author: TALBOT, J.

text:
    ZAVALA LAND & WATER CO. v. TOLBERT.
    (No. 7425.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1916.
    Rehearing Denied March 25, 1916.)
    1. Evidence <§=5461(1)— Parol Evidence — Intent oe Parties.
    In an action for damages for defendant’s breach of contract, where it sold land which had to be irrigated, under a contract providing for the drilling of a well and guaranteeing water, evidence that at the time of signing defendant’s principal agent explained that the well would produce sufficient water for irrigation is admissible; the expression in the contract being equivocal.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2129; Dec. Dig. <§=o461(l)J
    2. Evidence <§=5450(8)— Parol Evidence — Contract oe Sale.
    In such case, the fact that the contract was first signed by another agent does not render inadmissible the declaration by the principal agent, where until he signed it the contract was not binding.
    [Ed. Note.—For other cases, see Evidence. Cent. Dig. §§ 2073, 2074; Dec. Dig. <§=> 450(8).]
    3. Appeal and Error <§=31051(1)—Review-Harmless Error.
    In such case, where there was abundant other evidence to establish that the expression “guaranteeing water” meant sufficient water for irrigation purposes, the erroneous admission of evidence of the declarations of such agent was harmless.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166; Dee. Dig. <§=»1051(1).]
    4. Trial <§=^352(5)—Special Issues—Statement.
    In an action for damages for misrepresentation in effecting a sale of land, where the written contract provided for the drilling of a well and contained a guaranty of water by the vendor, the submission in a single special issue as< to what purpose and what extent water was-guaranteed was not erroneous as including two-separate questions, it being plaintiff’s contention that sufficient water for irrigation purposes was guaranteed, for the questions if separated were so closely related that one could not be-well determined without the other.
    [Ed. Note.—For other cases, see Trial, Cent;. Dig. § 841; Dec. Dig. <§=5352(5).]

      5. Appeal and Eeeob <®=»1001(1) — Review-Finding.
    Where there is evidence in support of the verdict, it will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. 1001(1).]
    6. Fbaud <®=58(4) — Reliance on Representations — Evidence.
    In an action for damages for misrepresentations in effecting a sale of land, evidence held to warrant a finding that the purchaser did not rely on his independent investigations but upon the representations.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 59; Dec. Dig. <§=>58(4).]
    7. Fbaud <@=»13(2) — Belief in Misrepresentations.
    That defendant’s agent in effecting a sale of land honestly believed a well drilled would produce sufficient water to irrigate the land will not prevent plaintiff from recovering damages for the false representation.
    [Ed. Note. — For other eases, see Fraud, Cent. Dig. § 4; Dec. Dig. <@=s>13{2).]
    8. Vendoe and Purchaser <®=s>352 — Con-tbacts — Juey Question.
    Whether a vendor delivered a deed within a reasonable time, the contract fixing no time, is a question of fact for the jury.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. <@=> 352.]
    9. Feaud <®=3G6 — Action—Evidence—Sufficiency.
    In an action for misrepresentations in effecting a sale of land, finding by the jury as to the actual value of the land held warranted under the evidence, though not in accordance with the exact estimates of the parties.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 75; Dec. Dig. @==>66.]
    10. Appeal and Eeeob @=>1033(9) — Review —Haemless 'Eeeob.
    In an action for misrepresentations in effecting a sale of land which plaintiff later resold, where tbe damages allowed were less than those fixed by the jury and did not exceed the value of plaintiff’s improvements and the difference between the contract price and the price at which plaintiff disposed of the land, defendant could not complain that the jury assessed tbe land at a value less than its actual value.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4061; Dec. Dig. <§=> 1033(9).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by R. L. Tolbert against tbe Zavala Land & Water Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, fop appellant. Thompson & Thompson, of Greenville, for appellee.

      Application for writ of error pending in Supreme Court.

   TALBOT, J.

This is the second appeal in this case. See 165 S. W. 28. Appellant, about the year 1909, acquired about 100,000 acres of land in Zavala county, Tex., and had 50,000 acres of the same seetionized and surveyed and test wells bored at the corners of the sections for the purpose of ascertaining whether water could be found by sinking wells. Appellant also subdivided each section and placed said lands on the market. On the 17th day of January, 1912, a contract was written and signed in behalf of the appellant by E. C. Hughes, one of its agents, and by the appellee, whereby the appellant bound itself to sell and convey to appellee, and appellee bound himself to receive and pay for 40 acres, a quarter of a quarter of a section of said land. After the said contract was written and before it was signed, the appellant’s said agent wrote into said contract as a part thereof the following:

“It is agreed to bore on land above described 10%-in. casing, guaranteeing water, and draw on R. L. Tolbert for total cost of well when completed.”

This contract was executed in triplicate, the appellee receiving one copy thereof, and the appellant’s agent Hughes retaining the other copies. At the time the contract was thus signed and delivered, appellee drew and delivered to the-said Hughes, as the cash or first payment to be made for the land agreed to be conveyed, his check on a bank in the city of Greenville, Tex., for the sum of $866.66, and it was then agreed, verbally, that said contract was not to become a “completed contract,” and the said check was not to be presented for payment and collected until said contract was further signed on behalf of the appellant by its agent W. H. Parish, who was then absent, when he returned to the said city of Greenville. In a few days after the signing of the contract by E. O. Hughes and the appellee, Tolbert, W. H. Parish returned to Greenville, and when first called upon to sign the contract he refused to do so, but later and on the 29th day of January, 1912, as agent of appellant, he signed it. His name was signed under the word “witness” printed in said contract, and in the opinion on the former appeal it is stated that the contract was “witnessed by W. H. Parish,” and it so appeared from the record then before this court; but on the subsequent trial it was shown that Mr. Parish signed as appellant’s agent, and not as a witness. At and prior to the time the contract was made, the defendant had printed and was circulating as advertising matter a pamphlet purporting to give picture views of its lands in Zavala county, and of farms on those lands, and of wells being pumped for irrigation purposes. These printed pamphlets stated, in substance, that the' lands mentioned were irrigable by pumping water from wells; that tracts of land were being irrigated from wells; that sufficient water was being secured, and could be secured, from wells to irrigate the said lands. A copy of the pamphlet above mentioned came into plaintiff’s hands before he signed the contract. This suit was filed March 23, 1912, and on October 5, 1914, after the former appeal, hereinbefore referred to, appel-lee filed his second amended petition on which, the last trial of the case was had. This. amended petition alleges the ownership of the lands in Zavala county by the appellant, and that appellant was offering and selling the same as irrigable lands; the execution of the contract mentioned; that by the terms of said contract appellant agreed to sell and cause to be conveyed to appellee the 40 acres of land described therein, by a good and sufficient warranty deed in consideration of the sum of $2,600, to be paid by appellee; that $866.66 was to be paid in cash, and the remainder to be paid in three promissory notes at different dates; that appellant was to sink a well on said 40 acres of land of the dimensions stipulated in the contract and to draw on the appellee for the cost of the well; that the water clause written in the contract meant, and was intended to mean, that the well to be sunk should furnish water sufficient to irrigate the said 40 acres of land.

Said petition further alleges, in substance: That appellant agreed to furnish appellee an abstract of title showing good title in appellant to the said land, and a warranty deed thereto, within a reasonable time. That at the time of the execution of said contract appellee informed appellant’s agents that he expected to go at once upon said land and begin work with the view of growing crops thereon during the year 1912; that he would move his family from Greenville, and that he and his minor son, with two teams, would begin work immediately upon said land, but to do this appellee must first have a deed to the land, with abstract of title; and that a well must be sunk thereon. That said agents assured appellee that said requirements would be faithfully met, but that appellant failed and refused to deliver to appellee a sufficient deed to said land until March 15, 1912, when it was too late to prepare said land and make a crop thereon. That appellant failed and refused to sink the well, provided for in the contract, upon said land until on or about May 15, 1912, and that the well then provided was not in accordance with the contract. That appellant’s agents, Hughes and Parish, prior to and at the time of the making of the contract for the purchase of said land, stated to appellee that there was an abundance of water underlying said land, and that the same could be irrigated by sinking a well thereon and pumping the water. That said representations were false. That appellee knew nothing of the water supply underlying the said land outside the representations of appellant’s said agents. That he only visited the locality once prior to the making of the said contract and spent less than two days there at that time. That the settlements wore then all new and few in number. That appellee at the time went over a large section of country hurriedly in an automobile. That the land he afterwards bought was only pointed out to him as being for sale as he passed by the same. It was then unimproved, had no well thereon. That appellee did not make, and at the time and under the circumstances could not have made, any investigation as to the water supply underlying said 40 acres of land, but he relied wholly upon the representations made to him by appellant’s agents. That immediately upon receiving a proper deed and abstract of title to said 40 acres of land on March 15, 1912, appellee prepared to go upon the same, and so, within two days thereafter, he left Greenville for La Pryor, and arrived at the latter place on or about March 20, 1912. That appellant had not then begun the well contracted for, and did not begin the same until on or about May 10, 1912. That upon being notified of the completion of the said well appellee requested appellant to provide proper persons and suitable machinery to test same, but the latter persistently refused appellee’s said request. That it thus became necessary for appellee to make such provision, and to make the said test. That upon a full and fair test made of the water supply as found in the said well, it proved to be wholly insufficient for pur-, poses of irrigation. That the water found therein was not only insufficient to irrigate 40 acres of land, but was insufficient to irrigate even one acre. That appellant’s agents knew at the time said contract was made that there was not sufficient water underlying said land for purposes of irrigation. That appellee, believing said false representations, was induced thereby to make said contract of purchase and agree to pay $65 per acre for said land, when the same was not worth exceeding $10 per acre, to make the cash payment of $866.66, and to deliver to appellant his notes, and of all this appellant’s agents were fully informed at the time. The petition further alleges that, under the terms of said contract, it was appellant’s duty to supply machinery and to pump and test the said well after it was sunk, but' that appellant failed and refused to so test said well, whereby the plaintiff was forced to buy machinery and to employ labor to test the said well; that appellant did not sink a well on said land until about the 15th of May, 1912; that the said land, without irrigation, is wholly unsuited for any kind of successful farming; that by reason of the delay by appellant in furnishing a deed of conveyance and in sinking a well the appellee was prei-vented from growing a crop on said land; and that he and one of his sons lost their time for eight months. It is alleged that appellee suffered losses as follows: In the value of land by reason of failure of water, $2,200; loss of plaintiff’s time eight months, $1,000; loss of plaintiff’s son’s time for eight months, $480; loss of time for two teams eight months, $400; loss on machinery purchased to pump well, $250; -loss for labor paid for testing well, $75 — aggregating $4,-405.

On October 7, 1914, appellant filed its first amended answer in reply to appellee’s second amended petition, and averred, in substance, that appellee and appellant executed and mutually delivered the contract set out in appellee’s petition, on January 17, 1912, and that appellee then made the cash payment mentioned; that the appellant performed all of its obligations under said contract; that it delivered the deed and an abstract showing title within a reasonable time; that the title to the said 40 acres of land was in a man named Lynn, who resided in the state of Arkansas; that it was found that some of the instruments constituting links in the chain of title had not been placed on record in Zavala county, and that certain releases of liens had not been executed and recorded; that appellant diligently prosecuted the work of securing said missing links in the chain of title, and having them recorded, and in furnishing complete abstract; that early in January, 1912, the appellant submitted to ap-pellee an abstract of the chain of title, which appellee rejected; that in the month of February appellant submitted to appellee an amended abstract of chain of title, which ap-pellee also rejected; that all statements and representations made by appellant’s agents to appellee about the said 40 acres of land, the water under the said lands, and the crops grown thereon, were substantially true; that appellee did not rely upon any representations about said land made to him by appellant’s agents, but pending thei said negotiations plaintiff went to Zavala county and himself investigated the said lands before he would make contract to buy, and ap-pellee did not make said contract until after he had investigated the said lands and returned to Greenville, Tex., and that appellee relied upon his own knowledge, information, and judgment; that the water clause in the said written contract did not mean to guarantee water sufficient for irrigation; that when the said contract was written appellee demanded of appellant’s agent Hughes that he write in said contract a clause guaranteeing water sufficient for irrigation, but the said Hughes refused to do so, and appellee; accepted and signed and delivered the said contract immediately after the appellant’s agent had refused to write therein a clause guaranteeing water sufficient for irrigation; that appellant did cause to be sunk upon the said lands a well in full compliance with the condition of the said contract, in accordance with the stipulations; that the said well was sunk and finished, and was ready for use by appellee, on or about the 6th day of April, 1912; that appellant did not test the said well, and it was not bound under the contract to make a test of the said well; that appellee did not properly test the said well and did not pump the said well with sufficient machinery or for a sufficient length of time; that the appellant did not make any false or fraudulent representations to appel-lee; that the said 40 acres of land was well worth the price paid by appellee therefor; that the well on the said land would, .with proper pumping, furnish water amply sufficient to irrigate all, or the greater part, of the said 40 acres; that appellant was in no wise responsible to- appellee for any loss on machinery purchased, or for loss of time of appellee and his son and teams. By way of cross-action, appellant alleged that it bored the well provided for in the contract for the purchase of the land in question at a total cost of $635.05; that appellee had agreed to pay such cost and prayed judgment therefor.

The case was tried at the October term, 1914, with the aid of a jury. Upon motion of the appellee, the case was submitted to the jury upon special issues, in the form of questions which were answered by the jury. The appellant filed and presented to the court a motion for a judgment in its favor upon the findings of the jury, which was overruled. The court, upon the findings of the jury, entered judgment for appellee in the sum of $1,999, and a judgment for the appellant on its cross-bill for the sum of $200, with direction that the $200 be set off against the said $1,990 leaving a balance of $1,790 in plaintiff’s favor.

The court permitted the appellee to testify, over the objection of the appellant, that W. H. Parish, after the contract for the sale of the land. involved in this suit had been signed by E.‘ O. Hughes as agent for appellant, and by the appellee, Tolbert, and mutually delivered on the 17th day of January, 1912, and after appellee had delivered to said agent his check for $866.66, as part payment for the said land, and before the said W. H. Parish, as agent for appellant, had signed said contract, stated to appellee that there was an inexhaustible supply of water under said land, and that they would guarantee an inexhaustible supply for irrigation purposes. The admission of this testimony is complained of by appellant and made the basis of its first and second assignments of error. The propositions contended for are:

“(1) That the terms of the contract having been agreed upon, reduced to writing, signed, and delivered, statements made by W. H. Parish about the supply of water under the land could not have been an inducement to plaintiff to make the contract, and such statements were immaterial. (2) That statements by W. H. Parish about the quantity of water under the land, made .after the terms of the contract had been agreed upon and reduced to writing, when there had been evidence introduced tending to show that by agreement the contract was not to be effective until W. H. Parish signed the same, admitted in evidence over the objection of the defendant, were probably considered by the jury upon the question of inducement to plaintiff, and worked an injury to the defendant.”

We are inclined to the opinion that the evidence was admissible. It was alleged that the clause in the contract “guaranteeing water” was intended to mean, and did mean, a supply of water from the well to be sunk on the land, sufficient in quantity to irrigate the 40 acres of land purchased by appellee. This clause of the contract, as we said on the former appeal, was manifestly not “inserted therein without regard to the quantity or uses to which the water guaranteed was to be put, and in that respect it evidently does not unequivocally and fully express the intention of the parties. This being true, parol evidence was admissible to show the situation of the parties and the circumstances under which the contract in question was executed for the purpose of ascertaining the meaning of the language under consideration and properly construing said contract.” The language, being equivocal, its meaning could only be ascertained “from a full history of the circumstances under which it was used, and for this purpose the court was authorized to receive evidence explaining the subject-matter, the surrounding circumstances, the relation of the parties, and the inducing cause which led up to the making of the agreement, and this is especially true under the acts of fraud in plaintiff’s petition.” Zavala Land & Water Co. v. Tolbert, 165 S. W. 28. The testimony objected to was, we think,, admissible as tending to show the meaning of the language “guaranteeing water” as used in the contract entered into between appellant and appellee and an “inducing cause which led up to the making of the agreement.”

