author: McMEANS, J.

text:
    WATERMAN LUMBER & SUPPLY CO. v. HOLMES.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 23, 1913.
    On the Merits, Nov. 18, 1913.)
    On Proceeding to Strike Briefs.
    1. Appeal and Error (§ 767) — Briefs—Form —Necessity op “Printed Brieb” — “Written Brief.”
    Under Rev. Civ. St. 1911, art. 1614, providing that when a cause or suit is taken to the Court of Civil Appeals by appeal, writ of error, or otherwise, the attorney for either party may file written or printed briefs, or argument, if written, not to exceed 15 pages, and rule 37 as amended (149 S. W. x), providing that the copies of the briefs filed in the appellate court shall be plainly written or printed, and if it covers more than 15 pages of foolscap, shall be printed, a typewritten brief is a written and not a printed brief, and a typewritten brief containing 40 pages will be stricken out.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3102; Dec. Dig. § 767.]
    On the Merits.
    2. Contracts (§ 323) — Actions fob Breach —Questions foe Jury.
    In an action for refusing to permit plaintiff to perform a contract for the hauling and distributing of railroad ties along a railroad, evidence held to make a question for the jury as to whether plaintiff abandoned the contract before the cancellation thereof by defendant; and hence the court improperly charged that the evidence showed no breach by plaintiff.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1311, 1349, 1466, 1543-1548,1827, 1827% ; Dec. Dig. § 323.]
    3. Trial (§ 191) — Instructions on Weight of Evidence.
    In a contractor’s action for damages from defendant’s refusal to permit him to perform á contract for hauling and distributing railroad ties along a railroad, an instruction that the contractor could recover only such profits as he would.have made by hauling the ties as defend- ■ ant made them and demanded them; that, in arriving at his damage, the irregularity of the job, if any, its distance from the contractor’s home, the expense he would have gone to in feeding his team, keeping up his harness and wagons, for drivers for teams, and all other expenses, should be considered, figuring only his net profits, if any, that he could have made under the contract — was properly refused, as it was on the weight of the evidence, and assumed that the irregularity of the job, etc., were parts of the expense of performance.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.] .
    4. Damages (§ 62) — Duty to Minimize— Breach of Contract.
    Under a contract' for hauling and distributing ties along a railroad, the contractor, upon the refusal of the other party to permit him to perform, could not sit'idly by and wait until the completion of the hauling, and then recover the net profits which he would have made had the contract not been breached, but was bound to use his wagons and teams in other employment, if there was any he could get, and the amount that he could have so made should be deducted from the amount to which he would be entitled had he carried out the contract.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. § 62.]
    5.Damages (§ 124) — Measure of Damages— Breach of Contract.
    A contractor was entitled as damages, for the failure of the other party to permit him to perform the contract for hauling and distributing railroad ties, only to the net profits of the enterprise, which would be the difference between the contract price and the expenses necessarily incident to the performance of the contract.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 326-338; Dec. Dig. § 124.]
    Appeal from District Court, San' Augustine County; A. E. Davis, Judge.
    Action by W. H. Holmes against the Waterman Lumber & Supply Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Davis, Davis & Davis, of Center, for appellant. Blount & Strong, of Nacogdoches, for appellee.

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

   McMEANS, J.

Article 1614, Revised Statutes 1911, provides: “When any cause or suit may be taken up from any inferior court to the Court of Civil Appeals, whether by appeal, writ of error, or otherwise, it shall be lawful for the attorney for both plaintiff and defendant to file in the papers of said suit or cause written or printed briefs, or argument, if written not to exceed fifteen pages,” etc. Rule 37 (149 S. W. x), as amended by our Supreme Court on October 30, 1912, and which amendment became effective November 15, 1912, provides: “The briefs of the parties, framed in accordance with-these rules must be signed by-the party or his counsel * * * and the copies thereof filed in the appellate court shall be plainly written or printed, and if it covers more than fifteen pages of foolscap, they shall be printed.” In National Bank v. Lovenberg, 63 Tex. 512, our Supreme Court held; in effect, that a typewritten brief should be regarded as a written, and not a printed, brief. See, also, Heath v. Hall, 27 S. W. 160. Appellant’s brief is violative of the statute and rule above quoted, in that it consists of more than 40 typewritten pages. As said in Heath v. Hall, supra, “We must insist on a compliance with this rule, as it is intended to aid in the dispatch of business.”

The briefs are ordered stricken out and returned to -appellant’s counsel, and appellant will be allowed to file copies of its brief, either properly written or printed, within 15 days from this date, and in case of failure so to do, the appeal will be. dismissed. , •

On the Merits.

This suit was brought by W. H. Holmes, appellee, against appellant, Waterman Lumber & Supply Company, to recover damages for an alleged breach of a contract by appellant, which appellee claimed he had with it, for the hauling and distribution of railroad ties along appellant’s railroad. Appellee alleged that he contracted with appellant to haul and distribute 180,000 ordinary ties, for which he was to be paid five cents each, four cents to be paid at the time the work was done, and the remaining one cent to be paid on the completion of the contract, and 880 sets of switch ties, of 48 ties to each set, for which he was to be paid ten cents for each tie, eight cents to be paid when the ties were hauled, and the remaining two cents when the hauling was completed; that after he had hauled a part only of the ties the appellant breached the contract by refusing to allow him to perform it further, whereby he sustained the damages for which he sues.

The court charged the jury that: “The first disputed issue for your decision is whether or not there was made and entered into by the plaintiff and defendant a contract, as alleged, for hauling and distribution of the ties along its railroad track and spur tracks. If you find there was a contract so made between plaintiff and defendant that Holmes should haul and distribute certain ties and receive certain compensations for the ties, then you are instructed that the evidence failed to show the breach of the contract by Holmes,” etc. This charge is assailed by appellant by its first assignment of error, its contention, in effect, being that there was sufficient evidence to raise the issue of abandonment by Holmes of the contract, and that therefore the court was not authorized to take the question from the jury by charging that the evidence failed to show such breach by Holmes. By finding in favor of Holmes the jury necessarily found that a contract substantially as alleged had been made between him and the appellant. There was positive evidence that on January 17, 1912, the appellant by a letter written to Holmes on that date notified him that it had canceled the contract, and that it had made other arrangements for the hauling. It was shown by the testimony of the witness Weaver, appellant’s agent, that the reason of appellant for canceling the contract was that theretofore, on December 24, 1911, Holmes had killed its foreman, Boatman. Holmes testified that he had not abandoned the contract, but was carrying it out in good faith at the time of the breach by appellant. But appellant contends that the evidence is sufficient to raise the issue of abandonment of the contract by Holmes prior to the 17th day of January, 1912, when appellant wrote the letter canceling the contract. If this contention is sustained by the evidence in the record, the charge complained of should not have been given, but the issue as to which party breached the contract should have been submitted. The evidence relied upon by appellant as being sufficient to require the submission of this question is as follows: It was Shown that Holmes had his hauling camp about eight miles from his home, and that on or about the middle of December, 1911, he took down his tent and moved his camping outfit, his teams, wagons, etc., to his home. The witness John Fountain testified that about the 14th or 15th of December, 1911, he had a conversation with Holmes before he took up his tent and moved his camp in which Holmes stated he had gotten the cream out of the haul, that it had gotten bad and boggy, and that he was going to quit. Continuing, the witness said: “He wanted me to cash some cheeks for him, and he wanted to get the cheeks cashed before the company found out that he had broken the contract; that if they found out that he had broken the contract before he got the checks cashed, he was afraid the company would not pay the checks. On the same day, in the evening, Holmes came to the store and wanted me to cash the checks for him; I told him I couldn’t cash them, and he said he reckoned he would have to go to Nacogdoches; that he wanted to get them cashed before the Waterman Company found out he had broken the contract; that if he didn’t, he would have to sue them to get a settlement.” Further on the witness said, on cross-examination: “I don’t think he broke it, unless he just pulled up and quit. The weather was very bad when he quit. It was nearly impossible to haul in the woods. He was a right smart ahead of the steel. It was some time after he quit before the steel got to the point where he was. I don’t know whether he said he had broken the contract. He told me that he wanted to check up on this tie haul, the weather had gotten so bad he could not possibly haul there, and he quit on account of the weather; that was the reason he quit.”

