author: HIGHTOWEB, C. J.

text:
    DAVIDSON v. HOUSTON E. & W. T. RY. CO.
    (No. 168.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 22, 1917.
    Rehearing Denied April 18, 1917.)
    1. Trespass to Try Title @=332 — Petition— Bailroad Bight oe Way — Ownership oe Fee.
    Petition in trespass to try title showing only that when, 14 years before, plaintiff condemned for right of way the land in question, defendant was the owner of the foe, is not subject to demurrer predicated on its affirmatively showing that defendant is still such owner; as, for all it shows, he may have disposed of his interest.
    [Ed. Note. — For" other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41.]
    2. Trespass to Try Title @=332 — Petition— Bailroad Bight oe Way.
    Petition in trespass to try title, not showing that defendant is the owner of the fee of the land in question, condemned for plaintiff’s right of way, need not show in what way defendant is interfering with plaintiff’s easement, or how his possession interferes with or prevents plaintiff using the land for the purposes for which it holds and owns the easement, though it would have to show this if showing such ownership.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. §§ 39⅜1.]
    3. Eminent Domain @=3319 — Eight oe Way —Use and Possession by Fee Owner.
    The owner of the fee of land condemned for railroad right of way is entitled to possession and use thereof not interfering with its use for right of way purposes, and it is entitled to judgment dispossessing him of the land only where and to the extent that its petition alleges, and the evidence shows, that his possession and use of a part thereof is inconsistent with or prevents its use of the same for such purposes; so that, it merely appearing that at certain points his fence extends over its right of way line from 3 to 18 feet, judgment should not be entered for it against him for exclusive possession of the right of way.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 847-850.]
    4.Bailroads @=373(1) — Bight oe Way — Use oe Dirt by Bailroad.
    A railroad may as against the owner of the fee of a part of its right of way use dirt therefrom for purposes of the road outside such part of the right of way.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 179.]
    Appeal from District Court, Nacogdoches County; B. D. Guinn, Judge.
    Action by tbe Houston East & West Texas Bailway Company against Jno. P. Davidson. Judgment for plaintiff, and defendant appeals.
    Beversed and remanded.
    Geo. F. Ingraham and C. A. Hodges, both of Nacogdoches, for appellant. McMeans, Garrison & Pollard and Baker, Botts, Parker & Garwood, all of Houston, for appellee.
   HIGHTOWEB, C. J.

Tbis suit was filed by the appellee, Houston East & West Texas Bailway Company, a railroad corporation, against appellant, Jno. P. Davidson, in tbe district court of Nacogdoches county, on May 16,1914, and went to trial and final judgment was entered on February 21, 1916. A jury was demanded, but when tbe evidence was concluded, tbe trial court peremptorily instructed a verdict for appellee, and entered judgment upon such verdict in favor of ap-pellee, from which judgment appellant has duly appealed to tbis court.

We deem it unnecessary to set out tbe pleadings in full, but think it will suffice to state substantially tbe allegations found in appellee’s petition (appellee being plaintiff below) and those contained in appellant’s answer (be being defendant belo.w).

Appellee alleged tbat on September 18,1888, a judgment was entered in the county court of Nacogdoches county in favor of tbe Houston East & West Texas Kailway Company, ap-pellee, and M. G. Howe, ,who was then receiver of said railway company, agbinst Jno. P. Davidson, appellant here, for 2.81 acres of land for right of way purposes. Tbe judgment in that condemnation suit describes tbe 2.81 acres of land there condemned by metes and bounds, and, as we construe tbe pleadings in tbis case, tbe 2.81 acres of land for tbe recovery and possession of which appellee brought tbis suit is tbe same land tbat was condemned for right of way purposes in favor of appellee in said condemnation suit. It was further alleged by appellee in tbis suit tbat it is no.w tbe owner of said land for right of way purposes, as described above, and tbat it is entitled to tbe possession and use of tbe same for right of way purposes, and tbat tbe defendant, appellant here, has entered upon and taken possession of a part of said right of way, and is now willfully and unlawfully withholding tbe same from the use and possession of appellee, and the prayer is:

“Wherefore plaintiff prays that the defendant be duly cited to answer this petition, and that on final hearing hereof the plaintiff have judgment for the right and possession of the property above described for right of way purposes as against the defendant, jno. P. Davidson, and for costs and general relief.”

The petition is indorsed:

“Houston East & West Texas Railway Company v. Jno. P. Davidson. Suit in Trespass to Try Title, as Well as for Damages.”

Appellant, defendant below, in due time filed his answer, and thereafter amended same, and by his amended answer first interposed a general demurrer to plaintiff’s petition, and then directed against the same two special exceptions. Appellant further answered by denying all and singular the allegations of appellee’s petition, and alleged that he was not guilty of the .wrongs and trespasses therein complained of, etc. Appellant further denied in his answer that he was in possession of any part of appellee’s right of way, as described in appellee’s petition. And by way of cross-action appellant in his answer alleged that appellee had condemned the land claimed in its petition for right of way purposes only, and that appellee was entitled to use the same for right of way purposes only, and, in effect, alleged that appellee had been using the land so condemned for other purposes than that for which the same was condemned, and further that appellee had removed a great deal of the dirt from said right of way, and hauled the same away, and used the same for purposes other than right of way purposes, and that such dirt was the property of appellant, and claimed damages against appellee for the value of such dirt so removed in the sum of $1,000, and prayed a recovery therefor. This states substantially the issues made by the parties below, and in view of the disposition we shall make of this case, we deem it unnecessary to state more in detail their contentions. We might say, however, that appellee filed a supplemental petition, excepting to appellant’s cross-action, etc., and denying his allegations therein.

It seems that all exceptions of both parties were by the trial court overruled, and the first assignment of error by appellant challenges the action of the court in overruling his general demurrer. The proposition under this assignment is:

“When a petition in trespass to try title shows on its face that the plaintiff’s title is an easement acquired from the defendant, who is the owner of the fee, a general demurrer to it should be sustained, because it shows no right in the plaintiff to the title or possession as against the owner of the fee.”

If we should concede that this proposition of law, thus broadly -stated, is correct, still it would not follow that this assignment ought to be sustained. This proposition assumes that appellee’s petition shows upon its face that appellant was the owner of the fee in the land here sued for at the time of the filing of this suit, but this assumption is not correct. It does appear affirmatively from appellee’s petition that at the time the 2.81 acres of land now sued for by appellee were condemned in 1888 appellant was then the owner of the fee, but it does not appear from the face of the petition that he has remained the owner of the fee, and was such owner at the time of the filing of this suit, and, so far as disclosed by appellee’s petition, this court could not tell whether appellant had disposed of whatever interest he had in the land condemned before the filing of this suit, or whether he still retained such interest, and for that reason alone, without discussing the proposition further, we overrule appellant’s first assignment of error.

Appellant’s second assignment is directed against the action of the trial court in overruling his special exception to plaintiff’s petition, and the proposition under this assignment is:

“In cases of trespass to try title based upon an easement in possession of the plaintiff, the petition alleging that defendant holds part of it from plaintiff, the petition should describe the land'sued for, so the defendant would know what he is sued for, and how and in what way he is interfering with the easement.”

If it were true, as assumed by appellant, that appellee’s petition disclosed upon its face that appellant was the owner of the fee in the land sued for herein, and appellee was only entitled to an easement therein, as against appellant, at the time this suit was filed, then we think that appellant would be correct in his contention that appellee’s petition should show affirmatively in what way appellant is interfering with such easement, or how his possession interfered with or prevented appellee from using the land for the purposes for which it held and owned the easement therein; but, since it does not appear from appellee’s petition that appellant had any interest of any nature in this land at the time of this suit below, we think that this special exception was correctly overruled, and we therefore overrule this assignment of error.

Appellant’s third assignment of error raises, in effect, the same proposition of law raised by the second assignment of error, and for the same reason this assignment is overruled.

We have examined appellant’s fourth, fifth, sixth, and seventh assignments of error, and, without discussing the same at length, we are of the opinion that the same should he overruled.

Appellant’s eighth ’and ninth assignments of error raise substantially the same question, and are submitted as a proposition, and challenge the action of the trial court in directing a verdict in favor of appellee for the possession of the 2.81 acres of land claimed for right of way purposes, and in entering judgment on such verdict in favor of appel-lee for the possession thereof, and further decreeing and ordering that appellant vacate and remove and he dispossessed of said land, because, as claimed by appellant, the evidence showed that appellee held only an easement in said land for tlie purposes of a right of way, and that appellant was the owner of the fee in the land, and was entitled to possession and use thereof so long as such possession and use did not interfere with the use of same by appellee for right of way purposes.