The testimony objected to was not inadmissible, we think, because the contract had been reduced to writing and signed by E. C. Hughes as agent for appellant, and by the appellee, Tolbert. It very clearly appears that, notwithstanding the contract was so signed, it was not completed and binding upon the parties until signed by appellant’s agent Parish. In Merrill v. Tehama Consol. Mill Co., 10 Nev. 125, the general rule is said to be that:

“Where parties enter into an agreement and the understanding is that it is to be reduced to writing, or, if it is already in a written form, that is to be sign§d before it is acted on or to take effect, it is not binding until so written or signed.”

And in 7 Am. & Eng. Enc. of Law, 140, the rule is stated in the following language:

“Where the parties make the reduction of the agreement to writing and its signature by them a condition precedent to its completion, it will not be a contract until that is done, and this is true although all the terms of the contract have been agreed upon.”

Until the contract was signed by appellant’s agent Parish, either party thereto was at liberty to withdraw from it, and the reiteration by Parish that there was an inexhaustible supply of water underlying the land, and in effect that appellant would guarantee that there was an inexhaustible supply of water underlying the land for the purposes of irrigation, just before he (Parish) signed the contract, was relevant to the issue raised as to the meaning of the clause “guaranteeing water” and the intention of the parties in inserting it in the contract. But if it should be conceded that the testimony was not, strictly speaking, admissible, still in view of the express finding of the jury that the representations made in reference to the extent of the water supply underlying the land were made before January 17, 1912, and the oft-repeated and practically undisputed declarations of appellant’s agents prior to and at the time of the signing of the contract by E. 0. Hughes and the appellee on said 12th day of January, 1912, to the effect that there was an inexhaustible supply of Water underlying the land and amply sufficient for irrigation purposes, it is improbable the jury was influenced to the prejudice of appellant by the testimony under consideration.

The court submitted the following issue to the jury:

“The contract between plaintiff and defendant for the purchase and sale of 40 acres of land in Zavala county, Tex., provides that ‘water is guaranteed.’ You will find from the evidence and state in .answer hereto for what purpose and to what extent water was guaranteed; that is, you will determine from the evidence, and so state in your answer, what the intention of the parties was with reference to the quantity of water referred to in the contract and the use to which it w.as to be put.”

Appellant contends that the court erred in the submission of this issue, in that it “embraces two distinct questions, and confuses matters of fact which are sharply contested and matters of fact which should be separately submitted to the jury; that the question submitted assumes that there was water guaranteed for a purpose, when the evidence raised a sharp issue as to whether water was guaranteed for use for any purpose; that said question assumes that the intention of each of the parties at the time the contract was executed was the same; and that it was the intention of each that the well was to furnish water which should be put to some use, when the said matter was an issue of fact for the jury.” The manner and form of submitting the issue in question was not materially erroneous, if erroneous at all. We agree with the views expressed by counsel for appellee: First, that the purpose for which water was guaranteed in the contract, and the quantity of water so guaranteed, are matters so intimately related, and so nearly identical in meaning, that the division of the question as suggested would not have made the same more intelligible, but would have involved needless repetition. Second, that the clause in said contract guaranteeing water had some meaning, and expressed some purpose, were uncontroverted facts, and the court committed no error in so assuming. Third, the parties having agreed upon the terms of the contract, their intentions as to its legal significance are presumed in law to be in accord and to unite in one purpose; such purpose or intention it was the province of tile jury to determine from tire contract itself interpreted by the surrounding circumstances; therefore, the question propounded by the court was not upon the weight of the evidence. The answer of the jury to the question is as follows: “Water for irrigation, sufficient to irrigate said lands.” As said by counsel for appellee, this answer of the jury is definite and clear, it is consistent with other answers made by them in response to kindred questions, and there appears to be no reason or legal ground for the claim that the question objected to was not fully understood by the jury. The testimony discloses that appellee repeatedly stated to appellant’s agents that he desired to purchase the land for trucking purposes, and that he would not buy the land unless there was water for producing this character of crops. He further testified that the purpose of sinking the well was fully discussed at the time the contract was drawn and signed, and that no other purpose was mentioned than that of irrigation. The dimension of the well — 10% inches in diameter — as set out in the contract, and' as shown by the undisputed testimony, discloses a size of well used only for purposes of irrigation; for other purposes, wells from 4 to 8 inches in diameter were used, and these latter were usually propelled by windmills.

The fourth assignment of error is, in substance, that the finding of the jury to the effect that the clause in the contract “guaranteeing water” was intended by appellant and its agents to mean a supply of water sufficient for the irrigation of the land purchased by appellee, is not only against the great weight of the evidence, but wholly without evidence to support it. Upon the former appeal of this case, we held that the appellee’s allegations that said clause in the contract was intended by the parties to mean a supply of water from the well to be sunk on appellee’s land sufficient to irrigate the same were not sustained by a preponderance of the evidence as it then appeared in the record, and gave that as one of the reasons why the case should be reversed. But -upon a very careful review and consideration of the evidence now found in the record, although in many respects quite the same as it was on the former appeal, we have reached the conclusion that we would not be warranted in saying that the finding of the jury with respect to the meaning of said clause of the contract was wholly without evidence to support it. The rule in such case in this state is not to disturb the jury’s finding. The assignment will therefore be overruled.

Nor do we think the finding of the jury, to the effect that the representations and statements made by appellant’s agents about the quantity of water underlying the land sold to appellee were false, is without substantial evidence to support it.

Appellant complains of the tenth question submitted by the court to the jury. This-question reads:

“If you have found that such representations were made, then did plaintiff rely upon such representations, and was he induced thereby to execute the contract and purchase said lands? Or did he rely upon his own judgment as to water supply and irrigation, after going over the land ,and looking at it and making an investigation for himself?”

The jury answered the question as follows: “He relied upon their agents’ representations.” The proposition asserted under this assignment is that:

“Under the undisputed evidence, it follows as a matter of law that plaintiff did not rely upon representations of defendant’s agents, and this was not a question for the jury.”

The evidence bearing upon the question presented is entirely too voluminous to be quoted in this opinion, and we shall not undertake to do so. We agreed with the contention made by the appellant on the former appeal of this case to the effect that the weight and preponderance of the evidence then before the court showed that the representations made by appellant’s agents to the appellee in regard to the quantity of .water that could be procured from a well on the land purchased by appellee were not relied upon by appellee and did not operate as the inducement of his purchase. But we are of opinion that the testimony now contained in the record touching the question, while largely the same as it was on the former appeal, is materially different therefrom in some important particulars and of such a character as called for the submission of the issue to the jury. Appellee swore positively that he relied upon the representations made to him by appellant’s agents in reference to the supply of water to be obtained by sinking a well on the land conveyed to him; that, while he went upon the lands offered for sale by appellant before the execution, of the contract made with appellant, the condition of the improvements found and his moans of investigation were such that he could obtain no accurate and reliable information as to the -extent of the water supply underlying the land. He says he was there only a day and a half; that he went down there on a holiday with a crowd, not to investigate the water supply any more than to look at the wells on the lands, but to look at the country generally; that just what he-saw riding around in that way, and what appellant’s agent told him, was all he knew about the water. He further said there was no well on the land he bought, which is an undisputed fact, and that the nearest well in its locality then was the Lundt well, and that there was a 40-acre tract between that well and the land sold him; that the Lundt well was not in operation at the time he saw it, but there was water in the reservoir; that the demonstration well was the only well he saw running to amount to anything;. that they started Tip two other little pumps and ran them a few minutes.

