants denied the fraud and denied making the representations charged merely presented a conflict which it was the province of the jury to determine. Nor does the fact that appellee Grant, in describing the land, merely repeated what another had told him of it, relieve him, if the statements so repeated amounted to a representation of its character that induced the appellant to make the exchange. Boles v. Aldridge, 175 S. W. 1052. Nor do we think it can he said that, as a matter of law, the appellees John and W. B. Wiltshire are to be discharged under the evidence. True, neither appellant nor any other witness testified that either of the Wiltshires made any representation as to the character of the land, but it seems undisputed that appellee John Wiltshire assisted Grant in negotiating the exchange, and there was evidence tending to show that he was present and heard the representations made by Grant and made no denial of their truth. Indeed, according to the testimony, he seems to have been the principal speaker in the negotiations, and while he stated that he knew nothing of the character of the land except what the appel-lee Grant had said, yet appellant’s testimony as well as an ex parte deposition of the ap-pellee Grant, and perhaps other circumstances, indicated that the Wiltshires were interested together with Grant in the land, and it is undisputed that they received the vendor’s lien notes secured by the 120 acres of land. They also received part of the series of notes executed by the appellant. They testified that these things were purchased from Grant, contending that in part payment therefor they extinguished an indebtedness of Grant’s to them. They yet hold at least two of the notes executed by appellant.

Through foreclosure proceedings they yet possess the 120 acres of land upon which the nine Barksdale notes rested, and under all of the circumstances we think it was for the jury to say whether the Wiltshires were jointly interested in and participated with the appellee Grant in the acquisition of appellant’s property. If they did, they cannot retain the fruits of appellee Grant’s fraud, if any, on the ground that individually they made no representations. In that state of the case it must be held that Grant was their agent, and that an acceptance and retention of the fruits of his fraud cannot be upheld without incurring liability. See SI Oyc. 1235. It is there said:

“Under the doctrine of equitable estoppel two persons may find themselves charged with all the consequences of agency as to third persons, when as between themselves there exists as a matter of fact no agency • at all, or no agency for the particular purpose in question. Strictly speaking, agency by estoppel should be limited to cases in which there is no real, but only an apparent, agency; for, when an actual agency is shown, whether by express or implied appointment, it is quite unnecessary to invoke the aid of estoppel. Practically, however, this distinction is not clearly made, and it is often impossible from the facts brought out by the evidence to determine whether the agency is actual or ostensible. In most cases the distinction would not affect the rights of the parties, but, as elsewhere pointed out, occasionally a ease may turn on whether the agency is implied or is one by estoppel. The doctrine of es-toppel involves apparent or ostensible agency, which exists where the principal intentionally, or by want of ordinary care, induces third persons to believe another to be his agent, although he did not in fact employ him. As to third persons the distinction between actual and apparent or ostensible agency is unimportant, as the liability of principal and agent is the same in either case, but as between the parties themselves, of course, the ostensible agent is no agent at all. Apparent or ostensible agency is really agency by estoppel, and it is more strictly accurate to say that liability arises for the acts of such a so-called agent, not because there is any agency, but because the principal will not be permitted to deny it.”

See, also, 20 Oyc. 85.

We are therefore of the opinion that because of the error of the court in giving the peremptory instruction the judgment must be reversed.

In view of another trial we think it should also be -said that a forfeiture by the state, if any, of the Lamb county school lands for failure to pay interest, etc., constitutes no defense to the plaintiff’s action if the forfeiture did not occur until in August, 1915, after the institution of the plaintiff’s suit wherein a reconveyance of the property was tendered to the defendants. A tender previous to the institution of the suit was alleged, and one was certainly made in. the plaintiff’s petition, and if the land was then in good standing and not subject to forfeiture, and the plaintiff then in an attitude to reconvey and place the defendants in statu quo, his right to rescind existed, and if thereafter the interest was unpaid and the land became subject to forfeiture, the defendants at least knowingly participated, in the neglect, and hence cannot interpose the failure as a defense to the action. Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700.

We think also that the appellee Grant should have been required to answer the question if it was not true that the $6,000 consideration mentioned in the deed to him for the Lamb county land was not in fact paid by a transfer or conveyance of a certain right or interest in a maize header patented to him, and in which John and W. B. Wilt-shire owned a certain right or interest at the time. The bill of exception to the refusal of the court to require the witness to answer this question states that Grant would have answered the question in the affirmative. If so, the answer would have tended to support the plaintiff’s allegations and evidence to the effect that the Wiltshires were interested with Grant in the land conveyed to the plaintiff as a result of the negotiations in December, 1911.

So, too, we think the court should have overruled the objections to the testimony of the witness A. Bontke, to the effect that he had a conversation with the defendant W. C. Grant on or about December 1, 1911, in which Grant stated in the presence of the defendant W. B. Wiltshire that the Lamb county land was rich and good agricultural land and was north of the town of Ol-ton. The conversation with Bontke was admissible as in the nature of an admission against interest and as contradictory of Brant's testimony on the trial.

For the error bf the court in taking the case from the jury, it is ordered that the judgment be reversed, and the cause remanded for a new trial.
      <g=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&35>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes