author: CARL, J.

text:
    YZAGUIRRE et al. v. GARCIA.
    (No. 5349.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 11, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Appeal and Eeeoe (§ 295) — 'Questions Review able — Fundamental Eeeoe.
    The error in rendering judgment for the purchaser in an executory contract of sale, the vendor having no title at the time of the contract, for the difference between the contract price and the market value is fundamental and reviewable on appeal without motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1704; Dec. Dig. § 295.]
    2. Vendos and Puechasee (§ 351) — Execu-toey Conteaot — Breach by Vendor — Meas-UEE OP RECOVEEY.
    Where a vendor in an executory contract of sale has no title, the purchaser may not recover the difference between the contract price and the market value, but, where he has paid the purchase money, he may recover it back, with interest from date of payment and any special damages accruing from having been induced to enter into the contract when pleaded and proved.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1017, 1047-1058; Dec. Dig. §351.]
    3. Limitation op Actions (§ 111) — Action on Note — Injunction.
    Where a note given by plaintiff to defend ant was alleged by plaintiff to form a part of the contract of sale of real estate sued on, and plaintiff obtained an injunction restraining defendant from filing suit on the note, the note was not barred by limitations by lapse of time during the injunction.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 521; Dec. Dig. § 111.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Porfirio P. Garcia against Jesus Maria Vzaguirre and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    James B. Wells, of Brownsville, Denman, Franklin & McGown, of San Antonio, and Harbert Davenport, of Brownsville, for appellants. Don A. Bliss and Cobbs, Eskridge & Cobbs, all of San Antonio, for appellee.

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

       Writ of error pending in Supreme Court.

   CARL, J.

Appellee, Porfirio P. Garcia, sued Jesus Maria Vzaguirre, Cecelia Garcia Vda de Villareal, Josefa Villareal, after-wards Hinojosa, and her husband, Octaviano Hinojosa, and Eduardo Vzaguirre on an alleged option contract. It is alleged that the appellee was damaged in the sum of §60,000 by reason of the breach of said contract and failure of the defendants to convey between 5,000 and 6,000 acres of land in Starr county to the appellee. The petition charges that the land was to be conveyed at §1.25 per acre, and tbe difference between that figure and wbat tbe land is alleged to bave been worth on the market is the amount sued for. The land is a part of porciones Nos. 90, 91, and 92 in Starr county.

The written instruments upon' which the suit is predicated are:

(1) A letter from Jesús Maria Vzaguirre to P. P. Garcia, under date February 25, 1907, which reads;

“Señor Porfirio P. Garcia, San Antonio, Texas — Dear Cousin: On date of 19th of this month, I wrote you making yon my proposition for settlement of the account which you owe that is already due, but to this day I have had no answer from you. My son goes to your city and has my instructions to settle with you this account and to admit in part payment these properties you have down here. Please have the kindness to settle with him, as I desire that this account be settled to require or to employ any other person to make this settlement, which is very simple, and, for this reason, I desire that you settle and agree with my son now that he is there.
“Your cousin and servant,
“[Signed] Jesus Maria Vzaguirre.”

(2) Reply to the above, following its delivery, reading as follows:

“Mr. Eduardo Vzaguirre, Present — Esteemed Nephew: In consideration of the’option which you have offered me that I can buy, and you thereby bind yourself to sell to me, my heirs or successors, at whatever time that I may request it within one year’s time counting from tomorrow, the 8th clay of March, the rights in land in porciones 90, 91 and 92, or adjacent thereto, which your grandmother, Dona Ceeilita Garcia, widow of Villareal, and your aunt, Miss Josefa Villareal, have, and which also in the land of Santo Domingo, situated in Starr county, Texas, your father may represent, said three rights consisting of from 5,000 to 6,000 acres, more or less, and for which land you have fixed the price of §1.25 per acre, payable, in cash, at the time of my receiving the corresponding conveyances of same, I have agreed with you, today, in the following, in relation to the maturity of my note of December 31, last, executed in favor of your father on Nov. 7, 1906, and the rates of interest corresponding thereto to this date.
“[Signed] Porfirio P. Garcia.”

(3) On March 8, 1907, Eduardo Vzaguirre wrote P. P. Garcia:

“Mr. Porfirio P. Garcia, Present — Esteemed Uncle: This serves to show you that in entire conformity with all of the terms contained in yours dated yesterday, I have, to-day, received from your hands the conveyance executed by you in favor of my father, of the right of 1,463 acres of land, more or less, which you have in porciones 90, 91 and 92, situated in Starr county, Texas, and of your house and property situated in Rio Grande City, Texas. I have also, to-day, received your note of this date, executed in favor of my father, for the sum of §2,250.00, gold, with 3 per cent, annual interest, which matures January 7, 1908, having also received, yesterday, your check No. 590, in my favor, on the National Bank of Commerce for $130.00 all of which is in full payment and cancellation of your matured note, executed November 7, 1906, for $4,000.00, in favor of my father, with interest until yesterday, and which note upon my return to Camargo, Mexico, which will be within a few days, I promise to send you duly cancelled.
“I am your cousin who respects you.
“[Signed] Eduardo Yzaguirre.”

Garcia owed Yzaguirre a note for $4,000, which was past due, and he was demanding payment, and Garcia delivered to Eduardo Yzaguirre a conveyance of the Starr county lands and the Rio Grande City property, the conveyance reciting a consideration of $1,780, Garcia’s check for $130, and his promissory note in the sum of $2,250, du,e January 7, 1908. This balanced the note due. About March 20, 1907, Jesus Ma. Yzaguirre returned to Garcia his note for $4,000, referred to above, bearing the following indorsement:

“San Antonio, March 8, 1907.
“I received in payment of the present note:
“1 check No. 590, against National Bank of Commerce, value $130.00.
“Deed of sale of 1,403 acres, more or less, in porciones 90, 91 and 92, and property in Rio Grande City, all for $1,780.00.
“One note of this date payable Jan. 7th, 1908, for $2,250.00.
“Total, $4,160.
“[Signed] Jesus Ma. Yzaguirre.”

November 22, 1907, appellee wrote Eduardo Yzaguirre:

“San Antonio, Tex., 11/22/07.
“Mr. Eduardo Yzaguirre, C. Camargo, Tamps., Mex. — Esteemed Nephew: As I am now ready, willing and able to pay, according to the privilege or option, which to that effect you granted me on the 8th of March, ult., for the 5,000 or 6,000 more acres of land that are owned by your grandmother, your father and my cousin, Josefa Villareal, in the porciones of Starr Co., of this state, known under numbers as 90, 91, and 92, of the ranch of Santo Domingo, I will thank you, that without delay, you please send me abstract of title, showing a good title which they hold to said land, to give said abstract to my lawyer in this city to examine, and, in case they prove the same a good title, to send you the transfers ready to be signed by whom it may concern, and to be duly acknowledged before a notary public in Rio Grande City, Texas, and to pay you for said land, in such ease, at the rate of $1.25, American gold, as per agreement, in cash. I must say to you that it is of great importance that, upon receipt of the present letter, you proceed to send me abstract of title • referred to, telling me at once with preciseness, if possible by telegram, what day at the latest can I depend on receiving said abstract.
“Awaiting your immediate answer with our regards to your little son, I am your cousin, “[Signed] Porfirio P. Garcia.”

A carbon copy of the above letter was mailed to Jesus Ma. Yzaguirre, and on December 8, 1907, appellee again wrote Eduardo Yzaguirre calling his attention to his former letter to which he had no reply; and on December 14, 1907, Eduardo Yzaguirre replied as follows:

“C. Camargo, Tamps., Mex., Dec. 14, 1907.
“Mr. Porfirio P. Garcia, San Antonio, Tex. — ' Esteemed Uncle: In answer to your favor of the 22d of Nov. last and the 8th of the present, I say to you that I offered you that, if within the term of one year you could buy the land, if yet existing in the possession of my father, I would sell it to you, but it is already some time that this land was sold.
“Favoring me by presenting my respects to my esteemed aunt, I am your nephew and servant, [Signed] Eduardo Yzaguirre.”
“P. S. — My father recommends me to say to you that, in reference to the taxes, he does not send you the detailed receipt, because the collector is not in Rio Grande City.
“[Signed] E. Yzaguirre.”

On March 4, 1908, Cecilia Garcia de Vil-lareal, Josefa Villareal, and Jesus Maria Yzaguirre conveyed all the lands owned by them in porciones 90, 91, 92, and 93 in Starr county to Jacobo O. Guerra and J. R. Monroe.

The defendants denied the allegations of the third amended original petition upon which the case was tried, and denied that Eduardo Yzaguirre had any authority to bind them for the sale of the land, and denied that any contract was made by them or by any one having authority to do so. They also pleaded the four-year statute of limitation and the statute of frauds. Eduardo Yzaguirre also pleaded his minority at the time of the alleged contract. Jesus Ma. Yzaguirre pleaded a cross-action on the note for $2,250 given him by Garcia March 8, 1907 and due January 7, 1908, and prayed for interest and attorney’s fees as well as the principal. This answer and cross-action was filed February 2, 1914.

In a supplemental petition appellee alleged, on information and belief:

“That Jesus Ma. Yzaguirre bad full power and authority from the defendants Cecilia Garcia de Villareal and Josefa Villareal Hinojosa, who was then a feme sole, to act for said defendants in the making of any and all contracts with reference to all lands and properties owned in Texas by said defendants, and that said defendants, acting for themselves, as well as through the defendant Jesus Maria Yza-guirre, gave the defendant Eduardo Yzaguirre power and authority to represent and bind them,” etc.

And, as to the note, the four-year statute of limitation was pleaded, and that Yza-guirre was not entitled to recover thereon except as a credit upon such sum as appellee might recover for the breach of the contract, and that in that event only the principal and interest due thereon November 22, 1907, the date of the alleged breach of the contract.

When the original petition was filed, December 23, 1907, the court, in the fiat indorsed on the same, issued an injunction “restraining the defendants from transferring or assigning the certain note for $2,250,” etc.; but in the copy of the.writ served on Yzaguirre, it is recited that the prayer is “for injunction to restrain defendant Jesus Ma. Yzaguirre from disposing of, or bringing suit upon, plaintiff’s note, given as part consideration in said transaction.”

The court submitted special issues upon the following: As to whether Eduardo Yzaguirre, when he wrote the letter of March 8, 1907, to Garcia, was authorized by Jesus Ma. Yzaguirre to accept the proposition made in the letter of March 7, 1907, written by Garcia to Eduardo Yzaguirre; and the jury answered, “Yes.” As to whether Eduardo Yzaguirre, when he wrote the letter March 8, 1907, was authorized by the other defendants to do so; and the jury answered, “No.” And to the fourth and fifth issues the jury answered that Eduardo Yzaguirre was not authorized by either of the Villareals or Hinojosa to accept Garcia’s proposition set out in the letter of March 8, 1907; and the jury also found that Jesus Ma. Yzaguirre was not authorized by the Villareals to accept Garcia’s proposition as contained in his letter of March 7, 1907. According to the jury’s finding, Jesus Yzaguirre did not repudiate the agency or act of Eduardo Yzaguirre when he learned of same a short while after March 8, 1907; that Garcia was ready, willing, and able to buy within the year, and so informed Yzaguirre; and found the value of the land to be $1.75 per acre, there being 5,573.48 acres belonging to the defendants in porciones 90, 91, 92, and 93.

So much for pleadings and special findings. As a matter of fact, on March 7, 1907, the date of the letter upon which the alleged contract is based, neither Jesus Ma. Yza-guirre nor Eduardo Yzaguirre owned any interest whatever in porciones 90, 91, 92, and 93, and the only interest which Jesus Ma. Yzaguirre later acquired was that which Garcia conveyed to him on March 8, 1907, same being 1,463 acres. Cecilia and Josefa Villareal owned the other interest conveyed to Guerra and Monroe, along with that Yza-guirre acquired from Garcia.

Appellants the two Yzaguirres filed an extended motion for judgment on the pleadings and evidence, and on March 28, 1914, filed a motion to set aside the verdict of the jury and render judgment for them, and on the same day filed a motion asking for judgment on the $2,250 note, interest and attorney’s fees. Those motions are made the basis of the assignments of error on this appeal, no motion for a new trial having been filed, but assignments of error were filed.

The court entered judgment in favor of Garcia against the two Yzaguirres for $3,-S50.31, as damages due April 1, 1914, less the sum of $2,297.81 due on the principal and interest of the note on November 22, 1907, or a net judgment in Garcia’s favor of $1,552.50. The Yzaguirres appeal.

Assignments of error were filed in the trial court, but no motion for a new trial, other than the motion for judgment for the defendants and a motion to render for the defendants on the verdict of the jury as returned.

Jesus Ma. Yzaguirre had no title to any part of porciones 90, 91, and 92 at the time the letters were written, and the only interest he had at the time the contract is alleged to have been breached is the 1,463 acres he purchased from Garcia. Yzaguirre testifies positively that he had no interest therein, but appellee insists that the copy of a deed made by him and others to Guerra and Monroe shows that he did have an interest. An inspection of that document shows that he sold all his right, interest, and title in porciones 90, 91, 92, and 93, which is given by acres as 147.52 acres in No. 90, 683.78 acres in No. 91, 522.75 acres in No. 92, and 3.83 acres in No. 93, which aggregates 1,357.88 acres. This is stated to be all he owns, and that includes 3.83 acres out of No. 93, which was not mentioned in the letters. He only warranted title to the above number of acres, but, to make the title complete, the latter part of the deed is made to include all the interest he owned, by inheritance or otherwise. So the amount sold was actually less than he purchased from Garcia; yet he conveyed all he had. Therefore, at the time transactions were had with Eduardo Yzaguirre, Jesus never owned any land in those porciones; he had nothing to sell.

As to whether the motions filed were sufficient to relieve appellants from the necessity of filing a motion for a new trial need not here be decided, because the matters to which our attention is directed are fundamental.

Our courts have often held that, where the vendor has no title, in executory contracts for the sale of land, that the purchaser is not entitled to recover the difference between the contract price and the market value; but, if he has paid the purchase money, he would be entitled to recover it back, with interest from the date of payment and any special damages accruing from having been induced to enter into the contract; and here he pleads no special damages. Vacarezza v. Realty Investment Go., 165 S. W. 516; Hahl v. West, 129 S. W. 876; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 121; Tinsley v. Dowell, 87 Tex. 23, 26 S. W. 946; Roberts v. MeEadden, 32 Tex. Civ. App. 47, 74 S. W. 110; Hollingsworth v. Mexia, 14 Tex. Civ. App. 363, 37 S. W. 455; Sutton v. Page, 4 Tex. 142; Hall v. York, 22 Tex. 642; Wheeler v. Styles, 28 Tex. 240.

This court has often spoken on this matter. Chief Justice Fly said, in Hahl v. West, supra:

“In cases of executory contracts for the sale of land, in which the vendor has no title to the land, the purchaser is not entitled to recover the difference between the contract price and the market value, but, if he has paid the purchase money, is entitled to recover it with interest from date of payment, and any special damages accruing from having been induced to enter into the contract. If he has not paid any part of the purchase money, and the vendor did not' own the land, no recovery could be had upon the breach of the contract, but the action could only be based upon a tort for inducing the purchaser to enter into such a contract. * * * The petition declared on a contract which was incapable of being specifically performed, because appellee did not own the land, and, no purchase money having been paid, no damage could be recovered for a breach of the contract, and the court did not err in sustaining the general demurrer.”

And Justice Neill made a similar holding in Clifton v. Charles, supra, while Mr. Justice Brown, of the Supreme Court, said, in Tin-sley v. Dowell, supra:

“Dowell had no power to carry out the contract by making a deed to Tinsley. * * * Generally it is necessary that a contract should be mutually binding upon both parties in order to sustain an action by one for its enforcement or for damages for its breach. * * * It would be remarkable as a legal consequence that a man who was not bound to convey land, and could not be held liable for a failure to comply with the contract, might maintain a suit against the. other party for a failure to complete the purchase. In this case Dowell could not have been made liable for the damages if the land had appreciated in value and Rogers had refused to convey in accordance with the contract.”

The first assignment is sustained.

The disposition we have made of the above assignment makes it unnecessary for us to deal specifically with any of the other assignments, except the fourth, which complains of the action of the court in refusing to instruct the jury to find for Jesus Ma. Yzaguirre the principal, interest, and attorney’s fees due on the note given by Garcia. It seems that the trial court, in a measure, sustained the plea of limitation against said note. But in Garcia’s pleadings he recognizes the principal and interest due on the note up to November 22, 1907, and asks that same he offset with his damages. It must also be recalled that appellee obtained an injunction against Yzaguirre when the suit was filed in December, 1907, restraining him from transferring the note, and in the writ which was served on him, under the seal of the court, he was further commanded to desist from filing suit on the note. This writ was served on him March 10, 1908, in Starr county, Tex. Further, in his original petition filed in 1907, and again in the third amended original petition filed in January, 1914, the note is declared to be, in substance, a valid obligation, and is alleged to form a part of the consideration for the ■ contract sued upon. He, of necessity, recognized the binding force of the note, for, if he had not, a court of equity would have extended him scant welcome.

If we take the theory of appellee, the note formed a part of, and was inseparably connected with, the contract sued upon. He obtained an injunction restraining the transfer of the note, and the writ served upon Yzaguirre, under the seal of the court, also commanded him to desist and refrain from filing suit on the note. The assignment is sustained. Williams v. Pouns, 48 Tex. 141; Davis v. Andrews, 88 Tex. 524, 30 S. W. 432, 32 S. W. 543; Bowen v. Kirkland, 17 Tex. Civ. App. 346, 44 S. W. 189.

Appellee’s cross-assignments are overruled.

The judgment of the trial court is reversed, and here rendered that appellee take nothing by reason of this-suit, and that’ the appellant Jesus Maria Yzaguirre do have and recover of and from the appellee, Porfirio P. Garcia, the principal, interest, and attorney’s fees due upon the note dated March 8, 1907, and that appellee pay all costs in this court and the court below.

The judgment is reversed, and here rendered.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    CANODE v. SEWELL et al.
    (No. 684.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1914.)
    1. Master and Servant (§ 286) — Injuries to Servant — Negligence of Master — Sufficiency of Evidence.
    Where there was evidence tending to show that an elevator which descended upon and killed an employs would suddenly start up or down without apparent cause, and that there had been no inspection of the elevator, there was sufficient evidence to take to the jury the question of the employer’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    2. Master and Servant (§ 179) — Injuries to Servant — Master’s Liability — Statutes — Repeal.
    Rev. St. 1911, art. 4694, gave a right of action for the death of any person by the negligence of the owner of a common carrier, or for such death caused by the negligence of another person. Article 4695 provided that the wrongful act must be such as would, if death had not ensued, entitle the party to recover for injuries. Under these two articles an employer was held not to be liable for the death of an employs caused by the negligence of a fellow servant. Acts 33d Leg. c.143 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4694), re-enacted article 4694, amending it only so as to give a right of action for death resulting from the negligence of a corporation, its servants or agents, and repealed all laws in conflict therewith. Held, that the amending act did not repeal article 4695 so as to render an employer liable for death resulting from the negligence of a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 354-358; Dec. Dig. §

    3.Statutes. 158) — Implied Repeal.
    An implied repeal is not favored, and exists only where the conflict between the statutes is so clear that both cannot remain the law.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by Carrie Sewell and others against H. P. Canode. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    See, also, 170 S. W. 271.
    Capps, Cantey, Hanger & Short and D. B. Trammell, all of Ft. Worth, Cooper & Merrill, of Houston, and Lumpkin & Harrington, of Amarillo, for appellant. Jones & Miller and L. C. Barrett, all of Amarillo, and J. L. Pen-ry, of Dallas, for appellees.

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

   HUFF, C. J.

This was a suit originally brought by Carrie Sewell, wife of Alvin A. Sewell, deceased, on behalf of herself and her minor daughter, Blary Irene Sewell, against H. P. Oanode, for damages for the death of said Alvin A. Sewell, and upon announcement of ready for trial, Blrs. Blattie Norvell was made a party plaintiff, as one of the beneficiaries in the suit.

“The accident resulting in Sewell’s death occurred July 11, 1913, and' the allegations of negligence relied upon by appellees and submitted by the court were a failure to provide the said Sewell a reasonably safe place to^work, and the negligence of one Frank Inman, likewise a servant of the defendant, who was in the elevator at the time Sewell was injured. Defendant specially denied appellee’s allegations of negligence, and specially pleaded assumed risk, contributory negligence, that he was not guilty of any negligence causing the death of the decedent, and that the death of said Sewell was caused by the act of negligence of the fellow servant, for which defendant is not liable.”

There was a verdict and judgment in favor of the appellees for the sum of $7,750, apportioned between the several beneficiaries as follows: Mrs. Sewell, $2,750; Mary Irene Sewell, $4,500; Mrs. Norvell, $500.

The first assignment of error complains at the action of the court in refusing the appellant’s specially requested charge No. 1, directing peremptorily the jury to return a verdict for defendant, for the reason that the uncontroverted testimony of the case fails to show any act of negligence on the part of the defendant, H. P. Ganode, which was the proximate cause of the death of said Alvin A. Sewell. Without setting out the testimony with reference to the negligence charged against appellant in failing to furnish a reasonably safe place to work and maintaining it as such, we will state that there is some testimony tending to show that the elevator was out of repair in the particulars alleged, that is, that it would suddenly start up or down without any apparent cause therefor, and the question as to whether or not the appellant used ordinary care qf inspection is raised by testimony tending to show that such inspection was not made. We believe that we would not be warranted in holding as a matter of law that there was no testimony authorizing the jury to find that there was no negligence. At any rate, the court, upon that issue, properly submitted the case to the jury, and the assignment upon appellant’s negligence will be overruled.

The second and third assignments will be overruled for the reasons above stated.

The fourth assignment of error also complains of the sixth paragraph of the court’s charge to the jury, wherein the jury were instructed that if the appellant was negligent in failing to furnish the deceased a reasonably safe place to work and such negligence was the proximate cause of his death, they would find for the appellees:

“Or if you believe from the evidence that Frank Inman, while in the employ of defendant, was working in or about the elevator in question, and while the said Sewell was engaged in his work in and about said elevator, said Frank Inman, without notice to said Sewell, threw the starting lever and thereby caused the elevator ear to suddénly start, and in so doing it caught and crushed the said Sewell to death, and you further believe from all the circumstances that the throwing of the lever and starting the elevator car by said Inman, if he did so start it, was negligence on his part, and that such negligence, if any, was the proximate cause of the death of said Alvin A. Sewell, and that said plaintiff was thereby damaged, and that such death was not caused by dangers ordinarily incident to the ‘employment’ in which said Sewell was engaged, as that term is defined in this charge, you will find for the plaintiff, unless you find for the defendant under other instructions herein given.”

Under other instructions the court instructed the jury that the appellees could not recover if Sewell himself was guilty of negligence contributing to his injury, or if he had assumed the risk, giving the law of assumed risk.

The fifth assignment complains at the action of the court in refusing to give appellant’s third specially requested charge, which is:

. “You are instructed, at the request of the defendant, that Frank Inman was a fellow servant with the deceased Alvin A. Sewell, and if you find from the evidence that the. injury of said Alvin A. Sewell was directly and proximately caused by the act of the said Frank In-man, you will find for the defendant.”

The facts in this case establish the fact that Frank Inman and Alvin A. Sewell were fellow servants, in the employ of appellant, and working together at the time of the death of Sewell. The elevator upon which these parties were at work was one used in the Amarillo Hotel, of which the appellant Ganode was proprietor and owner, ft operated from the basement to the upper stories of the building, of which there were three. Inman states substantially that on the day of the accident Sewell called his attention to the fact that the enunciator on a bell on the elevator was not working properly, and that he and the deceased went to the elevator for the purpose of remedying that defect, and at the time of the accident the elevator was between the second and third floors or stories and, as he described it, aoout 18 inches or two feet below the third floor, and that he (Inman) got into the elevator, and it started down immediately, and that he did not know just how it struck Sewell. Sewell was found on top of the elevator after it had gone to the basement of the building, and Inman states that he does not know whether he moved the lever which regulates the movement of the elevator up an'd down. The lever is described as moving from left to right and moving it in one direction causes it to go up, and moving it back in the other direction it will go down, and when released that it automatically goes to what is called neutral and stops the elevator. The elevator is. run by electricity; the method of its connection, construction, etc., will not be deemed, at this time, necessary to describe. Inman was unable to state whether he moved the lever or not, and that he only knew that he had hold of the elevator lever by having been told by one Mr. Ong, who was selling cigars in the lobby of the hotel, who stated he saw him moving it backwards and forwards as the elevator descended. We find that there are facts and circumstances which would have authorized the jury to find that the cause of the elevator descending was the fact that Inman moved the elevator lever to a point required to cause the elevator to descend, and that there are facts which would have authorized the jury in finding that in doing so he was negligent, and that his negligence in that particular was the proximate cause of the death of. Sewell. We believe this will be a sufficient statement of the facts to understand our holding in this case.

The controlling question in this appeal is the effect to be given to the second section of article 4694, R. O. S., as amended by the Thirty-Third Legislature (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4694). This statute, together with article 4695, gives a right of action to the widow and beneficiaries of the decedent, which does not exist independent of these statutes. It has long been the rule in this state that actions founded upon these statutes, must strictly conform to them. Ry. Co. v. Le Gierse, 51 Tex. 189; Sullivan, etc., v. Cooper, 105 Tex. 21, 142 S. W. 1168. It is contended in this case that the amendment of article 4694, R. C. S., by the act of 1913 (General Laws, c. 143, p. 288) repeals article 4695. The amendment is.as follows:

“An act to amend article 4694 of the Revised Civil Statutes of 1911, giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants, and declaring an emergency.
“Be it enacted by the Legislature of the state of Tss&s t
“Section 1: That article 4694 of the Revised Civil Statutes of 1911 be, and the same is hereby amended so as to hereafter read as follows:
“Article 4694: An action for actual damages on account of injuries, causing the death of any person, may be brought in the following cases:
“1st: When the death of any person is caused by the neglect or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stagecoach or other vehicle for the conveyance of goods, passengers, or by the unfitness, neglect or carelessness of their servants or agents; when the death of any person is caused by the neglect or carelessness of the receiver or receivers, or other person or persons in charge or control of any railroad, or their servants or agents; the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad was being operated by the railroad company.
“2nd. When the death of any person is caused by the wrongful act, neglect, unskillfulness or default of another person or corporation, their agents or servants.
“Sec. 2. That all laws in conflict herewith be repealed. The Supreme Court having held that the present article does not allow recovery for injuries resulting in death caused by the wrongful act, neglect, unskillfulness or default of a corporation, its agents or servants, creates an emergency and an imperative public necessity, demanding the suspension of the rule requiring bills to be read on three several days in each House, and said rule is hereby suspended, and that this act take effect from and after its passage, and it is so enacted.”

Article 4695 is as follows:

“Art. 4695 (3018). Character of Wrongful Act. — The wrongful act, negligence, carelessness, unskillfulness or default, mentioned in the preceding article, must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury. (Acts 1860, p. 32 — Acts 1887, p. 44, Acts 1892, S. S., p. 5.)”

It will be observed that section 2 was amended by adding, after the word “person,” “or corporation, their agents or servants.”

It is urged here that this amendment abrogates the rule of fellow servant and renders the employer liable for the negligent act of a fellow servant, causing the death of the decedent. It was the evident purpose of the amendment to place the class of persons to which section 2 is applicable, upon the same footing as to a right of recovery with the class named in section 1 of the article. By section 1 a right, of action is given—

“when the death of any person is caused by the neglect or carelessness of the proprietor, * * * or by the unfitness, neglect or care- . lessness of their servants or agents.”

Previous to the fellow servants law, as applicable to the employés of railroads, article 6642,'R. O. S., our Supreme Court held that the beneficiaries could not recover under this act for the death of their decedent, caused by the negligent act of a fellow servant. Railway Co. v. Berry, 67 Tex. 238, 5 S. W. 817; Price v. H. D. Nav. Co., 46 Tex. 535. The language of article 4695 is that the act of negligence or default is such “as would, if death had not ensued, have entitled the party injured to maintain an action for such injury,” and has been held to limit the right of action to those eases in which the decedent could have recovered had he sued for the injury in his lifetime. If he settled before death for the damages occasioned by the injury, his widow could not sue for damages after his death, resulting from such injury. Thompson v. Railway Co., 97 Tex. 590, 80 S. W. 990, 1 Ann. Cas. 231.

“By the law regulating the relation of master and servant, unless modified by statute, the master is not responsible to the servant for an injury inflicted by a fellow servant; but the master is responsible for his own negligence resulting in injury to the servant.” Railway Co. v. Freeman, 97 Tex. 394, 79 S. W. 9, 1 Ann. Cas. 481.

The above expression was used in discussing the question of the liability of a railroad sought to be established for the death of a third party, and whether in that case the railroad fell under the class named in subdivision 1 of the article. When the master himself is not guilty” of negligence and would not be liable to tbe deceased for injuries bad be lived, under article 4695, be is not liable to tbe beneficiaries for tbe death of their decedent, under tbe statute. If for any other reason tbe master would not be liable to the decedent while living, under tbe above articles, tbe master would not be liable tó tbe beneficiaries. Sullivan v. Watson (Sup.) 155 S. W. 179; Wilson v. Brown, 154 S. W. 322. We cite the above cases as illustrating tbe application tbe courts of this state have made to article 4695. Since tbe enactment of tbe death statute in 1860, it has contained tbe provision that a proprietor is liable for tbe death of another occasioned by bis negligence or tbe unfitness, negligence, or carelessness of bis servants or agents, and in all cases tbe courts bold that a recovery cannot be bad for tbe death unless living, tbe decedent could have done so. It will not be contended in this case if Sewell bad been injured only and not billed, and if tbe injury received by him was caused solely by tbe negligence of a fellow servant, that under tbe law be could have recovered. Tbe trial court, by bis charge in this case, recognized tbe general limitation on recovery contained in article 4695. He charged tbe jury that tbe appellee could not recover if the deceased assumed tbe risb, or if be was guilty of contributory negligence. However, we do not understand that counsel for appellee contends that tbe fellow servant’s rule does not apply if article 4695 is unrepealed. Tbe act in question does not purport to repeal or to amend the. last article. It only purports to amend article 4694. In other words, it broadens tbe right of action. Under tbe law of master and servant, the master is liable for injury inflicted upon a third person. Before tbe amendment tbe master would not be liable for tbe death of such third person under tbe statute, occasioned by tbe negligence of the servant. Apparently tbe purpose of tbe amendment was to grant tbe right of action in such case. If this is not tbe bolding of tbe Supreme Court referred to in the emergency clause of tbe act, we do not know to what holding reference is made thereby. If tbe contention of appellee is correct, with reference to tbe repeal of tbe article, if a railroad should be sued for tbe death of an employé, it could not plead contributory negligence on bis part in diminution of tbe damages, or that be lm'ew of tbe danger and, after knowing of same, continued at the work when an ordinarily prudent person would not have done so under tbe circumstances, or if be had, previous to bis death, settled with tbe company for tbe injuries received thereby. That this is not the effect on the liability of tbe master for tbe negligence of tbe servant tbe history and adjudication on section 1 of tbe article demonstrates. That part of tbe article stands now as it has always stood. Certainly tbe amendment of section 2 did not affect section 1, which is unaltered. It is asserted that tbe clause in tbe act in question "that all laws in conflict herewith be repealed” repeals article 4695. Tbe clause in section 1 with reference to tbe negligence of servants and agents of proprietors therein mentioned has never been held to repeal tbe article that follows it, or to be repugnant to it, or that both could not stand and effect be given to each. As stated, these sections have repeatedly been before the courts. We cannot now.perceive any conflict-or repugnance in section 2 and article 4695, or any reason why both may not stand. It is tbe duty of the courts to construe tbe two so that effect will be given to each. There is no express repeal — the act does not purport to do so.

An implied repeal is not favored by tbe rules of construction, and tbe conflict must be one which is clear, or so repugnant that both cannot remain tbe law.

“The specification of certain sections of an act as repealed is deemed equivalent to a declaration that the remaining sections shall remain in force; that a clear repugnancy will be necessary to further extend the repeal.” Sutherland on Statutory Construction, § 147, p. 199; Crosby v. Patch, 18 Cal. 438; State v. Morrow, 26 Mo. 131.

So we think tbe clear implication from tbe amendment of section 2 is that tbe remaining article- or portions of tbe law shall remain-in force.

“So far as the section is changed, it may receive a new operation, but so far as it is not changed, it would be dangerous to hold that the-mere nominal re-enactment should have the effect of disturbing the whole body of statutes in-pari materia, which has been passed since the first enactment. There must be something in-the nature of the new legislation to show such an intent with reasonable clearness before an implied repeal can be recognized.” Sutherland on Statutory Construction, § 133.

The fact that tbe light of action was broadened by tbe amendment will not incorporate a meaning to article 4695 different from that theretofore established and given by tbe courts. We do not think we are to look to section 2 of article 4694 for tbe meaning of article 4695, but should give it tbe same meaning that it bad when used with reference to servants and agents under section 1 before adding servants and agents to section 2. Foster v. Cbamplin, 29 Tex. 22. We think the case of Stoneage v. Southern, etc., 123 Tenn. 428, 131 S. W. 988, 31 L. R. A. (N. S.) 278, is authority for tbe rule that a later statute or amendment forming a part of a system or right is to be considered with reference to tbe pre-existing body of that law, to which it is added and of which it forms a part; and where there is no express purpose to amend or repeal the other articles not named one should not be inferred unless they conflict with or are repugnant to tbe later statute. Commonwealth v. Baxter, 235 Pa. 179, 84 Atl. 140, 42 L. R. A. (N. S.) 484, and authorities there cited.

Our Supreme Court, in tbe recent case of Cole v. State, 170 S. W. 1036, in which tbe opinion was handed down November 18, 1914, has so clearly expressed the rule as to render the citation of other authorities unnecessary.

“Knowledge of the existing law relating to the same subject is likewise attributed to the Legislature in the enactment of a subsequent statute; and, when the later act is silent as to the older law, the presumption is that its continued operation was intended, unless they present a contradiction so positive that the purpose to repeal is manifest, * * ■ * but the antagonism must be absolute — so pronounced that both cannot stand. Though they may seeih to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them.”

We do not think article 4695 repealed by section 2 as amended, and heretofore set out. The two sections are not in conflict or repugnant, and they can, we think, be reconciled one with the other.

We think the charge of the court was error, which will require a reversal of the case. If Inman negligently threw the starting lever and such negligence caused Sewell’s death, the appellant, Canode, would not be liable.. Inman was the fellow servant of Sewell, and his negligence alone would not authorize a recovery, but would defeat a recovery. If Inman was negligent, and the appellant was also negligent in the particulars alleged, and his negligence concurred with that of Inman, which caused Sewell’s death, then appellant would be liable.

It is unnecessary to discuss the remaining assignments, as they will not likely arise upon another trial. The case will be reversed and remanded.


author: BUCK, J.

text:
    J. M. RADFORD GROCERY CO. v. PACE et al.
    (No. 8041.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 21, 1914.)
    Chattel Mortgages (§ 144)— Priorities.
    The agent of a seller of store fixtures incumbered by an unrecorded mortgage for the price permitted the buyer to remove the same-to a building in which he intended to engage in business. On the same day the buyer, to induce a third person to loan Mm money secured by a mortgage on the fixtures, represented that they were his own free from liens. The mortgage to the third person was first recorded. held that, under Rev. St. 1911, arts. 5654, 5655, providing for the recording of chattel mortgages to- be good against subsequent mortgagees, the mortgage to the third person was superior to the mortgage of the seller.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 241; Dec. Dig. § 144.] ’
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by the J. M. Radford Grocery Company against J. H. Pace and others. Prom a judgment for defendants Pace, plaintiff appeals.
    Affirmed.
    Kirby & Davidson, of Abilene, for- appellant. Glasgow & Kenan, of Seymour, and Cunningham & Oliver, of Abilene, for ap-pellees.

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

   BUCK, J.

This case was tried by the court without the aid of a jury, and the court filed his findings of fact and conclusions of law, which findings of fact have not been attacked by the appellant, either as to their sufficiency or correctness, and the same will be adopted by this court, and, being rather full, will avoid the necessity of a further statement of the case and the issues of fact involved. Such findings of fact are as follows:

I. “The plaintiff’s suit was brought on two promissory notes for $250 each, executed by the defendants L. C. Davis and Nat G. Mitchell payable to the order of the plaintiff, J. M. Radford Grocery Company, at Abilene, Tex., on December 20, 1910, and March 1, 1911, respectively, both dated October 17, 1910, bearing 10 per cent, interest from date, and containing the usual 10 per cent, attorney’s fee clause, the note first due bearing credits, as follows, viz.: 12— 20 — 10, ck. $50.00; 12 — 28—10, ck. $50.00; 2— 27 — 11, ck. $25.00; 4 — 13—11, ck. $20.00.”
II. “That said notes were secured by a chattel mortgage executed by the defendant L. C. Davis which conveyed to the plaintiff the following described property, to wit: One self-measuring oil tank; one Hall & Co. safe, weighing about 2,500 pounds; one upright desk; one stool; one invoice file system; one pair platform scale; one thread cabinet; one soap showcase; one chewing gum case; one 8-foot showcase; one 6-foot cigar showcase; two paper cutters; one clock; one paper mill; one pair Dayton computing scales; one fruit showcase; one Mc-Creary refrigerator; one large coffee mill; one 18-foot counter with bins; one 20-foot counter; one 10-foot counter; one pair of trucks; one broom rack; one thread cabinet and desk; one cash register; one tobacco knife; one paper bag rack; one cracker rack; and one cheese cutter — located in the O. D. Goostree Building in the town of Seymour, Tex. The said Davis warrants title to said property to the plaintiff by the usual warranty clause, and said mortgage then contains the following stipulation, viz.: ‘This conveyance is intended as a mortgage, I being indebted to the said J. M. Radford Grocery Company in the sum of nine hundred and no/100 dollars, as evidenced by my four certain notes bearing date 17th day of October, 1910, and due 10-25-10, 11 — 5—10, 12 — 20—10, 3— 1 — 11, and payable to J. M. Radford Grocery Company at Abilene, Tex.’ Then follows the usual defeasance clause of a chattel mortgage with power of seizure and sale to satisfy said indebtedness. This mortgage is dated October 17, 1910, and was filed for registration in the office of the county clerk of Baylor county, Tex., at 9:30 o’clock a. m., on October 18, 1910. This mortgage the plaintiff sought to foreclose.”
III. “That the defendants J. H. Pace and J. T. Pace by their plea'in intervention and cross-action sued the defendant Davis on a note for $200 executed by defendant L. C. Davis, payable to the order of J. H. Pace and J. T. Pace at Seymour, Tex., 12 months after date, and being dated October 17, 1910, bearing interest at the rate of 10 per cent, per annum, and containing the usual 10 per cent, attorney’s fee clause.”
IV. “That said note in favor of J. H. and J. T. Pace was secured by a chattel mortgage executed by defendant L. O. Davis, conveying to them the following property, viz.: ‘The following fixtures heretofore used by W. R. Lee & Co. in its mercantile business in Seymour, Tex., and now owned and used by me, which will be removed to the O. D. Goostree storehouse, to wit: One refrigerator ; one pair of computing scales; one iron safe.’ This mortgage also contained the following stipulations: ‘I hereby warrant that said property is owned by me in good faith, under perfect title, free of all liens and incumbrances whatsoever, and I agree to hold the same where it is now located free of all liens other than the one hereby granted until the indebtedness hereinafter mentioned is paid in full. This conveyance, however, is intended as a mortgage, I being indebted to the said J. H. and J. T. Pace in the sum of two hundred dollars, as evidenced by one certain promissory note bearing date 17th day of October, 1910’ — and further describing the note sued on. This mortgage then contains the usual clause of defeasance with power to seize and sell the property in satisfaction of said indebtedness. It is dated October 17, 1910, and was duly filed for registration in the office of the county clerk of Baylor county, Tex., at 5 o’clock p. m. on October 17, 1910.”
Y. “It was agreed by the parties to the suit that the safe, refrigerator, and computing scales mentioned (in) the chattel mortgage of the defendants J. H. and J. T. Pace are the same articles as the safe, refrigerator, and computing scales mentioned in the mortgage of the plaintiff.”
VI; “That on the 29th day of September, 1911, the plaintiff sued out a writ of sequestration, and had the property covered by its mortgage seized by the sheriff under said writ about October 1, 1911, including the three articles covering the mortgage of the Paces, and said articles have since been sold by the sheriff and b&ught in by the plaintiff, and has admitted in open court that, if the mortgage of the Paces is found to be a prior or superior mortgage to the mortgage of the plaintiff, the plaintiff is liable to said Paces for the value of three articles of fixtures covered by the Paces’ mortgage, not to exceed the amount of the note held by the 1?8.C6S **
YII. “That on the 17th day of October, 1910, the plaintiff, acting solely through O. W. Gill as its agent, negotiated a sale of a portion of a certain stock of merchandise and store fixtures to the defendant L. O. Davis, said property being located in a storehouse in the McLain Block in the town of Seymour, and had been purchased by the plaintiff at a bankruptcy sale of W. R. Lee & Co.; that the negotiation of the sale of said property by plaintiff to Davis began early in the morning of October 17th, and was consummated in the afternoon; that in the forenoon an agreement was reached between plaintiff’s agfent Gill and Davis as to what goods and fixtures should be included in the sale, the price to be paid, and the amount to be paid in cash, time to be allowed on the deferred payments, and the amount of the respective notes and the character of security to be given on said notes; that it was definitely agreed upon between said Gill and Davis what articles of merchandise and fixtures were to be delivered out of the general stock to Davis, the fixtures being the same as those described in the second paragraph of these findings, and included the three .articles covered by the mortgage of the Paces; that said Davis first offered to secure the notes given for the deferred payments by a chattel mortgage on the goods and fixtures sold to him, but Gill refused to accept this security, and demanded personal security on the notes such as would make the notes good; that Davis then offered Nat G. Mitchell as surety on the notes, and the said Gill investigated the financial responsibility of Nat G. Mitchell and ascertained that he was willing to sign the notes as surety for Davis, and accepted him as surety on said notes, and would not have made the trade if •he had not thought that Mitchell made the notes good, but told Davis that he would take a chattel mortgage on the fixtures to protect Mitchell.
At this juncture nothing remained to be' done to complete the transaction except the payment of the amount agreed upon, the execution and delivery of the notes and mortgage, and the putting of Davis in possession of the property. Plaintiff told Davis that he reserved title and possession to the property until the money was paid, and the notes ■ and mortgage were executed and delivered, and Davis assented to this, but, as a matter of fact, went into possession of the goods before note and mortgage were delivered.”
VIII. “That in the afternoon Gill permitted the said Davis to enter the building where said goods were located in the McLain Block and to take possession of same and to begin to remove the same from said building to the O. D. Goos-tree Building in Seymour, where Davis was to engage in business; that this possession of the •said Davis was to continue from that time on; and that a portion of the goods and fixtures were removed by Davis during the evening of the 17th of October, and the remainder during the 18th of October, 1910.”
IX. “That Davis had made arrangements with J. H. Pace and J. T. Pace to borrow from them the $200 to be paid to the plaintiff on said goods and fixtures, the negotiations for which were conducted solely by J. H. Pace for said Paces, J. T. Pace not being in Seymour at the time; that it was agreed between Pace and Davis that Davis was to give to Pace a chattel mortgage on the three items of fixtures described in the chattel mortgage declared on by the Paces, and described in paragraph 4 of these findings, to' secure the Paces in the payment of said $200.”
X. “That Pace and Davis went to the office of a. notary public to have said mortgage drawn up, and that Davis, in order to induce said Pace to loan Davis said money, made in writing in the face of said mortgage the representations set out in paragraph 4 hereof, and, in addition thereto, he represented verbally to Pace that he (Davis) was in possession of the goods, and that the trade had been closed between him and plaintiff, and that he only lacked $200 he was borrowing from the Paces to enable him to pay the plaintiff for the goods, and that with such sum he could get the goods clear of incumbrance and would owe the plaintiff nothing on them; that Pace had known the said Davis for a year or more as a clerk in one of the leading mercantile establishments in Seymour, and relied on his representations, written and verbal, and was induced thereby to loan Davis said $200, and to accept the mortgage declared on by the Paces, and described in paragraph 4 hereof, as security for its payment.”
XI. “That at the time the transaction mentioned in the preceding paragraph took place between Pace and Davis Davis was in possession of the goods and fixtures purchased by him from plaintiff, and had removed at least one load from the building in the McLain Block to the O. D. Goostree Building, and Pace knew of this fact.”
XII. “That said Davis gave to the said Pace his note and mortgage described in paragraphs 3 and 4 hereof, and the said Pace gave to the said Davis a check for $200 on the First National Bank of Seymour, payable to the order of L. O. Davis; that as soon as said transaction was completed the said Pace went to the county clerk’s office in Seymour to ascertain if there were any liens on the fixtures, and, finding none, filed his mortgage for registration at 5 p. m. October 17, 1910.”
XIII. “That as soon as said check was delivered to Davis he went to Gill, in the building where the goods were located, and delivered to him the check of the said Pace, indorsing said check in blank, and that the plaintiff afterwards collected the amount of said check from said bank through its indorsee.”
XIV. “That as soon as said check was delivered to Gill by Davis they went to the office of Nat G. Mitchell, which was in the county courthouse of Baylor county, Tex., and there had the notes and mortgage in favor of plaintiff drawn up and duly executed by Davis and Mitchell as agreed upon, and they were delivered to the said Gill about 6 o’clock or 6:30 o’clock p. m. of their date — to wit, Oct. 17, 1910— and, when so delivered, the county clerk’s office had been ■closed for the day, and Gill delivered the note and mortgage to a Mr. Spencer, an employé. of plaintiff at Seymour, and asked him to look after the matter and file the mortgage for registration.”
XV. “That at that season of the year it was the rule and custom of the county clerk of Baylor county, Tex., to open his 'office at from 7 :30 to 8 o’clock in the morning each day, and it was usually open by 8 o’clock or before that time, and no explanation has been made as to why said chattel mortgage of plaintiff was not filed before 9:30 o’clock on October 18, 1910.”
XVI. “That the said Gill knew that Davis was borrowing the $200 from the Paces with which to make, or pay on, the cash payment to plaintiff, but had no actual knowledge of the execution by Davis to the Paces of the chattel mortgage sued on by them; also that Gill made no inquiries of Pace as to the nature of the transactions between him and Davis, and did not know the details of the same from actual knowledge, and that he and Pace never spoke to each other or communicated with each other in any way until long after this transaction was consummated, but remained absolute strangers to each other.”
XVII. “That Pace made no inquiry to Gill as to the nature of the transactions between him and Davis, and had no knowledge of same, except what Davis told him. Pace’s office was only 125 feet diagonally across the street from the building where the goods and fixtures were located at the time Pace loaned the money to Davis.”
XIX. “That no part of the debt sued on by plaintiff has been paid, except the sum of $10 derived from the sale of the fixtures _ covered by the plaintiff’s mortgage, and not included in the mortgage of the Paces.”
XX. “That no part of the debt sued on by the Paces has been paid.”
XXI. “That the iron safe, refrigerator, and computing scales seized and sold by the plaintiff covered by the mortgage of the Paces were worth at the time of their seizure $200.”
XXII. “That the defendant L. G. Davis is insolvent.”

In paragraph 9 of such findings of fact the court finds that appellant’s agent, Gill, permitted L. O. Davis to enter the building where said goods were located and to begin to remove the same from said building to another building where Davis was to engage in business, and that this possession of said Davis was to continue from that time on, and that a portion of the goods and fixtures were removed during the evening of October 17, and the remainder during October 18, 1910. (Tr. pp. 30, 31.) And in paragraph 10 of such findings of fact, the court finds:

“That Davis, in order to induce said Pace to loan Davis said money, made in writing in the face of said mortgage the representations set out in paragraph 4 hereof,” to wit, that said property upon which the chattel mortgage to the Paces was given was owned by said Davis in good faith under perfect title, free from all liens and incumbrances whatsoever, “and, in addition thereto, he represented verbally to Pace that he (Davis) was in possession of the goods, that the trade had been closed between him and plaintiff, and he only lacked $200 he was borrowing from the Paces to enable him to pay the plaintiff for the goods, and that with such sum he could get the goods clear of incumbrance and would owe the plaintiff nothing on them; that Pace had known the said Davis for a year or more as a clerk in one of the leading mercantile establishments in Seymour, and relied on his representations, written and verbal, and was induced thereby to loan Davis said $200, and to accept the mortgage declared on by the Paces.” (Tr. 31-32.)

The court further finds that at the time of the conversation between J. H. Pace and Davis and of the execution and delivery of the chattel mortgage from Davis to Pace, and the delivery of the check from Pace to Davis, that Davis was in possession of the goods and fixtures purchased by him from plaintiff, and had removed at least one load from the building where they were located, and that Pace knew of this fact.

Erom the above statement of the ease, as contained in the court’s findings of fact, we think that the judgment of'the trial court, holding that the lien of the Paces upon the three articles described in the chattel mortgage given by Davis to them was a prior and superior lien to that held by the appellant, and since it was agreed by the parties to this suit that, in the event the court should so find, judgment should be rendered against the plaintiff and in favor of the defendants/. H. and J. T. Pace for $200, was correct. See Revised Civil Statutes 1911, arts. 5654, 5655; Crews v. Harlan, 99 Tex. 97, 87 S. W. 656, 13 Ann. Cas. 863; Eason v. De Long, 38 Tex. Civ. App. 531, 86 S. W. 349; Gay v. Harde-man, 31 Tex. 245; Furn Co. v. Hotel Co., 81 Tex. 141, 16 S. W. 807.

The judgment of the trial court is approved, and the case is affirmed.


author: TALBOT, J.

text:
    MARTIN v. JEFFRIES.
    (No. 7220.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 12, 1914.)
    1. Brokers (§ 53) — Commissions — When Earned.
    A broker, employed to procure a purchaser of real estate for a specified price within a specified time, who procures a customer to whom the owner, within the specified time, sells for a less price, is entitled to compensation, provided he was the procuring cause of the sale.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.]
    2. Brokers (§ 44) — Commissions — When Earned.
    An owner who employs a broker to procure a purchaser of real estate, but not for any specified time, may terminate the agency at any time before consummation, without incurring liability, provided he acts in good faith and not to escape payment of commissions earned.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 45; Dee. Dig. § 44.]
    3. Brokers (§ 82) — Commissions—Actions— Petition — Sueeiciency.
    A petition, in a broker’s action for compensation, which alleges a contract of employment to procure a purchaser of real estate for a specified price within a specified time, and which alleges that he procured a customer who refused to pay the price, but that subsequently the owner sold to him for a less price, presents the issue that the broker was the procuring cause of the sale, and supports a judgment for the reasonable value of the services.
    [Ed. Note. — For other cases, see Brokers, •Cent. Dig. §§ 101-103; Dec. Dig. § 82.]
    4. Brokers (§ 82) — Commissions—Actions— Petition — Sufficiency.
    A petition, in a broker’s action for compensation, which alleges his employment to procure a purchaser within a specified time for a specified price, and which avers that he procured a customer refusing to pay the price, and which states that within the specified time the owner sold the land to the customer to deprive the broker of his commission, and that by reason of his procuring the customer the broker could recover reasonable compensation for his services, states a cause of action as against a general demurrer, and entitles the broker, on proper proof, to recover the reasonable value of his services, though his right to compensation under the contract is contingent on a sale for the specified price. ,
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §| 101-103; Dec. Dig. § 82.]
    5. Beokebs (§ 84*) — Compensation—Reasonable Value of Services — Evidence.
    A broker, to recover the reasonable value of his services in procuring a customer to whom the owner sold the land at a price less than that fixed in the contract employing the broker, must show the reasonable value of his services.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 104, 105; Dec. Dig. § 84.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by J. E. Jeffries against C. D. Martin. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    See, also, 153 S. W. 658.
    Shurtleff & Cummings, of Hillsboro, and Chas. L. Black, of Austin, for appellant. J. E. Clarke, of Hillsboro, for appellee.

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

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

   TALBOT, J.

J. E. Jeffries brought this suit against the appellant, C. D. Martin, to recover, upon an alleged verbal contract, the sum of $500 for certain services charged to have been rendered for appellant as a real estate broker, or to recover what said services were reasonably worth. It is alleged: That plaintiff was a real estate agent and broker, engaged in the business of buying and selling land on commission. That on or about the 13th day of July, 1911, defendant placed with plaintiff to sell as his (defendant’s) agent a certain tract of land, consisting of about 125 acres, the same being a farm and improvements thereon, in Hill and Navarro counties, Tex., a part of the Navarro county school land, known as the John Shaffer farm. That plaintiff and defendant entered into a verbal contract, by the terms of which it was agreed by and between'plaintiff and defendant that plaintiff should have until November 14,1911, to procure a purchaser for said land, at and for the price of $100 per acre, making an aggregate of $12,500, and if plaintiff should procure a purchaser for said land, and sell, or cause the same to be sold, at and for the said sum of $100 per acre during the life of said contract, that he. plaintiff, should receive, as commission for making said sale and causing a sale to be made, 4 per cent, of the total for which said land should be' sold by plaintiff under the terms so agreed upon. That shortly after said land and premises were placed with him for sale, plaintiff entered into negotiations with one Earnest Dixon for the sale of said land. That he took said Dixon to said land and showed it to him, endeavored to sell the same to said Dixon for $100 per acre, and that the said Dixon offered plaintiff $97.50 per acre for said land, but that plaintiff refused to sell the same for said sum, but demanded the sum of $100 per acre for said land. That thereafter, defendant knowing that plaintiff was negotiating with the said Dixon for the sale of said land, and after plaintiff had carried the said Dixon to see said premises, the said defendant sold the land and premises to the said Dixon, for the sum of $96 per acre. That defendant made a contract in writing for the sale of said land on or about - day of July, 1911, with the full knowledge that plaintiff had procured the said Dixon to buy said land, and on, to wit, the - day of January, 1913, executed to the said Dixon his deed of conveyance, conveying the said land in pursuance of said contract of sale. That notwithstanding his contract with defendant to sell said land, and to procure a purchaser therefor for the sum. of $100 per acre, the said defendant, for the purpose of defeating this plaintiff out of his commissions for the sale of said land, deprived this plaintiff of the opportunity under his said contract with defendant to sell said land, by selling the same himself to the said Dixon, whom plaintiff had procured as a purchaser, whereby the defendant became liable and bound to pay to plaintiff his said commission under said contract, which he alleges is $500, the said 4 per cent, of $12,500, the price at which said land was listed with plaintiff for sale as aforesaid. Plaintiff pleads in the alternative that by reason of his procuring the said purchaser, to whom the defendant sold the said premises, plaintiff is entitled to reasonable compensation for his said services, which he alleges is 4 per cent, of the price for which the defendant sold said land, and that defendant sold said land for $12,000. That the defendant became liable and promised to pay him the said sum of $480. That, though long since due and often demanded, defendant has refused, and still refuses, to pay plaintiff the said sum of $500, or the said sum of $480, or any part thereof. Plaintiff prayed that upon final hearing he have judgment for $500, or in the alternative that he have judgment for $480, as reasonable compensation for his services in procuring a sale of defendant’s lands. Tlie defendant answered by general demurrer, a general denial, and specially: (1) That at the time he sold the property in question to Dixon he was acting in good faith, believing that J. P. Neal had caused the said Dixon to enter into the said trade; (2) that the said Neal was in fact the procuring cause of the trade being consummated, and that the services rendered by plaintiff in closing the trade were of no value to the defendant. The case was submitted to a jury on special issues, and upon their findings judgment was rendered in favor of the plaintiff for the sum of $250.

The first assignment of error is that:

“Appellee’s petition fails'to state a cause of action, and is insufficient in law to support the judgment rendered, in favor of the appellee, for the reason that it appeal's from said petition, in effect, that appellant agreed to pay appellee a 4 per cent, commission only in the event ap-pellee should procure a purchaser ready, willing, and able to pay $100 per acre for the land, and there is no allegation that-any such a purchaser was ever procured by the appellee, and no allegation that the act of the appellant in selling the land to Dixon for $96 per acre prevented the appellee from selling the same at $100.”

Appellant urges two propositions under this assignment. The first is that under the allegations of appellee’s petition he was entitled to no commission unless he procured a purchaser ready, willing, and able to pay $100 per acre for the 125 acres of land; and the second is substantially the same as the assignment itself, and asserts that the petition presents no cause of action for any character of relief. The record fails to show that a demurrer, challenging the sufficiency of ap-pellee’s pleadings on the grounds set out in the foregoing assignment and propositions of appellant, was present and acted upon in the trial court, nor does it appear that the alleged insufficiency of the plaintiff’s pleadings to support the judgment was made a ground for a new trial in the lower court, but is presented for the first time by the above assignment of error found in appellant’s brief. Appellant asserts, however, that the sufficiency of ap-pellee’s pleading to support the judgment rendered is a fundamental question, that may be reviewed on appeal, though not assigned in the court below, and we believe this is correct. In support of these propositions appellant’s counsel argues that the legal effect of the contract alleged by appellee is that appellant did not agree to pay a 4 per cent, commission for a purchaser that appellee might find who might be willing to purchase the land at less than $100 per acre, but agreed to pay that commission in the event a purchaser should be found who was willing to pay $100 per acre. In other words, his interpretation of the contract pleaded is that it is a contingent or conditional one, whereby the parties agreed that, if no purchaser was found by appellee who was ready, willing, and able to pay $100 per acre for the land, appellant would owe appellee no commission; that the law is well settled that in a suit on such a contract the plaintiff must allege performance in order to recover on the contract, or if he bases his right to recover on quantum meruit he must prove that if he had not been prevented by the defendant he would have performed the contract; therefore the appellee’s petition is fatally defective, for the reason that it does not allege the hind of purchaser required by the contract was ever found, or that appellee was prevented by appellant from performing the contract. That this is a correct interpretation of the contract alleged may be doubted, or, if correct, the statement of the law as applicable thereto under the decisions of this state may be questioned.

The position of appellant, that when the contract for commission is a conditional or contingent one the broker cannot recover upon the express contract unless he brings himself within such condition, is supported by the recent case of Hughes & Thurman v. Dodd, 164 Mo. App. 454, 146 S. W. 446, and perhaps other cases cited by him; but the plaintiff’s right in that case to recover on quantum meruit does not seem to have been raised by the'pleadings and discussed by the court. However, it is difficult to distinguish the instant case in principle from McDonald v. Oabiness, 98 S. W. 943, Id., 100 Tex. 615, 102 S. W. 721, Pierce v. Nichols, 50 Tex. Oiv. App. 443, 110 S. W. 206, and Graves v. Bains, 78 Tex. 94, 14 S. W. 256, cases decided by our own courts. In Pierce v. Nichols, supra, it was held that the plaintiff’s petition alleged the creation of an agency for the sale of land, that the defendant authorized plaintiff to sell the land for a certain amount, namely, $9,-600, agreeing to pay him a 5 per cent, commission therefor; that defendant made a special agreement to pay him such commission if plaintiff should sell or negotiate a sale to-a man named Barlow for said amount; that a few days thereafter defendant himself sold and conveyed the land to Barlow for a less consideration; and that said purchaser was procured by plaintiff, acting under the contract. And the court held that the petition stated a cause of action, without any allegation that the defendant made the sale with evil intent, or for the purpose of defrauding the plaintiff, and without any allegation that the plaintiff produced’ a customer ready, able, and willing to pay the amount of $9,600. In discussing the question the Court of Civil Appeals, speaking through Associate Justice Rice, said:

“It was not necessary to allege that the purchaser procured by the plaintiff was ready, able, and willing to pay for the land, because, in order to create liability for the commissions under the contract as pleaded, it was only necessary for the plaintiff to show that he either sold the land, or that he negotiated, induced, or brought about a sale of the same to the proposed purchaser. And especially is this true where, as in this case, the appellant by his own wrongful act prevented the carrying out of the contract on the part of appellee by the sale himself of the land to the proposed purchaser. We think that he cannot be heard to complain of the failure to allege that the proposed purchaser was able, ready, and willing to pay for the land when he accepted the purchaser with whom the agent was negotiating and made the sale himself.”

This is hut the declaration of the just and salutary rule that the principal cannot, when the broker’s efforts have resulted in negotiations for a sale, step in and by taking the matter into his .own hands and completing the sale, either at or below the price stipulated, escape liability to the broker. The reason of the rule is well expressed in the following language:

“If vendors were permitted to employ brokers to look up purchasers, and call the attention of buyers to property which they desired to sell, limiting them as to the terms of sale, and then, while such purchasers were negotiating, take the matter into their own hands, avail themselves of the labor, services, and expenses of the broker in bringing the property into the market, and accomplish a sale by an abatement in. the price, and yet refuse to pay the broker anything, the business of a broker would not be worth pursuing, gross injustice would be done, every unfair and illiberal vendor would limit his property at a price slightly above the market, and make use of the broker to bring it into notice, and then make his own terms with the buyers, who were in reality procured by the efforts of the agent.”

In McDonald v. Oabiness, 100 Tex. 615,102 S. W. 721, the proposition was made and urged in the Supreme Court that:

“The Court of Civil.Appeals erred in affirming the judgment of the lower court, which was rendered upon an implied contract, or quantum meruit, when in fact the trial court found that there was an express contract pleaded and proven, which contract provided that, if a sale was made upon a stated price and terms, then the .agent was to receive as his commission all the said timber sold for above a certain price, whereas the agent did not sell the timber according to his contract with the one defendant, and there was no evidence to show that the purchaser was ready, able, and willing to purchase upon the terms of the broker’s contract of employment.”

It was alleged and proved in that case that the plaintiff made a contract with McDonald in which the latter agreed that, if the plaintiff would procure a purchaser for the timber on certain lands at the price of not less than $3.25 per acre, upon the terms of one-fourth in cash and the balance in one, two, three, and four years, he would give him all that the timber should sell for over that price. It was also shown that the plaintiff, Oabiness, procured a purchaser at the price of $50,000, which was nearly $7,000 more than the amount would have come to at $3.25 per acre, but McDonald stepped in and completed the sale himself and refused to compensate Oabiness for his services. The Supreme Court, in refusing to sustain the above proposition, urged by McDonald, said:

“Now, if McDonald had sold the timber upon the terms agreed upon with plaintiff, it is clear that the latter would have been entitled to the excess over the lowest price stipulated in the agreement. McDonald having changed the terms, and the plaintiff having been, as was found by the court, the procuring cause of the sale, he was clearly entitled to something — if not to the amount the timber sold for over the price allowed by McDonald in his contract, then to the reasonable value of his services.”

The facts in Oabiness’ Case are fully stated in the opinion of the Court of Civil Appeals published in 98 S. W. 913, and that court held that, the plaintiff having asked for reasonable compensation for his services, he was entitled to be compensated on that basis. The appellant, McDonald, insisted in the Court of Civil Appeals that:

“Where there is a special contract pleaded, and the compensation for which the contract is made is clearly expressed, and that contract fails or is not performed by the party entitled to the compensation, there can be no implied contract by virtue of which the plaintiff can recover from the other party on a quantum meruit.”

This contention was not sustained, and the court in expressing its nonconcurrence said:

“This proposition would go so far as to authorize the owner to utilize his agent’s services without compensation, even though the agent had expended much time, labor, and money toward the fulfillment of his contract, and had even brought it near the point of success. Such a rule would be fraught with great hardship and injustice to brokers.”

It has also been held in this state, in effect, that the owner cannot escape liability where he accepts a purchaser procured by the agent, even though at a sum and upon terms which the owner would not have been bound to accept under the agent’s contract of employment, and that although the owner might have the right, notwithstanding the agency of the broker, to sell the property and terminate the agent’s right to compensation, such right could not be exercised for the purpose of defeating the agent, and that, for a sale by the owner to terminate the agent’s right to compensation, it must be made to some one other than a purchaser procured by the agent. McDonald v. Oabiness, supra. A little differently stated, the principle is that, where the owner has not contracted to employ the broker for any specified period of time, he has the right to terminate the agency at any time before it is consummated, without incurring any liability, provided he acts in good faith, and not for the purpose of escaping the payment, of commissions virtually earned. Branch v.' Moore, 84 Ark. 462, 105 S. W. 1178, 120 Am. St. Rep. 78; Gott-schalk v. Jennings, 1 La. Ann. 5, 45 Am. Dee. 70.

The broker in the case at bar had until November 14,- 1911, to consummate a sale of the owner’s land. So that the dominant idea pervading all of our decisions on the subject seems to be that if the owner of land places it in the hands of a broker for sale, and stipulates that he will pay the broker a commission for his services if he sells for a certain sum, and the- owner thereafter sells the land to a customer of the broker for the price stipulated, or for a less price, the broker,- if he was the promring cause of the sale, will be entitled to recover at least what his services are reasonably worth. We doubt, as hereinbefore indicated, the correctness of appellant’s contention to tlie effect that “appellee alleges a contract whereby the payment of any commission to him was conditional upon the procuring of a purchaser ready, willing, and able to pay $100 per acre for the land,” and that as he failed to allege the procurement of such a purchaser he was not entitled to recover anything. The allegations.of his petition are, it seems to us, sufficient to present the issue that he was the procuring cause of the sale of appellant’s land to Dixon, and sufficient, under our decisions, to support a judgment for what his services were reasonably worth.

But appellee alleges, in substance, not only that he contracted with appellant to sell his land at and for the stipulated price of $100 per’kcre, and that if he should procure a purchaser and sell or cause the same to be sold for that price he should receive a commission of 4 per cent, of the total amount for which said land should be sold, but that by the terms of the contract entered into between him and appellant he was to have until November 14, 1911, to sell the land, and that, in violation of the contract, appellant, in July, 1911, knowing that appellee was negotiating with the said Dixon for the sale of the land, and, after appellee had carried Dixon to see the land, entered into a written contract with the said Dixon for the sale of said land, with full knowledge that appellee had procured the said Dixon to buy the land at and for the sum of $96 per acre, and later conveyed the same to him at that price by deed duly executed; that appellant made this contract and conveyance for the purpose of depriving appellee of his commissions; and that the effect of the same was to deprive him of an opportunity to sell the land. Appellee further alleged that by reason of his procuring the said purchaser, to whom appellant sold the land, he was entitled to reasonable compensation for his services, and prayed in alternative for the same. It is thus seen that appellee, according to the contract alleged by him, had until November 14, 1911, to make a sale of the land in question at the price stipulated, and that appellant, before the expiration of the time granted, interfered and sold the land himself to appellee’s customer. These allegations charge, in effect, it occurs to us, that the act of appellant in selling the land to Dixon prevented him from selling the same under the terms of the contract, and satisfy the rule, contended for by appellant, that in a suit of this character, when the plaintiff seeks to recover on quantum meruit, he must show that if he had not been prevented by the defendant he would have performed the contract. The petition at least is not, we think, subject to a general demurrer, and hence, in the absence of a special demurrer, presents a case entitling appellee to recover, upon proper proof, the reasonable value of his services, even though it should be admitted that his right to compensation under the terms of the contract was contingent upon a sale of the land by Mm for $100 per acre, and that under our decisions he would not be entitled to recover under such a contract anything unless he alleged and proved that he was prevented from performing the contract by the acts of appellant.

But the judgment of' the court below must be reversed and the cause remanded for the reason stated in the second proposition urged by appellant under his fifth assignment, to the effect that there was no-evidence to support a recovery by appellee upon a quantum meruit, in that there was no evidence introduced tending to show what was the reasonable value of appellee’s alleged services. The verdict and judgment was evidently rendered upon the theory that the appellee was entitled to recover upon a quantum meruit, but we find upon a reading of the statement of facts that there is absolutely no evidence whatever showing or tending to show the value of the services charged to have been rendered by appellee. Hence the judgment appealed from is without any evidence to sustain it, and it must be set aside.

It is not believed that the other assignments point out reversible error, and they need not be discussed. The jury’s answer to the second question submitted to them, as disclosed by the sixth assignment, is entirely too indefinite, standing alone, to show who they concluded was the procuring cause of the sale of the land to Dixon; but, when said question and answer are considered in connection with the third question submitted and the answer thereto, there can be no doubt as to their finding in this respect. The question, however, is not likely to occur on another trial.

Eor the reason indicated, the judgment is reversed, and the cause remanded.