After a careful examination and consideration of these assignments and the authorities in this state bearing upon the proposition of law thereby raised, we think that these assignments should be and they are sustained. We understand it to be the law of this state, as construed by our appellate courts, that where land is conveyed to a railroad company for right of way purposes 'only, or where such land is condemned for right of way purposes only, the railroad company, in either instance, acquires only an easement in such land, and the fee therein remains in the owner of the land conveying the same for right of way purposes, or in him against whom the same may be condemned for right of way purposes, and since it does appear with reasonable certainty from the evidence adduced on the trial that appellant was the owner of the fee in this 2.81 acres of land sought to be recovered by appellee, and since it does not appear from the pleadings of ap-pellee that appellant’s possession of a part thereof and the use to which he was putting the same was inconsistent with or prevented appellee from using the same, or interfered with appellee in the use of the same for right of way purposes, the court was in error in Instructing a verdict in favor of appellee as against appellant for the recovery of same, and in entering judgment dispossessing appellant from such land. The evidence does disclose that appellant’s fence was over appel-lee’s right of way at certain points, varying from 3 feet to 18 feet over appellee’s right of way line, but, as there was no allegation in appellee’s petition that appellant had such land fenced, or that appellant’s use or fencing of the same in any manner interfered with appellee’s use of such right of way for the purposes for which the same was condemned, we think that the court could not correctly enter a judgment in favor of ap-pellee for the exclusive possession of such right of way as against appellant, the owner of the fee therein, and dispossessing appellant from the same.

In the ease of Olive, Sternenberg & Co. v. S. & E. T. Ry. Co., 11 Tex. Civ. App. 208, 33 S. W. 139, this question was fully discussed by the Galveston Court of Civil Appeals, speaking through Justice Williams, and, among other things, it was said:

“Hence the conveyance of the right of way, as between the grantor and the gi-antee in the deed here in question, conferred upon the railway company the privilege of putting any and all parts of the strip 200 feet wide to all uses for which a right of way may be employed, under the law of this state, in the construction, maintenance, and operation of a railway. But the title to the fee remained in the grantor, and his right to enjoy the property was impaired only to the extent necessary to the full exercise by the grantee of the rights acquired by it under the conveyance. And here a conflict of opinion has arisen among the courts as to the co-relative rights of the owner of the fee and the owner of the right, some holding, as matter of law, that the natere of the use of the right of way essential in the operation of a railway is such as to necessitate the entire possession and control of the soil burdened with the right, and to exclude the owner of the fee from any concurrent use or enjoyment of it whatever, and others holding that, while the right of the company is the paramount one, and the owner cannot impede its full exercise or put the land to uses inconsistent with its full exercise, still it is not of such a nature as to prevent the use of the land by the owner for any purpose at all; in other words, that some uses by the owner are consistent with the full exercise by the railway company of all its rights and the accomplishment of all of its ends. The latter view is the one generally held and has been expressed in a number of opinions in this state. Calcasieu Lbr. Co. v. Harris, 77 Tex. 22 [13 S. W. 453]; Lyon v. McDonald, 78 Tex. 71 [14 S. W. 2651, 9 L. R. A. 2951; Muhle v. New York Texas & Mexican Ry., 86 Tex. 459 [25 S. W. 607].
“Counsel for appellee urge that the cases referred to have not definitely settled the question in this state, and insist that the law is correctly laid down in the line of decisions first mentioned, but, if the question is to be viewed as an open one, it seems to us that those decisions are incorrect, because they are based upon an incorrect assumption of a fact. Common observation teaches that the owner of the fee may use the land for some purposes without interfering with the operation of the road, and without hindering the company in the exercise of any right. The right to fence the right of way given by statute and the duty to keep it free from nuisances, combustible material, and the like, as declared by the courts, may not conflict with the use of the land by the owner for some purposes. The tract may not be fenced in any place, and cannot be fenced at all places. Combustible material and noxious matter may be kept off the right of way, and still the owner need not necessarily be excluded from all use of it at all times and places. And a particular use of the land by the owner may not obstruct or hinder the exercise of any right or the performance of any duty. But if, in any instance, the right to use the land claimed by the owner is, in fact, irreconcilable with the right vested in the railway company, the latter must prevail. So the question is whether or not the use made of the right of way by the owner of the fee, in this case, is such as is inconsistent with the rights of the railway company. As we have seen, the company’s rights extend to every part of the strip described in the deed. It has the right at all times and places to have such access to and .use of the land as is necessary to enable it to perform any duty or accomplish any end which the law requires or permits it to perform or accomplish upon the right of way. The uses to which it may put its right of way include the building of side tracks, buildings, telegraph lines, and other structures necessary for its business, the making of cuts and embankments, taking material for its necessary building purposes, the inclosure of its track with fences, and the keeping of its premises in proper and safe condition for the prosecution of its business and the protection of others from injuries to result from any of its omissions. Hence a possession taken or use made by the owner of the fee of a portion of the land over which these rights extend, which necessarily during its continuance excludes the owner of the right of way from any use of or access to the portion so held or used, would be an invasion of the right of the latter. It cannot be held that an exclusive possession of a portion of the land charged with the easement by the owner of the fee is consistent with the rights of the person entitled to the easement to put the land, to such uses as those mentioned.”

In the case from which the above language is quoted it appeared that the possession of the owner of 'the fee and the uses to which he put the company’s right of way amounted to an exclusive possession by the owner, and were entirely inconsistent with and absolutely prevented the railroad company from using the land so possessed by the owner for right of way purposes at all, and in that case the owner of the fee was required to remove several buildings which were on the company’s right of way, and in close proximity to its tracks, because such buildings amounted to exclusive possession and appropriation by the owner of the fee, and the trial court therefore granted the prayer of the railway company for the removal of such buildings from its right of way, and the ’Court of Civil appeals affirmed that judgment, and a writ of error was denied by the Supreme Court. In that case, however, the railway company did not seek to recover, and did not, in fact, recover as against the owner of the fee, the exclusive possession of all the land included in i'ts right of way, and did not ask to have tile owner of the fee turned out of possession, but only prayed for the removal of such buildings as amounted to an exclusive appropriation by the owner of the fee of so much of the land as was covered by such buildings, and the prayer, to this extent, was granted. We think that the decision in that case was correct in announcing the correlative rights of the owner of the fee and the owner of the easement in land conveyed to or condemned by a railway company for right of way purposes, and that the same is decisive of the point raised by these assignments, and it would serve no useful purpose to discuss this question more at length. If upon another trial appellee should amend its petition complaining of appellant’s possession of its right of way in such manner as interferes with ap-pellee’s use of same for right of way purposes, and should ask for the removal of appellant’s fence from such right of way, on the ground that same interfered with appellee’s use of the same, and the evidence should so show, the court should enter judgment in favor of appellee, requiring appellant to remove any and all obstructions from such right of way as was found to be inconsistent or to materially interfere with the uses of such right of way by appellee for its purposes as a railway company. The case is not in such shape, as presented by the record here, where we would feel authorized or disposed to reverse and render the same, and for the error on the part of the trial court in entering judgment dispossessing appellant from said land., under the pleadings and evidence in this case, the judgment will be reversed, and the cause remanded.

We have examined all other assignments of error made by appellant, and overrule the same. In so far as his assignments based upon his cross-action are concerned, we are of the opinion that the trial court correct- [ ly entered judgment that appellant take nothing by his cross-action, for the reason that the evidence affirmatively shows that all the dirt taken by appellee the taking of which is complained of was taken from appellee’s right of way, and that the same was used for such purposes as was authorized by the law of this state. In other words, such dirt as was taken from the right of way was used by appel-lee, according to the evidence, in the construction and operation of its business as a railway company. The appellant, however, seems to be of the opinion that the railway company could not use any part of the sand or dirt on this right of way at any point on its railroad, or for any purpose connected with its business as a railroad company, save and except to the extent of using the same in connection with its track over that portion of the right of way within the limits of the easement. We do not think this is the proper construction to be placed upon ap-pellee’s rights under the law of this state, and therefore overrule this contention, and hold that the court was correct in instructing a verdict in favor of appellee as against appellant on his cross-action.

The judgment is reversed, and the cause remanded.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: AVAUTHAUL, J.

license: Public Domain

text:
    EUBANK v. BOSTICK.
    (No. 677.)
    (Court of Civil Appeals of Texas. El Paso
    March 15, 1917.
    Rehearing Denied April 12, 1917.)
    1. Appeal and Error <§=>1011(1) — Review— Findings.
    A finding on conflicting evidence will not fc« disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988.].
    2. Appeal and Error <§=>690(4) — Bill op Exceptions — Sufficiency.
    In an action for breach of contract, a bill of exceptions to the admission of parol testimony varying and changing the written contract between the parties, which did not show the particular testimony that was objected to or that the court had an opportunity to determine whether or not it was subject to the objection made, was insufficient and stated a conclusion of law, and not of fact.
    [Ed. Note. — For other cases, see Appeal ana Error, Cent. Dig. § 2899.]
    3. Appeal and Error <@==>664(4) — Bill of Exceptions — Statement of Facts.
    In an action for' breach of contract, where there was a bill of exceptions to the effect that the court erred in allowing plaintiff to offer parol testimony varying and changing the written contract, but the agreed statement of facts does not disclose that any evidence was offered changing or varying the terms of the written contract, the statement of facts will control the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2859.]
    4. Evidence <@=>445(1)■ — Parol Evidence Varying Written Contract.
    The rule forbidding the admission of parol or extrinsic evidence to alter, vary, or contradict a written instrument does not apply so as to prohibit the establishment by parol of an agreement between the parties to a writing entered into subsequent to the execution of the written instrument, notwithstanding that such agreement may hare the effect of changing or altogether abrogating the written contract, since the parol evidence does not in any way deny the original agreement, but goes to show that the parties have exercised their right to change or abrogate the same or to make a new and independent contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2054, 2063.]
    5. Arbitration and Award @==>73 — Appeal-Bight to.
    Rev. St. 1911, ai-ts. 56-70, provides the procedure in a statutory arbitration, and article 65 provides that, if an appeal is not expressly reserved to arbitrate, no such appeal shall exist, but the decision of the arbitrators shall be final. Section 70 provides that nothing in the chapter shall be construed as affecting the existing rights of parties to arbitrate their differences in such mode as they may select. Held, that only where the right of appeal is reserved in agreement for arbitration does the right exist in either statutory or common-law arbitration.
    [Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §§ 368-398.]
    6. Arbitration and Award @=>78 — Validity —Fraud—Pleading.
    Where it is sought to set aside an award by arbitrators on the grounds of fraud, partiality, or mistake, the facts constituting the objection to the award must be specifically averred in order to prevent the award from being made the judgment of the court.
    [Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §§ 409⅛19.]
    7. Evidence @=>589 — AYeight — Uncontra-dicted Testimony of Party — Oonclusion.
    In an action for breach of contract between plaintiff and defendant for the joint purchase of cattle, although defendant offered the only testimony on his cross-action for damages for an alleged loss by reason of the annoyance by plaintiff while defendant was selecting the cattle, causing a loss of $1 per head, as defendant was an interested witness, the court had the right to disregard his testimony.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. § 2438.]
    8. Evidence @=>471(35) — Opinion Evidence —Conclusions.
    In an action for breach of contract between plaintiff and defendant for joint purchase of cattle, in which defendant’s cross-action alleged damages by reason of annoyance by plaintiff while defendant was selecting the cattle, his testimony that he had suffered a loss of $1 per head was a conclusion of the witness, and not a statement of a fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2185; AVitnesses, Gent. Dig. § S33.]
    9. Appeal and Error @=544(2) — Bill of Exceptions — Necessity.
    Where the record contains no bill of exception complaining of the admission of testimony, the appellate court cannot upon assignment of error review the propriety of the trial court’s action in admitting the same, since, for ought the record shows, the testimony may have been admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2424, 2428, 2478.]
    10. Appeal and Error @=724(1) — Assignments of Error.
    In an action for breach of contract between plaintiff and defendant for the joint purchase of cattle, where there was evidence offered by plaintiff tending to show a subsequent agreement between the parties changing the terms of a prior written agreement, and also that the differences of the parties had been submitted to arbitration, which resulted in an award in favor of plaintiff, an assignment of error that the court erred in rendering judgment for the plaintiff, and because the evidence was uncontradieted that at and before the cattle were to be selected and before they were to be delivered there was a plain written contract whereby plaintiff and defendant were equal owners of the cattle, entitled equally to all profits on a sale, and that the only controversy at issue between the parties was the profits on the sale of heifer cattle, and that plaintiff had failed to prove such contract had been changed, was defective.
    _[Ed. Note. — For other cases, see Appeal, and Error, Cent. Dig. §§ 2997, 3(M.]
    11. Trial @=392(4) — Findings — Sufficiency.
    In an action for breach of contract between plaintiff and defendant for the joint purchase of cattle, in which defendant brought cross-action for damage, a judgment disposing of the cross-action adversely to the defendant and decreeing that he take nothing by his cross-action was a sufficient compliance with defendant’s request for a finding of fact and conclusion of law touching the cross-action.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 919.]
    12. Appeal and Error @=511(1) — Review-Reversible Error.
    In an action for breach of a contract between plaintiff and defendant for the joint purchase of cattle, in which defendant filed a cross-action and plea in reconvention for damages, where defendant at the time of excepting to the insufficiency of findings of fact made no com-' plaint of the failure to make findings and conclusions with respect to the plea in reconvention, and subsequent to adjournment filed a bill of exception to the action of the court in failing to make such findings and conclusions, but such bill does not have the approval of the trial court, the failure to make a specific finding in respect to the plea in reconvention and conclusion of law thereon does not present reversible error.
    [Ed. Note. — For other cases, see Appeal .and Error, Cent. Dig. § 2319.]
    Appeal from Gaines County Court; W. R. Slaton, Judge.
    Action by F. A. Bostick against C. H. Eu-bank, in which defendant sought to recover on a cross-action. Judgment for plaintiff and denying defendant recovery on his cross-action, and defendant appeals.
    Affirmed.
    N. R. Morgan, of Seminole, for appellant. J. M. Caldwell, of Midland, for appellee.
   AVAUTHAUL, J.

In January, 1915, appellant and appellee contracted with Jernigan & AVatts for 1,000 head of steer yearlings and 100 head of heifers in New Mexico, to be thereafter delivered in New Mexico about the 1st of June of that year. It was originally agreed between appellant and appellee that of said cattle Eubank should have and handle 300 head of the steers, and that Bos-tick should have the remainder of the steers and the heifers of the purchase, each putting up forfeit money in proportion to their respective interests. Subsequently appellant and appellee entered into the following agreement in writing:

“This is to say that O. H. Eubank and P. A. Bostick are equally interested in all cattle bought of Jernigan & Watts in New Mexico January 19, 1915, each of us having one half of forfeit money. [Signed] 0. H. Eubank. If. A. Bostick. This January 2Í, 1915.”

Bostick alleges that the above continued to be the contract until about the time for the delivery of the cattle, when the contract was again changed by mutual agreement so that Eubank was to have 500 head of the steers and Bostick was to have the remainder of the cattle. Bostick further alleges that when he and Eubank went to receive the cattle opportunity was offered him for sale, and that he sold the 100 head of heifers for a profit of $-150; that Eubank then claimed a one-half interest in the profit on the heifers; that a controversy then arose between the two as to the said profit on the heifers; that their controversy was submitted to arbitration, and that the arbitrators brought in their award, finding that he (Bostick) was entitled to all the profits on the heifers; that thereafter, when on the way to their home, Eubank again brought up the matter of said profits on the heifers, refused to abide by the arbitration, and demanded the payment to him of $225, and threatened him with personal violence in case he did not deliver to him his check for said amount, and also •threatened to brand enough of his (Bostick’s) steers then in his control to amount to said sum of $225; that, in order to avoid the threatened trouble, he delivered to Eubank the check for the $225, under protest, with the statement then and there to Eubank that he would thereafter have their rights fully determined. Bostick brought this suit to recover $225 based on said arbitration and award.

Eubank, appellant, answered by general demurrer, general denial, and by special answer alleged:

That, because of appellee’s inexperience in handling cattle, in receiving said cattle, the task of receiving the various grades and number of the cattle, both for himself and Bostick, fell upon him; that while so engaged Eubank “began a series and system of annoyance, and proceeded to claim certain rights and interests inconsistent and contrary to the agreement and understanding they had made, and sent messengers and messages to defendant that, unless plaintiff was allowed to have his contentions, the whole deal would fall through, and defendant would lose what he had involved, and that finally plaintiff proposes to then and there arbitrate the contentions he was making; that defendant, in order to get rid of the annoyance at the time, and for no other purpose, consented, and proceeded with' the work of sorting out the cattle; and that afterwards he told plaintiff he was not bound by and would not stand for said arbitration.”

He admitted having said to Bostick:

That “he could either settle fairly or defendant would brand enough to make them even under their contract, and then plaintiff paid the money he is now suing for.”

Appellee reconvened in damages, claiming that by reason of the annoyance, worry, and harassment by Bostick while he (Eubank) was receiving the cattle he was prevented from using, his best judgment in selecting same, and took an inferior class of cattle, and thereby sustained a loss of $1 per head on 250 head he received in the division. Ap-pellee filed general and • special demurrers to the answer and denied the facts pleaded as a cross-action.