J. L. Francis testified that he knew Holmes intimately; “was making ties in the vicinity where Holmes was hauling; that on or about the 14th or 15th day of December, the day that Holmes was pulling up and moving his camp and things, I asked Holmes at the camp, ‘What does this mean, Hill?’ and he said: T have got about all of this that is good, and I am going home; I ought to have been in Waterman- yesterday in place of being here taking up these ties; if I could have been in Waterman I could have made a deal for a better job than this. I believe I can make the same deal to-morrow.’ Most of the time that Holmes- hauled he was hauling the ties nearest the track. He left the ties farthest back from the track, and they were still there when I left. I know I had the conversation with Holmes; Holmes said that he ought to have been at Waterman yesterday. He said lie could have made a deal for a job that would suit him, if he went. He had not said what the job was. The woods was full of hackers at the time Holmes was hauling; they were making them while he was there hauling. They did not haul all of the ties.”

Henry Courtney testified that he did not know when Holmes began hauling, but that he quit about the 15th day of December. Pie further testified: “About 10 days before he quit, Holmes told me that he was going to quit hauling, as he had got about all that was good out of it. That was two or three days before he quit. He took his camp home where he lived. I don’t know what he did after he quit. I know how many teams he had of his own. He had his camp near his work, close to Ironosa, Tex. Holmes stayed at his camp and at home, about eight miles from the camp. He pulled up his camp and went home, and took his camp and his teams with him. That was two or three days after he told me he was going to quit the job. He told me he had got all of the good- out of the job, and was going to .quit.” He further said: “Holmes quit hauling ties about 10 days before Boatman was killed. I never knew or heard of Holmes hauling any more for the company after he quit.”

We think that this evidence was sufficient to raise the issue of abandonment of the contract by Holmes prior to the time the appellant sought to cancel the contract by its letter of January 17, 1912, and required the submission of the question to the jury. If the testimony is to be believed, and its credibility was for the jury, Holmes quit the work and abandoned the contract about December 15, 1911. The cases of Hardeman-King Lumber Co. v. Hampton Bros., 104 Tex. 585, 142 S. W. 867, and Kilgore v. Baptist Educational Ass’n, 90 Tex. 143, 37 S. W. 598, relied upon by appellant, are cases in which it was shown that, while the contractors had threatened and intended to abandon their contracts, at the time of the breach by the other parties they were engaged in performing the work under the contract. It was held that the intention or threat of the contractors to quit did not constitute a breach of the contract, and, the other parties having refused to proceed with their part of the contract,'had no right of action against the - contractors. In the case before us, if the testimony we have quoted be true, and that was for the jury to say, the issue was raised that Holmes not only threatened, but had actually abandoned, the contract before appellant refused to perform its part of it. We think, therefore, that the court erred in withdrawing this question from the jury in the charge complained of, and that this error requires a reversal of the judgment.

On the measure of damages the court instructed the jury as follows: “And, in this connection, you are charged that in such case the legal measure of damages for. breach of contract of the nature of this alleged contract is the profits, if any, the plaintiff! would realize from the performance of the contract if the same had not been breached, and this you will arrive at from a consideration of all of the testimony in the case, and so assess, if any, in your verdict.” The defendant requested the court to charge the jury, on the measure of damages, as follows: “You are instructed, as a part of the law in this case, that if the plaintiff is entitled to recover at all, he is only entitled to recover such profits as he would have made by hauling ties as the defendant made them, and when demanded by the defendant; and, in arriving at the damage, if any, you will take into consideration the irregularity of the job, if any, the distance it was from the plaintiff’s home, the expense he would have gone to in feeding his team, the expense in keeping up his harness and wagons, his expense, drivers for teams, and all other expenses, figuring only his net profits, if any, he could have made under the contract, if you find there was a contract, and from such amount thus obtained, deducting such amounts as the evidence shows he would have earned at other and similar work, and let the amount thus obtained represent the damages you find for the plaintiff.” The giving of the charge and the refusal of the court to give the special charge are the bases of appellant’s third and tenth assignments. We think that the court’s charge was wrong because the amount of money that Holmes could have made by the use of his teams in other work while not using them in the performance of his contract after the contract had been breached by appellant, if it did breach it, was disregarded. We understand the law to be that if the appellant did breach the contract, Holmes could not sit idly by and wait until the completion of the hauling and then recover from appellant the net profits he would have made had the contract not been breached, but that it was his duty to make use of his wagons and teams in other employment, if there was any he could get, and the amount that he (could have so made, or ought reasonably to have made in this, should be deducted from the amount he would be entitled to recover had he carried out the contract. Again, he would not be entitled to the profits, but only the net profits, of the enterprise, which would be the difference between the contract price and the expenses necessarily incident to the performance of the contract. Appellant had this idea in view when it asked the special charge be given, but we think the special charge was upon the weight of the evidence, and should not have been given, because it assumes that the “irregularity of the job, the distance it was from plaintiff’s home,” and other matters mentioned in the charge were parts of the expense of performance.

For the'errors indicated the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    CONN v. ROSAMOND et al.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 29, 1913.
    Rehearing Denied Nov. 27, 1913.)
    1. Appeal -and Error (§ 724) — Assignments op Eekob— Statutes axd Rules op Ooubt.
    Courts of Civil Appeals Rule 24 (142 S. W. xii), requiring assignments of error to distinctly specify the grounds of error relied upon and set forth in the motion for new trial, and rule 25, requiring them to refer to that portion of the motion for new trial in which the error is complained of, are in conflict with Rev. Civ. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that an assignment of error which directs the attention of the court to the error complained of shall be sufficient; since an assignment may clearly direct the attention of the court thereto without reference to the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    2. Courts (§ 78) — Rule op Couet — Effect.
    When a rule prescribed by the Supreme Court conflicts with the statute, the rule must yield.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig. § 78.]
    3. Appeal and Eeeoe (§ 742) — Assignment op Eeeoe — Statutes.
    The rules requiring each assignment of error in a brief to be followed by a proposition and a sufficient statement from the record are not in conflict with Rev. Civ. St. 1911. art. 1612, as amended by Acts 33d Leg. c. 136, declaring an assignment directing the -attention of the court to the error complained of to be sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Landlokd and Tenant (§ 55) — Tuepen-tine Lease — Construction—Security poe Breach — Liability.
    Under a turpentine lease whereby defendant agreed to pay the owner a specified sum for each tree destroyed, burned, etc., during the work, and under which $1,000 was deposited to secure the obligation, the amount of the security could not be regarded as a measure of the extent of the defendants’ liability, when that was expressly fixed by the contract.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 136-150; Dec. Dig. § 55.]
    5. Evidence (§ 448) — Pabol Evidence to Vaby Writing.
    Where there is no ambiguity in a written contract, parol evidence to explain its meaning is inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dee. Dig. § 44S.].
    6. Tkial (§ 136) — Construction—Question poe Ju?y^
    Where there is no ambiguity in a written contract, it is the duty of the court to construe it and to instruct the jury what its legal effect is.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.]
    7. Contracts (§ 346) — Parol Evidence-Mistake.
    Under allegations of fraud or mutual mistake in the execution of a contract, evidence is admissible to show that it did not express the real agreement of the parties, and to show what the agreement in fact was.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. § 346.]
    8. Contracts (§ 342*) — Parol Evidence — Allegation op Fraud.
    In an action for the breach of a contract, defendant’s allegation that he intended that a deposit for security should be the extent of his liability thereunder, and that, if the contract did not show that, it was a mistake or inadvertence of the parties, was not sufficient as an allegation of mutual mistake.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1196, 1716; Dec. Dig. § 342.*]
    9. Compromise and Settlement (§ 23*) — Action POE BEEAOH — SUPPICIENCY OP EVIDENCE — SETTLEMENT-
    Evidence, in an action upon a turpentine contract, held not to sustain a finding that plaintiff accepted defendant’s order for money in full settlement of damages for the breach.
    [Ed. Note. — For other eases, see Compromise and Settlement, Cent. Dig. §§ 91-94; Dec. Dig. § 23.*]
    10. Contracts (§ 328*) — Action poe Breach —Depense.
    In an action upon a turpentine lease, alleging that defendant had extracted turpentine from timber on 118 acres of division No. 3, and that defendant failed to make plaintiff whole by deducting 118 acres out of division No. 2, it was a good defense that plaintiff represented that division No. 2 contained 258 acres and leased that amount to defendants, and that it ■ was because the tract did not contain that amount that when defendants deducted 140 acres for themselves there was not 118 left for plaintiff.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1819-1823; Dec. Dig. § 328.*].
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Action by R. C. Conn against S. M. Rosa-mond and others. Judgment for plaintiff, and he appeals.
    Reversed and rendered for plaintiff.
    Smith & Blackshear, of Jasper, and John B. Warren, of Houston, for appellant. E. A. McDowell, of Beaumont, and H. C. Howell, of Jasper, for appellees.

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

   PLEASANTS, C. J.

This suit was brought by appellant against appellees S. M. Rosa-mond and S. S. Day, composing the firm of Rosamond & Day. The purpose of the suit was to recover damages for the loss of timber upon lands leased the defendants by plaintiff under a contract by the terms of which defendants, upon the payment of the consideration named in said contract, were granted the right to extract the turpentine and resin in the pine trees growing upon said land and agreed to pay plaintiff for all trees that were killed or died as a result of defendants’ operations in extracting the turpentine therefrom within three years after such operations, and also to recover the sum of $795 alleged to be due because of the operations by defendants upon 53 acres of said timber land for which they failed to pay plaintiff.

By the contract declared on plaintiff leased to defendants for “turpentine and resin purposes” all of the standing and growing pine timber on various tracts of land, which are fully described in the contract, and contained in the aggregate l^S^ acres. By the terms of the contract the whode body of land was divided into four parts; each of said divisions being specifically designated and described. The portions of the contract upon the proper construction of which the issues between the parties must be determined are as follows:

“Art. II. Parties of the second part are hereby authorized to and they hereby agree to go upon division No. 1, above mentioned, on the first day of November, A. D. 1907, for the purpose of - producing and manufacturing spirits of turpentine and resin from the pine trees of the dimensions herein-before set forth, upon payment to the party of the first part by parties of the second part the sum of $2,000.00, at Kirbyville, Texas, October 1, 1907, full payment of the said rights to division No. 1, and the further deposit of $1,000.00 by parties of the second part in the Kirbyville State Bank at Kirby-ville, Texas, October 1, 1907, to protect the party of the first part from all loss or losses incurred by trees burning down, that might break off at boxes by force of winds, and trees that die within a period of three years from date of boxing and which are destroyed or damaged by fire.
“Art. III. Parties of the second part hereby covenant and agree to pay party of the first part fifty cents for every tree that is boxed for turpentining, measuring from 12 to 16 inches in diameter 18 inches from the ground, and $1.00 for all trees measuring 16 inches to 20 inches in diameter 18 inches from the ground, and $1.50 for all trees measuring 20 inches and upwards in diameter 18 inches from the ground, which blow down, die and is burned by reason of being boxed as aforesaid. But the title to the said timber, which dies or is blown down, shall remain in the party of the first part.
“Art. IV. Party of the first part hereby reserves the rights to rescind this lease with respect to divisions two, three, and four at the expiration of twelve months from November 1,1907, in case as many as 3 per cent, of the cupping timber on Division No. 1 dies during said twelve months.
“Art. Y. In case party of the first part rescinds the lease under the above article, then he is to pay to parties of the second part the remainder of the $1,000.00 deposited in said Kirbyville State Bank, less the damage by reason of the loss of timber on said land, together with 8 per cent, interest on the balance due them.
“Art VI. Parties of the second part shall have the right at the expiration of twelve months from November 1, 1907, to rescind this contract of lease as to division 2, 3, and 4 hereinbefore mentioned. And in case of rescission of the contract by them party of the first part shall return to parties of the second part the sum of $1,000.00, less amount required to pay damages on timber aforesaid.
“Art. VII. In case this contract is not rescinded by either party, at the expiration of said twelve months, as above mentioned, then parties of the second part shall pay party of the first part the sum of $2,000.00 on the 1st day of November, A. D. 1908, and enter upon the said second division.
“Art. VIII. On October 1, A. D. 1909, parties of the second part shall pay party of the first part the sum of $2,000.00, and enter upon the third division, as above mentioned.
“Art. IX. On the first day of October, 1910, parties of the second part shall pay party of the first part the sum of $2,006.00 and enter upon the fourth division as aforesaid, for the purpose hereinbefore set forth.
“Art. X. Party of the first part on October 1, 1912, covenants and agrees to pay to parties of the second part the sum of $1,000.-00, less damages to timber which has been cupped on divisions 1, 2, 3, and 4. Said damages to be estimated according to stipulations set out in article 3, above mentioned.
“Art. XI. Parties of the second part covenants and agrees that they will pay to party of the first part damages as set forth in article 3, as long as they may operate under this contract.”

This contract was executed on August 26, 1907.

In a supplemental contract executed by the parties on December 19, 1908, it is recited, in substance, that defendants had under their contract for extracting the turpentine from the timber on division No. 1 of said lands entered upon and extracted the turpentine from the timber upon 118 acres of division No. 3 in addition to the land contained in division No. 1, and it was agreed that in order to make the plaintiff whole the defendants would deduct from division No. 2, upon which they were then operating, 11S acres of land, and that same should become a part of division No. 3. This supplemental contract also contains the following provisions:

“Art. III. Party of the first part does hereby agree to pay party of the second part 8 per cent, interest on the $1,000.00 from date until this contract is canceled or closed. This $1,000.00 is placed in the Kirbyville -State Bank of Kirbyville, Texas, to secure the party of the first part for dead timber, which is set forth in article 2 of the first contract.
“Art. IV. Party of the first part hereby reserves the right to rescind this lease with respect to divisions Nos. 3 and 4 on the 1st day of November, A. D. 1909, and party of the second part is to have the same right to rescind or cancel tlieir part of this contract.”

Plaintiff alleges that as a result of the operations of defendants in extracting the turpentine from the timber so leased them by plaintiff 2,902 of the trees had died, that said trees would average from 16 to 20 inches in diameter, and that by the terms of said contract defendants were obligated and bound to pay plaintiff the sum of SI for each of said trees, aggregating the sum of $2,902. It is further alleged that the defendants have paid and are entitled to a credit of $1,000, with interest from December 19, 1908, until the date of the filing of this suit. It is further alleged, in substance, that defendants had extracted the turpentine from the timber on 118 acres of division No. 3 described in said contract and for which they had paid plaintiff no consideration, and had failed to comply with the terms of said supplemental contract and make plaintiff whole by surveying 118 acres out of division No. 2 and leaving same as a part of division No. 3, but had extracted the turpentine from all of division No. 2 except 65 acres, having thus taken and operated upon 53 acres of land which they were not entitled to enter upon under the terms of their contract, to plaintiff’s damage in the sum of $795. The petition prays for judgment for said sum of $795, with interest from October 1, 1909, and the further sum of $1,-822, with interest from January 1, 1909, which last amount is the value of the 2,902 trees lost by plaintiff as fixed by said contract, less the credit of $1,000, and interest set out in the petition.

The answer of the defendants, in addition to a general demurrer, numerous special exceptions the nature of which it is unnecessary to state, and a general denial, also contains special pleas in which it is averred, in substance; that from the terms of the contract sued on it appears that plaintiff is not entitled to recover any amount as damages for timber killed or lost as a result of defendants’ operations under said contract in excess of the $1,000 deposited in the Kirbyville State Bank. They further pleaded: “That at the time of making these contracts they undertook by agreement to fix same within such limits as would protect the plaintiff from all losses that he sustained about the same time, and it was agreed then and there between all parties that said sum of $1,000 would be ample to protect and save harmless the said plaintiff from damage, and they then and there agreed that the said $1,000 should be the full measure of damages for which the defendants should be liable, in any event, the same if not included in' the said article 2 as here pleaded, was, by mistake or inadvertence of the parties drawing the same, left out of and omitted from the terms of said contract, and these defendants say that they believed and understood said contract to so mean, and that the same was embodied therein as there pleaded, and, if they are mistaken in this, then they allege that they executed said contract under a mistake of fact, and that the same does not contain all of the agreements then and there entered into by these defendants, and, if they had known that it did not contain the said matters herein pleaded (if in fact it does not contain same), then they .would not have signed same. * * * Defendants show unto the court that, after the expiration of three years from the date of the original contract sued on in this case, in accordance with the terms, considerations, and stipulations of said contract, all damages were settled by and between the parties hereto, in this: On or about the 1st day of October, 1910, or 1st day of November,' 1910, defendant Rosamond gave to plaintiff an order in writing, directing him to take and apply to his own use and benefit the said $1,000 so deposited in the Kirbyville State Bank under article 2 of the contract and specified in said order that the same was in settlement of all losses by reason of damage to the timber, that plaintiff accepted and retained said order and applied said money to his own use, and made no objection thereto, and in no way ever stated any objection to same. That by accepting said order, and applying said money to said own use, plaintiff became bound by its terms, and all losses and damages arising under said contract were thereby settled.”

In answer to plaintiff’s claim for the $795 damages for extracting the turpentine from 53 acres of plaintiff’s land upon which they had no right to enter under the terms of the original and supplemental contracts, they pleaded: “Defendants say: That their going out of division No. 1 and entering on division No. 3, and cupping 118 acres on division No. 3, was a mistake of fact by them, and, as soon as the same was discovered, the same was settled by agreement with the plaintiff, whereby these defendants were to set aside and survey for plaintiff 118 acres out of the southwest corner of the Elizabeth Davis survey of 1,280 acres. That said southwest corner is the sixth tract mentioned in said contract, and said to contain 259 % acres, and defendants say that plaintiff leased to them the said tract as containing 258% acres, and which they believed to be in the same. That in pursuance of their agreement they proceeded to cut off from said 258% acres what they believed to be 140 acres of land for themselves, but which in fact proved to be 130 acres, leaving the balance, 118 acres of land, in said tract for the plaintiff, and defendants say that, if said 118 acres were not left to plaintiff, it was his own fault in leasing to defendants said tract as containing 258% acres when it did not contain that number of acres, and these defendants say that the said tract leased to them for 258% acres by plaintiff contained only 218 acres, and plaintiff knew such fact at the time he leased same to defendants, but defendants did not so know. That said shortage and failure to set aside to him 118 acres as agreed was caused by his own fault and wrong in the first place in leasing to defendants more land than he had in said tract, by which these defendants were misled, and now to allow him to recover thereon would be to allow him to take advantage of his own wrong.”

The cause was submitted to a jury in the court below upon special issues, and the jury found that “the $1,000 placed in the Kirby-ville State Bank under article No. 2 of the contract was intended by the parties to be all that the defendants should be liable for by reason of timber dying on said land from turpentining the same.” They also found that plaintiff accepted an order given by the defendants on the Kirbyville State Bank for said $1,000 deposit in “full pay for all timber that died upon the land by reason of turpen-tining the same.” They further found “that 2,902 trees had died upon, the land by reason of having been turpentined prior to the filing of this suit, and that the average size of said trees was 18 inches in diameter.” On the issue of the amount of deficiency in acreage in division No. 2, they found same to be 36% acres, and that defendants operated upon all of said division except 64 acres. They made other findings which are not material. Upon the findings of the jury the court, after overruling a motion by plaintiff for judgment in his favor notwithstanding the verdict of the jury, and a motion, by the defendants for judgment in their favor upon the verdict, rendered judgment in favor of plaintiff for the sum of $175.

Appellees object to all of the assignments of error presented in appellant’s brief and ask us to refuse to consider them because they violate the rules, in that they make no reference to the pages of the record and fail to refer to appellant’s motion for a new trial.

Rule 24} for the Courts of Civil Appeals (142 S. W. xii) provides: “The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial * * * and a ground of error not distinctly set forth in a motion for a new trial * * * and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived,” etc. Rule 25 expressly provides that assignments of error “must refer to that portion of the motion for a new trial in which the error is complained of.”

Only one of the assignments in appellant’s brief refers to the motion for a new trial, and under the rules above quoted the remaining assignments would not require our consideration. We think, however, this requirement of the rules is in conflict with article 1612 of the Revised Statutes of 1911, as amended by the Thirty-Third Legislature (chapter 136, p. 276, Acts of the 33d Legislature), and for this reason cannot be enforced. As amended, the article cited provides that an assignment of error “shall be sufficient which directs the attention of the court to the error complained of.” An assignment may clearly and unmistakably direct the attention of the court to the error complained of without referring to a motion for a new trial, and therefore the requirement of the rule that to be sufficient the assignment must refer to the motion for a new trial conflicts with the provision of the statute that “an assignment shall be sufficient which directs the attention of the court to the error complained of.”

It is clear that when a rule prescribed by the Supreme Court conflicts with the statute the former must yield. This has been expressly decided by our Supreme Court in the case of Ry. Co. v. Beasley, 155 S. W. 183.

The assignments in appellant’s brief are sufficient, under the statute above cited, to require us to consider them, and appellees’ objection to their consideration cannot be sustained.

W,e do not intend to hold that the rules governing briefs which require that each assignment presented in a brief must be followed by a proposition and sufficient statement from the record conflict with the statute cited. The objection to the assignments in this case presents no such question. Neither the propositions nor the statements from the record submitted under the assignments are objected to, and only the sufficiency of the assignment itself is questioned. The statute cited deals only with the sufficiency of assignments and - has no reference nor application to the manner in which assignments should be presented in briefs. The decisions cited by appellees in support of their contention were rendered before the statute before mentioned became a law, and our holding is not in conflict with those decisions.

Under appropriate assignments of error, the appellant complains of the ruling of the court in permitting defendants to introduce evidence to explain the contract sued on and in submitting to the jury the question of whether it was the intention of the parties to the contract that the $1,000 deposit should be all that plaintiff could recover for the loss of timber as a result of defendants’ operations under said contract, on the ground that the contract is unambiguous and therefore evidence to explain it was not admissible, but the court should have construed it and have instructed the jury that defendants were bound thereby to pay plaintiff the amount specified in the contract for each tree lost by plaintiff as a result of defendants’ operations upon said land.

We think these assignments should be sustained. The contract, in so far as the measure of appellees’ liability for the value of trees destroyed as a result of their operations under the contract, seems to us to be free from ambiguity. In article 3 they expressly agree to pay plaintiff a specified sum for each tree so destroyed, and in article 11 tliey reaffirm tlieir obligation to pay plaintiff tbe damages contemplated and specified in article S. When article 2 is considered with the other provisions of the contract, especially with the recital in article 3 of the supplemental contract, it is clear that the $1,000 deposited in the Kirbyville State Bank was placed there to secure the obligations of ap-pellees evidenced by articles 3 and 11 of the contract above set out. From the face of the contract it is evident that the $1,000 deposit was made for the purpose of securing the obligations of appellees, and the written agreement considered as a whole clearly negatives the idea that the $1,000 was intended by the parties to be the measure of the extent of the damages for which appellees should become liable.

The amount or value of the security required by a contract to insure the performance of its obligations cannot be regarded as a measure of the extent of liability of the obligor in the contract when the extent of such liability is fixed by the express terms of the contract. There being no ambiguity in the contract, no evidence as to its meaning was admissible; but it was the duty of- the ¡court to construe it and instruct the jury what its legal effect was. San Antonio v. Lewis, 9 Tex. 69; Tinsley v. Penniman, 12 Tex. Civ. App. 391, 3á S. W. 365; Soell v. Hadden, 85 Tex. 182, 19 S. W. 1087.

Of course, under allegations of fraud or mutual mistake it would have been permissible for appellees to have shown that the written contract did not express the real agreement between the parties and to have shown what the agreement in fact was; but no such allegations or proof were made. There is no allegation of fraud, and the only allegation of mistake is that the appellees intended that the $1,000 deposit should be the extent of their liability, and that if the contract does not show this it was a mistake or inadvertence “of the parties drawing the same.” This is not an allegation of mutual mistake of the parties to the contract, but, if it could be so construed, there is no evidence to sustain such an allegation. The evidence only shows that appellees did not intend to obligate themselves to become liable for damages in excess of the $1,000. There is no evidence that plaintiff at any time agreed that appellees’ obligations should be so restricted. All that the evidence shows upon this issue is that both parties considered that the damages would not likely exceed $1,000, and therefore that a deposit of that sum would be sufficient to secure the performance of the. contract by the appellees, and there is not a particle of evidence tending to show that plaintiff ever agreed that appellees should .not be liable under their contract for any damages in excess of the amount of the security required by him for its performance. If appellees’ contention that the pleading and evidence in this case authorized the introduction of evidence explanatory of the contract and the submission to the jury of the question of whether appellees were liable under the contract for any sum in excess of $1,000 should be sustained, the sanctity of written contracts would be destroyed, and the rule which forbids such contracts to be varied by parol evidence repudiated or ignored.

Appellant complained in the trial court of the finding of the jury that he accepted “an order for the $1,000 drawn by the defendants on the Kirbyville State Bank in full pay for all timber that died upon the land by reason of turpentining the same,” and by assignment presented in the brief assails said finding on the ground that it is without any support in the evidence. This assignment must be sustained. The order' on the bank for the payment of the $1,000 as it appears in the statement of facts is as follows: “October 1, 1910. Kirbyville State Bank pay to R. C. Conn $1,000.00 one thousand dollars deposited by Day & Rosamond complying with articles 2 and 3 timber contract between Conn, Rosamond & Day. Sam Rosamond.” Before this order was produced and offered in evidence, the defendant Rosamond testified that his recollection was that it contained a recital that the $1,000 was paid as settlement in full of appellant’s claim for damages under the articles of the contract before mentioned. When, however, the order was produced and he was asked if that was the order given by him, he admitted that it was, but testified that he did not think the figures “2 and 3” shown in said order were written therein by him. He did not question the genuineness of the order in any other respect. This evidence does not raise an issue as to whether the order contained a recital that it was given as payment in full of plaintiff’s claim, and- there is no evidence that plaintiff at any time agreed to accept the $1,000 as payment in full of the damages claimed by him by reason of timber lost as a result of defendants’ operations on his land.

Appellant further complains of the judgment of the court below in not awarding him the damages claimed by him for the 53 acres of land upon which defendants entered and extracted turpentine from the pine trees thereon without paying plaintiff any consideration therefor. We think the answer of defendants to this portion of plaintiff’s petition showed a good defense, and said answer was sustained by the evidence, except as to 17% acres of said land. It is admitted by the parties that the .$175 awarded plaintiff by the judgment was for damages to this 17% acres, which the evidence shows amounted to $10 per acre, and appellees made no complaint of the judgment in favor of appellant for this amount.

From what we have said it follows that appellant, in addition to the said sum of $175, was entitled to judgment for the 2,902 trees that died as a result of the operations of defendants, which damage by the terms of the contract is fixed at $1 per tree; the jury having found that said trees were of the average diameter of 18 inches. From this sum it is admitted that the $1,000 with 8 per cent interest for one year, aggregating the sum of $1,080, should be deducted, leaving the balance of such damages $1,822. Adding this sum to the $175, we have the sum of $1,997 for which judgment should have been rendered for appellant with interest from January 1, 1912, the date of the accrual of such damages at 6 per cent, per an-num.

There being no ambiguity in the contract sued on, and the findings of the jury by which the amount of appellant’s damages is fixed being unassailed, it follows that the judgment of the court below should be reversed, and judgment here rendered for appellant for the sum last stated, and it has been so ordered.

Reversed and rendered.


author: REESE, J.

text:
    CHILDRESS v. ROBINSON et al.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 11, 1913.
    Rehearing Denied Dec. 4, 1913.)
    1. Courts (§ 85) — Assignments of Error-Statute.
    Rev. Civ. St. 1911, art. 1612, providing that an assignment of error shall be sufficient which directs the attention of the court to the error complained of, while abrogating Court Rule 25 (142 S. W. xii), requiring the assignment of error to refer to that portion of the motion foi new trial in which the error is complained of, does not affect Rules 30 and 31 (142 S. W. xiii), requiring each point in the assignment to be stated as a proposition, unless the assignment itself sufficiently discloses the point, with a brief statement of the substance of the proceedings complained of under each proposition.
    [Ed. Note. — For other cases, see Courts, Cent Dig. §§ 294, 296-301; Dec. Dig. § 85.]
    2. Appeal and Error '(§ 742) — Court Rules —Effect.
    Under Sayles’ Ann. Civ. St. 1897, art. 947, authorizing the Supreme Court to make and enforce rules, court rules adopted by that tribunal have the force and effect of statutes.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Appeal and Error (§ 748) — Assignments of Error — Consideration.
    Where an appellant’s assignments of error are not prepared in compliance with the court’ rules, the court may, either on the motion of the appellee or on its own motion, refuse to consider them.
    [Ed. Note. — For other cases, see Appeal and Error* Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.]
    4. Appeal and Error (§ 766) — Briefs— Printed Argument.
    The printed argument cannot be looked to to supply vital defects in the brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. § 766.]
    5. Appeal and Error (§ 742) — Assignments of Error — Statements—Sufficiency.
    An assignment of error, which merely refers to the bill of exceptions, wherein the proceedings complained of were set out, cannot be considered, not being followed by a sufficient statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Pleading (§ 403) — Sufficiency—Cure of Pleadings.
    The defects in the pleadings of one party may be cured by averments in the pleadings of the other.
    [Ed. Note. — For other cases, see Pleading, Cent. "Dig. §§ 1343-1347; Dec. Dig. § 403.]
    7. Pleading (§ 403) — Answer—Sufficiency-
    The failure of defendant’s answer to show that plaintiff, the wife of the possessor of land, against wjiom a judgment had been recovered, was a party to that action, so as to be bound thereby, is cured where plaintiff’s petition showed that the property was the community estate of herself and her husband.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.]
    8. Judgment (§ 693) — Conclusiveness — Matters Concluded.
    Where defendants in a previous action of trespass to try title recovered a judgment against plaintiff’s husband, the then owner of the land, that judgment is conclusive as to the question whether the land constituted plaintiff’s homestead.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1216; Dec. Dig. § 693.]
    9. Appeal and Error (§ 742) — Assignments of Error.
    An assignment of error, reciting that ’the court erred in overruling the general demurrer of the plaintiffs, contained in their first supplemental petition, to the answer of defendants as appears by the bill of exceptions, cannot be considered as a proposition, and so need not be considered on appeal.
    [Ed. No'te. — For other cases, ,see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    10. Appeal and Error (§ 724) — Assignments of Error — Sufficiency.
    Assignments of error, which do not show the objection made below, but leave it to the appellate court to go to the record and dig it out of the bill of exceptions, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.*]
    11. Trespass to Try Title (§ 6*) — Admissibility — Relevancy.
    In an action to enjoin the enforcement of a judgment upon land which plaintiff claimed was her individual estate, a deed in favor of plaintiff not executed until after the institution of the injunction suit, and not referred to in the pleadings, is inadmissible.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. § 6.]
    12. Appeal and Error (§ 742) — Assignments of Error — Sufficiency.
    Assignments of error, complaining of the exclusion of evidence, which do not show the objection made below and are followed by no proposition or statement except to see the bill of exceptions, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error,’ Cent. Dig. § 3000; Dec. Dig. § 742.]
    13. Appeal and Error (§ 742) — Assignments of Error — Sufficiency.
    Assignments of error complaining of the exclusion of evidence, followed by a proposition •which merely stated the purpose for which it was offered, cannot be considered; the proposition not being sufficient.
    [Ed. Note. — For other cases, see Appeal and Error; Cent. Dig. § SOOO; Dec. Dig. § 742.]
    14. Appeal and Eeeoe (§. 742) — Assignments op Eeeoe — Sufficiency.
    Assignments of error followed by neither propositions nor statements cannot be considered on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.1
    15. Tbespass to Tey Title (§ 38) — Actions —Btjeden op Pboof.
    In trespass to try title, plaintiff must establish prima facie his title and right to recover, before the defendant is required to make any defense.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    16. Husband and Wipe (§ 270) — Community Peopeety — Judgments.
    In trespass to try title to community property, it is not necessary to make the defendant’s wife a party, even though the land he used as their homestead, and, if the wife denies the binding effect of the judgment, she must plead and prove a defense to the suit in which it was rendered, growing out of the homestead character of the property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 968-971, 973-984, 988; Dee. Dig. § 270.]
    17. Feauds, Statute op (§ 63) — Conveyances — Veebal Gifts.
    A verbal gift of land by a husband to his wife is wholly void, being within the statute of frauds, where it appeared that the land was not purchased with the wife’s separate means.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 97 — 104; Dec. Dig. § 63.]
    18. Deeds (§ 8) — Essentials — Title op Geantoe.
    Where plaintiff by an action of trespass to try title sought to prevent the enforcement of a judgment which defendants had recovered quieting their title to land formerly claimed by her husband, a deed executed by the husband after the adverse judgment is of no force, even though he called it a confirmatory deed of a prior verbal gift; the verbal gift itself being wholly void, and the deed being void because made at a time when the husband had no title.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 13-18, 408-412; Dec. Dig. § 8.*]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Callie Childress against J. F. Robinson and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Dowell & Dowell, of Houston, for appellant. Sam, Bradley & Fogle, of Houston, for appellees.

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

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

   REESE, J.

Callie Childress and her husband, G. D. Childress, instituted this action in the district court, against J. F. Robinson, joining in the action A. R. Anderson, sheriff of Harris county. Plaintiffs seek, under the ordinary allegations of an action of trespass to try title, to recover of defendant Robinson the title and possession of an undivided three-fourths of a certain tract of land, described in the petition, alleging that the plaintiff Callie Childress is the owner in fee simple thereof in her separate right as her separate estate, and was such owner on January 1, 1905. Petitioners further allege that the said Callie Childress has ever since the date aforesaid been the owner of said property as her separate estate; that on and ever since said date petitioners have been actually residing upon and occupying said property and claiming the same as their family homestead, with the dwelling house, fields, garden, and other improvements thereon ; and that the said land is of the value of $2,000, and the rental value thereof is $8 per month. It is further alleged, in substance, that there has been placed in the hands of the defendant A. R. Anderson, as sheriff of Harris county, a certain writ of possession issued out of the district court of Harris county in and for the Eleventh district, in cause No. 43,570, wherein the said J. F. Robinson is plaintiff and the said G. D. Childress and others are defendants, of date July 1, 1911, commanding the said sheriff to place the said plaintiff Robinson in possession of the property above described; that the land embraced in said writ embraces the homestead of the said Callie Childress and her separate property as above described, and, unless said Anderson is restrained therefrom, he will at once dispossess plaintiff G. D. Childress and his family therefrom, to tEeir great damage, wrong, and injury. It is further alleged that the said Callie Chil-dress was not a party to said suit No. 43,-570, and is in no way bound by said Judgment, and was actually residing on said property as her separate property and homestead ; that she is not named in said writ; and that there was no issue made in said suit of her homestead and separate property rights as herein set forth. Plaintiffs pray for the issuance of a writ of injunction restraining defendants from seeking to enforce said writ of possession.

Defendants answered by general demurrer and general denial and plea of not guilty, and by numerous special exceptions. They also pleaded that the matters and things in controversy had been adjudicated in cause No. 43,570 referred to in plaintiff’s petition and pleaded the said judgment in bar of this action. Defendant Robinson also set up his title by cross-action and prayed for judgment, alleging that on, to wit, February 17, 1910, he recovered a judgment against G. D. Childress and others for the title and possession of said land; that plaintiff Callie Childress was, at the time of the rendition of said judgment, and is now, the wife of G. D. Childress; that upon appeal said judgment was affirmed and is now final and is an adjudication against plaintiffs of all matters set up in the petition; but that ■ the plaintiffs are still in possession of said property and asserting claim thereto, which is a cloud upon defendant’s title. By supplemental petition plaintiffs set up-various exceptions, general and special, to the foregoing answer, and, by way of answer, repeated the allegations as to the homestead and separate property rights of the plaintiff, Callie Childress. The judgment does not state that any action was had upon the exceptions, general or special, of either party. The case was tried with the assistance of a jury, which, upon instruction of the court tq return a verdict for defendant, so found. Upon the verdict judgment was rendered for defendant that plaintiffs taire nothing and that defendant Robinson recover the land. From the judgment, their motion for a new trial having been overruled, plaintiffs prosecute this appeal.

The undisputed evidence presents the following state of facts: G. D. Childress and his wife, Callie, were married in 1890. In 1905 they bought, by verbal sale of D. A. Reynolds, the tract of land in controversy. They at once began to improve it for a home, and as soon as it was ready for occupancy they moved on it, and have continued to so occupy it as their homestead (except when it was temporarily occupied by tenants, but still claimed as their homestead) to the present time. Reynolds had been in possession of the land for several years before he sold to Childress. Plaintiffs introduced in evidence original grant of the John Austin two leagues, of which the land in controversy is a part, dated 1828; also, special warranty deed from D. A. Reynolds to G. D. Childress of the land in controversy, dated November 9, 1909. Reynolds testified that he had been occupying the land adversely about three years before plaintiffs came to live on it, which was in 1904 or 1905. Mrs. Childress testified that at the date of the institution of the suit No. 43,570 of Robinson v. Chil-dress et al., which date she fixes at August 27, 1907, Reynolds had lived on the land two or three years. Reynolds, testifying for plaintiffs, stated that when he sold the land to G. D. Childress it was his understanding that it was community property of him and his wife. There was introduced in evidence by plaintiffs copy of the judgment in cause No. 43,570 in the Eleventh district court of Harris county, entitled J. P. Robinson v. T. B. Mitchell et al. This judgment was rendered on the 7th day of January, 1910, and by the terms of the judgment J. E. Robinson, the plaintiff in that suit, who is the defendant in the present suit, recovered judgment against T. B. Mitchell, D. A. Reynolds, and G. D. Childress, L. J. O’Conuor, J. E. Parker, and J. A. Parker for a tract of 53.7 acres of land, an undivided three-fourths of which is the subject-matter of this suit. The judgment recites that the defendants Mitchell, Reynolds, and Childress appeared in person and by their attorneys. Callie Childress was not a party to said ■suit. See 136 S. W. 501, showing affirmance of this judgment. These are all the facts shown by the statement of facts.

Appellants undertook to prove by their testimony, in substance, that at the time the verbal purchase of the. land from Reynolds in 1905, G. D. Childress, the husband, made a verbal gift of it to his wife as her separate property, and that she owned and claimed it as such. All of this testimony seems to have been excluded by the court. Nevertheless appellants in their brief state as uncon-troverted facts “that on the date of the purchase of the property from Reynolds in 1905, by verbal deed of gift, G. D. Childress gave his wife all his interest in the land as her separate estate, and she was from that date up to the present time owning, occupying, and claiming it as her separate property homestead.” It is also stated as one of the “uncontroverted facts” that on October 29, 1912, G. D. Childress made a written confirmation deed to his wife, Callie Childress, of the former verbal gift, which was duly recorded.” No such fact appears in the evidence, but it appears that this deed was executed after this suit was filed, and was excluded on objection of appellee.

Objection is made by appellee to the consideration of each of the 23 assignments of error; the objections being substantially the same to each of them, that the assignments are not followed by any proposition or sufficient statement from the record as required by rules 30 and 31. Appellants seem to be of the opinion that the act of the Thirty-Third Legislature (chapter 136, p. 276, art. 1612, R. S. of 1911), which provides that an assignment of error “shall be sufficient which directs the attention of the court to the error complained of,” abrogates the rules referred to. It was held by this court, in the case of Conn v. Rosamond, 161 S. W. 73 (opinion filed the 29th day of October, 1913) that this statute was in conflict with rule 25, which requires that assignments of error “must refer to that portion of the motion for a new trial in which the error is complained of,” and that an assignment shall be sufficient which directs the attention of the court to the error complained of, but which' did not refer to the motion for a new trial as required by rule 25 (142 S. W. xii). In this connection, however, it is said: “We do not intend to hold that the rules governing briefs which require that each assignment must be followed by a proposition and sufficient statement from the record conflict with the statute.” The act in question was not intended to do away with the requirements of rules 30 and 31 (142 S. W. xiii), which require that “each point under each assignment shall be stated as a proposition unless the assignment itself may sufficiently disclose the point, in which event it shall be sufficient to copy the assignment.” Rule 31: “To each * * * proposition there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. This statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said proposition, upon the professional responsibility of the counsel who makes it, and without intermixing with it arguments, reasons, conclusions, or inferences.” This language seems plain enough and seems impossible of being misunderstood, and it has been expounded and re-expounded by decisions without number of the Supreme Court and the Courts of Civil Appeals. In the light of the provisions of these rules, which have the force and effect of statutes, not being in conflict with any legislative act (article 947, Sayles’ Civil Statutes), none of the assignments of error presented in appellants’ brief can properly be considered. Appellee has a right to have the brief prepared with some regard to the rules, and has by timely objections invoked such right; but the court might very well, on its own motion, refuse to consider assignments of error prepared without regard to the rules referred to. We cannot look to the printed argument to supply vital defects in the brief.

The second assignment (the first presented in the brief), with its statement, is as follows: “Second Assignment of Error. The court erred in overruling the special demurrer of plaintiffs, contained in their first supplemental petition, to the said answer of the defendants, which said demurrer is as follows: ‘The said answer does not aver that said Callie Childress was a party to said writ of possession or said judgment, but avers she was not.’ Statement. See bill of exceptions No. 2, Record, p. 19. Here is set out in full special demurrer and answer excepted to. It is in no way stated how she is bound by said judgment, neither does it controvert or deny the facts in the petition, pleaded to avoid this judgment.”

The third assignment (second in the brief) is as follows:' “Third Assignment of Error. (A Proposition.) The court erred in overruling the second special demurrer of the plaintiffs as averred in their first supplemental petition to the said answer and in not striking of it out as a defense in said cause, which said special demurrer No. 2 is as follows: ‘The said answer does not set up any facts or conditions that show that plaintiff Callie Childress is bound by the said judgment plead in bar’ — as appears by bill of exceptions No. 3. Statement. See bill of exceptions No. 3, Record, p. 20. Here is set out in' full the special demurrer and answer. The said answer does not plead any affirmative matter that negatives the allegations in appellant’s petition, and avoids their effect. It is a plea of confession in so far as it goes.”

By a liberal interpretation of rule 30, it might be considered that these assignments sufficiently disclose the proposition of law relied upon to show error, and that it was not necessary to follow them with propositions, but we doubt this. Kirby Lumber Company v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607. But, giving the appellant the benefit of the doubt on this point, the statement is insufficient. The mere reference to the bill of exceptions, no matter how full such bill may be, cannot take the place of such statement from the record as is required by rule 31. T. & N. O. R. R. Co. v. Powell, 51 Tex. Civ. App. 409, 112 S. W. 697; Colorado Canal Co. v. McFarland & Southwell, 50 Tex. Civ. App. 92, 109 S. W. 435.

If it be considered that .the allegations of the special demurrer are stated in full in the assignment, and that the statement sufficiently shows the vice in the pleading attacked by the special exception, “that it does not deny or controvert the facts in the petition pleaded to avoid this judgment,” and that the assignment is sufficient to require its consideration, we would hold that the special demurrer, as stated in the assignment, was properly overruled. It is not the contention of appellee that Callie Childress was a party to the suit referred to. It is upon other grounds that it is contended that she is bound by the judgment. If by the same liberal interpretation of the rules the third assignment should be considered, we would hold that the special exception was properly overruled, upon the well-settled principle that defects in the pleading of one party may be cured by averments in the pleadings of the other. Gaston v. Wright, 83 Tex. 285, 18 S. W. 576. Appellants set out fully in their petition all of the facts necessary to show that the property was in fact, at the date of the suit and judgment referred to, the community property of Childress and his wife. It is true that it is stated that it was her separate estate, but the facts stated as the basis of this claim, to wit, the verbal gift of the husband to the wife, show to the contrary. This attempted gift was clearly void, and did not change the community character of the property. This point will •be discussed later. Construing then the portion of the answer excepted to, in connection with the averments of the petition, it was sufficient, and the special exception was properly overruled. At any rate, the plea of res ad judicata by itself was an answer to this action in so far as plaintiffs’ case rested upon the homestead character of the property, and on that ground also the special exception was properly overruled.

The first assignment, with its statement, is as follows: “First Assignment of Error. (A Proposition.) The court "erred in overruling the general demurrer of the plaintiffs, contained in their first supplemental petition herein, to the answer of the defendants herein, as appears by bill of exceptions No. 1. Statement. See bill of exceptions No. 1, Record, p. 17. Same as under assignments of error Nos. 2 and 3, considered as a proposition, ante.”

The assignment cannot in any view be considered as a proposition. It is not followed by a proposition, and what is called “statement” is not sufficient, even in connection with the so-called statements under assignments 2 and 3. It may be added that the record does not contain any order or judgment of the court overruling any of the demurrers or exceptions. Bonner v. Glenn, 79 Tex. 533, 15 S. W. 572.

By the fourth assignment'of error appellant complains that the court erred in excluding from the jury as evidence, on objection of defendant, the confirmatory deed of G. D. Childress to his wife, herein referred to. The assignment is stated as a proposition and is not followed by any further proposition. It is not stated in the assignment or statement what objection was made to the deed. We are expected to go to the record and dig this out of the bill of exceptions which is referred to. We are utterly unable to guess even from the assignment or statement, or both, what question of law is presented by the ruling. The assignment cannot be considered. If considered, it would have to be overruled. It appears from appellants’ brief that this deed was executed long after the judgment referred to and after the institution of this suit, and there was no reference to it in the pleadings, so it was properly excluded. Collins v. Barlow, 72 Tex. 332, 10 S. W. 248.

The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments each complain of the exclusion of evidence of plaintiff G. D. Childress that Callie Childress owned the land, that he intended giving it to her and to make her a deed, and of Callie Childress that she owned the land, that at the time her husband bought it he gave it to her. Each assignment is stated as a proposition, and there is no other proposition stated. It does not appear what was the objection made by ap-pellee, and the only statements made at all are, “See bill of exceptions,” referring to the number of the bill and the page of the record. In the entire absence of any statement as to what objection was made, we are unable to determine whether or not there was error in the ruling complained of. Certainly the assignments are such as to require them to be followed by propositions. None of them can be considered. The evidence, however, (appears inadmissible on the ground of its immateriality. It only tended, if truej to show that by verbal gift G. D. Childress gave the land to his wife and that she claimed to own it as her separate estate.

The fourteenth assignment complains of the action of the court in excluding certain interrogatories to Callie Childress and her answers thereto “as appears by bill of exceptions No. 14.” The assignment is followed by a proposition, or what is called a proposition, which only states the purpose for which the evidence is offered. The only statement is, “See bill of exceptions No. 14.” As to what the evidence was, or what the-objection was, neither the assignment, proposition, nor statement gives the slightest intimation. The assignment cannot be considered.

Assignments of error 15 and 16 relate to-the exclusion of testimony of Callie Childress. Each is stated as a proposition. Neither is a proposition within the meaning of that term in rule 30. The only statement is “See bill of exceptions,” giving the number and page of the record. The assignments are not entitled to be considered. The evidence appears to be immaterial, and, if objected to on that ground, was properly excluded. The objection is not stated.

The seventeenth assignment is followed by a proposition, but no statement except the usual reference to bill of exceptions. It does not appear what objection was made to the testimony, nor can we gather what the evidence was. The assignment cannot be considered.

The remaining assignments of error complain of the action of the court in directing a verdict for defendants, on the ground, generally, that the undisputed evidence showed no title in defendant, and that Callie Childress was not bound by the judgment, on the ground that she was not a party thereto, and that the property was her homestead and also her separate estate. In the statement of the undisputed facts in the assignments appellants have gotten the evidence which was admitted mixed up with that which was excluded. There are no propositions stated under the assignments, each of which is stated as a proposition, and neither assignment is followed by anything which can be considered as a statement from the record, as required by rule 31. Neither of the assignments is entitled to consideration under the rules.

