author: HODGES, J.

text:
    FUNDERBURGH v. SKINNER.
    (No. 2055.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1919.
    Rehearing Denied March 6, 1919.)
    1. Breach or Marriage Promise <&wkey;23— Contract — Sufficiency of Evidence.
    In action for breach of marriage contract, evidence helé sufficient to sustain finding that contract had been entered into.
    2. Appeal and Error <&wkey;994(2) — Findings op Fact — Review.
    In case involving credibility of witness who appeared before jury and furnished opportunity for all legal methods of testing truth of her statements, issue of credibility must be left to judgment of jury, and their finding cannot be disturbed on appeal.
    3. Breach of Marriage Promise <&wkey;27— Damages — Social Condition of Parties.
    In action for breach of marriage promise, jury in estimating damages had right to take into consideration, not only pecuniary profits, but social and domestic advantages which plaintiff might reasonably expect from marriage with defendant.

      4. Beeach of Marriage Promise <&wkey;35— Damages — Instructions.
    An instruction as to measure of damages in action for breach of marriage promise held not erroneous as allowing recovery of double damages.
    5. Breach of Marriage Promise <®=»28— Damages — Seduction.
    While a seduced female cannot recover damages for that act alone, it is proper to consider seduction when accomplished under promise of marriage thereafter broken, in action for damages for breach of marriage promise.
    6. Breach of. Marriage Promise &wkey;>35— Damages — Instructions.
    In action for breach of marriage promise, plaintiff has right to have attention of jury specifically directed to fact that they might consider seduction' and anguish it alone may have added in estimating her damages.
    7. Appeal and Error <&wkey;930(2) — Presumption — Misleading Instruction.
    In determining whether or not instructions are misleading, jurors are presumed to be not only men of ordinary intelligence, but men endowed with common instinct of fairness, which enables them, when not otherwise restrained, to determine issue of fact according to accepted rules of right.
    8. Breach of Marriage Promise <&wkey;35— Damages — Instructions.
    In action for breach of marriage promise, jury could not have been misled into allowing double damages, although court, after having embraced in one paragraph all elements which jury should consider in estimating damages, gave a second paragraph, calling attention to fact that jury could consider seduction, not before mentioned.
    9. Breach of Marriage Promise <&wkey;31— Damages — Amount.
    In action for breach of marriage promise against a man worth $35,000, who under promise of marriage had seduced plaintiff and was the father of her child, a verdict of $9,000 was not excessive.
    10. Appeal and Error <&wkey;930(2) — Presumptions — Yerdict—Instructions.
    Although when jury has been misdirected it will be presumed that directions have been obeyed and erroneous verdict rendered, there is no presumption that they have blundered simply because they had the opportunity to do so under the instructions.
    11. Trial <&wkey;191(3) — Instructions—Assumption as to Facts.
    In action for breach of marriage promise, an instruction held not erroneous as assuming that defendant had made and broken a contract.
    12. Trial <&wkey;351(2) — Special Issues — Request.
    In action for breach of marriage promise, in absence of request to have jury pass upon issue, court had right to find that, if there was a breach of contract, plaintiff had sustained injuries for which she might claim compensation.
    13. Trial <&wkey;351(2) — Special Issues — Request.
    In action for broach of marriage promise, objection that a charge assumed that plaintiff had sustained injuries, made at time charge was submitted to attorneys for examination, was not equivalent to request that issue be submitted to jury, under Rev. St. 1911, art. 1985.
    14. Appeal and Error <&wkey; 1056(1) — Harmless Error — Exclusion of Evidence.
    A judgment will not be reversed on account of exclusion of evidence, simply cumulative of .other testimony equally as explicit, coming from the same parties, corroborated in some respects by others, and which would not have caused jury to make a different finding.
    Appeal from District Court, Smith. County; J. R. Warren, Judge.
    Action by Ethel Skinner, by next friend, against O. W. Funderburgh. Judgment for plaintiff, and. the defendant appeals.
    Affirmed.
    Johnson & Edwards, of Tyler, for appellant.
    Simpson, Dassefer & Gentry, of Tyler, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for the sum of $9,000 as damages for the breach of a contract to marry her. The parties resided in the village of Elberta in Smith county. The appellant was a widower, and at the date of the trial he was about 45 years of age. His wife died in 1912, leaving him with a family of seven children, some of whom were quite young. He owned and occupied a home, and was interested in various business enterprises. In 1914 the appellee, then a young girl about 18 years of age, lived with her parents about one-fourth of a mile from the residence of the appellant. In July of that year the appellant employed her to keep house for him and do the cooking for the family. The evidence indicates that her parents were poor, and that she had but a limited education.

According to her testimony she usually spent her nights at home, but sometimes remained overnight at the residence of the appellant. She worked for him 2 years, and it was during that time the contract was made. About two months after her employment began the appellant first proposed marriage. It was then agreed by them that they would marry on her eighteenth birthday, which was the 23d of July, 1915. This agreement continued and was renewed when she later left the service of the appellant and started on a visit to her relatives in Alabama. Some time during the winter following their engagement the appellant persuaded her to submit to illicit sexual relations with him. 'He had won her confidence and had satisfied her that he intended to keep his promise of marriage. As an inducement for her to yield he reminded her that they were to be married, and suggested that no other person would know what they did. She submitted to the appellant’s request, and then commenced a course of illicit relations which continued for more than 2 years. Appellant was the first and only man with whom she had ever cohabited. In July, 1916, she became pregnant as a result of her intercourse with him. At his instance she went to Alabama on a visit to relatives, and was to'remain there till her child was born. Appellant furnished her money for traveling expenses, and suggested that she pass as Mrs. Eunderburgh, a grass widow. She adopted the suggestion and remained with her relatives till after the birth of her child, which occurred in April, 1917. She was positive that the appellant was the father of that child, but after its birth both she ar.d the child were repudiated by him. Some tin's later she returned to Texas, and this suit followed.

The foregoing is the substance of the version given by the appellee. In addition to this she testified that the appellant had told her that he was worth about $35,000 or $40,000. The appellant, testifying in his own behalf, admitted that he had been carnally intimate with the appellee on as many as two occasions, but denied that he had ever proposed marriage to her, or that there was ever any agreement to marry her. 1-Ie denied that he sent her to Alabama, or had authorized her to assume his name while there, but admitted that he had furnished her money, which she agreed to repay. Several letters exchanged by the parties while the appellee was in Alabama were in evidence, but the language used does little more than to suggest a situation of undue intimacy between them.

A number of witnesses testified that the ap-pellee bore the reputation of an unchaste woman both before and during the time she was employed by the appellant. There was other testimony which, if true, was sufficient to support a finding that during her relations with the appellant she was also criminally intimate with another party with whom she associated, and that this man may have been the father of her child.

In response to special issues submitted by the court the jury found the following facts: (1) That at the date of the trial the appellee was 20 years old; (2) that she and the appellant had on two occasions agreed to marry each other; (3) that the appellant had refused to comply with that agreement; (4) that the appellee had been damaged in the sum of $9,000. No request was made by the appellant to have any other issues of fact passed upon by the jury.

In a group of assigned errors it is insisted that when considered in its entirety _ the evidence is insufficient to support a finding that the appellant ever made the alleged promise to marry the appellee. While conceding that there is some testimony tending to show that a marriage contract had been entered into, it is contended that the weight of the opposing evidence is so overwhelming that no reasonable basis is left to support the finding made by the jury. If the version given by the appellee of this unfortunate transaction is time, then she is not only the victim of a broken contract, but of seduction also. While the testimony relied on to break down hers was Apparently stronger and emphatic, we cannot say as a matter of law that it was sufficient for that purpose. The situation is not one in which there is no proof of the essential facts, or one where there is only a scintilla of evidence relied on. But it is a case which involves the credibility of a witness who appeared before the jury and furnished the opportunity for all the legal methods of testing the truth of her statements. Under such conditions the issue of credibility must be left to the judgment of the jury; and, unless the record should disclose a corrupt or unfair exercise of that discretion, the verdict will not be disturbed.

Upon the measure of damages the court gave the following explanatory instructions:

“To aid you in determining your answer to question No. 6, you are instructed that the measure of damages will be compensation to the plaintiff for the breach of the promise and agreement to marry her, which includes all damages sustained from the disappointment of expectation, including the money value of her marriage, wounds and injuries to the affections, and the mortification and distress of mind resulting from the defendant’s faijure to comply with his promise and Agreement to marry her.”

To this he added the following paragraph:

“You are further instructed that if you find by a preponderance of the evidence that the plaintiff was induced by reason of a promise and agreement, if any, to marry, to submit to sexual intercourse with the defendant, and he begat her with child thereafter born, you may consider that fact in estimating the damages, if any, you may award to the plaintiff. However, if Ethel Skinner submitted her person to the defendant without any regard to the promise of marriag’e, then the fact of such carnal intercourse, and that he may have begotten her with child thereafter born, could not be considered by you in estimating the damages, if any, in this case.”

Counsel for the appellant do not in tlieir brief and argument complain that the first paragraph quoted contains any elements not proper to be considered in estimating the damages recoverable in a suit of this character, but they insist that in the manner of presenting the different elements the court authorized and virtually instructed a consideration of the same conditions twice or more, thus allowing the recovery of double damages. In estimating the damages which the plaintiff might recover in this case the jury had a right to take into consideration, not only the pecuniary benefits, but the social and domestic advantages which she might reasonably expect from a marriage with the appellant. A fair analysis of the first portion of the charge quoted will disclose that the court began by using terms that were general and comprehensive, and they descended to more specific details. Compensation was to be the measure. This included damages “sustained from the disappointment of expectation,” and within the latter might be included the following: The money value of the marriage. In addition to this'wounds and injuries to the affections, mortification and distress resulting from the appellant’s failure to keep his promise should be considered. We are unable to discover in this language any that directs the jury to duplicate the elements of damages.

It is contended that the court having embraced in the first paragraph all the elements which the jury should consider in estimating the damages, the giving of the second paragraph was tantamount to an instruction to allow an additional sum for seduction' alone. While under the rule adopted in this state a seduced female cannot recover damages for that act alone, it is proper to consider the seduction, when accomplished under a promise of marriage thereafter broken, in suits of this character. Huggins v. Carey, 108 Tex. 358, 194 S. W. 133: Daggett v. Wallace, 75 Tex. 353, 13 S. W. 49, 10 Am. St. Rep. 908 ; 3 Sutherland on Damages, § 986. It is proper to assume that under ordinary circumstances marriage contracts are entered into with a view of increasing the happiness and promoting the future welfare of the parties. Each may expect to gain an advantage that will add to the joys of living. An unjustifiable refusal of one of them to perform the contract usually results in more or less mental suffering on the part of the other, even when unattended by any aggravating conditions. But when a respectable female, debauched under a promise of marriage, is left with the evidence of her shame made public in the form of an illegitimate child, it is but fair to assume that her anguish is materially increased. If the fact of seduction may be considered in such cases it is because that transaction may add something which logically enhances tlie injurious consequences of the refusal to marry. It is true that in the first paragraph of the court’s charge he used language broad enough to include all mental suffering endured by .the appellee as a result of the appellant’s refusal to marry. The plaintiff had a right to have the attention of the jury, specifically directed to the fact that they might consider the seduction arid the anguish it alone may have added in estimating her damages. Jurors are presumed to be'not only men of ordinary intelligence, but men endowed with the common instincts of fairness, which enables them, when not otherwise restrained, to determine issues of fact according to the accepted rules of right. To allow compensation twice for the same injury is repugnant to even an ordinary sense of justice, and it should not be assumed that a jury had construed a charge as a direction to perpetrate such a wrong, unless the language of the charge was susceptible of no other reasonable construction, or the record otherwise indicated that such an allowance had been made. The fact that, after concluding the enumeration of the elements of damage embraced in the first paragraph of the charge quqted, the court added the second, calling attention to the seduction — something not before mentioned — • was sufficient to indicate to any rational mind that he did not regard the consequences of the seduction as having been included in the elements previously named. This is not only the reasonable inference, but any other would be unreasonable.

Counsel for appellant point to the size of the verdict as proof of the fact that the jury did allow double damages. If the jury believed the testimony of the appellee concerning the wealth of the appellant and his treatment of her, the damages awarded, are not sufficient to indicate the allowanée of more than a reasonable compensation.

The assumption that jurors have gone wrong and have perpetrated an injustice merely because, under the instructions, they might have done so, has, w.e think, been carried in some cases beyond the limit of sound reason. Our system of trial by jury is founded upon the presumption that jurors are the safest and best judges of those details which cannot be regulated by laws. The conclusion that they had blundered simply because they had the opportunity is, apparently, the only ground for the reversal of some cases. Such adjudications are impeachments of the system itself. Of course, when the jury have been misdirected it will be presumed that the directions have been obeyed and an erroneous verdict rendered. But that rule does not apply when the more reasonable construction of the charge is not a misdirection.

The charge was also objected to as being upon the weight of the evidence, in assuming that the defendant had made and breached a promise to marry the plaintiff, and that she had sustained the injuries mentioned as elements of damage. In submitting question No. 2 the court used the following language: “Did the plaintiff, Ethel Skinner, and defendant, Funderburgh, mutually promise and agree to marry each other?” To which the jury answered, “Yes.” Question No. 3 followed: “If you have answered question No. 2 in 'the affirmative, then answer, Did the defendant refuse to comply with such contract to marry Ethel Skinner?” An affirmative answer was made to this. A similar answer was made to question No. 5, which inquired if the defendant agreed to marry the plaintiff about the time she left for Alabama. Question No. 6 was as follows: “If you have answered questions No. 2 and No. 3 in the affirmative, or questions No. 2 'and No. '5 in the affirmative, then answer: What amount of money, if paid now, will reasonably compensate the plaintiff for the damages, if any, she has sustained by reason of the failure of the defendant, Funderburgh, to comply with his contract and agreement, if any, to marry the said Ethel Skinner?” Then follow the instruction^ previously quoted, enumerating the elements that might be considered in estimating the amount of damages. There was here no assumption on the part of the court that the appellant had made and broken the contract. In the absence of a request to have the jury pass, upon the issue, the court had a right to find that the plaintiff had sustained injuries for which she might claim compensation. Rev. Civ. St. art. 1985. The objection, that the charge was on the weight of the evidence, made at the time the charge was submitted to the attorneys for examination, was not equivalent to a request that the issue be submitted to the jury. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1134. Such objections then made are interposed for other purposes, and are not to be construed as the written requests required by the statute referred to.

The appellant proved by several witnesses that at and before the time the appel-lee became pregnant she was receiving attentions from one Richard Sipes, a married man, under circumstances which tended to show the existence of improper relations between them. While admitting that Sipes was a personal friend of hers, appellee denied any carnal intimacy with him. She denied that she had ever gone with him alone, except on one occasion when going from Tyler to her home. The appellant offered to prove by two witnesses, Shaver and Oglo Funderburgh, that:

Appellant also offered to prove by two witnesses, Jamison and Crawley, that:

“One night during the fair at Tyler, in October, 1915, when Richard Sipes placed and left in charge of the witness Jamison the young brothers and sister of Ethel Skinner, Sipes stated to Jamison that he and the plaintiff were going out of the fairgrounds and over to the business part of the town.”

All of this proffered testimony was excluded on the objection that it was hearsay. Sipes testified that in October, 1915, during the Tyler fair, he and the appellee left the grounds between- 9 and 10 o’clock at night, went in a service car to town, 'where they secured a buggy and horse and drove out into the suburbs on the opposite side from the fairgrounds. They remained there a while, and returned to the fairgrounds about toe time the crowd'was dispersing. Jamison testified, in substance, that he saw both Sipes and the appellee and the younger sister and brothers of the appellee at the fairgrounds on the night referred to; that at Sipes’ request he took charge of the children, and that Sipes 'and the appellee then walked off together, and did not return till about time to go home. Shaver testified to substantially the same facts. At least two other witnesses testified to seeing toe appellee and Sipes together that night under circumstances that tended to show'that they were returning from some other place. The testimony 'of the witnesses Jamison and Crawley was ottered as a part of toe res gestas in an effort to prove that Sipes and the appellee were together on that night at the fairgrounds. Conceding that it was admissible for that purpose, we are of 'the opinion that its admission would not have caused the jury to make a different finding upon the issue to which it related. It was simply cumulative of other testimony equally as explicit, if not more so, coming from the same parties, corroborated in some respects by others. The suggestive portion of the testimony was the statement by Sipes that he and the appellee were going over to the business part of town. That fact alone would furnish so little evidence of criminal intimacy that it might have been rejected as immaterial. The important fact, if true, was their going off into the suburbs of town alone. Of this Sipes gave no intimation to these witnesses. Evidently the jury discredited all of toe testimony concerning appellee’s associations with Sipes, or made proper allowance therefor in the damages awarded. We- do not regard that evidence, if admissible, of such importance as to require a reversal of this judgment. Snow v. Starr, 75 Tex. 411, 12 S. W. 674; Payne v. Benham, 16 Tex. 364; Gal., etc., Ry. v. Matula, 79 Tex. 577, 15 S. W. 573; G., C. & S. F. Ry. Co. v. Cornell, 29 Tex. Civ. App. 596, 69 S. W. 980. For the same reason we are of the opinion that there was no reversible error in the rejection of the testimony of Oglo Funderburgh and Shaver. The fact that appellee passed in a buggy in company with Sipes at the time mentioned was shown by two witnesses who saw and recognized them.

The judgment is affirmed.
      igssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BRAÍDY, J.

license: Public Domain

text:
    SOUTHERN TRACTION CO. v. JONES.
    (No. 6020.)
    (Court of Civil Appeals of Tesas. Austin.
    Feb. 19, 1919.)
    1. Trial <®=>203(1) — Correct Instruction— Refusal. "
    Defendant’s requested charge to the effect that, if plaintiff’s driving his automobile at a greater than the lawful rate of speed was the proximate cause of the collision with defendant’s street car at crossing, plaintiff could not recover, embodied a correct .proposition of law, and, being applicable to an issue not affirmatively presented by the main charge, should have been given. * s - - i
    2. Street Railroads ⅞=98(2) — Collision at Crossing — Contributory Negligence. r
    The effect of Pen. Code 1911, art. 815, is to make it negligence per se to drive an automobile at a greater speed than 18 miles an hour, and, if plaintiff’s violation of such statute was the direct and proximate cause of the collision with defendant’s interurban car at a street crossing, plaintiff was guilty of contributory negligence. ) i £ 1 ’
    3. Trial ®==>203(3) — Affirmative Presentation of Defense. ‘
    In action for damages from collision between plaintiff’s automobile and defendant’s interurban car at a crossing, failure of court to affirmatively present defense of contributory negligence based on alleged voluntary intoxication of plaintiff, would be a substantial denial of right if defendant had requested a correct charge. ' ’ ^ . 1 t
    4. Trial ⅞==>253(4) — Instructions — Negligence and Contributory Negligence. .
    Defendant’s right to have the full effect of its pleas of contributory negligence should be safeguarded in connection with each issue of alleged negligence submitted by the court. E i £
    5. Street Railroads <S=>112(3) — Crossing Accident — Contributory Negligence — Burden of Proof. i -
    In action for damages growing out of a collision between plaintiff’s automobile and defendant’s interurban car at a street crossing, held,, that burden was upon defendant to prove contributory negligence. - ’
    6. Appeal and Error ⅞=>994(2), 1002 — Finding Based on Conflicting Evidence — Review. ■
    It is the province of the jury to pass upon the credibility of the witnesses and the weight to be given conflicting testimony, and the court on appeal is not, although it might not have reached the same conclusion had question been submitted to it, authorized to substitute its judgment for that of the jury. J t ; i 3
    Appeal from, District Court, McLennan County; Geo. N. Denton, Judge. ⅛
    Action by R. J. Jones against the Southern Traction Company. Judgment for plaintiff, i , and defendant appeals.
    Reversed and re- - manded.
    Nat 'Harris and Allan D. Sanford, both of Waco, for appellant.
   BRAÍDY, J.

This is an appeal from a judgment in favor of appellee against appellant for damages in the amount of $509, growing out of a collision 'between an automobile driven by appellee and an interurban car belonging to appellant.

The petition alleged several grounds of negligence, including the alleged operation of the interurban car at a high and dangerous rate of speed; the failure of appellant’s em-ployés to ring a bell, blow a whistle, or give any other signal of the approach of the interurban car to the crossing where the accident occurred; the failure of appellant to maintain a watchman at the crossing, or to provide a system of alarm bells or gates at the crossing; and in permitting vines and trees to grow on 'the right of way of appellant, which were alleged to have been obstructions. preventing appellee from seeing the approaching car.

Among other defenses, appellant alleged that at tlie time of the collision appellee was driving his automobile at a high and dangerous rate of speed, in violation of the criminal ordinances of the city of Waco, and also in violation of the Renal Code of the state; that appellee was familiar'with the crossing, its surroundings, and dangers; and that he was guilty of contributory negligence in approaching the crossing; and further that at the time of the accident appellee was under the influence of intoxicating liquors to such an extent as to render him incapable of exercising ordinary care for his own safety.

The cause was submitted'to the jury upon a general charge, and resulted, as above stated, in a verdict 'and judgment for appellee.

Appellant presented in its brief eight assignments of error. There are no briefs on file for appellee.

Appellant’s first 'assignment of error complains of the refusal of the trial court to give a requested charge to the effect that it is negligence as a matter of law in this state to drive an automobile over a public road or street at a greater rate of speed than eighteen miles per hour, and that if appellee was driving his automobile at such an unlawful rate of speed, and it was 'the direct and proximate cause of his injuries, to find for the defendant.

Article 815 of the Penal Code provides, in substance, that it is unlawful for any person to drive an automobile along and over the public roads, streets, and driveways, not a race course or speedway, at a greater rate of speed than IS miles per hour; and one of the acts of contributory negligence spe-daily pleaded and relied upon by appellant was that appellée was at the time of the accident driving Ms automobile at a speed greater than 18 miles along the public -road or street where the collision occurred. The effect of the above penal statute is to make it negligence per se for any person to drive an automobile at such unlawful speed over or upon a public road or street; and if ap-pellee was at the time of the accident violating the statute, and this was the direct and proximate 'cause of Ms injuries, he was guilty of contributory negligence and should not recover damages.

The trial court ’did not affirmatively present this issue to the jury either in Ms main charge or in any of the special charges given, and we think it was error to refuse to give the special charge requested by appellant.

In the case of Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058, it was held by the Supreme Court that under a plea of contributory negligence the defendant is entitled to a charge l-equiring the jury to find whether the evidence establishes the existence of any specified'group of facts which, if true, would in law establish such plea, and instructing thorn that if they find such group of facts to be established by the evidence, to find for the defendant. Associate Justice Denman, speaking for the Supreme 'Court, said:

“And tMs would be true if proper charges had been asked as to each of the several special pleas of contributory negligence presented by the record. Any other rule would deprive litigants of their light to have the court explain to the jury the principles of law applicable to the very facts constituting a cause of action or defense, so that they may intelligently pass upon the various complicated issues frequently presented for their determination in one case under our practice.”

We think the charge requested by appellant upon this issue embodied a correct proposition of law, 'was applicable to a disputed issue made by the pleadings, and should have been given.

Appellant’s second assignment of error presents the point that the trial court erred in refusing to give special charge No. 6, requested by appellant, which-was as follows:

“Xou are chai'ged that if you find and believe from the evidence that the plaintiff, R. J. Jones, at the time of the alleged accident, was incapable of exercising ordinary care and prudence for his own safety by reason of the voluntary drinking of intoxicating liquors, and that while in said intoxicated condition, if you find from the evidence that he was, he, the said R. J. Jones, drove his automobile into and against a moving interurban car of the defendant, and that as a direct and proximate result of said intoxicated condition, if any, which rendered the plaintiff incapable of exercising ordinary cai-e and prudence for his own safety, if any, plaintiff was injured, as alleged in his petition, if any, then if so you will find for the defendant.”

In R. R. Co. v. Robinson, 194 Tex. at page 487, 140 S. W. at page 436, our Supreme Court, quoted with approval from Hutchinson on Carriers, the following rule:

“Intoxication does not per se constitute contributory negligence, but is a matter to be taken into consideration as bearing on the question whether the passénger has, by his own conduct, brought the injury upon himself. The law exacts from one who is voluntarily intoxicated the same degree of care and caution in avoiding an exposure of his person to danger as it exacts from a sober person of ordinary prudence under like circumstances.”

In the case of Ry. Co. v. McGlamory, supra, the defendant pleaded voluntary intoxication as a ground of contributory negligence, and the trial court gave a general charge on contributory negligence, and informed the jury that intoxication is no excuse for such negligence ; that, if the plaintiff was intoxicated when injured, the jury might consider such fact in determining whether he was negligent; but did not undertake to apply the law to the. evidence adduced in support of the special plea of contributory negligepce. The idefendant railway company requested the court to give the following charge:

“If the jury believe from the testimony that at the time of the accident plaintiff was in a state of intoxication, and that such state of intoxication placed him in such a condition that he was unable and failed to exercise the caution and care required of him under the instruction heretofore given, and that by reason of such condition he was injured, then in such event he cannot recover.”

The trial court refused to give this instruction, and the Supreme Court held that this was error.

The trial court in the instant case did not affirmatively present appellant’s defense of contributory negligence, based on the alleged voluntary intoxication of appellee, and under the rules of law recognized in the above cases this would be a substantial denial of right to appellant, if'it had requested a'correct charge.

We doubt whether the charge requested was required to be given under the evidence in this case, because the testimony stated by appellant under this assignment or in the record, as far as we have been able to determine, does not seem to raise the issue that appellee was at the time of the accident intoxicated to such a degree as that he was incapable 'of exercising ordinary care and prudence for his own safety, which element is clearly embodied in the charge as requested. We'do not know what the evidence will be upon another trial; but we take it that the trial court will apply the rules announced in the above decisions of our Supreme Court to the facts established by the evidence, and will give a proper charge, affirmatively presenting the issue of voluntary intoxication, if justified by the evidence, especially if requested by appellant.

The third assignment of error is to the effect that the court, in its general charge to the jury upon the issue of alleged negligence of appellant in propelling its interurban car at a high and dangerous rate of speed, unduly and unnecessarily emphasized the issue by useless repetition, and that the same as drawn constituted a charge on the weight of the evidence.

IVe have examined this portion of the court’s charge in the light of the objection made, and do not think it is subject to the criticism.

The fourth assignment, of error denounces the court’s main charge, relating to the alleged failure of appellant’s employes to ring the bell or blow the whistle, or give other signal of the approaching of its interurban car, ns upon the weight of the evidence; but we do not'think it is open to the objection made. However, this assignment also complains because the charge on this issue wholly disregarded and ignored appellant’s defense of contributory negligence on the part of plaintiff. This objection we think well taken. The court should have qualified the instruction on this point, as well as in all other paragraphs submitting alleged issues of negligence, by some suc-h qualification as was contained in the paragraph submitting the issue of high and dangerous rate of speed, wherein the'jury were informed:

“You will return a verdict for the plaintiff, unless you find for the defendant as hereinafter explained, or upon special instructions hereinafter given.”

In other words, appellant’s right to have‘the full effect of its pleas of contributory negligence should be safeguarded in connection with each issue of alleged negligence submitted by the court; otherwise, the jury are likely to be misled.

The fifth and sixth assignments of error assert that the trial court erred in instructing the jury in relation to the alleged negligence of appellant in not maintaining a switchman, or providing a system of alarm bells at the crossing, on the grounds that the court should not single out any one or more methods or devices for warning travelers, and that the evidence in the case was wholly insufficient to raise these issues, and because the question of contributory negligence was eliminated from the consideration of the jury by the failure of the 'court to qualify the instruction on these issues.

We do not know what the evidence will be on another trial, but assume that the trial court will not give a. charge on these matters, unless the evidence should fairly present the issues; and also that he will properly safeguard the right of appellant in regard to its pleas of contributory negligence, if these alleged grounds of negligence should be again submitted. Further than this we do not think it proper to discuss the assignment.

¡By the seventh assignment of error appellant raises the question that the trial court improperly instructed the jury that the burden of proof was upon the defendant to ‘ prove contributory negligence by a preponderance of the testimony.

Under the pleadings in this case, it is our opinion that the trial court properly instructed the jury upon the burden of proof as to the grounds of contributory negligence pleaded by appellant. The facts pleaded in appel-lee’s petition do not show, or tend to show, contributory negligence on his part; but, on the other hand, these matters were affirmatively pleaded by appellant; and we think the burden of proof on such issues was upon it.

The eighth assignment of error complains of the trial court’s action in overruling appellant’s amended motion for new trial, upon substantially the ground that the undisputed evidence in the record shows appellant to have been guilty of contributory negligence barring his right to recovery. The assignment undertakes to state 'the result of the evidence, showing that under the undisputed evidence appellee’s acts of contributory negligence were the proximate cause of his injuries, and likewise that the undisputed evidence showed appellant to have been guilty of no act of negligence directly and proximately causing such injuries; and that therefore, as a matter of law, appellant is not liable to appellee.

We have carefully examined appellant’s propositions and authorities under these assignments, and, under the facts of this ease, we are unable to say that as a matter of law it results therefrom that appellant was not guilty of negligence, or that appellee was guilty of contributory negligence. The evidence upon the various issues is conflicting, and while slight upon some of the issues, it was the peculiar province of the jury to pass upon the credibility of the witnesses and the weight to be given their testimony. In the present state of the record, this is a fact case, and, while we might not have reached the same conclusion as the jury had this question been submitted to our discretion, ' yet we are not authorized to substitute our judgment for that of the jury, to whom alone is committed the duty and discretion of passing upon disputed issues of fact.

For the error committed in refusing to give appellant’s special charge No. 4 complained of in the first assignment of error, this case is reversed and remanded for another trial, in accordance with the views above expressed.

Reversed and remanded.
      @=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    ROUSSEAU v. EVERETT.
    (No. 2056.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 27, 1919.
    Rehearing Denied March 6, 1919.)
    1. Appeal and Error <S=5l011(l) — Review —Finding on Conflicting Evidence.
    The finding of the trial court on conflicting evidence must be accepted on appeal.
    2. Banks and Banking <⅞==>312½, New, vol. 6A Key-No. iSeries — Sale of Stock on Credit — Ultka Vires.
    Contract for sale of trust company stock on credit, purchaser giving his note covering price of stock and amount borrowed from trust company, held ultra vires and void, there being actual delivery of stock with intention to have title vest in buyer, who delivered it back to trust company as collateral security for note.
    3. Contracts <®=»137(2) — Partial Illegality — Sale of Stock on Credit — Loan.
    Where stock of trust company was sold on credit, buyer giving his note, both for price and for amount borrowed from trust company, purchase of stock and borrowing of money being separable transactions, buyer’s promise to repay borrowed money was not vitiated by ultra vires contract for sale of stock.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Suit by L. J. Everett against A. R. Rousseau. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The suit is by the appellee against the appellant upon a promissory note and to foreclose collateral security. The defendant pleaded that since the sum of $250 and the interest thereon, which was embraced in the note, was for the purchase price of certain shares of stock sold to the defendant on credit in violation of the Constitution of the state, the entire note was rendered illegal and void. The case was tried before the court without a jury, and a judgment was entered for the plaintiff.
    The following are the court’s findings of fact and conclusions of law:
    “In January, 1913, J. M. Finch and J. W. Bussey, fiscal agent of the Union Trust Company, a corporation organized under the laws of Arizona, and having an office in Longview, Gregg county, Tex., sold to defendant 56 shares of stock in said corporation of the par value of $10 each, at a price of $20, which said stock was duly issued to the defendant in stock certificate No. -, bearing date the 15th day of January, 1913, which said stock when so issued was attached to a $750 note given by defendant as part of the purchase price of said stock, for which defendant gave his notes, one for $750, secured by the stock issued to him, and the other $250 was included in a $1,925 note hereinafter described. At the same time the defendant borrowed from said corporation $1,500, giving his note for $1,925, due in one year after date of this note; $1,500 was paid to the defendant in cash, being money borrowed by defendant from said corporation, $250 was the balance due as the purchase price of the 50 shares of stock, and $175 represented one year’s interest on said note. That certain vendor’s lien notes of value of $3,000 were given as collateral to secure said $1,925.
    “This note was held by the Union Trust Company, and the defendant made payments thereon, and reduced same to the sum of $1,600 on or about January 1, 1916, at which time he proposed to plaintiff, then the president of the Union Trust Company, that if he would cancel the $750 stock note and interest thereon and permit him to surrender his stock, and grant him further time on the $1,600 balance, he would give him a new note for said $1,600 and the vendor’s lien notes in evidence to secure same, which was agreed to, and defendant gave the note sued on herein, and as collateral therefor hypothecated six vendor’s lien notes of the aggregate value of $3,000. That since that day the defendant has had transferred to him a part of said land in cancellation of said notes.
    “That Finch, Bussey, and Everett perpetrated no fraud or deceit upon the defendant. That the plaintiff became the owner and holder of said note about March, 1917, and defendant made no complaint to the plaintiff concerning said note or the consideration therefor up to that time.
    “It was agreed upon the trial by the parties thereto that, eliminating the $250 on the first note and all interest it may have earned and attorney’s fees thereon, and allowing the defendant all credits given, there would now be due as principal and interest on said note and on the note sued upon the sum of $1,443.70 and $144.-30 as attomeyls fees.
    “At the time plaintiff surrendered defendant’s stock note for $750 and interest that the par value of said stock was not worth the amount called for in said note.
    “Conclusions of Law.
    “Under the above facts the plaintiff is entitled to recover the amount of the note sued upon, principal and interest, after eliminating and excepting the $250 item and all interest that may have accrued thereon, it having been given in part payment for stock the plaintiff is not entitled to recover as to that item; and, after eliminating the $250 and all interest thereon it is agreed that the true calculation is a balance due of $1,443.70, principal and interest, and $144.30 attorney’s fees, making a total judgment of $1,588 at this date.”
    R. T. Jones and John R. Arnold, both of Henderson, for appellant.
    Young & Stinchcomb, of, Longview, for appellee. y

   LEVY, J.

(after stating the facts as above). The court awarded judgment for the amount of the note sued on “after eliminating and excepting the $250 item and all interest that may have accrued thereon.” The denial of the recovery of the $250 and interest thereon was upon the ground that it was “in part payment for stock,” tlie sale of which stock was under a contract violating the law. The appellant and the appellee both assail the court’s conclusion of law. The appellee contends that the purchase price is paid, and the balance is represented by a note to which the stock is attached as collateral security. The appellant contends that as the court determined the $250 was founded upon an illegal contract, the whole amount of the note was unrecoverable, and that the court erred in rendering judgment for that portion of the note which represented the borrowed money. In the appellee’s contention it is assumed that the $250 was for money advanced at the appellant’s instance and authority. According to the evidence in behalf of the appellee the appellant agreed to pay $250 in cash on the stock and $750 in a note, and the $250 cash was obtained by the appellant through the method of adding that item in the first given for $1,925. The appellant, however, denies that he agreed to pay $250 in cash, and insists that he never paid any cash for the stock, and never authorized any payment for him, and that the $250 only represented that amount of the unpaid purchase price of the stock. Appellant testified:

“I never received a check for $250 issued by the Union Trust Company; to-day is the first time I ever knew of the issuance of» the check drawn in my favor. I did not authorize a delivery of that check drawn in my favor, and payable to me, to Mr. Finch.”

And in view of the conflicting evidence it must be taken as a fact, as found by the trial court, that the $250 item in evidence was not for borrowed cash paid at the instance and on authority of the appellant, but merely represented that much of the unpaid purchase price of the stock. It would then be a fact, as involved in the court’s finding, that the 50 shares of stock were sold to the appellant entirely on credit, payable at a future date. The court makes the further finding that:

“Said stock was duly issued to the defendant in stock certificate No. 184, bearing date the 15th day of January, 1913.”

And it appears that the appellant attached the certificate to the note given for the purchase price of the stock, as collateral security for the payment of the note. The note recites :

“As collateral security for the foregoing note and other notes, if any, this day given for the stock hereinbefore named I have delivered to the Union Trust Company the following securities; Fifty shares of the capital stock of the Union Trust Company, Longview, Texas. In case of default in the payment of the foregoing and above-described note at maturity I, we, or either of us, authorize the holder of said note to sell said securities, with or without notice, at public or private sale, at the option of the holder, applying the proceeds to the payment of the above note, including the interest and attorney’s fees; and the surplus, if any, remaining thereafter to be paid to the maker hereof on demand.”

And the evidence would seem to show an actual delivery of the stock with the intention to have the title thereto vest in the appellant. The “holder of the note,” whoever he may be, was authorized to sell the collateral security of 50 shares of stock in default of the payment of the note, and to pass title to the purchaser of such stock under the default sale. The facts, it is thought, as found by the court, show such contract of sale of stock as has been decided, we conclude, as ultra vires and void in the cases of San Antonio Irr. Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174, and McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96, and the court did not err, we conclude, in rendering judgment for the plaintiff for the amount, as he did, which represented actual borrowed money. The purchase of the stock and the borrowing of the money are, in the evidence, severable and distinct transactions. The promise to repay the borrowed money is not vitiated by the ultra vires contract of sale of the stock. Haswell v. Blake, 90 S. W. 1125; Floyd et al. v. Patterson, 72 Tex. 205, 10 S. W. 526, 13 Am. St. Rep. 787; Morris v. Ft. Worth Life Ins. Co., 200 S. W. 1114.

The assignments of error, both of appellee and of appellant, are overruled.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRY, C. J.

text:
    HAGELSTEIN et al. v. CAMPBELL.
    (No. 6165.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1919.
    Rehearing Denied March 12, 1919.)
    1. Brokers <§=>34, — Beauty Bbokers — Contract for Division on Lease Money — Validity.
    Contract, between owner of land and agents to sell, for division of lease money received from certain pasture lands, held valid and binding; there having been no fraud on the agents’ part.
    2. Vendob and Purchaser <§=>196 — Rights on Purchasers — Right to Rents.
    Contract of sale of ranch to agents who had contracted to sell other lands of owner held not to entitle them to rents from ranch until, under contract, they had demanded a deed from the owner and complied with the contract.
    3. Vendor and Purchaser <§=>196 — Liabilities of Purchasers — Liability for Rents.
    Agents, who contracted with owner of land to sell it, and, as to a particular tract, to sell it or to purchase themselves, held liable for any rent money collected by them on land which they agreed to sell or to purchase while it belonged to owner, but not rent collected after it was sold by owner to other parties, who were entitled to rents.
    Appeal from District Court, Bexar County; J. T. Sluder, Juáge.
    Suit by Jordan Camphell against 6. & H. Htigelstein. Erom judgment for plaintiff, defendant's appeal.
    Reversed, judgment rendered in part for plaintiff, and cause remanded for trial in consonance with the opinion..
    Templeton, Brooks, Napier & Ogden, of San Antonio-, for appellants.
    Clamp, Searcy & Clamp, of San Antonio, for appellee.
   PRY, C. J.

Appellee sued on a contract between him and appellants, which, among other things, provided for the sale of certain lands, praying for a construction of the contract and, in the event it b.e held that appellants were entitled to the use of what is called the “lower pasture” from and after August 1, 1914, that, appellee recover of them the taxes due on same in 1915 and 1916; but if it be held that appellee was entitled to the use of said “lower pasture” after August 1, 1914, then that appellee recover of appellants the sum of $5,659.82 for the rental value of the -lower pasture from August 1, 1914, to March 20, 1917, and taxes for 1916, and also recover $1,512.50, rent money collected on the “upper pasture” and retained by appellants. The cause was tried without a jury, and judgment rendered setting aside an agreement between appellants and appellee whereby the rent of the upper pasture should be divided equally between them, and that for rent of such pasture appellee recover $2,575, less the sum of $1,287.50 paid and tendered by appellants, the balance being $1,287.50, and that appellee recover $1,291.50 rent on the lower pasture, the whole amount recovered, with the $225 tendered into court by appellants, amounting to $2,804.

In the sales contract between appellants and appellee,. ,wibich became effective on March 20, 1914, appellee placed in the hands of appellants 9,000 or 10,000 acres or land in Atascosa county, to be sold by them within 3 years from March 20, 1914, it being provided that 1,000 acres should be sold in the first 6 months for the net sum to appellee of $20 an acre, 1,000 acres to be sold in the second 6 months for a sum that would net appellee $21 an acre, and so on until for the fifth 6 months the net sum for appellee should be $25 an acre; it being provided that appellants were compelled to take the 3,899.6 acres remaining after the sales provided for. It was also provided that, if appellants failed to sell the requisite number of acres within the required time, appellee could cancel and annul the contract. A lease of the 9,000 acres did not expire until August 1, 1914, and it was provided that the contract should not interfere with the lease. Appellee testified that he desired to lease the lower pasture, and appellants claimed to own it under the contract, and that he asked them about the-upper pasture, and whether they were claiming that, and they said not. He did not attempt to lease the lower pasture, and they stocked it with cattle. The contract gave ap-pellee the right to use all the land not sold and fenced by the purchaser. Appellee informed appellants that he intended to hold them liable for rent of the lower pasture. Appellee testified that he told appellants, that he intended to rent the upper pasture. In that pasture the water supply was limited, and appellants told appellee that it was all sold; that they had sold the two tracts which had the water supply, and appellee could not lease it, because under the contract the ven-dees could fence off all the water. Appellants said that they could control the water supply if they were given one-half the lease money, aná believing that the water supply had been sold, appellee agreed to their proposition. The land had not been sold, although tract 27, on which was the chief water supply, was under contract of sale at the time. Appel-lee was not sure whether he was told that the water supply land was contracted for sale or had been sold. The land could not have been sold without appellee executing deeds to it. Appellee stated, on cross-examination, that the Hagelstein to whom he talked told him that he had sold the water supply, and not that he had sold any particular tract. The Hagelsteins had the right under the contract to sell any and all of the tracts of land described therein. Appellee knew the land had not been sold because he had not executed a deed to it. There was a lease on the 9,000 acres when the contract was made, which did not expire until August, 1914. The-land, tract 27, was under contract of sale to a man named Zaywatski, when appellants told appellee that it was, and the contract was not declared forfeited until the fall of 1915.

There was absolutely no testimony tending to show fraud upon the part of appellants, and the contract for a division of the lease money received from the upper pasture was valid and binding. It was not alleged that-fraud had been used in failing-to inform appellee that Zaywatski had defaulted in his contract of purchase, and consequently that could not be considered as evidencing fraud. Appellants tendered into-court the amount of $225 as a balance due by them on the rent of the upper pasture. The court allowed, not only that sum, but in addition $1,062.50 as rent for the upper pasture.

The only clause in the contract between appellants and appellee under which appellee could claim the right to lease the land that. had not been sold was paragraph 8, which provided:

•‘When any of said property is sold, purchaser shall fence the same off from adjoining land and the failure to fence the land, that he purchased, will not prevent the said first party from the use of the land that is unfenced and no ground for damages shall be had by them for the use of the land purchased; if they desire the absolute use of the land they purchase they will be required to fence it off.”

Appellants recognized the right of appellee to lease the upper, but not the lower, pasture. There had been, according to the testimony of appellants, a verbal agreement between the parties that no cattle were to be pastured on either tract.

Under the provisions of the third and fourth paragraphs of the contract the 3,899.6-acre tract was contracted or sold to appellants whether they failed to sell the other land or not. In the third paragraph it is provided:

“This 3,899.6 acres or the unsold portion thereof they are obligated to take, regardless of whether this contract shall be abrogated and annulled before the expiration of said 36 months.”

The fourth paragraph provides for the cancellation of the contract in case of failure to sell the requisite number of acres of land within the specified time, “but notwithstanding which the parties of the second part bind and obligate themselves to take and pay for, under the terms of this contract, the said 3,-

899.6 acres, or the unsold portions thereof.” The price was fixed at the excess price for one half of the land, that is, $25; the other half presumably to be paid for at the rate of $20 an acre. The contract recites that the

3.899.6 acres was fenced to itself. Appellants were compelled by the contract to take the Natascosa or lower ranch themselves, or to sell it, which was equivalent to a contract of sale to them at a certain price, which they could pay at any time at or before the expiration of 36 months.

We are of the opinion that the contract of sale of the “lower pasture” to appellants did not entitle them to the rents arising from the same until they had, under the terms of the contract, demanded a deed from appellee and complied with its terms. They could have made that demand on March 20, 1914, when the contract was executed or at any time thereafter during the existence of the contract and required the execution of the deed upon their performance of the terms of the contract. They are therefore by plain implication from the terms of paragraph 8 of the contract, liable for any rent money collected by them on the land while it belonged to appellee, but not rent of the land after be- _ ing sold to other parties. It was claimed by ’ appellants that as they were bound to take the lower pasture, if not sold to others by them, that appellee agreed that the dollar for each 6 months, added to the cost of each acre of land, should recompense him for all interest, taxes, and other incidental expenses. This was testified to by the appellants and by Caldwell Palmer, a former agent of appellee; but the latter denied this. Appellee sought to recover the reasonable rental value of the use and possession of the lower pasture, and the court seemed to hold that to be identical with “all rents they have collected on all the' property in the Natascosa or lower pasture, aggregating twelve hundred ninety-one' $1,-291.50) dollars and fifty cents.” The amount collected in lease money by appellants might and might not be the same as “the reasonable rental value of the use and possession” of the lower pasture. The testimony fails to show that they were the same; but if they were the judgment cannot be justified, because the evidence showed that sales of portions of the land were being made from year to year, and it is clear that appellants should not be compelled to pay rent to appellee on land with the title of which he had parted. The facts are that, in 1914, 261 acres of the land were sold, about 81 acres of it to appellants; that, in 1915, 594 acres were sold; in 1916, 1,565.35 acres were sold; and 1,486.00 were sold in 1917. In the face of all those sales appellants were forced to answer to appellee for rent on every acre of the 3,899.6 acres in the lower pasture. Stretching the right to use the lands of purchasers of parts of the main tract as far as reason and common se-ise would permit, it could never, with justice, be held to entitle appellee to obtain rent money for another man’s land. The use referred to in clause 8 of the contract could only have meant the right to allow the cattle of appel-lee, or of his lessee, it may be, to graze on the unfenced lands of another in his pasture. If appellee should be entitled to the rent arising from his own land, he has obtained all that in justice and equity belongs to him. If appellants collected rent from the lands sold by them, the purchasers of the land, if any, and not appellee, are entitled to such rent money.

The judgment of the lower court is reversed, and, as to what is known as the upper pasture, judgment is rendered in favor of appellee for the $225 tendered by appellants into court, that as to the lower pasture the cause is remanded, to be tried in consonance with this opinion, and that appellants recover all costs in this behalf expended in this and the lower court.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    WACO DEVELOPMENT CO. v. McNEESE.
    (No. 5851.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 13, 1918.
    Rehearing Denied March 20, 1918.)
    1. Deeds <@=155 — Construction — Conditions Subsequent.
    Conditions subsequent are not favored in law.
    2. Deeds <©=155 — Conditions Subsequent —Noncompliance.
    Recovery may be had upon noncompliance with conditions subsequent, where right to such recovery is clearly reserved in the deed or appears from necessary intendment.
    3. Vendor and Purchaser '<©=257 — Execu-tory Contract — Reservation of Vendor’s Lien.
    Where deed expressly retains the vendor’s lien to secure the purchase money or the unpaid part thereof, the contract is executory, and the vendor retains the superior title upon which he may recover upon purchaser’s failure to pay.
    '4. Vendor and Purchaser <®=58 — Conditions — Noncompliance — Covenant to Build — Release oe Lien.
    Where grantee as part of purchase price agreed to build, and simultaneously with execution of deed grantor agreed to furnish release of lien to land upon grantee’s demand, such release was a condition precedent to grantee’s covenant to build, and upon failure to furnish release grantor was not entitled to land notwithstanding grantee’s failure to build.
    5. Appeal and Error <©=854(1) — Affirmance of Judgment — Grounds.
    Judgment will be sustained if correct for any reason, regardless of ground upon which trial court based judgment.
    6. Vendor and Purchaser <®=78 — Time Essence of Contract.
    Where deed provided that grantee should .begin construction within certain period, time was not of the essence of the contract to build, where written agreement was executed simultaneously with deed, wherein grantor agreed to furnish grantee release to lien on land, and it was mutually understood that grantee would be required to borrow money on land in order to build; the furnishing of release being a condition precedent to grantee’s covenant to build.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by the Waco Development Company against Frank McNeese. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    G. W. Bareus, of Waco, for appellant.

      Writ of error denied February 5, 1919.

   Findings of Fact.

JENKINS, J.

On February 28, 1913, appellant was the owner of the Belle Meade addition to the city of Waco, consisting of about 250 lots. On that day appellant executed to appellee the following deed:

“The State of Texas, County of McLennan.
“Know all men by these presents: That the Waco Development Company, a corporation, under the laws of the state of Texas, acting by and through its president, O. H. Cross, of the county of McLennan and state of Texas, for and in consideration of the sum of thirty-three hundred and 0/100 dollars, to it paid by Frank P. McNeese, the receipt of which is hereby acknowledged, and the further consideration of the agreement on the part of grantee herein to construct upon the hereinafter described property, five houses, three of which shall contain not less than four rooms, and two of which shall contain not less than five rooms, construction to begin upon said houses within ten days from date hereof, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Frank P. McNeese, of the county of Hill, state of Texas, all those certain lots or parcels of land situate, lying and being in Mc-Lennan county, Texas, and being lots three (3), four (4), and nine (9), block seventeen (17), and lots nine (9), ten (10), and eleven (11), block twenty-eight (28), and lots five (5) and ten (10), block twenty-nine (29), and lots eight (8) and nine (9), block thirty (30), all of the Belle Meade Court addition to the city of Waco, as per duly recorded plat of said addition in the McLennan county deed records.
“Grantees assume the taxes for the year 1913.
“This deed is executed by the undersigned officer by virtue of the authority vested in him at a meeting, of the board of directors authorizing the execution of this deed.
“To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Frank P. McNeese, his heirs and assigns forever; and it does hereby bind itself, its successors and assigns to warrant and forever defend all and singular the said premises unto the said Frank P. McNeese, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property, premises and improvements until the covenants hereinbefore set forth have been fully complied with, when this deed shall become absolute.
“Witness its hand and seal at Waco this 28th day of February, A. D. 1913. Waco Development Company, by O. H. Cross, Pres.”

At the time this deed was executed there was a blanket vendor’s lien against said addition for about $5,000, of which appellee had no knowledge. Said deed was not delivered to appellee until March 5, 1913. Prior to that time, appellee had attempted to borrow money with which to erect the houses mentioned, and in this way had learned of the lien against said addition. On the last-mentioned date the appellant executed and delivered to appellee, together with said deed, the following instrument:

“The State of Texas, County of McLennan.
“Whereas, the Waco Development Company, a corporation chartered under the laws of the state of Texas, of Waco, Texas, has sold to Prank P. McNeese of Hubbard, Hill county, Texas, certain lots in Belle Meade addition to the city of Waco, said lots being Nos. three (3), four (4), five (5), and nine (9), in block seventeen (17), lots nine (9), ten (10), and eleven (11), in block twenty-eight, lots five (5), and ten (10), in block twenty-nine (29), and lots eight and nine (8 & 9) in block thirty (SO); and
“Whereas, there are certain liens existing against said lots held and owned by the said T. E. Daniel of Waco, Texas, and the said Me-Neese desires releases covering said lots so purchased as he shall need them:
“Therefore, know all men by these presents that in consideration of the premises, the said Waco Development Company, acting through its vice president, J. R. Woodward, agrees and binds itself and its successors to furnish to the said Prank P. McNeese releases to any of said lots so purchased by him as aforesaid, whenever he shall resell the same or make demand for said releases.
“Witness the hand of the Waco Development Company, by and through its vice president, attested by the seal and signature of acting secretary, this fifth (5th) day of March, A. D. 1913. Waco Development Company, by J. R. Woodward, Vice President.”

It was the purpose of appellee in purchasing said lots to borrow money thereon from a building and loan association, with which to erect the houses on said lots as mentioned in the deed. At the time of the execution of the agreement of March 5, 1913, above set out, and the delivery of said deed, the appellant, through its secretary and treasurer, Mr. P. C. Street, requested appellee not to ask for releases on all of the lots at one time.

On May 4, 1914, appellee’s attorney wrote to appellant the following letter:

“Waco, Texas, May 4, 1914.
“The Waco Development Co., Waco, Texas: In order that Mr. Prank McNeese may build the five houses on the lots purchased from you in the Belle Meade addition as described in deed from you to him, of date Peb. 28, 1913, we request, as he has often done before, that you at once furnish Mr. McNeese a release from the incumbrance held or formerly held by T. Ei McDaniel, and let Mr. McNeese have this property clear of incumbrance as per original agreement and oblige, yours respectfully.”

A short time prior to this, perhaps the preceding day, appellee’s attorney had made a verbal demand on appellant to release the lien of said lots, stating that if it would do so appellee would build the house as specified in said deed. Appellant replied to said letter of May 4, 1914, declining to obtain a release of the lien on said lots, unless appellee would execute to it a bond in the sum of $2,000, conditioned that he would at once build said houses. This ap-pellee declined to do. Prior to this time, to wit, on July 29, 1913, the appellant wrote appellee the following letter:

“July 29, 1913.
“Mr. Prank McNeese, Hubbard, Texas — Dear Sir: Your letter of the 20th to hand and is before us for reply, and we must say that we are very much surprised at the tone of your letter. We agreed with you as to the construction of these houses and would not have traded under any other conditions. This agreement was expressed in the original contract and in the deed by which the lots were conveyed to you.
“We gave you the written obligation of the Waco Development Company to procure release from any lot which you might sell or upon which you should desire to construct a house. From that time to this you have never at any time requested a release and consequently none has been given. We stand ready to carry out to the letter this contract and shall expect you to do likewise.
“The notes against the Pt. Worth land will be due about the first of January, but we are expecting to take them up sooner, but we do not care to do this before you have carried out your agreement in reference to the construction of houses on the five lots as called for, and we would like to ask that you at once make arrangements for the construction of these houses. Advise us as'to the lots upon which the houses are to be constructed and\we will procure releases thereon as provided by our contract. “Awaiting your early reply, we remain, yours very truly, The Waco Development Co., by

Appellee paid the $3,300 mentioned in the deed to him by executing a deed to appellant in his equity in the Pt. Worth land referred to in said letter.

Appellee’s letter of July 20th above referred to is not in the record, and there is no proof of its contents. The testimony of ap-pellee in reference to this letter is as follows:

“The letter of the 29th inst. from the Waco Development Company was in reply to a letter I had written Mr. 'Street. I did not reply to his letter of July 29th or make any demand on Mr. Street for a release. I had made, through my agent, several demands, and they had never been granted.”

On July 17, 1913, Mr. Street had written to appellee calling his attention to the pro-visiqn in the deed in reference to building, and stating, “we hope that you will see fit at once to begin operations along this line.”

The appellant brought suit in the form of trespass to try title, and upon trial before the court, judgment was rendered for appel-lee.

Opinion.

Recovery for failure to comply with conditions subsequent is not favored in law. 8 R. C. U. pp. 1104, 1109. Where such right is clearly reserved in the deed, or appears from necessary intendment, recovery may be had upon the failure to comply with such condition. Johnston v. McDonnell, 37 Tex. 695; Jeffery v. Graham, 61 Tex. 481; Improvement Co. v. Dawson, 5 Tex. Civ. App. 487, 24 S. W. 576; MaGinnis v. Ice Co., 112 Wis. 385, 88 N. W. 300, 09 D. R. A. S33. The deed to appellee contains no clause of defeasance. However, it is the well-settled law of this state that where the deed expressly retains the vendor’s lien to secure the purchase money, or the unpaid part thereof, the contract is ex-ecutory, and the vendor retains the superior title, upon which he may recover upon failure to pay. No decision involving facts similar to the instant case has been called to our attention, and we know of none. It was said in Cassaday v. Frankland, 55 Tex. 460, that the doctrine of the superior title remaining in the vendor >is one not to be extended. As bearing upon this point, see, also, Carey v. Starr, 93 Tex. 508, 56 S. W. 324.

However, if the covenant to build be treated as-part of the purchase price, we are of the opinion the trial court rendered the proper judgment herein for the reason that appellant breached the contract by refusing to obtain a rqlease of the lien upon the lots when demand was made for same by appellee. Stillman v. Canales, 25 Tex. 316, 78 Am. Dec. 530.

No findings of fact or conclusions of law were filed, and no brief for appellee has been filed herein, and hence we are not advised upon what ground the learned trial court based its judgment. But if such judgment is correct for any reason, it is our duty to sustain the same.

We do not think that time was of the essence of the contract to build, and it was not so considered by appellant, as is evidenced by its request to appellee in its letter of July 29, 1913, to proceed with the building. No time was limited in the agreement of March 5, 1913, to furnish release of the lien upon demand of appellee. As the agreement of March 5, 1913, was executed at the time the deed was delivered, it must be treated as a part of such deed. In view of the fact that it was contemplated by all parties that appellee would borrow the money with' which to erect the houses, the release of the lien on said lots becomes a condition precedent to appellee’s covenant to build, and, appellant having refused to comply with such condition, recovery was rightfully denied.

For the reason that appellant failed to comply with its agreement to obtain, a release of the lien upon the lots in controversy, when the same was demanded by the appel-lee, the judgment of the trial court is affirmed.
      <§=For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEX, C. J.

text:
    DEAN v. MAXFIELD et al.
    (No. 6029.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1919.)
    1. Usury <@=>14-2(3) — Action to Recover Statutory Penalty — -Pleading.
    Petition for statutory penalty for collecting and receiving usurious interest held not subject to general demurrer.
    2. Usury <@==>142(1) — Actions for Penalties —Parties.
    In action under Rev. St. 1911, art. 4982, to recover ,a penalty for collection of usurious •interest on notes, paid by plaintiff makers to defendant, since such payments did not inure to benefit of one who had signed notes as surety and paid nothing thereon, he was not a necessary party.
    3. Usury <@=>104^-Release.
    A claim founded upon usury may be compromised, settled, and released.
    4. Usury <@=>88 — Purging Contract oe Usury-Renewal of Note.
    Usury in a note is not purged by giving a new note for the balance due on the first, where the new note was not given in compromise or settlement of claim of usury in the first note.
    Appeal from McLennan County Court; James P. Alexander, Judge.
    Suit by J. R. Maxfield and another against John M. Dean. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Pat M. Neff, of Wiaco, for appellant.
   KEX, C. J.

J. R. and Marie S. Maxfield brought this suit against John M. Dean for the recovery of a statutory penalty for collecting and receiving usurious interest. There was a nonjury trial, which resulted in a judgment for the plaintiffs, and the defendant has appealed.

The first assignment of error complains of the action of the trial court in overruling a general demurrer to the plaintiffs’ petition. The only proposition submitted under that assignment is that a mere contract to pay usury gives no cause of action; but the usury must actually be paid, and this is not done by the mere giving of new notes. The petition alleges that the plaintiffs executed and delivered to defendant two notes; that there was usury in the first note; that numerous payments were made, and thereafter another note was executed for the same debt, which latter note had been paid by the plaintiffs.

The petition was good against a general demurrer, and the first assignment is overruled.

The second assignment charges that error was committed in overruling appellant’s special exception to the petition, based upon the proposition that it showed that one Tlios. S. McOrain was a necessary party to the suit.

While the petition shows that McOrain signed the notes, it alleges that he did so as surety only. Appellees’ cause of action is based upon article 4982 of the Revised Statutes, which reads as follows:

“If usurious interest, as defined by the preceding articles, shall hereafter be received or collected upon any contract, either written or verbal, the person or persons paying same, or their legal representatives, may, by action of debt, instituted in any court of this state having jurisdiction thereof, in the county of the defendant’s residence, or in the county where such usurious interest shall have been received or collected, or where ^aid contract has been entered into, or where parties paying same reside when such contract was made, within two years after such payment, recover from the person, firm or corporation receiving the same double the amount of such usurious interest so received and collected.”

The plaintiffs alleged in their petition that they made the payments of interest which gave rise to the statutory cause of action, and therefore it was not necessary that Mc-Orain should be made a party to the suit. His liability upon the notes was not absolute, but was only conditional upon the failure of the plaintiffs, who were principals upon the note, to pay the same. Therefore the payments made by the plaintiffs did not inure to the benefit of McOrain, and that fact distinguishes this case from Alston v. Orr, 105 S. W. 234, relied on by appellant.

Being only a surety upon the notes, and not having furnished any portion of the funds with which they were paid, McOrain has no cause of action, either severally or jointly, against appellant, and for that reason he was not a necessary party to the suit; and therefore the second assignment is overruled.

The third and last assignment charges that the court erred in rendering judgment for the plaintiffs, because the evidence showed that, if there had been usury at any time in any of the transactions between the plaintiffs and defendant, such transactions were prior “to the making and taking of the note herein sued upon, which as a matter of law purged all usurious transactions so far as the new note was concerned.” The only proposition submitted under that assignment is that where there is a settlement, and new note is taken, the usury in the first note is purged.

While the proof shows that the plaintiffs executed two notes to the defendant, the suit is not predicated upon either of the notes, as impliedly stated in the assignment under consideration, ‘but upon the allegations-that the defendant had collected and received usurious interest upon those notes. As to the proposition submitted under the assignment, it may be conceded, as held in Stout v. Bank, 69 Tex. 384, 8 S. W. 808, Rushing v. Bank, 162 S. W. 460, and Cotton v. Beatty, 162 S. W. 1007, cited by appellant, that a-claim founded upon usury may be compromised, settled, and released; but that rule of law has no application to this case, because the proof entirely fails to show any such compromise or settlement. The undisputed proof shows that on May 11, 1914, the-plaintiff J. R. Maxfield became indebted to the defendant, Dean, in the sum of $1,000, and to cover said indebtedness J. R. and' Marie S. Maxfield executed to the defend-, ant their promissory note for the sum of $1,100, dated May 1, 1914, and due October 14, 1914, bearing interest at the rate of 10* per cent, per annum from maturity, and providing for 1(> per cent, attorney’s fees, if placed in the hands of an attorney for collection; that $100 of that note was intended to represent interest from the date of the-note to the time of its maturity, which was about 5½ months, which was considerably more than 10 per cent., the maximum amount permitted by law. There was never any settlement which included the plaintiffs’’ claim, based upon the payment of usurious interest; but after a number of payments had been made, and on August 7, 1915, the same parties executed to defendant another-note for the -balance due upon the first note, for the sum of $634.75, which was payable in monthly installments of $100 each, and which provided for interest at the rate of 10 per cent, from date, and which the undisputed testimony shows had been paid before this suit was brought. In the meantime, and after maturity, the first note had been placed in the hands of an attorney for collection; but, after allowing the 10 per cent, attorney’s fees, the proof shows that the defendant received and collected more than 10 percent. on the original indebtedness, and it is upon that fact that plaintiffs predicated their right to recover the statutory penalty. There is no assignment charging that the amount of the judgment is excessive, and, there being no proof that the plaintiffs had compromised or released the cause of action here asserted, we overrule the assignment under consideration.

This disposes of all the questions presented in appellant’s brief, and, as no reversible error has been pointed out, the judgment is affirmed.

Affirmed.
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