The case was tried by the court without a jury, and a judgment rendered for appel-lee for $225, and appellant denied a recovery on his cross-action.

The court made and filed findings of fact and conclusions of law. In the first two paragraphs the court finds the several agree* ments of appellant and appellee to be substantially as stated by appellee, and about which there was no controversy, except that plaintiff claimed that another change was made in the division of the cattle each was to receive after the written memorandum, to the effect that appellant should have 500 head of the steers and appellee the balance, including the 100 heifers, and then proceeds:

“(3) Still later, but before receiving the said cattle, the said O. H. Eubank and F. A. Bostick had another agreement (according to the evidence of H. M. Gage, as per his deposition) whereby the said Eubank was to receive 500 steers out of said bunch, being yearlings, and F. A. Bostick was to receive all the balance of the original bunch of cattle, which included the 100 head of heifer yearlings; (4) about the 21st day of May, 3915, a controversy arose at the residence of W. B. Eubank as to the division of the profits of the cattle in case they or any part thereof were sold before delivered, at which time no agreement was perfected between the parties; (5) that afterwards, upon going to the place where said cattle -were to be received in New Mexico, no agreement having been reached between the said Bostick and Eubank, a buyer appeared in prospect for the purchase of the heifer yearlings, the rights of the said Bostick and Eubank wore submitted to a board of arbitrators composed of G. A. Shelton, George Williams, and H. M. Gage; that both Eubank and Bostick made statements to said hoard of arbitrators, which statements were practically the same in substance, and which was about as follows: [Detailing the evidence as to their seve.ral ¡agreements, then proceeding:] This arbitration was made before any of the cattle were received, and that subsequently the 109 head of heifers were sold by F. A. Bostick, who received all the money and profits on the said heifers, and that on the following day after the' sale of the said heifers the said O. H. Eubank told said Bostick that he refused to be bound by said arbitration, and demanded one-half of the profits on said 100 heifer yearlings, which one-half thereof amounted to the sum of $225, and at a later date, and while branding said cattle, the said Eubank by threats of persona] violence, and by threats of branding out sufficient number of Bostick’s cattle in sufficient numbers to pay for said profits in controversy and to pay for taking said Bostick’s cattle home, compelled said Bostick to. pay said $225 controversy profits to said Eubank under protest.”

Appellee’s suit was based on an award as tbe result of an alleged arbitration, which, if sustained, concludes tbe issues presented in the assignments, except those referring to matters arising on the trial of his plea in reconvention for damages.

The only matter at issue between appellant and appellee at the time tlie cattle were being delivered was their respective rights to claim the profit of $450 on the purchase and sale of the 100 head of heifer yearlings, appellant claiming to have a one-half interest in the profits, and the appellee denying that appellant had any interest therein. Appellee alleges that by agreement the difference or matter in dispute as to said profit was submitted to arbitration, and that the arbitrators brought in their award in favor of appel-lee and against appellant for the $450 profit on the sale of the heifers. Appellant in his answer admitted that he consented to the arbitration, but afterwards told appellee that he would not be bound by it. Under the statements in the pleading as to the fact that an arbitration was agreed to and the arbitration had and an award made, we need not state the evidence. The court found:

That “they each agreed to abide by the decision of the board of arbitrators, and decision was rendered in-favor of F. A. Bostick; that this arbitration was made before any of the cattle were received.”

The first assignment is that the court erred in rendering judgment for the plaintiff because plaintiff failed to prove his allegation of a third agreement between the parties. This should be overruled, because there is testimony to that effect. The assignment ' itself shows that because it recites that the only evidence was the testimony of plaintiff, which was squarely contradicted by the testimony of defendant. The court having resolved the issue in favor of the plaintiff, this court cannot set it aside.

The second assignment is that the court erred in allowing plaintifii to offer parol testimony varying and changing the written contract between the parties. There is a bill of exception in the record to the effect that plaintiff, by his parol testimony, undertook to change and vary the terms and conditions of the written contract, which bill was approved by the court. The bill of exception is insufficient. It states a conclusion of law, and not of fact. The bill should have shown the particular testimony that was objected to, and the court could then determine whether or not it was subject to the objection made. Furthermore, there is an agreed statement of facts in this case, and a careful examination of same fails to disclose that any evidence was offered changing or varying the terms of the written contract between the parties. In this condition of the record the statement of facts will control the bill of exception. It is true we find evidence admitted showing that the written contract was altered and changed by subsequent oral agreement between the parties and the terms of this subsequent contract were proven. But the rule forbidding the admission of parol or extrinsic evidence to alter, vary, or contradict a written instrument does not apply so as to prohibit the establishment by parol of an agreement between the parties to a writing entered into subsequent to the time when the written instrument was executed, notwithstanding such agreement may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties evidenced by the writing; for the parol evidence does not in any way deny that the original agreement was that which the writing purports to express, but merely goes to show that the parties have exercised their right to change or abrogate the same or to make a new and independent contract. Self v. King, 28 Tex. 552; Heatherly v. Record, 12 Tex. 49; Liner v. Mortgage Co., 29 Tex. Civ. App. 187, 68 S. W. 311; and many other cases of like nature.

The third assignment claims error in admitting testimony on the issue of arbitration and in considering it, on the ground that same was had at a round-up of cattle in New Mexico, that no record was made of the proceedings had, and that under the conditions existing appellant was denied the opportunity of an appeal, and because the evidence shows that the arbitration was procured by the fraud of appellee, and the award was based upon false statements made by appellee.

Title 7, c. 1, Revised Civil Statutes 1911, provides a procedure in a statutory arbitration. Article 65 under that title and chapter provides that:

“If [an] appeal is not expressly reserved • • * to arbitrate, no such right shall exist, but the decision of the arbitrators shall be final.”

While that provision is a part of the procedure in statutory arbitration, the right of appeal is made a matter of agreement between the parties, and only where the right of appeal is reserved in either statutory or common-law arbitration-does the right exist.

Section 70 of said title and chapter provides:

“Nothing herein shall be construed as affecting the existing right of parties to arbitrate their differences in such mode as they may select.”

A party may not agree to an arbitration and when the award is not in his favor decline to abide by it. The trial court made no finding on .any issue of fraud by plaintiff in procuring the arbitration or the award made. The appellant in his request for additional findings of fact requested the court to make a finding “whether the purported arbitration in the woods of New Mexico was procured by fraud; whether plaintiff made a true statement to the arbitrators.” There was no attempt either in the pleading or proof to allege or establish fraud on the part of appellee or the arbitrators in procuring the arbitration or award. Had the trial court made a finding as requested, it would have been made on an issue not pleaded. It has long been the rule and practice in this state that, where it is sought to set aside an award by arbitrators on the grounds of fraud, partiality, or mistake, the facts constituting the objection to the award must be specifically averred in order to prevent the award from being made the judgment of the court. Payne v. Metz, 14 Tex. 56; Forshey v. Railroad Co., 16 Tex. 532; McHugh v. Peck, 29 Tex. 150; Bowden v. Crow, 2 Ter. Civ. App. 591, 21 S. W. 612.

The fourth assignment is that the court erred in overruling and disregarding the defendant’s cross-action and plea in re-convention because the same showed a good cause of action and the evidence was plain and uncontradicted that defendant, by reason of plaintiff’s acts and words suffered the damage alleged. The only evidence offered in support of the plea in reconvention was the testimony of the defendant himself, who testified that by reason of the annoyance, worry, and harassment of him by Bos-tick while defendant was selecting the cattle he was prevented from using his best judgment in selecting the same, and could not and did not succeed in selecting the best cattle, but took an inferior class, whereby he suffered a loss of $1 per head on the 250 head he received in the division of the steers. In the first place, the defendant was an interested witness, and the court had a right to disregard this testimony. Thomas v. Saunders, 150 S. W. 768, and cases there cited. Furthermore, the statement that he had suffered a loss of $1 per head was a conclusion of the witness, and not a statement of a fact. The court may have disagreed with the witness in his conclusion. For the reason indicated, this assignment presents no error.

The fifth assignment complains of the admission of the testimony of the witness Gage. We find no bill of exception in the record complaining pf the admission of this testimony, and, in the absence thereof, we cannot review the propriety of the court’s action in, admitting same. For aught the record shows, the testimony may have been admitted without objection.

The sixth assignment is that the court erred in rendering judgment for the plaintiff because the evidence was plain and uncon-tradicted that at and before the cattle were to be selected and at and before they were to be delivered there was a plain written contract whereby plaintiff and defendant were equal owners of all the cattle and entitled equally to all profits on a sale of any of the cattle, and that the sole and only controversy and issue between the parties was the profits on the sale of the heifer cat-tje, and plaintiff failed to prove said contract had been changed. The concluding clause of this assignment shows the fatal defect therein, because evidence was offered by the plaintiff tending to show a subsequent agreement between the parties changing the terms of the prior written agreement. Furthermore, there was evidence that the difference of the parties had been submitted -to a board of arbitration and the arbitrators had made an award in favor of the plaintiff.

The seventh assignment is that the court erred in failing, though duly requested, to find any fact or conclusion of law touching defendant’s crossraction and re-convention for damages. The judgment disposes of the cross-action adversely to the defendant, and decreed that he take nothing by his cross-action.

The case was tried before the court, and appellant requested the court to make and file its findings of fact and conclusions of law upon which the judgment was based. The court made no specific finding of fact or conclusion of law in regard to the cross-action. Prior to the adjournment of the court defendant filed two written motions, wherein he excepted to the insufficiency of the findings of fact and pointed out issues upon which he desired findings made, and a bill of exception was taken and allowed by the court to the failure to make additional findings respecting the issues pointed out in such written exceptions and motion. In these motions no complaint was made of the failure to make findings and conclusions with respect to the plea in reconvention. Subsequent to the adjournment of the court, defendant filed a bill of exception to the action of the court in failing to make a finding and conclusion with respect to the plea in recon-vention. This bill, however, does not have the approval of the trial court. In this condition of the record, the failure to make a specific finding with respect to the plea in reconvention and conclusion of law thereon does not present reversible error. The court’s attention should have been called to the failure to file a finding and conclusion with respect to such plea and request made for such additional finding, and if it was refused an exception should have been taken. The record failing to show that this was done, no reversible error is shown. Railway Co. v. Oil Co., 55 Tex. Civ. App. 183, 118 S. W. 776; Gainesville, etc., v. City of Gainesville, 57 Tex. Civ. App. 257, 122 S. W. 959; Railway Co. v. Mitchell, 85 S. W. 286; Collum v. O’Malley, 128 S. W. 679.

It seems to us that each of the assignments should be overruled for the reasons indicated above, and that the ease should be affirmed, since no reversible error is shown.
      <&=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: PLEASANTS, C. J.

text:
    HOUSTON & T. C. RY. CO. v. ROBERTS et al.
    (No. 7316.)
    (Court of Civil Appeals of Texas. Galveston.
    March 29, 1917.)
    1. Appeal and Error <®^742(1) — Assignments op Error — Abstract Proposition.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, requiring an assignment of error to distinctly point out the grounds relied on, the abstract proposition that it is fundamental error to enter a'judgment when there is no evidence on which to enter such a judgment, with no specific charge that there is no evidence to sustain the judgment, is insufficient, as the statement thereunder giving the evidence cannot be looked to in aid of it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000.]
    2. Appeal and Error <®=^719(6) — Review — Error Apparent on Face op Record — Insufficiency op Evidence.
    Insufficiency of evidence to sustain a judgment is not error apparent on the face of the record, or fundamental error, which under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, can be considered on appeal without assignment of error.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2978, 3490.]
    3. Pleading <®=>34(7) — Construction on Appeal.
    The petition not having been excepted to, every reasonable intendment must be given it in favor of its sufficiency.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 74.]
    4. Carriers <⅜=>219(5) — Connecting Carriers —Through Contract — Liability.
    Where cattle are shipped over connecting lines under a through contract of shipment, the final carrier is liable for damages thereto caused by negligence of its connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 950.]
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by Austin Roberts and another against tlie Houston & Texas Central Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Stephen H. Philbin and Baker, Botts, Parker & Garwood, all of Houston, for appellant. Elbert Roberts and Geo. A. Delhomme, both, of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by Austin Roberts and Lee Badtke against appellant in a justice court of Harris county to recover the sum of $167.50 as damages for injury to cattle shipped by plaintiffs from Nacogdoches, Tex., to the tovra of Hock-ley, a station on appellant’s railroad in Harris county. Plaintiffs also asked for recovery of $20 as attorney’s fees because of the failure of appellant to pay said damages within 30 days after written claim therefor had been presented to it, thereby forcing plaintiffs to employ an attorney to prosecute this suit. The sum of $20 attorney’s fees is alleged to be reasonable and the amount which plaintiffs have contracted to pay their attorney for prosecuting this suit. The defendant answered by general denial.

A trial in the justice court resulted in a judgment in favor of plaintiffs for the full amount claimed by them, and upon appeal to the county court at law and a trial de novo in said court a like judgment was rendered.

The cause was submitted to a jury in the court below upon special issues. The evidence was sufficient to sustain the findings of the jury and the judgment that the cattle were shipped as alleged by plaintiffs and were damaged by the negligence of appellant’s connecting carrier to the extent claimed by plaintiffs.

We shall not set out nor discuss the various assignments of error contained in appellant’s brief relating to the admission of evidence objected to by defendant and the exclusion of evidence offered by it. It is sufficient to say that we have considered all of said assignments, and none of them, in our opinion can be sustained. If any error is shown by any of said assignments, it is not such as probably influenced the jury in arriving at the verdict, and must be' regarded as harmless.

The ninth assignment of error and the statement thereunder are as follows:

“It is fundamental error to enter a judgment in favor of a party when there is no evidence upon which such a judgment can be entered.

“Statement.
“Judgment was entered by the trial court that ‘the plaintiffs, Austin Roberts and Lee Badtke, do recover of and from the defendant, Houston & Texfas Cfentnal Railroad Oompany, their judgment in the sum of $193.70,’ etc.
“Austin Roberts testified: ‘My name is Austin Roberts; I am the plaintiff in this suit. I live in Hockley. I shipped four cars of cattle from Nacogdoches, Tex., to Hockley, Tex., about February 23, 1915. The cattle belonged to me.’
“There is no other testimony in the record with regard to the ownership of the cattle or of the interest of Roberts or Badtke in them.”

We do not think this assignment is sufficient to require consideration. It is nothing more than an abstract proposition of law, and makes no specific charge that there is no evidence in this case to sustain the judgment. We cannot look to the statement following the assignment in aid of the assignment, but the assignment itself must distinctly point out an error committed by the trial court. Article 1612, Vernon’s Sayles’ Statutes. The error attempted to be pointed out was not called to the attention of the trial court in the motion for new trial, and is not an error “apparent on the face of the record,” as that term is used in article 1607, Vernon’s Sayles’ Statutes. In discussing the question of the sufficiency of assignments and propositions attempting to present errors “appearing on the face of the record,” our Supreme Court, in the case of Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, speaking by Judge Brown, says:

“Does the assignment here presented come within the terms of the statute; that is, is it apparent upon the face of the record? Webster defines the word ‘apparent’ thus: ‘Clear or manifest to the understanding; plain; evident; obvious; appearing to the eye or mind.’ This does not mean that an error which can be ascertained by looking into the record and considering the evidence may be considered without an assignment; for that would include every error which can be considered at all. Nothing can be considered as an error which cannot be made apparent by an examination of the record. Therefore the language of the statute must be given that construction which will make it consistent with its requirements in other respects. The language ‘apparent upon the face of the record’ indicates that it is to be seen upon looking at the face of the record (that is, the assignment itself), the iEact pointed out by it must show; a good and sufficient ground for the court to interfere to prevent injustice being done to one of the parties. Perhaps the best expression is that it must be a fundamental error, such error as, being readily seen, lies at the base and foundation of the proceeding and affects the judgment necessarily. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; Fuqua v. Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; Harris v. Petty, 66 Tex. 514, 1 S. W. 525. This view of this assignment is supported by the course of the plaintiffs in error. If we take the first assignment in its terms, there is not apparent upon the face of that record any one of the things pointed out in the propositions under it. By an examination of the record it might be found that the facts existed as claimed in the propositions, but they are not manifest, and not evident, not obvious, without an examination and weighing of the evidence to determine whether or not the assignment is well taken. We are of opinion that the assignments which were made in the Court of Civil Appeals and presented here in the application cannot be considered, because they do not come within the meaning of the statute that we have quoted above, and were not assigned in the district court for presentation to the Court of Civil Appeals as required by law.”

This holding is not in conflict with the case of Railway Co. v. Reed, 189 S. W. 999. In that case it was held that a petition alleging a joint cause of action in two persons would not support a judgment in favor of one of the plaintiffs upon a cause of action which the record showed was separate and distinct from his eoplaintiff’s cause of action, and that the rendition of such judgment was an error apparent on the face of the record which the court was authorized to correct in the absence of an assignment of error raising the question. The error in the case cited was shown in the recitals of the judgment, and was therefore clearly an error apparent upon the face of the record.

The tenth assignment is as follows:

“It is fundamental error to render judgment against the connecting and final carrier in an intrastate shipment, where the plaintiffs alleged and proved that the damages complained of occurred upon the line of the initial carrier, and there were neither allegations nor proof that the contract of shipment was a contract for through carriage.”

This assignment is not entitled to consideration for the reasons just stated in discussing the sufficiency of assignment No. 9.

We think, however, that the allegations of the petition are sufficient to admit proof of the fact that the cattle were shipped upon a contract for through carriage. There was no exception to the petition, and every reasonable intendment must be given it in favor of its sufficiency. If the cattle were shipped under a through contract of carriage, appellant is liable for damages caused by the negligence of its connecting carrier. Railway Co. v. Waltman, 132 S. W. 518.

The remaining assignment of error is without merit, and is overruled without discussion.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <te3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: FLY, C. J.

text:
    G. R. SCOTT, BOONE & POPE v. WILLIS et al.
    (No. 5831.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 11, 1917.)
    1. Limitation oe Actions <&wkey;127(13) — Implied Contbact — Amended Pleading.
    Where the petition in an action on express contract for an attorney’s fee was amended more that two years after the cause of action had accrued to set up in the alternative an implied contract to pay the fee, the cause of action on the implied contract, or a quantum meruit, was barred by limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 545; Pleading, Cent. Dig. § 688.]
    2. Attorney and Client <&wkey;165 — Recovery oe Compensation — Contracts—Variance.
    The evidence which will support an express contract to pay an attorney’s fee will not sustain recovery on a quantum meruit.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 365-367.]
    Appeal from Nueces County Court; Walter F. Timón, Judge.
    Action by G. R. Scott, Boone & Pope against Byron Willis and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Claude Lawrence and Gowan Jones, both of Corpus Christi, for appellant. E. P. Scott and Kleberg, Stayton & Picton, all of Corpus Christi, for appellees.
   FLY, C. J.

This is a suit for $250 instituted by appellant against Byron Willis and the Sidbury Lumber Company. The original petition is not in the record, but it is alleged in the first amended petition that it was filed on September 1, 1914. The first amended petition was filed on October 7, 1914, and in that petition a cause of action was alleged on an express contract on the part of Byron Willis to pay appellants the sum of $250 as an attorney’s fee for the prosecution of a certain suit; said fee to become due and payable “upon the final termination or settlement of such litigation.” It was alleged that the cause was terminated and settled on May 4, 1914. On November 5,1914, appellants filed a first supplemental petition asking that the Sidbury Lumber Company be made a party. On July 27, 1916, more than two years after the cause of action had accrued, appellants filed a second amended petition, and, in addition to declaring on an express contract as against the Sidbury Lumber Company and Byron Willis, appellants set up in the alternative an implied contract to pay the attorney’s fee. That part of the pleading as to the implied contract was excepted to as being barred by the statute of limitations of two years, and the exception was sustained. The cause was tried by jury, resulting in a verdict and judgment in favor of appellees on the allegation of an express contract.

There is really hut one point presented on this appeal, and that is in regard to the action of the court in holding that the suit on an implied contract, or a quantum meruit, was barred by limitation of two years. This has been fully settled adversely to appellants by the Supreme Court and this court. Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707; Booth v. Houston Packing Co., 105 S. W. 46.

This is not a case of an imperfect presentation of a cause of action, as contended by appellants, but is a ease of two separate and distinct causes of action, as is clearly discernible from an application of the rules laid down by this court in Booth v. Packing Co., and by the Supreme Court in Lumber Co. v. Water Co., herein cited. The evidence which would support an express contract to pay a fee would not sustain a recovery on a quantum meruit, for they are essentially different. As said by the Supreme Court in the case last cited:

“Evidence of an express contract would not be admissible under the allegations of, and if admitted would not establish, an implied contract; neither would the evidence from which the contract would be implied be admissible under the allegations of the original petition, nor would that evidence, if admitted, establish the existence of such a contract.”

There is no merit in the fourth and fifth assignments of error, and they are overruled.

The judgment is affirmed.
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author: DAYIS, J.

text:
    HOUSTON OIL CO. OF TEXAS v. WING.
    (No. 160.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 1, 1917.
    Rehearing Denied April 18, 1917.)
    1. Boundabies &wkey;>6 — Location oe Senior Survey prom Junior Survey.
    The surveyor who, as county surveyor, certified to the correctness of the field notes of the F. survey, having five years later located the O. survey, and tied its beginning N. W. corner to the S. E. corner of the P. survey, the P. survey may by reversal of calls be constructed from the known location of the O. survey, though none of the original bearing trees or corners of the P. survey were found on the ground.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 47-57.]
    2. Stipulations &wkey;>14(l) — Eppect.
    It being stipulated that defendants are the owners of certain surveys, and plaintiff the owner of a certain survey, and that he is entitled to recover it if and to the extent it is not in conflict with their surveys, there being no conflict, no other question is open.
    [Ed. Note. — Por other cases, see Stipulations, Cent. Dig. §§ 24, 28.]
    Error from District Court, Polk County; L. B. Hightower, Sr., Judge.
    Action by Wilson D. Wing against the Houston Oil Company of Texas and others. Judgment for plaintiff, and the named defendant brings error.
    Affirmed.
    H. O. Head, of Sherman, and Parker & Kennerly and Fred L. Williams, all of Houston, for plaintiff in error. Andrews, Street-man, Burns & Logue, of Houston, and J. L. Manry, of Livingston, for defendant in error.
   DAYIS, J.

Wilson D. Wing instituted this suit in 1910 in the district court! of Polk county, Tex., in the ordinary form of trespass to try title against the Houston Oil Company of Texas, Tyler County Lumber Company, and other defendants, to recover East Texas Railroad section No. 16, containing 640 acres of land, situated in Polk and Tyler counties. All the defendants, except Houston Oil Company of Texas and the Tyler County Lumber Company, were dismissed out of the suit, and upon a trial of the case before a jury, which was submitted on special issues, a verdict and judgment was rendered in favor of plaintiff, from which the defendant Houston Oil Company of Texas has appealed. All the parties to the suit, upon the trial of the case, entered into the following agreement:

“In order to facilitate a trial of the above numbered and styled cause, it is agreed by and between all parties hereto, through their respective attorneys, as follows: That the defendant Houston Oil Company of Texas is the legal and equitable owner of the M. Pederspill and Jacob Buehman surveys in Polk county, Tex., and was such owner at the time this suit was instituted, and that said defendants Houston Oil Company of Texas and Tyler County Lumber Company are the legal and equitable owners of the An-dreas Morales survey lying in Polk county, Tex.
“It is further agreed that the plaintiff, Wilson D. Wing, is the legal and equitable owner of East Texas Railroad section No. 16, situated in Polk county, Tex., and was such owner at the time that this suit was instituted, and said plaintiff, Wilson D. Wing, is entitled to recover the title and possession of said E. T. Railroad Company section No. 16 in this action, if said section is not in conflict with any of the surveys above named apd owned by the defendants herein, and is entitled to recover the title and possession of said East Texas Railroad Company Section No. 16 to the extent that same is not in conflict with the surveys above mentioned, if it appears that said East Texas Railroad Company section 16 is only partly in conflict with said surveys or any of them.
“It is expressly stipulated that this agreement is made only for the purpose of facilitating a trial of this suit, and shall not be construed to change the legal rules as to the burden of proof.”

It is clear that this agreement left for determination in this suit only one issue, and that was: Where are the true locations of the Buehman survey, Pederspill survey, the Morales survey, and East Texas Railroad Company survey, section No. 16? These true locations must be ascertained in order to determine whether or not East Texas Railroad Company section No. 16 and the Feder-spill survey conflict.

The trial court, upon the question of conflict as to these two surveys, submitted to the Jury the following issue:

“Is the true location of the M. Federspill survey in conflict with the true location of East Texas Railway Company survey No. 16?”

This issue was answered by the jury in their verdict in the negative, therefore finding by their verdict that there was no conflict between East Texas Railroad survey, section No. 16, and the Federspill survey.

The testimony in the case upon this question is lengthy, and we do not care to burden this opinion by quoting same. We will say, however, that we have carefully read the evidence, and believe that the verdict of the jury on this issue is supported by a preponderance of the testimony.