This and other testimony found in the record tends to show that there was practically no irrigation in progress at the time appellee saw the lands and before he made the contract to buy. The appellant, however, had sunk wells on the lands, other than the land bought by appellee, and was then engaged in advertising extensively the same for sale as being fully susceptible of irrigation from water obtainable from wells already sunk and to be sunk thereon. The representations made of the irrigability of the lands were not the mere expressions of opinion, but as demonstrated facts. The jury found that the appellee requested appellant’s agent Hughes to write into the contract a guaranty of water sufficient for irrigation, and that Hughes refused to do so, but that the reason given by Hughes for his refusal to write such guaranty ,was that “he could not tell the machinery he would use.” The jury further found that appellee provided suitable machinery and properly pumped and tested the well drilled by appellant on the 40 acres of land sold him, and that the failure of the well to furnish an adequate supply of water to irrigate said land was due to a lack of a sufficient supply of water underlying the same. These were specific findings, among others, made by the jury, and establish that the refusal to insert in the contract the requested provision of guaranty of water sufficient for irrigation was not an unqualified refusal to do so, and left, we now think, as an issuable fact the meaning and purpose of the language guaranteeing water written in the contract to be determined by the jury from a full history of the circumstances and facts under which it was so written. Testimony showing such facts and circumstances was clearly admissible, not, as we said on the former appeal of this case, for the purpose of importing into the writing an intention not expressed therein, but simply with the view of elucidating the meaning of the said words, “guaranteeing water.” Appellant’s agents were not only advertising for sale generally the lands owned by it by pamphlets and other printed matter, some of which fell into the hands of ap-pellee, as unquestionably susceptible of irrigation from water obtainable by wells bored on the land, but practically at all times in negotiating the sale to appellee and at the very time the contract for said sale was made represented that there was an inexhaustible supply of water for irrigation underlying the land. Appellee, in substance, informed these agents before and at the time of the execution of the contract of purchase that he would not purchase the land at any price unless there .was water underlying the same sufficient for irrigation and we do not feel, especially since two juries have found that such representations under the evidence adduced were not true, and in effect that such representations were the “inducing cause which led up to the making of the contract of purchase by appellee, and that the parties intended by language of said contract guaranteeing water” a guaranty of water sufficient for irrigation, that we would be justified in reversing the judgment of the district court on the ground that it appears from the evidence, as a matter of law, that the appellee did not rely upon the representations made by appellant’s agents in regard to the quantity of water that could be procured from a well on the land and did not operate as the inducement of his purchase; or that it so appears that the words, “guaranteeing water,” were not intended by the parties to mean water enough for irrigation. If the clause in the contract, “guaranteeing .water,” was intended by the parties to mean water sufficient for irrigation, the refusal of appellant’s agents to add thereto language that would show expressly that such was their intention would not preclude the assertion and proof thereof by appellee, or his right to avail himself of the benefits of such a stipulation. Indeed, if the parties intended said clause to mean water sufficient for irrigation, the legal effect of the words used is the same as a full expression of such intention would be.

There was no error in refusing to submit the question requested by appellant, as to whether the appellant and its agents, at the time the contract involved in this suit was signed, believed and had good reason to believe that water sufficient for the purpose of irrigation could be obtained by sinking a well upon said land. If such question had been submitted and answered in the affirmative, appellee would not have been relieved thereby from liability for any element of damage sought to be recovered. If appellant falsely represented to appellee that there was water enough underlying the land for the purpose of irrigating the same, and said representations .were relied upon by appellee, appellant would be liable, although at the time the representations were made appellant and its agent believed them to be true. This we believe to be the clearly established rule of this state. Mitchell v. Zimmerman, 4 Tex. 76, 51 Am. Dec. 717; Boles v. Aldridge, 153 S. W. 373; Id. (Sup.) 175 S. W. 1052.

The tenth assignment of error is that the appellant’s motion for a new trial ought to have been granted, “because the answer of the jury to the fifteenth question submitted by the court, to the effect that a deed and abstract were not furnished within a reasonable time under the circumstances, is without evidence to support the finding.” There was no stipulation in the contract fixing the time of performance, and the rule is substantially as stated by appellant, namely, that in such case the law allows a reasonable time, and what is a reasonable time depends upon the nature and character of the thing to be done, the circumstances of the particular case, and the difficulties surrounding and attending its accomplishment. Ordinarily, the question is one of fact for the determination of the jury, and was, we believe, in this instance. To detail all the evidence touching the question would extend this already long opinion to too great length, and we shall content ourselves, in disposing of the assignment of error presenting it, with the statement that the jury found that the appellant did not within a reasonable time after the contract for the purchase of the land in question became effective furnish the appel-lee a good and sufficient deed and abstract of title to said land, and that we are not prepared to say the evidence did not justify such finding.

The eleventh and last assignment of error is, in substance, that the answer of the jury to the twenty-first question propounded to them by the court, whereby the jury found that the reasonable cash market value of the land in controversy was $40 an acre, is against the overwhelming weight of the evidence, and is not supported by any evidence. This contention is based upon the fact that the witnesses who testified as to the market value of the land varied widely as to such valuation and no witness testified that the land was worth $40 per acre. The appellee testified that the market value of the land was about $10 per acre. E. G. Dellinger testified that without water for irrigation it was worth about $10. N. El Peak, that its market value was $20 or $25. E. C. Hughes, that its value as it stood at the time of the trial was $85 per acre. I. B. Hopper, that at a fair market value'it ought to be worth $80 or $85 per acre. A. E. Scott, that the 40 acres ought to be sold at $75 per acre, and B. F. Kite testified that he considered appellee’s 40 acres of land worth $100 per acre. It further appears without dispute or contradiction that the contract price per acre for the 40 acres of land sold to appellee was $65 per acre, or $2,600 for the total number of acres, and that during the trial of this case, and in the presence of the court and jury, and apparently as part of the proceedings in the trial, the appellee sold and conveyed said land to C. R. Rhea for $50 per acre, aggregating $2,000. The testimony standing thus as to the value of the land, it is argued, in effect, that the jury, in arriving at that verdict and measuring the damages claimed by appellee evidently disregarded the evidence, and disclose thereby that they were not fair and impartial. We are not prepared to say that such conclusion necessarily follows from the action of the jury. We are inclined to think, as contended by appellee’s counsel, that when witnesses differ, as they often do, as to the value of property, their statements with reference thereto being the mere expression of opinion, the jury may properly arrive at their verdict from a consideration of all 'the testimony and credibility of the witnesses, and are not required to adopt the opinion or testimony of any particular witness or number of witnesses, and their verdict should not be disturbed unless it appears that it is clearly wrong. But, however this may be, the appellant, we think, has no just cause to complain of the action of the jury in finding that the land involved herein was of the market value of $40 per acre. As above stated, the contract price for said land was $2,600, and the appellee sold and conveyed the same for $2,000. The jury, in addition to the finding that the land was worth $40 per acre, which for the total number of acres amounts to $1,600, found that the value of the barn and fencing built by ap-pellee on said land and which he was entitled to recover, as a part of his damages, was $400. Just why these elements of appellee’s damages were submitted as separate and distinct matters from his loss on the land proper does not appear, but that they entered into and were proper to be considered by the jury in arriving at the total amount of his loss on the land can hardly be questioned. That they were submitted separately, however, does not alter the fact that they formed a part of appellee’s loss on the land, and, having been submitted as a separate issue, it is not improbable that the jury recognized their relation to the land itself and fixed the value of the land and of the barn and fence at the respective amounts they did to correspond with the amount appellee sold the land and said improvements for to C. R. Rhea; for it will be observed that the two values fixed by the jury amount to a valuation of the land and said improvements at $50 per acre, or a total amount of $2,000.

Again, the judgment of the court contains the following recitation:

“The jury having found, in response to the twenty-first question propounded to them, that the reasonable cash market value of the land is $40 per acre, and it appearing to the court from undisputed evidence that the plaintiff received for said land by sale thereof made in the presence of the court, during and as a part of the proceedings herein, the sum of $50 per acre, the court finds, and so holds, that the measure of plaintiff’s damage, in so far as the loss upon the land itself is concerned, is the difference between the contract price, to wit, $2,600, and the amount received by the plaintiff for the land by reason of said sale, to.wit, $2,000.”

