author: FLY, C. J.

text:
    BOARD OF TRUSTEES OF ALPINE INDEPENDENT DIST. et al. v. JACOB.
    (No. 5334.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    Schools and School Districts (§ 79) — Contracts — Right to Enforce — Existence of Fund for Payment.
    A contract by the officers of an independent school district to pay for architect’s plans for a schoolhouse for which bonds had not yet been voted was unenforceable, where the bond issue was defeated, and there were no other funds from which the payment could be made, although an issue of bonds was subsequently authorized and sold, and the proceeds were invested in a different plan of house from the one originally desired; it being contemplated by Rev. ¡át. 1911, arts. 2837-2839, providing for elections, to determine whether schoolhouse bonds shall be issued and for a sale of bonds, that contracts involving an expenditure of the proceeds shall be made only after the bonds have been sold, and article 2853, which invests the trustees of independent school districts with the powers held by a council or board of aider-men in respect to certain school matters, not giving them control of any moneys except those raised in a specified way to be used for specified purposes.
    (Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 188-191; Dec. Dig. § 79.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Donald R. Jacob against the Board of Trustees of Alpine Independent District and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Martin J. Arnold and T. J. Murray, both .of San Antonio, for appellants. Marcus TV. Davis, Geo. M. Mayer, and Houston, Boyle & Storey, all of San Antonio, for appellee.

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

   FLY, C. J.

This is a suit instituted by ap-pellee against tbe board of trustees of tbe Alpine independent school district, the district itself, and Henry T. Phelps to recover tbe sum of $400, alleged to be due for tbe plans of a certain schoolhouse prepared by Phelps at tbe instance of said board of trustees, which claim, it was alleged, bad been assigned by Phelps to appellee for a valuable consideration. It was alleged' that tbe plans and specifications for tbe school building were prepared by Phelps, and were approved and accepted by appellants, and that they promised to pay tbe sum of $400 for tbe same, but refused and neglected to pay tbe same. Appellants filed a general demurrer and special exceptions, and answered denying tlieir authority to make tbe contract with Phelps; that Phelps knew that tbe money to build tbe schoolhouse was to be raised by tbe sale of certain bonds, and agreed that be would mot charge for tbe plans unless tbe bonds were sold and a contractor obtained who would build the bouse for .$16,000; that tbe bond issue was illegal, and no responsible contractor could be found who would build tbe bouse for $16,000. Tbe trustees denied personal liability, and that any assignment of tbe claim bad ever been made by Phelps to appellee in good faith and for a valuable consideration. Phelps pleaded that tbe contract for tbe plans and specifications was unconditional; that tbe plans were received and accepted by appellants; that it was true that tbe bond issue was illegal; that be did not guarantee that tbe schoolhouse could be built for any specified sum, but that if bids bad been sought by appellants the building could have been erected for $16,000.

There is no allegation in tbe petition that appellants bad any local school funds, or that they bad any funds of any character, and tbe presumption would be indulged that tbe independent school district bad no funds except the state and county available school fund, which could be used for no other purpose than the payment of teachers’ and superintendents’ salaries and fees for taking scholastic census. Article 2772, Vernon’s Sayles’ Stats. It was proved that tbe bonds that bad been voted to erect a schoolhouse were invalid, and could not be sold. Tbe school district therefore bad no funds from tbe sale of bonds with which to pay tbe demand of Phelps. Tbe evidence showed that tbe second issue of bonds were sold, and tbe entire sum realized from their sale was invested in a different plan of bouse from the one originally desired. Tbe last issue of bonds was entirely distinct from that first issued.

Articles 2837 and 2838, Rev. Stats., provide for elections to determine whether schoolhouse bonds shall be issued, and when such bonds have been voted for, it is provided, in article 2839, that they shall be examined by the Attorney General and registered by the comptroller of public accounts, and, when sold to the highest bidder, the purchase money shall be placed in the county treasury to the credit of the school district. The purposes for which, the money should be used is fully specified to be “in payment of accounts legally contracted in buying, building, equipping, or repairing the schoolhouse or schoolhouses for such district, or in the purchase of sites therefor.” It is clearly contemplated in the law cited that the contracts shall be made after the bonds shall have been issued and sold, and that the money arising from such sale shall be disbursed only to satisfy and meet such contracts.

In article 2853, Vernon’s Sayles’ Statutes, it is provided that the trustees of independent school districts “shall in general be vested with all the powers, rights and duties in regard to the establishment and maintaining of free schools, including the powers and manner of taxation for free school purposes that are conferred by'the laws of this state upon the council or board of aldermen of incorporated cities and towns.” It would follow that decisions as to the powers, duties and liabilities of a city incorporated for school purposes would be applicable to the board of trustees of an independent school district. Peck-Smead Co. v. City of Sherman, 26 Tex. Civ. App. 208, 63 S. W. 340.

.There can be no doubt that the amount due for plans and specifications could he paid out of the money arising from the sale of schoolhouse bonds, because the plans would he necessary in building the schoolhouse. Davis v. City of San Antonio, 160 S. W. 1161, and authorities therein cited. If there had been any such bond money in the hands of the trustees, the claim for the amount due for plans and specifications would be a charge upon it, and appellee could compel payment thereof. But there is no allegation or proof that any money arising from the sale of the bonds, or any other money, was in the hands of the board of trustees. On the other hand, the testimony .shows that the bonds were not sold, and could not be sold, because they were invalid. Phelps knew that there was no money when he contracted with appellants, and knew that their only means of raising the money was through the sale of the bonds, and it would not matter whether anything was said about his money coming out of the bond money or not. He does not claim that appellants had any funds in their hands that could be used for the payment of his debt. It is not claimed that the tax permitted for the purchase of sites and the purchasing, construction, repairing, or. equipping of public free school buildings authorized in article 2857 had been levied, and that a fund arising therefrom was in the hands of appellants.

In the ease of Crowell Independent School Dist. v. Bank, 163 S. W. 339, the district was sued for a balance due on a schoolhouse, and the Court of Civil Appeals of the Second District, after quoting article 2857, held:

“Taxes so raised constitute the only fund which could be used for the purposes stated. ■
The petition filed by the plaintiff in this case contained no allegation that such a tax had been levied by the board of trustees, and no attempt is made in tlxe petition to show any funds belonging to the Crowell independent school district which would be subject to the payment of the debt for which this suit was instituted.”

At the time the contract was made appellants had no funds that could be appropriated to build a schoolhouse, because the bonds had not been passed on by the Attorney General and no money could be realized from them. There was no evidence tending to show that there were other funds in the hands of the trustees that could be used in erecting a schoolhouse. Peck-Smead Co. v. City of Sherman, 26 Tex. Civ. App. 208, 63 S. W. 340.

While article 2853, Rev. Stats., invests the. board of trustees of independent school districts with the same powers in maintaining and establishing free schools and taxing for school purposes as are held by a council or board of aldermen, it does not give them any moneys except those raised in a certain way to be used for certain purposes, and there was no allegation or proof that any such money was on hand. There is no merit in the proposition that the money sued for was not a debt, but current expenses to be paid out of current revenue. Unlike cities, a board of school trustees can have no current expenses except those for the maintenance and support of free schools as set out in the statutes. However, if the money sued for was a part of the current expenses, appellee has failed to show that there was a fund out of which the sum could be paid.