The evidence discloses that East Texas Railroad Company survey, section No. 16, the Buchman survey, and the Federspill survey lie north of Village creek, and that a survey known as the O’Connor survey lies south of Village creek; that the O’Connor survey was located five years after the location of the Federspill survey; that the surveyor, who was county surveyor of Liberty county, certified to the correctness of the field notes of the Federspill survey, and five years thereafter located the O’Connor survey himself, and tied the beginning corner of the O'Con-nor survey, which is its northwest corner, to the southeast comer of the Federspill survey ; that the O’Connor survey was the first survey constructed in that vicinity south of Village creek; that the true location of the O’Connor survey is not disputed; that in going upon the ground at the northwest corner' of the O’Connor survey, and reversing the call, and running back for distance, an old line is found running north from the creek a short distance, and the marks on this line, being the west line of the Federspill survey, as claimed by defendants in error, are as old as the line called for. The evidence further discloses that in surveying out the Federspill and Buchman surveys, in accordance with their respective field notes, taking the northwest corner of the O’Connor survey as a starting point, these surveys fit Village creek exactly as called for, which is a very crooked creek, and that these surveys will not fit on this creek at any other place, and especially that these surveys do not fit where plaintiff in error claims they are located ; that, while none of the original bearing trees or corners were found on the ground, yet the same character of timber was found at each corner as called for in the original survey; that at one of the corners a large red oak tree was found as called for in the original field notes, but it was down and so badly decayed that, if it had been marked, these marks had been destroyed by decay.

Plaintiff in error contends that, since none of the original corners or known landmarks were found upon the ground in the location of the Federspill survey, as claimed by the defendants in error, it was error for the lower court to admit in evidence the field notes of the O’Connoi" survey, being a junior survey, and to allow defendants in error to construct the Federspill survey, a senior survey, from the true location of the O’Connor survey, a junior survey. Ordinarily this contention would be correct; but in this case the evidence discloses that in using the known location of the O’Connor survey, from which to construct the Feder-spill survey, it was not only used to construct the Federspill survey, but it led to the discovery of the unquestionably trae location of the Federspill survey; therefore we do not believe the court erred in admitting this testimony, especially where it was shown that the surveyor who certified to the correctness of the field notes of the Federspill survey only five years thereafter made the O’Con-nor survey himself, and tied it to the Feder-spill survey, and unquestionably, from the facts proved, knew where the lines and corners of the Federspill survey were on the ground.

Plaintiff in error also contends that the location of the Buchman and Federspill surveys, as claimed by it, had been recognized by the general land office since 1862, under a survey made by one Baumgarten, and that since that time the general land office has patented lands over the Buchman and Fed-erspill surveys, where defendants in error claimed these surveys were originally located, and that the plaintiff in error is claiming said land under the Baumgarten location, under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records and in the general land office, and that said land is “land titled or equitably owned under color of title,” and is therefore, regardless of whether it is the original location of same, not subject to survey, location, or patent as vacant public land, as provided in article 14, § 2, of the state Constitution.

It is true that the evidence shows that the location of the land claimed by plaintiff in error as the Buchman and Federspill surveys was located by Baumgarten while acting in his official capacity, and that maps of the general land office have recognized this location by patenting land over the location of the Buchman and Federspill surveys, which defendants in error contend was the original location of same; but, in view of the agreement entered into by the parties to this suit, which resolved the whole case to the sole and only issue of the true location of these surveys, is plaintiff in error now, under said agreement, in a position to contend that, even if the true location of these original surveys is not where it contends they should be, yet, because of the location of these surveys by Baumgarten in 1862, and because of the appropriation of these surveys as located by Baumgarten, which is reflected by the county records and in the general land office, and because of the recognition of the Baum-garten locations by the general land office since 1862; and the placing of other surveys over the Buchman and Federspill áhrveys, where defendant in error claims they are located, it should be allowed to recover the land as located and claimed by it under color of title, because of the provisions of the Constitution (article 14, § 2) ? With this conten-tention we do not agree, for the reason that the evidence is conclusive that the Baumgar-ten location of these simveys, as recognized by the general land office since 1862, was erroneous; that East Texas Railroad section 16 and the Federspill survey do not conflict, and the question of the true location of these surveys was, by agreement, made the only question in the case.

The judgment of the lower court is therefore affirmed; and it is so ordered.

HIGHTOWER, C. J., being disqualified, did not sit.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    MILLER-LINK LUMBER CO. v. THOMPSON et al.
    (No. 187.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 15, 1917.)
    Adverse Possession &wkey;>116(8) — Instructions — Burden of Proof.
    The only question in trespass to try title submitted to the jury being whether defendant’s house was on the section, paper title to which was shown in plaintiff, but which defendant claimed under the ten-year statute, it was error after charging that the burden of proof rested on plaintiff to show by a preponderance of the evidence the material allegations in the petition to charge that in- answering the question submitted the jury would bear in mind that this burden rests on plaintiff.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66.]
    Appeal from District Court, Jasper County; E. A. Davis, Judge.
    Action by the Miller-Link Lumber Company against Jas. H. Thompson and others. Judgment for defendants, and plaintiff appeals.
    Reversed, and remanded for new trial.
    Holland & Holland of Orange, for appellant. W. R. Blain, of Beaumont, and Smith & Lanier, of Jasper, for appellees.
   BROOKE, J.

This is a suit of trespass to try title, brought by appellant against ap-pellees, to recover section No. 60, Texas & New Orleans Railroad Company survey in Jasper county, Tex. Plaintiff described the lands and premises as follows:

“640 acres of land in Jasper county known as section No. 60 Texas & New Orleans Railroad company certificate No. 223 on the waters of Mill creek about 43 miles south of the town of Jasper, beginning at the S. W. corner of section No. 59, from which a pine bears N. 56° E. 17 vrs., a pine brs. S. 29° W. 5½ vrs.; thence S. 1,900 vrs. to stake for corner from tjffimh a pine brs. S. 14° E. 6 vrs., a pine brs. S. 11° W. 10 vrs.; thence E. 1,900 vrs. to the S. W. corner of section No. 41; thence N. 1,900 vrs. to the S. E. corner of section No. 59, ,S. W. corner of section No. 42, and the N. W. corner of section No. 41, made for the Texas & New Orleans Railroad Company; thence W. 1,900 vrs. to the place of beginning.”

The defendant disclaimed as to all of the land sued for, save and except a specific 160 acres, and as to said 160 acres claimed the same under the ten-year statute of limitations.

The case was tried before a jury, and upon their verdict a judgment was entered for the defendants for the 160 acres claimed by them, and, after motion for new trial had been overruled, this appeal was properly perfected.

The title of appellant to section No. 60, as described in the petition, is undisputed from the sovereignty, and the occupancy of the property occupied by appellees for the required ten-year period and in the manner required by the statute is likewise undisputed. The dispute seems in this case to have been as to the true location of section 60 upon the ground. Section 60 is a school section, and was patented October 27, 1905. There are none of the calls contained in the patent discoverable at the present time upon the ground, and the location of section 60 must be had by locating other surveys called for by its field notes, upon the ground, according to their field notes, and thereby, by course and distance, giving section 60 its true location.

The first, second, and fourth assignments of error are as follows:

(a) The court erred in refusing to instruct the jury to return a verdict in favor of plaintiff, as requested by plaintiff in its special charge No. 1 submitted to the court.

(b) The court erred in submitting to the jury question No. 1, for the reason that there was no testimony admitted on the trial legally presenting the issue of fact as to the location of defendant’s improvements being on section No. 60 sued for.

' (c) The court erred in refusing to enter judgment for plaintiff after the verdict of the jury was returned, and in overruling plaintiff’s motion to enter judgment, for the reasons therein shown.

The proposition urged by the appellant under these three assignments is as follows:

“The true location of a tract of land is determined and fixed on the ground by the field notes under which it was patented, and cannot be moved or changed by older field notes of the same survey or any prior location thereof, or by reference to older field notes of adjoining surveys.”

In the main, we agree to this proposition as being correct, and under the facts in this case we are of opinion that the question to be decided was a question of fact as to where the location was on the ground of section 60, under the field notes in the patent, and which were described in plaintiff’s petition. Apparently there was some uncertainty in the minds of the jury as to what they were instructed to do by the charge of the court. The charge of the court, as submitted on this proposition was as follows:

“Is the house and improvements of the defendant located on Texas & New Orleans section No. 60? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

It is urged that there were two surveys and- field notes of section 60, one made perhaps in 1872 or 74, and which survey was aft-erwards corrected by the field notes under which the patent issued. However, the jury might have understood the question or charge of the court to mean either section 60 as located upon the ground by the original survey, or section 60 as located upon the ground by the corrected field notes embraced in the patent. The fact remains that the jury found that the improvements of appel-lees were on section 60. It is strenuously urged by the appellant that the testimony is undisputed that the field notes under which the patent issued, if placed upon the ground, will in no wise conflict with any of the 160 acres successfully claimed by the appellees under their plea of ten years’ limitation. A ■careful consideration of the testimony, while not conclusive, seems to favor this contention. However, the verdict of the jury will not be disturbed on this finding, and therefore the above assignments are overruled.

