text:
    VANSICKLE v. STATE.
    (No. 4229.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.
    Rehearing Denied Nov. 8, 1916.)
    1. Criminal Law <@=>1092(13), 1099(10) — Appeal — Record—Necessity op Judge’s Signature.
    Ordinarily no statement of facts or bill will be considered by the Court of Criminal Appeals unless properly approved and signed by a judge authorized to do so, nor can the parties or their counsel by agreement dispense with such approval and signature.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2836, 2842, 2845, 2873; Dec. Dig. <@=>1092(13), 1099(10).]
    2. Criminal Law <@=>1186(1) — Appeai>-Rec-ord — Rights op Accused without Eault.
    While one convicted of an offense, if without fault on his part deprived of bill or statement by the adverse party or the judge, is entitled to reversal, he must use all diligence necessary to secure them; and, in the absence of diligence, he cannot have reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3217, 3219; Dec. Dig. <@=>1186(1).]
    3. Criminal Law <@=>1186(1) — Appeal—Record — Evidence.
    One convicted of manslaughter held not to have used due diligence to procure statement of facts and bill of exceptions, so that he could not have reversal for being deprived of them.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3215-3217, 3219, 3230; Dec. Dig. <@=>1186(1).]
    4. Criminal Law <@=>1092(8), 1099(7) — Appeal — Record—“Reasonable Time. ’ ’
    Since the court, when the duty devolves upon it to prepare bills and statements of fact, has a “reasonable time” to do so, where appellant used 88 days of 90 allowed, and then requested the court to prepare them, and they were completed in three weeks, they will be considered, though filed after the 90 days.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2855, 2856, 2861, 2876, 2878-2880; Dec. Dig. <@=>1092(8), 1099(7).
    Eor other definitions, see Words and Phrases, First and .Second Series, Reasonable Time.]
    5. Criminal Law <@=>1150 — Appeal—Order Changing Venue.
    The action of the trial court changing, or refusing to change, the venue will not be revised on appeal, unless it is made clearly to appear that such action was an abuse of the discretion confided to the trial judge and was prejudicial to the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3044; Dec. Dig. <@=>1150.]
    6. Criminal Law <@=>598(2) — Continuance-Diligence.
    Continuance for absence of witnesses is properly denied, where no diligence at all is shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341; Dec. Dig. <@=>- 598(2).]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

      Lee Vansickle was convicted of manslaughter, and he appeals.
    Affirmed.
    A. M. Mood and Veale & Lumpkin, all of Amarillo, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under an indictment and trial for murder appellant was convicted of manslaughter, and his punishment assessed at five years in the penitentiary.

When appellant was first arrested, he sued out a habeas corpus, seeking to be admitted to bail. The lower court remanded him without bail, from which he appealed to this court, this court affirming the judgment of the lower court. 185 S. W. 998.

The trial began on Monday, May 22d, and was concluded the day before the court adjourned on the 27th. His motion for a new trial was overruled on the 27th, and by proper order he was given 90 days to prepare and file bills of exceptions and a statement of facts. A regular court stenographer took down in shorthand the proceedings of the trial. In about ten days after the adjournment, appellant’s attorneys applied to the stenographer for a full report of the trial and testimony,' telling him that the only property appellant had to pay his fees with was his equity in certain stock which was mortgaged. His attorneys at the time did not know nor state to the stenographer that there was a second mortgage on this stock. .There was, however, and by proper suit this mortgage was foreclosed, the property sold, and appellant had no equity at all in the proceeds thereof. When all this occurred is not stated, but must have been very soon after the trial. When this foreclosure and sale occurred, the appellant’s attorney notified the stenographer, and then told him that appellant would make the pauper’s oath, and in that way require him to prepare the report. The exact time when this occurred is not stated, but it must have been some time before July 7th. At that time the stenographer had done nothing towards the preparation of the report. Appellant and his attorneys knew it. The attorneys then told him, however, in substance, that appellant had conveyed to them his equity in a tract of land in New Mexico for their fee, and, rather than require the stenographer to make the report without pay, they told him that they would pay him out of the proceeds of the New Mexico land when they made a sale, but that they would pay him only out of the proceeds. They assumed no personal liability to him for his fees. Really, it is not shown that appellant had any such equity in the New Mexico land out of which the stenographer would have gotten any pay. -But it seems the stenographer then agreed to 'make out the report, but did nothing towards it. On July 7th appellant made • said pauper’s affidavit, but he did. not file it until July 29th, at which time they also made a motion-for the court to compel the stenographer' to make said report. Still they did not call the court’s attention to this, nor have the court to act upon it at all until August 19th, at which time the court correctly refused to require the stenographer to make such report under such affidavit in accordance with the decision of this court.' Jackson v. State, 70 Tex. Cr. R. 292, 156 S. W. 1183. Then, and not till then, did appellant or his attorneys do anything in the way of themselves preparing a statement of facts or bills of exceptions. Thereupon, however, , they did, from memory, undertake to prepare such statement. This was just 6 days before the 90 days would expire. They then prepared, in 40-odd typewritten pages, what they claimed to be a statement of the facts, and it seems they also then prepared some claimed bills of exceptions. They submitted their, statement to the district attorney on August 23d, who expressly declined to agree to it, because he did not, at that time, remember all the material facts, and it was then impossible to obtain any question and answer report of the trial to ascertain whether it was full enough or not. They thereupon presented in this shape the statement to the trial judge, who also expressly refused to approve it, stating that he would “prepare and file a statement of facts as soon as possible.” The district judge then did prepare, properly certify as correct, and file on September 13th the statement of facts, consisting of about 110 typewritten pages. Appellant also shows that at the time he presented said statement to the trial judge he also submitted to him for approval what he calls his “Bill of Exceptions No. 6,” which had theretofore been submitted to the district attorney, who had marked his “O. K.” thereon with his initials, and they asked the court to either approve or disapprove the same,' the court stating he would do so when he got time, and on the next day they made the same request, and the judge failed to either approve or disapprove it, and that no such bill has been filed with any action thereon by him.

Upon this state of fact, appellant contends that this court should not consider the statement of facts prepared by the judge, but should strike it out and reverse this case because he was deprived of a statement of facts. He relies, among other cases, on Wheat v. State, 181 S. W. 455. We think the Wheat Case does not sustain him. In that case, we showed the case was tried on March 10th, the transcript filed in this court May ISth, without any statement of facts at all; that when the judge’s attention was called to this' on June 9th, he then prepared and filed what he certified to be the evidence on the trial, and had a copy of this himself then sent up and filed in this court on June 14th. • As shown, that was much longer than even 90 days, when only 20 days was allowed under the law and order. It was not in the record at all as a statement of facts Is required to be in misdemeanor appeals, and' the stowing there was, as we stated:

“It is with certainty shown that appellant used all the diligence the law required of him to obtain a statement of facts, and that he was deprived thereof without any fault on his part”

■ — and under the peculiar circumstances and facts of that case we reversed the cause.

In several cases comparatively recently we have carefully investigated and reviewed the statutes and decisions on such questions as this, and have had occasion to state some of the rules applicable to the subject. Among them are these:

Ordinarily no statement of facts or bills can or will be considered by this court unless properly approved and signed by some judge authorized to do so; in other w'ords, the attorneys or the parties themselves cannot, by agreement, dispense with the 'approval and signature of some judge authorized to act in such matters. Section 596, 1 Branch’s An. P. C., p. 304; Sorrell v. State, 186 S. W. 343. Under this rule and the statute and the authorities, we cannot consider the said statement prepared by the appellant, as he contends we should.

Another rule is that if an appellant is deprived of either his bills or his statement by the opposite side or the trial judge, without any fault on his part, and when he has used all the diligence necessary on his part to procure such documents, he is entitled to a reversal; but, as stated, he must use all diligence necessary to procure these documents, and the fault for failing to procure them must not lie at his door. If he fails and the fault is his or his attorney’s, then he is not entitled to a reversal, even though he gets neither bills of exceptions nor a statement of facts, nor both. And, as otherwise expressed: If the failure to have a statement of facts or bills filed in time is due to the neglect of defendant, or if he fails to show diligence, or fails' to exhaust the means provided by law to obtain these documents, they will not be considered; nor in such event will the judgment be reversed for failure to obtain them. Section 597, p. 306, 1 Branch’s An. P. C.; Sorrell v. State, 186 S. W. 343. In the Sorrell Case, above cited, 186 S. W. 344, we carefully collated and cited a large number of cases wherein it was held that the delay and negligence of the appellants therein were such as would prevent a reversal, because they, did not sooner present their bills and statement of facts and have them acted upon. This case presents a much stronger case on this point than any of those cited.

It is clear from the showing made herein that the appellant failed to exhaust the means provided by law to obtain his bills of exceptions, and that the delay and negligence in not having them presented to the judge before he did does not entitle him to a reversal.

It is' also' well settled that when the duty devolves upon the court to prepare a statement of facts, he shall have a reasonable time to do so, and if he does so within such reasonable time, this court- will consider the same, even though filed after the 90 days provided by law. 2 Vernon’s An. O. O. P. p. 837, note 20. In this instance, the appellant took 88 days of his 90 allowed by law to prepare and hand to the trial judge the statement of facts he did prepare and hand him. It was practically, if not physically, impossible for the judge within the other two days to have prepared the statement of facts which he did herein. He stated in his refusal to approve that presented to him by appellant: “I will prepare and file a statement of facts as soon as possible.” He did prepare and file it on September 13th, which, under the circumstances, we think, was with all reasonable dispatch, and no doubt was filed as soon as he could file it, taking into consideration the discharge of his other official duties as well. Under the circumstances of this case and the law, we think it our duty to consider, and we have considered, the statement of facts pre-. pared and filed by the court herein, and the appellant is not entitled to a reversal’ for failure to get a statement of facts, or because the court’s statement was filed at the time it was. It was filed in this court weeks before the cause was reached or called for submission.

Appellant, supported by two compurgators, sought a change of venue on. the ground that there was so great a prejudice against him that he could not obtain a fair and impartial trial in Potter county. The district attorney properly denied and contested this, and also denied the knowledge, and means of knowledge, of the compurgators. Appellant introduced only five witnesses on the hearing. We have carefully read their testimony, and believe that it failed to establish appellant’s claim. Besides, the evidence in the case, the result of the trial and the punishment assessed satisfactorily show that he was mistaken in making the claim he did for a change of venue. The rule is well settled that the action of the trial court changing, or refusing to change, the venue will not be revised on appeal, unless it is made clearly to appear that such action was an abuse of the discretion confided to the trial judge, and was prejudicial to the defendant. 2 Vernon’s An. C. C. P. p. 342, and cases cited. The action of the court on this point shows no error.

The court committed no error in refusing to grant him a continuance on his motion. It shows no diligence whatever to obtain the attendance of the absent witness; in fact, it affirmatively shows no diligence was used. Besides, in at least a part of what appellant claimed said witness would testify, he himself testified the direct re-> verse.

The court gave a fair and full charge on appellant’s claimed self-defense on both real and apparent danger, although it is doubtful if the testimony raised the issue. The testimony overwhelmingly, both by all disinterested eyewitnesses and the physical facts, in effect showed that appellant killed deceased, not in his self-defense, but to avenge what he claimed was insulting conduct towards his wife.

We think the testimony did not call for a charge on threats by the deceased. Appellant requested a charge on the subject, but the charge asked was not the law, and should not have been given. Besides, the question is not presented in such a way as to authorize this court to review it. Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878; Byrd v. State, 69 Tex. Cr. R. 35, 151 S. W. 1068, and a large number of other cases unnecessary to cite.

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


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    DOOLEN et al. v. HULSEY et al.
    (No. 1090.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 11, 1916.)
    1. Appeal and Eke op. <§=>3S2 — Super-sedeas Bond — Sufficiency—-Amount—Statute.
    Where there was a money judgment against a part of the defendants, and a decree foreclosing a lien on land against all parties, without any money judgment against the appellants, a super-sedeas bond given under Rev. St. 1911, art. 2101, with a nominal penalty of $300, not double the amount of the money judgment, but far in excess of the costs, not purporting to be a cost bond under article 2097, and further conditioned under article 2102, providing for a supersedeas where the judgment is for the recovery of land or other property, was insufficient, where the money judgment exceeded the penalty denominated.
    . [Ed. Note. — For other-cases, see Appeal and Error, Cent. Dig. §§ 2036-2041; Dec. Dig. <S= 382.]
    2. Appeal and Ebbob <©=>1234(4) — Superse-deas Bond — Effect.
    Under Rev. St. 1911, art. 2101, providing for a supersedeas bond where the intention is to stay the judgment, the appellants, where the bond is in the form of the statute, are not necessarily required to pay the judgment in the event of defeat, as the bond is merely one of indemnity, and not one of penalty for the amount of the money judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4772; Dec. Dig. <©=1234(4).]
    ' Appeal from District Court, Childress County; J. A. Nabers, Judge.
    Action by G. W. Hulsey and others against J. H. Doolen and others. Judgment against part of the defendants, with decree of foreclosure of a lien on land against Rennell and the Childress Loan & Investment Company, and they, with others, appeal. On motion to dismiss appeal.
    Sustained.
    Jos. H. Aynesworth and W. B. Howard, both of Childress, for appellants. M. J. Hathaway, Fires & Diggs, and J. W. Davidson, all of Childress, for appellees.
   HENDRICKS, J.

A judgment for money was rendered in favor of certain parties and against a part of the defendants in this cause, not necessary to enumerate, and in the proceeding a decree of foreclosure of a lien on land was rendered against all parties, among whom were the appellants Ren-nell and the Childress Loan & Investment Company. No money judgment was rendered against them, and the bond on appeal executed by them partakes to some extent of the nature of a cost bond, under Rev. St. 1911, art. 2097, has some of the attributes of a supersedeas bond, provided by article 2101, and is further conditioned under article 2102, also providing for a supersedeas, where the judgment is for the recovery of, land or- other property, in effect that appellants will pay, if the judgment is affirmed, the value of the rent or hire of the property in any suit which may be brought therefor. The nominal penalty in the bond is the sum of $300, which is twice the probable amount of the costs, fixed by the clerk for the appeal of the case, instead of double the amount of the money judgment rendered in the case; but it also stipulates that the appellants shall perform the judgment of. the appellate courts, if rendered against them, and pay all such damages as may be awarded against them, likewise the value of the rent or hire of the property as stated.

The motion to dismiss asserts that the obligation is conditioned as a supersedeas bond, but 'is insufficient, in that the money judgment exceeds the penalty denominated. We sustain the motion. It is not a supersedeas bond under article 2101, in that it is not double the amount of the judgment; it is not a cost bond, in that it purports to be a supersedeas bond; and we conclude that article 2102, providing for a supersedeas, where land or other property is recovered, has no application whatever. Abstractly we-concede the argument that the courts are reluctant in denying the right of appeal, but the statute (article 2101), literally at least, provides for a bond where the Intention is to stay the judgment and can be followed. However, appellants are mistaken, as suggested in their reply to the motion, that in this character of case, if the bond is in the form of the article of the statute for supersedeas, that necessarily they would be required to pay the judgment, in the event of' defeat. The bond, though the statute should be followed to gain the right of appeal, is merely one of indemnity, and not one of penalty for the amount of the money judgment. What constitutes the indemnity, as. measured by any rule of damages, is a matter of subsequent consideration if it arises.. Not to be able to stay tbe execution of tbe judgment of foreclosure might be a great hardship on appellants, but not to sufficiently indemnify the appellees, in the event of a defeat, when retarded in the collection of their judgment, might constitute a wrong to them. But in order to supersede, we think, as said by Justice Templeton, in the case of Adoue v. Wettermark, 28 Tex. Civ. App. 596, 68 S. W. 553, “the only supersedeas bond which could be given was that provided by article 1404” (now article 2101). The obligors in the bond in that cause had the same status, in relation to the judgment rendered, as the appellants here, and, while the language used was upon a turn of the case involving a recovery on the bond after the appeal was determined, we think the rule and the reasoning are correct, and the case affords an able discussion, reinforced by the denial of a writ of error, on a question otherwise considerably vexed.

The motion to dismiss is sustained, with the right to appellants under the statute to prepare and file a sufficient bond within 15 days from the date of this order.
      ®^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    ATTAWAY v. SCHMIDT & MADIGAN GROCERY CO.
    (No. 608.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 19, 1916.)
    1. Livery Stable and Garage Keepers &wkey;> 6 — Duty op Care oe Horse — Medical Aid —“Ordinary Care.”
    It was the duty of livery stable keepers to use ordinary care and prudence in taking care of a horse placed with them for board while in their custody at their stable, and to render proper medical aid to such horse after it was injured, adopting such means and using such methods, in so doing, as was least likely to cause damage, “ordinary care” being that degree of care, skill, and diligence which an ordinarily prudent person would use in the transaction of his own business, under like circumstances.
    [Ed. Note. — Eor other cases, see Liyery Stable and Garage Keepers, Gent. Dig. § 5; Dec. Dig. <&wkey;>6.
    For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]
    2. Luvery Stable and Garage Keepers <&wkey; 6 — Injury to Horse — Negligence — Question eor Jury.
    In an action for the value of a horse placed in a livery stable to board, a charge, submitting to the jury the question whether it was negligence for the stable keepers to fail to employ a veterinary surgeon to treat a wound received by the horse, and to treat it themselves, was proper.
    [Ed. Note. — For other cases, see Livery Stable and Garage Keepers, Cent. Dig. § 5; Dec. Dig. <&wkey;6.]
    3. Livery Stable and Garage Keepers <&wkey; 6 — Liabilities eor Injuries to Horse — Evidence.
    In an action against livery stable keepers for the value of a horse, the owner was properly permitted to testify that “defendant told him that in his (defendant’s) opinion it was not necessary to have a veterinary surgeon to treat the horse for the injury.”
    [Ed- Note. — For other cases, see Livery Stable and Garage Keepers, Cent. Dig. § 5; Dec. Dig. <&wkey;>6.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Suit by tbe Schmidt & Madigan Grocery Company against David Attaway. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    A. B. Wilson and Cole & Cole, all of Houston, for appellant. Harry W. Freeman, of Houston, for appellee.
   HARPER, C. J.

This case was filed in the justice court by appellee against appellant for $175, the alleged value of a horse placed in livery stable for keep and board. Judgment was for appellee both in justice court and in the county court. From the latter this appeal is perfected.

The appellant urges, first, that it was error for the court to give the following charge:

“You are instructed that if you find that the defendants’ failure, if any, to employ a veterinary surgeon to treat the wound of said horse within a reasonable time after they learned of said injury, and their conduct in attempting to themselves treat the wound was negligence and was the natural and probable cause of said horse contracting the disease known as lockjaw, and that its death was the natural and probable consequence of said disease, then you should find for plaintiff.”
“In this connection, you are further instructed that it was the duty of the defendants, as caretakers of this horse, to see that the wound on the horse was properly treated, and that if defendants were unwilling to render such medical aid, it was their duty to notify plaintiff accordingly, a failure to perform this duty would be negligence.”

The proposition is:

“Where plaintiff sued for damages, alleging that the defendant was negligent in the care of a horse and the evidence offered shows a contract entered into for boarding a horse, and no agreement is shown to have been entered into by defendants to give the horse medical treatment or provide a veterinary surgeon if the horse became injured, the court erred in instructing the jury that it was the defendant’s duty to furnish a veterinary surgeon, and if the defendants failed in this, they would be guilty of negligence; there being no evidence to support the charge.”

The court gave, with the charge complained of, the following charge:

“You are instructed that it was the duty of defendants to use ordinary care and prudence in taking care of the horse of plaintiff while in their custody, at their stable, and also to render proper medical aid to said horse after it was injured, adopting such means and using such methods in so taking care of the horse as are least likely to cause damage.
“In this connection you are further instructed that by the term ‘ordinary care’ as used in this charge is meant that degree of care, skill, and diligence which an ordinarily prudent person would use in the transaction of his own business under like or similar circumstances.”

It will be noted that the charge next above quoted gave the correct rule applicablé to the care required of stable keepers with respect to animals in their charge, and it will further he noted that the charge complained of submits to the jury the question: Was it negligence for the defendant to fail to employ a veterinary surgeon to treat the wound and to treat it themselves? And it does not charge the jury that it was the duty of the defendants to employ a veterinary surgeon, but leaves that matter to them under the other portions of the charge.

It was not error for the court to permit the owner of the horse as a witness to testify that:

“Defendant told him that in his (defendant’s) opinion, it was not necessary to have a veterinary surgeon to treat the horse for the injury.”

Finding no error in the record, the judgment must be affirmed; and it is so ordered.
      ig^Por other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    MACIK et al. v. GARRETT.
    (No. 612.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 19, 1916.)
    Vendor and Purchaser <®=»315(3) — Action for Price — Assumption op Notes.
    In an action on notes for part payment of land, based as to one defendant on his alleged assumption thereof on his purchase of the land from another defendant, evidence that the land had not been deeded to him, but he had merely taken and forfeited an option, held insufficient to show his assumption of the notes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 931; Dee. Dig. &wkey;> 315(3).]
    Appeal from District Court, Burleson County ; Ed. R. Sinks, Judge.
    Action by Jesse Garrett against J. F. Macik and others. Judgment for plaintiff, and defendant Mikeska appeals.
    Affirmed as to the named defendant and another, and reversed and rendered in favor of defendant Frank J. Mikeska.
    C. S. Williams, of Caldwell, and W. W. Searcy, of Breuham, for appellant. A. B. Gerland, R. J. Alexander, and Jesse Garrett, all of Caldwell, for appellee.
   HARPER, C. J.

Appellee instituted this suit against J. F. Macik, Frank J. Mikeska, and Joe Elsik on nine promissory notes amounting to $3,750. The notes were executed by Macik payable to Jesse Garrett in part payment for 100 acres of land.

As to the cause of action against appellants, appellee set up that after the sale of the land to Macik he (Macik) sold to Mikes-ka, and that in the deed, as a part consideration, Mikeska, as a part payment of the purchase price, assumed the payment of the said notes from 2 to 9, inclusive. Appellant denied that he purchased the land or assumed the notes. Tried before jury, and verdict and judgment rendered for appellee against the defendants Macik and Mikeska. Mikeska appeals, and urges that the court erred in not instructing verdict for him in two assignments, upon the grounds that the evidence is not of such probative force as to be the basis of a judgment against him, in that there is no evidence that Macik ever executed a deed to him for the 100 acres, nor any evidence that he assumed the payment of the notes sued upon.

In order to sustain this judgment against appellant, Mikeska, there must be affirmative evidence that Macik, appellee’s immediate grantee, sold to appellant the land in controversy, executed a deed to him, i. e., that a deed was prepared, signed, acknowledged, and delivered to Mikeska, and that Mikeska agreed as a part consideration for the conveyance to pay the notes to appellee which Macik had theretofore made.

There is evidence that a deed was prepared, and that it recited the consideration to be some casíi and the assumption of the notes sued on, but there is no evidence that it was executed by Macik. Macik testified:

“I am the one that bought a place from Mr. Garrett. I don’t know anything about Mr. Garrett preparing a deed from myself and wife to Frank J. Mikeska. I heard it was prepared. I didn’t see it. Myself nor my wife have never made a deed and acknowledged it before any one nor delivered it to Mikeska. I signed this instrument (an option contract then introduced in evidence which provided that in case of failure of Mikeska to take the land, he forfeited $250).”

Mikeska testified that he took an option on the land as stated by Macik, and that he did not close the deal, but forfeited his $250, rather than to take the land at the price fixed. There was no deed produced in evidence, none on record, nor is there any evidence that such a deed as contended for by appellee was acknowledged.

Appellee contends that the circumstances are sufficient to sustain the verdict of the jury that such deed was executed. Having carefully examined the entire statement of facts, we conclude that there is no evidence upon the matters above enumerated to be essential to plaintiff’s cause of action upon which to base a judgment.

The facts appear to have been fully developed upon the trial, so the cause will be affirmed as to Macik and Elsik, and reversed and judgment here rendered in favor of appellant, F. J. Mikeska.


author: HUFF, O. J.

text:
    PANHANDLE & S. F. RY. CO. v. NORTON et al.
    (No. 1039.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1916.
    Rehearing Denied Nov. 8, 1916.)
    1. Carriers <&wkey;229(2) — Live Stock —Measure op Damages.
    The measure of damages for negligent injury of cattle in transit is the same whether they are for immediate sale on the market or for pasture.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dec. Dig. <&wkey;229(2).]

      2. OAREiees <&wkey;228(3) — Live Stock — Injuries — Improved Condition.
    The carrier, when sued for injuries to cattle in transit, may offer evidence of improvement of such cattle or recovery from their injuries, not for the purpose of showing that there were no damages, but to show the extent of the injury to the cattle at the time of their arrival and the resulting damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;228(3).]
    3. Appeal and Error &wkey;>1033(5) — Harmless Error — Instructions — Injuries to Live Stock.
    In suit to recover damages for alleged negligent injuries to cattle in transit, a charge to find for the carrier if the cattle entirely recovered and were of value equal to that before shipment, while erroneous, since the shipper would be entitled to damages as of the date of delivery, cannot be complained of by the carrier.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. &wkey;»1033(5); Trial, Cent. Dig. § 587.] '
    4. Carriers &wkey;>230(12) — Live Stock —Injuries — Improved Condition.
    In a suit for damages for alleged negligent injury to live stock in transit, a charge to consider the extent of recovery of the cattle from their injuries, and if recovery was complete, to find for the carrier, is not objectionable as confining consideration to complete recovery.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. <&wkey;>230(12).j
    5. Damages <&wkey;62(3) — Mitigation.
    Ordinarily it is the duty of the injured party to use ordinary or reasonable care to lessen the damages or preserve the property; the burden to show that he has not done so being upon the adverse party.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. '§§ 124-127; Dec. Dig. &wkey;62(3)J
    6. Carriers <&wkey;229(2) — Injuries to Live Stock — Measure oe Damages.
    Where live stock were negligently killed in transit and the shipper removed their hides and sold them, the carrier should be allowed, not the actual price, but the market value at the time and place where the hides were removed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964'; Dec. Dig. &wkey;229(2).]
    7. Carriers &wkey;>228(l) — Injuries to Live Stock — Measure op Damages.
    A shipper cannot recover as damages for injuries to live stock in transit an amount alleged to have been expended for medicines and care, in the absence of showing that such amount was reasonable and necessary.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958; Dec. Dig. <i&wkey;228(l).]
    Appeal from Deaf Smith. County Court, Jas. A. Hughes, Judge.
    Action By E. H. Norton and others against the Panhandle & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed, with provision for affirmance on filing remittitur.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant. Russell & Dameron, of Hereford, for appellees.
   HUFF, O. J.

This is an appeal from a judgment for $350, damages alleged to have been sustained to a shipment of 189 head of cattle, shipped by the appellees Norton, from Quanah, Tex., to Hereford, Tex., over appellant’s line of road. The cattle, it is alleged, were delivered to appellants at Amarillo, Tex., and up to that point had arrived safely; that the appellants negligently handled the shipment so as to seriously injure a great number of the cattle, 3 head of the cows dying soon after their arrival at Hereford, 48 head of the cows being bruised, etc., damaged $6 per head, the leg of a calf broken, etc., and other damages to other animals.

The first assignment assails the sixth paragraph' of the court’s charge. That part of the charge objected to, after charging that the measure of damages was tl*e difference between the market value of the cattle in the condition in which they arrived and the condition in which they should have arrived, if without injury from the negligence alleged, is as follows:

“And in arriving at the amount of your damages for the cattle skinned and bruised, if you find any damages, you will take into consideration the extent of the recovery from such injury, and should you find and believe that said animals entirely recovered from such injuries, and were after such recovery of the same or greater market value as they would have been if such injury had not occurred in the first instance, then you will find against the plaintiff and in favor of the defendant.”

The first proposition is to the effect that it was error to charge that the animals must, after recovery, be of value equal to or greater than before the injury; that the jury was entitled to consider the recovery in connection with' the injury at their arrival; second, that, the measure of damages being the difference in their market value, the subsequent recovery could only be considered as to the extent of such injuries.

The cattle were not shipped for immediate sale, but to be placed on the pasture. It is now the settled rule in this state that the measure of damages is the same on cattle shipped for pasture as for those for immediate sale on the market. “To make the plaintiff whole, he should recover a sufficient sum to enable him to sell the injured property and replace it with that which is uninjured.” Railway Co. v. Stanley, 89 Tex. 42, 33 S. W. 109; Railway Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; Railway Co. v. Lindsey, 175 S. W. 708; Railway Co. v. Reed, 165 S. W. 4; Railway Co. v. Mulkey, 159 S. W. 111; Railway Co. v. Holmes, 177 S. W. 505.

The carrier may offer evidence of the improvement of the cattle, or that they recovered from their injuries, not for the purpose of showing there were no damages at the time of the injury, but their improved ’condition is for the consideration of the jury so they may ascertain from their then condition, and the other facts, the amount of injury the cattle sustained at the time of their arrival and the damages which flow from it. It is held in the Lindsey and Mulkey Cases, supra, that a charge to that effect, however, would be upon the weight of the evidence; that it would be a suggestion by the court that such facts had been proven. The court should not single out that special fact, and especially direct the attention of the jury to a consideration of these particular facts. In the first part of the charge quoted the jury are told to “take into consideration the extent of recovery from such injury.” The recovery of the cattle to be. considered by the jury would be for the benefit of appellant. The charge, instructing the jury that if they believed the cattle entirely recovered and were of equal or greater value, to find for appellant, was favorable to appellant. This portion of the charge was error, but it was an error against appellees and in favor of the appellant. If the cattle were injured upon arrival appellees were entitled to their damages. If the cattle subsequently recovered, this would not defeat the damages for the injury upon arrival. We do not see how this charge could have operated to the injury of the appellant or afford a just ground for complaint. In the Word Case, 57 Tex. Civ. App. 206, 111 S. W. 753, supra, it is said:

“To hold otherwise is to adopt a less certain rule, and to give the carrier the benefit of the increased time and hazard involved in a recovery from the injuries. Of course, facts subsequent to the arrival of injured cattle, such as slow, rapid, or ultimate or entire recovery, may be looked to in ascertaining what was the real condition and loss at the time of arrival, but, as stated, in every case the measure of the shipper’s damage is to be fixed as of the time of the arrival of the injured cattle at the point of destination.”

The charge complained of gave appellant the benefit of a recovery, and authorized the jury to release it from all damages, if entire recovery was found by the jury. Such was the effect of the charge, and therefore to appellant’s interest and not to its injury. For this reason we overrule the first assignment of error.

The second and third assignments are overruled for the reasons given in overruling the first assignment. The appellant’s contention that the charge confined the jury to the full recovery we do not think justified. The jury were first directed to consider the “extent” of the recovery of the cattle in estimating the damages; and, second, if they found entire recovery, to find for the railway. This was not a matter of which appellant could complain.

The fourth assignment complains of the fifth paragraph of the charge, which directed the jury that they would allow the appellant the market value of three hides, taken from cows and one from a calf, at the time the hides were removed. It appears the four animals died and were skinned by appellee and the hides saved. The testimony shows that green hides were worth five cents per pound at the time of removal, and that in their condition when sold at Hereford appellee received about seven cents per pound. The appellees, in their petition, offered to credit appellant with the market value of the hides at the time of their removal. The appellant did not claim this offset in its answer. If under the pleadings appellant was entitled to anything, it occurs to us the court adopted the correct measure of damages or offset; that is, the value of the hides at the time and place of removal. Ordinarily it is the duty of the injured party to use ordinary or reasonable care to lessen the damages or preserve the property. If he has not done so, the burden is on the wrongdoer to show it. Necessarily, there is some labor, cost, and trouble in removing the hide of an animal and in preparing it for market. The party performing the work necessary should be entitled to be reimbursed therefor. Appellant, by its evidence or pleading, makes no allowance therefor. The court, we think, adopted a more correct rule as to the credit to which appellant was entitled, if anything. Out of the injury appellees saved, for the benefit of appellant, the hides, and allowed appellant the full market value of the hides at the time and place of their removal, charging it nothing for their services in doing so. This assignment is overruled, together with the fifth assignment, presenting the same question, upon refusal of a special instruction.

The sixth, seventh, and eighth assignments present the question as to whether the pleadings and evidence authorized the charge of the court in submitting the issue to the jury as to whether $10 for medicine and $10 for labor, in doctoring the cattle injured, were reasonable and necessary. Assignment 6 asserts there was no pleading authorizing its submission. Assignment 7 is that the court erred in refusing a special instruction, to the effect that the jury should find against both items. Assignment 8, that the charge of the court in submitting the item for $10 for medicine used in treating the cattle was error, because there was no evidence what the medicine was reasonably worth, or what was paid for it. First. The pleadings would have been subject to a special exception on these items, but, in the absence of such exception, it was sufficient to admit the proof that the medicine and labor furnished were reasonably necessary. Therefore assignment 6 is overruled. Second. The specially requested instruction directs a finding against both items. There is sufficient evidence that the labor done and the charge therefor were reasonable and necessary. The seventh assignment is overruled. Third. The evidence does not show the amount paid for the medicine, or that the price paid was reasonable and necessary. The eighth assignment should be sustained. A remittitur, therefore, will be required of $10, to be filed in 15 days from this date. Wheeler v. Tyler, S. E. Ry. Co., 91 Tex. 356, 43 S. W. 876.

The ninth assignment is overruled. Without discussing the evidence, we believe it to be sufficient to support tlie amount oí damages recovered, except the $10 for medicine. The judgment must be reversed upon that ground, unless the appellees shall enter a re-mittitur of the sum of $10 within IS days from this date, in which event the judgment will be affirmed, at the cost of appellees.
      @=^Far other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «SrxoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    AMERICAN NAT. BANK OF FT. WORTH v. STRONG.
    (No. 7739.)
    (Court of Civil Appeals of Texas. Dallas.
    July 1, 1916.
    Rehearing Denied Oct. 14, 1916.)
    1. Execution &wkey;>172(6)—Temforary Injunction—Affidavits—Positive ness;
    Upon petition for temporary injunction restraining the sale under execution of lands, affidavits annexed to the petition, stating that the land was exchanged by petitioner for his homestead, were sufficient to authorize the injunction, although one of them stated such facts not positively but as true to the best of affiant’s knowledge and belief.
    [Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 536, 587; Dec. Dig. &wkey;172(6).]
    2. Injunction <&wkey;122—1Temporary Injunction—Affidavits—Positiveness.
    The verification of a petition for a writ of injunction should state positively that the grounds alleged therein are true.
    [Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <&wkey;>122.]
    3. Homestead <s&wkey;209—Proceeds of Homestead—Land Exchanged — Levy Within Six Months.
    Where levy of execution upon land exchanged for homestead of the judgment debtor is made within six months after the exchange, sale thereunder will be restrained by injunction, although the six months has expired; the levy made within such time being wholly ineffectual.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 389, 390; Dec. Dig. &wkey;209.]
    Appeal from District Court, Van Zandt County; R. W. Smith, Judge.
    Suit by Sterling P. Strong against the American National Bank of Ft. Worth. From an order granting temporary injunction, defendant appeals.
    Affirmed.
    Bryan, Stone & Wade and W. C. Blalock, all of Ft. Worth, for appellant. Gibbard & Tisdale, of Wills Point, for appellee.
   RAINEY, O. J.

This is an appeal from an order of the district judge of Van Zandt county, Tex., granting a temporary injunction restraining the sale of certain lands under execution. The petition shows that the ap-pellee, ' Strong, exchanged his homestead for the land; that within six months of said exchange the appellant bank caused au execution issued by virtue of a judgment against Strong and others to be levied on same, and the land was to be sold by virtue of such execution.

The appellee’s affidavit to the petition was that the allegations were true to the “best of his knowledge and belief.” In addition to appellee’s affidavit were two affidavits' of other parties which stated that to their knowledge the land was exchanged for the homestead, and one of them states that no money was paid by appellee in the exchange. K-)

The verification of a petition for the writ of injunction was to show that the grounds alleged therein are true. The affida: vit of appellee was defective in not stating positively the allegations were true, but we think the other affidavits annexed to the petition were sufficient to authorize the action of the judge in granting the writ.

Appellant urges that the six months allowed for the disposition of the land has expired and the injunction should be dissolved. The levy of the execution was made within the six months after the exchange and is ineffectual, if the land was acquired in exchange for a homestead. Witt v. Teal, 167 S. W. 302. Therefore as to this injunction it will not be dissolved, but the action of the lower court will he affirmed.

Affirmed.


author: WALTHALL, J.

text:
    ROBERTS v. ATWOOD et ux.
    (No. 600.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 19, 1916.)
    1. Appeal 4nd Error <&wkey;1011(l)—Contracts —Actions—Recovery—Right to.
    Plaintiff, the remote warrantor, undertook to perfect defendants’ title to a portion of land; the contract providing that title should oe perfected within a reasonable time, that suit to perfect title should be begun within six months and prosecuted with reasonable diligence, and that title should be approved by defendants’ attorneys. Defendants’ attorneys testified that they did not approve the title offered by plaintiff, and there was testimony denying any waiver of the time limit. Reid,, that assignments of error that the uncontradicted evidence showed compliance with the requirements of the contract, and a waiver of the time limit, could not be sustained, though it appeared the court found that plaintiff had perfected the title.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. <&wkey; 1011(1).]
    2. Contracts <&wkey;327(l) —Actions— Condition Precedent.
    Approval of title by defendants’ attorneys being a condition precedent to plaintiff’s right to recover under the contract, and the attorneys’ disapproval not being alleged or shown to be arbitrary or in bad faith, no recovery can be had.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1563-1570; Dec. Dig. &wkey;327(l).]
    3. Contracts <&wkey;278(l)—Performance.
    As the contract recited that defendants’ title was imperfect, plaintiff’s assignment of error that, as defendants deraigned title through him and a credit had been allowed on account of the imperfection, it was inequitable for them to retain title, cannot be sustained.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1207-1213; Dee. Dig. &wkey;278(l).]
    4. Judgment &wkey;3251(l)—Conformity to Issues—Contract.
    Plaintiff conveyed land by warranty deed to defendants’ grantors, who on transferring it to defendants received vendors’ lien notes, the last of which provided for a deduction in case title to certain portions was not perfected. The last note passed to plaintiff, and, title not being perfected, he entered into a contract whereby defendants were to pay him the amount of the deduction for perfecting their title. Held, that in a suit merely for the agreed price, where the contract made no provision that any subsequently acquired title should not inure to the benefit of defendants, it was improper for the court to find that the subsequently acquired title did not pass under the warranty.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. &wkey;>251(l)/l
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by Ingham S. Roberts against T. J. Atwood and wife. From a judgment, both parties appeal.
    Judgment affirmed on plaintiff’s appeal, and reformed on defendants’ appeal.
    D. E. Simmons, John B. Warren, and Quit-man Finlay, all of Houston, for appellant. Howard & Kendall, of Houston, for appel-lees.
   WALTHALL, J.

Ingham S. Roberts brought this suit against T. J. Atwood and Ida L.- Atwood, the facts at issue being, substantially: That on the 18th day of February, 1911, he conveyed by warranty deed to Alice Stratmann three acres of land, and including within its metes and bounds a strip of land on the north side of said three-acre tract of the width of 30 feet, and a strip of land along the south side of said three-acre tract of the width of 60 feet. That Alice Stratmann, joined by her husband, by warranty deed, conveyed the same property, including the said two strips of land, to appel-lees, T. J. and Ida L. Atwood, retaining a vendor’s lien, for which, as a part consideration, appellees executed their three notes, aggregating $1,921.50; the notes bearing 8 per cent, interest and providing for attorney’s fees. That at the time of the execution of the deed from Alice Stratmann and husband to appellees, objection was made by the attorneys for appellees to the title to said two strips of land. The trade, however, was closed; the entire three acres, including both strips, being conveyed by Alice Stratmann and her husband to appellees, with the agreement in the third note that:

“In the event the record title is not perfected in us (Alice Stratmann and husband) by the time this note is due as to the two strips of land, one 30 feet in width off the north end of the tract herein described, and one 60 feet off the south end thereof, there shall be credited on this note the sum of three hundred and sixty three dollars and twelve cents.”

The title to said strips of land had not been perfected when the note became due. Roberts, who had conveyed the land to Alice Stratmann purchased the said third Atwood note. After the maturity of the note, on, to wit, December 1, 1913, the Stratmanns and Roberts executed a release of the vendor’s lien against the entire tract of land, including the two strips. The release was made upon the payment to the Stratmanns by ap-pellees of the amount of the purchase money less the credit of said $363.12. On the same day (December 1, 1913) appellees entered into a written agreement with appellant, reciting the facts above stated, and the stipulation as to conditional payment of the $363.12. The contract provides: .

“And because of said stipulation and of the fact that the title to said land was not perfected as therein provided for, the credit of $363.12 was, at the maturity of said note, made thereon, and, whereas, the said T. J. Atwood and wife Ida L. Atwood, desire to have their title perfected to all of the lands and premises described in the deed to them from the said Alice Stratmann, and have agreed to give additional time for the perfecting of their title to the two strips of land mentioned ■ in said note, provided that the same is done within a reasonable time and that all possible diligence is exercised in said business by the said Ingham S. Roberts. " Now, therefore, in consideration of the premises, we, the said T. J. Atwood and wife, Ida L. Atwood, do hereby agree to pay to the said Ingham S. Roberts the sum of $363.12 (and two years’ interest at 8 per cent.) without interest, provided that he perfects the record title and makes good title in us to the 30 feet of land off the north end of said land as described in said note with all possible diligence, and also that he perfects the record title and makes good title in us to the 60 feet of land off the south end of said tract as provided in said note, and within six months from this date institutes all such necessary proceedings and prosecutes the same to final judgment with diligence. In the event he fails to institute such proceedings within six months from this date or to otherwise perfect the title in us to said 60 feet of land, this being the essence thereof, and should within that time, or should subsequently perfect in us the title to said 30 feet strip off the north end, we then or within 30 days thereafter, agree to pay to the said Ingham S. Roberts one-third of said sum of $363.12 (and two years’ interest) without interest. When the title to either one or both of said strips is perfected as herein provided for, evidence shall be procured from a competent abstractor and submitted to Sam, Bradley & Fogle for examination and approval, and such sums shall only become due after the approval of such attorneys. It being distinctly understood that in the event the title is not so perfected in said 60 feet strip or legal proceedings instituted within six months from this date that nothing shall be due the said Ingram S. Roberts hereunder, except the one-third of said total consideration that may become due in the event he perfects the title in us to the 30 feet strip off the north end of the land.”

The objection to the title to the two strips seems to be that an easement with the right of use for a highway remained in others. Roberts undertook to perfect the title in ap-pellee to the two "strips, and in his petition alleged that he had done so within the time and in the manner provided in the contract,, and claims that the matter of time was waived by appellees or their attorneys. Ap-pellees deny the waiver of time; assert that, while appellant in a manner undertook to perfect the title to the two strips of land, he failed to perfect the title within the time provided by the' contract, and never perfected the titles to the satisfaction of said Sam, Bradley & Fogle; that he never did submit to said attorneys an abstract of tbe title showing wbat be bad done towards tbe perfection of tbe titles in order that said attorneys might pass upon tbe same. Tbe pleadings are lengthy, and the issues made will be further stated where it is deemed necessary.

Tbe case was tried without a jury, and tbe court denied Roberts’ claim for a money judgment, and also bis alternative claim to recover tbe two strips of land, but limited tbe effect of tbe warranty in Roberts’ deed to tbe Stratmanns, so that tbe same would not have the effect of passing to appellees any title that Roberts may have acquired after December 1, 1913, tbe date of tbe contract with appellees under which be undertook to perfect tbe title to said two strips of land. There are no findings of fact or conclusions of law found in tbe record, other than are stated in tbe judgment.

Appellant’s first assignment is to tbe effect that tbe judgment is contrary to tbe law and the evidence, in that tbe uncontradicted evidence showed that appellant bad complied with all of tbe requirements of bis contract of December 1, 1913, and bad obtained and submitted to Sam, Bradley & Eogle tbe evidence required by them necessary to perfect the title as claimed by said attorneys to the two strips of land. Tbe second assignment is very similar to tbe first and complains that tbe judgment is contrary to tbe law in that it denies any recovery, on tbe sole ground that appellant bad not complied with tbe contract of December 1, 1913, within tbe time required by tbe terms of tbe contract when tbe judgment should have been in view of tbe uncontradicted evidence that appellant bad complied, at tbe time of tbe trial; appellant claiming that tbe matter of time bad been waived.

These two assignments will be discussed together. It will be observed that tbe note, tbe third note, contained tbe provision that, in the event tbe record title was not perfected in tbe appellees to tbe two strips of land by the time tbe note becomes due, there shall be credited on tbe note tbe sum of $363.12. Tbe contract of December 1, 1913, after reciting tbe above provision of tbe note, recites that: “Because of said stipulation and of tbe fact that tbe title was not perfected as therein provided for, tbe credit of $363.12 was, at tbe maturity of said note, made thereon”; that appellees desire to have the title perfected, and agree to give additional time to perfect tbe titles provided same is done within a reasonable time, requiring diligence; that, should the title be perfected to tbe 30 feet as provided, appellees agreed to pay the $363.12 and two years’ interest; and, also, that tbe title to tbe 60 feet be perfected. And it seems to contemplate that title to tbe 60 feet could not be perfected without the institution of proceedings, and provides that such shall be begun within six months from that date and prosecuted with diligence. Still another provision is in tbe contract having in view tbe perfecting of tbe title to tbe 30 feet, as follows: “Or should subsequently (to tbe six months) perfect in us tbe title to tbe 30-foot strip” appellees agreed to pay one-third of tbe $363.12. Tbe contract then provides that:

“When the title to either one or both of said strips is perfected as herein provided for, evidence thereof shall be procured from a competent abstractor and submitted to Sam, Bradley & Eogle for examination and approval, and such sums shall only become due after the approval of such attorneys.”

Mr. Bradley, of tbe law firm of Sam, Bradley & Eogle, who seems to have bad tbe matter in band for that firm, testified on tbe trial. He said in part:

“I heard Mr. Roberts testify this morning that I had approved this title, and had written Mr. and Mrs. Atwood to come in and settle. I never did write such a letter as he testifies about. I did nothing further with reference to this matter than is disclosed in the opinion of this case. I had no authority to waive anything. * * * I have at all times, in my conversations with Mr. Roberts, insisted on compliance with the original contract, until Prof, and Mrs. Atwood and Mr. Roberts had agreed upon a second contract of 6 months, and I insisted upon a compliance of that contract until Prof. Atwood authorized the extension of 10 days in which to either file suit or comply with our requirements which were in writing. I never at any time waived for Mr. and Mrs. Atwood the performance by Mr. Roberts of any of the conditions contained in that written agreement in reference to perfecting the title or any part of it. I never made any waiver excepting as authorized by Prof. Atwood when I wrote the letter stating that he had agreed to the 10 days’ extension; that is, the letter of June 19th. Mr. Roberts had not performed the conditions contained in that agreement and perfected the title up to and including the expiration of the 10 days; what he has done since I do not know. I wasn’t interested in anything after the 10 days. At the time we started into this trial the last time there was a deed shown me, but I was not to pass on special instruments; I was to pass on instruments shown by the abstract. I have never approved the title to either of these strips of land.”

After testifying at some length as to conversations bad with Roberts and examining certain instruments Roberts bad secured and presented to him, for examination, and to conversations bad with Atwood, and tbe contents of letters be had written to Atwood which we need not quote here, tbe witness said, “I can state to you tbe objections now that I have to this title,” and then at some length proceeding to do so, in line with a written objection to tbe title formerly made.

Tbe point we suggest is that, up to tbe time of tbe trial and at tbe trial, tbe evidence is not uncontroverted as claimed in tbe assignment that tbe law firm of Sam, Bradley & Eogle bad approved tbe Roberts’ title to either of tbe two strips of land.

Tbe judgment of tbe court recites that:

“It further appearing to the court that the plaintiff did not comply with the contract of date December 1, 1913, as to the title to the two strips of land included within the metes and bounds of the tract hereinbefore described.”

It seems quite clear to us, both from tbe evidence of tbe witness Bradley, and from the finding of the court as stated in the portion of the judgment quoted above, that the record does not disclose the fact that “the uncontradieted evidence showed that the plaintiff had complied with all of the requirements of his contract of date, December 1, 1913.” The evidence and the judgment disclose that, even, on the trial of the case, Sam, Bradley & Fogle refused “to accept the evidence of title tendered by the plaintiff to the two strips of land.” The assignments are not based on the sufficiency of the evidence to sustain the court’s finding, nor does the record or the judgment itself disclose that appellant was denied recovery “on the sole ground that the plaintiff had not complied with his contract of date, December 1, 1913, within the time required by the terms of said contract,” as claimed in the second assignment. True, the trial court finds and recites in the judgment that “it appearing to the court that the plaintiff has obtained the title to said two strips of land at this time,” but the contract is the basis of appellant’s right of recovery, and states the condition upon which the claim sued upon becomes payable. As said by the court in Moling v. Mahon, 86 S. W. 956, the time never arrived for the payment of the $363.12 and accepting the title, if the construction of the contract be that they were not obligated to do so until the attorneys, Sam, Bradley & Fogle, approved the title. This case, as was the Mo-ling v. Mahon Case, is relieved from any embarrassment connected with a want of good faith on the part of the attorneys in passing upon the title, for there is neither averment nor proof that they acted in the matter arbitrarily or in bad faith. Appellant insists that it is inequitable for the appellees to retain the title to the two strips and not pay the consideration. That assumes that appellees have title. We are not called upon to decide whether appellees have or have not title. The contract of December 1, 1913, stipulates that the title was not perfect at that time, and that appellees desired to have the title perfected, and appellant undertook to do so to the satisfaction of the attorneys named, and it does not appear from the findings of the court in the judgment that they have done so. The assignments are overruled.

The third assignment insists that inasmuch as the evidence shows that appellees deraign title through the Stratmanns and they through appellant, and that appellees have not paid the agreed consideration to either strip of land, plaintiff should recover under his alternative plea for title. What we have said in discussing the preceding assignments has equal application to the third. The assignment states a good proposition of law. It would not be good, however, where it is admitted, as in the contract, that the “title conveyed was imperfect.” An imperfect title admits a defense. The parties agreed that the title was defective, and agreed to perfect it as stated in the contract, and that when perfected an abstract showing a marketable title should be presented to and passed upon by the attorneys named in the contract. The contract stipulates that “such sums shall only become due after the approval of such attorneys.” If the title was perfected and presented to the attorneys so agreed, and the attorneys had arbitrarily or in bad faith refused to approve the title, we think appellant then should have recovered. But such aver-ments and facts do not appear. The assignment is overruled.

Appellees present this cross-assignment:

“The court erred in limiting the effect of the warranty deed from the appellant, Roberts, to the Stratmanns, so that whatever title Roberts acquired after December 1, 1913, would not pass to the Atwoods by reason of such warranty.”

When Alice Stratmann and husband, E. Stratmann conveyed the land, including the two strips in controversy, to Ida L. Atwood, note No. 3 above quoted was given as a part of the consideration. It provides that, in the event the record title to the two strips was not perfected at the date of the maturity of the note, the $363.12 should be credited on the note. At the maturity of the note, the title had not been perfected; the Atwoods paid the consideration for the land less than $363.12, and that sum ($363.12) was then credited on the note.

The contract of December 1, 1913, was then made with Roberts, the warrantor of the Stratmann title. That contract recognizes that the title to the two strips was then imperfect and that the Atwoods desired that the title should be made perfect. Additional time was given for perfecting the title. Roberts at that time had purchased the note No. 3 from the Stratmanns. The subsequent proceedings were had under the new contract. The Stratmanns were then eliminated from the effort of Roberts to perfect the title in the Atwoods, and the agreement of the At-woods was to pay to Roberts the agreed value of the two strips, in the event the title was perfected under the stipulations of the contract of December 1, 1913. At that time, the condition of the title was that the Atwoods held the title to the land, including the two strips, by warranty deed from the .Strat-manns, free of the vendor’s liens; Roberts being the remote vendor to Alice Stratmann by warranty deed. The insistence of the ap-pellee under this cross-assignment is that appellant would, for the consideration of $363.12, perfect the title to the two strips of land, and that there was no provision in the contract that any warranty contained in his deed should be in any way canceled, modified, or limited, and that the pleadings would not support the judgment modifying the effect of Roberts’ warranty.

The record discloses the contract to be that, if Roberts perfected the title to the two strips of land according to the stipulations in the contract of December 1, 1913, he should be paid the sum of $363.12. If Roberts bad not performed tbe contract as stipulated, be should not recover such sum, nor should he, in the absence of an agreement, destroy or in any way affect the title given him in the warranty deed. The trial court found that Roberts had not complied with the stipulations in the contract, but the court undertook to pass upon the sufficiency of the title tendered by Roberts on the trial, and held that the title them tendered was relieved of the imperfections complained of, and, Atwood refusing to accept the title as tendered, the court, in the judgment, undertook to limit the effect of the warranty deed from Roberts to Stratmann, so that whatever title Roberts acquired after December 1, 1913, should not pass to the Atwoods. As stated in the cross-assignment, there is no provision in the contract that his deed should be so limited, and it seems to be that appellant’s pleadings do not support such judgment. The rule clearly is that any after-acquired title inures to the benefit of the vendees under the warranty. Appellant’s contention that Atwood should not have the benefit of a title not paid for is hardly supported by the facts. There is nothing in the note upon which the sum of $363.12 was credited, nor in the contract, nor in the evidence, to show that the sum of $363.12 was the actual or the agreed value of the two strips of land. That amount was agreed in the note tó be retained by Atwood until its maturity, and, if at that time the title was perfected in the Atwoods, the amount was to be paid and, if not, was to be credited on the note. In the new contract, the sum of $363.12 was the consideration to be paid to Roberts should he perform the contract.

The cross-assignment is sustained, and the judgment reformed that appellant take nothing by his suit.

Reformed and affirmed.
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author: TALBOT, J.

text:
    KEELING v. POINDEXTER et al.
    (No. 7620.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1916.)
    Appeal and Ebbor <&wkey;1054(l) — Harmless Error — Admission op Evidence — Trial by Court.
    Upon trial before the court without a jury, the admission of incompetent or irrelevant evidence was not ground for reversal, where there was other evidence amply sufficient to authorize the judgment rendered.
    _[Ed. Note. — For other cases, see Appeal and Error, .Cent. Dig. § 4185; Dec. Dig. &wkey;> 1054(1).]
    Appeal from Freestone County Court; G. W. Fryer, Judge.
    Action by W. J. Keeling against T. B. Poindexter and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Boyd & Bell, of Teague, W. M. White, of Mexia, and R. L. Williford, of Fairfield, for appellant. Oallicutt & Johnson, of Corsicana, for appellees.
   TALBOT, J.

W. J. Keeling brought this suit against T. B. Poindexter, Oliver Burle-son, M. A. Riley, W. J. Bryant, and Henry Bounds, to recover commissions alleged to be due for services rendered in securing the sale of 1,239 acres of land to them by G. B. Everett. The plaintiff, Keeling, alleged in substance that on or about November 21, 1913, G. B. Everett, a citizen of Freestone county, Tex., was the owner of 1,239 acres of land situated in said county, being part of the James Sparks survey, that plaintiff was engaged in the business of selling land, and that on said last-named date, said Everett listed said land with plaintiff for sale at $15 per acre, and agreed to pay plaintiff 5 per cent, commission on the selling price; that on the same day, one of the defendants, Henry Bounds, phoned plaintiff to come to Wortham, stating that he and T. B. Poindexter and Oliver Burleson desired to purchase said land; that in response to said call, plaintiff went to Wortham, met defendants, and they informed him that they desired to purchase the 1,239 acres and also a 320-acre tract adjoining the 1,239 acres, which was also owned by said G. B. Everett; that plaintiff then notified defendants that Everett would not sell the 320-acre tract; that defendants then agreed that if plaintiff could induce Everett to sell them the 1,239 acres at $15 per acre, they would pay one-half of the commission, to wit, 2% per cent, commission; that the other defendants placed defendant Henry Bounds in charge of the matter to act for them, and that plaintiff then requested said Henry Bounds to take the matter up with Everett, which he did, and Everett refused to make the sale; that plaintiff then took up the matter with Everett, and explained to him that he had an offer of $15 an acre for his land, and that defendants would pay one-half of the commission, and that he (Everett) would have to pay ohe-half, 2% per cent, commission, instead of 5 per cent.- as originally agreed on, and that Everett then agreed to sell the 1,239 acres to defendants, at $15 per acre, and did then make said sale, the price aggregating $18,585, and that defendants are due plaintiff $464.-66%, less $77.45 paid by defendant Henry Bounds, leaving a balance due plaintiff of $387.17; that all of the defendant's, and said G. B. Everett, were fully advised, and all distinctly understood that said Everett should pay plaintiff 2% Per cent, commission; and that the defendants should pay him 2% per cent, commission. The defendants answered by general and special exceptions, and general and specific denial of all the material allegations of plaintiff’s petition. They denied that they knew plaintiff was the agent of Everett, and alleged, in substance, that G. B. Everett, owner of the land, did not list it with plaintiff for sale; that defendant Bounds did not phone plaintiff to come to Wortham, but if he did so, it was without authority of the other defendants, and that they would not be bound thereby; that they did not agree with plaintiff that if he would induce Everett to sell them the 1,239 acres of land, that they would pay plaintiff a 2% per cent, commission or any other sum, and they did not, in fact, employ plaintiff to assist them in purchasing the 1,239-aere tract. Everett, the owner, had already agreed to sell defendants the 1,239-aere tract at $15 per acre, long prior to any connection plaintiff may have, had with reference thereto; that Everett did not sell defendants the 1,239 acres of land on account of any effort or act of plaintiff, and plaintiff was not the efficient and procuring cause of such sale being made, and that plaintiff had nothing whatever to do with effecting or causing said sale; that they do not owe plaintiff any sum whatsoever, for he did nothing to induce Everett to make the sale; that they never employed him to assist them or agreed to pay him any sum therefor, and he rendered no service in causing the sale of the 1,239 acres to be made by Everett to them; that plaintiff attempted to represent both parties, and charging both a commission, if he did so, was an act of fraud. The ease was tried by the court without a jury, and judgment rendered in favor of defendants. Plaintiff filed a motion for a new trial, which was overruled, and he appealed.

The first assignment of error is to the effect that the trial court erred in refusing to render judgment in favor of plaintiff against the defendant W. J. Bryant for the amount sued for, because it appeared by the testimony of the plaintiff that defendants had agreed to pay plaintiff a commission of 2% per cent, on the price agreed to be paid for the 1,239-acre tract of land, and defendant Bryant had admitted his liability therefor and personally agreed to pay the same. By his second assignment of error the appellant states what he claims the evidence shows, and asserts that the judgment of the court below is contrary to the preponderance thereof. In disposing of these assignments, we believe it would serve no useful purpose to detail the voluminous testimony introduced, or undertake to state the substance of it. Upon a careful examination we find it to be conflicting, but amply sufficient to support the trial court’s judgment. The ap-pellee Bryant very positively denied upon the witness stand that he had admitted his liability for the amount of the commissions sued for, or promised to pay the same. He admitted an unsuccessful effort to compromise and settle with appellant for a certain amount, rather than have a lawsuit or any unpleasantness over the matter, but denied any unqualified admission of liability or promise to pay the amount claimed by appellant. In this connection he téstified:

“I never did at any time contract or agree to pay Mr. Keeling, the plaintiff, a commission of 2Y2 per cent, of the selling price for the purchase of the 1,239 acres of land at $15 per acre, from G. B. Everett.”

The contention that the judgment of the trial court is contrary to the preponderance of the evidence is not sustained by the record. The testimony of each of the five defendants is emphatically to the effect that neither of them at any time or place agreed to pay appellant a commission for services to be rendered in securing a sale of the 1,239 acres of land from G. B. Everett. If, according to the testimony of appellees, the services of the appellant were sought or desired in their efforts to purchase the lands, it was for the purpose of getting him to do what he could to induce Everett to sell to them, in connection with the 1,239-acre tract, which had already been offered for $15 per acre, the 320-acre tract. This suit is upon an alleged express contract to recover for services charged to have been rendered in bringing about the sale of the 1,239-acre tract, and no amount is claimed for anything appellant may have done to secure a sale of the 320^ acre tract. Besides, it is uncontroverted that Everett refused to sell the 320 acres, and each of the appellees testified that no amount whatever was agreed to be paid appellant for any such efforts as he put forth to induce a sale of the 320-aere tract. In reference to the purchase of the 1,239-acre tract the appellees testified, in substance, not only that they did not agree to pay appellant the commissions claimed by him, but that they refused to pay him any such commissions. G. B. Everett testified that appellant did not render him any assistance, or have anything to do with selling the land to appellees; that he did not know appellant was associated with appellees in their negotiations and purchase of the land, and that appellant did not induce him to sell to appellees. He further testified that so far as he knew he made the sale of land to appellees himself without any effort on appellant’s part. It is very clear a reversal would not be warranted on the ground that the judgment is contrary to or not supported by the evidence.

Appellant presents his fourth, seventh and ninth assignments of error together. These assignments complain of the admission of testimony to the effect that it had come to the knowledge of appellant, before the time he claims to have contracted with appellees and represented them in the purchase of the land, that Everett had offered them the 1,239-acre tract of land at $15 per acre, that Everett had made appellees such an offer, and that appellees had agreed to buy the 320 acres' at $15 per acre if they could. We think all this testimony was admissible, but if for any reason any of it was incompetent or irrelevant, it furnishes no sufficient reason for a reversal of the case, since the trial was had before the court without the aid of a jury, and there was other evidence amply sufficient to authorize the judgment rendered.

For the same reason the tenth assignment, complaining of the admission of the testimony of the appellee Bryant to the effect that the appellees, before appellant communicated with them in regard to the purchase of the lands, had agreed among themselves to buy one or both of the tracts of land in question in this suit, will be overruled.

We have found no reversible error in the record, and the judgment is affirmed.
      <§=>For other oases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    GAUT v. DUNLAP et al.
    (No. 1028.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1916.)
    1. Brokers <@=360 — Realty Broker — Right to Commission — ‘ ‘Deal.”
    Where a contract for the exchange of lands provided that the exchange be completed by execution and delivery of warranty deeds on or before noon, January 1, 1916, and that when the deal was closed the first party would owe the agent $250 commission, and no deeds were ever executed or delivered, the agent could not claim his commission, unless his principals had by their own wrong prevented' consummation of the contract; a “deal” being an arrangement to attain a desired result by a combination of interested parties.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. <§=>60.
    For other definitions, see Words and Phrases, First and Second Series, Deal.]
    2. Time <@=39(10) — Computation.
    Where a contract for the exchange of lands bound each party to deliver an abstract to the other within 10 days from December 18th, the 10 days did not expire as a matter of law until December 29th.
    [Ed. Note. — For other cases, see Time, Cent. Dig. §§ 30, 31; Dec. Dig. <@=39(10).]
    3. Vendor and Purchaser <@=378 — Time as Essence of Contract.
    Generally, time is not of the essence of a contract for the sale of realty.
    [E'd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 121-125; Dec. Dig. <@=378.]
    .4. Sales <@=354 — Time as Essence oe Contract.
    Time is usually of the essence of a contract for the sale of goods and other personalty, because its price is generally fluctuating, and the property itself subject to deterioration.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 152; Dec. Dig. <@=354.]
    5.Exchange of Property <@=>4 — Time as Essence of Contract.
    Where parties contracted to exchange realty for other realty and a stock of merchandise, the contract limiting, by specific provisions, the time in which abstracts were to be furnished, declaring that the exchange should be completed before noon on a fixed date, time was of the essence of the contract.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 4; Dec. Dig. <@=>4.]
    6. Exchange of Property <@=36 — Waiver of Default.
    Where a party, who had contracted to exchange realty, believing the time had expired in which the other party could require him to accept an abstract under the contract, nevertheless accepted it, submitting it to his attorney for examination, he waived the time limit for furnishing the abstract.
    [Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. § 11; Dee. Dig. <@=36.]
    7. Exchange of Property <@=36 — Waiver of Stipulation.
    The act of a party, who had contracted to exchange realty, in accepting an abstract of title believing that the time had expired in which the other party could require him to accept, though a waiver of the time limit for furnishing the abstract, was not a waiver of the requirement that the abstract should show clear and merchantable title.
    [E'd. Note. — For other cases, see Exchange of Property, Cent. Dig. § 11; Dec. Dig. <@=>6.]
    8. Vendor and Purchaser <@=>140 — Showing of Clear and Merchantable Title.
    An abstract of title showing that the land has been conveyed to a husband and wife, and that subsequently the former, when a widower, conveyed, does not show clear and merchantable title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. <@=3140. ]
    9. Vendor and Purchaser <@=>140 — Clear and Merchantable Title.
    An abstract of title not brought down to date does not show a clear and merchantable title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. <@=> 140.]
    10. Exchange of Property <@=36 — Absolute Refusal to Perform — Effect.
    Where a contract for the exchange of realty provided that it should be completed by the delivery of warranty deeds on or before noon, January 1, 1916, and a party’s attorney declared the title insufficient December 30th, such party immediately refusing to continue the negotiations or close the deal, the other party was relieved of any further effort to perform.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 11; Dec. Dig. <@=>6.]
    11. Brokers <@=363(2) — Realty Broker — Right to Commission.
    An agent, who negotiated a contract for the exchange of realty providing that his commission should be payable when the deal was closed, the contract providing for its consummation by exchange'of warranty deeds January 1, 1916, and who could show that the party whom he procured was ready, willing, and able to close the deal at any time before the date fixed, or could show that but for the action of his principal in refusing to consummate the deal the other party could and would have complied with the contract before such time, could recover his commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. <@=363(2).]
    Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.
    Action by J. R. Gaut against Eli Dunlap and another. From a judgment for defendants, plaintiff appeals.
    Reversed, and cause remanded.

      W. H. Russell, of Hereford, for appellant. Knight & Slaton, of Hereford, for appellees.
   HALL, J.

Appellant Gaut sued appellees Eli Dunlap and W. L. Brodie to recover $250, alleged to be due him as commissions for negotiating an exchange of property between appellees and one Walter Cheek. Prom a judgment for appellees this appeal is prosecuted.

The refusal of the court to direct a verdict for appellant is first assigned as error. It is first contended under this assignment that the following proposition is applicable and should control the disposition of the case:

“Where a real estate broker is employed to procure an exchange of real property, and he produces a person with whom his principal is satisfied, and such person and principal enter into an enforceable written contract for the exchange of their respective properties, upon terms mutually satisfactory, the broker has earned his commission.”

The contract upon which the suit is based is in substance that, whereas, Dunlap and Brodie are the owners of a store building, a stock of general merchandise and fixtures, to the amount of $8,000, and a residence at Umbarger, Tex., and are desirous of exchanging the same for a certain half section of land owned by Cheek near Jester, Okl., and valued at $16,000, it was agreed that Dunlap and Brodie should convey to Cheek the real estate situated in Umbarger, free from in-cumbrance, except $2,500, evidenced by two vendor’s lien notes bearing 8 per cent, interest, and that Cheek should convey to Dunlap and Brodie the half section in Oklahoma, free from incumbrance, except $3,000 due a loan company; that, should the stock of merchandise and fixtures invoice less than $8,000, the amount should be deducted from, the amount of the notes thereinafter mentioned; but, in case the invoice price of the merchandise should exceed $8,000, such excess should be paid to Dunlap and Brodie out of the regular daily sales of said merchandise until the full amount is satisfied.

Paragraph 2 of the contract is:

“Each party hereto shall, within ten days from date hereof, deliver to the other party hereto an abstract of title, showing a clear, merchantable title to the land by him to be conveyed hereunder, save and except as to the incumbrances herein referred to.”

Paragraph 3 is:

“The said exchange of real estate shall be completed by execution and delivery of a good and sufficient warranty deed in accordance with the terms .of this contract on or before the hour of noon on the first day of January, 1916.”

Paragraph 6: „ '

“Said deeds shall be placed in escrow with the Eirst State Bank & Trust Company of Hereford, Texas, and they are authorized to deliver same to the receiving parties herein provided.”

The contract contains, among other things, the following stipulation:

“When this deal is closed the first parly will owe J. R. Gaut $250.00 commission.”

If the last-quoted provision in the contract is to govern the rights of the parties the proposition urged under this assignment cannot be sustained. Paragraph 3,.supra, states clearly that the deal shall be completed by the execution and delivery of good and sufficient deeds on or before the hour of noon of January 1, 1916. No deeds were ever executed or delivered, and under the plain language of the contract appellant cannot claim his commissions unless Dunlap and Brodie have, by their own wrong, prevented its consummation; and this seems to be the construction placed upon it by appellant himself, who stated at the time the contract was signed in Umbarger, on December 18th, that he hoped the deal would be closed that day as he wanted his commissions for Christmas money.

It is clear from the record that none of the parties to the contract understood that the execution of the contract itself had the effect of closing the deal or entitled appellant to the commission. If such had been the meaning of the contract and the understanding of the parties, appellant would have been entitled to the $250 when the contract was executed. If the words “when this deal is closed” had not been used, the appellant’s proposition would apply. It can have no application here, however, because the contract itself fixes the time for payment. A “deal” has been defined to be “an arrangement to attain a desired result by a combination of interested parties.” Ball v. Davenport, 170 Iowa, 33, 152 N. W. 72. The result desired by the parties in this case was an exchange of properties, and, considered in the light of this definition, it could not be closed until the exchange had been effected.

We will not undertake to consider the various assignments in the order in which they are presented in the brief, but we can dispose of the issues in a more direct way. The contract binds each party to deliver to the other within 10 days from the 18th day of December, 1915, an abstract of title showing a clear, merchantable title to the land to be conveyed except as to certain incumbrances. According to this stipulation, the 10 days did not expire as a matter of law until December 29, 1915, since in computing the time the 18th of December must, under the general rule,- be excluded. Hill v. Kerr, 78 Tex. 213, 14 S. W. 566 ; 2 Elliott on Contracts, § 1550.

After reviewing, the authorities, we are convinced that time is of the essence of this contract. The general rule is that time is not of the essence of contracts for the sale of real estate; but, as stated by Hemphill, Ghief Justice, in Edwards v. Atkinson, 14 Tex. 373:

“It appears, then, that time may be of the essence of the contract for the sale of land, not only by the express agreement of the parties, but where the circumstances of the case show such must have been their intention. * * The fact that land is the subject of a contract of sale is not, of itself, sufficient to make time of the essence of such contract; but the fact that land is constantly rising, in this state, in value, is a circumstance in favor of the presumption that time is to be, and was regarded by the parties as, material.”

It will be noted that the contract under consideration not only limits, by specific provision, the time in which abstracts are to be furnished, but declares that the exchange itself shall be completed before the hour of noon on the 1st day of January, 1916. This, of course, was not a contract for the sale of real estate as that expression is usually understood, but provided for the exchange of real estate for certain other real estate and personal property. The rule is that time is usually of the essence of a contract for the sale of goods and other personalty, because the price of such property is generally fluctuating and in some instances the property itself is subject to deterioration. The stock of goods in the instant case was one' of general merchandise, and for that reason we think is within the general rule. 2 Elliott on Contracts, §§ 1152 and 1557. It appears from the record that Dunlap and Brodie had ordered and were ordering goods; that they were daily disposing of the goods on hand. Under the provisions of paragraph 2, the 10 days’ limit expired December 29th, but the parties understood that December 28th was the last day upon which the abstracts could be delivered.

It appears from the record that, believing the time had expired in which Cheek' could require him to accept the abstract under the contract, Dunlap nevertheless accepted it and submitted it to his attorney for examination. This constitutes a waiver of the time limit for furnishing the abstract, but it cannot be construed to be a waiver of the requirement that the abstract so furnished should show a clear and merchantable title to the land. Without discussing the objections to the title which were made by Dunlap’s attorney in detail, it is sufficient to say that it was not a clear and merchantable title. The abstract showed that the land had been conveyed to H. A. McKinney and wife, M. E. McKinney; -that subsequently H. A. McKinney, when a widower, conveyed to H. Mathewson.

Another objection urged was that the abstract had not been-brought down to date. In the face of these objections, the requirements of paragraph 2, as to title, had not been, of course, met.

It will be noted that paragraph 3 provides that the exchange between the parties shall be completed as therein specified on or before the hour of noon on the 1st day of January, 1916. Dunlap’s attorney declared the title insufficient on, December 30th, and immediately Dunlap refused to continue the negotiations or close the deal, and said, “The books are closed.” This action on the part of Dunlap relieved Cheek of any further effort, on his part, to perform. Cornelius v. Harris, 163 S. W. 346. If appellant can show that Cheek was ready, willing, and able to close the deal at any time prior to the hour of noon of January 1, 1916, or if it can be shown but for the action of Dunlap in refusing to consummate the deal Cheek could have complied with the contract before said time, appellant would be entitled to recover. The court erred in submitting the contract to the jury for construction, and in refusing to charge that the act of Dunlap, in accepting the abstract after he thought the 10 days’ limit had expired, was a waiver of that provision.

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