It is then adjudged that the appellee recover of appellant the several sums awarded him, including $600 loss on land and the item of $400, the value of the improvements placed on the land by appellee aggregating the sum of $1,990. But, again, the court in that 'portion of the judgment quoted above correctly states the measure of appellee’s damages with respect to his loss on the land, and as it appeared without dispute that he had contracted to pay $2,600 for the land and sold it for $2,000, the measure of appellee’s damages in that regard became a question of law and was not a question of fact to be submitted to tbe jury. Tbe amount allowed ap-pellee therefore as loss on land and included' in tbe judgment rendered was proper regardless of tbe finding of tbe jury upon tbe issue. Sucb allowance resulted in tbe rendition of a judgment against appellant for §200 less than would have been rendered bad tbe finding of tbe jury for loss on tbe land been strictly adhered to; and it follows that it has not been harmed by tbe finding of tbe jury complained of, even if it should be conceded that such finding was not based on tbe evidence adduced with respect to the value of the land.

We recognize that some' of the questions raised are close, and some of the conclusions announced have not been reached without difficulty. Tbe ease has been tried twice with similar findings by tbe jury, which findings in both instances have been approved by the trial judge. It is immaterial what tbe conclusions of this court might have been with regard to some of the questions involved, bad they been submitted as original propositions. Our conclusion is that, if it be conceded that some of the findings of tbe jury on material issues were against the preponderance of tbe evidence, yet there was some substantial evidence upon which to base such findings. Believing that the verdict of the jury is not without evidence to support it and that none of appellant’s assignments disclose reversible error, tbe judgment is affirmed.

Affirmed.
      ©=3Eor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      @=>For oilier oases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    NUNEZ v. McELROY.
    (No. 408.)

    (Court of Civil Appeals of Texas. El Paso.
    Feb. 24, 1916.
    Rehearing Denied March 23, 1916.)
    1. Appeal and Errori <&wkey;1185 — Jurisdiction —Finality op Judgment in Lower Court —Setting Aside Affirmance.
    If the trial court’s judgment was not final, tho Court of Civil Appeals did not acquire jurisdiction, and its judgment of affirmance is a nullity, and should be set aside.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. <5&wkey; 1185.]
    2. Appeal and Error <S&wkey;1185 — Jurisdiction —Judgment in Lower Court — Setting Aside Affirmance.
    Motion to set aside a judgment of affirmance, on the ground that the trial court’s judgment was not final, and that therefore the appellate court never acquired jurisdiction, may be made at a subsequent term.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. <S= 1185.]
    3. Appeal and Error 79(2) — Jurisdiction-Final Judgment — Disposition of Parties —Implication.
    Even if plaintiff’s amended petition, stating that he dismissed his suit as to all defendants except N., and complaining of N. only, did not ipso facto, operate as a discontinuance as to all defendants except N. without formal order, the plain and necessary implication from' the order then made — not specifically naming defendant R., but reciting that plaintiff says he will not prosecute his suit against named defendants, and dismisses his suit as to all defendants except N., and ordering the dismissal as to the-named defendants, and that the cause stand for trial with N. as defendant, and from the judgment against N. after trial, reciting that plaintiff having therefore entered a dismissal of his cause against all the defendants except N., plaintiff and defendant N. announced ready for trial — is that the suit was discontinued as to all defendants except N., which is all that is necessary as regards there being a complete disposition of parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 485 — 487; Dec. Dig. @=79 (2).]
    4. Appeal and Error <&wkey;80(l) — Jurisdiction — Final Judgment — Disposition op-Subject-Matter — Amendment of Petition.
    Relative to the judgment disposing- of the subject-matter, and so being final, for purpose of appeal, amendment of the petition reducing plaintiff’s claim to five of the many acres claimed by the petition, of itself eliminated all the-rest of the subject-matter of his claim.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 50-3, 505-509; Doc. Dig. @=80(1).]
    5. Appeal and Error. <&wkey;80(l) — Jurisdiction — Final Judgment —Disposition of-Cross-Action.
    The cross-action of defendant for the land sued for by plaintiff is by necessary implication-disposed of and adjudicated against him by the judgment for plaintiff therefore.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§. 494-500, 503, 505-509; Dec. Dig. @=80(1).]
    6. Dismissal and Nonsuit @=19 (3) — Dismissal of Suit — Effect on Cross-Action.
    Plaintiff’s dismissal of his suit as to certain defendants did not affect any cross-action-pleaded by them.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 36; Dec. Dig. @=19(3).]
    7. Appeal and Error @=80(1) — Jurisdiction-Final Judgment — Disposition op Cross-Action.
    Disposition of any cross-action pleaded by defendants as to whom he dismissed his suit is essential to finality of the decree or judgment.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 494r-500, 503, 505-509;. Dec. Dig. @=80(1).]
    8. Trespass to Try Title <&wkey;22 — Cross-Action — Pleading—Limitations.
    Answer of defendants in trespass to try-title, though not containing some formal allegations appropriate to a cross-action therein, is, in the absence of special exceptions, sufficient to-constitute a cross-action, and afford basis on which to predicate a right to affirmative relief, thereby asked, facts being alleged, the legal effect of which is to vest in such defendants title by limitations; a plea of limitations, as distinguished from one of not guilty, necessarily implying that title is vested in defendants, and' so, under appropriate prayer, authorizing affirmative relief.
    [Ed. Note. — For other cases, see Trespass to-Try Title, Dee. Dig. ©=522.]
    9. Appeal and Error <&wkey;80(l) — Jurisdiction— Final Judgment — Disposition of Cross-Action.
    There is an implied disposition, by discontinuance or dismissal, of the other defendants’ cross-action, in the order that plaintiff’s suit was dismissed as to them, “and that this cause stand for trial with M. as plaintiff, and N. as defendant.”
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 491-500, 503, 505-509; Dec. Dig. <@==>80(1).]
    10. Appeal and Erkiob <@=>80(1) — Jurisdiction — Final Judgment.
    Whether dismissal of the cross-action of defendants, as to whom plaintiff dismissed his suit, was rightful, is immaterial, relatively to there having been a disposition of the issue, making the judgment final, and so giving the appellate court jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 503, 505-509; Dec. Dig. <@=>80(1).]
    Appeal from District Court, El Paso County ; M. Nagle, Judge.
    On motion to vacate judgment of affirmance.
    Denied.
    For former opinion, see 174 S. W. 829.
    C. L. Yowell, Beall & Kemp, and J. E. Quaid, all of El Paso, for appellant Davis & Goggin, Paul D. Thomas, and Burges & Burges, all of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HIGGINS, J.

At a preceding term of this court, a final disposition of this appeal was made and judgment of affirmance entered. At this term, appellant filed a motion setting up that the judgment of the lower court was not final; therefore this court never acquired jurisdiction, and its order of af-firmance was a nullity'and should now be vacated and the appeal dismissed. If the judgment of the court below is subject to the objection urged against it, this court never acquired jurisdiction of the case. Its order of affirmance would be a nullity and it should now be vacated and the appeal dismissed. The fact that this motion is filed at a subsequent term is not an objection to such action. Chambers v. Hodges, 3 Tex. 517; Burke v. Mathews, 37 Tex. 73; Burr v. Lewis, 6 Tex. 76; Munson v. Newson, 9 Tex. 109; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312; Milam Co. v. Robertson, 47 Tex. 222.

Appellant’s motion will therefore be considered upon its merits.

It is objected to the judgment of the •court below that it lacks finality, because it fails to dispose of all the parties to, issues, and subject-matter of, the litigation.

The suit was filed by McElroy against Nunez et al. to recover title to and possession •of a number of surveys of land bordering on the Rio Grande river. On July 31, 1913, plaintiff filed an amended petition against the same defendants and Ignacio Rodriguez. On September 2, 1913, defendants filed a plea of not guilty. On January 7, 1914, defendants filed another answer, which reads:

“Now come defendants and deny each and every allegation in plaintiff’s petition and demand strict proof of same.
“Defendants say they are not guilty of the wrongs and injuries complained of in plaintiff’s petition.
“Defendants say that they have been in peaceable and adverse possession of land described in plaintiff's petition under title and color of title for more than three years next preceding June 1, 1913, and therefore say plaintiff’s cause of action is barred by statute of limitation, and of this prays judgment of the court.
“Defendants further say that they have had peaceable and adverse possession of said real estate described in plaintiff’s petition, cultivating, using and enjoying the same for ten years next preceding June 1, 1913, and therefore plaintiff’s cause of action is barred by the statute of limitation, and of this they pray judgment of the court.
“Defendants further say that they have been in peaceable and adverse possession of said real estate, cultivating, using, and enjoying the same and paj'ing taxes thereon and claiming under a deed and deeds duly registered for more than five years next preceding June 1, 1913, and therefore plaintiff’s cause of action is barred by statute of limitation, and of this • pray judgment of the court.
“Wherefore defendants pray for judgment over and against the plaintiff herein for all land between the old river as it ran at the time the respective surveys of respective numbers set up in plaintiff’s petition and present Rio Grande river; same is not accretion to said numbers and because same is property in fee simple of defendants.”

On January 8, 1914, plaintiff again amended, in such amendment stating that he dismissed as to all defendants except Nunez. This petition complained only of Nunez, and prayed judgment against him for the title and possession of the land therein described. The land described was five acres out of one of the surveys named in the preceding petitions. On the same date the court entered an order of dismissal as follows:

“Be it remembered that on this the 8th day of January, 1914, came the parties by their attorneys, and the plaintiff says that he will not further prosecute his suit against the defendants Melquervas Perea, Catrino Rivera, Felix Castil-los, Patricio Rivera, Joaquin Ruiz, Alberto Chavez, Preeiliano Apodaca, Bonifacio Sapulga, Victorio Espinosa, Jesus Rivera, Gregorio Rivera, Polito Sapulga, Julian Sanchez, Mauricio Apodaca, Frank Alderete, Robert Parson, and R. J. Owen, and dismisses, without prejudice, as to all of the defendants except the defendant Jesus Nunez, but will prosecute his suit as to defendant Jesus Nunez. It is therefore considered by the court that this suit be dismissed as lo the said Melquervas Perea, Catrino Rivera, Felix Castillos, Patricio Riveria, Joaquin Ruiz, Alberto Chavez, Preeiliano Apodaca, Bonifacio Sapulga, Victorio Espinosa, Jesus Rivera, Gregorio Rivera, Polito Sapulga, Julian Sanchez, Mauricio Apodaca, Frank Alderete, Robert Parson, and R. J. Owen, but as to the defendant, Jesus Nunez, be proceeded with and that the defendants, Melquervas Perea, Catrino Rivera, Felix Castillos, Patricio Rivera, Joaquin Ruiz, Alberto Chavez, Preeiliano Apodaca, Bonifacio Sapulga, Victorio Espinosa, Jesus Rivera, Gregorio Rivera. Polito Sapulga, Julian Sanchez, Mauricio Apodaca, Frank Alderete, Robert Parson, and R. J. Owen, go hence without day, without prejudice to any cause of action which plaintiff may have against them or any of them, and that they and each of them have and recover of the plaintiff, John T. McElroy, their costs in this behalf expended, and that they have their executions, and that this cause stand for trial with the said John T. McElroy as plaintiff and Jesus Nunez as defendant.”

In this order, it will be observed that Ignacio Rodriguez is not specifically named.

On January 12, 1914, Nunez filed wbat be designates bis trial amendment in answer to tbe trial amendment of plaintiff, and in tbis amendment be pleaded not guilty; also, tbe five and ten years’ statute of limitation whieb be pleaded in bar of tbe suit. Tbis answer concluded witb tbis prayer:

“Defendant says, by reason of tbe aforesaid statute of limitation, the facts pleaded in connection with defendant’s prayer invoking the same, that he is the owner in fee simple of the property described in plaintiff’s petition, is the owner of the title thereto, the same is by law vested in him, and he prays on final hearing that he have judgment over against the plaintiff for the lands described in plaintiff’s petition and for the title thereto, and that he have judgment quieting his title forever as against any claim of this plaintiff.”

To tbis last amendment plaintiff filed a supplemental petition containing matter in no wise pertinent to the questions here considered. It concluded witb prayer for recovery of tbe premises described in bis last amended original petition and that Nunez take nothing by bis cross-action.

Upon trial of the cause, tbe court entered judgment in favor of MeElroy against Nunez for the title and possession of tbe five acres of land described in McElroy’s last amended original petition. Tbis judgment begins witb tbis recital:

“Be it remembered that on the 8th day of January, 1914, at a regular term of this court, came on regularly to be heard the above styled and numbered cause, and the plaintiff having theretofore entered a dismissal of his cause of action herein against all of the defendants herein, except as against the defendant Jesus Nunez, thereupon came the parties, the plaintiff, John, T. MeElroy, by his attorneys, and the defendant, Jesus Nunez, by his attorneys, and announced ready for trial.”

Tbe foregoing statement of the pleadings embraces all that is material to a consideration of the questions involved.

So far as tbe disposition of parties defendant is concerned, it is plainly apparent that the order of January 8,1914, completely eliminated all of tbe parties from tbe suit of tbe plaintiff except Ignacio Rodriguez.

In tbe amendment of tbe plaintiff filed on January 8, 1914, be expressly stated that be dismissed bis suit as to all defendants except Nunez, and tbis amended petition complained of Nunez only. It occurs to us that this formal admission perhaps ipso facto operated as a discontinuance of the suit as to all defendants except Nunez, and that formal order of dismissal by tbe court was unnecessary. But be tbis as it may, the recitals in the order of dismissal and in the final decree in substance and effect show that all defendants except Nunez were dismissed from tbe plaintiff’s suit, and the failure to specifically name Rodriguez was accidental or clerical error. Tbe plain and necessary implication to be deduced from tbe recitals is that tbe suit of tbe plaintiff was discontinued as to all defendants except Nunez, and tbis is all that is necessary. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161.

Tbis view disposes of tbe question as to. tbe complete disposition of parties.

Taking up tbe question of subject-matter, it is contended first that no disposition has been made of tbe large acreage for which tbe plaintiff originally sued. As to tbis, we think that tbe plaintiff’s amendment of January 8, 1914, of itself eliminated all of tbe subject-matter so far as bis suit was concerned except five acres, by reducing bis claim to tbe five acres therein described and sued for.

As to tbe cross-action of Nunez for said five acres contained in bis last trial amendment, tbis by necessary implication was disposed of and adjudicated against him by tbe final judgment, whereby recovery of tbe five acres was bad by tbe plaintiff against him. Trammell v. Rosen, supra; Davies v. Thomson, 92 Tex. 391, 49 S. W. 215 ; Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77.

It is next contended that disposition was not made of tbe cross-action of tbe other defendants. It is, of course, true that a plaintiff by a dismissal of bis suit cannot prejudice and does not affect a cross-action set up by tbe defendant. So, if a cross-action was pleaded by tbe codefendants of Nunez, the plaintiff’s dismissal of bis suit as to such defendants did not affect such cross-action, and disposition thereof is essential to tbe finality of tbe decree. So it is pertinent to inquire whether those defendants bad pleaded a cross-action against tbe plaintiff. If there was such a cross-action pieaded, it is contained in tbe answer filed by all defendants on January 7, 1914, noted above. It is objected by appellee that tbis answer is insufficient to constitute a cross-action and affords no basis upon which to predicate a right to affirmative relief. In tbe absence of special exceptions, we think it sufficient. Facts are alleged, tbe legal effect of which was to vest title in such defendants by limitation, and they have an appropriate prayer for affirmative relief. It is true, affirmative relief cannot be granted under a plea of not guilty (Railway Co. v. Prather, 75 Tex. 55, 12 S. W. 969; Matthews v. Moses, 21 Tex. Civ. App. 494, 52 S. W. 113), but a plea of limitation is quite different from such a plea. A plea of not guilty does not necessarily imply that title is vested in tbe defendant; whereas, limitation does. Tbe deduction necessarily drawn from the answer of the defendants was that they had title by limitation to the lands sued for by plaintiff. They aver a fee-simple title in them and by appropriate prayer asked judgment over against plaintiff for all the land between the old and present river. It may be that tbe answer does not contain some formal allegations appropriate to a cross-action in trespass to try title; but, as against a general demurrer, it is regarded as sufficient. Whether or not there has been a disposition of this cross-action is a phase.of the case which presents a question of no little difficulty. Undoubtedly, there has been no express disposition thereof. But under the cited cases, it is sufficient if it has been done by necessary implication. In the dismissal order of January 8, 1914, it is expressly ordered that the plaintiff’s suit was dismissed as to them, that they go hence without day, recover their costs of plaintiff, “and that this cause stand for trial with the said John T. McElroy as plaintiff, 'and Jesus Nunez as defendant.’’ The quoted and italicized portion of this order clearly Implies that all issues involved in the case were thereby eliminated except those existing between McElroy and Nunez. In its practical effect, therefore, it constituted á discontinuance or dismissal of the cross-action of the codefendants of Nunez and thereby disposes of it. Whether or not it was rightfully done is not the question here considered. We are considering only whether a disposition has been made of the issue. If so, the judgment is final, and the correctness of the action of the court with respect thereto relates to the merits of the appeal.

Eor the reasons indicated, we are of opinion that complete disposition has been made of all parties, issues, and subject-matter of the litigation. The motion therefore will be overruled.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gu=eFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    J. & G. BIPPMAN v. JEFFORDS-SCHOENMANN PRODUCE CO.
    (No. 7058.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1916.
    Rehearing Denied March 16, 1916.)
    1. Sams <&wkey;479(8) — Retention of Title — Question fob Jury.
    The fact that the sellers of goods, shipping them, attached to the bill of lading a draft for the purchase price made to the order of the seller, does not, of itself, conclusively show an intention to withhold passing of title until the draft is paid.
    Did. Note. — For other cases, see Sales, Cent. Dig. § 1428; Dec. Dig. <&wkey;479(8).]
    2. Sales <&wkey;479(8) — Retention of Title — Question fob Juey.
    In a suit for the price of potatoes sold to a buyer in Texas and shipped from a point in Maine, where the sellers attached to the bill of lading a draft to the order of the buyers for the purchase price, and inspected the potatoes in' transit at New York, billing them to their agents at Galveston, Tex., with instructions to forward to Houston to the shipper’s order, the question whether the sellers intended to retain title until payment of the draft was for the jury.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1428; Dec. Dig. &wkey;479(8).]
    3. Sales <&wkey;88 — Place of DeliveRY — Question fob Jury.
    In a suit for the price of Maine potatoes sold to a buyer in Texas, where the contract provided that each car should contain a certain amount at $3 per bag, “delivered at Texas common points,” while the sellers inspected the potatoes on transshipment at New York, and directed their transfer from steamer to car at Galveston, Tex., the question where the potatoes were to be delivered to the buyers, at a common point or on delivery to the carrier, was for the jury.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 248-250; Dec. Dig. &wkey;88.]
    4.Sales <&wkey;81(5) — Delivery — Reasonable Time.
    Where the sellers of potatoes contracted to deliver to the buyers at a Texas common point, the buyers were not liable for the price unless the potatoes were delivered or tendered at such a point within a reasonable time after the sellers received the order to ship.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 221; Dec. Dig. <&wkey;>81(5).]
    Appeal from Harris County Court; Claris C. Wren, Judge.
    Action by J. & G. Lippman, a corporation, against the Jeffords-Schoenmann Produce Company. From a judgment for defendants as to the cause of action set forth in plaintiff’s petition, and for plaintiff as to defendants’ cross-action, plaintiff appeals.
    Reversed and remanded.
    Hunt, Myer & Teagle and Rodman S. Cosby, all of Houston, for appellant. Campbell, Sewall & Myer and John H. Freeman, all of Houston, for appellees.
   LANE, J.

On the 28th day of March, 1912, J. & G. Lippman, a corporation in the state of New York, and Jeffords-Schoenmann Produce Company, a firm composed of Claud D. Jeffords and Ludwig Schoenmann, of Houston, Tex., entered into a written contract containing the following:

“Parties of the first and second part respectively agree:
“J. & G. Lippman, of New York, first party, have sold to Jeffords-Schoenmann Produce Co., second party, of Houston, Tex., two cars of Maine grown seed potatoes, each car to contain 220 bags of 11 pecks each, at $3.00 per bag, delivered at Texas common points. Shipment from Maine during the months of December, January, and February, buyers’ option.
“Parties of the second part further agree to specifications and deposit of $100.00 per car with J. & G. Lippman no later than September 1st. In default of specifications not being furnished by September 1st by parties of the second part, parties of the first part reserve the right to substitute such varieties as they may select. Shipments are to be made at time specified by buyers, unless delayed by providential causes.
“Terms: Sight draft with B/L attached.
“This contract is signed in duplicate and is not subject to countermand.
“[Signed] J. & G. Lippman, by Morris Wes-losky, V. Pres.
“Buyers: Jeffords-Schoenmann Pro. & Bkge. Go., by O. D. Jeffords.
“Broker: T. H. Thompson & Go.”

On September 1, 1912, the buyers sent to the sellers specifications and $200 on the two cars of potatoes as per contract. On the 8th day of February, 1913, the sellers received a night telegraphic letter at their office in New York from the buyers instructing the sellers to ship the cars of potatoes in question.

The car of potatoes involved in this appeal was loaded in car N. Y., N. H. & H. 86879, at Goodrich station, in the state of Maine, on 8th day of February, 1913, and were transported to Stockton Springs, Me., and there unloaded from said car into a Bull Line steamer and carried to New York, and then unloaded into the Morgan Line boat, which transported them to Galveston, Tex. The bill of lading upon which these potatoes were shipped to Galveston shows that they were consigned to J. & G. Lippman, “Notify Haw-ley & Letzerich.” They were delivered to Hawley & Letzerich, forwarding agents of the sellers, at Galveston, about the 7th or 8th day of March, 1913, who, under the instructions of the sellers, had them forwarded, on or about the 9th or 10th of March, over the International & Great Northern Railway to Houston, Tex., consigned to the order of J. & G. Lippman, “Notify Jef-fords-Sehoenmann Produce Co.” This bill of lading was sent to the Lumberman’s National Bank at Houston with the following draft attached:

“$560.00 less freight, with exchange.
“$561.40. New York, Feb. 8th, 1913.
“On arrival of car pay to the order of ourselves five hundred and sixty dollars. Value received. Car N. Y., N. H. & H. 86870.
“By Morris Weslosky.
“To Jeffords-Schoenmann Produce Co.. Houston,
“No. 2367. Accept páid freight bill in part payment of draft attached.”

Said car of potatoes arrived at Houston about March 10, 1913. After notice the buyers refused to pay said draft or any part thereof, and also refused to accept said potatoes. The other ear of potatoes mentioned in said contract was shipped on the 5th day of February, 1913, practically in the same manner as the one in question, and was accepted by buyers without complaint to sellers until this suit was brought.

The freight due upon said car of potatoes involved in this appeal was $187.38, and, as the same was not paid, the railway company, to whom the freight was due, sold said potatoes for $165, and applied the same to payment of the freight charges.

Appellant J. & G. Lippman brought this suit for $395 against Jeffords-Schoenmann Produce Company, alleging that same was the balance of the agreed purchase price after deducting the $165 received by the railway company for the potatoes. Plaintiff’s suit was based on the theory that under the contract a delivery of the quantity and quality of potatoes agreed upon to the carrier at point of shipment was a delivery to defendants at that point, and that then said contract became executed, and the title of said potatoes passed to the defendants, and that the fact that the potatoes were shipped to shipper’s order, with bill of lading attached, was not such act as showed that plaintiff retained the title to said potatoes after delivery to the carrier in Maine, but that such acts were for the purpose only of retaining possession of said potatoes until the purchase price was paid, and did not have the effect to retain the title thereto in plaintiff ; that plaintiff shipped out the quantity and quality of potatoes called for by the contract in good order promptly after receipt of notice from defendants, and thereby fully performed its part of the contract, and that they were not liable or responsible for any delay in delivery, or for any damage to said potatoes thereafter.