The third assignment is as follows:

“The court erred in instructing the jury that the burden of proof rested upon the plaintiff to show the material allegations in its petition by a preponderance of the evidence, and in answering the question submitted to the jury by the court that the burden of proof rested upon the plaintiff, because the only question submitted to the jury by the court was one applicable to the plea of limitation by the defendants, and as to said plea the burden of proof rested on the defendants.”

The proposition under this assignment is that:

“The burden of proof rested upon the person pleading limitation to establish such plea by the ■evidence.”

The charge of the court was as follows:

“The burden of proof rested upon the plaintiff to show by a preponderance of the testimony the material allegations in its petition, and in answering the question submitted to you you will bear in mind that this burden rests upon the plaintiff.”

Thereafter the trial court submitted to the jury one question, and only one, under the heading of question No. 1, as above set out, ■and which was as follows:

“Is the house and improvements of the defendant located on Texas & New Orleans Railroad Company section No. 60? You will answer this question ‘Yes’ or ‘No,’ as you will determine the fact to be.”

The plaintiff objected to the charge of the court in due season, and presented to the trial court, before the charge was read to the jury, the following objection, and reserved, in due1' season, a bill of exception to the refusal of the trial court to correct the charge, to wit:

“Plaintiff objects to that portion of the charge wherein the court instructs the jury that the burden of proof rests upon the plaintiff to show the material allegations because the burden of proof rests upon the defendant to establish by a preponderance of the evidence the only question submitted to them for determination by the court.”

We are of opinion that this assignment must be sustained. Defendant was claiming under the ten-year statute of limitation. Plaintiff had shown a paper title to the land. His right to recover depended solely, it seems, on whether or not the defendant had established the limitation title pleaded. We believe that the pleadings and the evidence presented the issue plainly, arid that it was placing an unnecessary burden on the shoulders of the plaintiff, and more than was required by law.

As said in the ease of Boswell et al. v. Pan-nell, 180 S. W. S95:

“The burden of proof never shifts from the plaintiff to the defendant, but is upon the plaintiff throughout the trial to establish by a preponderance of the evidence the affirmative of the issue or issues upon which he relies for a recovery. It is an old and well-settled rule that the burden of proof rests upon the plaintiff to establish bis case by a preponderance of the evidence. It has been so long in use that many consider it a mere formality, but it is not so. It is not idle ceremony, but its office is important, and indeed indispensable, in the administration of justice. * ⅜ ⅜ But it is one of those rules which operates alike for the plaintiff and the defendant; that is, the burden is on the plaintiff to establish by a preponderance of the evidence the issues upon which he relies for a recovery^ and likewise it is upon .the defendant to establish his defenses to the plaintiff’s alleged cause of action by a preponderance of the evidence. So that, when the court charges the jury, he should apply the rule to the plaintiff’s alleged cause of action, and then apply it also to the defendant’s defense or defenses. These rules of practice are familiar to all, and require no citation of authorities. If, therefore, the charge shifted the burden of proof to the defendant Barrow to disprove the allegations essential for the plaintiff to prove in making out his case, it would be erroneous.”

We see no occasion to multiply authorities or to burden tbis record with a further discussion of the well-settled rule of law.

Therefore, for the error noted, this cause is reversed, and remanded for a new trial.
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author: PHILLIPS, C. J.

text:
    STOCKYARDS NAT. BANK v. PRESNALL et al.
    (No. 2503.)
    (Supreme Court of Texas.
    April 25, 1917.)
    1. Judgment <&wkey;497(3) — Collateral Attack — Conolusiveness of Record.
    A judgment cannot, upon collateral attack, be held void because defendant was a nonresident, where the record fails to establish such fact.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 938.]
    2. Judgment <&wkey;497(2) — Collateral Attack —Method of Service — How Established.
    Where a judgment is silent regarding the method of service, the record may'be examined to determine its validity.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 937.]
    3. Judgment &wkey;>497(2) — Proof of Service— Collateral Attack.
    In a collateral attack upon a judgment, the method of service can be determined only by the record.
    [Ed. Note. — For other cases, see Judgment, Cent Dig. § 937.]
    4. Judgment <&wkey;490(3) — Collateral Attack — Return and Proof of Service — Sufficiency.
    A sheriff’s return reciting that a citation was published four successive weeks, the first date being given two days before the citation was issued, is sufficient, since such first date will be disregarded and a publication upon a possible date during the first week presumed.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 928.]
    5. Set-Off and Counterclaim <&wkey;36 — Maturity of Demand — Necessity.
    Except where a debtor is insolvent, a debt must have matured to be available as a set-off.
    [Ed. Note. — For other cases, see Set-off and Counterclaim, Cent. Dig. §§ 65-69.]
    6. Banks and Banking <&wkey;134(2) — Setting off Debt Against Detposit.
    A bank cannot set off a depositor’s unma-tured note to it against his deposit merely because he is a nonresident; there being no proof of his insolvency.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 354.]
    Error to Court of Civil Appeals of Sixth. Supreme Judicial District.
    Garnishment proceedings by P. A. Pres-nall and another against the Stockyards National Bank, garnishee. A judgment for defendant was reversed by the Court of Civil Appeals (151 S. W. 873), and defendant brings error.
    Affirmed.
    Wm. J. Berne, of Ft. Worth, for plaintiff in error. Slay, Simon & Wynn, of Ft. Worth, for defendants in error.
   PHILLIPS, C. J.

This was a garnishment suit by Presnall and Mossner against the plaintiff in error bank, after judgment obtained in another District Court against one Hugh Rogers. The writ of error was granted on the bank’s application under, as we find, a misapprehension of the record. The judgment against Rogers, upon which the garnishment was based, was upon citation by publication. In granting the writ we were of the impression that at the time of the filing of that suit and the service by publication Rogers was a non-resident of the state. . There is nothing in the record of that cause, however, showing that such was the fact; and the judgment, therefore, cannot for this reason be held void upon collateral attack. Rogers was in fact at the time a resident of the state, according to an agreement contained in the record in the present case.

The record in the suit against Rogers does not disclose that the- service of citation was invalid, defeating the court’s power to render the judgment, as is the further contention of the plaintiff in error. The judgment was silent as to the service. The record of the cause may therefore be consulted to determine its validity. But upon collateral attack it cannot be determined except by the record. The record shows this and nothing more concerning the service:

The citation was issued July 13, 1907. Its return day was November 25, 1907. The sheriff’s return recited that it came to his hands on the day of its issuance, and that it was executed by being published in a newspaper, — the paper being named,- — once in each week for four successive weeks. The dates of the publication were then recited and were given as the 11th, 18th, and 25th days of July, 1907, and the 1st day of August, 1907.

It was only necessary that the citation be published once a week for four consecutive weeks before the return day. The four successive weeks referred to in the return plainly included the week of July 13th as the first week of the publication. Had the publication been'made upon any day in that week after the citation reached the sheriff full twenty eight days would have elapsed before the return day. The 11th of July was an impossible date for the publication in the first week, since the citation was not issued until the 13th day of that month. Its recital was evidently a clerical mistake. Being an impossible date, it will be disregarded. This, in effect, leaves the return, without any recital as to the date of that publication. It amounts only to an omission to give the date. It does not show that there was no proper publication during that week. With the return otherwise positively affirming that the citation was published once in each week for four successive weeks, its publication upon a possible date during the first week will be presumed. Hopkins v. Gain, 105 Tex. 591, 143 Pac. 1145, does not control the question as it is presented by this record. There, the specification of the dates of the publication given in the sheriff’s return showed clearly that the publications were not made in consecutive weeks and were insufficient in number.

The contest in the present suit concerns a general deposit to Rogers’ credit in the bank when the garnishment was served. At the time of the service of the writ Rogers was indebted to the bank upon two notes, neither of which had matured. He was then a citizen of Oklahoma. No contention is made that he was insolvent. We decline to hold that the mere fact of his non-residence entitled the bank to offset the deposit against the unmatured notes and thus destroy the, effect of the garnishment. It is a primary rule that a debt must have matured to be available as a set-off. An exception is made where the debtor is insolvent. But this is upon the equitable ground that, otherwise, the debt cannot be collected. No such equitable consideration is presented by the mere non-residence of the debtor. We allow the seizure of the property of a non-resident by the extraordinary writ of attachment only upon affidavit that the debt sued upon will probably be lost unless the attachment issues, and permit no judgment appropriating his property in such a case until the debt has matured. If a bank may offset the deposit of a non-resident against his unmatur-ed note, such a depositor would never know when he could with safety draw against his deposit. The contract expressed by a note protects the maker against the demand for payment until its maturity. Non-residence has some disadvantages, but hardly that of itself absolving the other party from a contract. The deposit was subject to the garnishment.

The judgment of the Court of Civil Appeals is affirmed.
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