But we are loath to dispose of this appeal in this way. There does not, however, appear to be any merit in appellants’ case in any view that can be taken of it. The evidence in the record, all of which was introduced by appellants, shows that the property in controversy was first acquired by G. D. Childress in 1904 or 1905 by verbal sale, that at that time he and Callie Childress were husband and wife, and that they went into possession of the property, made some improvements and established their homestead on it, and that it has continuously since been so used and occupied, that the verbal sale to G. D. Childress was followed in 1909 by a deed to him, that in 1911 the appellee Robinson, in an action of trespass to try title, recovered judgment against G. D. Childress for the title and possession of the property, that G. D. Childress was a party to that suit and appeared and made defense, but that Callie Childress, his wife, was not a party. The appellants were plaintiffs and were required to establish prima facie their title and right to recover before appellee was required to say anything in his defense. If the judgment had not been pleaded, nor proven, as res adjudicata, plaintiffs would not have been entitled to recover the land on the evidence in the record. They showed neither title from the sovereignty, nor from a common source. But if they had showed such title, the plea of res adjudicata was a good defense on the facts shown on the trial, as shown by the statement of facts. Appellants’ contention is that the property being the homestead at the date of the institution of the suit in Robinson v. G. D. Childress, and of the judgment, and Mrs. Childress not being a party to that suit, the judgment is not binding upon her, nor in fact upon the husband. The evidence in the record shows that the property was community. It is settled law in this state that in such ease it is not necessary to make the wife a party in an action of trespass to try title for such community homestead, but that the judgment against the husband in a suit in which the wife is not a party is binding upon her. In such case the fact that the property was the homestead would not afford any defense to the action, and, if the wife’s interest rests upon that fact alone, the husband represents her, and she need not be sued. The following cases are believed to settle this question in this state; Jergens v. Schiele, 61 Tex. 255; City of San Antonio v. Berry, 92 Tex. 327, 48 S. W. 496; Collins v. Ferguson, 22 Tex. Civ. App. 552, 56 S. W. 225; Brown v. Humphrey, 43 Tex. Civ. App. 23, 95 S. W. 23; Breath v. Flowers, 95 S. W. 26, 43 Tex. Civ. App. 516; Central Coal & Coke Co. v. Henry, 47 S. W. 281; Speer on Law of Married Women, § 295. And if the wife denies the binding effect of such judgment upon her, on this ground, she must both by pleadings and proof show she has a defense to the suit in which the judgment was rendered, growing out of the homestead character of the property.

If the property was the separate estate of the wife, she would not be bound by a judgment against the husband alone, and in the present case it was contended that the property was the separate estate of Mrs. Childress and certain testimony was offered to prove this. All of this testimony was excluded by the court, and, as none of the assignments of error based upon such exclusion can be considered, the case must stand upon the evidence in the statement of facts, which conclusively establish that the property was community of the husband and wife, and makes no reference to any fact tending to show otherwise. Nevertheless, if this excluded evidence had been admitted, it would have tended to show that at the time G. D. Childress acquired the property by verbal sale he verbally gave it to his wife. This was in 1905. And that after the rendition of the judgment in Robinson v. Childress, and after the institution of this suit, he made a deed of it to his wife. With reference to this deed, it conveyed nothing, as at that time Childress had nothing to convey. That it is called a confirmatory deed gives it no force. If the verbal gift in 1905 was void, Childress could not breathe the breath of life into it by a deed executed after he had lost all title to the land by the judgment. The verbal gift, or attempted gift, of 1905, if ever made, was void under the statute of frauds. Allen v. Allen, 101 Tex. 362, 107 S. W. 528; Sanders v. Thompson Lumber Co., 139 S. W. 1005. There is no pretense that the land was paid for with the separate means of Mrs. Chil-dress, or that she was placed in possession, or made improvements on the land out of her separate estate. None of the elements necessary to take a parol gift of land out of the operation of the statute of frauds existed. So we conclude that under the undisputed facts in evidence, supplemented by those excluded, appellants have no case, and that if each of the assignments of error had been considered none of them would have presented any ground for reversal of the judgment. Arnold v. Attaway, 89 Tex. 506, 35 S. W. 646. The court did not err in directing a verdict for defendant. The judgment is affirmed.

Affirmed.


author: WILLSON, C. J.

text:
    SWANSON v. CITY OF NACOGDOCHES.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 13, 1913.)
    1. Appeal and Error (§ 837) — Review—Demurrer.
    In considering the propriety of the action of the lower court in sustaining a demurrer to the petition, the appellate court cannot consider the allegations of a supplemental petition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.]
    2. Municipal Corporations (§ 745) — Torts.
    A municipal corporation is not liable for the wrongful assault and imprisonment of the plaintiff by its officers without a showing of some wrongful act by the corporation itself.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1566; Dec. Dig. § 745.]
    Appeal from District Court, Nacogdoches County; Jas. I. Perkins, Judge.
    Action by James L. Swanson against the City of Nacogdoches. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Jas. W. Williams, of Fowlerton, for appellant. Ingraham & Hodges, of Nacog-doches, for appellee.

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

   WILLSON, C. J.

Appellant, plaintiff in the court below, after alleging in his petition that on March 19, 1912, he was lawfully engaged in the retail grocery business at No. 208 East Main street in the city of Nacog-doches, further alleged as follows: “That on or about said 19th day- of March, 1912, while he [appellant] was quietly and peaceably pursuing his lawful occupation, defendant [said city of Nacogdoches], acting by and through its city marshal, E. M. Weaver, with the assistance of one H. 0. Rich and W. H. Johnson, against the will and consent of piaintiff, with force and arms entered plaintiff’s premises, and violently laid hold of plaintiff’s person, and forcibly, and against the will and without the consent of the plaintiff, conducted plaintiff before the may- or of the said city of Nacogdoches, and by order of said mayor acting for and in the name of the defendant, the city of Nacogdoches, then and there with force and arms, against the will and contrary to the wish of plaintiff, incarcerated and falsely imprisoned plaintiff by placing him within a dirty and filthy cell in defendant’s city jail, and then and there falsely and illegally held and imprisoned plaintiff against his will and consent in said city jail for more than four hours, and at the expiration of four hours defendant, acting by and through its said agents and representatives, removed plaintiff from said jail, and publicly, openly, and notoriously, against his will and without his consent, paraded plaintiff about the streets and the publie square of said city of Nacogdoches, and then and there, against plaintiff’s will and consent, compelled plaintiff to engage at hard 'labor upon the publie streets of the city of Nacogdoches for a period of eight hours, and then and there falsely imprisoned plaintiff and deprived him of his liberty for a period of eight hours.” After alleging that as a consequence of the acts of said city marshal and mayor he suffered damages in various sums, aggregating $5,715, the amount for which he sought judgment, appellant further alleged as follows: “Plaintiff further charges and alleges that the acts of defendant’s agents and representatives, to wit, Geo. H. Matthews, E. M. Weaver, H. O. Rich, and W. H. Johnson, were willfully and maliciously done for the purpose of injuring plaintiff, humiliating him, and disgracing him before his fellowmen, and that said acts of said E. M. Weaver, George H. Matthews, H. O. Rich, and W. H. Johnson have all and every one been willfully and completely ratified by the defendant, by reason of which plaintiff should have and recover of the defendant exemplary damages in the sum of $5,000.”

The court sustained a general demurrer to the petition, and, appellant refusing to amend same, dismissed the suit.

While appellant assigns as error the action of the trial court in sustaining the demurrer and dismissing the suit, the propositions under the assignment are not framed to show that he stated a cause of action in his said petition, but to show that he stated one in a supplemental petition he filed in reply to appellee’s answer. In determining, whether the demurrer, addressed to the original petition alone, should have been sustained or not, we do not think we can look to allegations in the supplemental petition in aid of those in the original petition.

The case made by the allegations in the original petition is that appellee by its marshal and mayor unlawfully and maliciously assaulted and imprisoned appellant, whereby he was injured. The allegations doubtless were sufficient to show a liability on the part of said marshal and mayor; but appellant did not seek a recovery against them. They were not sufficient to show a liability on the part of appellee. A municipal corporation is liable for torts committed by its officers only in exceptional eases. Allegations showing merely a wrongful assault on and imprisonment of a plaintiff by officers of such a corporation do not present such a case. 2 Dillon, Mun. Corp. §§ 972, 975 ; 20 A. & E. Enc. Law, pp. 1199, 1201, 1202, 1204; City of Corsicana v. White, 57 Tex. 382; McFadin v: City of San Antonio, 22 Tex. Civ. App. 140, 54 S. W. 48; Rusher v. City of Dallas, 83 Tex. 151, 18 S. W. 333; Harrison v. City of Columbus, 44 Tex. 418; Edson v. Olathe, 81 Kan. 328, 105 Pac. 521, 36 L. R. A. (N. S.) 861; Hershberg v. City of Barbourville, 142 Ky. 60, 133 S. W. 985, 34 L. R. A. (N. S.) 141, Ann. Cas. 1912D, 189; City of Greenville v. Branch, 152 S. W. 478.

The judgment is affirmed.