author: TALIAFERRO, J.

text:
    BYRD IRR. CO. v. SMYTH.
    (Court of Civil Appeals of Texas. San Antonio.
    April 2, 1913.
    On Motion for Rehearing, April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. Tkial (§ 25) — -Right to Open and Close.
    Where defendant admitted all the allegations- of plaintiff in a proceeding to condemn land for an irrigation project except an issue as to the amount of land included in the field notes of the land surveyed for condemnation, which was rendered immaterial by subsequent agreement of the parties, the court properly granted to defendant the right to open and close under Rev. St. 1895, arts. 1297-1299, and District Court Rule 31 (142 S. W. xx), providing that the right to open and close belongs to the party who has the burden of proof on the whole case under the pleadings, and that if, after the issues of fact are settled and before the trial, defendant shall admit that plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good defense, which may be established at the trial, defendant may be given the right to open and close.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44r-75; Dec. Dig. § 25.]
    2. Appeal and Error (§ 971) — Review-Matters oe Discretion — Qualification of Witness.
    What is sufficient to qualify a witness to give his opinion concerning the value of land is largely within the discretion of the trial court, the exercise of which will not be disturbed on appeal unless clearly shown to have been abused.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. § 971.í

      3. Evidence (§ 474) — 'Witnesses—'Value of Land — Qualification.
    A witness as to the value of land sought to be condemned is not usually within the defini-tion of an expert, and is qualified to give his opinion if he possesses sufficient knowledge to enable him to arrive at an intelligent opinion of the value of the land in question, based on familiarity with the land, a knowledge of its quality and uses, prices of other land of a similar nature in the same section of country, or other pertinent facts which may satisfy the trial court that he is competent to testify to the value as a fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    4. Evidence (§ 474) — Value of Land — Opinion — Qualification of Witness.
    Where a witness testified that he was a civil engineer, had lived in the vicinity of the land in question for seven years, had been over it a number of times, knew its character, had platted it, and knew its market value, and on cross-examination stated that he had known of several sales of land in the vicinity, though most of which was several miles distant, and in a general way described the quality of the land in some other tracts, the court properly permitted him to give his opinion as to the value of the land.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    5. Evidence (§ 474) — Value — Witness — Qualification.
    When a witness has stated that he knows the market value of land sought to be condemned, he has prima facie qualified himself to sta'te such value.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    6. Appeal and Error (§ 882) — Right to Allege Error.
    Appellant cannot complain of the introduction of a certain kind of evidence to show damages in a condemnation proceeding, where he himself introduced the same character of evidence by his own witnesses.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    7. Eminent Domain (§ 222) — Land Taken— Damages.
    In a proceeding to condemn land, an instruction that the jury should consider the damages, if any, to lands situated outside the limits of the land sought to be condemned by reason of cutting such lands off from water if the jury found the improvement would do so, and by reason of cutting the remaining land up into irregular shapes, and inconvenience, if any, in defendant’s use of the same, and find for defendant the difference in the market value of the land, if any, before and after the taking, which damage, if any, the jury should find in addition to the value of the land taken for the reservoir, was erroneous as permitting a double recovery in authorizing the jury to believe that they were to add such additional damage to the difference in the market value before and after the condemnation.
    [Ed. Note — For other cases, see Eminent Domain, Cent. Dig. §§ 562-567 ; Dec. Dig. § 222.]
    8. Eminent Domain (§ 190) — Pleading.
    In a proceeding to condemn land for an irrigation project, a document filed by petitioner, tendering defendant the use of water from the proposed reservoir on stated conditions, in mitigation of damages was not a pleading and was properly stricken.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 508; Dec. Dig. § 190.]
    9. Trial (§ 208) — Exclusion of Evidence from Consideration.
    In condemnation proceedings, a map made by a surveyor to estimate the amount of rough land in the reservoir tract sought to be condemned, but which the witness admitted was not made by actual survey and was only an estimate, though admitted in evidence without objection, should have been excluded on a request to charge that the jury should not consider it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 504; Dec. Dig. § 208.]
    On Motion for Rehearing.
    10. Appeal and Error (§ 1051) — Exclusion of Evidence — Prejudice.
    The wrongful admission of a rough map of property sought to be condemned and the refusal of a request that the jury should not consider it was not such an error as would justify a reversal, where the portion of the map objected to was only cumulative.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    Appeal from District Court, Uvalde County.
    Action by the Byrd Irrigation Company against J. G. Smyth. From a judgment awarding damages for the condemnation of certain land for an irrigation project, plaintiff appeals.
    Affirmed on rehearing.
    Mangum & Townsend and Mason Williams, all of San Antonio, and Love & Williams and Jno. W. Hill, all of Uvalde, for appellant. Martin & Martin and L. Old, all of Uvalde, and T. M. West, of San Antonio, for appellee.

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

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

   TALIAFERRO, J.

This was an action by the Byrd Irrigation Company, a corporation, to condemn a tract of land in Uvalde county belonging to J. G. Smyth, appellee, for the purpose of constructing dams, reservoirs, and canals to be used for irrigation purposes under the powers conferred upon it by its charter under chapter 2, title ‘60, of the Revised Statutes. A commission was appointed by the county court, in accordance with the law, to fix the amount of land and assess the damages. Report was duly made by the commission, and from that report appeal was taken to the county court. The case was there tried before a jury, who rendered a verdict fixing the amount of land at 6,081.41 acres, the value of the land at $20 per acre, and the damage to the balance of appellee’s land which would result from the construction of the, reservoir, at $2 per acre on 9,918.59 acres, or a total of $141,465.38. A remittitur of $2,000 was entered in the lower court, and a judgment entered for $139,-465.38.

Appellant’s first and second assignments of error complain because the court permitted the appellee to open and close in adducing his evidence and in the argument to the ■ jury. The right to open and close in the trial of a cause is regulated by statute, and, briefly stated, belongs to the party who has the burden of proof on the whole ease under the pleadings. R. S. 1895, arts. 1297-1299. Upon tile articles of the statutes is based District Court Rule 31 (142 S. W. xx), which provides that the plaintiff! shall have the right to open and close unless the burden of the whole ease rests upon the defendant, or unless all the defendants, if there be more than one, “shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial.” It is doubtful whether the admission contained in the motion to open and conclude, filed by appellee in this case, came fully within the terms of rule 31. But if it was deficient, the deficiency was only in reference to the issue of the amount of land included in the field notes of the land surveyed for condemnation, and this was rendered immaterial by the fact that the parties agreed upon this question and no burden of proof was placed upon either party. Assignments 1 and 2 are overruled.

Appellant’s third assignment of error complains of the admission of the evidence of W. M. Jourdan, upon the value of the land to be taken for the reservoir, because it is contended that the witness was not shown to have qualified to testify as to the value of the land.

What is sufficient to show the qualification of a witness to give his opinion concerning the value of land is very largely in the discretion of the trial court, and its conclusion upon such a matter will not be disturbed by the appellate court unless it be clearly shown that he has abused his discretion. G., C. & S. F. Ry. Co. v. Norfleet, 78 Tex. 321, 14 S. W. 703; Railway Co. v. Houghton, 68 S. W. 718; 17 Cyc. 31; Telephone & Telegraph Co. v. Forke, 2 Willson, Civ. Cas. Ct. App. 365.

Such a witness does not necessarily, nor does he usually, come within the definition of an expert, and the knowledge which he should possess is such as enables him to arrive at an intelligent opinion of the value of the land in question, based upon a familiarity with the land, a knowledge of its quality and uses, the price of other land of a similar nature in the same section of country, or other pertinent facts which may satisfy the trial court that he is competent to testify to the value of the land as a fact. I. & G. N. Ry. Co. v. Klaus, 64 Tex. 294; Railway Co. v. Hepner, 83 Tex. 140, 18 S. W. 441; Railway v. Ruby, 80 Tex. 172, 15 S. W. 1040; Railway v. Fagan, 72 Tex. 130, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776. The necessity, upon which is based this exception to the rule that permits only witnesses specially skilled as experts in the matters about which they are called to testify to give their opinion as evidence, was the impossibility, at times, of presenting clearly to the mind of the court, or jury, the knowledge possessed by such witness, by merely stating the facts upon which the opinion was based. G., C. & S. F. Ry. Co. v. John, 9 Tex. Civ. App. 342, 29 S. W. 558, and cases cited. The knowledge that is thus contemplated is such an understanding and experience as to enable the witness to give to the jury information not naturally possessed by them in a more exact manner than would be conveyed to them by a mere statement of the facts. Cooper v. State, 23 Tex. 331; Snodgrass v. Chicago, 152 Ill. 600, 38 N. E. 790; Lyman v. Boston, 164 Mass. 99, 41 N. E. 127; Railway v. Blake, 116 Ill. 163, 4 N. E. 488; Railway v. Harmoson, 22 S. W. 764.

In this case the court did not abuse its discretion in admitting the evidence of Jourdan. Upon direct examination he testified that he was a civil engineer; that he had lived in the vicinity of the land for seven years; that he had been over it a number of times and knew the character of the land; that he had platted the land; and that he knew its market value. On cross-examination he said that he was not a farmer, but that he had a knowledge of lands and had long been a surveyor of lands. He stated that he knew of several sales of land in the vicinity, most of which was several miles distant. He did not, by express terms, make a comparison as to the kind and quality of the land in question with the lands said to have been sold, nor does it appear that appellant examined him upon this point. But he did in a general way describe the quality of the 6,081.41 acres and also of some of the other tracts, and by an examination of his evidence it will be seen that the land to be condemned was of a better quality than the other tracts. In the measure of comparative value of lands, what is sufficiently near or what is too remote to form a criterion is a question also within the sound discretion of the trial court, and a liberal latitude for such discretion must be allowed by the higher courts. Amory v. Melrose, 162 Mass. 556, 39 N. E. 276; Phillips v. Marblehead, 148 Mass. 326, 19 N. E. 547.

The third assignment of error is overruled.

What has been said also disposes of assignments Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 20, all of which object to the admission of evidence .as to the value of the property to be condemned. Some of these witnesses showed but a meager qualification to give an opinion as to value, but most of. them testified that they knew the market value and thereupon gave their opinion. When a witness has stated that he knows the market value of the property in question, he has prima facie qualified himself to state such value. The court should, if requested, permit a full and complete examination of such witness by opposing epunsel to test the source and accuracy of such knowledge before admitting the.evidence. When the evidence has been admitted by the court, the quality and weight of the evidence is for the jury; the discretion of the court, only, in admitting the evidence, is a question of law for this court to pass upon. M. P. R. R. Co. v. Fagan, 72 Tex. 130, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776; M., K. & T. Ry. Co. v. Woods, 31 S. W. 237; C., R. I. & G. Ry. Co. v. Clark, 129 S. W. 186; Cluck v. Railway, 34 Tex. Civ. App. 452, 79 S. W. 80; Railway v. Gluek, 45 Minn. 463, 48 N. W. 194; Goodwine v. Evans, 134 Ind. 262, 33 N. E. 1031; Harris v. Schuttler, 24 S. W. 989; Elevator Co. v. Railway Co. (Mo.) 33 S. W. 926; Moore v. Railway Co., 78 Wis. 120, 47 N. W. 273.

Appellant’s eighteenth and nineteenth assignments of error complain of the admission of evidence as to the’ value of that portion of appellee’s land outside of the proposed reservoir, upon the ground that such is the wrong measure of damages. Appellant is in no position to complain of this action of the court because it, by several of its own witnesses, introduced evidence to the same effect. Its reason for doing so is revealed only by a qualification of its eighteenth bill of exception, wherein the court states that the theory of the measure of damages of both parties at the trial was the same, and this evidence was presented by appellant upon that theory. Be that as it may, the appellant cannot make proof of a fact itself and then complain because appellee makes like proof.

There is no merit in appellant’s twenty- . first assignment of error, and it is overruled.

By its twenty-second assignment of error the appellant complains of the charge given by the court to the jury upon the measure of damages to that portion of appellee’s land not included within the portion condemned, as follows: “You will also consider the damages, if any, to the lands situated in the Dawson and Turkey Creek pastures, outside of the limits of the land sought to be condemned, by reason of cutting said lands off from water, if you find it does so, and by reason of cutting said remaining lands up in irregular shapes, if you find such to be the case, and the inconvenience, if any, in defendant’s use of same, and you will find for the defendant, J. G. Smyth, the difference in the market value of the said land, if any, before the taking and after the taking, which said damage, if any, you will find in addition to the value of the land taken for the reservoir.”

The grounds of appellant’s objection to this charge are that it- permits a double recovery, that it unduly emphasizes parts of the testimony, and that it instructs the jury that they may, if one state of facts is proven, determine therefrom the existence of other facts which are in issue. The charge is clearly subject to the first of the objections urged. The measure of damages in such ease is the difference between the market value of the land immediately before and its value immediately after the act causing its injury. Railway v. Hogsett, 67 Tex. 685, 4 S. W. 365; Railway v. Schofield, 72 Tex. 496, 10 S. W. 575; Railway v. Evans, 47 S. W. 280. If this charge had so instructed the jury, and had then informed them that in determining the measure of damages they could consider the surrounding results and effects of cutting the reservoir tract out of the land, such as dividing the land into ’irregular shapes, cutting same off from the water, and the inconvenience resulting therefrom, if they found that such effect resulted therefrom, it would have been in accord with the authorities cited by appellee and holding that the items of damage which the evidence tends to prove may be specifically referred to in the charge. All of the decisions on this point presuppose a correct instruction as to the measure of damages as a basis for the enumeration of the elements of which the damages may be composed. Railway v. Elliott, 148 S. W. 1125; Railway v. Boothe, 126 S. W. 701; Railway v. Hughes, 73 S. W. 976; City v. Coffin, 40 Tex. Civ. App. 54, 88 S. W. 502. In this case the charge is so worded as to necessarily lead the jury to believe that appellee was entitled to recover, not upon the difference in the market value of the land as ascertained by considering the matters named, but upon each specification of damage separately in addition to the difference in the market value. That the jury believed such to be the meaning of the court, and based their verdict upon that belief, is made very evident by the fact that they found the damage to the land outside of the reservoir tract to be nearly half the land’s full market value. The evidence showed this land to be worth $4.50 per acre; the jury fixed the damage thereto at $2 per acre.

The twenty-second assignment of error is sustained.

What has been said renders it unnecessary to pass upon assignments Nos. 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, and 35.

The court did not err in striking out the so-called “pleading” of appellant which tendered appellee the use of water from the proposed reservoir, upon stated conditions, in mitigation of damages. Such a document could not by any construction be called a pleading. The twenty-seventh assignment is therefore overruled.

The court should have instructed the jury that they could not consider the map made by Jourdan to estimate the amount of the rough land in the reservoir tract; Jourdan admitted in his testimony that his map was not made by actual survey and was only an estimate. As such it should not have been admitted in evidence, and the fact that appellant allowed the map to be introduced in evidence without objection did not deprive it of the privilege of having the jury charged, upon request, as to the extent to which it could be considered in making up their verdict. •

The twenty-eighth assignment is sustained.

Por the errors indicated, the judgment of the lower court is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee proposes to cure the defect in the judgment in this case by remitting all of the amount given to him for' damages to the land outside the reservoir tract in the sum of $17,837.18 and the interest accrued on that sum. Such a remittitur fully cures the vice in the judgment with reference to that portion of the case.

We adhere to our opinion that the court erred in refusing appellant’s special charge as set out in its twenty-eighth assignment of error. But the portion of the map objected to was only in the nature of cumulative evidence, and the error is not of such a nature as to justify the reversal of the cause under Courts of Civil Appeals Rule 62a (149 S. W. x). Under the former aspect of the case it was material to point out this error to guide the court in another trial; but as the ease, as now presented, will be affirmed, that becomes unnecessary.

Motion for rehearing is granted, and, the remittitur having been entered,- the judgment of the lower court is reformed and affirmed for the sum of $121,628.20, the value of the land included in the reservoir tract with interest according to the court’s decree. Ap-pellee will pay costs of this appeal.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    DENTON v. ENGLISH.
    (Court of Civil Appeals of Texas. San Antonio.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. TRIAL (§ 420) — DIRECTION of Verdict— Waxvee of Eekok.
    Where appellant did not stand on his motion for an instructed verdict, but after it was overruled introduced testimony, there was no merit in his assignment of error in overruling such motion.
    i[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.]
    2. Trial (§ 253) — Instructions—Ignoring Issues.
    In trespass to try title, in which plaintiff attacked the boundary agreement relied upon by defendant on the ground of fraud, and the testimony on that issue was conflicting, the failure to submit the issue of fraud by defendant in obtaining the agreement from plaintiff was error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    3. Boundaries (§ 46) — 'Validity of Agreement — Mistake.
    Where the means of information were equally open to both parties to a boundary agreement, a mistake as to the true location of the line, as shown by an approved survey, was not sufficient to invalidate the agreement, unless one of the parties knew the true line and thereby gained an advantage over the other.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.]
    4.Boundaries (§ 46) — Validity of Agreement — Fraud.
    Where one of the parties to a boundary agreement, who knew about a survey fixing the true line, concealed that fact from the other and thereby induced him to sign a boundary agreement to his disadvantage, the action of the first party constituted such fraud as would invalidate the agreement since, while the law favors agreements as to boundaries when fairly made on equal terms, it condemns fraud in obtaining such agreements.
    [Ed. Note. — For other cases, see Cent. Dig. §§ 212-226, 249-251; Boundaries, Dec. Dig. 46.]
    Appeal from District Court, Dimmit County; J. F. Mullally, Judge.
    Action by Ed English against G. Denton. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    W. B. Davis, of Crystal City, and Jno. M. Rowland and R. P. Ingram, both .of San Antonio, for appellant. Vandervoort & Johnson, of Carrizo Springs, and N. A. Rector, of Austin, for appellee.

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

   FLY, C. J.

This is a suit instituted by appellee against appellant to recover certain parts of surveys 39, 46, and 51, in block 6, International & Great Northern Railway Company lands, in Dimmit county. Appellant, in addition to his plea of not guilty, pleaded an agreement as to the boundary line between his lands and those of appellee, whereby the land sued for was acknowledged to be appellant’s land. In a supplemental petition appellee attacked the boundary agreement on the ground of fraud and mutual mistake'and asked that it be vacated, annulled, and set aside. The cause was submitted to a jury and resulted in a verdict and judgment for appellee.

The controversy in this case is over the location of the east line of appellee’s surveys 39, 46, and 51; appellant claiming the boundary to be marked by appellee’s fence under a written agreement fixing .it there, and ap-pellee claiming that the agreement was obtained by fraud or mutual mistake, and that the true east boundary line is 565 varas at the north and 475 varas at the south, east of the fence which was agreed upon as the boundary between sections 40, 45, and 52 on the east and 39, 46, and 51 on the west. The evidence fixed the true boundary of appel-lee’s land at from 475 to 565 varas farther east than the place occupied by his fence. By the agreement as to boundary, appellant obtained more than 500 acres of land from appellee which belonged to him.

The agreement as to boundary was signed by appellant, appellee, W. H. Warner, and J. E. Odiorne; appellee and Odiorne stating that they joined in the boundary agreement on account of their interest as his lienhold-ers. It appeared from the evidence that ap-pellee sold sections 39, 46, and 51, with other lands, to one Townsend for $98,000, of which sum about $85,000 was evidenced by purchase-money notes secured by a vendor’s lien. Townsend sold the land to Warner, reciting the fact of the lien for purchase money held by appellee. Warner never resided in Texas, but was a citizen of Ohio. Warner and Townsend failed to pay off the notes, and Warner conveyed the land to appellee. Prior to the last-named conveyance to ap-pellee the boundary agreement was made. It was really made between appellant and appellee, as Warner acted only on advice from appellee, who had not parted with the legal title to the land. Warner owned other lands, concerning which the boundary agreement was made, on which Odiorne had a lien, and Warner still owns those lands. Upholding the boundary agreement would give appellant over 500 acres of land off appellee’s land, and over 300 acres off Warner’s land, and he lost to Warner about 200 acres of land; that is, appellant would obtain over 600 acres of land that did not belong to him. Warner has not sought to rescind his agreement, and, even with a rescission of the agreement so far as appellee is concerned, appellant has still obtained over 100 acres of land that did not belong to him. He has not made any improvements on the strip of land claimed by him, but is in the same position that he was when he obtained the boundary agreement from ap-pellee.

The first assignment is that the court erred in refusing to instruct a verdict for appellant upon his motion made at the conclusion of appellee’s testimony. Appellant did not stand upon his motion, but proceeded to introduce testimony after it was overruled, and consequently there is no merit in his contention. Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007; Goggan v. Goggan, 146 S. W. 968. The first assignment of error should therefore be overruled.

At the conclusion of all the testimony, appellant again moved the court to instruct the jury to return a verdict for appellant, and the refusal so to do is made the subject of the second assignment of error. If the matter was brought to the attention of the court in the motion for new trial, the brief fails to state it. However, we have considered it. The first proposition is that appellee, in order to cancel and nullify the boundary agreement, should restore $10 paid to Warner and the lands lost by appellant and retained by Warner. The $10 consideration was not shown to have been paid to Warner, and he is out over 100 acres of land in his deal with appellant. The latter is in no position to demand restitution from Warner, but, if the agreement be annulled, owes him over 100 acres of land, if his land, now held by him, be severed from that conveyed by him to appellee; and, if all of it is taken together, appellant owes Warner and appel-lee about 634 acres of land. Appellant has lost no land, but has gained over 100 acres after deducting the amount recovered by ap-pellee. Appellee acted for Warner, as well as himself, in the boundary agreement, but Warner has not seen fit to join in the suit, and appellant has not made him a party, and appellant has no cause to complain if Warner permits him to keep 100 acres of the land. No one would be hurt but Warner.

The evidence showed that at the time the boundary agreement was made appellant knew that what was known as the Leckie survey had been made, and knew that the east line of appellee’s surveys had been placed east of the fence line of appellee. After gaining that knowledge, appellant pushed the boundary agreement with English. Appellant admitted that he knew about the Leckie survey and that it would move the east line of appellee east of his fence, and knew it would move Warner’s east line to a point further east, and stated, “Nor that reason I saw Mr. English and showed him a blue print, showing the two lines.” That blue print was one made for appellant. Leckie had been appointed to make a survey of the land at the instance of appellant. The survey of Leckie was shown by the evidence of the county surveyor, Barker, to be probably correct, except in regard to some distances which in a subsequent survey were corrected by the county surveyor. Leckie’s survey was made from Cathedral Rock, a noted natural monument in the vicinity, and his survey was approved by the General Land Office. The county surveyor testified that he and Leckie followed the footsteps of the original surveyor. He stated: “According to my survey I did not move the survey lines at all, but found the fences off the lines from where the original surveyor had located the lines. * * * The Leckie survey was made to the calls in the original field notes. * * * Cathedral Rock was distanced a certain direction and a given number of varas from the corners of the survey, and so I found where the point ought to be and adjusted by calculation the variation that Cathedral Rock would be.”

Appellant stated that he knew that Leckie had made a survey, which is quite natural in view of the fact that he procured his appointment to make the survey, and, while he said that he had not seen Leckie’s field notes, it is evident that his attorney, to whom he said he left all those matters, had seen the field notes and advised him about them. He said: “I knew there had been a survey, and I was advised that according to the Leckie survey the eastern boundary lines of surveys 51, 46, and 39 were pushed east of the fence lines. * * * As I understood the Leckie survey, its effect was to move the various surveys north and east of the locations that they had been previously understood to occupy.” After he had ascertained the facts as to the Leckie survey, which he knew was authoritative and probably correct, he says: ‘‘My attorney advised me that I should get Mr. English to sign the boundary agreement in order to make it binding on Mr. English.”

Appellee testified that appellant told him that the fence was on the true line and that he did not know that his east line had been located east of the fence. He denied that appellant had showed him a blue print of Leckie’s survey, and said he had never heard of Leckie’s survey. He stated that no blue prints of any surveys were .exhibited to him by appellant. That testimony was contradicted by appellant, and an issue was thereby raised as to whether appellant was in possession of the facts made known by Leckie’s survey as to the location of the boundary line and concealed it from appellee. That issue was not submitted to the jury, but it was tried on an issue not raised by the pleadings or evidence.

The cause as submitted by the court, in the general charge, made the case turn on the knowledge of appellee as to the true line between him hnd appellant The question of fraud, which was made the ground of recovery in the pleadings, was not presented by the general charge. The same theory as to a lack of knowledge on the part of appellee was presented by a special charge requested by appellee and given by the court. Although appellee may not have known that there was any confusion or doubt as to the location of his east line, and did not know that his fence was not the true line, that would not militate against the written boundary agreement, unless appellant knew about the true location of the line and thereby gained an advantage over him. Even mutual mistake would not be sufficient to justify the rescission of the boundary contract. As said by the Supreme Court in Hoxey v. Clay, 20 Tex. 582: “Where the means of information are equally open to both parties, and where each is presumed to exercise his own skill, diligence, and judgment, in regard to all extrinsic circumstances, equity will not relieve. In like manner, * * * where the fact is doubtful from its own nature, if the parties have acted with entire good faith, * * * a court of equity will not interpose to afford relief on the ground of a mistake of fact.”

In the case of Cooper v. Austin, 58 Tex. 494, the trial judge instructed the jury that, though the agreement had been made and acted oh, yet it would not be binding on the complaining party if, at the time he agreed, he thought the line was the true line, and the Supreme Court held that the charge was incorrect and not sustained by the Texas decisions. To the same effect are George v. Thomas, 16 Tex. 74, 67 Am. Dec. 612; Browning v. Atkinson, 46 Tex. 608; Coleman v. Smith, 55 Tex. 259; and Le Comte v. Toudouze, 82 Tex. 208, 17 S. W. 1047, 27 Am. St. Rep. 870.

A failure to disclose a material fact affecting the subject-matter of a contract, however unintentional and blameless, often constitutes a sufficient ground for the annulment of a contract procured thereby. When there is intentional fraud connected with the concealment of the fact, equity will always relieve the party who has been injuriously affected by it. If, as appears from appellee’s testimony, appellant, who knew about the Leckie survey, concealed that fact from ap-pellee and thereby induced him to sign the agreement as to boundary, his action would amount to such fraud as would justify a rescission of the contract. The law favors agreements as to boundaries, which are fairly made, but it condemns fraud in obtaining such an agreement just as it would any other agreement obtained by fraud. To make such an agreement binding the parties must negotiate with each other on equal terms, and one of the contracting parties will not be permitted to.obtain a large body of land from the other where he is in possession of facts, which he concealed, and thereby obtained the agreement.

It was error in the court to submit the cause on the issue of mistake on the part of appellee, or on the part of both appellant and appellee, and it was also error to refuse to submit the cause, as requested by appellee, on the only issue in the case — that of the fraud or concealment of appellant m obtaining the agreement from appellee. The ■latter has presented the error in refusing the charge in a cross-assignment. We have considered all of the assignments having any merit.

The judgment is reversed, and the cause remanded.


text:
    DRUMMOND v. LEWIS.
    (Court of Civil Appeals of Texas. San Antonio.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. New Trial (§ 95) — Grounds—Absence of Plaintiff and Counsel — Diligence.
    Where a nonresident plaintiff employed a nonresident attorney, and relied wholly on him to look after the case, and the attorney was injured about 10 days before the case was called for trial, and on the day before trial was obliged to go to bed for medical treatment, and plaintiff was not present at the trial, and showed no reason for his absence, except that his attorney had not advised him of the time to attend, a denial of a new trial after judgment by default was not an abuse of the trial court’s discretion, in the. absence of a showing that the attorney was in readiness to attend court when taken ill and of a showing of a meritorious cause of action.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 190-194; Dec. Dig. § 95.]
    2. New Trial (§ 95*) — Grounds—Absence of Plaintiff and Counsel — Diligence.
    The absence of an attorney, hy reason of illness or other cause, is not ground for new trial unless the party was diligent and without fault, and unless injustice will result from a refusal, which is established by exhibiting a good cause of action or a meritorious defense.
    [Ed. Note. — For other eases, see New Trial, Cent. Dig. §§ 190-194; Dee. Dig. § 95.]
    3. Trespass to Try Title (§ 47) — Judgment —Effect.
    A judgment in trespass to try title that plaintiff take nothing by his suit is an adjudication that title is in defendant.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    4. Dismissal and Nonsuit (§ 60) — Want of Prosecution — Dismissal.
    Where plaintiff fails to appear in person or by attorney, and there is no cross-action, the only judgment which should be rendered is one of dismissal for want of prosecution.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.]
    5. APPEAL AND ERROR (§ 719) — QUESTIONS Review able — Error Apparent of Record.
    The error in rendering judgment that plaintiff in trespass to try title take nothing, where defendant merely filed a general demurrer, and pleas of not guilty and limitations, with a prayer that plaintiff take nothing, and where plaintiff did not appear in person or by attorney, is error apparent of record, which the court on appeal must notice, though not assigned, _ and the court on appeal must enter a proper judgment which is one of dismissal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    6. Dismissal and Nonsuit (§ 81) — Setting Aside Dismissal for Want of Prosecution-Meritorious Cause of Action.
    A motion to set aside a judgment of dismissal for want of prosecution should allege facts constituting a meritorious cause of action.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.]
    7. Dismissal and Nonsuit (§ 81) — Setting Aside Judgment of Dismissal — Freedom from Negligence.
    A motion to set aside a judgment of dismissal for want of prosecution must show that the judgment cannot be ascribed to negligence of plaintiff or his attorney.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.]
    Appeal from District Court, San Patricio County.
    Action hy J. H. Drummond against Steve^ J. Lewis and another. From a judgment' that plaintiff take nothing by his action, he appeals.
    Reversed, and judgment rendered dismissing the action for want of prosecution without prejudice.
    L. PI. Browne and C. A. Davies, both of San Antonio, for appellant. D. McN. Turner, of Corpus Christi, for appellees.

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

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

   TALIAFERRO, J.

On the 21st day of July, 1906, plaintiff, J. H. Drummond, filed suit against Steve J. Lewis and D. McNeill Turner in trespass to try title; on March 18, 1912, D. McNeill Turner disclaimed; on October 14, 1912, on the first day of the court, in the absence of plaintiff and plaintiff’s counsel, a judgment was given defendant by default; thereafter, during the same term of the court, on October 23, 1912, a motion was filed by the plaintiff for a new trial and reinstatement of the cause, setting up the grounds that he lived in Jefferson county, Tex., and that he had employed an attorney in San Antonio to attend to his ease, and that the said attorney had been attending to the same; that he knew nothing about the case having been dismissed, or judgment taken against him, because of the inability of his attorney to inform him, and appended to his motion the affidavit of his attorney, together with the affidavit of the physician in attendance upon said attorney, showing that, on the 6th day of October, said attorney met with an accident, breaking a rib; that he continued to work until the 11th day of October, when he was stopped by severe pleurisy; that he called in a physician on the 13th day of October, and, for the first time, discovered that he had a broken rib; that by reason of a severe cold, which had settled in his left lung, beneath the broken rib, together with the broken rib itself, the said attorney was unable to attend to business, or to appear and file this motion, and but for such accident the said attorney would have been present and representing him in the said cause. The affidavit of a physician was also attached, verifying the condition of the attorney. The court overruled the motion for a new trial on October 24, 1912, and from that judgment plaintiff prosecutes this appeal.

The above, which is taken from appellant’s statement of the nature and result of the case, sufficiently reveals the proceedings had. There are statements made in the briefs of the parties of occurrences at the trial which, not being of record, will not be taken into consideration.

Appellant’s only contention is that the trial court, in overruling his motion for a new trial, was guilty of a flagrant abuse of his judicial discretion. To support this contention he cites two cases: Harris v. Musgrave, 72 Tex. 18, 9 S. W. 90, and Alexander v. Smith, 20 Tex. Civ. App. 304, 49 S. W. 916. In the former case the Supreme Court held that it was within the discretion of the trial court to grant a new trial after adjournment of the term, upon proper cause shown. In that ease the petitioners alleged, under oath, the fact that their attorney became sick just before the trial so that he could not attend the court; that he had written them of his illness in ample time for them to have employed other counsel if the letter had not miscarried; that they had no knowledge of his condition, or that the case was coming to trial, and that they had a meritorious defense, which they fully stated. In the Alexander Case the motion alleged: That the plaintiff’s attorney was ill and unable to attend the court upon the day the case was set for trial. The plaintiff was in court in person, but did not know until the case was called that his attorney could not attend. He was too ignorant himself to conduct his cáse, and he informed the court that he was too poor to employ other counsel. That he had a meritorious cause of action, and that a dismissal of the cause would subject him to an irreparable loss, the motion revealed by proper allegations. In both cases the courts held that the trial court had abused its discretion, and that the motions for new trial should have been granted, because due diligence and a meritorious cause of action were clearly shown by the allegations in the motions.

But we think no such a case is presented here. The contention, in brief, is that appellant resided in a place remote from the county where the case was pending, and employed an attorney who also resided away from that county; that he relied wholly upon his attorney, who had given the case attention at all former terms of the court; that about 10 days before the case was to be called for trial his attorney was hurt, and on the day before the trial his condition became so serious that he was obliged to go to bed for medical treatment, and was unable to go to San Patricio county to try the case. Appellant was not present at the trial and shows no reason for his absence, except that his attorney had not advised him of the time to attend. No effort is made to show that appellant’s attorney ■ was in readiness to attend the court when he was attacked by the sudden illness, nor does it assert that he communicated his condition to his client or to the court, or to the attorney for appellee, or that he made any effort whatever to prevent the case from going to trial in his absence. Neither is it alleged that he was unable to take such precaution. The motion does assert that the appellant has a meritorious cause of action, but such allegation is a mere conclusion of the pleader, as no facts are alleged from which the court can ascertain the merit of the cause, nor are pleadings referred to from which the court could determine the merits thereof.

It has been universally held by our courts that the absence of an attorney, whether by reason of illness or other cause, is not ground for new trial, unless it be shown, not only that the petitioner was diligent and without fault, but that injustice would result from a refusal. Such a showing is made by exhibiting a good cause of action or a meritorious defense. Bartlett v. Jones Co., 103 S. W. 705; Holliday v. Holliday, 72 Tex. 485, 10 S. W. 690; Railway v. Kelley, 99 Tex. 87, 87 S. W. 661; Ward v. Cobbs, 14 Tex. 303; Telegraph Co. v. Brooks, 78 Tex. 331, 14 S. W. 099; Montgomery v. Carlton, 56 Tex. 431; Verschoyle v. Darragh, 67 S. W. 1099; Harrison v. Oak Cliff Land Co., 85 S. W. 821.

We cannot say that the court abused its discretion in refusing to grant appellant’s motion when the same is tested by the rules of law applicable to motions to set aside judgment by default. There is, however, an. error in the judgment apparent of record, not complained of by appellant, which renders it necessary to consider this case from a slightly different viewpoint. Defendant Turner disclaimed, while defendant Lewis filed general demurrer, plea of not guilty, pleas interposing the statutes of limitations of 3, 5, and 10 years, and a prayer that plaintiff take nothing by his suit, and that said defendant go hence without day and recover of plaintiff all costs. The judgment recites that the plaintiff appeared not, either in person or by his attorney; and, the defendant insisting upon a trial, and the plaintiff having offered no proof, it was adjudged that plaintiff recover nothing by reason of his action, and that the defendants recover from him all costs of suit. A judgment in a trespass to try title case that plaintiff take nothing by his suit amounts to an adjudication that the title to the land is in defendant, and is equally as effective for that purpose with a judgment specifically decreeing the land to defendant. Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870; Moore v. Snowball, 98 Tex. 23, 38, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596 New York Land Co. v. Votaw, 52 S. W. 127. Where plaintiff fails to appear in person or by attorney the only judgment which should be rendered (there being no cross-action upon which defendant is entitled to invoke a trial) is one dismissing the case for want of prosecution, and not one that plaintiff should not recover. Hill v. Friday, 70 S. W. 568; Allen v. Ft. Stockton Irrigated Lands Co., 135 S. W. 682; Trueheart v. Simpson, 24 S. W. 842; Burger v. Young, 78 Tex. 656, 15 S. W. 107; Robinson v. Collier, 53 Tex. Civ. App. 285, 115 S. W. 917; Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870. Tn the last-mentioned case it was held that an error committed in rendering a judgment that plaintiff take nothing, instead of one of dismissal, should be corrected by an appeal, but that if no effect ought to be given to such a judgment other than to construe same as a dismissal of the case, then the ease went out of court as fully as it did under the judgment rendered, and plaintiffs in that case could not, in a case brought to set aside that judgment, obtain any benefit resulting from the fact that the action was brought, unless on the trial of the suit to set aside such judgment, they showed such facts as entitled them to have the judgment so rendered set aside. We are of the opinion that the error committed by the lower court, being one apparent of record, should be taken notice of by us, though not assigned, but that the same does not require a reversal, and this court should enter such judgment as the lower court should have entered, namely, one dismissing the case.

The cases holding that an applicant for a new trial should show a good cause of action or a meritorious defense are based upon the principle that it would be idle to set aside a judgment when another trial would result in the rendition of the same judgment. This principle cannot be applied to cases of dismissal for want of prosecution, which character of judgments merely, have the effect of taxing plaintiff with the costs accrued, and of imposing upon him the burden of filing a new suit, with the disadvantage of perhaps enabling defendant to win by reason of limitation. However, it appears that even in cases of dismissal for want of prosecution the doctrine has been recognized that a meritorious cause of action should be shown by alleging the facts constituting the same. Fant v. Jones, 36 Tex. Civ. App. 138, 81 S. W. 340; Alexander v. Smith, 20 Tex. Civ. App. 304, 49 S. W. 916. While the same strictness concerning showing a good cause of action should perhaps not be required to set aside a judgment of dismissal for want of prosecution as a judgment on the merits, yet it is clear that the motion should plainly show that the judgment of dismissal cannot be ascribed to negligence of plaintiff or his attorney. Fant v. Jones, supra. Such a showing was not made in this case, as has been hereinbefore pointed out, and the lower court did not abuse his discretion in refusing to grant the motion for new trial, whether such action be considered with reference to a judgment dismissing the case for want of prosecution, or one that plaintiff take nothing by his suit.

The judgment of the lower court is reversed, and judgment rendered dismissing plaintiff’s action for want of prosecution, without prejudice to any other suit that may be instituted by him. Appellant having failed to call the attention of the trial court to the error in the judgment, the costs of the appeal will be taxed against him.


text:
    SAN ANTONIO & A. P. RY. CO. v. BRACHT.
    (Court of Civil Appeals of Texas. San Antonio.
    May 7, 1913.
    Rehearing Denied May 28, 1913.)
    1. Limitation ot? Actions. (§ 127) — Petition —Amendments.
    The running of limitations is stopped pending an action as to the cause of action alleged in the petition but not as to an amended petition setting up a new cause of action and asking for a different or inconsistent remedy.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    2. Limitation of Actions (§ 127) — Petition —Amendments.
    Where the original petition against a carrier declared on tort charging the carrier with negligently failing to divert on the request of the shipper a car of freight, an amended petition, declaring on an express parol contract made with an agent of the carrier giving the shipper' the right to sell his goods while in transit and on notice to have them diverted to a new destination and delivered to the buyer, set up a new cause of action, and limitations against it ran until it was filed, because the same evidence would not support the allegations of the original and amended petitions and the measure of damages would not be the same.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    Appeal from Aransas County Court; Boy Jackson, Judge.
    Action by A. L. Brackt against the San Antonio & Aransas Pass Railway Company and others. From a judgment for plaintiff against defendant named, it appeals.
    Reversed and rendered.
    E. Gordon Gibson, of Bockport, and Kle-berg & Stayton, of Corpus Ghristi, for appellant. W. H. Baldwin and E. A. Stevens, both of Rockport, for appellee.

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

   TALIAFERRO, J.

This was an. action by the appellee against the San Antonio & Ar-ansas Pass Railway Company, the Gulf, Colorado & Santa Fé Railway Company, and the Atchison, Topeka & Santa Fé Railway Company to recover damages arising from the failure upon the part of the defendants to transport a car load of vegetables from Gregory, Tex., to Minneapolis, Minn. In his original petition, filed September 28, 1909, appellee alleged that he delivered the car load of vegetables in question to appellant on the 13th day of May, 1908, at Gregory, Tex., consigned to S. T. Fish & Co. at Chicago, Ill.; that on May 14th he sold the car of vegetables to Gamble & Robison, at Minneapolis, Minn., for $555.30, and on the same day notified and instructed appellant to stop the car at Kansas City, Mo., and divert it to Minneapolis and there deliver same to Gamble & Robison. It was alleged that it was the duty of appellant and its connecting carriers to obey the order to divert the ear from its original destination, and that because of the appellants’ negligent failure to do so he had been compelled to sell the goods on the market at Chicago for $255.26, thereby suffering actual damages in the sum of $297. It was alleged that the failure of appellants to obey the order of appellee and send the car to Minneapolis required appel-lee to incur an additional expense of $50, and that the said action of the appellants in refusing to divert tlie car was prompted by malice, and be prayed for $250 exemplary damages. On April 19, 1912, an amended petition was filed. Tbe claims for $50 expenses and $250 punitive damages were abandoned, and tbe following verbal contract was alleged to have been made between tbe shipper and tbe railway company, viz.: “That said shipment was a through shipment, consigned to S. T. Fish Com. Co., Chicago, 111., all charges paid and secured to be paid by plaintiff under a contract, agreement' and understanding with the defendants that plaintiff had the right to sell said' car of vegetables, and to have same diverted to the purchasers thereof en route; by reason of which the defendant companies, jointly and severally agreed and undertook to transport said car of vegetables to its destination, and to divert said car en route to any consignee thereafter named by plaintiff.” It was further alleged that the car of vegetables was sold, and that appellee in accordance with the terms of the contract notified the appellant of the sale and of its terms and instructed it to divert the car from Kansas City to Minneapolis accordingly. To the amended petition appellant presented a special exception upon the ground that the samo set up and declared upon a new cause of action alleged in his original petition and that the petition showed upon its face that said cause of action, if it ever existed, was long since barred by the two-year statute of limitations. By supplemental petition appellee presented a special exception to the portion of appellant’s answer above stated, which exception the court sustained, and the case went to trial on the plaintiff’s first amended original petition and defendants’ general denial. The case was tried without a jury, and the court rendered judgment for appellee in accordance with his prayer, against appellant, and the cause was dismissed as to all the other defendants.

A number of assignments of error are urged, but-only the fourth, fifth, and sixth need be considered. These assignments present, by various propositions, the contentions that the court erred in sustaining appellee’s exception to its said answer, and that the amended petition declared upon a new cause of action which was shown upon the instrument itself to be barred by limitations. These assignments must be sustained. It is a vexatious question of pleading to determine when an amendment asserts a new cause of action or ground of defense.

When a suit is filed and the defendant is properly served with citation showing the cause of action against him, the running of the statute of limitation as to such complaint is stopped during the pendency of the suit. But the defendant has a right to assume that the cause of action declared upon is the very one that the plaintiff will attempt to prove and the statute will continue to run against every other demand. And here lies the difficulty. So long as the original complaint and demand are retained and imported into the new pleading, the cause remains the same; but, where the allegations are so changed as to set up a new complaint supported by new facts and asking for a different or inconsistent remedy, the cause is new.

Every case must, of course, be determined upon its own facts; but certain tests have been applied by the courts which greatly aid in reaching a proper conclusion in all cases. Judge Brown, in Lumber Co. v. Water Co., 94 Tex. 456, 61 S. W. 707, states the rule as follows: “If the facts alleged in the sixth amended petition do not express substantially the same contract as that set up in the original petition, then the judgment of the court sustaining the exception must be affirmed. It is not sufficient that the causes of action be similar in their nature, but they must be essentially identical. Four tests are laid down by which to determine the identity of the causes of action: (1) Would a recovery had upon the original, bar a recovery under the amended petition? (2) Would the same evidence support both of the pleadings? (3) Is the measure of damages the same in each case? (4) Are the allegations of each subject to the same defense? 1 Am. & Eng. Enc. of Pl. & Pr. p. 556. We are of opinion that the second and last furnish the best tests by which to determine the matter before us, and we can safely say that if the same testimony would not support the allegations in each of these pleas, and that the same defenses could not be interposed to each of them, they are not identical, and therefore the amended petition presents a new cause of action. McLane v. Belvin, 47 Tex. 493; Bigham v. Talbot, 63 Tex. 271; Railway v. Pape, 73 Tex. 502 [11 S. W. 526]; Railway v. Scott, 75 Tex. 84 [12 S. W. 995]; Boyd v. Beville, 91 Tex. 439 [44 S. W. 287]; Cotton v. Rand, 93 Tex. 24 [51 S. W. 838, 53 S. W. 343]; Whalen v. Gordon, 95 Fed. 314 [37 C. G. A. 70]; Scoville v. Glasner, 79 Mo. 449.”

In Booth v. Houston Packing Co., Chief Justice Fly said: “The original petition did not declare on an .express contract to ship the cattle, but sought to recover on an implied contract on the part of appellee to ship the cattle as directed. The amended petition, which was filed more than three years after the cause of action occurred, sought to charge appellee on an express contract. We think the amended petition declares on a different cause of action from that set out in the original petition. Four tests are applied in ascertaining whether actions are identical, one of them being: Would the same evidence support either of them? And another is: Would the allegations of each be subject to the same defense? The pleadings in this case cannot nieet the demands of either of these tests. If the ease had been tried on the original petition, the pleadings would have been met by proof that appellant requested appellee to ship the cattle and that it did so in a negligent manner. Its liability, if any, would have rested on its implied agreement to perform a gratuitous service for appellant. To meet the allegations of the second petition it became necessary to prove that appellee, for a valid consideration, expressly agreed to ship the cattle as directed by appellant, and failed to comply with its agreement to appellant’s damage. The two pleadings furnish separate and distinct-causes of action.” 105 S. W. 48.

In the case before us the plaintiff in his original petition declared upon a tort, charging the defendant with negligently and maliciously failing upon his Request to perform its legal duty to divert a car of vegetables from its original destination to another point. In the amended petition he declared upon an express verbal contract made by him with the railway company through one of its agents, whereby plaintiff should have the right to sell his goods while in transit and upon notice to have them diverted to a new destination and delivered to such purchaser.

If the case had gone to trial upon the first petition, to recover, the proof must have shown, in addition to the fact of shipment, only that it had requested the carrier to divert the goods to another point, and that such request was timely and would impose no unreasonable or new burden upon the carrier to perform. The measure of damages would have been the difference between the price the goods brought in Chicago and the market price in Minnesota at the time the goods should have arrived there, less cost of carriage. On the other hand, to establish the cause of action set up in the amendment, the proof must have shown that the carrier made an express contract to permit a sale and unconditionally to divert in transit to the purchaser, in which cause the measure of damages would have been changed and would have been the difference between the price for which the goods sold at Chicago and the contract price at Minneapolis, less cost of carriage. The pleading in this case is repugnant to all the tests applied by the courts. The same evidence would not support both pleas, the measure of damage is not the same, the allegations are not subject to the same defenses, and a recovery upon one would only bar a recovery upon the other in the sense that proof that a debt has been paid will always bar an action thereon. In fact, it is impossible to conceive a case where such a bar would not exist. In Lumber Co. v. Water Co., supra, if the plaintiff had recovered upon its amended petition, a subsequent presentation of the same claim under the allegations of the original petition would have been res adjudicata. So would it be in every case where there was but one res in issue between the parties.

We conclude that the action declared on in the amended petition was new and different from that set up in the original petition, and that it is apparent from the face of the petition itself that the new cause of, action was barred by the two-year'statute of limitation.

The judgment of the lower court will therefore be reversed, and judgment here rendered for the appellant.


text:
    E. F. ROWSON & CO. v. McKINNEY.
    (Court of Civil Appeals of Texas. San Antonio.
    May 14, 1913.)
    1. Appeal and Error (§ 1002) — Review-Verdict — Effect.
    Where a verdict on conflicting evidence is in favor of plaintiff, his evidence must be accepted on appeal as true.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    2. Frauds, Statute of (§ 140) — Parol Contract.
    A parol contract for cancellation of an agreement for the purchase of land is without the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 156, 342; Dec. Dig. § 140.]
    3. Broiíers (§ 96) — Broker’s Contract-Consideration — Liability.
    Where a real estate agent, who negotiated a sale of land to - be paid for on installments, agreed to a rescission of the contract, tvhereby the purchaser should receive back the money already paid in, and the purchaser in reliance on that agreement made no further payments, although the contract provided for forfeiture in case of failure, there was a sufficient consideration to render the agent liable for the payment of the money already paid.
    [Ed. Note. — For other cases, see Brokers, ’ Cent. Dig. § 138; Dec. Dig. § 96.]
    Action by C. G. McKinney against E. F. Rowson & Co., begun in justice court, where on judgment for plaintiff, defendant appealed to the county court, and from a judgment of the county court, also in favor of plaintiff, defendant again appeals.
    Appeal from Cameron County Court; Jno. Bartlett, Judge.
    Affirmed.
    See, also, 154 S. W. 603.
    Ri. B. Creager and J. T. Canales, both of Brownsville, for appellant. Jones, West, West & Dancy and Ira Webster, all of Brownsville, for appellee.

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

   FLY, C. J.

This is a suit instituted by ap-pellee against appellants, in the justice’s court, to recover $165, alleged to be due on an oral contract for the cancellation of a contract for the sale of a tract'of 10 acres of land and the return of purchase money paid by appellee to appellants. Appellee obtained a judgment for the amount sued for, and the cause was appealed by appellants to the county court, where the cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $165.

There was testimony to the effect that on April 9, 1908, a contract for the sale of certain land was entered into between appellants, as agents for E. S. Hunt, and appellee, whereby the former agreed to sell to appellee, upon the performance of certain conditions by him, certain lots of land for $240 cash and $760 in monthly payments of $20 for a part of it, the payments to begin one year from date of contract, and when $160 was thus paid a warranty deed was to be executed by appellants, and three notes, for $200 each, were to be executed by appellee. There were other stipulations not necessary to mention. According to the testimony of appellee,-which must, in view of the verdict, be taken as true, in January, 1909, he called on Rowson, and told him that he (appellee) would not, on account of sickness in his family, be able to make the payments, and asked Rowson to return the money he had paid and cancel the contract. Rowson agreed to the proposition, and appellee gave him the contract of sale, and it was canceled and Rowson agreed to return the money. He returned only $50 of the money. The cancellation was made by writing across the face of the contract, “Canceled by mutual consent.” Rowson admitted the cancellation, but swore that appellee was to receive only $50, unless the land was sold, and that he had paid appellee that sum. He was corroborated by Jessup, his employs. J. R. Axom testified that Rowson stated to him that his firm had agreed to return the money to appellee and take back the land. Appellants contracted for themselves, and not for Hunt, in relation to the return of the money.

The contract sued on was the oral one made by Rowson, and the statute of frauds would have no application to it. The only question would be as to the consideration for the promise. The contract became forfeited before this suit was instituted, and resulted from the promise of Rowson to return the mpney, thereby inducing appellee to believe that he was under no obligation to make further payments. Rowson made the contract to repay, as he had a large land deal on hand and desired to put the land contracted for by appellee into the deal. Rowson withheld repayment of the money until the forfeiture of the contract had automatically taken place, and then refused to repay. The promise to repay the money, having induced appellee to forego any further effort to pay the sums to become due on the land, was sufficient consideration for the promise. Any consideration is good in a contract which places one party in a worse condition or the other in a better, or, in other words, benefit to the promisor or loss to the promisee. It need not be mutually-beneficial. Terry v. Booth, 7 Tex. 493; Lane v. Scott, 57 Tex. 367; Railway v. Winton, 7 Tex. Civ. App. 57, 26 S. W. 770. The promise was mutual and simultaneous and bound the parties. Flanders v. Wood, 83 Tex. 277, 18 S. W. 572; Pullman Car Co. v. Booth (Tex. Civ. App.) 28 S. W. 719; Arnold v. Chamberlain, 14 Tex. Civ. App. 634, 39 S. W. 201.

None of the assignments of error is well taken, and the judgment is affirmed.


author: SPEER, J.

text:
    AUSTIN FIRE INS. CO. v. SAYLES et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 12, 1913.
    Rehearing Denied May 24, 1913.)
    1. Insurance (§ 145) — Agents—Authority— Redelivery of Canceled Policy.
    An agent of an insurance company, as defined in Rev. Civ. St. 1911, art. 4961, with authority, to issue and deliver policies, has authority to redeliver a policy of insurance theretofore canceled, and his act will bind the company unless procured by fraud.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 276-291; Dea Dig. § 145.]
    2. Insurance (§ 669) — Insteuctions — Authority of Agent.
    In an action on an insurance policy, which had been canceled and later redelivered by the agent of the company, instructions which are calculated to induce the jury to believe that the company must have expressly authorized its agent to redeliver the canceled policy before it would be bound thereby are misleading and properly refused.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dee. Dig. § 669.]
    3. Appeal and Ekeor (§ 742) — Assignments of Error— Statements.
    Assignments, -based on error in the exclusion of testimony, will be overruled where they are not followed by a statement showing what objections were sustained by the court to the excluded testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 1056) — Harmless Error — Exclusion of Testimony — Issue Not in the Case.
    Assignments of error, based on the exclusion of testimony, will not be considered where the testimony ivas as to an issue not in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent, Dig. §§ 4187-4193, 4207; Dee. Dig. § 105é.]
    5. Trial (§ 296) — Instructions — Restricting Jury to Evidence.
    Where a jury is told in one charge that the burden is upon plaintiff to prove his case by a preponderance of the evidence, a charge on a particular issue, which states that if the jury believe certain facts they may find for the plaintiff, is not bad as permitting the jury to ignore the evidence and -base their belief on other sources.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Error from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by Henry Sayles and others against the Austin Fire Insurance Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    ffm. Thompson and Jno. S. Patterson, both of Dallas, and Harry Tom King, of Abilene, for plaintiff in error. A. H. Kirby, of Abilene, for defendants in error.

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

   SPEER, J.

The Austin Fire Insurance Company appeals from an adverse judgment in favor of Henry Sayles and others as trustees for the Colorado Salt Company, a corporation, upon a fire insurance policy for the sum of $2,000.

Upon the trial the court instructed the jury to find for the plaintiff, unless they should find for the defendant under the following instruction: “You are charged that if you believe that the said policy of-insurance sued on by plaintiff in this cause was by the local agent of defendant insurance company redelivered to the agent of the Colorado Salt Company about November 7, 1911, after it had theretofore been taken up and canceled by the said local agent of defendant at Colorado, Tex., and before or at the time of such redelivery, the said local agent was induced to do so by a false or fraudulent representation on the part of any of the officers of the Colorado Salt Company as alleged in the defendant’s answer, and that said representation or representations, if any, were material representations, and that the said local agent of defendant relied on said representations, and that same was false or fraudulent, and but for said representation the agent of defendant would not have so delivered the said policy, you will find for defendant, and so say by your verdict, and upon this issue the burden is upon the defendant to prove same by a preponderance of the evidence.”

The pleadings of defendant raising the issue thus submitted was as follows: “Defendant would show that the policy sued on herein was not in force at the time of the fire, was not a valid and subsisting contract, but that the same had been by the agreement of the parties, and under the terms of said policy, canceled and discharged and surrendered, all of which defendant stands ready to verify. For further answer defendant would show that after it had canceled and taken up its policy sued on by agreement with the assured, the said assured wrongfully and falsely stated to its agent issuing said policy, who at that time had possession of the said policy as canceled and surrendered, to the effect that defendant had consented to permit its policy to remain in force, and by such false representations and statements to its said agent induced said agent to deliver back to it the said policy, and said policy would not have been redelivered but for such false representations inducing redelivery of the same, all of which defendant stands ready to verify.”

The summary instruction to return a verdict for the defendant was properly refused. Under the undisputed facts, and under the statute (Revised Statutes 1911, art. 4961) G. B. Harness, the agent who redelivered the policy in controversy to the Salt Company, was the local agent of plaintiff in error, with full power to issue and delivery its policies. As we view the case, there was no issue of want of power on the part of Harness to represent plaintiff in error aside from the issue raised by its plea that defendants in error had wrongfully procured the redelivery of the policy by false and fraudulent representations. This latter issue was clearly submitted in the above-quoted charge, and embraced the only real issue under the pleadings and evidence. The case stands precisely as though the plaintiff in error had delivered the policy itself. The contention and' counter contentions as to the necessity for a verification of plaintiff in error’s pleadings and as to the correctness of the court’s ruling in excluding evidence upon the issue of want of authority on the part of the local agent Harness to represent plaintiff in error become altogether immaterial and foreign to the discussion of the questions really involved. The local agent indisputably did have authority to issue and deliver policies, and the only defense to his act in delivering the policy here sued on has been submitted to and found by the jury contrary to plaintiff in error’s contention.

Plaintiff in error’s special charges Nos. 1 and 3 were properly refused. What we have already stated is perhaps sufficient as to these. Furthermore, however, the charges would probably have been misleading, inasmuch as they were calculated to induce the jury to believe before they could find for the plaintiff the defendant company must have expressly authorized its local agent to redeliver the canceled policy, whereas, his general power to issue and deliver policies would bind the company if such delivery was not induced by the fraud of the plaintiff’s agents.

The sixth and seventh assignments of error are overruled because neither is followed by a statement from the record showing what objections were sustained by the court to the testimony excluded, and because for the reason already stated the issues of ratification of the agent Harness’ act in delivering the policy, or of want of authority to do so, were not issues at all in the case. The evidence, therefore, upon such false issues was properly excluded.

The criticism of the charge contained in the eighth assignment of error is hypercritical. The charge is, “If you believe that the said policy,” etc., and the criticism is that this left-the jury free to ignore the evidence in the case and to believe from any source whatever. It is hardly conceivable that an intelligent jury would fail to understand that they were limited to a consideration of ttie facts in evidence, especially when they are told, as they were in this case, that the burden is upon the plaintiff to prove the material allegations of his petition hy a preponderance of the evidence.

There is no error in the judgment, and it is affirmed.


author: CONNER, C. J.

text:
    FT. WORTH BELT RY. CO. v. TURNEY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 22, 1913.
    Rehearing Denied April 20, 1913.)
    1. Damages (§ 48) — Personal Injuries— • Measure of Damages — Mental Suffering.
    Mental suffering, due to the belief of a servant who incurred personal injuries, that he would not again be able to labor and earn money to support himself and family, is an element of damage for; which compensation may be recovered ; such perturbation naturally flowing from the injury.
    [Ed. Note. — Eor other cases, see Damages. Cent. Dig. §§ 100-103, 255; Dec. Dig. § 48.]
    2. Master and Servant (§§ 101, 102) — Injuries to Servant — Safe Place to Work-Duty of Master.
    A master is bound only to exercise ordinary care to furnish its servants with reasonably safe and suitable appliances for work, hence a charge that it was the duty of a railroad company to furnish its employes with reasonably safe and suitable appliances, and, in doing so, to use a degree of care proportioned to the hazard imposes too high a degree of care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    3. Trial (§ 296) — Instructions—Cure of Instructions by Others.
    In a personal injury action by a switchman who was hurt owing to the breaking of a brake chain on a car not the property of the master, a charge that it is the duty of a railroad company to furnish its employes with reasonably safe appliances, and in doing so to use a degree of care proportionate to the hazard, though imposing too high a degree of care, is cured by other charges that a railway company is not bound to furnish absolutely safe appliances, but is required to use reasonable diligence, and that plaintiff could recover only if defendant had not exercised ordinary care in discovering the defect which caused the injury; defendant being bound only to guard against defects which could be discovered by a reasonably careful inspection.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    4. Trial (§ 260) — Instructions—Refusal.
    The refusal of a requested charge, covered by the charges given, is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from, District Court, Tarrant County ; Jas. W. Swayne, Judge.
    Action by W. N. Turney against the Ft. Worth Belt Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Chapman & Lockett, Spoonts, Thompson & Barwise, and Lassiter, Harrison & Rowland, all of Ft. Worth, for appellant. Bell & Milam, of Ft. Worth, for appellee.

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

   CONNER, C. J.

W. N. Turney recovered a judgment of $2,500 as damages for personal injuries received while in the employ of the appellant company as a switchman. He alleged that while in the discharge of his duty and while attempting to set a brake upon a specific car that the “brake chain or eyebolt of the chain broke through some defect not known to him, causing him to fall from, the top of the car to the ground, inflicting serious injuries.” The proof was undisputed that the car in question belonged to Armour & Co. and had been but a short time prior to the accident delivered to the appellant company for the purpose of being switched, and the only issue of negligence alleged as a ground of recovery that the court submitted in his charge was whether the company was guilty of negligence in failing to exercise reasonable care to discover the defect in the chain by an inspection.

Upon the trial appellee was permitted to testify, in substance, over appellant’s objection, that as a result of his injuries all he “could figure out” was “that he was knocked out and could see no show of working in the future,” and that as a result he suffered mentally. Error is assigned to the admission of this testimony; appellant’s proposition being that: “Mental suffering, due to one’s belief that he will not be able to labor and earn money, is not an element of damages in a personal injury suit.”

Appellant cites no authority in support of the proposition quoted and we cannot sustain it as broadly as it is stated. The rules of law are intended to afford compensation for all natural consequences flowing from personal injuries occasioned through the fault of another, and mental anxiety naturally resulting is recoverable. See Sutherland on Damages (2d Ed.) § 1241; M., K. & T. Ry. Co. of Tex. v. Warren, 39 S. W. 652. It seems to us that the physical pain resulting from the injury, which is clearly an element of damage, was not more natural then the distress and anxiety of mind occasioned by the consciousness that the injury received was such as to wholly incapacitate the head of the family from pursuing his usual occupation; thus to provide for those dependent upon him.

Error is also assigned to the following paragraph of the court’s charge: “It is the duty of a railway company to furnish its employes reasonably safe and suitable appliances for the performance of the duties which they are engaged in performing, to keep the same in reasonably safe and good repair for the transaction of its business, and in doing so to use a degree of care proportioned to the hazard or danger which might reasonably be anticipated as consequent upon its negligence.” The charge quoted standing alone would impose upon appellant too great a burden. Appellant’s duty extended no farther than to exercise ordinary care to furnish' its employés reasonably safe and suitable appliances in the performance of their duties, hut we think that the abstract statement of the law as given in the section under consideration was harmless in view of the fact that the court in the same connection further charged the jury that: “A railway company is not bound to furnish absolutely safe appliances with which its employés can perform their duties or to keep them absolutely safe, but it is required to use reasonable diligence to provide reasonably safe appliances, and after having done so to keep the same in a reasonably safe condition, as mentioned, and if the company fails in either of these respects and injuries are occasioned thereby to one of its employés, then the company is guilty of negligence.” And also in applying the law to the facts authorized a finding for the plaintiff only in the event that the jury found that appellants had not exercised ordinary care to discover the defects complained of, also further particularly instructing the jury that: “The defendant would not be liable for any defects in the eyebolt on the brake staff or of the chain to which it was attached which could not have been discovered by a reasonably careful inspection. If, therefore, you believe from the evidence that the eyebolt on said brake staff or the chain to which it was connected was defective, but that such defect, if there was one, was of such a character that it could not have been discovered by an inspection or examination of the same with reasonable care then the defendant would not be liable and your verdict should be for the defendant.” See St. L. & S. F. Ry. Co. v. McLain, 80 Tex. 87, 15 S. W. 789.

The only remaining assignment of error goes to the action of the court in refusing to give appellant’s special charge No. 10, which in substance was fully embodied in the court’s general charge hereinabove last quoted.

We conclude that the evidence supports the material allegations of appellant’s petition and that no reversible error was committed upon the trial. All assignments are accordingly overruled and the judgment affirmed.


author: SPEEB, J.

text:
    REEVES et al. v. BOMAR.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 29, 1913.
    On Motion for Rehearing, May 10, 1913.)
    1. ESCROWS (§ 14) — UNAUTHORIZED DELIVERY — Failure of Consideration.
    Where a debtor, who had turned over all of Ms nonexempt property to his creditors in discharge of his debts, executed a deed conveying to a trustee for his creditors a part of his homestead in consideration of the agreement of certain of the creditors that they would have bankruptcy proceedings instituted by them against him dismissed, and deposited the deed in escrow, the deed was delivered without authority, and such creditors not only failed to dismiss the bankruptcy proceedings, but resisted the debtors efforts to have them dismissed, he was entitled to a cancellation of the deed and to recover possession of the property thereby' conveyed.
    [Ed. Note. — For other cases, see Escrows, , Cent. Dig. §§ 17-20; Dee. Dig. § 14;* Deeds, Cent. Dig. § 131.]
    2. .Judgment (§ 197) — Dismissal for Lack of Proof — Form of Judgment.
    Where the trial court held that no relief could be granted in a cross-action by certain defendants, because of insufficiency of the evidence, it should have rendered judgment on the merits against the cross-petitioners, instead of dismissing the cross-action without prejudice.
    [Ed. Note. — F'or other cases, see Judgment, Cent. Dig. §§ 357, 359; Dec. Dig. § 197.]
    On Motion for Rehearing.
    3. Appeal and Error (§ 1175) — Disposition of Cause — Remanding for New Trial.
    Where the court erroneously dismissed a cross-action without prejudice for insufficiency of the evidence, instead of rendering judgment on the merits, and gave as ■ its reason therefor that the facts were not fully developed, upon a reversal the cause would be remanded for a new trial instead of rendering judgment.
    [Ed. Note. — For other cases,, see Appeal and Error, Cent. Dig. .§§ 4573-4587; Dec. Dig. § 1175.]
    Appeal from District Court, Cooke County; Clem B. Potter, Judge.
    Action by E. P. Bomar against William Beeves and others. From the judgment, defendants appeal.
    Affirmed in part, and reversed and remanded in part on rehearing.
    Chas. Kassel, of Ft. Worth, A. S. Coke, of Dallas, and W. E. Murphy, of Gainesville, for appellants. Davis & Davis, of Gaines-ville, and D. T. Bomar, of Ft. Worth, for ap-pellee.

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

   SPEEB, J.

This action was brought by E. P. Bomar against William Beeves and others to cancel a certain deed of conveyance, and to recover a tract of land in Cooke county, Tex. The allegation was made that the conveyance had been executed in consideration that William Reeves and others whom he represented would cause to be dismissed a proceeding previously instituted by them against Bomar to have him declared a bankrupt, and that, contrary to such agreement, the' said Beeves and those whom he represented not only did not dismiss such bankruptcy proceedings, but contested the plaintiff’s efforts to have the same dismissed. The petition further alleged that the property conveyed was the homestead of plaintiff, and that the deed had been delivered without authority. Upon issues properly joined the trial court found in favor of the plaintiff and the defendants Beeves, Washington County State Bank, and the First State Bank & Trust Company have appealed.

The following are the findings of fact and conclusions of law upon which such judgment was entered:

“E. P. Bomar was an accommodation in-dorser for the Wolfe City Milling Company, of Wolfe City, and the Medlin Milling Company, of Port Worth, Tex., to the extent of about $90,000, for the Wolfe City Milling Company and about $390,000 for the Medlin Milling Company.
“These concerns failed about August A, 1911, and because of such failure E. P. Bo-mar, who aside from such accommodation indorsements was worth something above $200,000 above debts and liabilities, became involved to such extent that his assets were not sufficient to meet his obligations, including said accommodation indorsements.
“A meeting of the creditors of said two milling companies was held at Pt. Worth on August 8, 1911, and at this meeting said Bomar proposed to turn over to his creditors all of his nonexempt property, provided they would accept the same and discharge him from liability. A very large majority of the creditors in number and amount were willing to this agreement, and a written contract was prepared to that effect and signed by the bulk of the creditors.
“Defendant AVilliam Reeves, for himself and as the authorized agent for the Washington County State Bank and the First State Bank & Trust Company, participated in this meeting, and through his attorneys made suggestions in reference to the provisions of the contract, but when the contract was reduced to writing and signed by a majority of the creditors, in number and amount, said, Reeves refused to sign for himself and the two banks which he represented, unless said Bomar indorsed an indebtedness of about $12,000, due from said Medlin Milling Company to said First State Bank & Trust Company, represented by an overdraft.
“Said Bomar declined to indorse any of this indebtedness, except about $5,000 of the same, and the other creditors at this time declined to permit said Bomar to indorse any except said $5,000, or to allow it to share in the assets which he was to turn over.
“Said Reeves and said Washington County State Bank and said First State Bank & Trust Company thereupon filed a petition in the District Court of the United States for the Eastern District at Sherman, to have said Bomar adjudicated an involuntary bankrupt, and filed a like petition in the District Court of the United States for tne Northern District of Texas at Ft. Worth against said Medlin Milling Company. Soon after this another meeting of the creditors of said Milling Company and said Bomar was held at Ft. Worth, at which said Reeves attended, representing himself and said Washington County State Bank and said First State Bank & Trust Company, and at this meeting said written contract which had been prepared at the previous meeting was signed by said Reeves and said two banks, and thus became the written agreement of all of the creditors. At this meeting one of the matters sought to be accomplished was the dismissal of the bankruptcy proceedings, which the creditors feared would bring about a sacrifice of 1 assets. At this meeting it was verbally agreed, all the other creditors consenting, that Bomar should indorse the overdraft to said First State Bank & Trust Company, and allow it to share ratably in his assets. It was further verbally agreed that said Bomar would convey the 7% acres of land described in his petition to N. Harding, trustee for the Creditors’ Committee, provided said Reeves and his associates would dismiss said bankruptcy proceedings pending in the United States District Court for the Eastern District of Texas, and that said Bomar and his wife would execute a deed conveying said 7Yb acres of said land to said Harding, and that the same should be deposited in escrow to be delivered to said Harding when said, bankruptcy should be dismissed.
“E. P. Bomar was a married man, and the head of a family, and had resided continuously in Gainsville for more than 35 years, and said V/B acres of land had for many years, and ever since its acquisition, been used as a pasture lot for his milch cows, buggy and work horses and devoted to home uses, and in connection with his residence constituted a part of his homestead.
“William Reeves and his two associates did not dismiss said bankruptcy proceedings at Sherman, Tex., as they agreed to do, but resisted all the efforts of said Bomar to have the same dismissed, and said Bomar was under the necessity of employing counsel to resist said bankruptcy proceeding, and finally secured a trial upon the merits and procured a decree dismissing the petition. Said Bomar and his wife, Alice Bomar, in compliance with the agreement, executed a deed to said 7% acres of land, and deposited it in escrow to be delivered to said Harding when said bankruptcy proceedings should be dismissed; but, 'with the consent of D. T. Bomar, who had no authority to represent said E. P. Bomar, said deed was delivered to said Harding before the dismissal of said proceedings, and the same was never in fact lawfully delivered to him.
“There were two agreements between said Bomar and his creditors, one being the written agreement above referred to and the other the verbal agreement upon the part of said Bomar to convey the 7% acres of land, which he had always claimed as a part of his homestead, provided the bankruptcy proceedings should be dismissed. Said Bomar received no consideration for the conveyance of the 7% acres, except the agreement for the dismissal of the bankruptcy proceedings, which agreement was never complied with, and the said Reeves and his two associates never did intend to comply therewith. E. P. Bomar fully complied with his agreement with his creditors, and the funds turned over by E. P. Bomar under tbe written contract bave been administered by said committee, at least to tbe extent of 55 per cent, of same, and transferred to them all bis nonexempt property.
“As to tbe law, I conclude that E. P. Bo-mar entered into two contracts, one a written contract for tbe delivery to tbe Creditors’ Committee of all bis nonexempt property, which contract was between E. P. Bomar and all bis creditors.
“I find that there was a second contract, which was verbal, and it was between said Bomar on one side, and tbe Creditors’ Committee on tbe other, and that said Beeves and his two associates were parties to such verbal contract, by tbe terms of which said Beeves and his associates were not only to acquire an interest in tbe 7% acres of land, but the whole of said overdraft was to share equally with Bomar’s other creditors in the property turned over to the committee.
“I therefore conclude that the two contracts are separate, and that the deed from Bomar and wife was delivered to the trustee of the Creditors’ Committee without authority, and that said Bomar and wife received no consideration whatever for said conveyance, and the same is not binding upon said Bomar.
“I therefore conclude that the plaintiff, E. P. Bomar, is entitled to the recovery of the land in controversy, and such Judgment is accordingly entered.
“In reference to the cross-answer filed by the other defendants against the defendant Beeves and his associates, the record is not in shape for the settlement of that controversy, because there is no proof showing the exact amount of E. P. Bomar’s indebtedness, entitled to share in the property conveyed, and for that reason I conclude that it is my duty to dismiss the cross-answer without prejudice.”

We adopt the finding of fact as being supported by the evidence introduced, and approve the conclusions of law based thereon in so far as the appellee Bomar’s right to recover is concerned.

With respect to the cross-action of those defendants who sought judgment over against William Beeves, the Washington County State Bank, and the First State Bank & Trust Company, we conclude that the trial court erred in dismissing the same without prejudice. Under the facts found the judgment should have been one disposing of the merits of the plea; that is, that the complaining defendants take nothing by their cross-action and the defendants Beeves, Washington County State Bank, and the First State Bank & Trust Company recover ©f such other defendants all costs of such plea over, and judgment is here rendered accordingly. Huston v. Berry, 3 Tex. 235; Tex. & Pac. Ry. Co. v. Murphy, 46 Tex. 367, 26 Am. Rep. 272; Hander v. Baade, 16 Tex. Civ. App. 119, 40 S. W. 422.

The judgment of the district court is therefore in all respects affirmed as to ap-pellee E. P. Bomar, and reversed and rendered in favor of William Beeves, Washington County State Bank, and the First State Bank & Trust Company on the cross-pleas of the other defendants.

Affirmed in part and reversed and rendered in part.

On Motion for Behearing.

We have concluded that the motion of appellees Noah Harding, Ft. Worth National Bank, Traders’ National Bank, American Exchange National Bank, Texas Bank & Trust Company, Adoue & Lobit, and the Citizens’ State Bank for a rehearing should be granted to the extent of remanding the cause for another trial as to the issues involved in their cross-action against appellants. The reason given by the trial court for not rendering judgment on the merits was, in substance, that the facts were not fully developed. Under these circumstances it is, perhaps, our duty to remand rather than to render, even though the complaining appellees have not briefed the point thus raised by appellants.

Appellees’ motion is therefore granted to the extent indicated but otherwise overruled.