author: DAVIDSON, J. HARPER, J. DAVIDSON, J. HARPER, J.

text:
    LINGENFELTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    State’s Motion for Rehearing, Feb. 4, 1914.
    Defendant’s Motion for Rehearing, March 4, 1914.)
    State’s Motion for Rehearing.
    1. Pbostitution (§ 4) — Pbosecution—Suffi-ciency of Evidence.
    Evidence, in a prosecution for habitually associating with prostitutes, held to sustain a conviction.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    Davidson, J., dissenting.
    Defendant’s Motion for Rehearing.
    2. Pbostitution (§ 4) — Pbosecution—Suffi-ciency of Evidence»
    In a prosecution for habitually associating with prostitutes contrary to statute, evidence held to sustain a finding that accused was a male person.
    [Ed. Note — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    3. Cbiminal Law (§ 814) — Instructions— Applicability to Evidence.
    A reguested charge, in a prosecution for habitually associating with prostitutes, that the jury should only consider such testimony as bore upon accused’s status at the time the complaint was filed, was properly refused as inapplicable, where the evidence established but one status during the time to which the testimony related, which was that charged in the information.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Indictment and Infobmation (§ 176)— Pboof — Time of Offense.
    One charged with committing an offense on or about a date named may be convicted by proving an offense committed at any time within the period of limitations fixed for the crime charged, unless it is claimed that the time fixed by the evidence was so different from that charged as to be a ground of surprise so as to entitled him to a postponement to procure evidence to meet the charge made by the evidence.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 548; Dec. Dig. § 176.]
    5. Pbostitution (§ 1) — Offenses.
    - The statute making it an offense to habitually associate with prostitutes, etc., was intended to reach persons who associated with prostitutes as their equals or associated with them in public and was not intended to make a vagrant of one who merely visited such a person occasionally at her rooms.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.]
    Appeal from McLennan. County Court; Walton D. Taylor, Special Judge.
    William Lingenfelter was convicted of habitually associating with prostitutes, and appeals.
    Affirmed.
    W. L. Eason, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The.information and complaint contain several counts; the following, however, was submitted: "The said William Lingenfelter was then and there a male person who habitually associates with prostitutes and who habitually loiters in and around houses of prostitution, against the peace and dignity of the state.”

The facts show that appellant was a barber and worked at the St. Charles barbershop and received 60 per cent, of the money he took in for his wages. The state’s case is shown, substantially, by the following evidence: Minnie Lee Jones said she lived at Miss Bell Pence’s until about a week prior to her testifying, when she moved away; that she had seen the defendant in the house at night and in the morning saw him eat breakfast there several times. She lived at this house for five or six weeks; did not see defendant every day, and the testimony she gave is confined to the time she was staying at Bell Pence’s house. She did not know where defendant slept, but had seen him in Bell Pence’s bed. She said she understood defendant was working at the St. Charles barbershop. She testified, also, that she had seen defendant with a book at Miss Bell Pence’s place, and defendant had told her what she owed. This was a daybook. Miss Bell Pence is the keeper of a house of prostitution, and girls board with her and go to bed with men for money and have sexual intercourse with them. She also states that she had seen parties go to Miss Bell Pence’s for defendant’s laundry. She testifies as follows: “I had a racket with Miss Bell. She came in drunk that night and jumped on us. It has been a week since I left Miss Bell’s. I went from there to 312 North Second street. I have forgotten the landlady’s name. I have been a prostitute nearly two years. I have been traveling for a company. T have been a show girl. The last time I saw defendant down there was the night before they went fishing. I could not say what date it was. I cannot say any certain days that I saw defendant eat breakfast. Alice and Vera were there when defendant ate with us. Willie was there also.” Irene May testified she had known the defendant for about five months, and she also at the time lived at Miss Bell Pence’s house of prostitution. She moved there in February, and lived and was there until about three weeks before testifying. During the time she was there she saw defendant around Miss Bell’s house; would see him .often; that he would go to Miss Bell’s room, and she had seen defendant eat there a time or two, she believed. She used morphine, she says, for a while, given her by Dr. Smith; that she had been a prostitute for about four years. At the time she lived with Miss Bell defendant was working at the St. Charles barbershop. Grace Thompson testified: She had known Miss Bell for about five years; got 'acquainted with, defendant las.t fall at the cotton palace ; that she had lived at Miss Bell’s until three months before the trial and had seen defendant there. She said she was only testifying what she'had observed at Bell Pence’s before she left there; that she lived in the Waco reservation for nearly two years. Lee Huff testified he was a police officer, and had seen defendant in the reservation, but not many times, and had seen him also at Bell Pence’s house. The time he speaks of, he says, covers a good many months, running back to last fall. Bell Pence’s house was a bawdyhouse. He said he had been in the house frequently when he did not see the defendant there. O. P. Carlton testified he was a police officer, and had seen defendant in the reservation three or four times; seen him undress in a room. Alice Gordon testified to practically the same facts as did Yera Gordon, that they lived at Bell Pence’s house, and had been living there for five weeks, and that it was the first bawdyhouse in which they had ever lived, and had been engaged in this business nine weeks; had seen defendant at Miss Bell’s house just twice; never saw defendant eat there; that all eat at the same time, and if defendant had been there they would have seen him; that the board was paid to Miss Bell and no one else; that she had had occasion to sleep with Miss Bell; that she knew Vera Gordon, was related to her; that, in case either of them had all night company, the other one slept with Miss Bell. She said she had never seen defendant in Miss Bell’s room; that she saw the defendant there the first of the month and one time before; did not know defendant before that time; he did not stay there that night. While he was there this witness saw him talking to Miss Bell. Vera Gordon testified to practically the same facts. She stated she slept with Miss Bell sometimes. Billy Smith testified he lived at 822 Austin street; and had lived there over a year; was a married man, and he and his family lived together at 822 Austin street; that he knows defendant; he rooms at his house; that “defendant’s room is the first one as you enter my house to the right”; that he had been there several months; keeps his trunk there. Ed Fuller testified he ran the St. Charles barbershop; that it adjoins .the saloon; that defendant works in the barbershop; that he knew nothing about defendant going to the reservation. John Swafford testified appellant worked at St. Charles barbershop; that he (witness) owned half interest in the shop. This is practically the ease on the facts.

Appellant contends the state failed to make a case: First, because there is no evidence defendant was a male person; and, second, it does not prove the allegations contained in the information that he habitually associated with prostitutes and habitually loiters in and around houses of prostitution. The only evidence in the entire record showing appellant was a male person is found in the following language: “Defendant gets sixty per cent, of what he takes in.” This was referring to work at the barbershop as a barber. We would hardly feel justified in reversing the case because the evidence does not show he is a man, with this statement in the record. We would suggest that the prosecution should prove without leaving to inference material facts in a case when they have the witnesses on the stand by whom they can prove such facts. Circumstantial evidence ought not to be resorted to when positive evidence is before the court. It would have been no trouble, if defendant was in fact a man, for the state’s witnesses to testify to the fact that he was a man.

It is contended the evidence is not sufficient to sustain the contention that appellant habitually associated with prostitutes and habitually loiters in and around houses of prostitution. We believe the state has not met these requirements of the statute. In the case of Ellis v. State, 145 S. W. 339, this court, speaking through Judge Harper, said: “We hardly think the evidence would support the conviction. The statute was intended to reach a class of persons who associated with prostitutes as their equals, or who associated with them in. public, and was not intended to make a vagrant of a person who, at night, went occasionally to the room of a woman of loose morals, and yet who at no other time was seen in her company. The word ‘habitually’ has a definite and fixed meaning in law, and in saying ‘habitually associated with prostitutes’ it was intended to reach a class of persons who made a habit of associating with them, either in public or private, and going to their room occasionally at night, even though it was for an immoral purpose, would not bring one within the definition of this offense.” Now, the state’s case is: They had seén him about the house of Miss Bell Pence’s, a house of prostitution, and the state’s evidence goes to show perhaps he had been seen a time or two in her bed, though this is practically denied by inmates of the house, Alice and Vera Gordon. They say they were in the habit of sleeping with Miss Bell. Appellant, under the state’s view of the case, was at this placé on several occasions and ate breakfast they say. We are of opinion, under the decision in the Ellis Case, supra, this is not sufficient.

Under that authority, the judgment is reversed, and the cause is remanded.

State’s Motion for Rehearing.

HARPER, J.

On a former day of this term this case was reversed, but on a mature deliberation and study of the testimony we have arrived at the conclusion that, if the tes-. támony offered by the state should be believed to be true, it would support the verdict, and the rehearing should be granted, and the judgment affirmed.

Minnie Lee Jones testified“I did live at Miss Bell Pence’s until about a. week ago, when I moved away. I am acquainted with the defendant, Lingenfelter. I have seen the defendant in the house there at night and in the morning. I have seen the defendant eat breakfast at the table there quite a number of times. It was breakfast for us. It was between 11 and 12 o’clock. I lived at Bell Pence’s five or six weeks. I did not see defendant there every morning. I did see defendant there most of the mornings during that time. My testimony as given is confined to the time that I was staying at Bell Pence’s. I do not know where defendant slept. I have seen defendant in Miss Bell’s bed. I have heard defendant tell certain parties to make themselves at home. I do not know who these friends were. I understood that the defendant was working at the St. Charles barbershop two or three weeks ago. I have seen the defendant with the book at Miss Bell’s place, and defendant has told me what I owed. That was a daybook. I have turned some money over to the defendant and some to Miss Bell. Miss Bell is a keeper of a house of prostitution, and girls board with her. The girls down there go to bed with men for money, and have sexual intercourse with them. The defendant would eat at the same table with the girls and with Miss Bell. I have seen them come to Miss Bell’s room for the defendant’s laundry.” Irene May testified she was a prostitute and lived in Bell ‘Pence’s house of prostitution for about five months; that she knew appellant, and saw him there nearly every night during the time she stayed there, and that he would go to Miss Pence’s room; that she had seen appellant eat breakfast there. Grace Thompson testified that she had lived at Bell Pence’s, and during the time she was there she saw defendant in this house frequently, and would see him there at night and at breakfast; that when she saw him he generally was in Miss Bell’s room. Alice Gordon testified she went automobile riding with appellant, admitting she was a prostitute. Lee I-Iuff testified that Bell Pence’s house was a bawdyhouse, and he had seen appellant at this house and in different parts of the house; that he had seen him in the early morning before daylight, and also about 8 o’clock in the morning. C. P. Carlton said he had seen him down there undressed. This was the testimony offered by the state to show that appellant habitually associated with prostitutes and habitually loitered in and around houses of prostitution, and we believe it would justify a jury in so finding.

We adhere to the holding announced in Ellis v. State, 145 S. W. 339, but do not think the evidence brings this ease within the rule there announced. He was not “a man who at nighttime went occasionally to the room of a woman of loose morals”; but in this ease it appears that he was sleeping in this house of prostitution, eating meals with the prostitutes, and associating with them as his equal. He apparently was bookkeeper, and in one instance he collected the money due the madam by the girls. It is true that Billy Smith testified that appellant rented a room at his house, and had his trunk there, but on cross-examination said he did not know where appellant slept, and would not say that he had ever slept in the room rented from him. Ed Fuller testified he had seen appellant at work in the St. Charles barbershop, but one of the owners of the barbershop testified appellant did not work there regularly, but worked extra, and when he worked got 60 per cent, of what he took in. But take all the evidence adduced on the trial, and we are of the opinion that the rehearing should be granted, and it is so ordered, and the case is now affirmed.

DAVIDSON, J.

(dissenting). I see no reason for changing the opinion in this case. I do not deem it worth while to write further, but adhere to what I had to say in the original opinion, and therefore dissent.

Defendant’s Motion for Rehearing.

HARPER, J.

Appellant has now filed a motion asking a rehearing. We have carefully read his motion and the argument thereon, and, being still of the opinion the evidence supports the verdict, we would not write further, only that appellant insists that we pass on some other questions raised; the first being that there is no evidence showing that defendant is a male person, and the court should have instructed a verdict of not guilty. We have read the record again, and, while he is generally termed “defendant” in the statement of facts, yet Mr. Swafford testified that defendant worked extra at the barbershop and received 60 per cent, of what he took in, and no question that he was a male person is raised by the testimony adduced on the trial.

The charge requested, that “the jury would only consider such testimony as bears upon the status of the defendant at the time the complaint was filed,” was not called for by the testimony. The whole testimony establishes but one status during the entire period of time to which the testimony related, and related to a time charged in the information.

The law in this state is that a person charged with an offense on or about a named date can be convicted of that offense at any time within the period of limitation fixed for that offense, unless a person on trial should claim that the time fixed by the evidence was so different to that charged in the information as to be ground for surprise, and he should for that reason ask for a postponement that he might obtain evidence to meet the charge as made by the testimony. There is no contention that appellant was surprised by the testimony, or that he could at a future trial make any more effective defense, and under sucli circumstances the charge of the court is not subject to the criticism contained in appellant’s bill of exception No. 4.

Appellant insists that the evidence in this case brings him within the rule announced in the Ellis Case, 145 S. W. 339, wherein this court said: “The statute was intended to reach a class of persons who associated with prostitutes as their equals, or who associated-with them in public, and was not intended to make a vagrant of a person who, at night, went occasionally to the room of a woman of loose morals, and yet who at no other time was seen in her company.” This is a correct construction of the statute, and the testimony in this case would show that appellant is a person who associated with the prostitutes as his equal, habitually visiting this place both day and night, eating at the table with them, keeping his clothes at this place, and having nis washwoman call there and get them, and if there ever will be a ease that can be brought within the provisions of the Code this is one of them, as shown by the testimony hereinbefore copied.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    PENCE v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Belle Pence was convicted on a charge that, while the owner and keeper of a disorderly house, she sold and gave intoxicating liquors to a certain person, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

The complaint in this case charges that appellant was the owner and keeper of a bawdyhous^ and in said house did sell and give to Alice Gordon intoxicating liquors. When tried, she was convicted, and her punishment assessed at confinement in the county jail for 60 days and a fine of $200. No statement of facts nor bills of exceptions accompany the record, and under such circumstances no question is presented in the motion for a new trial we can review. Affirmed.


author: PRENDERGAST, P. J.

text:
    EDWARDS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Appeal from District Court, Titus County; H. E. O’Neal, Judge.
    Arch Edwards was convicted of assault with intent to kill, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Prom a conviction for an assault with intent to kill, with the lowest punishment assessed, appellant prosecutes this appeal. There is no statement of facts, in the absence of which no question is raised that can be reviewed. The judgment is affirmed.


author: FLY, C. J.

text:
    GLOVER et al. v. PFEUFFER et al.

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.
    Rehearing Denied Feb. 25, 1914.)
    1. Advebse Possession (§ 13) — “Peaceable Possession.”
    “Peaceable possession” is (by statute) such possession as is continuous and not interrupted by adverse suit to recover the estate, and hence the possession of plaintiffs, maintained against all the world except trespassers who entered and took possession of a part of the land, was peaceable where no suit was instituted.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13.

    Por other definitions, see Words and Phrases, vol. 6, p. 5255; vol. 8, p. 7749.]
    2. Advebse Possession (§ 13) — Definition.
    “Adverse possession” is (by statute) an actual and visible appropriation of land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.
    [Ed. Note. — Por other cases, see Adverse-Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13.

    Por other definitions, see Words and Phrases, vol. 1, pp. 227-235; vol. 8, p. 7568.]
    3. Adverse Possession (§ 47) — Continuity —Entry of Owner.
    Under the statute of limitations, the continuity of one’s adverse possession cannot bé broken by entry of the owner, but only by suit brought.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 234, 235; Dec. Dig. § 47.]
    4. Adverse Possession (§§ 40, 58) — Possession Exclusive of Former Owner.
    Under the statute of limitations, possession must be one adverse and hostile as to the owner, though not as against all the world; and such possession for ten years perfects a title.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 148-183, 279-281; Dec. Dig. §§ 40, 58.]
    5. Adverse Possession (§ 46) — Continuity —Interruption.
    An adverse possession to perfect a title must be continuous and exclusive so far as the owner is concerned, and, if there is an interruption of possession, the statute of limitations is checked, because, on interruption, the possession of the owner, in contemplation of law, is at once resumed; but such principle is based on the fact that the land becomes vacant, and, if some one else other than the one claiming by limitation is in possession, it cannot be resumed by the owner upon any fiction of law.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. § 46.]
    6. Adverse Possession (§ 48) — Continuity —Entry by Trespasser.
    Plaintiffs’ peaceable and adverse possession as against defendants was not broken by an entry upon the land by trespassers -without the consent and over the protest of plaintiffs, who ousted such trespassers; and such entry could not inure to the benefit of those claiming under such trespassers, since plaintiff was never disseised.
    [Ed. Note. — Por other cases, ,see Adverse Possession, Cent. Dig. §§ 236, 237; Dee. Dig. § 48.]

      7. Adveese Possession (§ 48) — “Disseisin.”
    To constitute “disseisin” the person in possession must be forcibly expelled from the land, or there must be some act regarded in law as equivalent to an expulsion; a mere entry on another’s land is no disseisin unless accompanied by expulsion.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 236, 237; Dec. Dig. § 48.

    For other definitions, see Words and Phrases, vol. 8, pp. 2123-2127.]
    8. Appeal and Error (§ 843) — Review—Assignments oe Error.
    Where the jury, in trespass to try title, made no finding on the issue of five years’ limitation, assignments raising that question were immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § 843.]
    9. Appeal and Error (§ 972)— Trial (§ 106*) — Review — Discretion oe Trial Court — Argument.
    The line and method of argument to be pursued by counsel in any stage of a trial is largely in the discretion of the trial court, and, unless an abuse of such discretion clearly appears, the court on appeal will not reverse the judgment simply because it thinks a different course should have been pursued.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3847; Dec. Dig. § 972; Trial, Cent. Dig. § 267; Dec. Dig. § 106.]
    10. Tut at. (§ 133) — Harmless Error — Argument.
    In trespass to try title, where the court excluded all of the objectionable part of the argument for defendant and instructed the jury to disregard it, such argument was not prejudicial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    11. Appeal and Error (§ 637) — Record-Bills oe Exception.
    In the absence of bills of exceptions proved as required by statute, only the bills as qualified by the trial judge will be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2784, 2829; Dec. Dig. § 637.]
    12. Exceptions, Bill oe (§ 54) — Record — Bystander’s Bill — “Bystander.”
    Under Rev. Civ. St. 1911, art. 2067, providing that a bystander’s bill of exceptions may he had by procuring the signatures of three respectable bystanders, citizens of the state, attesting the correctness of the bill, the term “bystander” means one who stands near, a spectator, one who has no concern with the business transacted, and, under no circumstances, 'can the attorneys for either party be bystanders; and hence a bill of exceptions attested by the attorney for appellants and by the attorney of part of the appellants on a former appeal could not be considered because not proved up by three bystanders.
    [Ed. Note. — For other eases, see Exceptions, Bill of, Cent. Dig. § 89; Dec. Dig. § 54.

    For other definitions, see Words and Phrases, vol. 1, p. 939.]
    13. Trial (§ 191) — Instructions—Assuming Facts.
    In trespass to try title, a charge assuming that plaintiffs were in actual possession of the land when it was entered by trespassers, but concluding with the admonition, “If you find from the evidence that she, or they, were in possession of the same,” was not objectionable as assuming such possession.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    14. Trial (§ 296) — Instructions—Construction,
    In trespass to try title, a paragraph of the charge attacked as assuming plaintiff’s possession at a certain time should be read and construed in connection with the succeeding paragraphs as to possession.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. §

    15. New Trial (§ 105) — Newly Discovered Evidence — Impeaching Evidence.
    New trials are rarely granted for newly discovered testimony to impeach or contradict a witness for the opposite party.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 183, 221-223, 229; Dec. Dig. § 105.]
    16. New Trial (§ 116) — Motion—Time.
    A motion for a new trial, filed, without any affidavits, on the day before the court closed, did not give the opposite party an opportunity to answer, and might be overruled on that ground.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 238, 238½, 240, 241; Dec. Dig. § 116.]
    Appeal from District Court, Bexar County; R. H. Ward, Judge.
    Action by Juan F. Rodriguez and others against Joe Priest and others, in which defendants H. B. Glover and Adele Glover filed a cross-bill against defendants Ida C. Pfeuf-fer, H. E. Hildebrand, and Joseph A. Burger. The issues as between all the others than the parties to the cross-bill were disposed of on appeal (126 S. W. 1187), and the case remanded for retrial on the issues under the cross-bill. Judgment was rendered for Ida C. Pfeuffer, Hildebrand, and Burger, and the Glovers appeal.
    Affirmed.
    Henry E. Vernor, of San Antonio, for appellants. Wm. Aubrey, M. W. Davis, and Guinn & McNeill, all of San Antonio, for ap-pellees.

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

       Application £or writ of error pending in Supreme Court.

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

   FLY, C. J.

This is the second time this ease has been before- this court, being reported as Rodriguez v. Priest, 126 S. W. 1187. On the former appeal the judgment was affirmed as to all the parties, except appellants and appellees herein, and as to all the land except the 37 acres herein involved. There is a full statement of the case in our opinion on the former appeal, and it need not be repeated. The cause was tried by jury and resulted in the following verdict: “We, the jury, render a verdict in favor of the defendant, under the plea of the ten years’ statute of limitations.” Upon which a judgment was rendered in favor of Ida C. Pfeuffer, H. E. Hildebrand, and Joseph A. Burger for the land in controversy and all costs of suit. This appeal was perfected by Adele Glover and her husband, H. B. Glover.

The first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and twentieth assignments of error assail the sufficiency of the evidence to sustain the verdict of the jury, and necessitate a review of the evidence' and the authorities bearing thereon.

The evidence for appellees shows that Hildebrand and Stribling went into possession of the land in controversy in 1895, that they fenced it, and had tenants in possession of it from 1895 to 1908, when the land was first claimed by appellants. It was testified by ap-pellees that two men, Miller and Schorp, tools; possession of a part of the land in the latter part of 1899, and held possession of it until ousted therefrom in the early part of 1901. The action of trespass to try title, through which Miller and Schorp were ousted, was instituted in September, 1900, about a year after Miller and Schorp admittedly went into possession. The evidence of appellants was to the effect that Miller and Schorp were in possession of the land for five or six years before they were ousted, that they built houses and fences and cross-fences thereon, and exercised undisputed possession over the land. The reason given by Hildebrand for his delay in instituting proceedings to dispossess Miller and Schorp was that he was endeavoring to persuade them to leave. The tenants of Hildebrand and Stribling, with some exceptions, did not live on the land. None of the tenants testified, although it was stated that efforts were made to find them. Schorp was holding adversely to Hildebrand and Strib-ling up to the latter part of 1900, and Miller so held up to the time he was ousted in 1901. Appellee Hildebrand testified: “During the entire time Miller and Schorp were upon the land, we had tenants on the land. Ramirez was on there during that time. It was several months after Schorp and Miller went upon the land that we instituted suit against them. I tried to induce them to leave the land. They stayed, and, after I found they would not do it, there was nothing left except to bring suit. * * ⅜ I don’t think it was long after they refused to vacate the land, when I couldn’t induce them to leave peaceably, I had to resort to a suit. Miller always refused to leave the land. He said he was going to get title to the land, but Mr. Schorp spoke in a different way about it. He said if he couldn’t get title to the land he didn’t want it and he would get off and very shortly after he was satisfied after consulting his attorney who advised him he should get off and then it was a question of his time for leaving.”

Henry Fest, a witness for appellees, testified that the land was fenced in 1896, and has been fenced ever since. He swore that the “shack” built by Hildebrand was not there when he went to Schorp’s house on the land.

The evidence clearly indicates that Miller and Schorp were in possession of at least a portion of the land for perhaps a year, and that they built houses and lived thereon, and Miller only left the land when expelled by an action of trespass to try. title. In order to obtain a title by limitation, it has been held that there must be adverse possession, not only as to the owner but as to every one. But in the case of Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, it is stated that the Supreme Court does not “agree that it is always true that a possession in order to be sufficient must be adverse to the whole world.” In that case the owner of the land was the state, but the rule would be applicable to one owner as well as another, it would seem. The court illustrates its holding in this way: “If one who had held such a possession for the requisite period” of time “should become the plaintiff in trespass to try title, the bare proof of the facts stated might not enable him to recover, since it would not show title against the world. If he should go further, however, and show that the title had been in one as to whom his possession had been adversely held, the question would arise whether or not he had acquired that title. As has arisen in the cases referred to, the question has been as to the sufficiency of such a possession as a defense, and we do not dissent from the view that it may be sufficient for that purpose.”

This case, however, is not one where the defendant holds the land adversely to the one claiming it, but in subserviency to some other title; but .the question is: What effect does the entry upon or occupancy of the land by a trespasser have upon the possession of the person seeking to perfect a title by limitations? We have been unable to find any authority bearing directly upon this point in this state, although it would seem that the question would have arisen in numerous instances. Under the evidence of ap-pellees, which the jury found to be true, ap-pellees were not ousted from the possession of the entire land by the two trespassers, but maintained their possession against all the world except the trespassers who entered and took possession of a portion of the land. Was the continuity of appellees’ possession broken thereby? In Texas “peaceable possession” is defined as being such possession “as is continuous and not interrupted by adverse suit to recover the estate.” Undoubtedly, the possession of appellees, under that definition, was “peaceable” because no suit was instituted. “Adverse possession” is defined to be “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” The possession of appellees was evidenced by “an actual and visible appropriation” of the land for over ten years “commenced and continued under a claim of right inconsistent with and hostile to the claim” of appellants, unless the contih-uity of the possession was broken by the entry of trespassers upon the land without the consent and over the protest of appellees. The trespassers were not holding for appellants, but their claim was just as antagonistic to the claims of appellants as to those of appellees.

Under the common law the entry of the owner upon the land held by the person seeking to gain a title by limitations would interrupt the running of the statute, but the statute, hereinbefore quoted, has so changed the common-law rule that the continuity of possession cannot be broken by an entry of the owner, and a peaceable possession can only be interrupted by a suit being instituted and prosecuted. Shields v. Boone, 22 Tex. 193; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609. In the last-cited case the owner entered into possession of a part of the land and erected a fence so as to cut the party in possession off from the north one-half of the land. The latter in a few days tore down the fence and removed the material, and the suit was brought soon afterwards. Although the party claiming to own the land made an entry upon it and fenced one-half of it, the Supreme Court held: “Logan continued as before in the actual possession and use of the land, which was otherwise inclosed with other lands, as his pasture, and did not yield possession and was not ejected therefrom by the acts of Robertson. The latter never gained the possession of any part of the land, but the whole continued in Logan’s possession.” That is the law as to an entry by the owner, but that does not answer the question involved in this case, which is: Was the continuity of the possession of appellees broken by the entry of trespassers? If they had been representing the appellants, it Is clear that the continuity would not have been interrupted. If they had been representing appellants, their entry upon the land would not have dispossessed appellees, and we fail to see that their entry as trespassers, who were not tolerated by appellees, should interrupt the possession of appellees so far as appellants are concerned.

Recurring to the question of whether the adverse possession required by statute in order to perfect a title by limitation shohld be adverse as against the world or merely as against the owner, it may be stated that there has been considerable conflict of opinion among some of the Courts of Civil Appeals, which has been reconciled, however, by the case of Smith v. Jones, herein cited, and it is now the settled law of Texas that the possession must be one adverse and hostile as to the owner. Speaking on this subject, this court held, in Price v. Eardley, 34 Tex. Civ. App. 60, 77 S. W. 416: “If the statute required a possession adverse to the claims of every one, there might be some reason of the contention of appellants, but it does not, the clear intention being to require a possession adverse to the true owner.” In that case the cases holding a contrary view were reviewed and practically overruled, and the Supreme Court refused a writ of error. The opinion has often been approvingly cited. Such being the law, and adverse possession of the land having been held by appellees for ten years, they perfected a title by limitation.

The possession must be continuous and exclusive so far as the owner is concerned. If there is a break in the possession of him who seeks a title by limitation, the statute of limitation is checked, because when it ceases or is interrupted the possession of the owner, in contemplation of law, is at once resumed. That principle of law, however, must be based on the fact that the land becomes vacant, for if some one else, other than the one claiming the land by limitation, is in possession, it could not be resumed upon an'y fiction of law by the owner. There are a number of cases in which it was held that the entry upon and occupancy of land by squatters or trespassers in opposition to the wishes of the person in possession would not interrupt the running of the statute. Batchelder v. Robbins, 95 Me. 59, 49 Atl. 210; Chastang v. Chastang, 141 Ala. 451, 37 South. 799, 109 Am. St. Rep. 45; Ballard v. Hansen, 33 Neb. 861, 51 N. W. 295.

If appellees in this case had been forcibly ousted by those who entered upon the land, from the entire land, and the trespassers had held the whole of it for a time sufficient to cause a break in the continuity of possession, there might be a basis for the claim that there was not continuous, adverse possession; but, according to the testimony of Hildebrand, he at no time was dispossessed of the entire land by Miller and Schorp, but at all times exercised acts of ownership over it and had it fenced. There was never a break in the possession of the land, which was adverse to appellants. When Schorp admitted that he could not hold adversely to appellees, his possession was that of appel-lees, and Miller was afterwards ousted.

In the case of Batchelder v. Robbins, herein cited, the Maine Supreme Judicial Court held: “As to the occupants of the little patches of ground used for gardens, these may well have been found by the jury either to have been occupiers by permission of the plaintiff, or that they were mere trespassers, squatters, not disseisors. Entries by such persons did not work an interruption.”

In the cited case of Ballard v. Hansen, the Supreme Court of Nebraska held: “We do not understand that a mere stranger, having no interest in the premises, and claiming none, can interrupt the running of the statute.”

In the late case of Point Mountain Lumber Co. v. Holly Lumber Co., 71 W. Va. 21, 75 S. E. 197, the Supreme Court of Appeals of West Virginia held, under a statute similar to that of Texas, that the entry of a stranger would not interrupt the continuity of possession. The court said: “But we do not think our statute should receive an interpretation extending it to other than the owner of the legal title, and certainly not to the character of possession held or claimed hy David Mc-Clanahan, the real point of decision in this case.” Again, the court said: “John Mc-Olanahan having been in possession and actually residing on the land in controversy with inclosed and cultivated fields, if defendant relied on the protection of the statute, was not the burden on it to show that David McClan-ahan wás occupying the land for it or under it? Would his occupancy as a stranger to the title claimed by it interrupt the continuity of John McClanahan’s possession, or render it less exclusive of the owner of the better title? We think a proper construction of our statute requires an answer in the negative.”

In the case of Inhabitants of Cohasset v. Moors, 204 Mass. 173, 90 N. E. 978, it was held that, when the party claiming title by limitation was in possession of the land by disseisin, “the effect of trespassers or entries upon the land by strangers, in reference to its interruption of her possession, was to be judged in the same way as if she had been the owner.”

The possession of appellees being peaceable and adverse, so far as appellants were concerned, the entry upon the land by trespassers and squatters without the consent and over the protest of appellees could not inure to the benefit of appellants and did not interrupt the continuity of appellees’ possession. The latter were never dispossessed of the land by the trespassers and they were ousted by appellees. There was no testimony tending to show that appellees ever acquiesced in the possession of the trespassers, and appellants can gain no advantage by their illegal act. Appellees were never disseised, because to constitute a disseisin the person in possession must be forcibly expelled from the land or there must be some act regarded in law as equivalent to expulsion. A. mere entry on another’s land is no disseisin unless it be accompanied by expulsion. Altschul v. O’Neill, 35 Or. 202, 58 Pac. 95.

The question as to whether appellees used reasonable diligence in expelling Miller and Schorp from the land was fairly and clearly submitted to the jury, and they found in favor of appellees. There was testimony that tended to sustain the verdict. It is not contended by appellants that the issue was not a proper one.

As the jury made no finding on the issue of five years’ limitation, assignments raising that question are immaterial. This disposes of the second, eleventh, twelfth, fourteenth, twenty-first, and twenty-second assignments of error.

It seems that the court gave special instruction No. 5, requested by appellants, and then withdrew it because it was deemed to be in conflict with the main charge, and that action is assailed by appellants on the sole ground that it was prejudicial to appellants “since it was calculated to create the impression upon the minds of the jurors that appellants had trapped the trial court, or that the trial court was of the opinion that appellants ought not to recover.” What the charge was does not appear in the statement, and there is nothing in the record to indicate that it was not properly withdrawn or that its withdrawal injured appellants.

The fifteenth assignment of error is based on objections to the argument of one of the attorneys for appellants. The court did not approve of the bill of exceptions. as presented by appellants, and it appears from the statement of the trial judge that all of the objectionable part of the argument heard by the couj;t was excluded and the jury was instructed to disregard it. The court heard no argument about the land being the “nest egg” of Miss Pfeuffer. As stated by the Supreme Court in Railway v. Garcia, 62 Tex. 289, cited by appellants: “The line and method of argument to be pursued by counsel in any state of a trial is subject largely to the discretion of the trial court, and, unless it appears very clearly that such discretion has been abused, this court would not feel authorized to reverse a judgment simply because it might be of the opinion that a different course should have been pursued.”

No prejudice has been shown to have arisen from the arguments stated by the court to have occurred in his qualification of the fifteenth, sixteenth, and seventeenth assignments of error. In the absence of the bills of exception being proved as required by the statute, only the bills as qualified by the trial judge will be considered. In article 2067, Rev. Stats. 1911, it is provided thát a bystander’s bill of exceptions may be had by procuring the signatures of three respectable bystanders, citizens of this state, attesting the correctness of the bill. The term “bystander” means “one who stands near; a spectator; one who has no concern with the business transacting.” Webster’s Dictionary. Under no possible circumstances could the attorneys for either party be classed as “bystanders.” In the case of State v. Jones, 102 Mo. 305, 14 S. W. 946, 15 S. W. 556, the matter in question was directly before the Supreme Court of Missouri, and it was held that an attorney in the ease was not a “bystander” in the contemplation of the law. The court said: “The object of the statute in requiring the refused bill to be signed by three bystanders, respectable inhabitants, etc., was doubtless to obtain to such a bill the signatures of disinterested spectators, and not those whose interests are at war with such an attitude of indifference.” One of the attesting witnesses to the bills of _ exception in this case was the attorney for appellants, and another was the attorney of part of the appellants on a former appeal of this case. The bills cannot be considered, because not proved up by three bystanders.

The eighteenth assignment of error con-ceras itself about a matter utterly immaterial and it is overruled.

The nineteenth assignment of error assails the fifth paragraph of the charge of the court; the only ground of error set up demanding consideration being that the court assumed that appellees were in actual possession of the land when Miller and Sehorp entered upon it. The charge does seem to assume such possession in the first part thereof, but it closes with the admonition, “if you find from the evidence that she, or they, were in possession of the same.” This, we think, removed all ground of complaint. The paragraph assailed should also be read and construed in connection with the succeeding paragraphs as to possession.

The twenty-third and twenty-fourth assignments of error are disposed of adversely to appellants in the consideration of other assignments of error.

The twenty-fifth assignment of error ,iS as to newly discovered testimony, and is

overruled. The evidence was sought merely to contradict the testimony of John Lousta-nau. New trials are rarely granted to obtain newly discovered testimony to impeach or contradict a witness for the opposing party. Scranton v. Tilley, 16 Tex. 183; Railway Co. v. Sciacca, 80 Tex. 350, 16 S. W. 31. The evidence was cumulative and contradictory to other witnesses of appellants, and was not probably true. Diligence was not shown in regard to the testimony.

The motion for new trial was filed on January 31, 1913, the affidavits not being shown to have been filed, and the court closed on February 1, 1913. It has been held that a motion filed under such circumstances did not give the opposite party an opportunity to answer it, and the court is justified in overruling it on that ground. Railway v. Scarborough, 101 Tex. 436, 108 S. W. 804; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85.

The cross-assignments of error need not be considered.

The judgment is affirmed.


author: HALL, J.

text:
    STINSON et al. v. SNEED.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1914.
    Rehearing Denied Feb. 21, 1914.)
    1. Chattel Mortgages (§ 229) — Sale by Mortgagor — Consent of Mortgagee.
    On the issue of the conversion of mortgaged cotton by a sale by the mortgagor raised in a suit for the foreclosure of the mortgage lien, whether the mortgaged property had been sold with the consent of the mortgagee held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 479-483; Dec. Dig. § 229.]
    2. Chattel Mortgages (§ 219) — Sale of Mortgaged Property — Lien.
    Where chattels, subject to a mortgage, are sold with the consent of the mortgagee, purchasers acquire them free from the mortgage lien.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 473-475; Dec. Dig. § 219.]
    3. Vendor and Purchaser (§ 85) — Actions for Purchase Price — Jury Question.
    In a suit by a vendor of land to recover the purchase price, the question whether the contract had been mutually rescinded held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 141-143; Dee. Dig. § 85.]
    4. Vendor and Purchaser (§ 87) — Contracts — Rescission—Effect.
    When a contract for the sale of land is rescinded, it is wholly annulled, and the rescission carries with it a provision in the contract that the vendor should have a lien upon crops raised on the land by the vendee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 147; Dec. Dig. § 87.]
    5. Election of Remedies (§ 3) — Vendor and Purchaser (§ 93) — Remedies of Vendor for Breach.
    Where a purchaser of land breaches his contract, the vendor may sue for specific performance and foreclose his chattel mortgage on the crops to be raised, or he may rescind and recover damages for the breach; but, to entitle him to either remedy, his pleadings must be accordingly, and the pursuit of one remedy constitutes an election.
    [Ed. Note. — For other eases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3; Vendor and Purchaser, Cent. Dig. §§ 153, 154; Dee. Dig. § 93.] ■ , |
    6. Election of Remedies (§ 3) — Inconsistent Remedies.
    A vendor of land cannot rescind a contract of sale to the extent of resuming possession of the land and improvements, and at the same time affirm the contract in part by recovering a judgment for part of the contract price.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.]
    7. Vendor and Purchaser (§ 330) — Remedies of Vendor —Action for Breach — Measure of Damages.
    Where a purchaser of land breaches a contract of sale, the vendor’s measure of damages is the. difference between the contract price and the then salable value of the land with interest from the date of the breach.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 953-956; Dec. Dig. § 330.]
    8. Vendor and Purchaser (§ 126) — Contracts — Rescission—Recovery of Rents.
    Where a purchaser of land was admitted into possession without payment of any of the purchase price, the vendor, upon rescission of the contract, is entitled to recover for the value of the use and occupation of the land, whether the rescission was by mutual agreement or because the vendor could not convey a marketable title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 229, 230, 232; Dec. Dig. § 126.]
    9. Vendor and Purchaser (§ 126) — Contracts — Remedies of Purchaser.
    Where a contract for the sale of land is abrogated because of the inability of the vendor to convey a marketable title, the purchaser who was admitted into possession without any payment on the purchase price is entitled to offset, as against the vendor’s right of action for use and occupation, the. value of his improvements, and special damages which he may have suffered; but, if the inability of the vendor to convey good title is not the result of fraud or willfulness, the vendee cannot recover anything for the loss of his bargain.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 228, 230, 232; Dec. Dig. § 126.]
    10. Mortgages (§ 154) — :Mortgagee as Bona Eide Purchaser-^Constructive Notice-Record.
    Where one, who had a contract for the purchase of land, was not in possession at the time the owner mortgaged it, the registration of the contract as a chattel mortgage only to give the owner a lien upon crops raised by the purchaser was not constructive notice to the mortgagee.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 344-353; Dec. Dig. § 154.]
    11. Vendor and Purchaser (§ 260) — Lien on Crops — Reservation — Registration — Suottciency oe Notice.
    Where a contract between the owner of land and the purchaser, who was admitted into possession without any payment on the purchase price, created a lien upon the crops to be grown, and was filed and registered before the crops were grown, it is sufficient notice under the statute to perfect the owner’s lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.]
    Appeal from District Court, Cottle County; Jo A. P. Dickson, Judge.
    Action by J. B. Sneed against B. W. Stin-son and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Bell & Bell, of Paducah, and Dashiell, Crumbaugh & Coon, of Terrell, for appellants. Jas. M. Whatley and Browne & Hawkins, all of Paducah, for appellee.

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

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

   HALL, J.

Appellee, plaintiff in the court below, filed this suit in the district court of Cottle county, against B. W. Stinson, S. S. Forest, J. A. Clary, Seymour Thompson, J. P. Watkins, Mays, Street &' Alexander, Burke Wilkerson, and W. I. Pace, to recover the several sums of money hereinafter set out. On December 1, 1911, appellee Sneed and appellant Stinson entered into a contract for the sale of 160 acres of land, situated in Cottle county. It was stipulated that Stinson should pay $31.50 per acre for the land as follows: $3.50 per acre January 1, 1915; $3 per acre January 1, 1917; $5 per acre January 1, 1919; and $20.50 per acre January 1, 1922; that Stinson should have possession by January 1,1912; that he should farm the same during 1912; that Sneed should have a lien on the crops to secure the performance of the contract on the part'of Stinson; that by January 1, 1913, Stinson should place improvements on the land to the extent of $750 or pay that sum in cash, which payment should be credited upon total purchase price, Stinson to pay taxes for the year 1912; that for the deferred payments Stinson should execute to Sneed his several promissory notes, secured by a vendor’s lien reserved in the deed, and further secured by deed of trust; that Sneed should execute to Stinson a conveyance; and that the notes and deed of trust should be executed by Stinson when the improvements were placed by him on the land or the $756 payment, as provided in the contract, should be made by him. The contract further provided as follows: “The said notes to bear interest at eight per cent, per annum, payable annually from January 1, 1912, and providing failure to pay one may mature all, also attorney’s fees for collection.” On the 16th day of December, 1911, the following addition was made to said contract: “Said Sneed has this day sold to said Stinson on-same terms and conditions as set forth in the foregoing contract, eighty additional acres of land lying immediately south of and adjoining the tract above described.” The plaintiff alleged a breach of the contract and sued for damages amounting to $1,578.30, alleging that the contract was duly filed as a chattel mortgage and that the other defendants had purchased cotton raised by Stinson on the land, and prayed for judgment against them for the value of the cotton. Defendant Pace was alleged to be a nonresident, owning property in Cottle county, and writs of attachment were issued against both Stinson and Pace. There was a prayer for foreclosure of the chattel mortgage lien. The defendant Stinson answered by general and special demurrer, general denial, and specially alleged that he made the contract, sued on, but that it was understood plaintiff should convey the land in fee, free of' liens; that after he had gone into possession, he learned that plaintiff had incumbered the land to secure a lien of $35,000, which lien had been duly recorded and that thereby plaintiff had breached the contract; that on January 1st he was ready, able, and willing to perform his part of the contract, and would have done so if plaintiff had made him a deed in fee conveying the land, free-of incumbrances; that plaintiff had never tendered him a deed and he pleaded in re-convention for damages to his cotton by reason of injuries thereto by plaintiff’s cattle; alleged that the land had been surrendered to plaintiff; that he had put improvements on same to the extent of $125; that the land had increased in value to $35 per-acre; and prayed for judgment against plaintiff for the difference in the value of the-land. The remaining defendants,' who were sued for conversion of the cotton covered, by the mortgage, alleged that they purchased the same in the open market; that plaintiff had consented to its sale, and by his-acquiescence was estopped from recovering, judgment against them. The defendant Pace-further moved to quash the writ of attachment and reconvened for actual and exemplary damages for the wrongful levy of the writ upon land belonging to him.

The court instructed a verdict for plaintiff against ajl of the defendants, except Clary and Wilkerson, for the sum of $1,499, principal, interest, and attorney’s fees, and entered a judgment accordingly. As near as we can ascertain, this judgment was rendered for the $750 cash payment, claimed to be due under the contract, for interest on the remainder of the purchase price agreed to be paid, attorney’s fees at the rate of 10 per cent, upon both of said amounts, and possibly interest at the rate of 6 per cent, upon the attorney’s fees. If so, this was error. At any rate, the court clearly erred in instructing a verdict against any one. If the contract has not been rescinded, then, in so far as the purchasers of the cotton are concerned, the evidence is sufficient to raise the issue of consent on the part of Sneed to the sale of the cotton by Stinson. Of course, if the cotton was sold with Sneed’s consent, Pace, Forest, and the other defendants purchased the same free of the in-cumbrance and were not responsible to Sneed for conversion.

But the evidence tends to show that the contract of sale had been rescinded by abandonment and by the acts of the parties, if not by an agreement to that effect on the part of Sneed and Stinson. The evidence shows that Stinson abandoned the premises some time about the end of the year 1912, and since his abandonment Sneed has been in possession of the land and of the improvements placed thereon by Stinson. We are not able to determine from this record whether the contract has been rescinded, either by agreement or acts of the parties. The. facts bearing upon that issue are not fully brought out. Milby v. Hester, 94 S. W. 178; Bynum v. Preston, 69 Tex. 287, 6 S. W. 428, 5 Am. St. Rep. 49; Fullerton v. Doyle, 18 Tex. 3. To say the least, the question of rescission and abandonment, under the record in its present state, was one for the jury. If the contract has been rescinded, Sneed is not entitled to recover any amount in a suit based upon it.

When a contract is rescinded it is annulled and abrogated and the rights of the parties under it are extinguished, and if any cause of action exists it is necessarily independent of the contract and separate and apart from any of its terms. The lien upon the cotton was contained in the contract and was inserted in it to secure the performance thereof upon the part of Stinson. If the contract has been rescinded, of course the lien is destroyed and cancelled with it.

If Stinson breached the contract, Sneed had two remedies: He could sue for specific .performance, foreclose his chattel mortgage, and recover a judgment in accordance with the obligations set out in the contract; or he could rescind and recover his damages for the breach. But to entitle him to either remedy his pleadings must be framed accordingly and his prayer made in the alternative. Griffin v. Williams, 142 S. W. 981; Seiber v. Newman, 151 S. W. 585; Wolf v. Lackman, 20 S. W. 867; Stone Land & Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544. But he clearly cannot rescind to the extent of resuming possession of%the land and improvements and at the same time affirm the contract in part by recovering a judgment for a pQrtion of the contract price with interest and attorney’s fees, and in the same judgment foreclose a lien which exists only in the contract. Burson v. Blackley, 67 Tex. 5, 2 S. W. 668; De Perez v. Everett, 73 Tex. 431, 11 S. W. 388; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302. The remedies being inconsistent, if his pleadings entitled him to either remedy and that alone, he will be held to have elected; hence the necessity of an amendment of the pleadings on both sides before another trial.

If we consider the case in the present state of the pleadings as a suit to recover damages after rescission, the judgment is manifestly wrong because the proper measure of damages has not been awarded. If Sneed was able and willing to convey the title, and Stinson, without just cause, refused to complete the purchase, and in the meantime the value of the land had declined, then Sneed’s measure of damages was the difference be tween the contract price and the salable value, with interest thereon from the date of the breach (Kempner v. Heidenheimer, 65 Tex. 591; Monroe v. South, 64 S. W. 1014), and not the unpaid purchase money, nor any part thereof with intérest, as has been decreed by the court (Smith v. Lander, 89 S. W. 19). When the fair market value of the land at the date of the breach of the contract exceeds the stipulated price, the vendor’s damages would be nominal. Evrit v. Bancroft, 22 Ohio St. 172.

The record discloses that Stinson used and occupied the premises for 12 months, and that he has never paid any part of the purchase price, and we think Sneed should also recover for the value of the use and occupation of the land, whether the contract was rescinded by agreement (Terrill v. De Witt, 20 Tex. 257; Jones v. Hutchinson, 21 Tex. 370), or because Sneed was unable to convey a marketable title, in the absence of fraud or willful refusal on his part (Burwell v. Sollock, 32 S. W. 844); but, in the latter event, Stinson would be entitled to offset, against Sneed’s claim for use and occupation, the value of his improvements and such special damages, if any, to which he may be entitled by reason of having been induced to enter into the contract. However, Stinson would not be entitled to offset the value of his improvements if he refused to consummate the sale because of insolvency. First National Bank of Austin v. Jackson, 40 S. W. 833; Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290. In the absence of fraud or willfulness on the part of Sneed to convey, Stinson cannot recover anything for the loss of his bargain, such as an enhancement in the value of the land over the contract price; but is limited to such proper special damages as he may have incurred, such as the payment of taxes, the cost of examining abstract, etc. Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120; Roberts v. McFadden, 32 Tex. Civ. App, 47, 74 S. W. 105; Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S. W. 237; Adams v. Hughes, 140 S. W. 1163; Hall v. York, 16 Tex. 23; s. c., 22 Tex. 643; Durst v. Swift, 11 Tex. 283; Sutton v. Page, 4 Tex. 142; Wheeler v. Styles, 28 Tex. 240; Vaughn v. Bank, 126 S. W. 690.

The record fails to show whether or not Stinson was in actual possession of the land when Sneed executed the mortgage for $35,000. If Stinson was not in possession at that time and the mortgagee had no actual knowledge of his right, then the mortgage would be a prior incumbrance. The contract between Sneed and Stinson was not acknowledged and was registered as a chattel mortgage only, and was therefore not notice to the mortgagee holding the mortgage, securing the $35,000. The record is silent as to the date of this mortgage, as well as to the possession of Stinson at that time. In our opinion, its effect upon the marketable condition of Stinson’s title after it had been recorded was a question of fact for the jury.

The contract between the parties hereto, creating a lien upon the cotton, was filed and registered before the cotton was sold, which was sufficient notice under the statute. Vickers v. Carnohan, 23 S. W. 338.

The remaining assignments are either without merit, or the errors complained of will not arise upon another trial.

Because of the error of the court in instructing a verdict and in overruling the demurrers, the judgment is reversed, and the cause remanded.


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MORGAN.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 28, 1914.
    Rehearing Denied March 4, 1914.)
    1. Accord and Satisfaction (§ 11) — Compromise and Settlement (§ 6) — What Constitutes — Acceptance of Check — Personal Injuries.
    The acceptance of a check and collection of the amount thereof, knowing that it is tendered in settlement of a personal injury claim, will constitute an accord and satisfaction, though the cheek is not strictly a release in law.
    [Ed. Note. — Por other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-82; Dec. Dig. § 11 ; Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.]
    2. Accord and Satisfaction (§ 20) — Compromise and Settlement (§ 8) — Acceptance of Check — Praud.
    Where an injured employé is induced by the_ conduct of the employer’s claim agent to believe that a check tendered him is merely in settlement of. his claim for wages, when in fact it states on its face that it is in settlement ~f his claim for personal injuries, and, he cashes the check without knowledge of such provision, he may avoid the effect of the check as an accord and satisfaction for his injuries, on the ground that it was fraudulently procured.
    [Ed. Note. — Por other cases, see Accord and Satisfaction, Cent. Dig. §§ 140-142; Dee. Dig. § 20; Compromise and Settlement, Cent. Dig. §§ 17-31, 33; Dec. Dig. § 8.]
    3. Release (§ 17) — Avoidance—Praud.
    Where an injured employé is induced by fraudulent representations of the employer’s claim agent to sign a release without reading it and in the belief that it is not a release of his claim for personal injuries, his failure to read the release will not prevent him from asserting its invalidity. ‘
    [Ed. Note. — Por other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.]
    4. Appeal and Error (§ 994) — Scope of Review— Credibility of Witnesses.
    Plaintiff’s credibility as a witness and the credibility of witnesses tending to impeach him was for the jury and not for the appellate court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Personal injury action by W. C. Morgan against the Missouri, Kansas & Texas Railway Company. Prom judgment for plaintiff, defendant appeals.
    Affirmed.
    Piset, McClendon & Shelley, of Austin, for appellant. Dickens & Dickens, of Austin, for appellee.

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

   KEY, C. J.

This is a personal injury suit, which resulted in a verdict and judgment for the plaintiff for $300, and the defendant has appealed.

The defendant’s answer included:

(1) A general demurrer.
(2) A general denial.
(3) A plea of contributory negligence.
(4) “That, if plaintiff ever had any cause of action, it had been fully settled, compromised, and adjusted, and same had been released in full by accord and satisfaction, in that heretofore, on or about the 2d day of May, A. D. 1911, the plaintiff and defendant entered into an agreement whereby the defendant agreed to pay to the plaintiff, in full settlement, satisfaction, and accord, and in full compromise of all claims which - plaintiff might have against the defendant arising out of said alleged accident, the sum of $11, which said sum was on or about said date paid by the defendant to the plaintiff, which said payment was evidenced by a certain check or draft in writing issued by this defendant through its claim department, and drawn by defendant’s general claim agent on its treasurer, which said check or draft reads in! words and figures as follows, to wit:
“ ‘FE EFP 12, May 1911 -7-84-Apiil-19ii “ ‘Form 1035 Tes 5 — 10—80 Bks.
“ ‘The Missouri, Kansas & Texas Railway Co. of Texas.
“ ‘No. 15307. $11.00
Smithville, Texas, May 2d, 1911
“ ‘At sight when countersigned by R. F. Hyde, Jr. pay to the order of W. C. Morgan, eleven and no/ioo dollars for personal injuries sustained on or about Feb. 16th, 1911, near Pfluger-ville, Texas, while employed as sec. foreman, caused by falling from push car while attempting to step from same to hand car.
“ ‘To R, P. Roach, Treasurer, Dallas, Texas.
“ ‘A. A. Krause, General Claim Agent.
“‘Countersigned: R. F. Hyde, Jr.’
“That the plaintiff accepted and received said check or draft in full settlement and satisfaction of said claim, indorsed said draft on the back thereof by writing his name thereon in blank, and presented said cheek or draft to one W. F. Southern, the agent of this defendant at Sprinkle or Pflugerville, Tex.; and said agent, on the presentation and surrender of said check or draft by the plaintiff, with the indorsement of plaintiff thereon, paid over to the plaintiff the said sum of $11 out of the funds of this defendant. Wherefore this defendant says that whatever, if any, claim or cause of action plaintiff may have had against the defendant, by virtue of any of the matters set forth in plaintiff’s petition, have been fully settled, adjusted, £nd compromised, and that plaintiff has received full accord and satisfaction therefor."

And (5) that, in consideration of the payment to the plaintiff by the defendant of $11, the plaintiff, in addition to accepting the draft above referred to, executed a release in writing in full settlement and compromise of his alleged cause of action, but that said release had been lost.

The plaintiff filed a supplemental petition which, in addition to a general denial of the allegations contained in the defendant’s answer, contained a plea of fraud and mistake concerning his acceptance and collection of the draft referred to.

We copy from appellant’s brief the following as a fair statement of the substance of all the testimony bearing upon the question submitted to this court:

“The plaintiff testified upon cross-examination that he was in bed 12 or 13 days and started back to work about three days after he got out of bed; that he lost 15 or 16 days; that after he went back to work he worked four or five months in the same employment; that he was then relieved. After that he worked for the oil mill at Pflugerville four months, and later for Mr. Kilgore, a blacksmith at Pflugerville, and then in December, 1911, he went to work as section hand for the defendant under Mr. Wells, section foreman at Pflugerville. At that employment he worked about six weeks, and was then given a section by defendant at Sprinkle, and after working six weeks as section foreman he was again discharged. He places the time of his last discharge in February or March, 1912. He then details the different employments he had been in since he was discharged, showing various employments at different times at hard manual labor. At the time he was first hurt, February 16, 1911, he had been working three or four months for the defendant as section foreman. He identified the sight draft pleaded as a release by defendant, and admitted having received it, indorsed and cashed it with the agent of the company at Pflugerville. This instrument is set up in hme verba in the answer, and is also set out in full in the statement of facts. This draft or check was introduced in evidence by the defendant without objection, and was on the company’s regular form. It was an ordinary sight draft, dated May 2, 1911, drawn by the general claim attorney, countersigned by R. F. Hyde, Jr., and drawn on the treasurer of the company at Dallas, the amount being $11, and in the body of the draft or check appeared the following: ‘For personal injuries sustained on or about February 16, 1911, near Pflugerville, Texas, while employed as section foreman, caused by falling from, push car while attempting to step from same to hand car.’ The check was indorsed on the back, ‘W. G. Morgan; W. F. Southern, Agt.,’ and bore the stamp of the Pflugerville office under date May 11, 1911, and the ‘paid’ stamp of the American National Bank of Dallas, under date1 May 1, 1911. The witness also testified that some papers were sent to him by the company at Sprinkle about four or five days before he was relieved the last time. These papers were introduced in evidence by the plaintiff and consisted of a blank form of release, a blank form of voucher, and a letter from claim agent Hyde, reading as follows: ‘PT — 32717. W. C. Morgan, Smith-ville, Texas, February 24, 1912. Mr. W. 0. Morgan, Pflugerville, Texas — Dear Sir: On May 2, 1911, I sent you, by roadmaster, draft 15307 for $11 account injuries sustained by you on February 16, 1911. Somehow the papers were misplaced in returning them, and I have never received the release and voucher. I am inclosing you herewith a duplicate release and voucher, and would thank you to kindly execute same and return to me by return mail. This that my records may be complete. ' Thanking you in advance, I am, Tours truly, R. F. Hyde, Jr., Claim Agent. H-Encl.’
“With regard to the circumstances under which he received, accepted, and cashed the check or draft, the plaintiff testified: T got $11 from the company. Mr. Rich gave it to me. He stopped the local one morning and gave it to me. He gave me a check for $11 and I took it and caslied it that day when I went in at noon. The agent at OPflugervillé, Fields Southern, cashed the check for me. I signed the check. I guess Mr. Southern is agent there yet. This is my signature, but I could not tell you whether this is the check or not. I never read the check; he told me that it was for the time X lost; and X did not read it at all. I can read. I just took his word for it and took the check down there and cashed it. I indorsed the cheek; that is my handwriting where I indorsed it. It was out on the north end of the track when I received that check. I got it off the local. Mr. Rich gave it to me. They stopped the local freight out on the north end and handed me the check. I asked Newt Rich, the roadmaster, if they would pay me for the time I lost, and he said he would see about it. It went on for about a couple of months, as well as I remember, and he came over and asked me if I would accept half time. I told him I thought they ought to pay me for the time I lost while injured. Well, it went on and went on for several days, and he came over again and he said they would give me only half time. It had been going on for a couple of months, and I had asked him about it several times, and he said they didn’t want to give me more than half time, and I told him I would take that for the time I had lost. There was nothing said about my injuries at all. Nobody talked to me about my time except Mr. Rich. There was nothing said in any of these conversations about settling with me for injuries or damages; there was nothing mentioned about it at all. When they gave me that check they did not tell me that it was in settlement for injuries sustained. The local freight just stopped there a few minutes, and Mr. Rich gave me that check. I asked when it was, and he said it was for the time I lost while unable to work. There was nothing said about injuries at all. It was about 11 o’clock in the morning, and I was in a hurry, as I had a lot of track torn up, and I put the check in my pocket, and, when we went in at noon, I just took it out and signed and gave it to the agent and he cashed it. I was in a hurry and didn’t read it. Mr. Rich told me it was for half time lost, and I took his word for it and never looked at it. That $11 figured out somewhere about half the time I lost. No one at any time mentioned to me that that was in full settlement for any injuries that I had sustained or for any suffering that I might have in the future. I never had any talk with any one at all except Mr. Rich, and that was just about my wanting pay for the time I lost. I worked for the company by the month, and received $55 a month. When they settled with me after the accident, they did not pay me for the whole month. They deducted the time lost from my month’s pay. Mr. N. G. Rich was road-master. I knew Mr. Rich while I was working out there. He and I had several conversations about the time I lost on account, of my injury. Several different times I talked to him about it and told him I would1 like for them to pay me my time, and finally he asked me if I would accept half time. I told him I would rather have it all, if I could get it. I spoke to him several times about it, and he finally said that they would not agree to give me more than half time. Mr. N. G. Rich was the man that gave me that check. I don’t remember exactly the date when he gave me the check. I was out about a couple of miles from town when he gave me the check. I was working on the track out there at the time. I had a lot off the track torn up and was working on it' when he gave me the check. He gave me the cheek at the back end of the train, the local freight. As to what he said to me at the time, he said, “Gome here and get this-thing, and hurry;” and I asked him what it was; and he said it was a check for the-time I lost; and I got it and the brakeman gave a signal to pull out. Mr. Rich did not in any of those conversations say anything about settling with me in full; it never was-mentioned. When he gave me the cheek I just put it in my pocket and went ahead fixing up the track. I was in a hurry; and it was getting close to noon, and I put it in my pocket and went on; and at noon when we went to town I went into the depot and signed the check and told the agent to give me the money on it He asked me what it was, and I told him it was a check for the time I had lost. I didn’t think there was any use to read it. Mr. Rich told me it was for the time I lost, and I took his word for it and didn’t read it. If I had known what the facts were in regard to the check I would not have signed it. Mr. Rich did not make any explanation or talk to me about settling ■ with me in full for $11, in any of those conversations; there wasn’t anything at all said about that. The $11 was figured as half pay for the time I had lost while injured. After - that I received some p>apers from the company. I did not sign those papers. I did not sign the papers because I had not signed any and didn’t intend to sign any. When I received those papers was the first I heard or knew of any release. I was at Sprinkle - when I received those papers. If I get a judgment in this case I am willing for the-company to deduct the $11 they paid me from the amount of the judgment. When I accepted that check I did not accept it as be- ■ ing a. release in full. I accepted it as pay for half the time I had lost while injured. They had that check already made out when they came up on the train and gave it tome'. They did not read it to me.’ Recross-examination: ‘As to when Mr. Rich first talked with me about allowing me half time, I don’t remember exactly when it was; as well as I remember, it was something like three weeks or ⅝- month after I got so I could get around; it was while I was working for the-company; it was about three weeks after I had. started back to work. That was the first conversation I ever had with him about any allowance for time lost. They had already taken out of my pay the time I had lost; they had already paid me for the time I had worked, but did not pay me for the time I had lost. I don’t remember exactly what Mr. Rich told me in that first conversation. I don’t remember what was said, but I asked him if they could not pay me for the time I had lost, and he said he didn’t know whether they would or not. He just said, “I’ll see about it.” He didn’t say whom he would take it up with, but said, “I’ll see about it, and see what they will do.” I don’t know who he was talking about when he said he would see what they would do; he certainly was talking about somebody besides himself. I understood that to mean somebody else connected with the company. I understood that the money was coming from the company. I asked Mr. Rich if they would not allow me something for the time I had lost. I told him I would like to have pay for the time I had lost, as I needed it and was not able to work. All he said was that he would see about it and see what they would do. In that first conversation he didn’t say anything about half pay. I don’t remember how long it was after that until I had my next conversation with him. I don’t know how many conversations I had with him before he came with the draft or check. I suppose we had four or five different conversations. On the other occasions he said, “They have not decided what they are going to do about it.” He never did tell me what they had decided to do before he brought the draft there, but one day he came there and asked me if I would accept half time. He was passing over the road and asked me one day if I would accept half time. I told him I didn’t know. I would study about it and let him know the next time I saw him, and the next time I saw him I said, “I guess I might as well take it.” The next time he was over the road, a little while after that he brought the check over. I did not tell Mr. Rich, on one occasion when we were discussing the matter, that I would accept anything the company would pay me. There was nothing said at any time about my injuries; it never was brought up. There was nothing said about paying me for injuries. There was nothing said about any claim I had against the company. There was nothing said about any damages' or any suit. There was nothing said about paying me for my injuries at all, or about any suit, or anything of that kind. All that was said between us was that I asked if the company would pay me for the time I had lost, and he finally asked me if I would accept half time, and I agreed to it. I can’t say exactly when I received the draft, nor how long it was after I had agreed to accept half time. I received the draft somewhere along after the 2d day of May, 1911. Mr. Rich came through, going north on the local freight; I guess it was about 10:30 or 11 o’clock, or something like that. I was working on the section, and he stopped the train and said, “Here, come up here and get this.” I asked him what it was, and he said, “This is for the time you lost.” He did not have any other papers there that I remember of. I won’t say whether I signed a release on that occasion or not. I don’t remember signing one. I would not say for sure whether I did or not. As to who was present there, I don’t remember who was on the train. Mr. Guinn was not there. I don’t remember if he was there. I put the draft in my pocket then and cashed it the same day. When I went to Mr. Southern to cash that draft I did not tell him that that was for my injuries. I did not tell him that I had settled with the company and that the draft was for my injuries. I know Mr. Kilgore, the man I worked for out there. While working for him I did not tell him I had made a settlement with the company. I never told him anything of the kind. I know Mr. W. H. Gardner. I think he is timekeeper at the oil mill. I never made any statement to Mr. Gardner that I had made a settlement with the company. I never said anything to him about the case at all. I know Mr. Guinn. I never told him that I had settled with the company. I know Mr. Wells. He is section foreman out there. I worked under Mr. Wells along last December, 1911. I worked for him about six weeks. I did not tell him that I had settled with the company. I told him I was hurt all the time I was working for him. I never made any statement to Mr. Wells to the effect that I had settled with the company. I knew all the time that I was hurt. I knew it from the moment I fell off the hand car. I worked for the company about five months after I was hurt. I worked until the last of July, I believe, working continuously after I went back to work. Then they discharged me. I never consulted a lawyer or brought any suit, nor did I think about bringing suit until after they discharged me. I applied to the company for employment again along in December of that year, and got it. I worked six weeks as a laborer, and they then put me on another section, and I worked about six weeks or two months on that section as foreman, and then was discharged again. As to whether the time when I received this duplicate release from the company with a request that I sign it was the first time I ever thought about bringing suit, I had to make a living, and I didn’t think I was able to make a living the way I was hurt, and I had to have some way of getting along. I didn’t feel like I was able to do hard work. The reason I brought suit was simply because I could not do hard work. I received those papers by railroad mail. The agent delivered them to me in an envelope. As well as I remember tbe envelope was sealed up. I don’t remember now whether there was a letter with the papers or not. I read those papers, but it has been some time ago. I think there was a letter in there stating that they wanted me to sign the papers. There was a letter or memorandum or something telling me what to do with those papers. I think I turned that paper over to my lawyer, with the other papers. I think I turned everything over to him. I don’t remember the date when I received that letter written by Mr. Hyde. It was while I was working for the company, and a few days before I was discharged the last time. I never replied to that letter. I never wrote to Mr. Hyde to even acknowledge receipt of that letter. I hiked down to a lawyer with all those papers, and the next thing they heard from me was that I had filed suit. The first time I knew that that cheek was in full settlement for my injuries was when they sent me those papers to sign. That letter states that that check was sent to me in payment for my personal injuries, but I didn’t know anything about it; that was the first time I knew anything about it. When I got that letter I found out that they claimed I had signed a paper as a full release, but I didn’t know anything about it. I found out, then, that they claimed that that check was in full settlement, and that they claimed that I had executed a release. I never offered that money back to the. company. I thought the check was for the time I had lost. I didn’t know anything about the money being for the injuries at all, but when I got that letter I knew that was what Mr. Hyde claimed it was for. I did not try to investigate it, but -took those papers to my lawyer and instructed him to bring suit. It is not a fact that I thought I had executed a release up to the time I received that letter. I never thought anything of the kind. It is not a fact that I did execute a release, and that when I’ found out that the release had been misplaced I placed the matter in the hands of an attorney. The first I knew about a release was when they sent me those papers. As to whether I say now that I did not sign a release, I don’t remember whether I did or not. I don’t .know whether I signed one or not’
“During the trial the plaintiff, upon finding that his pleadings were insufficient to admit the testimony tending to set aside the cheek as a release in full, asked leave on February 18, 1913, to file an amended supplemental petition. This was objected to by the defendant, and thereupon an agreement was entered into in open court with regard to the pleading and the facts in this case, which agreement was to be considered in evidence and in construing the allegations of plaintiff’s third supplemental petition. This agreement and the circumstances under which it was made is shown by an order of the court. The agreement reads as follows: ‘It was agreed by the parties to this suit that for the time lost during February and March, 1911, during which time the plaintiff did not work as section foreman, the defendant was not under any obligation to pay the plaintiff wages as wages, and it could only be liable for said lost time by virtue of some fault or negligence on the part of the defendant; but that if time, whether from injury or sickness or other cause, were lost by the plaintiff, the defendant had the right to deduct such time lost from the plaintiff’s wages, subject only to the plaintiff’s right to be reimbursed by the defendant for any negligence which inflicted injuries, if any.’
“W. A. Kilgore, a blacksmith at Pfluger-ville and a disinterested witness in no way connected with the defendant, testified that he knew the plaintiff at the time he was hurt in February, 1912, and was living near the plaintiff; there being one lot between the house of witness and plaintiff. He further testified to having visited the plaintiff at that time. He stated that plaintiff worked for him in August', 1911, for one week, and that he saw plaintiff frequently at night after his' injuries. He further testified: ‘Mr. Morgan made a statement to me about having made a settlement with the company. To the best of my recollection he made that statement just a short time after he had made the settlement. He and I were talking, and he said he had accepted half time for his trouble and they had made it satisfactory with him.’ On cross-examination he testified: ‘Mr. Morgan said he had accepted half time for the time he had lost and also for the claim for his injuries. As to what was his claim for his injuries, I don’t know whether I can answer that properly or not. He said they settled with him for lost time and also for his injuries. He said he wanted them to pay him full pay and his doctor bill, and they agreed to give him half pay but not his doctor bill, and he accepted half time. He did not tell me the number of days they settled with him for. I went over to his house while he was confined to his bed after the accident. I suppose I saw him from three to six times a day while he was in bed; that is, day and night. He told me about making the settlement just a few days after he had made it. I could not give you the exact date when the settlement was made. He was not working for me then. I was in his home when we were talking about it. His family were there at the time. I do not remember which one of us brought up the matter of their paying him for his lost time.’
“We do not deem it necessary to make a full statement of the testimony of the defendant’s employés, as the question before this court is as to the sufficiency of the evidence to set aside the check or draft as a release in full.
“N. G. Rich, the roadmaster referred to in the plaintiff’s testimony, who effected the settlement with the plaintiff, and whose testimony is set out in the statement of facts at pages 31 to 36, testifies substantially to the same as the plaintiff with regard to most of' the details of plaintiff’s testimony, with the exception that he states that at all times it was understood that the company was settling in full, and that nothing was said about half time or pay for time that was lost, except that, in a case of that character, the policy of the company was to pay half time, based on the time lost, in full settlement of all claims against the company. He further testified that the plaintiff did execute a release at the time he delivered the draft, and that the release was turned over to his clerk. It was shown by the testimony of the witnesses Rankin and McGougktry and Hyde that the proper search had been made for the release and voucher, but they could not be found, and, if they had been executed, they were lost. These witnesses also explained that the reason three instruments were executed in effecting settlements was that each one went to different departments of the company, for the company’s files, the check to the treasurer, the release to the general claim agent, and the voucher to the auditor, as a matter of bookkeeping. The witness Hyde further explained that he had nothing to do with effecting the settlement, except to make out the papers and forward them to Mr. Rich; that, when the papers could not be located, he wrote the letter above set out and inclosed duplicates of the original voucher and release in order to perfect the files of the company in accordance with its usual method of bookkeeping, as shown by his letter.
“G. D. Wells, the section foreman of defendant, testified that, when the plaintiff was working under him as section laborer, he stated that he had settled in full with the company for his injuries.
“W. F. Southern, the agent at Pflugerville, who cashed the draft, and who appeared to be a friend of the plaintiff, testified that plaintiff had discussed the matter of settlement with him, and that plaintiff first wanted his full time and doctor’s bill, and after-wards agreed to take half time. This took place before plaintiff received the draft. This witness had no connection with the settlement, further than that he appeared to be a close friend and adviser of plaintiff. He had been asked at one time by Mr. Rich to try to get plaintiff to go to the hospital for treatment, but plaintiff would not go.
“Plaintiff did not contradict any of the statements made by any of these witnesses except as set forth in his testimony above.”

Opinion.

But three assignments are presented in appellant’s brief, and these charge that the trial court committed error: (1) In refusing to give a requested instruction directing a verdict for the defendant; (2) in submitting to the jury any question concerning the validity of the settlement set up in the fourth paragraph of the defendant’s answer; and (3) in overruling defendant’s motion for a new trial, based upon the proposition that there was not sufficient testimony to submit to the jury the issue referred to. Under these assignments, appellant submits the following proposition: “The check being by its terms a settlement of the claim for personal injuries, its operation as a release in full could only be set aside by some evidence of fraud, accident, dr mistake. And, there being no evidence in the record warranting the court in submitting either of these issues to the jury, the court therefore committed error : (1) In refusing to instruct the jury peremptorily to return a verdict for defendant; (2) in submitting to the jury as an issue in the cause the validity of the check as a release in full; and (3) in overruling the thirteenth ground in defendant’s amended motion for a new trial.” We have reached the conclusion that the assignments referred to should be overruled, and deem it proper to briefly state the reasons for that conclusion.

Correctly speaking, the check was not, in law, a release, but if it was accepted by the plaintiff, knowing that it was tendered as a settlement for whatever claim he might have for personal injuries, then such acceptance and his collection of the amount therein named would constitute an accord and satisfaction; and it was so pleaded by appellant. This being the case, we do not think it was necessary for the plaintiff to allege and prove any-actual fraud on the part of the defendant, but the trial court submitted the question of fraud to the jury; and appellant contends that the evidence fails to show such fraud.

After a careful consideration of the case, we have reached the conclusion that, if the plaintiff told the truth as a witness, he was misled by the conduct of the defendant’s agent Mr. Rich, and accepted the cheek and money which was paid him thereon under the belief that it was a settlement of his claim for wages only, and not 'of his claim for damages for personal injuries. And, if such was the fact, then to the extent that he was misled by the conduct of Mr. Rich, a fraud was perpetrated by the latter.

Even if the check had been a formal release, and the plaintiff had been induced to sign the same by fraudulent representations, then, although he could have discovered the fraud by reading the document before signing it, yet his failure to do so would not prevent him from asserting the invalidity of such release. Chatham v. Jones, 69 Tex. 744, 7 S. W. 600; Conn. v. Hagan, 93 Tex. 334, 55 S. W. 323; Mortgage Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 377; W. U. Tel. Co. v. Walck, 161 S. W. 902. But, as said before, the question in this case is: Did the transaction in reference to the acceptance of the check and the collection of money thereon constitute an accord and satisfaction as to the plaintiff’s claim based upon personal injuries? In order for it to have that effect it must appear, as alleged in the defendant’s answer, that the parties entered into an agreement by which the plaintiff was to accept the sum of $11 in full settlement of all claims he might have against the defendant arising out of the accident referred to. Now, if the plaintiff told the truth while testifying as a witness, no such agreement was ever entered into, and he did not accept the check and the money he received thereon in pursuance of any such agreement.

There was testimony tending strongly to show that the plaintiff did not tell the truth in that regard, but his credibility and the credibility of the witnesses tending to impeach him was a matter for the jury, and not for this court, to determine.

Judgment affirmed.