We are not certain that the ease has been fully developed, and will not, therefore, render judgment.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    YOUNG v. GHARIS et al.
    (No. 7194.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 31, 1914.)
    1. Deeds (§ 110) — Construction—Questions oe Law ob Eaot.
    The construction of a deed is a matter of law for the court.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 255, 293; Dec. Dig. § 110.]
    2. Deeds (§ 38*) — Description—Sufficiency.
    If the land intended to be conveyed by a deed be so inaccurately described that it appears on an inspection thereof that the identity of the land is altogether uncertain and cannot be determined, the court should pronounce the deed void.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.]
    3. Evidence (§ 452) — Parol Evidence — Description in Deed.
    When the uncertainty in the description in a deed does not appear upon the face of the deed, but arises from extraneous facts, parol evidence is admissible to explain or remove it, and the deed should not be excluded from the jury, but should go-to them along with the parol evidence.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2093-2101; Dec. Dig. § 452.]
    4. Deeds (§ 110) — Description—Questions for Jury.
    Where the uncertainty in the description of a deed does not appear upon the face of the deed, but arises from extraneous facts and parol evidence is admitted to explain or remove the ambiguity, the identity of the land is a mixed question of law and fact, to be determined under appropriate instructions.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 255, 293; Dec. Dig. § 110.]
    6. Evidence (§383) — Admissibility of Deed in Evidence — Conclusiveness.
    Where a deed under which plaintiff claimed in trespass to try title described the land as 4.13 acres out of the W. C. G. 320-acre survey, situated about 2 miles northwest of the courthouse in D., and being block No. 35 of the D. Guaranty & Investment Co.’s Manufacturing Plat of N., and also described it by metes and bounds, which showed that it was 600 feet long and 300 feet wide, the starting point beginning at the intersection of the northeast line of G. avenue with the northwest line of Tenth street, 1,285 feet from the south corner of Forest Park, there was no ambiguity in the description apparent upon the face of the deed, and it was error to exclude the deed on the assertion of counsel, in objecting to its introduction, that there was no survey in the county known as the W. C. G. survey, no such map as the D. Guaranty & Investment Co.’s Manufacturing Plat of N., and no street known as G. avenue or Tenth street, as if these facts were true, and the deed therefore insufficient to put subsequent purchasers for value on notice, the burden of proving such facts was on persons claiming to be such purchasers, and not on plaintiff, as a predicate for the admission of the deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.]
    6. Evidence (§ 460) — Description in Deed —Admissibility.
    To aid in the identification of the land described in such deed, a deed purporting to convey 250 acres of land to the city of D., and the testimony of a witness that the tract so conveyed was generally known in the community as the Forest Park tract, should 'have been admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.]
    7. Deeds (§ 118) — Description—Sufficiency of Evidence.
    In trespass to try title, evidence to identify the land described in the deed under which plaintiff claimed held sufficient to make a question for the jury, and to support a finding identifying the tract as the land in controversy.
    [Ed. Note. — For other eases, see Deeds, Dec. Dig. § 118.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Trespass to try title by James Young against H. D. Gharis and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    R. Y. & W. S. Davidson and Geo. T. Burgess, all of Dallas, for appellant.

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

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

   TALBOT, J.

This is an action of trespass to try title, in the ordinary form, brought by the appellant, James Young, against H. L. Gharis and wife, Quentin D. Corley, J. B. Godwin, G. M. Cole, and Mrs. M. M. Long, to recover a tract of land described in the petition as follows:

Being a part of the W. C. Grigsby survey in Dallas county, beginning at a point in the intersection of the northeast line of Grigsby avenue with Tenth street, which point is 1,285 feet south 45° east and 25 feet north 45° east from the south corner of Forest Park, as per map thereof of record in the records of Dallas county, Texas; thence north 45° east 300 feet to a point for corner; thence north 45° west 600 feet to a point for corner; thence south 45° west 300 feet to a point for corner; thence south 45° east 600 feet to the place of beginning.

The defendant J. B. Godwin answered by pleas of not guilty, the statutes of limitation of three, five, and ten years, and also pleaded improvements made in good faith. The defendants Gharis, Corley and Cole answered by pleas of not guilty, the statutes of limitation of three, five, and ten years, and charged, in effect, that the land- sued for by the plaintiff, Young, was included in a larger tract owned by them, described by metes and bounds, and as a part of Milos Bennett and Crawford Grigsby surveys situated about 4 miles northwest from the city of Dallas, in Dallas county. These defendants also in-terplead, as warrantors of their title to the land in controversy, W. A. Scott and wife and S. R. Owen and C. C. Weichsel. Of these last-named parties, C. C. Weichsel answered by pleas of not guilty, statutes of limitation of five and ten years, and specially adopted the defenses set out in the pleading of those claiming under his covenants of warranty, and made their pleading “and everything therein contained” his own. The defendants Scott and wife and S. R. Owen made default; and, the death of the defendant Mrs. M. M. Long being suggested, the suit was dismissed as to her. A trial of the case resulted in a judgment in favor of the defendants, and the plaintiff appealed.

Appellant’s first assignment of error complains of the court’s action in refusing to admit in evidence, as a link in the chain of his asserted title to the land in controversy, a deed from the Dallas Guaranty & Investment Company to the Manufacturers’ Record Company, of date October 8, 1891, filed for record in the office of the county clerk of Dallas county, Tex., October 9, 1891, and duly recorded in the deed records of said county. The deed excluded described the land therein conveyed as follows:

Being 4.13 acres of land out of the W. C. Grigsby 320-acre survey, situated about two (2) miles N. 40° W. from the courthouse in the city of Dallas, Dallas county, Texas, and being block No. thirty-five (35) of Dallas Guaranty & Investment Company’s Manufacturing Flat of North Dallas, and meted and bounded as follows : Beginning at the south corner of said block and being intersection of the northeast line of Grigsby avenue with the northwest line of Tenth street, which stand 1,285 feet S. 45° E. and 25 feet N. 45° E. from the south corner of Forest Park; thence N. 45° E. 300 feet; thence N. 45° W. 600 feet; thence S. 45° W. 300 feet; thence S. 45° E., and parallel with southwest line of Grigsby survey, and 25 feet from said line, 600 feet to the beginning', containing 4.13 acres of land out of said W. O. Grigsby survey.”

And the objections to its introduction in evidence were: (1) That there is no such survey as the W. O. Grigsby survey in Dallas county, and hence a variance in the allegations of the petition with respect to the description of the land sued for and the description of the land conveyed by the deed; (2) that the description of the land by metes and bounds in the deed offered is wholly unintelligible to put anybody on notice; (3) that the land in said deed described is impossible of location; and (4) that counsel making the objections to the introduction of the deed had been advised by his associate counsel, who had examined the deed records of Dallas county, that there was no such street shown in any record as Grigsby avenue, nor as Tenth street, except in Oak Cliff, and that there is no map of record in Dallas county of Dallas Guaranty & Investment Company’s Manufacturing Plat of North Dallas, and therefore the description of the land in the proffered deed is insufficient to put any one on notice who afterward bought the same land from the Dallas Guaranty & Investment Company by deed which covered and described a larger tract of land embracing the property involved in this suit.

The bill of exceptions, reserved to the court’s ruling excluding the deed, also shows that, upon the foregoing objections being made, the trial judge said to counsel for appellant, in substance, that the deed in question was deficient in description, and that as a prerequisite to its admissibility and introduction he must show by extraneous evidence that there was such a survey in Dallas county as the W. O. Grigsby survey, that there was such a plat as the Dallas Guaranty & Investment Company’s Plat of North llallas of record in Dallas county, and that there were such streets as Grigsby avenue and Tenth street delineated upon such map. In compliance with this suggestion of the court appellant’s counsel introduced E. E. Luesley, who testified as follows:

That by occupation he was an abstractor of land titles, and had been engaged in that line of business for more than 25 years in Dallas county ; that he is now engaged with the Title Guaranty Company, and before that time he was with S. W. S. Duncan, abstractor, first, and afterward with Stewart Title Guaranty Company; that he commenced his employment with Duncan’s land title office about November 25, 1880, and from that time and during the time he was with Duncan’s office he was manager and owner of a part interest in the abstract business, and practically ran the plant 'and managed the office.

Whereupon plaintiff’s counsel offered in evidence a deed from Dallas Guaranty & Investment Company to the city of Dallas, dated August 7,1889, recorded in Book 116, page 40, Deed Records of Dallas County, Texas, conveying 250 acres of land out of the Miles Bennett survey in Dallas county, Tex., and in connection therewith offered the testimony of E. E. Luesley, who was still on the stand, stating that they expected to prove by the witness that the witness had been a long time a resident of Dallas, and that the land embraced in the deed from Dallas Guaranty & Investment Company to the city of Dallas was generally known in the community, from and after the date of said deed to the city of Dallas, as the Forest Park tract in the Miles Bennett survey, and that said deed from Dallas Guaranty & Investment Company, together with the offered testimony of the witness Luesley, were offered for the purpose of aiding the description in the deed from Dallas Guaranty & Investment Company to the Manufacturers’ Record Company, which plaintiff had previously tendered in evidence, and to show that the tract of land described in the deed to the Manufacturers’ Record Company lies 1,285 feet S. 45° E. and 25 feet N. 45° E. from the south corner of Forest Park. To the introduction of such deed to the city of Dallas and the testimony of the witness Luesley in connection therewith the defendants objected, as being wholly irrelevant and as throwing no light upon the issues in this case, and because not showing that the defendants had any notice or anything giving notice of the filing of said deed; that same does not refer to Forest Park, nor to any of the streets mentioned in the deed from Dallas Guaranty & Investment Company to the Manufacturers’ Record Company, and has no tendency to put purchasers on notice with -respect to the land in controversy, and that the record of said deed to the city of Dallas would not have the legal effect to put the defendants or other parties dealing with the land in controversy in this suit upon notice of the deed from Dallas Guaranty & Investment Company to the Manufacturers’ Record Company, which objections were by the court sustained, to which ruling of the court plaintiff then and there excepted. Whereupon the direct examination of the witness E. E. Luesley was continued by the plaintiff’s counsel, and the witness testified in substance:

That the office of S. W. S. Duncan was managed by him from the 25th of November, 1880, up to a few years ago, he owning an interest in the plant; that he was acquainted with the corporation known as Dallas Guaranty & Investment Company; that it had its place of business and domicile in Dallas city; that its business was buying and selling land; that the company continued in and conducted such business in Dallas for some five or six years after 1891; that witness was familiar with the location of the property in controversy; that there is in Dallas county no such survey as the W. C. Grigsby survey, but that there is a Crawford Grigsby survey, a John Grigsby survey, and a Wm. Grigsby survey; that the Crawford Grigs-by survey adjoins the Miles Bennett survey on the south; that there is only one Crawford Grigsby survey in Dallas county, pf 320 acres, which is located about 3 miles in a general direction north from the courthouse of the city of Dallas; that the city of Dallas is located upon the John Grigsby survey, and the Wm. Grigsby survey adjoins the John Grigsby survey at the northwest corner and lies north of it; that the Wm. Grigsby survey is nearer to the city than the Crawford Grigsby survey; that there is no W. C. Grigsby survey in Dallas county, or in a northerly direction from the Dallas county courthouse, but that there is a Crawford Grigs-by survey there in that direction; that the Dallas Guaranty & Investment Company prepared a map of a part of the Crawford Grigsby survey and the Miles Bennett survey; that witness has seen the map ; that he first saw it shortly after it was made, as he did the abstract work for the Dallas Guaranty & Investment Company, and it was necessary for him to have the map to complete the abstracts; that to the best of his recollection the first time he saw the map was in the year 1888 or 1889; that the witness, in his business as manager of Duncan’s abstract plant, made it a practice to get all maps as fast as he could find out they were made and keep them in his office for the benefit of himself and customers ; that such maps were taken from the deed records (where recorded) or from any one making such maps.

Witness here identified a map on page 339, book 2, of the private map records of the Duncan abstract office, such map being that of Dallas Guaranty & Investment Company’s Manufacturing Plat of North Dallas, showing a block No. 35 and showing a Grigsby avenue and a Tenth street, and witness testified:

That he got said map from L. H. Hopkins, who was manager of Dallas Guaranty & Investment Company, and said map was put in the said book in the year 1888 or 1889, and the book has continuously remained in the possession of S. W. S. Duncan .abstract office until the sale of the Duncan plant to the Stewart Title Guaranty Company; that said book is now in the possession of said last-named company; that it is one of the records of the Stewart Title Guaranty Company; that this map is not recorded in Dallas county, and that the map in the book shown to witness was a tracing made from the original map made by Dallas Guaranty & Investment Company and given to the witness by Hopkins, who was a surveyor and a man in charge of the Dallas Guaranty & Investment Company. Thereupon counsel for plaintiff then offered in evidence the said deed from Dallas Guaranty & Investment Company to the Manufacturers’ Record Company in connection with the said map described by the witness as above.

The Court: It will be refused at this time.

On cross-examination of the witness Bues-ley by defendants’ counsel, he testified:

That there is no survey in Dallas county known as W. C. Grigsby survey; that there is a well-known survey known as Crawford Grigsby, also the John Grigsby and also the Wm. Grigsby surveys; that the book containing the map about which the witness testified is a private record made up by the witness’ draftsman in the Duncan office, of which the witness was manager; that said map was never placed of record in Dallas county; that witness knows of a map called the “Dallas Guaranty & Investment Company’s Manufacturing Plat of North Dallas,” and same was never put of record in Dallas county.

Defendants’ said objections as hereinabove set out to the introduction of the deed from Dallas Guaranty & Investment Company to the Manufacturers’ Record Company, and to the said deed from Dallas Guaranty & Investment Company to the city of Dallas, and the plat above mentioned, and the testimony of the witness Luesley, offered in connection with said deed to said Manufacturers’ Record Company were by the court sustained, to which action of the court in sustaining said objections and in excluding said deed to the city of Dallas, together with the plat and evidence offered in connection with said deed to said Manufacturers’ Record Company plaintiff excepted. Thereupon the plaintiff offered no further testimony. Whereupon the court -announced that he would render judgment for the defendants, which was accordingly done.

We think the deed offered by the appellant should have been admitted in evidence. It is well settled that the construction of a deed is a matter of law for the court, and if the land intended to be conveyed by it be so inaccurately described that it appears, on an inspection thereof, the identity of the land is altogether uncertain and cannot be determined, the court should pronounce the deed void. On the other hand, it is equally well settled that when the uncertainty does not appear upon the face of the deed, but arises from extraneous facts, parol evidence is admissible to explain or remove it. It is said that in such cases the deed should not be excluded from the jury, but should go to them along with the parol evidence to explain or remove such ambiguity, and that the identity of the land is then a mixed question of law and fact, to be determined under appropriate instructions of the court. Kingston v. Pickins, 46 Tex. 99; Ragsdale v. Robinson, 48 Tex. 379; Hitchler v. Scanlan, 15 Tex. Oiv. App. 40, 39 S. W. 633. Clearly we think it cannot be said that the deed in question shows upon its face that the land referred to therein cannot be identified. If there is any ambiguity in the description of the land, it is not patent upon the face of the deed, but such a latent ambiguity “as might arise from the evidence in applying the description in the deed to the land in controversy.” There is no material difference in the description of the land sought to be recovered as contained in appellant’s petition and the deed excluded. The petition describes the land by metes and bounds, and as being a part of the W. 0. Grigsby survey in Dallas county, and the deed describes it in the same way, with the additional description that it is “block No. thirty-five (35) of Dallas Guaranty & In-, vestment Company’s Manufacturing Plat of North Dallas.” The calls, as given in both the petition and the deed, show without confusion or any uncertainty that the land sued for and which the deed purports to convey is in an oblong shape, with each end thereof 300 feet long and each side thereof 600 feet long. The deed recites that the tract contains 4.13 acres, and both the petition and the deed state the place of beginning to be at the intersection of Grigsby avenue with Tenth street at 1,285 feet from the south corner of Forest Park, thereby presenting two means of ascertaining the place of beginning of the tract conveyed, either of which, if found, together with the metes and bounds as given, would be sufficient to determine the location of tbe land.

There being, then, no patent ambiguity upon the face of the deed, it was admissible in evidence without the aid of any parol evidence, and the bare assertion of counsel in objecting to its introduction that there was no such survey in Dallas county as the W. C. Grigsby survey, and that there was no such map as Dallas Guaranty & Investment Company’s Manufacturing Plat of North Dallas, and no such streets shown in any record of the county as Grigsby avenue and Tenth street, should not have cast upon appellant the burden of proving that there were such streets and such a survey as essential to the admissibility of the deed. The deed, as we have shown, was not unintelligible, as contended by counsel for appellees, and was admissible in evidence without the necessity of such proof on the part of appellant. If there was no such survey in Dallas county as the W. O. Grigsby survey, and there were no such streets as Grigsby avenue and Tenth street, and hence the record of said deed was' insufficient to put subsequent purchasers for value upon notice of appellant’s claim of title, and if appellees occupied such position and were otherwise without notice, the burden of proving such facts, upon the introduction of said deed, would devolve upon them, and not upon appellant as a predicate for the admission of the deed. But at all events the deed in question purported to convey a certain tract of land which by the aid of extraneous evidence might be identified.

This being true, the testimony of the witness, Luesley, and the deed from Dallas Guaranty & Investment Company to the city of Dallas, purporting to convey 250 acres of land, a part of the Miles Bennett survey, in Dallas county, and known, according to the testimony of said witness, as the “Forest Park tract,” should have been admitted in evidence to aid in the identification of the tract of land described in the deed of the Dallas Guaranty & Investment Company to the Manufacturers’ Record Company first offered by appellant. This evidence of identification was sufficient, it occurs to us, to go to the court and jury, and to support a finding identifying the tract of land as the land in controversy.

.For the reasons indicated, the judgment is reversed, and the cause remanded.


author: HARPER, C. J. HIGGINS, J.

text:
    NATIONAL SURETY CO. v. DAVID CASTLE CONST. CO. et al.
    (No. 341.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 22, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Appeal and Eebob (§ 131) — Obders Ap-pealable — “Final Judgment.”
    An order in chambers, directing the performance of an act under pain of punishment 1 for contempt, is not appealable, not being a final judgment of the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 895; Dec. Dig. § 131.

    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    2. Appeal and Eebob (§ 71) — Review—Orders Review able.
    Interlocutory orders in receivership proceedings are not reviewable until the case is finally disposed of.
    [Ed. Note. — For other cases, see Appeal and Ei-ror, Cent. Dig. §§ 386-401; Dec. Dig. § 71.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Receivership proceedings by the National Surety Company against the David Castle Construction Company, in which J. B. Cochran was appointed receiver. From an order in chambers, upon motion of the receiver, which directed E. A. Laughlin to return lumber, he appeals.
    Appeal dismissed.
    Oliver J. Todd and W, G. Reeves, both of Beaumont, for appellant. Moody & Boyles, of Houston, for appellee.

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

   HARPER, C. J.

Upon the application of the receiver, J. B. Cochran, a hearing was had by the district judge in the receivership proceedings of National Surety Company v. David Castle Construction Company, and E. A. Laughlin was ordered by the judge in chambers to return any and all lumber and property removed by him from the tract of land upon which a schoolhouse was being erected in the city of Port Arthur, Tex., to the receiver, and to show cause why he should not be punished for contempt. The order entered is:

“ * * * The said E. A. Laughlin is hereby commanded to return * * * within ten days from this date all lumber removed by him. * * * It is further ordered that, should the said Laughlin institute an appeal' within ten days from this date, he may, in lieu of the return of said property, give a good and sufficient supersedeas bond in the sum of sixteen hundred ($1,600.09) dollars, conditioned, in addition to the statutory conditions of said bond, that should the order be affirmed the said Laugh-lin and his sureties will pay to the said J. B. Cochran, receiver, the value of said lumber and other property so removed according to the contract and estimate between David S. Castle and the said E. A. Laughlin, together with interest at the rate of 6 per cent, per annum from this date; or should the said appeal be dismissed by the Court of Civil Appeals, or. not be decided upon its merits by said court, then said Laugh-lin shall, within ten days after such dismissal or decision, institute, and prosecute with diligence, an action to determine the title and possession of said property and if it be finally determined to be in said Cochran, receiver, the said Laiighlin and his sureties shall pay to the said Cochran the value of said lumber according to the contract and estimate between the said Cochran and Laughlin, together with 6 per cent, interest from this date. It is intended that in the event of such second action this bond shall also be considered as a supersedeas bond in said cause. * * * ”

From which E. A. Laughlin appeals.

It is admitted that this order was entered by the judge in chambers, and it is urged by both parties that it is not a final judgment, from which an appeal will lie, and both are correct. In Pittman v. Byars, 100 Tex. 518, 101 S. W. 789, Chief Justice Gaines, in the opinion, says:

“Though a judge of the district court may decide certain matters in vacation, and render judgment therein, yet such judgment, whether interlocutory or final, is not the judgment of the court over which he presides, but is merely his judgment as a judge sitting in vacation. In such case, unless a-right of appeal be given by positive law, none exists. 4 Eney. PI. & Pr. 365. Since our statutes give the right of appeal only from the district and county courts, and since the judgment in this case was a judgment in neither court, we think we acquired no jurisdiction.”

Besides, interlocutory orders in receivership proceedings are not reviewable on appeal until the case is finally disposed of. United States & Mexican Trust Go. v. Texas Southern Ry. Co., 46 Tex. -Civ. App. 116, 101 S. TV. 1048; High on Receivers (4th Ed.) § 26.

Dismissed.

HIGGINS, J.

(concurring).

J. B. Cochran, receiver of the estate of David S. Oastle, filed a petition in the receivership proceedings, praying that E. A. Laughlin be cited to appear and show cause why he should not be directed to return certain lumber and other property which he had taken from the possession of the receiver upon a certain block of land, and to also show cause why he should not be punished for contempt in tampering with property under control of the court. An order to show cause as prayed for was entered, and upon hearing thereof an order was then entered commanding Laugh-lin -within ten days to return to the school building all lumber and other property removed by him from said school building on said block of land. From this order Laugh-lin has prosecuted this appeal.

It seems to me that the majority is in error in holding that an appeal does not lie from this order. Article 4644, R. S., gives a right of appeal to any party to any civil suit wherein a temporary injunction may be granted, refused, or dissolved. In my judgment, the order entered should be regarded as being a mandatory injunction, and the right to appeal from a temporary injunction of this nature has been expressly declared by the Supreme Court in Ft. Worth Imp. Dist. v. City of Ft. Worth, 158 S. W. 164, 48 L. R. A. (N. S.) 994. Ort v. Bowden, 148 S: W. 1145, was an appeal from an order refusing a temporary mandatory injunction, and in that case the Galveston court assumed jurisdiction of the appeal and passed upon the case upon its merits. So, also, in Townsite Co. v. McFaddin, 121 S. W. 717. The right of appeal from an order granting a temporary mandatory injunction was also recognized by the Texarkana court in Keasler Lbr. Co. v. Clark, 151 S. W. 345, though it was there held that the order could not be regarded as temporary. But it was there expressly held that an order to preserve property under the control of the court was interlocutory.

■ In the case at bar the proceedings instituted by the receiver lagainst Laughlin should properly be regarded as a suit to recover possession of the property (Keasler Lbr. Co. v. Clark, supra) and to preserve the property under control of the court. However it may be viewed in this respect, though, is really immaterial. Certainly, by the institution of the proceedings against him by the receiver, he became a party to the original receivership suit and as a party had a right of appeal from any injunctive order of a temporary nature therein entered against him. In Keas-ler Lbr. Co. v. Clark, supra, the order was held to be permanent in its nature, because, when the property was delivered to Clark in pursuance of the court’s order, the court lost further control over it. The reverse is true here, for certainly the court would have control of the property in the hands of its own receiver, and, tested by the rule announced in the case last cited, the order here must be treated as temporary in its nature. But, regardless of the correctness of the test there declared, that the order was temporary in its nature is relieved of any doubt by the Supreme Court in Ft. Worth Imp. Co. v. City of Ft. Worth, supra. Of necessity, the court did not and could not undertake to finally dispose of the issue of title and right of possession of the lumber and other property as between the receiver and Laughlin. In the absence of a final and absolute determination of the issues between the parties, the order would not be regarded as final, but temporary, under the authority last mentioned.

For the reasons indicated, I do not concur in the reasons assigned by the majority in refusing to dispose of this appeal upon its merits, although concurring in their action in so doing. The appellant seems to have an idea that if the order is not final, and not appeal-able, this court can and should set aside the lower court’s order and dismiss the proceedings. He is therefore insisting that the order is one from which an appeal will not lie. In the light of this insistence, I do not feel impelled to dissent from the action taken by the majority, though not concurring in the reasons assigned.


author: RAINEY, C. J.

text:
    AREY v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 7040.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 24, 1914.
    Rehearing Denied Nov. 21, 1914.)
    1. Railroads (§ 461) — Negligent Hikes — Contributory Negligence.
    To leave open a window in the loft of a barn, in which there was loose straw, is not contributory negligence defeating recovery for fire set by sparks from defendant’s locomotive, though the fire would not have occurred if the window had been closed.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 1682; Dec. Dig. § 461.]
    2. Railroads (§ 481) — Negligent Fires — Evidence.
    Where, in an action for fire set by sparks from defendant’s locomotive, the pleadings and proof did not point out any particular locomotive, but showed that two trains passed at about the time of the fire, evidence that the morning after the fire plaintiff found large coal cinders along the track is admissible to show that the locomotives were not properly equipped with spark arresters.
    [Ed. Note. — Por other cases, see Railroads, .Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    3. Evidence (§ 471) — Witnesses (§ 240)— Opinion oe Witness — Negligent Pires.
    In an action for fire set by sparks from defendant’s locomotive, a question to a witness, “Was there any other means known to you by which the fire could have caught,, except from that passing train?” was proper.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2149-2185; Dec. Dig. § 471; Witnesses, Cent. Dig. §§ 795, 837-839,841-845; Dec. Dig. § 240.]
    4. Railroads (§ 481) — Negligent Fires— Evidence.
    In an action for fire set by sparks from defendant’s locomotive, evidence that, from the time of the fire until plaintiff found large coal cinders along the track, no other trains than the ones alleged to have caused the fire had passed there was admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    5. Railroads (§ 481) — Negligent FIres— Evidence — Other Pire.
    In an action for fire set by sparks from defendant’s locomotive, evidence of other fires is inadmissible, unless on or about the same time as the fire in question.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by G. E. Arey against the St. Louis Southwestern Railway Company of Texas. Prom a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Robt. P. Spearman, N. E. Peak, and Evans & Carpenter, all of Greenville, for appellant. E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellee.

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

   RAINEY, C. J.

Appellant sued the ap-pellee to recover the value of certain property destroyed by fire, alleged to have been caused by the emission of sparks from appellee’s locomotive engine. Appellee answtered by general denial and especially contributory negligence on the part of appellant. A trial resulted in a judgment against appellant.

The first error assigned is in effect that the court erred in charging on contributory negligence, because the evidence fails to show such negligence, as appellant was using his property in a lawful way and for a lawful purpose.

Pacts in relation to the situation of the property and the uses to which it was put, about which there is no controversy, are: That the property burned was in a barn on premises leased by appellant. The barn was 108 feet south of appellee’s railroad track. At that point the railroad runs northeast and southwest. There was a window about three feet square in the west end of the barn, opening into the loft; also two windows in the west end, opening into the crib in the lower story. Appellant had placed a ton of baled oat straw in the loft near the windows, and had used about half of it. There were no shutters to these windows, and they were left open. The wind was from the northwest, blowing from the railroad toward these windows. In feeding the baled oat straw, loose straw had scattered and banked up in the cribs and in the stalls, and probably in the loft. The barn had a galvanized iron roof, and, if the barn was ignited from sparks emitted from appellee’s engines, they must have been blown through said windows.

Are the facts such as to show any negligence on the part of appellant which will prevent him from recovering for the negligent destruction of his property? We think not.

The decisions of the courts of this state are in conflict on this point, but we think the weight thereof is against the holding that such act. will constitute contributory negligence, and therefore not defeat a recovery.

' In St. L. S. W. Ry. Co. v. Crabb, 80 S. W. 408, where the facts were practically the same as in this case, and a special instruction on contributory negligence was asked and refused, this court held such refusal error, and reversed the case, holding that whether or not there was contributory negli--gence was a question for the jury, and said issue should have been submitted to the jury for their determination. Cases holding a contrary view, as we think, in this jurisdiction, are Railway Co. v. Johnson, 51 S. W. 531; Railway Co. v. Hardware Co., 157 S. W. 1188; Freeman v. Nathan, 149 S. W. 248.

In Railway Co. v. Johnson, supra, where an infant was lying in a cradle in its parents’ house adjoining the right of way, sparks emitted from an engine operated by the railway company entered the house, ignited the clothing, and injured the child, it was held that the parents could not be held negligent.

In Railway Co. v. Hardware Co., supra, where a warehouse was situated about 56 feet from the railroad track, sparks from an engine entered an open window and ignited combustible material, which caused the warehouse to burn, it was held that the owner was not negligent.

In Freeman v. Nathan, supra, where sparks emitted from a railroad engine set fire to and ■destroyed an electric light and ice plant and stock of supplies in connection therewith, it was held that the owner was not guilty of contributory negligence. In the last-cited case many authorities are cited in support of the holding. The principle upon which said decisions base their holding is that the owner of premises has a right to use it in lawful manner and for lawful purposes, and when so using he is not to be defeated in action for the loss thereof on the ground of contributory negligence, as he is not bound to anticipate negligence of another.

In line with the above principle is a case by the Supreme Court of the United States (Le Roy Fibre Co. v. Chicago, etc., R. R. Co., 232 U. S. 340, 34 Sup. Ct. 415, 58 L. Ed. 631). In that case the owner sued the railroad for destruction of property by fire ignited from sparks escaping from its engine. The property ignited was flax straw, an inflammable material, which had been by its owner stacked on its lot adjacent to the railroad’s right of way, and within 85 feet from the track. It was held in effect that:

“The rights of one man in the use of his property cannot be limited by the wrongs of another, and the doctrine of contributory negligence is entirely out of place.”

Since our decision in the Crabb Case, supra, in view of the array of authorities announcing a different view, we have concluded that said decision is not in harmony with the weight of authority in this and other jurisdictions, and, in. so far as it conflicts with the views herein expressed, it is overruled.

2. Appellant complains of the court’s action in refusing to permit him to testify that the next morning after the fire he found plenty of coal cinders, such as came from engines of appellee that run along that road; that they were the size of a pea to the size of the ends of his fingers, or as much as one-half inch in diameter. We think this testimony was admissible as a circumstance on the issue of whether or not appellee’s engines were properly equipped with proper spark arresters. The particular engine which caused the fire was not definitely identified. No particular engine was charged in the petition to have set fire to the barn, and there is evidence showing that two trains, one a passenger and the other a freight, passed there about the same time the morning of the fire. -So, in view of the pleading and evidence, the appellant should not have been required to confine his testimony to defects in spark arresters of any particular engine. Railway Co. v. McGrath, 160 S. W. 444.

While testifying, appellant was asked:

“Was there any other means known to you by which the fire could have caught, except from that passing train?”

Defendant’s counsel made the following objection:

“We object to that as leading and suggestive, calling for an opinion and conclusion of the witness. The Court: I sustain said objection.”

And to which ruling of the court plaintiff’s counsel excepted. We are of the opinion that the question was not leading, but was the. statement of a fact for the consideration of the jury. No other witness could testify as to witness’ knowledge of other means known to him which may have caused the fire, and the weight was a question for the jury.

The court erred in not permitting appellant to state that, from the time of the fire until he discovered the cinders, no other train had passed there:

Appellant, while testifying, was asked:

“Do you know of any fires in that neighborhood- along the right of way of the defendant railroad company that was set by sparks from passing engines of the defendant?”

One of the grounds of objection to this question was that no particular time was laid. We see no error in sustaining this objection. For such testimony to be admissible in this character of cases, it must be shown that other fires caused by the escape of sparks from appellee’s engines occurred on or about the same time as the fire complained of. This evidence, though weak, is relevant to rebut the testimony of appellee's witness that the spark arresters were properly equipped and in good repair.

What is here said applies to the testimony of Mrs. Arey as to cinders falling on her dwelling.

The error assigned on the question of newly discovered evidence, presented in the motion for a new trial, will not be discussed, as it cannot arise on another trial of the case.

For the reasons stated, the judgment is reversed, and cause remanded.


author: ELY, C. J.

text:
    BROWN v. YOAKUM et al.
    (No. 5320.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1914.
    On Motion for Rehearing, Nov. 18, 1914.)
    1. Covenants (§ 47)—Warranty—Effect.
    A general covenant of warranty does not include a warranty of the quantity of land conveyed, unless the property is sold by the acre and the quantity warranted.
    [Ed. Note.—For other cases, see Covenants, Cent. Dig. § 47; Dec. Dig. • § 47.]
    2. Vendor and Puroixaser (§ 176)—Convey-ances—Deficiency.
    In the absence of a warranty of quantity, there can be no reduction of the purchase price for a deficiency in the quantity unless there is proof of fraud or mistake; but, where there has been fraud or mistake in the representations as to quantity made by the vendor and they have been relied on, reduction for deficiency-must be allowed.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. § 176.]
    3. Vendor and Purchaser (§ 44) — Remedies oe Purchaser — Actions—Evidence.
    Where purchasers of land claimed to have relied upon the grantor’s representations as to the quantity conveyed, evidence held to show such representations and reliance thereon by the purchasers.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec. Dig. § 44.]
    4. Evidence (§ 238) — Admissions—Eeeéct. _
    _ Where a purchaser of land sold all of his interest to defendants, who assumed payment of the unpaid purchase money, the purchaser’s admissions that he did not rely upon his grantor’s representations as to the quantity of land conveyed, etc., are binding only upon himself and not upon defendants.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 883; Dec.- Dig. § 238.]
    On Motion for Rehearing.
    5. Principal and Agent (§ 94) — Representations op Agent.
    Where two united in purchasing a tract of land, representations as to quantity by the vendor’s agent to one of the purchasers, who was acting for both, are representations to both.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 248, 249; Dec. Dig. § 94.]
    Appeal from District Court, Webb County; J. E. Mullally, Judge.
    Action by E. N. Brown, as trustee, against B. E. Yoakum and others. Erom a judgment for defendants, plaintiff appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellant. Jas. B. Wells, of Brownsville, John A. Vails, of Laredo, and Harbert Davenport, of Brownsville, for appellees.

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

       Application for writ of error pending in Supreme Court.

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

   ELY, C. J.

This is a suit by appellant, as president and trustee of the National Railroad Company of Mexico, against D. B. Cha-pin, W. E. Sprague, John Closner, and B. F. Yoakum, to recover judgment on three promissory notes executed by D. B. Chapin to appellant, each for $16,481, with interest at 6 per cent, from September 1, 1909, and 10 per cent, attorneys’ fees, and to foreclose a vendor’s lien on 14 surveys of land situated in Hidalgo county, Tex. It was alleged that Sprague, Closner, and Yoakum had acquired the land on which the lien rested. Yoakum answered by general demurrer and general denial. Chapin admitted the cause of action, and alleged that he had sold the land to Sprague and Closner, and that they had assumed payment of the amount of the notes, and prayed for judgment over against them. The answer of Sprague and Closner consists of 26 typewritten pages, in which most of the facts connected with the case were pleaded, the whole amounting to a plea that appellant had fraudulently represented that there -were 14 surveys of land, among the' number being two numbered 255 and 257, represented to contain 1,264.1 acres; that said two surveys had no existence; that appellant had released in writing his vendor’s lien upon all of the land except surveys 255 and 257; that they tendered a deed to said surveys to appellant and prayed for cancellation of the notes and for judgment for the amount paid by them on said surveys 255 and-257. Appellant filed three supplemental petitions denying the fraud alleged, and pleaded mutual mistake in making the release of the vendor’s lien on all the land, except surveys 255 and 257; that appellees knew of the conflict of older surveys with the two surveys and assumed the risk of the title thereto. The cause was submitted to the court and judgment rendered that appellant take nothing by his suit, that the notes be canceled, and that Sprague and Closner recover of appellant the sum of $2,528.20.

The evidence justifies the conclusion that the land was sold to appellees Chapin and Closner, the deed being made to Chapin, by the acre, and that it was represented to them that the two surveys, 255 and 257, were in existence, that appellant knew that the two surveys were in conflict with older surveys, or could have known by the exercise of diligence. The conflict is admitted by appellant in his brief. Appellant released the vendor’s lien on all of the other surveys sold by him to Chapin and Closner.

The deed given by appellant to Chapin contained no general warranty clause, and it is the contention of appellant that appellees accepted all hazard and risk as to the title to the two surveys and could not set up a failure of title to the two surveys to defeat the collection of the notes sued on. If there had been a covenant of general warranty in the deed, it would not include a warranty of the quantity- of land conveyed, unless it affirmatively appeared that it was sold by the acre and the quantity warranted. Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109; Weir v. McGee, 25 Tex. Supp. 20; Daughtrey v. Knolle, 44 Tex. 451; Rich v. Ferguson, 45 Tex. 396. Whether the deed contains a general warranty or not, in the absence of a warranty for quantity as well as for title, there can be no reduction of the purchase price for a deficit in quantity, unless there is proof of fraud or mistake. Where there has been fraud or mistake in the representations made by the vendor as to the quantity of land conveyed by him, the rule is that the purchase price will be diminished in proportion to the deficit in acreage, in a court of equity.

In the cited case of Smith v. Ely, it was held:

“It appears to be well settled that, in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to have been material, in the object of the purchase, affecting the essence of the contract, equity will grant relief.”

Tliis rule has often been approved in Texas. O’Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282; Moore v. Hazlewood, 67 Tex. 624, 4 S. W. 215; Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 614; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Lancaster v. Richardson, 13 Tex. Civ. App. 682, 35 S. W. 749; Wuest v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Barnes v. Lightfoot, 26 Tex. Civ. App. 113, 62 S. W. 564; Yates v. Buttrell, 132 S. W. 831; Id., 149 S. W. 347.

The matter of special or general warranty cuts no figure in this case, for the action is not based on a breach of warranty, but is an effort to obtain relief from payment of certain purchase money sued for by appellant. As said by the court in Moore v. Hazlewood, cited herein:

“That the land was conveyed with special warranty is of no importance, for this action is not based on any breach of warranty.”

The court further said:

“The defense is one which may be urged at any time when the vendor seeks to collect the purchase money that would be due had the contract not been made under mutual mistake as to a matter which must have influenced the making of it.”

However innocent appellant may have been in his representations as to the number of acres, that would not relieve him of liability, if the vendees relied upon such representations and were induced thereby to take the land. Of course, if there had been evidence showing that appellees took the risk as to the quantity of land,, they could not recover; but the mere fact that they accepted a deed without a general warranty did not prove that such risk had been taken. The evidence, on the other hand, tended to show that the vendees expected to get the full acreage paid for by them and relied on the representations of the vendor as to the acreage.

The cases cited by appellant do not meet the facts of this case. There is no question but that, if the vendee knows all the facts and accepts a tract of land, he cannot recover on account of the representations made by the vendor. That is all that is held in Hawkins v. Wells, 17 Tex. Civ. App. 360, 43 S. W. 816; McIntyre v. De Long, 71 Tex. 86, 8 S. W. 622; Elder v. Bank, 42 S. W. 124; and Warner v. Munsheimer, 2 Willson, Civ. Cas. Ot. App. § 393. In this ease the evidence showed that the representations of the agent of appellant, who was a skillful surveyor and had just surveyed the lands, induced Chapin and Closner to take the two surveys. They had heard of a conflict, but the surveyor assured them there was none.

Appellant treats this case in the first and second assignments of error as though it was one on a warranty, which it is not, but is one founded in mutual mistake, or fraud upon the part of appellant, in consideration of which an abatement of the unpaid purchase money and a return of certain money already paid is prayed for.

The third, fourth, fifth, sixth, and seventh assignments are disposed of by the conclusion of this court that the vendees were induced to take the land by the representations made by appellant, and by the fact that the land was bought and was to be paid for by the acre.

Chapin had disposed of all of his interest in the lands to appellees, and the debts to appellant had been assumed by them, and Chapin’s confessions and admissions could not bind or affect them. He could only speak for himself, and could not destroy legitimate defenses of his vendees by any admissions The law places no such terrible weapon in the hands of a vendor and does not give him the means of inflicting incalculable injury on the persons he should endeavor to protect. The testimony of Chapin shows that his admissions should never have been made, because not well founded. He swore to facts that established the misrepresentations of appellant, and he could not prejudge the ease of his vendees.

The tenth, eleventh, twelfth, and thirteenth, assignments of error are overruled. The evidence fully sustains the validity of the release of the vendor’s lien against all of the surveys except 255 and 257, and, if it did not, it could not remove the fact that there had been misrepresentations as to the acreage.

Appellees having paid $2 per acre on the two surveys, 255 and 257, were entitled, under the evidence, to recover that amount from appellant, and it follows that the court did not err in rendering judgment for appel-lees in the sum of $2,528.20.

The judgment is affirmed.

On Motion for Rehearing.

Appellant insists that Closner knew nothing about the conflict of the surveys until 1911, and yet the .statement of facts contains a letter written by Chapin about a conflict in 1908, and he swore positively:

“It is a fact that I knew on the date of the July contract, 1908, or shortly thereafter, that there was a contention that surveys 255 and 257 were in conflict with the Mesteñas grant. I knew of the alleged conflict on or before January 18j 1909. I tried to prevail upon De Wolf at the time of taking the second option to leave out of the option sections 255 and 257, on the ground of their being in conflict with older surveys, and De Wolf told me that he would not sell part without selling all, but assured me that we were mistaken in regard to the conflict. * * • I remember the facts connected with this extension agreement dated January 18, 1909, and it is a fact that both Closner and myself at that time knew of the alleged conflict of surveys 255 and 257 with an older grant. We proceeded with'said option contract of January 18, 1909, after we knew of the alleged conflict of surveys 255 and 257, because we were assured by Mr. De Wolf that there was no actual conflict.”

Who was De Wolf? He was an expert surveyor and agent of appellant, who had re-eently surveyed the lands, and whose accuracy oí statement as to any conflict in the surveys could be implicitly relied upon by Chapin and Closner. Still, in the face of the evidence, it is asserted that the conclusion of this court that Closner relied upon the representations of De Wolf is unwarranted, “in that such finding and holding is without evidence to support it, and is contrary to the established facts, in this, that Closner testified that he never heard of the conflict until about a year and a half before the trial.” The uncontradicted evidence showed that Chapin was acting for Closner .in the purchase of the land, and representations iñade to him which induced the trade were representations máde to both. Chapin testified that Closner knew about the conflict in January, 1909, as hereinbefore shown. The trade was made with Closner and Cha-pin, and not with Sprague. Both Closner and Chapin signed the agreement extending the option. It would not matter whether Clos-ner knew of the conflict or not, if Chapin, who was acting for him, did. If Closner did not know of the conflict, he should not be held liable for the two sections which appellant knew he had no title to when he sold it.

Although contending in the first clause of the motion for rehearing that Closner knew nothing of the conflict when the land was purchased, in the third clause appellant insists that knowledge on the part of Chapin of the conflict was the knowledge of both. If that be true, the representations made by De Wolf to Chapin that there was no conflict were representations made to both. The principle is elementary.

The motion for rehearing is overruled.


text:
    MURRAY GIN CO. v. PUTMAN et al.
    (No. 7182.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 31, 1914.
    Rehearing Denied Nov. 21, 1914.)
    1. TRIAL (§ 139) — PEREMPTORY INSTRUCTION.
    A peremptory instruction for plaintiff is properly refused, where the evidence is sufficient to warrant a finding for defendant.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dee. Dig. § 139.]
    2. Appeal ahd Error (§ 1002) — Evidence (§ 588) — Review—Conflicting- Evidence.
    Where 'the evidence is conflicting, it is for the jury to reconcile such conflict; and where there is evidence to support their finding, it will not be disturbed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002 ; Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.]
    3. Appeal and Error (§ 1006) — Review-Questions of Fact— Successive Verdicts.
    In an action for damages for failure of the seller to properly set up gin machinery, where the juries in three trials found that plain-
    tiff was entitled to recover damages, which verdicts the trial court approved, the appellate court on a third appeal will not set aside the verdict.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3951-3954; Dec. Dig. § 1006.]
    4. Limitation of Actions (§ 24) — Statutes Applicable — Breach of Contract.
    The four-year statute of limitations, and not the two-year, is applicable to an action for damages resulting from the seller improperly setting up gin machinery.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; Dec. Dig. § 24.]
    Appeal from District Court, Navarra County ; H. B. Daviss, Judge.
    Action by C. A. Putman and others against the Murray Gin Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    McClellan & Prince, of Corsicdna, and J. J. Eckford, of Dallas, for appellant. Richard Mays, of Corsicana, for appellees.

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

   RAINEY, C. J.

Appellees sued appellant to recover damages occasioned them by reason of failure of appellant to properly erect and install certain gin machinery, which caused loss during the year of 1907-08. Appellant pleaded general and special exceptions and general denial, and specially a breach of certain stipulations in the contract by appellees. A trial resulted in a verdict and judgment for appellees, from which this appeal is taken.

There have been three trials of this case, each resulting in favor of appellees. This is the third appeal, there being two reversals. The first is reported in 130 S. W. 631; the second, in 154 S. W. 245.

Findings of Fact.

On July 15, 1907, appellant, through its salesman, W. E. Ellison, sold to appellees, by written contract, two gin stands and some other gin machinery. Said contract, among other things, contained the following clause:

“Warranty. — Said machinery is warranted to be good material, to perform well, if properly operated by competent persons. Upon starting, if the purchasers, at any time within ten days, are unable to make same operate well, telegraphic or written notice, stating wherein it fails to conform to the warranty, is at once to be given by the purchasers to the Murray Company, Dallas, Tex. (and not verbally to some of its traveling men); and reasonable time shall be given to the Murray Oompany to send a competent person to remedy the difficulty, the purchaser rendering all necessary and friendly assistance to the Murray Company, which reserves the right to replace any defective part or parts, but such defective part or parts shall not condemn the machine to which it belongs. And if said machine cannot be made to fulfill the warranty, and the fault is in the machine, it is to be returned to place where received, and then another, as soon as practicable, substituted therefor, which shall fulfill the warranty, or the amount of the purchase price credited on notes pro rata, or money paid thereon refunded pro rata, neither party in such ease to have or make any claim against the other.”

Said warranty clause further provided that if at any time, at the request of the purchasers, the Murray Company should render assistance in operating the machine, or to remedy any defects therein, that the same was not to be considered a waiver or excuse for any failure of the purchaser or purchasers to fully keep and perform the conditions of this warranty, and that such assistance, if any, was to be rendered at the expense of the purchaser. After setting out the amount to be paid for such machinery, and the dates when such payment was to be made, with clause with reference to deed of trust, said contract contained a subhead, “Service of Men,” which was as follows:

“It is hereby expressly understood that the Murray Company, if requested, will furnish a man to superintend the erection of above machinery, for which - agree to pay, upon the completion of the erection of the machinery herein described, to the Murray Company, the sum of $4.00 per day for the time of said man while in transit to and from said job, and while engaged thereon, and, in addition thereto, the railroad fare and expenses of such man from factory to place of erection and return.”

Partly above and partly below the subhead “Service of Men” is written: “W. B. E. will show how to set up goods without additional charge.” “W. E. B.” ■ meant W. B. Ellison. Said machinery was delivered, and W. E. Ellison superintended the erection thereof. It was not properly erected, by reason of which it would not operate well. The Murray Company was notified of this fact, and sent at different times W. E. Ellison and two other of its employés to remedy the defect. The defect was not remedied during the season of 1907, and not entirely so during the season of 1908. Had appel-lees ginned all of the cotton which the evidence indicates would have come to them during the season of 1907, they would have ginned from 800 to 1,000 bales at a profit of $1 per bale. They ginned only 234 bales, on which they made no profit, but probably ginned the same at a loss. It was not alleged in appellees’ petition that the machinery was in any wise defective; on the contrary, the evidence conclusively shows that the machinery was not defective, and that the only reason why it did not operate well was because it was not properly erected.

The evidence further shows that said machinery was not properly erected during the ginning season of 1907, nor in 1908, and that appellees suffered damages from the failure to properly erect, as per the contract.

Conclusions of Law.

1. All of the questions of law arising upon the construction of the contract have been practically settled in favor of appellees by the decisions on the former appeals. See Murray v. Putman, 130 S. W. 631, and 154 S. W. 245.

2. The refusal of the trial court to give a peremptory instruction to find for appellant was not error, as the evidence was sufficient to warrant the jury in finding for ap-pellees. •

On the second appeal, among other things, it was held that the evidence as to the loss of profits and expenses for the season of 1907-08 was too vague and uncertain to form the basis of a verdict. On this trial the evidence is much fuller and more explicit on the question of damages. Therefore we cannot say that the evidence is too uncertain ujjon which to base a verdict. AVhile there is conflict in the evidence, it is the province of the jury to reconcile such conflict; and, where there is evidence to support their finding, it will not be disturbed. There is always more or less difficulty in arriving at the just amount of damages sustained in suits of this kind, and, before the appellate courts will disturb the verdict of the jury, it must be shown to be clearly wrong. The deference given verdicts of a jury is shown by the following quotation from the opinion of Justice Wheeler in Duggan v. Cole, 2 Tex. 381, to wit:

“I confess my inability very clearly to see upon what evidence the jury did arrive at the exact result which constitutes their verdict. But I cannot undertake to say that they found without or against evidence. I can only say that, to my mind, the evidence is unsatisfactory. Since, however, it has been sufficient to satisfy two juries, and especially since the judge who presided at the trial, with means of forming-a correct judgment very superior to those which we possess, was satisfied with the verdict, I cannot' undertake to disturb it.”

The juries in the three trials heretofore had in this case have found in each instance that appellees were entitled to damages. The judges presiding have approved the verdicts of the juries, and under the evidence we do not feel justified in setting the verdict aside.

3. On the second appeal the Third Court of Civil Appeals held that appellees had not used diligence in attempting to prevent the lessening of damages by operating the two Lummus gins appellees had on hand. On this issue additional evidence was introduced tending to show that appellees were not guilty of any negligence in that respect. The evidence on this trial at least was sufficient to raise an issue as to such negligence, which was properly presented to the jury in the court’s charge.

4. The court did not err for failure to charge that appellees’ claim for damages during 1908 was barred by the two-year statute of limitations. Appellees stopped ginning December 5, 1908. On December 3, 1910, they set up their claim for damages for 1908 by amended petition. Whether or not this is sufficient to prevent the statute of two years from embracing the full amount we deem it unnecessary to say, for the reason that this is an action for the bre'aeh of a written contract, and the two-year statute does not apply, but that of four years in applicable.

5. There was no error in the court overruling appellant’s exceptions to appellees’ petition, as it sufficiently alleged the grounds for a recovery.

6. We have examined each and every assignment of error, and consider none of such merit as requires a reversal of this case.

7. The evidence is sufficient to authorize the verdict, and the judgment is affirmed. •

Affirmed.


author: HIGGINS, J.

text:
    BERGERE et al. v. PARKER.
    (No. 355.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 29, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Principal and Agent (§ 99) — Apparent Authority — Reliance.
    The principal is bound by the acts of his agent within the scope of his apparent authority, when third persons in good faith and with reasonable prudence have dealt with the agent on the faith of such authority.
    [Ed. Note. — Eor other eases, see Principal and Agent, Cent. Dig. §§ 254-261; Dec. Dig. § 99.]
    2. Principal and Agent (§ 116) — Private Instructions — Rights of- Third Persons.
    Private instructions to an agent as to prices, terms, and matters of detail generally cannot bind those who in good faith and necessary prudence, without notice, have dealt with the agent relying upon an apparent’general authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 377, 377%; Dec. Dig. § 116.]
    3. Trial (§ 253) — Instructions—Ignoring Issues.
    Where it is admitted that an agent had authority to book attractions for a theater, but the agent’s authority was limited by private instructions to a hiring for $100 a week, it was error for the court to ignore in its instructions the liability of the principal on a contract for $125 a week, where the apparent authority of the agent was relied on.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Principal and Agent (§ 189) — Private Instructions — Issues.
    Pleading's in an action for services as vaudeville performers, alleging that the agent who did the hiring was acting within the scope of his apparent authority, is sufficient to raise the issue of the liability of the principal for a hiring on terms in excess of private instructions to the agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 713-717; Dee. Dig. § 189.]
    5. Sunday (§ 17) — Contracts—Vaudeville Performers.
    A contract for services of vaudeville performers is not void as in violation of Pen. Code 1911, art. 302, where the contract called for no services upon Sunday except such as might be lawfully given.
    [Ed. Note. — For other cases, see Sunday, Cent. Dig. §§ 48, 49; Dec. Dig. § 17.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by Jeanette and Rose Bergere against B. J. Parker. From a judgment for defendant, plaintiffs appeal. .
    Reversed and remanded.
    R. W. Franklin and B. E. Blankenbecker, both of Houston, for appellants. A. B. Wilson and Cole & Cole, all of Houston, for ap-pellee.

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

   HIGGINS, J.

Appellants sued appellee to recover salary alleged to be due upon two written contracts for their services as vaudeville performers. The contracts were made in Parker’s behalf by William Morris, Inc., a booking agency, through its representative, William Grover. One contract called for a week’s service at the Lyric Theatre in Houston for a salary of $125, and the other for a week’s service at The Theatredome in Galveston for a salary of $100. Appellants appeared at the Lyric Theatre and offered to perform, but Parker declined to pay more than $100 for the week’s service. It seems that he had no theater in Galveston, but appellants tendered their services to him there, which he declined.

It is admitted by Parker that he had entered into negotiations with Grover, representing William Morris, Inc., with the view of having the latter act as a booking agent for Parker’s Texas theaters, and that a written contract to that effect was to be entered into between • the parties, but that the contracts were never forwarded for his signature and the deal fell through. Parker admitted, however, that pending these negotiations, William Morris, Inc., or Grover for it, was authorized by him to book attractions for him, but claimed that he gave no authority to contract for a salary exceeding $100 per week. Plaintiffs alleged that in making the contracts with them, William Morris, Inc., acted for defendant in the course of his employment and within the actual, implied, and apparent scope of its authority, and that William Morris, Inc., was represented by its agent, William Grover, thereunto duly authorized and empowered.

Upon trial before a jury, the cause was submitted upon instructions which read:

“The plaintiffs claim the right to recover on two contracts which they allege were entered into with them by the defendant, through his agent and representative, Wm. Morris & Co., Inc., who acted, they allege, through its agent, Wm. Grover. The defendant denies that any one having authority to represent him, entered into said contracts.
“II. You are instructed that unless you believe from the evidence that Wm. Morris & Co., Inc., were authorized by the defendant to enter into said contracts, you need not inquire further, because in the event you do not so believe from the evidence, the plaintiffs cannot recover herein, and you will so find.
“III. In determining whether or not Wm. Morris & Co., Inc., were so authorized, you are instructed that’ the uncontroverted evidence shows that prior to the date of said contracts the defendant had negotiated with Wm. Grover as the agent of Wm. Morris & Co., Inc., concerning certain arrangements in contemplation between said Wm. Morris & Co., Inc., and the defendant; and, if you believe from the evidence that pending said negotiations the defendant
gave to the said Grover authority to enter into said contracts, and that in so giving to the said Grover said authority, the defendant understood him to be acting as the agent of said Wm. Morris & Go., then any such authority he did give the said Grover will be considered by you as having been authority given by the defendant to said Wm. Morris & Go., Inc.; on the other hand, if you should believe from the evidence that pending said negotiations the defendant gave Wm. Grover authority, but should not further believe from the evidence that he gave said authority to said Grover as the agent and representative of Wm. Morris & Co., Inc., then, in this last-named event, the plaintiffs cannot recover in this ease, and you will so find.
“IV. You are further instructed that if you believe from the evidence that the _said Wm. Grover, prior to the entering into of said contracts, informed the defendant, Parker, that he could get the Bergere sisters, the plaintiffs, for $100 a week, and that the defendant consented in reply to such information to employ the plaintiffs at $100 per week, but should not further believe from the evidence that the defendant authorized the said Grover to contract with plaintiffs for more than $100 per week, then in this event the plaintiffs cannot recover, and you will) so find.
“V. The burden of proof is upon the plaintiffs to prove by the preponderance of the evidence the facts relied upon by them to show that Wm. Morris & Co., Inc., through Wm. Grover, its agent, were authorized by the defendant to enter into said contracts; and unless they have done so, you will find for defendant.”

By appropriate assignments, complaint is made of each of the foregoing paragraphs of charge. It is unnecessary to discuss them in detail, and we will very briefly indicate the legal principles applicable.

It is a fundamental rule of the law of agency that the principal is bound by the acts of his agent when the latter acts within the scope of his apparent authority and third persons in good faith and in the exercise of reasonable prudence have dealt with the agent on the faith of the authority apparently conferred upon him. Private instructions or limitations as to prices and terms and matters of detail generally cannot affect or be binding upon those who in good faith, without notice thereof, and in the exercise of the necessary prudence, have dealt with the agent, relying upon an apparent general authority. Oitation of authority to this effect is perhaps unnecessary, but this general rule is announced in the following : Baker v. Kellett, 84 S. W. 601; Hayward Lbr. Co. v. Cox, 104 S. W. 403; Irr. Co. v. Sweeney, 81 S. W. 545; Oil Co. v. Bank, 34 Tex. Civ. App. 551, 79 S. W. 653; Barnes v. Downes, 2 Willson Civ. Cas. Ct. App. p. 472, § 524; Meehem on Agency (1st Ed.) §§ 362-365.

It is admitted by Parker that William Morris, Inc., or its representative, Grover, at the time Bergere sisters were engaged, had authority to book such attractions for his Texas theaters, and the court erred, in the paragraphs of the charge quoted, in ignoring the issue of defendant’s liability under the rule indicated. i

The claim is not well taken that the pleadings do not raise this phase of the case. It is alleged that the agent acted within the scope of his apparent authority.

There is no merit in appellee’s further contention that the contract was void because in violation of article 302 of the Penal- Code. The contract called for no service upon Sunday, except such as might lawfully be given.

For the error indicated, the cause is reversed and remanded.