Defendants answered, admitting the execution of the contract of March 28, 1912, and say that they have fully complied with the terms of said contract. They deny that the potatoes shipped by plaintiff under said contract were of the kind and quality ordered by them, and further say that said potatoes so shipped were not such as were ordered by them, and that said potatoes were not shipped within the time called for by said contract, and were not delivered to defendants at Houston, Tex., within the time contemplated by said contract, and not until long after the date upon which they should have been delivered at Houston, and were delivered entirely too late for defendants to use them for seed potatoes. They admit that they refused to pay the draft attached to the bill of lading and receive said potatoes. They say that the car of potatoes never passed out of the possession of the plaintiff, and that the carrier was the agent of plaintiff, and not of defendants. They say that, when the potatoes arrived at Houston, they were scabby, decayed, and not the kind, grade, and quality as ordered by them. They say that from the 21st day of January, 1912, to the 31st day of said month they wrote plaintiff several letters, ordering it to ship said two cars of potatoes, but, as they heard nothing from plaintiff in reply to said letters, on the 7th day of February, 1913, they sent plaintiff a night telegraphic letter ordering it to ship said two cars of potatoes; that one of said cars reached Houston on the 27th day of February, and was received and paid for by them, although not such potatoes as they had ordered, and by reason of the inferior quality of said potatoes they were damaged in the sum of $420, and in re-convention they pray judgment for said sum. They say that the car of potatoes involved in this suit did not arrive in Houston until the 11th day of March, 1913, and that they were refused the privilege of inspecting said potatoes unless they first paid the draft covering the purchase price thereof, and, as the first car received by them was in bad order, they refused to accept said second car without an inspection. They deny that they owe plaintiff anything, but aver that plaintiff owes them for damages on the car of potatoes received and accepted by them in the sum of $420, and for the $100 paid by them on the second car shipped by plaintiff which they refused to accept, a total of $520, for which they prayed judgment.

Plaintiff by supplemental petition denies all the material defensive allegations of defendants’ answer. It further says it never received any of the letters alleged to have been written by defendants ordering shipment of said potatoes, and that the only order to ship received by it was the said night telegraphic letter of February 7, 1913, and that it made prompt shipment after receipt of said night letter; that it did not contract to deliver said potatoes to defendants at Houston, Tex., in good condition, but that its delivery to the carrier in Maine was in law a delivery to defendants; that said two cars of potatoes were in good condition, sound, and merchantable at the time they were delivered to the carrier in Maine, and if they were not in such condition upon arrival in Houston, and if they did not arrive in Houston within a reasonable time, such delay and damage was chargeable to the negligence of the carriers in handling said potatoes, and that it is not responsible for such negligence, if any.

The testimony of the witnesses for plaintiff is to the effect that the car of potatoes involved in this appeal were of the quantity and quality called for by the contract, and that they were in good condition when delivered to the carrier in Maine, that they were inspected by J. Hartman, an employé of plaintiff, when being transferred from one steamer to the other about the latter part of February, 1913, at New York, and that they were then in good condition. This testimony stands undisputed. No inspection of these potatoes was made at Houston, as to quantity, quality, or condition, so far as shown by the evidence, and consequently their condition was not shown. Defendants made request to inspect said potatoes after they reached Houston, but permission to inspect was refused by the railway company, unless the draft attached to bill of lading was first paid. The freight on said potatoes was unpaid, and the railway company sold same for $165, and applied the proceeds to payment on freight charges.

The questions at issue in the trial court may be said to have been: First, under the terms of the contract, was the delivery of the potatoes to the carriers in Maine a delivery to appellees, the buyers, or were they to be delivered to appellees in Houston? Second, if they were to be delivered at Houston, were they shipped promptly after receipt of notice to ship had been received by appellant and delivered to appellees in a reasonable time thereafter?

The court instructed the jury selected by the parties as follows:

“You are instructed to return a verdict against the plaintiff in this cause, and in favor of the defendants as to the cause of action set forth in plaintiff’s petition, and to return a verdict against the defendants and in favor of the plaintiff as to the cross-action of the defendants.”

A verdict was returned and judgment rendered in accordance with such instructions. From such judgment, J. & G. Iippman have appealed.

While it is true that the fact that the sellers attached a draft for the purchase price of the potatoes to the bill of lading, which is made to the order of the sellers, under the most recent opinions of our courts does not of itself constitute and conclusively show an intention to withhold the passing of the title until the draft is paid (Robinson v. H. & T. C. Ry. Co., 105 Tex. 186, 146 S. W. 537; Orthwein v. Wichita Milling Co., 32 Tex. Civ. App. 600, 75 S. W. 364), we think such fact, together with other facts and circumstances proven, such as an inspection of the potatoes while in transit by the agent of the seller at New York, and the billing of the potatoes to Hawley & Lctzerich, agents of the seller at Galveston, with instructions to forward to Houston to shipper’s order, etc., should have been submitted to the jury, under proper instruction, for it to find and determine from all such facts and circumstances as to what the intention of the parties was at the time the contract in question was entered into.

We do not think that by the language used in the contract it is made clear whether the potatoes were to be delivered to the buyers at Houston or whether they were to be delivered to the initial carrier in the state of Maine, as the agent of such buyer. The provisions in the contract that “each car to contain 220 bags of 11 pecks each, at $3.00 per bag, delivered at Texas common points,” is not entirely clear of ambiguity. It is not clear from this provision, when considered with the contract as a whole, that such provision was for the purpose of fixing the price only’ of the potatoes to the buyers at Houston, Texas, and that it was not inserted for the purpose of specifying the point of delivery by the sellers, and we therefore conclude that as, under the undisputed facts, the sellers, seemingly at least, assumed some kind of supervision and control over the potatoes, at several points while they were being transported from Maine to Texas, such as inspection at New York, directing their transfer from steamer to car at Galveston by the sellers’ agent, etc., the court should have submitted to the jury the question as to where, under the contract, the potatoes were to be delivered by the sellers to .the purchasers, and that the court erred in not so doing.

The contention of appellant, however, that the court should have instructed a verdict for it cannot be sustained. The fact that after the potatoes were delivered to the carrier in the state of Maine to be transported to Galveston, Tex., they were, while in-transit, inspected at New York by the agent of the seller, that the seller through its forwarding agent at Galveston, surrendered the original bill of lading to the steamship company, which transported the potatoes to Galveston, and took charge of them and forwarded them from Galveston to Houston, to seller’s order, with draft attached to bill of lading, to say the least of it, is not entirely consistent with appellant’s contention that the title to the potatoes passed to the buyers at the initial point of shipment in the state of Maine, and from that time were their property and subject to their risk. We think, therefore, the question as to where the potatoes were to be delivered under the terms of the contract should have been submitted to the jury under all the facts and circumstances proved.

Upon another trial the jury should be instructed that, if they should find that under the contract plaintiff was to deliver the potatoes to defendants at a Texas common point, then they will further find whether the potatoes contracted for were delivered and tendered to defendants at such point within a reasonable time after plaintiff received the order to ship.

For the error hereinbefore pointed out, the judgment of the trial court is here reversed, and the cause remanded.

Reversed and remanded.
      <S=5>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    COLONIAL LAND & LOAN CO. v. JOPLIN.
    (No. 7256.)
    (Court of Civil Appeals of Texas. Galveston.
    March 9, 1916.
    Rehearing Denied March 23, 1916.)
    1. Stipulations <@=»18(1) — Effect.
    Where the mortgagee of a nursery company secured a money judgment, with a foreclosure of its lien upon the land, providing that an order of sale would issue, in course of the nursery company’s receivership, commanding the property to be sold on execution subject to approval of the court, and such mortgagee’s assignee stipulated in court, as recited in the order of sale of the property, that the title to the nursery stock should not pass with the sale of the land, and acquiesced in the order of the court that the sale of the land should be made subject to the right of the receiver or his assignees to remove the stock, such assignee, after sale of the land to itself, could not enjoin the sale or removal of such stock.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 41, 45, 47, 54; Dec. