author: TAYLOR, J. PHILLIPS, C. J.

text:
    GRISWOLD et al. v. COMER et al.
    (No. 31-2674.)
    (Commission of Appeals of Texas, Section A.
    Feb. 19, 1919.)
    1. Adverse Possession 3x^44 — Five-Yeas Statute — Concurrence of All Requisites.
    The several requisites to title to land under the five-year statute of limitations must concur for the entire period.
    2. Adverse Possession <§=>82 — Five-Year Statute — Registration of Muniment of Title.
    Where partition between heirs, under which defendant claims, was not by parol, and not under probate proceedings, but by deed showing on its face it was muniment of title necessary to be recorded under five-year statute of limitations, bar of statute is not complete as to interest in land conveyed to defendant by partition deed, not registered until after suit brought.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by D. E. Griswold and others against C. C. Comer and others, resulting in judgment for defendants, which was affirmed by the Court of Civil Appeals (161 S. W. 423), and plaintiffs bring error.
    Judgment of the Court of Civil Appeals, affirming the judgment of the trial court, reformed to award plaintiffs part of the land sued for, on recommendation of the Commission of Appeals.
    R. J. McMurrey, of Anahuac, and Marshall & Harrison, of Liberty, for plaintiffs in error.
    C. F. Stevens and W. R. Anderson, both of Liberty, and Lane, Wolters & Storey, of Houston, for defendants in error.
   TAYLOR, J.

On May 3, 1881, S. A. Miller purchased the land sued for at a tax sale, and in the same year duly recorded his tax deed. He died in March, 1893, without having taken possession of the land, leaving as his survivors his wife and four daughters, one of whom is the defendant Mrs. Comer. The surviving wife and two of the daughters on August 17, 1897, executed a partition deed, conveying the land to Mrs. Comer under her maiden name, Amelia Miller. About October, 1904, Amelia Miller leased the land to A. B. Lawrence, who took possession under the lease as her tenant. Mrs. Comer, through the said Lawrence and her other tenants succeeding him, has continued in possession to the present time.

Mrs. Comer, whom It will be convenient to refer to hereafter as defendant, pleaded not guilty, and the three, five, and ten years statutes of limitation. She defended particularly under the five-year statute, introducing in evidence both the tax deed conveying the land to her father and the partition deed conveying the land to herself.

Trial without the intervention of a jury resulted in a judgment for the defendants, and the Court of Civil Appeals affirmed the judgment. 161 S. W. 423.

It is well settled that the several requisites to the title under the five-year statute must concur for the entire period. Sorley v. Matlock, 79 Tex. 304, 15 S. W. 261. The requirements of the statute applicable under the facts of this case are as to possession, use, payment of taxes, and registration. The defendant’s possession of the land began in 1904, and she has continued in peaceable and adverse possession thereof, using the same and paying taxes thereon annually as they accrued until the filing of this suit, a period of more than five years. The tax deed referred to was duly registered in 1881, the year of its execution, but the partition deed was not filed until September, 1911, a time subsequent to the filing of this suit. ■ . „

It is urged by the defendant that her possession of the entire tract is referable to the Miller deed, she being one of the heirs of Miller, notwithstanding she is in possession under both deeds; that, inasmuch as a partition of the Miller estate setting apart the land to her could have been made by parol, the fact that the partition was made by deed does not bring the partition deed within the statute requiring that it be recorded in the deed records. In support of this proposition the defendant relies upon the case of McLavy v. Jones, 31 Tex. Civ. .App. 354, 72 S. W. 407. In that case the appellee, Mrs. Jones, was a daughter of Byrd Eastham, to whom the land had been conveyed in 1876, the deed to which was recorded on May 29, 1878. Eastham died leaving a will, which was duly probated in 1885. The will devised one-half of his estate as community property to his wife, the remainder to his children. His wife was appointed executrix without bond. About March 1, 1886, a tenant entered into possession of the land under a contract with the executrix. On August 17th of the same year the court approved a report of partition filed in the estate of Byrd Eastham by the executrix, setting apart, among other property, the land in controversy to Mrs. Jones, and a decree re-' citing such partition was duly entered. This decree was never recorded in the deed records. Possession was acquired by Mrs. Jones under the executrix, and was thereafter continued unbroken by her through her tenants. The court recognized and specifically held that under the statute:

“Every muniment of the record title must be recorded, and the possession must be unbroken, and must be accompanied by the payment of taxes for the requisite period.’*

It announced the then well-established doctrine that an heir could prescribe under the deed to the ancestor without record of the order of the probate court, partitioning the estate of the ancestor, and extended this doctrine so as to include a devisee. The court states:

“The will disposed of the property in accordance with the statute of descent and distribution, but this fact does not affect the principle involved, as the will is not such a muniment of title as is required by the law of registration to be recorded in the record of deeds.”

No title vested in the executrix, but she, under the statute, was entitled to possession of the real estate as well as personalty; her possession being on behalf of the Eastham estate. The possession was in virtue of the deed to Eastham, not in any sense adverse thereto, and the subsequent possession by Mrs. Jones wás tacked to that of the executrix.

In this case there was no possession of any kind by the defendant until long after the death .of Miller, and seven years subsequent to the time of the execution of the deed of partition by the Miller heirs, when she acquired possession through her tenant Lawrence. The partition under which the defendant claims was not by parol, and was not under or by virtue of probate proceedings. It was by a deed which shows on its face that it is a muniment of the title necessary to be recorded under the terms of the statute.

The facts of this case not being such as to bring it under the rule announced in the Mc-Lavy Case, the bar of the five-year statute is not complete as to the seven-eighths interest in the land conveyed’ to the defendant by the partition deed. Van Sickle v. Catlett, 75 Tex. 409, 13 S. W. 31; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609; Medlin v. Wilkins, 60 Tex. 418; Cook v. Dennis, 61 Tex. 248; Porter y. Chronister, 58 Tex. 55; the Sorley Case, supra. Under the defendant’s'claim of title all of the requisites of the statute concur for the full period as to the remaining one-eighth interest in the land, and the bar is complete as to such interest.

We are of opinion that the judgment of the Court of Civil Appeals, affirming the judgment of the district court, should be reformed so as to award to the plaintiff an undivided seven-eighths interest in the land sued for, and deny their prayer for recovery as to the remainder.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MONTGOMERY, P. J. PHILLIPS,

license: Public Domain

text:
    SMITH v. DUNCAN.
    (No. 49-2719.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. Gaming <⅝=»11 — Wagbeing Contract — Sale — Manneb oe Fixing P'bice.
    A contract of sale of cotton, delivered at the time, is not a wagering contract, because providing that the price shall be market price on any day, within a certain future period, selected on its arrival by the seller.
    2. Trial <©=>251(4) — Instructions — Issues— Contracts.
    The jury may not be authorized to find that there was no contract, on the ground of absence of meeting of minds, but should be left to find, under all the evidence, what the real contract was, there being no contention that a contract was not made, especially where the contract has been executed by one party, and the controversy is as to a particular term of the contract — how the p.rice to be paid should be determined.
    3. Sales <©=3364(2) — Action bob Price — Instructions — Pleading.
    An instruction, in action for price of goods sold and delivered, authorizing the jury to find that there was no contract, on the ground that there was no meeting of minds as to how the price should be fixed, is properly refused, plaintiff by his petition alleging in the alternative that, if it be found the contract was not as claimed by him, then he seeks a recovery on the contract as it is claimed by defendant to have been.
    4. Sales <®=>S7(3) — Contract—Provision as to Price — Evidence.
    Evidence in action for price of goods sold held to support a finding that contract was substantially as claimed by plaintiff as to what should bqi the price.
    5. Sales .<©=>77(1) — Election as to Price-Notice.
    Plaintiff did all that was necessary under his contract of sale of cotton, providing that the price should be the market price on a day to be selected by him within a certain time, where on the day selected, defendant being at home sick, he gave notice to all present at defendant’s place of business, and, on their denying authority to represent him, attempted to notify him at home, and, not being allowed so to do, requested defendant’s brother to notify him.

      6. Sales <&wkey;-77(l) — Election as to Pkice — Notice — Estoppel to Deny.
    Defendant, to whom plaintiff sold cotton with provision that price should be the market price on any day plaintiff should select within a certain period, was estopped to deny sufficiency of notice of selection, having before expiration of the time for selection, with knowledge of attempted notice, written plaintiff that he would settle as soon as he was able to see him.
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by E. M. Duncan against Charles B. Smith. Judgment for plaintiff was affirmed by the Court of Civil Appeals (167 S. W. 233), and defendant brings error.
    Affirmed.
    Jno. B. Durrett, of Belton, and Sam D. Snodgrass, of Temple, for plaintiff in error.
    A. L. Curtis, of Belton, for defendant in error.
   MONTGOMERY, P. J.

P. M. Duncan

brought this suit against Charles B. Smith. The suit grows out of a contract between the parties by which Duncan sold and delivered to Smith 1,188 bales of cotton. Eor convenience the parties will be designated as plaintiff and defendant as they appeared in the trial court.

The plaintiff, (Duncan, alleged that on November 11, 1912, a contract was entered into between the plaintiff and the defendant by which it was agreed that the plaintiff should sell and deliver to the defendant, and that the defendant should buy, certain cotton; that the agreement was that the cotton should be delivered by plaintiff to defendant, and that upon delivery defendant should pay 10 cents per pound “basis middling,” but that the ultimate price to be paid for the cotton should be fixed as follows: That plaintiff should have the right to elect to take the market price of the cotton at Belton, Tex., on any day to be selected by him prior to March 1, 1913; that the plaintiff delivered under the contract 1,188 bales of cotton. The plaintiff alleged that under the contract he named November 27, 1912, as the day on which the price of the cotton should be determined, and notified the defendant thereof, and demanded payment of the price of the cotton as of that day in Belton, Tex. The plaintiff further alleged that “middling cotton” on said day in Belton, Tex., was of the market value of 12s/ie cents per pound, Plaintiff sued for the difference between the amount paid him by defendant at the time of delivery and the market value of the cotton, at Belton, Tex., on November 27, 1912, less certain admitted credits. The petition cpn-tained many other averments, but, as no question is raised as to the pleadings, the above will be a sufficient statement as to the contents of the petition. Defendant filed a general denial and certain special pleas not material to the questions discussed.

The plaintiff testified to the contract as alleged, and further testified that under the contract he had delivered 1,188 bales of cotton. The contract was verbal and made over the telephone.

The defendant admitted making a contract for the purchase of the cotton and the delivery of the cotton under the contract, but testified that the ultimate price to be paid was to be determined, not by the market price of the cotton on the date selected by plaintiff, but by his (the defendant’s) “basis limit” on that day.

The plaintiff was a cotton buyer, living at Killeen, and the defendant was the president and principal owner of a corporation engaged in the hardware business at Belton, Tex., known as the Smith-Peyton Hardware Company. Defendant was also engaged in the cotton business on his own account under the name of Charles B. Smith & Co. Defendant’s office and place of business was at the store occupied by the hardware company, and from this place of business he carried on his cotton business as well as superintended the business of the hardware company. It was in evidence that some of the employés of the hardware company performed services for the defendant in his cotton business, but there was no evidence that such employes had any authority to make purchases or settlement for cotton purchased by Charles B. Smith & Co.

The only difference between the parties as to the contract is that the plaintiff testified that the price was to be determined by the market price on the day named, while the defendant testified that his “basis limit” on the day named should control.

Upon this issue there was no evidence, outside of the conflicting statements of the parties, except a letter of confirmation written by defendant on the day after the verbal contract was made. This letter was as follows:

“October 12, 1912.
“Mr. P. M. Duncan, Killeen, Texas: •
“Dear Sir: Confirming our conversation over the phone last night, beg to say that we will advance ten cents per pound ‘basis middling’ on such cotton as you may ship us, we to use the cotton and settle with you on our basis limit at any time between now and March 1, 1913, your option as to date. When you report the cotton as sold to us, settlement will be made as between us at the difference between ten cents and the basis price you sell at. No charge will be made for interest or insurance. We presume you are shipping the three hundred bales to-day. If you have more we would be glad to use not to exceed one thousand bales on about" the same basis.
“Yours truly, Charles B. Smith.”

Plaintiff, Duncan, testified that he never (in fact saw the letter copied above, but that if tie bad seen it be would have made no objection, as bis understanding was that the words used in the letter meant practically the same thing as the market price.

The evidence shows that Charles B. Smith when the contract was made was regularly in the cotton business, and the parties evidently contemplated that he would continue in such business. After all the cotton had been delivered, and defendant, Smith, had paid approximately 10 cents per pound, as provided in the contract, and on November 23, 1912, Charles B. Smith became sick, and from that date until some time in the following January was confined to his home. During the first two or three weeks of his illness he was unable to transact any kind of business, and, under the instruction of his physician, was not permitted to see any one about any business matter. The defendant testified that during the time he was sick he was out of the cotton market entirely, and that he had no “basis limit,” and that no one was authorized to represent him with reference to his cotton business; that he had no agent and no employes.

On November 27, 1912, “middling cotton” was of the market value in Bolton, Texas, of 125/ig cents per pound. On that day plaintiff, Duncan, determined to close out the cotton and demand a settlement in payment for the cotton, in accordance with the contract, based on the market value of the cotton on that day; and for the purpose of carrying out this intention, and notifying Smith of his selection of that day under the contract, plaintiff went to the Smith-Peyton Hardware Company’s place of business, where defendant, Smith, kept his office, and there informed. the persons present and conducting the business of his election to take the market price of the cotton on that day, and requested a settlement. All the persons present informed him that defendant was sick, and that they had no authority whatever to represent him. Plaintiff then went to Smith’s home for the purpose of notifying him in person, but was refused permission to see him. Plaintiff on the following morning saw a brother of the defendant, and requested him to inform the defendant that he had elected to take the market value of November 27-th for the cotton. The evidence of the brother ,is that 'this message was not delivered for several weeks. After defendant had recovered from his illness, according to plaintiff’s testimony, he (Smith) told the plaintiff that he had told his brother when the message above was delivered “-to hedge the cotton; that he was not able to attend to it at that time.”

There seems to have been no further communication between the parties until on De>-cember 20th, when plaintiff wrote a letter addressed to Smith-Peyton Hardware Company. In this letter he requested a settlement for the cotton on the basis of the market value [ of the cotton on November 27th; that is, on the basis of 125/ig cents pfer pound for “middling cotton.” On the day after this letter was written, defendant sent plaintiff a check for $3,000 on the cotton account.

The defendant testified, however, that the check was sent before he received the letter, and that he sent it because he had learned that plaintiff wanted to close the account, and for the further reason that the price of cotton then justified the payment. On December 23d the defendant wrote and mailed to plaintiff a letter, in which he said:

“Your letter of the 20th instant to Smith & Peyton Hardware Company handed me to-day. While I own four-fifths of this concern's stock, it has no connection with my Western cotton business; hence Mr. Stockton has no authority to take up the matter with you. The moment I am able to get up you and I will make satisfactory settlement of the consigned cotton. My doctor says looks like January 1st.”

There was evidence that the price of cotton on November 27th and 28th was 12% cents “basis middling”; that on December 20th it was 12½ cents; on December 23d it was 12½ cents; and on December 24th it was 12^/110 cents; and that on February 28th it was 12 cents. There was evidence that the price of cotton did not depreciate materially until some time in the early part of January, and on the 10th day of January it had depreciated to about 12½ cents per pound “basis middling.”

There was evidence by several experienced cotton dealers as to the meaning of the term “basis limit” as used by cotton men. Prom all the evidence it appears that practically all cotton is sold on what is called “basis middling” ; that is, that the market price of “middling cotton” fixes the price of all cotton, whether below or above that grade. It also appears that each dealer in cotton from day to day establishes what is called a “basis limit”; that is, the highest market price which they, or buyers in their employ, may pay for “middling cotton,” and this basis automatically fixes the price for all other grades. To illustrate, we quote from the testimony of W. L. Van Lieu:

“All the buyers do not have the. same limit on the same day, but you find them running about in line. The limits are not controlled by the market price. The limits make the mar- ■ ket price. We have in the neighborhood of fifteen or twenty buyers in Temple, and these buyers may vary a few points on their limit on the same day, but you find them all about in line, but they do vary a little. Some days a buyer has a limit more than another buyer, and will pay more than another buyer. When you hear the expression ‘a buyer is out of the market’ it means that he is not in the market even at the price cotton is bringing.”

This witness further testified that one-sixteenth of a cent is a legitimate variation to occur in a buyer’s basis limit. Tbis witness further testified:

“If a man took over twelve hundred bales of cotton, and sold it, and the cotton is gone, there is no reason on earth, when he comes to settle with that man, why there should be any difference between Ms basis limit and the market price, if he wants to make a square deal.”

He further testified that when cotton was sold to be paid for in the future, and there was any difference between the buyer’s basis limit' and the market price, that the market price would control; that this was customary among all cotton men on consignments.

There was also evidence conflicting with the above. Some witnesses testified that there might be a quarter óf a cent difference on the ba.sis limits of different buyers on the same day, but those having the lower limits would in fact be out of the market. There was also evidence offered by defendant that, when a contract was made to sell at a price fixed by the buyer’s limit, this would control over the market price, and that, if the seller was not satisfied with the buyer’s limit, he must postpone selling until the buyer had put out a higher limit. Such other testimony as we think material to the points discussed will be shown in the opinion.

The plaintiff recovered judgment in the trial court for the value of his cotton, based on the market value on November 27, 1907. The defendant appealed and the judgment was by the Court of Civil Appeals affirmed (167 S. W. 233). A writ of error in this case was granted on the application of the defendant, Charles B. Smith.

Opinion.

The first assignment of error contained in the application attacks the judgment upon the ground that the contract sued on is a wagering contract, and it is urged that for this reason the court should have refused to enforce it. This point was not made either in the trial court or the Court of Civil Appeals.

We think the contract is not subject to this objection. Similar contracts are frequently made by persons engaged in the cotton trade, and no doubt by dealers in other commodities. In this case the cotton was sold and actually delivered with an agreement that the price to be paid should be determined by the state of the market on a day to be selected by the seller in the future. Duncan owned the cotton, but did not wish to take the then market price. Smith wished to buy the cotton, and was willing to take it and pay the value of the cotton at a future day to be selected by Duncan. It has been decided in this state that the owner of property has the right to sell the same and contract for the future delivery thereof, provided an actual delivery is contemplated, and that the price may be left to be determined by the state of the market at the time of delivery. • Cleveland v. Heidenheimer (Civ. App.) 44 S. W. 554; s. c., 92 Tex. 108, 46 S. W. 30.

We can see no good reason why, having sold the cotton under an agreement that the future- market value should determine the price, Duncan could not deliver it in advance of the time fixed for the determination of the price. We have been cited to no case condemning a transaction of this character, and, after some search, have been unable to find a single case supporting the view of the plaintiff in error. The cases cited by the plaintiff in error are clearly distinguishable from tMs case.

Complaint is also made of the refusal by the trial court to give to the jury the following special instruction requested by plaintiff in error:

“You are instructed that if at the time of making the contract in question the plaintiff understood that the price of the cotton sold to Mm by defendant was to be fixed by the ‘market price’ of said cotton on any day between the date of delivery of same and March 1, 1913, at his option as alleged in Ms petition, and defendant at said time understood that the price of said cotton was to be fixed by the ‘basis limit’ of the defendant, Chas. B. Smith & Co., and if there was a material difference in the meaning of the terms ‘market price’ and ‘basis limit,’ then the minds of the parties did not meet, and there was no agreement between them as to the price to be paid for said cotton, and upon a delivery of said cotton in such case the law would fix the price by implication at its reasonable value at the time of its delivery; and if you so find that there was no agreement as to the price of said cotton, then you will find the total reasonable market value of said cotton at the time of its delivery, and, after deducting the total payments made by defendant to plaintiff from such total value, render your verdict for the balance, if there is a balance, and if there is no balance, then you will find for defendant as to plaintiff’s claim, and so say by your verdict.” (Tr. p. 15.)

We think this charge was properly refused. The charge in effect instructs the jury that if, at the time the contract was made, the plaintiff understood that the price was to be fixed by the market value of the cotton, and the defendant understood that the price was to be fixed by the defendant’s “basis limit,” and if there was a material difference in the meaning of the two terms, that then there was in fact no contract.

In this case both parties testified that there was a contract. The contract had been wholly performed by the defendant in error, Duncan, and partly performed by the plaintiff in error. There was no pleading raising the issue of a mistake growing out of the misconception by the parties of the terms used. In other words, the issue in this case was not as to the existence of the contract, but as to its terms. If, as claimed, there was á material difference between the 'terms of the contract, as testified to by the parties, then the issue was one of fact to be submitted to the jury as to what contract was in fact made.

In the case of Bewick y. Butterfield, 60 Mich. 203, 26 N. W. 881, the court gave a charge similar to that requested in this case. In the Michigan case the court said:

“The remarks of the court in relation to the meeting of the minds of the parties in that talk being necessary to make a contract between the parties was good law in the abstract, but might have been, and undoubtedly was, under the facts of this case, misleading. There was no pretense that the minds of the parties did not meet in some kind of an understanding. The whole controversy was as to what the defendant said. The defendant made some kind of a promise. Comstock recollected it to be one thing, and defendant another. If the jury believed Comstock, Butterfield promised to pay for the running of the logs if plaintiff did any work upon them. If they believed Butterfield, the contract was, in substance, to pay for the running of defendant’s logs, if plaintiffs did more work upon the mixed logs than defendants did. But from the language of the court the jury might easily have inferred that because the parties recollected the promise differently there was consequently no promise at all, as the minds of the parties did not meet in their remembrance of the talk.”

In the case of Power State Bank v. Carver, 148 S. W. 341, the Court of Civil Appeals for •the Second District had under consideration a case where there was a sharp conflict in the testimony as to the terms of a verbal agreement, and in which the lower court had given a charge similar to that requested in this case. The court said:

“The ease was one of simple conflict in evidence; Carver specifically stating that the agreement was that the defendants were to pay him $2 per head for pasturing their cattle until April 1, 1910. The testimony of the defendants was in direct contradiction, and to the effect that the pasturage for that length of time was to be paid for at the rate of $2 per annum. The charge, therefore, relating to a meeting of the minds of the parties, however correct in the abstract, was misleading, in that the jury might have believed from the evidence that the contract in fact was as testified to by Carver, but that the defendants understood it otherwise.”

Where, as in this case, there is no contention that a contract has not been made, and especially where the contract has been executed by one of the parties, and the controversy is as to some particular term of the contract, we do not think it permissible to authorize the jury to find that no contract was made. It should be left to the jury to find, under all the evidence, what the real contract was.

The case of Hubbard City Cotton Oil’ & Gin Co. v. Nichols («v. App.) S9 S. W. Y05, is one in which it was held that it was proper to authorize the jury to find that the minds of the parties did not meet. In that case the real question in controversy was whether a contract of any character was in fact made, and the evidence left it in doubt as to whether the parties ever in fact reached any agreement. In a case of that character the giving of a charge such as requested in this ease would not be improper, but the difference between the issues in the two cases is manifest from what we have already said.

We also think that the charge was properly refused because the plaintiff in his petition alleged in the alternative that, if it should be held that the contract was not as claimed by him, then he sought a recovery upon the contract as claimed by the defendant. Under either theory the plaintiff was entitled to recover provided he had himself complied with the contract. If the plaintiff was mistaken in this understanding of the contract, he, after full performance, was certainly entitled to recover what' was due him under defendant’s theory of the contract.

There was ample evidence, in our opinion, to support a finding by the jury that the contract was substantially as alleged and testified to by plaintiff, Duncan. Therefore we overrule all assignments attacking the verdict upon the ground that the evidence was insufficient to show the contract as alleged.

The only other assignment which we deem it necessary to notice is that claiming that tire evidence is insufficient to authorize the judgment for the alleged reason that the evidence failed to show that Duncan had complied with the contract by naming a day for the fixing of the price of the cotton, and giving Smith notice thereof, as contemplated by the contract.

It is evident that the plaintiff in error could not’ defeat the rights of the defendant in error under the contract by abandoning the cotton business, whether the abandonment was voluntary or involuntary. Nor could the rights of the defendant in error be defeated by the circumstance that, by reason of the condition of plaintiff in error, it became impossible for the defendant in error to give him actual notice of his selection of a particular day, as provided in the contract. The defendant in error on the day designated by him gave notice to all the persons present at the plaintiff in error’s place of business. Finding no person there claiming to have authority to represent the plaintiff in error, he attemped to notify him a.t Iris home, but was prevented from doing so. I-Ie then requested a brother of plaintiff in error to notify him. Our opinion is that he did all that was required of him under the circumstances.

We also think that when plaintiff in error received the letter written by the defendant in error, on or about December 22d, notifying blm of bis claim to have designated November 27tb under Ms contract, and replied thereto promising a settlement as soon as he should be able to see him, that this was in effect a promise to settle upon the basis of the market price on November 27th. At the time tMs letter was written plaintiff in error, Smith, knew of the effort made by Duncan on November 27th to notify him of the selection of that day under the contract for fixing the price of the cotton, At that time the price of cotton was higher than on November 27th, and, if Smith had then informed Duncan that he would not settle for the cotton on the basis claimed by him, Duncan would have selected another day on which the price was even higher than that then demanded by him. Having by his letter led Duncan to believe that he would settle on the basis claimed, and thus prevented Duncan from naming another day, we think that Smith is liable, even though Duncan had not in fact fully complied with the contract as to giving notice. The letter was ^n unequivocal promise to settle for. the cotton. Under the contract no settlement or payment was due unless' Duncan had selected a day in order to fix the price. Duncan evidently understood the letter to mean that Smith would settle on the basis demanded by him, as, if he had understood otherwise, his self-interest would have prompted him to name a day on which the price of cotton was higher than on November 27th. If the notice given by Duncan was for any 'reason insufficient, we think the letter should be held to be a waiver of any such defect in the notice.

We believe the Court of Civil Appeals properly decided all other matters complained of, and believe it would be unprofitable to further discuss them. Our conclusion is that the judgments of the trial court 'and the Court of Civil Appeals should be affirmed.

PHILLIPS,

C. J. The judgment as recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
      <S=jFoi other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <2^For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: SADLER, J. PHIDDIPS, O. J.

text:
    HARLINGTON LAND & WATER CO. et al. v. HOUSTON MOTOR CAR CO.
    (No. 23-2642.)
    (Commission of Appeals of Texas, Section B,
    Feb. 19, 1919.)
    1. Appeal and Error ©=>1089(1) — Review— Jurisdiction. •
    Where the Court of Civil Appeals affirmed a judgment, refusing to consider the errors assigned, and a writ of error was granted, the whole case is before the Supreme Court for determination;
    2 Appeal and Error €=>292 — New Triai^-Assignments oe Error.
    In March, 1912, it' was not necessary, under Rev. St. 1911, arts. 1970-1975, to raise objection to the court’s charge in a motion for new trial.
    3. Appeal and Error ©=>302(4), 730(1) — Assignment oe Error — Motion for New Trial.
    A motion for new trial and an assignment of error, on the ground that the trial court erred in instructing the jury to return a verdict for plaintiff in any amount, is sufficient to be considered on appeal.
    4. Appeal and Error ©=>748(1) — Assignments — Propositions.
    Though the propositions in appellant’s brief were not germane, yet, where the brief as a whole was sufficient to present the error relied upon for reversal, the matter should be reviewed by the appellate court, for the statutes and rules requiring errors to be assigned are primarily for relief of appellate courts, and should not be given a construction calculated to embarrass suitors.
    5. Appeal and Error ©=>719(6) — Review— Fundamental Error.
    Where defendants sufficiently presented the record in their briefs to make it apparent that it was error to peremptorily instruct a verdict for plaintiff, the matter may be reviewed as fundamentally erroneous.
    6. Appeal and Error ©=>719(1) — Assignments — Necessity.
    Fundamental error need not be assigned.
    7. Sales ©=>445(1) — Actions—Defenses.
    In an action on a note executed in part payment for an automobile, held that under Rev. St. 1911, art. 1971, the question of defendant’s damages for breach of warranty, etc., should have been submitted to the jury.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by the Houston Motor Car Company against the Harlington Land & Water Com-' pany and others. A judgment for plaintii was affirmed by the Court of Civil Appeals (169 S. W. 628), and defendants bring error.
    Reversed and remanded for new trial.
    Lane, Walters & Storey and Wm. A. Vinson, all of Houston, for plaintiffs in error.
    E. P. & Otis K. Hamblen, of Houston, for defendant in error.
   SADLER, J.

For convenience the parties will be designated as Water Company and Motor Car Company.

The Motor Car Company sued the Water Company and L. C. Hill in the district court to recover a balance due upon a promissory note executed by the defendants in part payment for a Stoddard-Dayton Automobile.

The Water Company answered by a plea of failure of consideration, setting up a warranty by the Motor Oar Company of the automobile, the breach of the warranty, and damages occasioned by the necessary replacements of various defective parts of the car in an effort to bring it up to the warranty, and sought to have these damages set off as credits against the note. On a trial before a jury the court peremptorily instructed against the offsets and in favor of plaintiff for the amount of the note, less certain admitted credits.

From verdict and judgment following the court's charge the defendants appealed. The appellate court refused to consider the assignments of error in appellant’s brief, and held that no terror apparent of record” was presented by the assignments in the brief.

An application for writ of error was granted by the Supreme Court (163 S. W. xvi) in the view that the Court of Civil Appeals erred in holding that the giving of the peremptory instruction, under the circumstances of the case, was not fundamentally erroneous.

Opinion.

The appellate court having affirmed the judgment of the district court, and the writ of error having been granted, the case is before us for determination. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Bomar v. West, 87 Tex. 299, 28 S. W. 519.

The Court of Civil Appeals refused to consider the case for three reasons: (a) Because the objection to the charge was not raised properly in the motion for new trial; (b) because the assignment of error to the charge was too general to disclose error, and in this connection that the propositions under the assignment were not germane; and (c) that there was no fundamental error raised by the assignment of error, and that none was “apparent of record;” 160 S. W. 628.

Under the law applicable at the time of the trial of this case, March, 1912, it was not necessary to raise objections to the court’s charge in a motion for new trial. R. S. 1911, tit. 37, c. 13; M., It & T. Ry. Co. v. Beasley, 155 S. W. 187.

The objection, however, was presented to the district court in a motion for new trial, and an assignment of error was filed in the lower court based on the motion.

The Court of Civil Appeals held that the motion for new trial and the assignment are too general to present the error and should not be considered. The motion and the assignment are correctly stated in the opinion.

We have carefully considered the motion and assignment, and, are of opinion that they are sufficient to require consideration by the Court of Civil Appeals. Clarendon Land Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, , 1100, 22 L. R. A. 105; Cotton Press Co. v. McKellar, 86 Tex. 700, 26 S. W. 1056; Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593; and Ry. Co. v. Babno (Civ. App.) 140 S. W. 382. In the last-cited case the learned judge who wrote the opinion in this case also announced the holding there.

Should we concede that the propositions in appellant’s brief are not germane—and they, perhaps, are open to that criticism—yet the brief, taken as a whole, is believed to be sufficient to present the ground of error upon which appellant relies for reversal. Ry. Co. v. Giles, 126 S. W. 283, cited by the Court of Civil Appeals, does not appear applicable. It is believed that Olivarri v. W. U. Tel. Co., 116 S. W. 392, Band Co. v. McClelland, supra, and Ry. Co. v. McArthur, 96 Tex. 65, 70 S. W. 317, announce a rule which appeals to fairness:

“It is to be borne in mind that the statutes and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practical construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions.”

We are not favorable to the idea of a disregard of the rules by litigants in seeking relief from errors which arise in the trial of cases, and these rules ought to be-followed. However, we are loath to deprive a litigant of a substantial right by invoking a technical construction of the rules governing procedure when a reasonable construction will afford opportunity for relief. There may arise cases where strict construction is proper and required; but' where the brief, taken as a whole, reasonably presents the error sought to be corrected, we believe it more in accord with justice to give it consideration. In the instant case a fair consideration of the entire brief makes apparent the error of which appellants sought to complain in the Court of Civil Appeals.

From what we have said it follows that the Court of Civil Appeals erred in refusing to proceed to a consideration of the case.

Aside from the foregoing, we are of opinion that appellants sufficiently present the record in their brief to make it apparent that it was error to peremptorily instruct a verdict for the plaintiff, and thus bring in review the whole record. Searcy v. Grant, 90 Tex. 102, 37 S. W. 320; Fuqua v. Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919. There is authority for the proposition that fundamental error need not be assigned. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; City of San Antonio v. Talerico, 9S Tex. 151, 81 S. W. 518.

Article 1971, R. S. 1911, requires the court to “submit all controverted questions of fact solely to the decision of the jury.” The court charged that the evidence was insufficient to entitle defendant to relief, and to find for plaintiff.

While the evidence is rather' uncertain in support of the various items of damage sought to be recovered by the defendant, yet there is evidence believed to be sufficient to require submission to the. consideration of the jury touching the damage. The plaintiff testified, apparently without objection, that one of the cylinders was cracked, and that he had to have it replaced, incurring expense in having the old cylinder taken off and the new one put on; that the frame was defective, and that he incurred expense in having it removed and a new frame installed, and that he incurred expense in returning these defective parts to the factory and in freight charges on the new parts, and several other items of expense which he claimed to have incurred in an ei'fort to bring the machine within the guaranty, or for the purposes of remedying the defects. The uncertainty is with reference to the amount of these items which he might he entitled to recover. However, he does testify that he paid a garage man $500 for labor and repairs on this car necessary to remedy defects. There are some items of expense to which he testified that perhaps should not be considered in the matter of damage; for instance, the expense of the whole of the 14 axles (there may be a right of recovery for some of these axles), and the expense of repairs and work done on the car at San Antonio.

Defendant Hill testified as follows:

“During the time that I had this car I think I paid in the neighborhood of something like $1,800 or $2,000 for repairing the car by reason of defects in it. Those charges were reasonable. That is what I bought cylinders for. That is what I bought frames for, paid freight bills, telegraph charges, and telegraph bills.”

The evidence tends to show that the contract price of the car was in the neighborhood of $8,200, and it tends to show that the car was inherently defective in some of its parts. IVe discover no evidence on the question of whether there was or was not a market value for the car in the condition received, or whether it had any value in that condition. Under the pleadings and under all the evidence the jury might, taking into consideration all the facts, have been able to determine the value of the ear in its condition when delivered, and therefore ascertained the damage upon this theory; but, aside from this, there were facts disclosed which might have authorized the recovery for specific damage incurred in repairing or replacing defective parts. We are awale of the rule that would require the defendant in this case to prove his damage, and we are not prepared to say that he has not introduced sufficient evidence to justify the submission of the cause under proper instructions as to his defenses, and are inclined to the view that he has done so.

In making the above observations we have had in mind Gutta-Percha & Rubber Co. v. City of Cleburne, 102 Tex. 86, 112 S. W. 1047, Graves v. Hillyer (Civ. App.) 48 S. W. 889, and 85 Cyc. 474, together with the authorities cited there under note 34. These authorities support the principle announced in this opinion.

It being the province of the jury to judge the facts proven and the weight to be given to the testimony, we are of opinion that the evidence required the submission of the issues arising on defendant’s pleadings and evidence. The court having peremptorily instructed against the defendant, and having peremptorily instructed in favor of the plaintiff, in our view deprive the defendant of a substantial right to have the jury pass upon the evidence offered in support of his pleadings, to that extent invaded the province of the jury, and committed fundamental error.

We are therefore of the opinion that the judgments of the Court of Civil Appeals and of the District Court should be reversed and the cause remanded for a new trial.

PHIDDIPS, O. J.

The judgment, as recommended by the Commission of Appeals, is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission upon the question discussed.
      .<>• — %Fn ■ other cases see same topic-and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    EVANS v. STATE.
    (No. 5290.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Criminal Daw <§=1099(6)- — Appeal—Fil-ins Statement of Facts — Time.
    In misdemeanor cases, the statement of facts must be prepared in 90 days, and if that is not done it must be filed before the transcript in the Court of Criminal Appeals, and cannot be sent up as an original paper.
    2. Criminal Daw <§=1106(3) —■ Failure to Obtain Statement oe Facts — Reversal.
    Where, through no want of diligence, appellant, on appeal in a misdemeanor case, is unable to obtain in due time a statement of facts from the judge, the judgment of conviction will be reversed.
    Appeal from Kaufman County Court; J. P. Coon, Judge.
    Tom Evans was convicted of theft of property under value of $50, and he appeals.
    Reversed.
    Huffmaster & Huffmaster, of Kaufman, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for theft of property under the value of $50:

The statement of facts is so presented that it cannot be considered, and appellant asks that the case be reversed for want of securing a statement of facts. The affidavit in connection with the question of diligence in securing the facts may be briefly stated as follows: The court adjourned about the 2d or 3d of April. An order was entered allowing 20 days in which to prepare and file statement of facts. Within 5 or 6 days after adjournment, the statement of facts was drawn up by the defendant’s attorney and presented to the county attorney, who refused to agree. It was then carried to the county judg'e, who promised that the statement of facts would be prepared in time. Efforts were made by counsel to have the evidence properly filed, but without suc■cess. Promises of the county judge, it seems, continued for about 90 days, after which time he refused to file same; at least, such is the intimation in the affidavit. There was no statement of facts filed prior to the time the record was made up and filed in this court, which occurred on the 10th day of December, 1918. The affidavit made by counsel, showing his failure to get a statement of facts, and that it was through no negligence on his part was filed in this court on the 22d day of January, 1919. A statement of facts was then prepared and filed in this court, but not in the county court, on the 3d day of February, 1919. Under the law this statement of facts should have been filed before the transcript was made up and embodied in the transcript as part of it. This evidence could not be considered because not part of the transcript, and it is sent up long after the transcript was filed in this court. It is not even filed in the trial court. This is an original statement of facts. As we understand the statute, in any case a statement of facts must be prepared within 90 days, and, if that is not done, same must be filed before the transcript is filed in this court, and in misdemeanor cases the evidence must be incorporated in the transcript, and cannot be sent up, as in felony cases, as an independent ■paper.

We desire again to call attention of the trial courts and counsel that matters occurring in preparing papers and transcripts that come to this court for its inspection and review should be governed by the procedure and practice as by statute prescribed. Slight attention to the preparation of the necessary papers of a transcript would avoid such troubles, and we express the hope that parties concerned, both court, and attorneys, will see promptly that all necessary papers relied upon in this court are prepared in ac•cordance with the statute and filed within reasonable time. It ought not to be necessary for this court to be called on to pass •on questions of this character.

Viewing this matter from the standpoint of the showing, we are of opinion that appellant should have the judgment reversed for want of obtaining a statement of facts, and it is, accordingly, so ordered.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    Ex parte NELSON.
    (No. 5304.)
    (Court of Criminal- Appeals of Texas.
    Feb. 12, 1919.)
    1. Paedon <⅜=>4 — Govebnor’s Pardoning Power — Legislative Limitations.
    Under Const, art. 4, § 11, the Governor may exercise executive clemency in relieving persons convicted of felony of all or any part of the term of imprisonment to which they are condemned by the judgment of the court, subject to no limitations by the Legislature other than the constitutional limitation as to remission of fines and forfeitures and as to treason.
    2. Pardon <⅞=^4 — Limitations on Pardoning Power — Conditions.
    The Governor, in exercising the pardoning power, may impose conditions upon the subject of it.
    3. Pardon <⅜=>4 — Limitations or Pardoning Power — Statutes.
    Vernon’s Ann. Code Cr. Proc. 1916, arts. 1057a and 1057b, relating to paroled prisoners, do not purport to limit or impose conditions on the Governor’s pardoning power.
    4. Pardon ®=»9 — Parole—Rearrest on Another Charge.
    One convicted of murder, released on parole by the Governor, might nevertheless be arrested and detained under a process issued on an indictment for another murder.
    5. Habeas Corpus ⅞»30(1) — Grounds for Discharge — Informality oe Commitment or Warrant.
    In view of Vernon’s Ann. Code Cr. Proc. 1916, art. 205, where defendant is held for trial under indictment for murder, the court will not order his discharge on habeas corpus merely because the commitment or warrant of arrest was informal.
    Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
    Application for habeas corpus by Robert Nelson.
    Application dismissed.
    John T. Duncan, of La Grange, for appellant.
    C. M. Cureton, Atty. Gen., and E. A. Berry., Asst. Atty. Gen., for the State.
   MORROW, J.

Relator was convicted of murder, and sentenced to confinement in the penitentiary for a period of 25 years. The Governor of the state has issued the following proclamation granting him parole:

“Whereas, at the December term, A. D. 1917, of the district court of Fayette county, state of Texas, Robert Nelson was convicted on a charge of murder, and his punishment assessed at 5 to 25 years’ confinement in the state penitentiary ; and
“Whereas, it appeared that appellant, Robert Nelson, has now served nearly a year of his sentence with a clear prison record and eight days’ overtime to his credit:
“Now Hon. J. L. Hunter, of Austin, Tex., is asking for his parole.
“And whereas, Hon. J. L. Hunter, of Austin, Tex., agrees to pay the said Robert Nelson $15 per month for his services as general laborer, and .he also agrees to furnish him with his board and lodging, take a friendly interest in him, and to report to the prison commissioners each month in regard to his conduct and health;
“Whereas, the board of prison commissioners, who investigated the facts surrounding this case, recommended that the applicant be permitted to go out of the confines of the prison inclosures, and yet remain in the boundaries of the state of Texas, subject to the rules of parole as provided by the board of prison commissioners:
“Now, therefore, I, W. P. Hobby, Governor of Texas, do by virtue of the authority vested in me by the Constitution and laws of this state, hereby, for the reason specified, now on file in the office of the secretary of state, grant the said Robert Nelson a parole, conditioned on his good behavior and observance of the law and rules under which application for a parole was made.”

He was at the time of Ms arrest, hereinafter referred to, enjoying the privileges extended to him by the executive in the proclamation mentioned. He is under indictment for murder in another and different case which is pending on the docket of the district court of Fayette county. The clerk of that court issued a warrant for his arrest unde/ that indictment, and he is held in the county jail of Fayette county awaiting the meeting of the district court for trial.

His application for habeas corpus is based upon the proposition that the authority of the clistrict court to cause his detention by reason of the indictment of murder pending would' be limited to the power of that court to issue a bench warrant bringing him before the court while in session in order that he might undergo trial.

We find in Vernon’s Annotated Code of Criminal Procedure, arts. 1057a and 1057b, the following:

“Art. 1057a. Meritorious prisoners who are now or may hereafter be in prison under a sentence to penal servitude may be allowed to go upon parole, outside of the building and jurisdiction of the penitentiary authorities subject to the provisions of this act, and to such regulations and conditions as may be made by the board of prison commissioners, with the approval of the Governor of this state, and such parole shall be made only by the governor, or with his approval.
“Art. 1057b. Paroled Prisoners to Remain under Control of Board of Prison Commissioners; Retaking; Warrants. — While on such parole such prisoners shall remain under the control of the board of prison commissioners and subject at any time to be taken back within the physical possession and control of the said board of prison commissioners as under the original sentence, but such retaking shall be at the direction of the Governor, and all orders and warrants issued by said board of prison commissioners under such authority for the retaking of such prisoners shall be sufficient warrants for all officers named therein to return to actual custody and parole convicts, and it is.hereby made the duty of all officers to execute such orders as ordinary criminal processes.”

These provisions are also found in Acts 1911, p. 64.

Section 11 of article 4 of the Constitution is as follows:

“In all criminal cases, except treason and impeachment, he shall have power, after conviction, to grant reprieves, commutations of punishment, and pardons; and, under such rules as the Legislature may prescribe, he shall have power to remit fines and forfeitures. With the advice and consent of the Senate, he may grant pardons in cases of treason; and to this end he may respite a sentence therefor, until the close of the succeeding session of the Legislature: Provided; that in all cases of remissions of fines and forfeitures, or grants of reprieve, commutation of punishment, or pardon, he shall file in the office of the secretary of state his reasons therefor.”

Both in the passage of the law mentioned and the making of the proclamation referred to there is contained a recognition of the fact that the abridgment and modification of the terms of imprisonment contemplated are referable to the authority to exercise executive clemency which is conferred upon the Governor of the state in the constitutional provision mentioned. The Governor possesses under tMs provision the power to exercise executive clemency in relieving persons convicted of felony of all or any part of the term of imprisonment to which they are condemned by the judgment of the court. This power is vested in the Governor and is subject to no limitations by the Legislature other than that mentioned in the constitutional provision with reference to the remission of fines and forfeitures and with reference to cases of treason. The Governor, in the exercise of executive clemency, may impose conditions upon the subject of it. It is said in Carr v. State, 19 Tex. App 635, 53 Am. Rep. 395, and other cases, that “a pardon is conditional when it does not become operative until the grantee has performed some specified act, or when it becomes void upon the occurrence of some specified event.” See Harris’ Constitution, 'p. 335, and cases cited. And the pardoning power embraces only cases in which there has been a conviction. Camron v. State, 32 Tex. Cr. R. 180, 22 S. W. 682, 40 Am. St. Rep. 763; Cyc. vol. 29, p. 1570.

It is not within the power of the Legislature to enlarge or restrict the pardoning power vested in the executive, nor to impose conditions upon which it may be exercised, nor requirements touching the conditions precedent or subsequent which are to be imposed by the executive upon the convict, and the acts mentioned do not purport to do so. In fine, the pardoning power is vested in a separate branch from that to which the legislative authority is given. While the act of the Legislature in question declares that a paroled prisoner shall remain under the control of the board of prison commissioners, it in terms provides that his retaking into physical possession shall be only at the direction of the Governor. An interesting discussion of the principles of law governing the exercise of the'pardoning power and a copious citation of authorities thereon will be found in the case of Snod-grass v. State, 67 Tex. Or. R. 648, 150 S. W. 178, and also 67 Tex. Or. R. 615, 150 S. W. 1C2, 41 L. R. A. (N. S.) 1144, wherein it was held that an act of the Legislature attempting to vest in the " district courts authority to suspend the sentence and ultimately discharge the convict transcended the authority of the legislative branch of the government and encroached upon that of the executive department.

Our view of the law as it relates to the instant case is that such privileges as the relator enjoys under the facts stated do not arise from the parole law mentioned, but rest upon the power of executive clemency vested in the Governor; that at the time of his arrest he was not ,in the penitentiary, nor did there exist in the penitentiary authorities any right or power to subject him to imprisonment, unless, as a condition precedent therefor, the Governor so directed. Such liberty as he enjoys under the parole proclamation is referable alone to the pardoning power, and the proclamation is to be classified as a conditional pardon.

From this view of the law the conclusion follows that his status was not such as to prevent his arrest and detention under a process issued by virtue of an indictment for murder.

Some question is raised concerning the form of the process or warrant under which he is imprisoned. It being conceded that he is under indictment for murder returned by the grand jury of Fayette county, and that under such indictment he is held in custody to await his trial, we are of the opinion that we are not authorized, under the law, to order his discharge because of an informal commitment or warrant of arrest. Article 205, Vernon’s Ann. Code Or. Proc. is as follows:

“If it shall appear that the applicant is detained or held nnder a warrant of commitment which is informal, or void; yet, if from the document on which the warrant was based, or from the proof on the hearing of the habeas corpus, it appears that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or held to bail by the court or judge trying the application under habeas corpus.”

Applying this statute to the case in hand, we are of opinion that it is not the duty of this court to grant the application for writ of habeas corpus. Its dismissal is therefore ordered.
      ®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LATTIMORE, J.

text:
    MATHIS v. STATE.
    (No. 5273.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Law ©==>393(1) — Evidence — Admissibility.
    In a trial for adultery, evidence given by defendant in a divorce action, over his indicated objection to incriminating himself where he was compelled by the court, without warning as to his rights, to admit the adultery, is not admissible.
    2. Witnesses ©=>302, 307 — Incrimination.
    Under Bill of Rights, Const, art. 1, § 10, providing that no man shall be compelled to give evidence against himself, when a witness makes known his objection in court, the trial court should either desist or further inquire into cause of his hesitation and inform him of his privilege.
    Appeal from Kaufman County Court; J. P. Coon,xJudge.
    James Mathis was convicted in the county-court of adultery, and his punishment fixed at a fine, and he appeals.
    Reversed and remanded.
    Lee Ii. Stroud, of Kaufman, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted in the county court of Kaufman county of the offense of adultery, and his punishment fixed at a fine of $500.

Appellant raises several questions on this appeal, but one of which we deem it necessary to discuss.

On the trial below the state offered in evidence against appellant his own statements given in testimony on a divorce trial in the district court of said county, in which divorce case the alleged paramour of appellant in the instant case was one of the parties. The appellant’s bill of exceptions shows that, when this testimony was offered in the instant trial, objection was made thereto upon the ground that same was improperly obtained in the district court and in such manner as to be in violation of appellant’s constitutional privilege against incriminating himself. The county judge overruled the objection, and the testimony as given by him in said district court proceedings was placed before the jury. In this, we think, there was -error.

As shown by the record, when appellant was a witness in said district court proceedings, he was asked “if within his knowledge Bessie Killeen had on or about the 1st day of August, 1916, committed sexual intercourse with a man not her husband,” and to this he answered affirmatively, stating that she had done so. He was then asked to state who the -man was with whom she had committed the act, and we quote from the bill to show what occurred, as follows:

“When the witness told the court that he wished to be excused from further answering about the man or who the man was, and then said attorney for J. B. Killeen desisted from further inquiry and stated that ho would not examine the witness further; whereupon the court (Joel R. Bond, Judge) on cross told the witness, Mathis, to' state who the man was that he referred to, when the attorney for J. B. Killeen stated to that court that he objected for the witness because to further answer or to state who the man was the witness would have to incriminate himself, but such objection being made by the attorney for J. B. Killeen, and that court finding that he was not attorney for the witness, who, though unwilling to answer, did not state himself such grounds of objection to that court, that court overruled such objection so made by Killeen’s attorney, and told the witness who was uninformed of his right to make that objection, to then answer the question, whereupon he answered that he himself was the man, and in further answer to the court’s crosses was required to state and did testify of said sexual intercourse from its commencement until the said act about August I, 1916.”

Section 10 of our Bill of Rights plainly states that no man shall be compelled to give evidence against himself. This court, in Owen v. State, 7 Tex. App. 329, held that this privilege could be claimed by the witness ror himself but not for either party by attorney, further holding, however, that when the question was raised the court ought to instruct the witness that he could not be compelled to give an answer that would incriminate him or subject him to a criminal prosecution.

In the instant case no such instruction was given to the witness, but, on the contrary, when he asked to be excused from giving the name of the party, and the attorney trying the case desisted from questioning him, the trial court took the matter in hand and directed said witness to tell the name of the man, which he did, stating that he himself was the party with whom Such illicit relations were had and that they had extended over a period of several months. True, the appellant, as such witness, did not expressly state his objection to giving such incriminating testimony in the language of ■"the courts. The unlearned are not’ expected, nor is any one required, so to do. When a witness makes known in any language his objection to giving incriminating testimony, the trial court should either desist or further inquire into the cause of his hesitation and inform him in language understood by the witness that he does not have to incriminate himself. It is not always compatible with the ends of justice for the matter to rest here, but it may be necessary for the court in a proper case, and perhaps out of the presence of a jury, to inquire further into the matter in order to ascertain if the objection of the witness is real and his' reasons genuine; but when ascertained, and when the witness, after being informed, persists in his objection, if such evidence be incriminating it should never be received, and certainly should never be reproduced against an unwilling witness, as was done in this case. The bill of exceptions sufficiently raises the point.

We do not agree with able counsel for appellant in the other contentions made by him. The statements made by appellant in said district court proceedings were material testimony and were incriminating.

For the error of the court below in admitting them in testimony here, the judgment is reversed, and the cause remanded.

       ⅛ other cases see same topic and KEY-NUMBER Id all Key-Numbered Digests and Indexes


text:
    WINFREY v. STATE.
    (No. 5260.)
    (Court of Criminal Appeals.of Texas.
    Feb. 12, 1919.)
    1. Larceny <⅞=71(3), 73 — Instructions — Ownership op Property.
    In a prosecution for cattle theft, it was error to refuse to charge that if jury believed the animal stolen to be the property of defendant, or one of his family, or there was reasonable doubt of it, or if defendant believed himself or a member of his family the owner, they should acquit.
    2. Criminal Law <§=»845 — Instructions — SUEETCIENCY OE EXCEPTIONS.
    In a prosecution for cattle theft, an exception to the court’s refusal to charge, as requested, that the jury .might acquit if they believed the animal stolen to be the property of defendant or one of his family, or if defendant believed himself or a member of his family the owner, held sufficient to call the court’s attention to the error.

      3. Criminal Law <§=>804(3) — Oral Instructions.
    In a prosecution for cattle theft, whore the court, on retirement of jury, without request, no improper argument having boon made or additional evidence given, verbally instructed them not to discuss the fact that defendant did not testify, nor to arrive at the verdict by chance, such instruction, being verbal, constituted reversible error, in view of Vernon’s Ann. Code Or. Proc. 1916, arts. 735, 737a, 738, 740.
    4. Criminal Law <®=>7G2(5) — Instructions— Verdict by Chance.
    In a prosecution for cattle theft, it was error to instruct the jury not to find the verdict by lottery or chance, since the idea was conveyed that the verdict would be unfavorable to defendant.
    5. Griminal Law <§=>768(1) — -Cautionary Instructions — Verdict by Lot.
    Where a charge is given, cautioning the jury in a criminal case not to find their verdict by lot or chance, the jury should be admonished that they must first ascertain the fact that defendant is guilty.
    6. Larceny <§=>27 — Principals and Accessories — Original Taker.
    In a prosecution for cattle theft, that defendant’s wife took the animal stolen and put it in their inclosure in defendant’s absence, and without his consent, does not constitute him an original taker, notwithstanding he subsequently sold the animal, believing himself or a member of his family to be the owner.
    Appeal from District Court, San Jacinto County; E. W. Love, Special Judge.
    Joe Winfrey was convicted of cattle theft, and appeals.
    Reversed and remanded.
    J. V. Lea, of Houston, J. M. Hansbro, of Cold Springs, and H. E. Kahn, of Houston, for appellant. E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of cattle theft; his punishment being assessed at two years’ confinement in the penitentiary.

The state’s contention is that Reese, the alleged owner, owned a calf, which he branded and turned out with a bell appended to its neck. He had not seen the calf for three or four years. Some miles away a similar calf was found in the range. It ran in the range for some time, maybe two or three years, or longer. Appellant sold the animal. There was claimed to be a brand upon the animal, given by Reese. After the animal was sold, this brand was examined by several parties. What the brand was is very indefinite. The testimony of those who examined the brand, except one, was to the effect that it could not be made out. Mr. Kuykendall testified he examined it, and run his finger over it, and' came to the conclusion that the brand was “F R,” the brand claimed by the alleged owner, Reese. Appellant’s testimony shows that the animal belonged to himself and family, or rather that it belonged to his boys. The mark on the animal ivas their mark.

In regard to the mark there is no dispute. It is claimed, however, by the state, that the animal did not belong to appellant or any of his family. The wife of appellant testified she raised the calf, and that it disappeared and was gone two or three years, or longer, when it returned. She recognized the animal, and claimed it, and turned it into then-lot or inclosure, and was assisted in doing so by two gentlemen whose names were Hoot and Finch. They did not succeed in having these two witnesses present; however, they had attended court at previous terms. The appellant’s wife testified positively to the identity of the animal, and that she knew it and raised it; that the mother died when it was a calf, and she gave it to one of her boys, and they had marked it. The mark given by her son and known to be his was on the ears of the animal. There is some discrepancy in the evidence as to what the mark of Reese was. The wife of appellant was not contradicted as to the fact that she took up the animal and put it in their inelosure, and within a short time after this was done appellant sold the animal to Tom Banks. There came up a conversation between the witness Kuykendall and appellant about this animal, and this conversation grew out of the fact that the matter had gotten under investigation, and appellant remarked, among other things, to the witness that he did not know whether the animal belonged to them or not —that his wife said it did. The witness Kuykendall was a state’s witness, and this was elicited by the state in his examination in chief.

The court charged the jury, with reference to this question of ownership and title, that if they should believe from the evidence that said one head of cattle was the property of Joe Winfrey, or one of his children, at the time of the taking as charged in the indictment, they should acquit. The bill of exceptions recites that appellant excepted to the charge of the court, the language being too general, and in this connection asked the court to charge the jury that if they should believe this animal to be the property of appellant, or one of his family, or there was a reasonable doubt of it, they should acquit. This charge was refused. We are of opinion it should have been given. There is some question raised by the state that the exception to the court’s charge was not sufficient. The language of the bill is as follows:

“ * * * After the court had prepared and submitted his charge to counsel for inspection and objections thereto, if any, the defendant objected and excepted to said charge, and requested ⅛⅜ court to give and charge the jury as lows: fol-
“Gentlemen of the Jury: You are further charged that if you believe from the evidence that said one head of cattle was the property of the said Joe Winfrey, or one of his family, at the time of the taking as charged in the indictment, you will acquit the defendant and say by your verdict, ‘Not guiltyor if you believe from the evidence that at the time said animal was sold to Tom Banks that the defendant Joe Winfrey, from the statement of his wife, believed the said animal to be the property of himself or one of the family, and acting on said belief sold said animal, you will find him not guilty, although you may believe that said animal was not the property of said Joe Winfrey or any of his family.”

The writer is of opinion that this sufficiently called the attention of the court to the charge given by the court, in view of the language employed in ''the charge of the court being practically repeated, and the additional clause of the charge in the alternative, that if appellant believed the animal belonged to some member of his family they should acquit. The object and purpose of giving the charge to counsel for inspection and objection, if any to be desired, is that the attention of the court may be directed to any error in the charge as given, viewed from the standpoint of the criticism. If the court is sufficiently informed of this to understand tlie error pointed out, or claimed to exist, and refuses then to correct it, the writer is of opinion that this is sufficient basis for the accused to take advantage of the refusal' to correct the charge as claimed. The charge should have been given as requested.

Another bill of exceptions recites that after the written charge had been submitted to the jury, and after argument of counsel had been concluded by the state and defendant, and without any request from either the state or defendant, and against the wishes of the defendant, as the jury was retiring or leaving the jury box, the court addressed them verbally, as follows:

“Gentlemen: You will not discuss the fact that Mr. Winfrey did npt take the stand in this case, as this is the right accorded him by law; and you will not arrive at your verdict by lottery or chance.”

Objection was urged at the time, as it was in the motion for new trial. The motion for new trial is supported by the affidavit of J. H. Hansbro'that these matters occurred as stated. This is also sustained by the statement or the trial judge that the matters occurred as stated. The bill of exceptions is also approved. We think this constitutes reversible error. The statute (article 735, Vernon’s O. O. P.) requires that the charge shall be given in writing, definitely setting forth the law applicable to the case. Article 738, O. C. P., provides that the charge shall be f certified by the judge and filed among the papers of the case, and shall constitute a part of the record. Article 740 reads as follows:

“No verbal charge shall be given in any case whatever, except in cases of misdemeanor, and then only by consent of the parties.”

Th'e decisions all are to the effect that in felony cases the charge must be in writing. A great number of these cases is found listed on page 500, Vernon's Ann. O. O. P., in note under article 740. Article 737a, C. C. P., provides that after the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes in his main charge as he may deem proper, and the defendant or his counsel shall have the opportunity to present their objections thereto, and in the same manner as is provided in article 735,' and thereupon the judge shall read his charge to the jury as finally written, together with any special charges given. After the argument begins, no further charge shall be given to the jury, unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony, and in the event of such further charge the defendant or his counsel shall have the right to present objections in the same manner as is prescribed in article 735: Provided that the failure of the court to give the defendant or his counsel a reasonable time to examine the charge and specify the ground of objection shall be subject to review, either in the trial court or in the appellate court. It will be observed, under this record, that when the main charge was handed counsel in a general way they excepted and asked special instructions covering one feature of the case, which has been already mentioned, and which the court did not give, nor did he correct his charge to meet that objection. The verbal charge given as the jury was retiring was not presented to counsel for appellant, and they had no qpportunity of inspecting it. It was not written, but given verbally, as the jury was retiring. The statute provides that no charge shall be given the jury unless one of the three circumstances mentioned in the statute occurs: Improper argument, or request by the jury, or after additional testimony has been given. The verbal charge given by the court was not within any of these exceptions, nor did the appellant or his counsel have an opportunity to file exceptions to it, and the charge given was not in writing but verbal. We are of opinion that the question was settled favorably to appellant’s contention in Abrigo v. State, 77 Tex. Cr. R. 285, 178 S. W. 518, and Hart v. State, 47 Tex. Cr. R. 156, 82 S. W. 652. As before stated, the exception was reserved at the time of the verbal charge, and it was also brought forward in the motion for new trial, and that the facts occurred as stated in the motion is shown by the affidavit of Mr. Hansbro in the motion for new trial, which is certified by the trial judge to be correct. Judge Prendergast, in rendering the opinion in the Abrigo Case, supra, said:

“Article 737a, as added by said act, expressly provides that the failure of the court to give the defendant a reasonable time to do this [examine the charge] giyes him the right, in effect, to make his objections for the first time in his motion for new trial. * * * Proper complaint was made of this failure of the trial judge in the lower court, in appellant’s sworn motion for a new trial. So that, under the circumstances and the statute, appellant has properly raised and preserved this question.”

Had the court given the charge in writing and at the proper time, there is one defect in it to which attention might be called. In charging the jury not to find their verdict by lottery or chance, the idea is conveyed that the verdict would be unfavorable to "the defendant, as shown by the authorities. Hart v. State, 47 Tex. Cr. R. 156, 82-S. W. 652. Where a charge is given, cautioning the jury not to find thqir verdict by lot, the jury should be admonished that they must first ascertain the fact that defendant is guilty; in other words, that the jury should be cautioned that, if they should find the defendant guilty, then they should not'decide his punishment by lottery or chance. For these errors we think the judgment should be reversed. Both phases of the verbal charge as given are error.

There is another question that is raised, and the objections, if any, to it are rather remote. This matter is mentioned, so that upon another trial this phase of. the testimony will be covered by the court’s charge. It is this: The wife’s testimony shows clearly, and is uncontradieted, that she took up the animal and put it in the inclosure. The evidence rather excludes the fact that appellant was present, or had anything to do with the original taking. This occurred about a week or more before appellant sold the animal to Tom Banks. If the wife took up the animal without concert on the part of appellant, and he was not present and not connected with the original taking, conceding the animal to be the property of Reese, and not owned by appellant or his family, he would not be a principal. In order to constitute a principal, the accused must be instrumental as an original taker. The fact that the wife took the animal and put it in their inclosure in appellant’s absence would not constitute him an original taker under the facts contained in this record. If he subsequently found that his wife had taken the animal up, and he sold it, and his part of the transaction was fraudulent — rthat is, he knew the property to be stolen at the time he took it — it might constitute him a receiver. This is a very important fact in the case as we understand it, because the state introduced his explanation or statement that his wife told him the animal was their property, and that he himself did not know, as his wife took up the animal; and, taking the two statements together, we have two propositions: First, if appellant believed it was his, or belonged to his family, and he sold it, he would not be guilty of anything; but, if -he did not so believe, as contended by the state, and sold it, and did not participate in the original taking, he would not be guilty under the indictment. This matter is mentioned, so that upon another trial the law with respect to this phase of -the case should be properly given in charge.

The judgment is reversed, and the cause remanded.
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