text:
    BARTON v. COX et al.
    (No. 8144.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 3, 1915.
    On Motion for Rehearing, May 15, 1915.)
    1. Vendor and Purchaser <&wkey;176 — Contracts — Misrepresentations.
    Where an agent of .the vendor represented to the purchaser that the tract contained 100 acres, while it contained only 84.04 acres, and the purchaser relied on the representation, the purchaser was entitled to an abatement in the price, whether the representations were made in good faith or not.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;176.]
    2. Vendor and Purchaser <&wkey; 176 — Sale in Gross — Relief for Shortage in Area.
    ■ Where a sale of real estate is in gross, the purchaser is not, as a general rule, entitled; in the absence of fraud or gross mistake, to an abatement of the price, though, where the deficiency is so great as to shock the conscience of the court, relief can be granted on the ground of fraud, though the quantity is qualified by the words “more or less.”
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dee. Dig. <§^176.]
    3. Vendor and Purchaser <&wkey;176 — Saue in Gross — Relief for Shortage in Area.
    A vendor of a tract of land containing 84.04 acres represented that it contained 100 acres, and the purchaser relied on the representation and accepted a deed describing the land as containing 100 acres “more or less.” Both parties believed that the tract contained 100 acres. The purchase was in gross. Held, that the purchaser was entitled in equity to an abatement of the price for the deficiency, in the absence of anything to show that the parties intended to take the risk of a deficiency or of an excess.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. <&wkey;176.]
    4. Vendor and Purchaser <&wkey;176 — Contracts oe Purchase — Mistake as to Quantity — Effect.
    A purchaser going on a tract of land repre-sen ted by the vendor as containing 100 acres, while in fact containing only 84.04 acres, and vey, and accepting a deed describing the land as containing 100 acres more or less, will not failing to ascertain the exact acreage by a sur-be denied relief for the deficiency on the ground of failure to use proper diligence, where the purchaser and the vendor were friends, and there was no reason why the purchaser could not rely on the vendor’s judgment.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;176.]
    On Motion for Rehearing.
    5. Principal and Agent <&wkey;15G — Personal Liability of Agent — Judgment.
    Where an agent for the sale of land was not personally liable for any misrepresentation as to the acreage, a judgment granting the purchaser relief for a deficiency in the acreage should not include the agent personally.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. &wkey;> 156.]
    6. Exchange of Property <&wkey;8 — Remedies— Damages.
    Plaintiff exchanged his land estimated by the parties to be worth $5,000 for defendant’s land represented to contain 100 acres, but actually containing only 84.04 acres. Plaintiff gave, in addition, a note for $2,750, secured by a lien on the land acquired by him. The parties acted under mutual mistake as to the acreage of the land received by plaintiff. Held, that plaintiff could recover such sum for the deficiency as would, when added to the value of the land actually received, give him the equivalent of what he contracted for, free from any deduction based on the theory that the land conveyed by him was priced too high in the absence of any clear evidence on that subject.
    [Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <&wkey;>8.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by J. L. Barton against Mrs. Eddie Cox and another. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Keith & Johnson, of Stephenville, for appellant. Chandler & Pannill, of Stephenville, for appellees. •
   CONNER, C. J.

Appellant instituted this suit on the 16th day of December, 1913, alleging that, on the 22d day of November preceding, he had purchased of Mrs. Eddie Cox, acting by her authorized agent, R. E. Cox, a tract of land situated in the corporate limits of the town of Stephenville, represented to contain 100 acres, at the price of $77.50 per acre, but which it was soon thereafter discovered contained only 84.04 acres, and he sought to recover as damages the loss occasioned by the deficiency. The petition contained further allegations to the same end of a mutual mistake of the parties as to the quantity of the land. The defendant answered by a general denial and that the sale was not by the acre but one in gross; the plaintiff accepting the risk of a deficiency. The case was submitted to a jury on special issues, which being answered favorably, as the court construed, to the defendant, judgment was rendered for her, and the plaintiff has appealed.

The special issues submitted, together with the answers of the jury thereto, are as follows:

“Special Issue No. 1: Was the sale of land from Mrs. Oox to the plaintiff that of a specific quantity of land, to wit, 100 aci'es; that is, was it a sale by the acre? Or was it a sale of a specific tract of land by description; each party risking' the quantity? A. It was not a sale by the acre. It was a sale of a specific tract in gross.
“Special Issue No. 2: If, in answer to special issue No. 1, you have found that the sale was by the acre of a specific quantity, to wit, 100 acres, then how many acres short of the 100 was the tract that plaintiff actually got, and what price per acre was plaintiff to pay for said land? A. It was not a sale by the acre, and the tract measured 84.04 acres, being short of 100 acres 15.96 acres at $77.50 per acre.
“Special Issue No. 8: What price per acre was the shortage worth at the time the sale was made to plaintiff, exclusive of the building, well, and other improvements on the premises? We find that the shortage of the tract of land, exclusive of improvements, to be worth $47.50 per acre.
‘■‘Special Issue No. 4: If, in answer to special issue No. 1, you have found that the sale was of a specific tract by description, then did the defendant R. E. Cox represent to plaintiff that said tract in gross contained 100 acres of land? A. We find that the said R. E. Cox estimated the tract of land to contain 100 acres.
“Special Issue No. 5: If the defendant R. E. Cox represented to plaintiff that the tract of land contained 100 acres of land, then did the plaintiff believe and rely on said representations of the said R. E. Cox? A. He did.
“Special Issue No. 6: Did the plaintiff and R. E. Cox both believe that the tract of land contained as much as 100 acres, and was there a mutual mistake on the part of both of them in regard to the amount and quantity of land contained in said tract? If there was, then did plaintiff use such caution and diligence as an ordinarily prudent person would have exercised in matters of that kind to determine the quantity of land in said tract prior to the time the trade was closed? A. They both believed that the tract contained as much as 100' acres, and there was a mutual mistake on the part of both of them as to the amount and quantity of the land in said tract. We find that the plaintiff did not use such caution and diligence as an ordinary person would have exercised in matters of this kind to determine the quantity of land in said tract prior to the time the trade was closed.”

Among other complaints appellant insists that the court erred in denying his motion to enter judgment for him upon the verdict so returned, and we are of the opinion that this contention must be sustained.

The undisputed evidence shows that R. E. Oox, acting for his mother, Mrs. Eddie C. Cox, and appellant, had been negotiating for an exchange of places for some time. Finally appellant and R. E. Oox went to and on the land in controversy, and, after appellant looked over it, the parties agreed upon terms. Appellant gave a farm owned by him some five or six miles in the country at an agreed valuation of $5,000 and his note for $2,750 for the place involved in this controversy; the note being secured by a lien on the land he so acquired. In this connection it may be stated that appellee, soon after the transaction under consideration, conveyed to other persons the note mentioned and part of the land received by her.

And, reading issues Nos. 4 and 5 together with the answers thereto of the jury in the light of the evidence, the inference is strong that R. E. Oox represented that the tract of land for which appellant was contracting contained substantially 100 acres, and that appellant relied upon such representations. Among other things, R. E. Oox testified:

“I represented my mother, Mrs. Eddie O. Cox, in this trade between she and Mr. J. L. Barton. I have not 5 cents pecuniary interest in this trade. I was just acting for my mother. When I took Mr. Barton to this place, I borrowed a buggy, and we drove to the corner like Mr. Barton said we did, and Mr. Barton got out and walked over the place a short ways, didn’t walk very far, and came back and got in the buggy. We started on back and got to talking, and I said: ‘Mr. Barton, I have never surveyed this, place, but we have always estimated it to be 100 acres. I believe it is here, but I don’t know.’ And I went on to tell him why I believed it; that my father’s deed called for 192 acres, less 80, which would leave 162 acres; the road divided the tract of land, and we always estimated it at 60 acres on one side and 100 on the other side, and, 'when the tract was opened up, it didn’t quite run the 60 acres, and I told Mr. Barton that. I said: ‘We have always estimated it 100 acres, but to know, I have never run it out.’ * * * As to the words TOO acres more or less,’ as written in the deed, when preparing the deed, I said: ‘Write it “more or less.” I have never surveyed that land. It is merely an estimation. Mr. Barton knows what he is getting, and put it “100 aci'es more or less.” There might be a few acres more and might be a few acres less.’ And Mr. Barton never opened his mouth one time. I did not tell Mr. Barton the 100 acres were all right when he said he just wanted 100 acres. * * * In talking' to Mr. Barton with reference to the tillable land on this place, I told him in the same way that I didn’t know exactly, but that I figured 75 acres, probably more and probably less; that I had worked it when I was a boy; but that we have never surveyed it, and he knew it was that way. He knew I had never surveyed it. I feel like there are 75 acres of tillable land on the place, but, as I tell you, I never surveyed it. It is an estimation.”

Uross-examined be testified:

“I don’t know whether we have been rendering that place at 100 acres and paying taxes on that amount. I wouldn’t say whether we have or have not. I have not rendered it in six or seven years, during which time it has been rendered by my mother and B. M. Oox. I wouldn’t say that it wasn’t rendered at 100 acres all the time, and I wouldn’t say that we didn’t pay taxes on 100 acres. I believed there were 100 acres there. I told Mr. Barton I thought they were there, but I told him why I thought it. I think I worked that land three years. I told Mr. Barton I thought the 100 acres were there, but that I had not surveyed it. I would not have told him that if I didn’t intend for him to believe it. I thought myself the 100 acres were there, but I didn’t know. I didn’t believe that tract of land would fall short 16 acres. When Mr. McKewn Johnston surveyed the land and Mr. Barton reported the result to me, I thought there was a mistake. I thought there was more land there than that, and I had them go back and resurvey it. My reasons for having the land resurveyed were I didn’t like to have a controversy with a man. I thought if the 100 acres were there he wouldn’t kick any more. At the start, when Mr. Barton came to the store to see me with reference to this shortage, after the survey was made, I told him then that I thought the 100 acres were there. * * * I gave Mr. Barton my reasons for believing there were 100 acres in the tract, as I have already stated. I had lived on that place since I was a boy till I came to town about 10 years ago. I believe we moved on to that place in the fall of 1893. Mr. Barton and I were friends. He' traded some with me. There was no reason why he couldn’t rely upon me; no reason why he couldn’t take my judgment. * * * When we were writing the deed, I told Mr. Chandler to write the words ‘more or less’; that I didn’t know for sure how many acres there were. I had never asked a lawyer' about that matter, because, as I told you in the starting, that I sold that place for 100 acres, and I wouldn’t sell that place unless I knew there were 100 acres, and, if I knew there were 100 acres there, I would put it 100 acres, but I didn’t know that. Therefore I wanted to put it ‘more or less.’ X did not know there were not 100 acres there at the time the deed was drawn, and I wanted those words ‘more or less’ in there because I didn’t know. I don’t know that I was particularly afraid there were not 100 acres there, but I wanted to deed Mr. Barton what X had there. If he had over 100 acres, let him get it If there were less than 100 acres, let him get it. Q. If you told him there were 100 acres there when you made that trade you knew he believed that, didn’t you? A. He believed it in his own estimation. I wanted to put it ‘more or less,’ because we were trading places as they stood. In using the words TOO acres’ in talking to Mr. Barton, I did so to convey the meaning. When I first told Mr. Barton that I had worked that land and was satisfied there were 100 acres of land there, I meant to convey the idea to him that there were 100 acres of land there. I told Mr. Barton we had always estimated it to be 100 aeres. Q. You knew he had only ridden down there in a buggy and got out and walked out a little piece in the land? A. Yes, sir; as far as I knew. Q. He couldn’t see the whole thing, could he? A. He could see the creek and the fence. I had not thought that his ideas of the amount of the land would not be as good as mine; his having been on the place one time and I having lived on it several years. I knew Mr. Barton was an ordinary farmer. Q. You intended for him to believe there were 100 acres there, didn’t you? A. I told him like I have stated, that we estimated it. I supposed he would take it at 100 acres or something near 100 acres. He knows I didn’t guarantee 100 acres.”

If R. E. Cox did so represent, and appellant relied thereon, as the jury found, then it is clear, whether the representations were made honestly and in good faith or otherwise, that appellant was entitled to relief by way of an abatement in the price he paid or to recover the value of the property of which he was so deprived. See Mitchell v. Zimmerman, 4 Tex. 75, 76, 51 Am. Dec. 717.

The question, however, of whether the verdiQt is to be interpreted as a finding that R. E. Cox made representations as to the quantity of the land afterwards found to be false, may possibly be subject to some doubt. But, if we interpret the verdict in appellee’s favor in this respect, it must nevertheless certainly be accepted as true, as indeed is established by the unassailed findings of the jury, that both of the active parties to the transaction now under consideration believed that there was 100 acres in the tract of land appellant was purchasing, and that they both alike were mistaken as to the real quantity. That the mistake was a material one is not questioned, nor can it be. So that the question is whether, under such circumstances, appellant is entitled in equity to the relief he seeks.

Ordinarily, where the sale is in fact one in gross, the purchaser is nor entitled, in the absence of fraud or gross mistake, to an abatement of the purchase price. If the purchaser has inspected the land and has obtained the very tract he intended to buy and all the vendor intended to sell, he can have no relief, although the deed purports to state the number of acres, unless the deficiency is so great as to shock the conscience of the court, in which case relief will be granted on the ground of fraud. See 39 Cyc. 1588; O’Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282; Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 618; Eaton v. Tod, 68 S. W. 546. But as said by our Supreme Court in the case of Wheeler v. Boyd, supra:

“Even in a case where the land is sold in gross, and the quantity stated in the conveyance is qualified by the words ‘more or less,’ the purchaser will be relieved in equity if the deficiency be great.”

See, also, Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109.

We think it will be found by an examination of the cases that equity denies relief because of a deficiency on the theory that, from the terms of the deed or otherwise, it appears that the purchaser contemplated that a deficiency might exist, and that it was. the purpose of the parties that he should assume the risk of a deficiency. As indicated by the authorities from which we have already quoted, the mere fact that the sale is one in gross, or the mere fact that the conveyance, as in the case before us, is qualified by the terms “more or less,” does not, as a matter of law, establish such purpose. The fact that the sale is in. gross, and that the terms “more or less” are used in the conveyance, are merely evidentiary in nature. They tend to show that the parties to the conveyance intended to take the risk of an excess or of a deficiency, as the case may be, and, in the absence of anything further, are doubtless sufficient to establish such conclusion. But, in the absence of an express stipulation to that effect, equity will not infer from the facts mentioned that the parties intended to assume the risk, where it is further shown that the excess of deficiency is gross. In the present case we think a consideration of the evidence shows that it was not intended, either by R. E. Oox or by appellant, that appellant should assume the risk of the material deficiency shown in this case. We do not think that a purpose to so assume, or an agreement to so assume, is to be implied from the testimony of R. E. Oox, or from the findings of the jury. Indeed, it is significant, we think, that the jury failed to so find in answer to the first special issue, notwithstanding a finding on the subject was expressly sought by the terms of that isstie.

Nor do we think appellant must be denied relief in the case before us on the ground that he did not, as found by the jury in answer to the sixth special issue, use such caution and diligence as an ordinarily prudent person would have exercised, in matters of this kind, to determine the quantity of land in said tract prior to the time the trade was closed. We have searched the statement of facts carefully, and the conclusion so reached by the jury can only be predicated upon the mere fact that appellant, prior to the purchase, went upon the ground and overlooked it, and failed to ascertain the exact number of acres by an actual survey. As shown in the deed, the survey was bounded and described by the meanderings of a small stream or creek and by other surveys called for, and R. E. Oox’s estimate of 100 acres was so fortified by the statement of circumstances peculiarly within his own knowledge as to most reasonably induce a belief on the part of appellant that the tract contained, approximately at least, 100 acres. The parties were friends, and as stated by R. E. Oox on cross-examination, as hereinbefore quoted:

“There was no reason why he [appellant] couldn’t rely upon me [R. E. Cox]; no reason why he couldn’t take my judgment.” '

In such cases, and under such circumstances, appellant was not required by law to distrust appellee and to verify his statements by an .actual survey.

In the case of Mitchell v. Zimmerman, hereinbefore cited, Zimmerman leased of Mitchell a certain tract of land represented' to contain 140 acres in a good condition for cultivation, giving therefor, as part consideration, his note. Afterwards, when sued upon the note, Zimmerman pleaded and proved that in fact there were less than 50 acres in a good condition for cultivation. The court held that he was entitled to an abatement in price, notwithstanding the fact that it was proved that, previous to the contract, both Mitchell and Zimmerman were upon the premises and that Zimmerman as did appellant in the present case, “saw the place, but did not go much over it.” Zimmerman by a survey could have ascertained the exact number of acres in condition for cultivation, but the court proceeded upon the theory that the owner of the premises is supposed to possess superior means of information as to the quantity of land involved in a transaction of the kind, and, in the absence of any circumstances calculated to raise a suspicion in the mind of a purchaser or lessee, he may well rely upon the representation of the owner.

In the case of City Bank v. Nat. Bank, 45 Tex. 203, it was held that the payment of a raised cheek to an indorser through mistake might be recovered back by paying the bank to the extent of the difference between the original check and the amount to which it is raised, notwithstanding the fact that the party paying may have had the means of knowledge. In the course of the opinion the court quotes with approval from a New York case the following words;

“On general principles, mere negligence in making the mistake is not sufficient to preclude the party making it from demanding its correction. Such negligence does not give to the party receiving the payment the right to retain what was not his due, unless he has been misled or prejudiced by the mistake. If the loss had been incurred and become complete before the payment, he should not, in justice, be permitted to avail himself of the mistake of the other party to shift the loss upon the latter.”

See, also, Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Koontz v. Central Nat. Bank, 51 Mo. 275, cited with approval in Bone v. Friday, 180 Mo. App. 577, 167 S. W. 599; Western Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061; Stevenson v. Cauble, 55 Tex. Civ. App. 75, 118 S. W. 811; Hall v. Grayson County Nat. Bank, 36 Tex. Civ. App. 317, 81 S. W. 762; Williams v. Carroll Co., 167 Mo. 9, 66 S. W. 955.

While most of -the cases just cited are eases of misrepresentation or actual fraud, we see no reason why the principle should not be applied in cases such as we have here. A gross mistake has been shown and found. Its operation is in the nature of a fraud on appellant’s rights. The mistake was mutual. Whatever the good faith of the parties, ap-pellee has been the recipient of a benefit and appellant deprived of values contrary to what was contemplated by both parties at the .time. We see no reason to doubt the equity of giving to appellant the value of that for which he paid and of denying appel-lee the right to a profit not in fact intended to be secured by her. The judgment will accordingly be reversed and here rendered for appellant, in accordance with the meas•ure of his damages, as we hereinafter state, to wit, it appearing by the undisputed proof that appellant actually received 84.04 acres, including all of the improvements, we think the proper measure of appellant’s damages is to allow him for the value of 15.96 acres, the amount of the deficiency as found by the jury, at the rate of $47.50 per acre, as also found by the jury, upon the receipt of which appellant will have received the equivalent, as near as the courts can award it to Mm, of that for which he paid, but which he did not receive. /

Reversed and rendered.

On Motion for Rehearing.

Appellees, Mrs. Eddie 0. Cox and R. E. Cox, present a motion for rehearing, which, in so far as it substantially presents the same contentions as were presented on original hearing, will be overruled without discussion, inasmuch as on those questions we see no reason to depart from the conclusions announced in our original opinion. They, however, further complain that, in the judgment rendered in this court in appellant’s favor, the appellee R. E. Cox was included. We find this to be true. The evidence makes it very clear that R. E. Cox acted in the matter solely as the agent of his mother, Mrs. Eddie Cox, and that this fact was well known to the appellant, J. L. Barton. In view of these facts, and in view of the further fact that there is no finding of the jury upon which we could properly base a judgment against R. E. Cox personally, and no evidence which shows his relation to the mistake or misrepresentation involved to be such as to create a personal liability, we did not originally intend that the judgment should be entered against him personally, nor did we intend our opinion to so direct, and the judgment was so entered by the clerk, without specific direction to so do. The judgment as here entered in this court will therefore be in this respect corrected.

Appellees further insist that, in rendering the judgment in appellant’s vfavor, we adopted the wrong measure of damages; the insistence being that, inasmuch as there was evidence tending to show that the land which appellant gave in exchange for the Mrs. Cox 100 acres was of less actual value than as agreed upon at the time, the judgment should be reversed rather than rendered, to the end that the measure of damages might be applied in accordance with the rule announced by our Supreme Court in the case of George v. Hesse, 100 Tex. 44, 98 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. The question so presented has occasioned us considerable difficulty. In the case of George v. Hesse, Hesse exchanged certain property owned by him for certain lands owned by George, upon which George represented there was a “gusher of water,” or a strong flowing well of water, but wMch representation proved to be false, and I-Iesse sued for damages. The trial court adopted as the measure of damages the difference in value, if any, between the reasonable market value of the George lands which Hesse actually received, “without a gusher of water,” and the reasonable market value of the same land “with a gusher of water.” But the Supreme Court, after a review of the authorities, held that this was the wrong measure of damages; that the proper measure was the difference between the value of the property actually received by Hesse and that given by him in exchange therefor. In the case of Davis v. Fain, 152 S. W. 218, which was a ease of a partial deficiency in a lot, that constituted a part of a laundry plant which had been sold by the defendant in the suit, we indicated, in reversing the judgment, that the measure of damages announced in the George-Hesse Case should be applied.

There is perhaps no very satisfactory distinction to be made on the question under consideration between the cases referred to and the one before us. We wish to say, however, that the question as to the correctness of the measure of damages was not submitted in the case of Davis v. Fain, and what we there said was in the nature of a suggestion for the guidance of the court in a new trial. In that case, too, as will be found by an examination of the record, the sale was in gross and comprehended the building, machinery, furniture, fixtures, wagons, horses, etc., belonging to a laundry business; the deficiency in the lot being of small relative value and not apparently necessary to the business plant as purchased. It was insisted by the vendors to the effect that the value of the 15-foot deficiency shown in the lot was not in fact included in the consideration paid for the property, in view of all which we made the suggestion referred to. However, as the question was not really presented, what we there said is not necessarily controlling with us now. In the case of George v. Hesse, the misrepresentation was one of quality and not of quantity. Hesse contracted for land with a gusher upon it TMs he did not receive in whole or in part, for in no part of the land received did the quality contracted for inhere. An artesian well is a thing of intangible or speculative value, considered apart from the land upon which it was represented to be. Its substantial value was relative and qualitative. It arose from and was dependent upon its connection with the land there in controversy, and the value of the land in turn was largely affected by the existence or want of existence of a flowing well thereon. To undertake, therefore, to ascertain the value of either land or well separately was in great measure speculative, and the Supreme Court, therefore, evidently adopted and applied, as the most certain rule of finding the compensation of the defrauded party, the measure stated, to wit, the difference between the value of what Hesse actually gave as a whole and the value of that which he actually received. The decision evidences the effort of the court to apply to the circumstances of the case that measure of damages which would most certainly afford just compensation to the injured party, and at the same time minimize the probability of injustice to the party of whom complaint was-made by closing the door to conjectural or speculative results. The measure adopted will doubtless lead to the most certain and satisfactory results in all cases where the false representations are of quality and adhere in and to every part of the land to which the representations relate.

But in the case before us the misrepresentation or mistake was of quantity and not of «quality. The deficiency is not shown to affect any part of the landi actually received by the appellant. Nothing in the evidence shows that the relative value of the 84.04 acres actually conveyed to appellant is greater or less than it would be if the deficiency (the 16.96 acres not conveyed) was or had been added to it. Appellant received the improvements and all of the cultivated land, .and these improvements and cultivated lands have all the value, so far as the evidence shows, that they ever had. Appellant’s real .loss is the loss of the 15.96 acres that the ap-pellee failed to convey; and, when the value of these 15.96 acres is added to that which appellant already received, he will have substantially received that for which he contracted, and no more.

In the case of Hynes v. Packard, 92 Tex. 44, 45 S. W. 562, in a suit for a breach of warranty in conveying a less number of acres than contracted for, our Supreme Court ruled, in effect, that the damages to the complaining party should bear the same proportion to the whole purchase money as the value of the part to which the title failed bore to the value of that which he actually received, and this rule seems to have been applied in a great number of our cases. See authorities cited in 5 Encyc. Dig. of Texas Reports, p. 489.

In this respect we can see no sound reason for distinguishing between cases in which the cause of action declared upon is a breach of warranty and those, as here, where the deficiency arises by reason of a mistake. Indeed, this rule of the measure of damages was applied in this court in a case where there was a deficiency, and the right of action was expressly predicated upon alleged false representations. See Pruitt v. Jones, 14 Tex. Civ. App. 84, 36 S. W. 502. See, also, the recent case of Northcutt v. Hume, 174 S. W. 975, in which Mr. Justice Hendricks of the Amarillo Court of Appeals collates and reviews a great many authorities, saying, among other things, that, where there is a deficiency, the rule as to the measure of damages declared by the Supreme Court in the case of Hines v. Packard, supra, “is practically universal.” We are by no means clear that it was not our duty to the appellant to apply this rule in his favor in this case. The effect of the findings and undisputed evidence is that appellant 'paid a total sum of $7,750 for the appellee Mrs. Eddie Cox’s land, that the land actually received by him was worth $77.50 per acre, and that the land which he failed to receive was worth $47.50 per acre; and, had we applied the rule of proportionate value as the measure of appellant’s damages, a simple mathematical calculation will demonstrate that instead of the sum of $759, which we adjudged in his favor, he would have received a greater sum. But appellant has made no complaint in this respect, and appellee certainly has no ground to complain. Nor, as we think, is it clear that they have just cause of complaint in that we failed to apply the rule of damages declared in the case of George v. Hesse, for here the agreed value of appellant’s land conveyed as part of the purchase price to be paid by him was $5,000. He gave his vendor’s lien note for the remainder, $2,750, for which appellee contracted to convey her 100-acre tract. We feel no disposition to disturb the value of appellant’s land as thus agreed to upon a mere passing statement of the witness R. E. Gox that he did not think appellant’s land was worth the amount for which it was priced. It was certainly accepted by him in behalf of his mother at the price stated; he at that time valuing his mother’s tract at $7,750. If appellant’s land was worth less than had been agreed upon, the inference seems irresistible that appellee’s land was likewise worth less, otherwise she would have insisted on more for the exchange. So that, on the whole, we think appellee’s motion, with the correction already noted, should be overruled ; and, in the absence of any complaint on the part of appellant, we yet feel disposed to adhere to the measure of damages applied by us on original hearing as, under the circumstances of this case, most certainly and equitably fixing the compensation to which appellant is entitled.
      (@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    DALLAM COUNTY v. S. H. SUPPLY CO. et al.
    (No. 6756.)

    (Court of Civil Appeals of Texas. Galveston.
    April 30, 1915.
    Rehearing Denied May 20, 1915.)
    1. Appeal and Ebbob <&wkey;301, 759 — Assignments op Ebbob — 'Waivee.
    Under the express provisions of rule 101a for the district and county courts (159 S.. W. xi) and rule 29 for the Courts of -Civil Appeals (47 S. W. v), assignments of error not specified in a motion for a new trial, or in the assignments of error when a motion for new trial is not filed, or not copied into the brief, are waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755, 3094; Dec. Dig. &wkey;30L 759.]
    2. Appeal and Ebbob <&wkey;719 — Review — Findings.
    A finding not attacked by any assignment of error must be adopted as conclusive by the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dee. Dig. &wkey;719.]

      3. Proderty &wkey;>9 — Title — Action to En-eorce Lien — Sufficiency ob Evidence.
    Evidence in a suit to enforce liens against well-driving machinery sold to a contractor with defendant county held sufficient to support a finding that the machinery belonged to the contractor, and not to the county.
    [Ed. Note. — For other cases, see Property, Dec. Dig. t&wkey;>9; Evidence, Cent. Dig. § 2457.]
    4. Appeal and Error i&wkey;877 — Who May Allege ERROR — ERROR AS TO COPAETIES.
    In a suit against a county and its contractor on notes of the contractor secured by mortgages on well-driving machinery sold to him by plaintiff, where the county by its answer claimed to own the machinery, and reconvened, praying that the title and possession thereof be adjudged to be in it, it could not object, on appeal, to a judgment against it on the ground that the widow and minor sons of the contractor, who had been substituted for him, and against whom the mortgage liens were foreclosed, were not properly made parties to the suit; since, where they did not appeal, the county .could not, on appeal, question the validity of the judgment as against them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. <&wkey;> 877.]
    5. Principal and Agent <&wkey;145 — Undisclosed Principal — Liability.
    One extending credit to an agent, in ignorance that he is acting as such, may, on discovery of the undisclosed principal, hold such principal, especially where the principal has accepted benefits under the contract; and the fact that the charge was made only against the agent is immaterial.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 528-533; Dee. Dig. &wkey;> 145.]
    6. Principal and Agent <&wkey;188 — Undisclosed Principal — Parties—Agent.
    In an action to enforce chattel mortgages on goods bought by a contractor as for himself, where the county with which he had contracted claimed to have been the principal, the agent was not a necessary party to an adjudication of the issues between plaintiff and the county.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 711, 712; Dee. Dig. &wkey;> 188.]
    7. Principal and Agent <®=o146 — Undisclosed Principal — Liability op Agent.
    An agent who contracts in behalf of an undisclosed principal may be held liable by the person with whom he deals as though he himself were, in fact, the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 521-527; Dec. Dig. <&wkey;> 146.]
    8. Counties <&wkey;215 — Actions Against — Venue — Plea op Privilege — Waiver.
    A county made a defendant in a suit in another county against its contractor on . notes secured by chattel mortgages on well-driving machinery sold to such contractor, which did not plead its privilege to be sued in its own courts, nor rely upon the want of jurisdiction of the court of the other county, and which reconvened, ashing for affirmative relief, thereby waived its plea of privilege.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 345; Dec. Dig. <&wkey;>215.]
    9. Counties &wkey;>213 — Action Against County-Conditions Precedent — Presentation op Claim.
    Rev. St. 1911, art. 1366, prohibiting suits against a county, unless the claim on which suit is founded shall have first been presented to the commissioners’ court for allowance, had no application to a suit against a county solely to bind it as to the title to property sold to its contractor, and by him mortgaged to plaintiff; and, on the ground also that the county asked for affirmative relief, it was not necessary for plaintiff to present its claim for allowance.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 342, 343; Dee. Dig. &wkey;213.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Suit by the S. H. Supply Company against Dallam County, W. J. Miller, W. B. Slaughter, and others, with a cross-bill by Dallam County against defendants Miller and Slaughter. Judgment for plaintiff and Slaughter against Miller and Dallam County, and the County appeals.
    Affirmed.
    Smith, Crawford & Mead, of Beaumont, and J. B. Synnott, of Waco, for appellant. Lipscomb & Lipscomb, of Beaumont, for ap-pellee -S. H. Supply Co. Townes & Townes and R. E. Hardwicke, all of Beaumont, for appellee W. B. Slaughter.

       writ o£ error pending in Supreme Court,

   LANE, J.

On June 19, 1911, one W. J. Miller entered into a written contract with the commissioners’ court of Dallam county, Tex., appellant herein, as follows:

“The State of Texas, County of Dallam.
“This agreement made and entered into on this the 19th day of June, A. D. 1911, by and between the commissioners’ court of Dallam county, Texas, party of the first part, and W. J. Miller, party of the second part, witne^seth:
“(1) That, in consideration of the matters hereinafter set out, party of the second part agrees to construct a well 3,000 feet deep, subject to the provisions hereinafter set out, for the sum of six dollars per foot, said well to be constructed in Dallam county, Texas, at any point designated by party of the first part, said well to be properly cased throughout with heavy steel casing, six inches in diameter, inside measure. And party of the second part agrees to furnish material, including all machinery, piping and other merchandise, as well as labor, necessary to the construction of said well, at his own expense, and agrees to begin work on said well not later than August 1, 1911, and to complete said well as soon thereafter as practicable.
“(2) That, in consideration of the matters hereinbefore stated and hereinafter stated, party of the first part agrees to pay party of the second part the sum of six dollars per foot for the construction of the well hereinbefore mentioned, subject to the condition hereinafter set out.
“(3) Party of the second part agrees that in the event gas, oil, or artesian water is found at a depth less than 1,000 feet, and should party of the first part desire to have no greater depth bored, he will cease boring upon payment to him of the sum of six thousand dollars.
“(4) It is mutually agreed that the payments on said well are to be made as follows: When 1,000 feet shall have been bored, there shall be paid the sum of $4.20 for each foot bored, and as each succeeding 100 feet shall be bored a like amount shall be paid, and the remainder shall be paid when said well is completed.
“(5) Party of the first part agrees to pay, on the execution of the bond hereinafter mentioned, the sum of $3,000, which is to be credited on such amount as may be due party of the second part, under this contract, when said well is completed; and upon the completion of said well party of the first part agrees to sell, and party of the second part agrees to purchase, the well machine used, at a price to be determined by one party to be chosen by party of the first part, and one party to be chosen by party of the second part, and one party to be chosen by both of the parties so chosen, and to allow party of the first part credit for such amount as may be thus agreed upon.
“(6) Party of the second part agrees to enter into bond in the sum of $15,000, to be approved by party of the first part, conditioned on the carrying out of this contract.
“Executed in triplicate this the 19th day of June, A. D. 1911.
“C. S. Harrington, County Judge,
“S. H. Tritt, Commissioner,
“P. T. Frederick, Commissioner,
“Party of First Part.
“W. J. Miller,
“Party of the Second Part.”

Miller executed the bond provided for in said contract, and thereupon he was paid by Dallam county the $3,000, as provided by section 5 of said contract. About the 1st day of July, 1911, after receiving the said $3,000 under said contract, Miller went to Beaumont and purchased from S. H. Supply Company machinery v and other things, including the well rig in question in this suit, paying and promising to pay therefor $3,161.14. He paid $1,500 in cash, and executed his note, or notes, for about $1,200 for a part of the balance of said purchase money, and made other purchases from other parties in Beaumont, paying cash therefor. When he purchased said machinery he told Mr. Boykin, the salesman, that the purchase was for himself and upon his own responsibility. This machinery was shipped to, and received by, Miller in Dallam county about August 1, 1911, and he began the boring of the well mentioned in said contract about that time. On December 11, 1911, Miller executed and delivered his promissory note for the sum of $1,232.71 to the First National Bank of Dalhart, Tex., and, gave a mortgage on the property involved in this suit to secure the payment of said note. This note was later transferred to, and became the property of, W. B. Slaughter, a party to this suit. There was still due and unpaid on this note about $700 at date of trial of this case. On the 26th day of December 1911, Miller’s indebtedness to S. H. Supply Company had been reduced to $822.85, for which sum he executed and delivered his note to said Supply Company, and also executed and delivered to said company a mortgage on the property in question to secure the payment of said note. Both of said mortgages were promptly and properly filed for record. The note due to the S. H. Supply Company became due, and by its original petition it entered this suit on September 3, 1912, against W. J. Miller in the district court of Jefferson county, at Beaumont, to recover the balance due on said note and for a foreclosure of its mortgage lien on the property in question. After Miller had waived issuance of citation and entered his appearance, t.he S. H. Supply Company learned that W. B. Slaughter and appellant, Dallam county, were making some claim to, or right in, said property in question, and therefore they were made parties defendant to said suit.

On the 7th day of October, 1912, appellant, Dallam county, filed its original answer, and, among other things, alleged as follows:

“And, further answering herein, this defendant says that at the time the mortgage described in plaintiff’s petition was executed by said Wm. J. Miller, and at all times since said date, including the present time, the rotary well-drilling outfit and well-drilling machinery referred to and described in plaintiff’s petition was and is the property of this defendant the said county of Dallam; that, if any mortgage was executed by said Wm. J. Miller in favor of plaintiff covering or attempting to cover said well-drilling outfit and machinery, such mortgage was so executed without knowledge of or authority by this defendant. This defendant further says that the mortgage given by said Wm. J. Miller, if any, as set forth in plaintiff’s petition, constitutes a cloud on this defendant’s title to said property; and, further, that said Wm. J. Miller is at present to be found in said Dallam county; Tex. Wherefore this defendant prays that said Wm. J. Miller be cited to appear and answer this defendant’s action in terms of law, that on final hearing hereof said mortgage be adjudged void and held for naught, so far as the same affects and attempts to affect the property of this defendant as hereinbefore set out, that the title of this defendant to its said property be quieted as against the plaintiff and each of the other defendants herein, and this defendant prays for such other and further relief, special and general, as it may be entitled' to in law and in equity.”

Dallam county also pleaded that Miller was its agent in the purchase of said machinery, and by its first amended answer on December 6, 1912, it pleaded as follows;

“And, specially answering herein, this defendant further says that at the time the mortgage referred to in plaintiff’s petition and the mortgage referred to in the other defendant’s answer were executed the well rig and machinery in said petition mentioned was the property of the defendant Dallam county, Tex., and that said property is now, and at all times subsequent to the date of said mortgage was and has been, the property of this defendant, and that said mortgages are null and void; that the terms of purchase of said well rig and machinery are set forth in statement marked Exhibit A, and are made a part and parcel of this amended answer. Wherefore this defendant prays that plaintiff and the other defendants herein take nothing by this suit as against this defendant, and that the title to said property be quieted in this defendant, that this defendant go hence without day and recover of the other parties herein all costs in this behalf expended, and for such other and further relief as it may be entitled to in law and in equity.”

W. B. Slaughter answered setting up his note and mortgage, and praying for judgment and foreclosure.

On July 10, 1913, Supply Company suggested the death of W. J. Miller, and alleged that Mrs. W. J. Miller, widow of W. J. Miller, and Alfred and James Miller, the minor children of W. J. Miller, were the legal representatives of W. J. Miller, deceased, and that they lived in the state of Arizona, and had them made parties to the suit; proper notice being given to said parties.

On December 22, 1913, appellee Supply Company filed its second amended petition, and, after repeating the allegations of its former petition, made additional alternative plea and prayer, to wit:

“And, further pleading in the alternative, plaintiff shows that, if Dallam county has any claim upon said property, it arises from its being the undisclosed principal of the said Wm. J. Miller in the purchase of said machinery and piping, and that said county is in that case still obligated and bound to pay plaintiff’s claim, which is for part of the purchase price thereof. * * *
“And, further pleading in the alternative, comes now the S. H. Supply Company, and says that, if it be mistaken in the foregoing allegations, and if it should appear that the county of Dallam has any right or title to the property herein involved, or in any part of it, then the plaintiff, S. H. Supply Company, complains of the said county of Dallam and of all the other parties hereto, and shows that heretofore, to wit, on or about the 17th day of July, 1911, it sold and delivered to said Wm. J. Miller the property herein involved and other property to the amount of $2,427.07 agreed price, whereof there remained unpaid and due to plaintiff on the 26th day of December, 1911, the sum of $822.85; that same was purchased by the said Wm. J. Miller in his own name, but he was, in fact, acting in said transaction for the said county of Dallam, which, under the terms of its contract with the said Miller, had undertaken to furnish money for purchase .thereof, and thereafter to sell same to the said Wm, J. Miller ; that a copy of said contract is hereto attached and made a part hereof; that after-wards, and as part of said transaction, and before plaintiff discovered that Dallam county was the purchaser of said property from it, and, to wit, on the 26th day of December, 1911, the said Miller gave to plaintiff a chattel mortgage covering, among other things, the rotary well-drilling outfit and piping so sold by plaintiff, and same being the outfit, well machinery, tools, engines, pipe., and appurtenances used by said Miller in drilling the well referred to in said contract, whereby the plaintiff acquired a lien upon said property for securing payment of the said balance due it. Wherefore plaintiff prays judgment against said county of Dallam for said sum of $822.85, and interest and costs of suit, and all such other relief as in law and equity the plaintiff is entitled to.”

On January 2, 1914, for the first time Dal-lam county filed its plea of privilege to be sued in Dallam county.

On the same date, January 2, 1914, appellant, Dallam county, abandoned its other answers, except perhaps its plea of privilege, and filed in lieu thereof its second amended answer, on which it went to trial. In this amended answer Dallam county excepted generally (1) to the petition of both the S. H. Supply Company and W. B. Slaughter, appel-lees, insisting that neither of them show any cause of action against Dallam county; (2) to so much of the alternative plea of S. H. Supply Company as sets up and prays for judgment against Dallam county for the balance of unpaid purchase money for the well rig and machinery which Dallam county alleges was bought by Miller for it, as its agent, because said plea does not show that its claim for such balance was presented to the commissioners’ court for payment as required by law in such cases, and because the suit of said Supply Company was against W. J. Miller for the balance of the purchase money for said property, and also against Dallam county, as undisclosed principal of Miller, on the theory that Miller was the agent of Dallam county, and that therefore Dallam county is liable for said unpaid purchase money, and that said Supply Company should be required to elect whether it will sue Miller’s representatives or Dallam county for its claim; that it could not sue both by alternative allegations and prayer. These exceptions were overruled by the court.

In said amended answer Dallam county, further pleading, repeated the allegations of its former pleas to the merits of the cause, and also repeated its prayer for affirmative relief, and further pleaded that, if the Supply Company ever had any cause of action, as claimed in its alternative plea, said cause of action is barred by the statute of limitation of two years.

Mrs. Miller made no answer. Alfred and James Miller, minors, through their guardian ad litem appointed by the court, pleaded general denial only.

There were other parties defendants who were disposed of by the judgment of the court, but, as it is unnecessary to further mention them in this opinion for a proper disposition of this appeal, no further mention of them will be made herein.

The cause was tried before the court without a jury, and judgment was rendered establishing the debts of the S. H. Supply Company and W. B. Slaughter and foreclosing their liens against the property in question, respectively, as against Mrs. W. J. Miller, Alfred Miller, and James Miller, as representatives of W. J. Miller, deceased, and also foreclosing said liens as against the claim of Dallam county. From this judgment Dallam county alone has appealed.

By appellant’s first assignment of error in its brief insistence is made: First, that there was no sufficient evidence to support the judgment rendered; and, second, that the undisputed proof was that the property in question was when bought (by Miller) to be the property of Dallam county.

In support of the judgment rendered we here copy the substance of the court’s fourth finding of fact as stated in appellant’s brief:

“Paragraphs Nos. 1 and 5 of the contract, in so far as they relate to the subject of which one of the parties thereto was to furnish the machinery for boring the well, are ambiguous. The latter part of paragraph 1 in said contract specifically put that burden upon W. J. Miller, while in paragraph 5 it would seem that it was contemplated that Dallam county was to furnish the drilling machinery, and after the completion of the well the said Mfiller was to purchase the same, at its then value, and allow the county a further credit of the balance due Miller upon completion of the well.
“The court finds, as a matter of fact, in construing said contract, that the $3,000 paid W. J. Miller was not advanced to him to purchase machinery, but was advanced to him as a credit on his contract, and the court deduces from this that the machinery, when purchased, belonged to Miller, and not to Dallam county, and Miller bad the right to give a mortgage on it, which would be valid as against Dallam county.”

There is no assignment in the record, nor in appellant’s brief attacking the above finding of fact, and, in the absence of such assignment, we must adopt such findings as conclusive, and in doing so we must hold that the findings there stated support the judgment rendered.

The court trying this cause adjourned on the Slst day of January, 1914. Appellant’s amended motion for new trial was filed January 30, 1914, and the same was overruled, and judgment became final on January 31, 1914. The trial judge filed his findings of fact and conclusions of law January 31st, the last day of the term of court.

Rule 101a adopted by the Supreme Court for the district and county courts of Texas (159 S. W. xi) provides:

“In all cases in which a motion for a new trial is filed the assignments contained in such motion or amended motion as finally ruled upon by the trial court shall constitute the assignments of error. All assignments not distinctly specified in such motion, or in the assignments of error where a motion for new trial is not filed, shall be waived.”

Rule 29 for the Court of Civil Appeals provides (47 S. W. v) that any assignment not copied in the brief of the party filing such assignment shall be regarded as abandoned.

As before stated, we find no assignment attacking the court’s fourth finding of fact in appellant’s motion for new trial, or otherwise, although said finding of fact was filed during the term of the court. Therefore we must hold that the trial court’s finding of fact, here presented as error, is binding on this court.

If, however, we should consider the fact finding of the court as properly attacked, and go to the statement of facts filed with the record, we find ample evidence to support the court’s finding. The first clause of the contract of Dallam county with Miller, copied herein, specially provides that Miller shall furnish all machinery, piping, and all other material necessary in constructing the well to be bored, at his own expense. And the fifth clause provides that as soon as Miller should execute the bond provided for in the contract Dallam county would pay Miller $3,000, which was to be charged to him, and for which Dallam county was to have a credit on such amount as might be due Miller, when said well was completed. E. D. Boykin, who sold the machinery involved in this suit to Miller, testified that Miller told him that he was buying the same for himself and on' his own responsibility. E. T. Adair testified that on December 11, 1911, Miller told him that he .(Miller) was the sole owner of the property in question, and that there was no lien or incumbrance on the same at that time. The mortgages given by Miller also recite that said property was owned by him in his own right and free from incumbrances. While the court might have been warranted, from evidence offered by appellant, in finding that the property was owned by Dallam county, he was not bound to so find when there was ample evidence, as we think there was, to support a contrary finding. Therefore appellant’s first assignment is overruled.

Appellant’s second assignment is to the effect that the court erred in overruling its general demurrer to the petition and answer respectively, of appellees Supply Company and Slaughter, and in rendering judgment establishing the debts and liens of said Supply Company and Slaughter: (1) Because the petition of the appellee Supply Company making Mrs. Miller and Alfred and James Miller parties to the suit after the death of W. J. Miller, the original defendant, does not allege that there was no administration pending on the estate of said W. J. Miller, deceased, or that there was no need for such administration, or that said parties were all the heirs of said W. J. Miller, or that said parties received any portion of said Miller’s estate, or that they are in any way liable for said Miller’s debts, and therefore there was no proper party before the court against whom judgment might be taken for Miller’s debt, and therefore no judgment upon which to base a foreclosure of the mortgage liens of the Supply Company and Slaughter as against Dallam county; (2) because Slaughter’s answer is subject to the same objection as those urged against the petition of the Supply Company; (3) because there was no proof showing that there was no administration or necessity for such administration upon the estate of W. J. Miller, or that Mrs. Miller, Alfred Miller, and James Miller received any property of W. J. Miller’s estate, or that they were in any manner liable for the debts of W. J. Miller, and therefore no judgment for W. J. Miller’s debts could legally be rendered against them.

As heretofore stated, the appellee Supply Company originally brought this suit against W. J. Miller during his lifetime to recover upon a note executed by him and to foreclose a mortgage lien given by Miller upon the property involved in this suit to secure said note. After Miller had waived the issuance of citation and entered his appearance he died before judgment; thereafter his widow and two minor sons were made parties defendant as the legal representatives of his estate, and judgment was then entered establishing the debts of appellees Supply Company and W. B. Slaughter, who was made a party defendant to the suit by the plaintiff, and their respective mortgage liens were foreclosed upon the property involved herein. No personal judgment was rendered against either of the Millers, but the mortgage liens were foreclosed as against them, and also as against the appellant. Whether the judgment establishing the debts of the Supply Company and Slaughter, and foreclosing their respective liens on the property in question, as against the estate of W. J. Miller, deceased, is valid and has the effect intended, is not a question in which appellant is concerned, and one not properly presented hy this appeal. See Slaughter v. Dallas, 103 S. W. 218; Herndon v. Bremond, 17 Tex. 422. Neither Mrs. Miller, Alfred Miller, nor James Miller have appealed from such judgment, and, in view of the nature and status of this ease as made by the pleadings of all parties, we do not think Dallam county is in a position to raise the question here presented for our decision on this appeal. It must be kept in mind that appellant Dallam county by its answer claimed to own the property in question, and reconvened in this suit, and prayed that the title, and possession of said property be adjudged to be in it, and that it be quieted in its said title and possession, and, having thus chosen to litigate the question of ownership of said property as between it and appellees, who were claiming liens upon the property, cannot defeat the judgment of the trial court against it on the plea that Mrs. Miller and her minor sons were not properly made parties to this suit, and that such judgment as was rendered against them is error. See Slaughter v. City of Dallas, 103 S. W. 218; Herndon v. Bremond, 17 Texas, 432; Lauchheimer & Son v. Coop, 99 Texas, 386, 89 S. W. 1061, 90 S. W. 1098; Rainbolt v. March, 52 Texas, 246.

There is another reason why the second assignment should be overruled. Dallam county pleaded that, when Miller bought the property in question, he did so for, and as the agent of, said Dallam county, and the evidence offered by said county was all to the same effect. If this plea and evidence is true, said county was the undisclosed principal of Miller in the purchase of the property. There was unpaid on said property the sum of $822, for which Miller, the agent, executed the note sued upon by the Supply Company. Dallam county, being such undisclosed principal, was primarily liable for said unpaid purchase money, and could have been sued for the same without the necessity of making Mrs. Miller and her two minor sons, Alfred and James Miller, parties to the suit. They were not necessary parties in the adjudication of the issues between the Supply Company and Dallam county as made by the cross-bill of said county, in which it set up claim to the property, and prayed that the mortgages of the Supply Company and Slaughter be declared void, and that its title to said property be quieted. By appellant’s cross-bill it disclosed that it was the principal in the transaction between Miller and the Supply Company, and entered the suit in the attitude of a plaintiff. When credit is given to an agent acting for his principal, who does not disclose his agency at the time he contracts the debt, and the creditor afterwards discovers the agency, the creditor may hold the principal liable for the debt; and the fact that things sold are charged up against the agent only does not affect the case. Strauss v. Jones’ Executors, 37 Tex. 313; Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 66 Am. St. Rep. 913; Sessums v. Henry, 38 Tex. 37; Heffron v. Pollard, 73 Tex. 100, 11 S. W. 165, 15 Am. St. Rep. 764.

An agent who contracts in behalf of an undisclosed principal may be held liable by the person with whom he deals, as though he himself were, in fact, the principal. The liability of the agent is not, however, exclusive, for, although the third person extended credit to the agent in ignorance of the fact that the latter was acting in a representative capacity, he may hold the undisclosed principal when discovered; it being a firmly established rule that an undisclosed principal is bound by executory simple contracts made by the agent. Especially is this true when the principal accepts benefits under the contract of the agent with third persons.

Appellant’s third . assignment insists that the court erred in overruling the plea of privilege to be sued in the district court of Dallam' county, because, under the laws of this state, a county can only be sued in one of the courts within the boundary of said county. The contention of appellant is that section 19 of article 1830, Bevised Statutes, which provides that suits against counties shall be brought in the courts of the county sued, is a statute fixing the jurisdiction of the court, and that no court outside of the county sued has jurisdiction to try a case against said county, except as specially provided by law, and therefore the district court of Jefferson county was without jurisdiction to try this cause as to Dallam county.

For the purpose of disposing of the question as to whether the court erred in overruling appellant’s plea of privilege in this case, it is not necessary that we should express an opinion as to whether section 19 of article 1830, supra, is one fixing jurisdiction or one fixing venue only. Appellant, Dallam county, was brought into this suit as a defendant to show cause, if any it had, why plaintiff, the Supply Company, should not be permitted to foreclose its mortgage lien on the property in question. It had the right to either plead its privilege to be sued in Dallam county or to rely upon the want of jurisdiction in the district court of Jefferson county to try said cause as to it, but it did neither. .

On October 7, 1912, Dallam county filed its plea in reconvention in the district court of Jefferson county, setting up claim of title to the property involved in the suit, and prayed that plaintiff’s mortgage be adjudged void, and that it have judgment of the court as against the Supply Company, and against all defendants, quieting its title to said property, thus invoking the jurisdiction of the court, not as a defendant only, but praying for affirmative relief, and not until the 2d day of January, 1914, did it file its plea of privilege. By filing its plea in reconvention asking for affirmative relief Dallam county waived its privilege to be sued in Dallam county, and the court did not err in so holding and in overruling its plea of privilege.

“Even though Dallam county might have had the right, as a defendant, to be sued in Dal-lam county, yet, when it becomes a plaintiff, and selects the forum in which it desired to prosecute its suit, it is bound by such selection, as would be any other plaintiff.”

In the case of Kolp v. Shrader, 131. S. W. 860, the Court of Civil Appeals, speaking through Judge Hodges, says:

■ “While the defendant does not waive a plea of privilege by pleading generally to the merits subject to the plea, his plea of privilege is waived by the filing of a cross-action demanding affirmative relief.”

The fourth assignment insists that the trial court erred in overruling Dallam county’s general demurrer to the petition of plaintiff Supply Company, and the answer and cross-bill of W. B. Slaughter, because neither of such pleadings alleges that the claim urged by said parties for a lien upon the property in controversy as against Dallam county was presented to Dallam county for its allowance or rejection before the suit was filed seeking to foreclose the lien, and to subject said property claimed by Dallam county to the payment of their debts.

We do not think that the provisions of article 1366, Revised Statutes 1911, prohibiting suit against a county unless the claim on which suit is founded shall have first been presented to the commissioners’ court for allowance, have any application to such action as brought by the Supply Company in this case. “The actions of the Supply Company and W. B. Slaughter as against Dal-lam county were not for the purpose of establishing a money demand against the county, but were brought solely for the purpose of binding the county as to the title to the property mortgaged, and therefore it was not necessary for them to present any claim to the commissioners’ court for allowance.” And, besides, Dallam county having asked for affirmative relief, it was not necessary for ’ the Supply Company or Slaughter to present their claims to the commissioners’ court for allowance. Bowie County v. Powell, 66 S. W. 237; Trinity County v. Vickery, 65 Tex. 554. Therefore we overrule the fourth assignment.

We have disposed of all of the assignments, and, finding no such error, if any, in the trial of this case, nor in the judgment rendered, as should require a reversal of the judgment of the court below, it is in all things affirmed.

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

      ¡gusjB'or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAHL et al. v. McPHERSON.
    (No. 6760.)
    (Court of Civil Appeals of Texas. Galveston.
    March 24, 1915.
    On Appellee’s Motion for Rehearing, April 21, 1915. On Appellants’ Motion for Rehearing, May 6, 1915.)
    1. Evidence <&wkey;448 — Written Instruments —Parol Evidence to Explain.
    Where an instrument is ambiguous in some of its expressions, testimony by those who drew it is admissible to aid in its construction.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. &wkey; 448.]
    2. Trial <&wkey;85 — Evidence—Objections.
    Where evidence was in part material, a general objection of immateriality will not warrant its exclusion.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]
    On Appellee’s Motion for Rehearing.
    3. Vendor and Purchaser <s=>352 — Option to Purchase Land — Actions — Instructions.
    Where defendants, who had given plaintiff an option to purchase land, agreed to procure an extension of the contract binding upon the owners of the superior title to the land, a charge that the only question in the case was whether defendants agreed to procure the consent and concurrence of the owners of the superior title, including the holders of vendors’ liens, while possibly not technically correct, is sufficient.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. <5&wkey; 352.]
    4. Vendob and Purchaser <&wkey;352 — Option-Action por Breach — Verdict.
    A verdict in response to the charge that defendant did undertake to procure the consent of the holders of the superior title will warrant a judgment for plaintiff.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. <&wkey;> 352.]
    Appeal from District Court, Harris County; William Masterson, Judge.
    Action by John J. McPherson against C. W. Hahl and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    See, also, 151 S. W. 323.
    L. B. Moody, of Houston, for appellants. Baker, Botts, Parker & Garwood, of Houston, for appellee.
   LANE, J.

This suit was originally instituted by John J. McPherson against C. W. Hahl and P. A. Connable, parties composing the firm of C. W. Hahl & Co., and the Houston National Bank, on the 16th day of March, 1909. The first trial of this cause was before the court without a jury, and judgment was then entered for appellee, McPherson. Prom this judgment, Hahl & Co. appealed to this court. As Judge Reese, in an opinion reported in 133 S. W. 515, reversing the judgment of the trial court, has made a full and complete statement of the case as then presented by the pleadings and facts proven, we will therefore not restate the same further than as may be rendered necessary by an amendment of appellee’s petition filed subsequent to the former appeal.

The court in the opinion referred to did not hold the clause of the contract of February, 1909, the meaning and scope of which was in issue, to be unambiguous, but emphasizes the fact that there were no allegations in the petition that the terms in the agreement, “in the full exercise and enjoyment of the contract and its terms,” bore other than ordinary significance, or that they were understood by the parties in any other sense, or that by mutual mistake the contract failed to express the meaning and intention of the parties, and that if there was anything in the circumstances under which the contract was executed to indicate that the parties understood said contract to bind Hahl & Co. to get such an instrument as would protect appellee against outstanding liens, it was not alleged in the petition, nor shown by the evidence, which showed only the existence and assertion, in a pending suit, of the vendor’s lien and right to rescind and recover the land. It may be that the evidence on the last trial, and upon which ap-pellee in his brief relies to support his interpretation of said contract of February 25, 1909, would put a different view upon the matter. The amended petition upon which the ease was last tried contains the following allegations:

“That at the time this contract was executed neither plaintiff nor his attorneys knew with any accuracy the state of the title to these lands; they had never seen an abstract of the title, and the only information they had with reference thereto was from rumor and from statements made by defendants; that the defendant C. W. Hahl represented that on the day following the execution of the supplemental agreement, heretofore copied in this pleading, he was going to consummate a transaction that would enable him to place the lands in plaintiff’s hands for sale free from any imperfection as to title, and that the title would be in good and satisfactory condition, and that the extension of the contract which he was to procure under this supplemental agreement would be sufficient to protect the plaintiff and his associates in the full exercise and enjoyment of the contract in all its terms. By this expression it was meant and understood that the defendants would procure an extension of the contract binding upon the owners of the superior title to the land whoever they might be, or would exhibit releases of any liens or incum-brances that might be menacing sale or foreclosure of the land and it was' especially understood that the defendants were to procure the concurrence of certain clients of Messrs. Oocke & Cocke, attorneys of San Antonio who held certain liens against the land, the names of these clients not being divulged to the plaintiff or his attorneys at the time of these negotiations; and, since neither plaintiff nor his counsel was familiar with the details of the title or the nature and extent of the imperfection that existed in it. if any, or the nature and extent of the liens that might be against the land subjecting it to sale, these things were not enumerated or set out at length in the contract, but under the assertions of the defendants that all of the objections to the title would be obviated in such way that the sales could go forward without interruption, and that plaintiff and his associates could make sales and deliveries of the land free from objections on account of the title, it was written in the contract of the 23d of February, 1909, that this extension agreement to be procured would be sufficient to fully extend the original contract and protect the said McPherson and Prudential Land Company in the full exercise and enjoyment of the contract and its full terms, which meant, and was so understood by the parties thereto to mean, that defendants were then entering into various negotiations and arrangements, the full nature of which were not disclosed to plaintiff or his counsel and the names of the parties with whom had were not disclosed to the plaintiff or his counsel, but that under these arrangements then going forward and in process of early completion, the title to the lands would not only, be left in good condition and be made acceptable to plaintiff and his counsel and any purchaser that plaintiff might have for the lands, but the title t,o the land would be in fact made good and merchantable.”

As we construe both the opinion of Judge Reese, supra, and an opinion written by Judge Higgins of the Eighth supreme judicial district, reversing the judgment of the lower court on the second appeal of this case, reported in the 151 S. W. 323, neither of them held the clause, “in the full exercise and the enjoyment of the original contract and its terms,” was unambiguous, hut upon the contrary, we think both of them clearly intimate that, under proper allegations supported by proper and sufficient proof, it was a question of fact whether or not such clause would have required Hahl & Co. to obtain from the holders of the vendor’s and other superior liens, agreements whereby appellee, McPherson, would have been fully protected in the exercise and enjoyment of the original contract and its terms, and under the paragraph of appellee’s amended petition above quoted, we think it was admissible to show these facts; the language of said contract above quoted being ambiguous.

Upon the third and last trial, before a jury, from which this appeal is taken, the court gave the following instructions:

“The plaintiff in this case sued upon a written agreement dated the 23d day of February, 1909, by the terms of which the defendants bound themselves to procure the written extension of a former contract between the same parties. By the terms of this writing sued upon, it was agreed that the defendants would procure and deliver to the plaintiff an extension of the former contract in all things fully extending and ratifying the terms of said contract of September 10, 1908, for a period of 90 days from and after March 15, 1909, such extension to be binding upon said Hahl & Co., C. W. Hahl, and F. A. Connable and the owners of said land and to be sufficient to fully extend said contract and protect McPherson and the Prudential Land Company in the full exercise and enjoyment of said contract and its terms. The plaintiff contends that by this writing it was agreed and understood that the defendants were to procure the concurrence in this extension of the owners of the superior title to the lands referred to, that is to say, the concurrence of certain persons holding vendors liens against this land; that it was necessary to the enjoyment of their contract that such concurrence be procured. The defendants deny that they undertook to procure the consent or concurrence in this extension of any persons other than C. W. Hahl, F. A. Connable, and W. J. Candlish which they tendered to plaintiff, and deny that they undertook to procure the concurrence of the owners of the superior title. This is the single and only question in the case for your determination, and your verdict will be in the form of an answer to the following question: ‘Did or did not the defendant O. W. Hahl agree with the plaintiff, acting through his attorneys, Messrs. Pen-Ion and Wharton, on the date above referred to, to procure the consent and concurrence of the owners of the superior title, that is, the outstanding vendor’s lienholders in and to the extension agreement of February 23, 1906?’ Tour answer will be.either that, ‘The defendant, Hahl did agree and undertake to procure the consent of the owners of the superior title,’ or that, ‘The defendant Hahl did not agree and undertake to procure the consent of the owners and holders of the superior title,’ as you may find the facts to be. In this connection you are instructed that the burden of proof is upon the plaintiff to establish the facts necessary to a recovery herein, by a preponderance of the evidence, and if he has failed to do so, you will answer the above special issue in the negative, you being the exclusive judges of the facts proven, of the credibility of the witnesses and of the weight to be attached to their testimony; but you must take the law from the court as herein given, and applying same to the facts so found by you, return your answer in accordance therewith.”

The jury returned a verdict answering the question submitted:

“We, the jury, find that the defendant Hahl did agree and undertake to procure the consent of the owners of the superior title.”

Upon this finding of the jury, judgment was rendered for the plaintiff for the $2,000 in escrow.

The material questions involved upon this appeal are;

First. Whether or not an issue is raised by tlie evidence as to wbat was understood and meant by tbe parties to the contract or agreement of February 23, 1909, by the clause above quoted, the meaning of which, we hold is in dispute.

Second. Was the testimony of Thos. P. Fenlon and O. R. Wharton, appellee’s attorneys who drew the agreement sued upon, and the testiinony of Mr. Cocke of San Antonio, an attorney for one of the lienholders, and the affidavit of appellee, McPherson, admissible over the objection of appellants, and was such testimony relevant or material to any issue.in the cause?

Third. Did the court err in instructing the jury that:

‘The plaintiff contends that by the written agreement sued upon, it was agreed and understood that the defendants were to procure the concurrence, in the extension of the former contract, of the owners of the superior title to the lands referred to, that is to say, the concurrence of certain persons holding liens against said land; that it was necessary to the enjoyment of appellee’s former contract that such concurrence be procured; that the defendants deny that they undertook to procure the consent or concurrence in said extension of any persons other than O. W. Hahl, F. A. Oonnable, and W. J. Gandlish which they tendered to plaintiff, and deny that they undertook to procure the concurrence of the owners of the superior title. This is the single and only question in the case for your determination, and your verdict will he in the form of an answer to the following, question: ‘Did or did not the defendant O. W. Hahl agree with the plaintiff, acting through his attorneys, Fenlon and Wharton, on the date above referred to, to procure the consent and concurrence of the owners of the superior title that is, the outstanding vendor’s lienholders, in and to the extension agreement of February 23, 1909 ?’ ”

Answering these questions in the order here stated:

(1) We think the testimony of the witness named was sufficient to raise the issue of whether or not it was contemplated and understood by the parties that Hahl & Co. were required to obtain proper agreements or releases from tbe holders of the superior liens by the clause in the contract of February 23, 1909, that the extension contract to be secured by Hahl & Go. under the provision of said agreement of February 23d, should be sufficient to protect McPherson in the full exercise and enjoyment of the original contract and its terms.

(2) That the admission of such testimony was not error. This testimony tends to shed light upon the whole transaction between the parties, and thus enable the jury to arrive at the true purpose and intent of the parties in inserting the clause in dispute'in the contract of February 23d. There may have been, and we think there were, parts of the affidavit of McPherson introduced in evidence which were immaterial and did not tend to prove any issue in the. cause, hut as some portions of said affidavit were admissible to explain the transaction in question, the general objection of appellants to the whole could not have been properly sustained by tbe trial court.

(3) The charge of the court complained of in appellants’ seventh assignment of error-was erroneous in that it instructed the jury that:

“The single and only question in the case for your determination and your verdict will be in the form of an answer to the following question : ‘Did or did not the defendant O. W. Hahl agree with plaintiff, * * * on the date above referred to [February 23, 1909], to procure the consent and concurrence of the owners of the superior title, that is, the outstanding vendor’s lienholders, in and to the extension agreement of February 23, 1909?’ ”

—without requiring the jury to find from the written agreement and the evidence as to what was intended and understood by tbe parties by the clause in the contract, “in the full exercise and enjoyment of said contract and its terms.” We think the jury should have been instructed to find what, under all the evidence, inside and outside the written agreement, was the intention of the parties in inserting such clause in said contract.

In the case of Holman v. Oil Co., 152 S. W. 885, at page 891, Judge Reese, in rendering the opinion, says:

“We think that the evidence presents a mixed question of law and facts which should have been referred to the jury for its determination under appropriate instructions; the issue being what, under all the evidence, inside and outside the deed, was Holman’s intention as to whafi land was conveyed?” (citing Kingston v. Pickins, 46 Tex. 99; Brown v. Chambers, 63 Tex. 131; Arambula v. Sullivan, 80 Tex. 618, 16 S. W. 436).

We think that appellants’ eighth assignment oí error, in so far as it insists that the verdict of the jury is not responsive to the sole issue in the cause, and therefore insufficient to support the judgment entered, should he sustained. The verdict of the jury:

“We, the jury, find that the defendant Hahl did agree and undertake to procure the consent of the owners of the superior title”

—is no answer to the question as to what the parties intended and understood by the use of the clause “in the full exercise and enjoyment of the contract and its terms,” inserted in the contract of February 23,1909. We think the jury should have been required to find from the language of said contract, and the evidence admitted with reference to what was said and agreed to by the parties at the very time said contract was made. From the answer of the jury, shown by their verdict, it might be inferred that they intended to find that at some time shortly before or shortly after said contract was executed Hahl did agree and undertake to procure the consent of the owners of the superior title to the extension contract called for by said contract of February 23, 1909. If said verdict may be so interpreted it is not sufficient to support the judgment entered. No'part of an agreement made shortly after the contract was executed can be shown and be considered a part thereof.

For the errors mentioned, we think the judgment of the court below should be reversed and the cause remanded, and it is so ordered.

Reversed and remanded.

On Appellee’s Motion for Rehearing.

In appellee’s motion for rehearing counsel has spent much unnecessary labor in an effort to convince this court that it erred in reversing the judgment of the lower court, because of what it conceived to be an indefinite or erroneous charge. Perhaps we were unfortunate in the use of the language in the original opinion which led counsel to such conclusion. In the original opinion, this language is used:

“We think that appellant’s eighth assignment of error, in so far as it insists that the verdict of the jury is not responsive to the sole issue in the cause, and therefore insufficient to support the judgment entered, should be sustained. The verdict of the jury, ‘We, the jury, find that the defendant Hahl did agree and undertake to procure the consent of the owners of the superior title,’ is no answer to the question as to what the parties intended and understood by the use of the clause, ‘in the full exercise and enjoyment of the contract and its terms,’ inserted in the contract of February 23, 1909. * * * From the answer of the jury, shown by their verdict, it might be inferred that they intended to find that at some time shortly before or shortly after said contract was executed Hahl did agree and undertake to procure the consent of the owners of the superior title to the extension contract, called for by said contract of February 23, 1909. If said verdict may be so understood, it is not sufficient to support the judgment entered. No part of an agreement made shortly after the contract was executed can be shown and be considered as a part thereof.”

Appellant’s eighth assignment in effect insists that the verdict of the jury above set out did not answer the sole question at issue, and therefore not sufficient basis for the judgment rendered. While it is true that we did in the original opinioh state that the charge of the court fully set out in the original opinion, submitting to the jury the only issue in the cause, was technically incorrect, we did not intend to present such technical objection as a cause for reversal, but referred to said, charge only for the purpose of pointing out what we then conceived to be the insufficiency of or vice in the verdict of the jury. However, after a more careful examination of the charge referred to as a whole, we have reached the conclusion that, while it does not submit the sole question at issue clearly, yet in view of the rule which requires us to solve the doubt in favor of the judgment of the trial court, we conclude that it did so sufficiently, and that when the verdict of the jury complained of by appellants in their eighth assignment is considered under the rule above mentioned, in connection with the charge as a whole, it sufficiently answers the only question at issue, and was sufficient upon which to base the judgment rendered. We, therefore. conclude that we were in error in reversing the judgment of the lower court by our original opinion, and we now here sustain appellee’s motion for rehearing, set aside our original judgment rendered herein on the 18th day of March, 1915, and order that the judgment of the trial court be, in all things, affirmed.

Affirmed.

On Appellants’ Motion for Rehearing.

In appellants’ motion for rehearing request is made that this court set 'out in full the statement of the case as made by Judge Reese in an opinion rendered upon a former appeal of this case reported in 133 S. W. 515, referred to and adopted in our original opinion in this ease as a correct statement of the case. In view of the holding of the Supreme Court of this state in the case of St. Louis Southwestern Railway Co. of Texas v. Alexander, 172 S. W. 709, wherein it is held that the Supreme Court will not entertain a case where the Court of Civil Appeals in its opinion makes no statement of the case other than to refer to a statement made by a Court of Civil Appeals of the case upon a former appeal of such case, by reference to the style and number of the former opinion and the volume and page where it is to be found, we have granted appellants’ said request and here set out the statement so made by Judge Reese, and adopt the same, together with the additional statement set out in the original opinion, as a correct statement o£ the case on this appeal, to wit:

“On September 10, 1908, O. W. Hahl & Co., a firm composed of O. W. Hahl and E. A. Con-nable, entered into a written contract with J. J. McPherson, by the terms of which McPherson was granted an option to purchase, on certain terms and for a limited time, all or portions of a large body of land in Bee county which Hahl & Co. had purchased of R. E. Nutt in 1905 and had afterwards, in 1908, sold to W. J. Candlish. After ■ this sale Candlish had, by written contract, appointed Hahl & Co. exclusive agents to sell the property. Under the terms of the contract between Hahl & Co. and McPherson, McPherson was to advertise the land at his own expense, and he did so, expending on this account $3,000. On February 23, 1909, a written contract was entered into between Plahl & Co. and McPherson, by the terms of which Hahl & Co. bound themselves to procure and deliver to McPherson by March 5th an extension of the contract of September 10, 1908; such extension ‘to be binding upon Hahl & Co. and F. A. Con-nable and the owners of the land, and to be sufficient to fully extend said contract and protect the said McPherson in the full exercise and enjoyment of said contract and its terms.’ Hahl & Co. deposited this agreement with the South Texas National Bank, and with it the sum of $2,000, which, as provided in said written agreement last aforesaid, represented a portion of the expenses incurred by McPherson in advertising the land under the original contract, and which was to be paid to McPherson upon the failure of Hahl & Co. to deliver, within the time stated, such extension. At or before the expii'ation of the time limited, Hahl & Co. delivered to McPherson an instrument of writing signed by themselves and W. J. Candlish which they claimed to be a compliance with their contract. McPherson did not so consider it, and, claiming that Hahl & Co. had failed to comply with their agreement in the contract of February 23, 1909, brought this suit against Hahl & Co. and the South Texas National Bank to recover the $2,000, with interest from March 5, 1909. To the action as against it the bank pleaded that it was a stakeholder merely, and ready to abide the judgment of the court in the premises. Hahl & Co. demurred generally, pleaded the general issue, and specially that it ha'd complied with its contract of February 23d. * * *
“As the case is presented to us, we must confine ourselves to the evidence set out in the agreed statement of evidence referred to. The material facts so shown are, in substance, as follows: The land referred to is part of the R. E. Nutt ranch in Bee county, which was sold and conveyed by Nutt to Hahl & Co. in 1905, and in 1908 conveyed by Hahl & Co. to W. J. Candlish, who, by writing executed by him, appointed Hahl & Co. his exclusive agents to sell the same. On September 10, 1908, Hahl & Co. entered into a written contract with McPherson, acting for himself and others, with regard to a part of this land. This agreement is very long, and contains many complicated provisions; but the substance of it is that Hahl & Co. give to McPherson and his association an option to buy the land, or parts thereof, upon certain conditions and for a certain price. McPherson was to have four months from date of the contract to purchase and make payment of a certain 640 acres. If they did so they were to have two months longer to purchase an additional 1,000 acres. If they did this, they were to have an additional two months in which to purchase a second 1,000 acres, and so on until they had purchased the whole of the land. McPherson was to advertise the land, which he did, at his own expense, expending therefor $3,000. Upon compliance with the terms of the contract Hahl & Co. were to execute or have executed general warranty deeds. We only state the parts of this long and intricate contract necessary to an understanding of the questions presented on this appeal. On February 23, 1909, there being a dispute as to whether said ontion had expired, I-Iahl & Co. and McPherson entered into a written contract, by the terms of which Hahl & Co. agreed to procure and to deliver to McPherson in 10 days (or March 5th) a written extension of the contract referred to above, for 90 days, in all respects extending and ratifying said contract, ‘said extension to be binding upon said Hahl & Co. and C. W. Hahl and F. A. Connable and the owners of said land, and to be sufficient to fully extend said contract and protect the said McPherson in the full exercise and enjoyment of said contract and its terms.’ It was agreed, as set out in said contract, that Hahl & Co. should deposit in the South Texas National Bank $2,000 representing a part of the expense incurred by McPherson in advertising the land, as provided in the original contract; this amount to be paid to McPherson’s attorney for him if Hahl & Co. failed to deliver the extension contract referred to by March 5th. Within the time limited Hahl & Co. procured and offered to McPherson as a compliance with their contract an instrument in writing extending the. original contract for 90 days from March 5, 1909, signed by Hahl & Co. and W. J. Cand-lish. This instrument McPherson refused to accept as a compliance with the contract.
“At the time this agreement to procure the extension contract was entered into, and at the date of the original contract, Hahl & Co. were not the owners of the land; but, having bought it from Nutt, they had sold it to Candlish. The land was heavily incumbered with vendor’s and judgment liens for large amounts, as hereafter shown. The original purchase-money notes given by Hahl & Co. to Nutt amounted to about $40,000, secured by the express vendor’s lien in the land, were outstanding in the hands of one McCampbell, who had instituted suit thereon and to enforce the vendor’s lien, and on February 15th by amended petition had set up the superior title, and sought to recover the land. Afterwards, on July 1, 1900, judgment was rendered in this case (as stated in the court’s findings) foreclosing the liens and for title and possession, including all the lands embraced in the contract with McPherson. In addition to this, there were several judgment liens for large amounts against Hahl and Con-nable ; but all of these judgments were fully released as to this land on February 23, 1909, except one for $17,500 in favor of E. M. Paul-son, which the court’s findings state has been fully released, without saying when. The findings of fact of the trial court, in addition to the above, embrace many other facts evidently based upon the excluded evidence, and which, as they find no support in the evidence which we can consider, are not adopted by us. The issue presented is whether the instrument extending the original contract, signed only by Hahl & Co. and W. J. Candlish, is a compliance with the agreement of February 23d, and this depends upon whether it is binding- upon C. W. Hahl and F. A. Connable, and Hahl & Co., and upon the owners of the land, and sufficient to protect McPherson in the full exercise and enjoyment of the original contract and its terms.”

All other assignments in appellants’ motion for rehearing are overruled, and, with the additions here made, the original opinion, as reformed by us upon hearing of ap-pellee’s motion for rehearing, is adhered to.
      <&wkey;>For otter oases see same topic and ICBY-NUMBER in all Key-Numbered Digests and Indexes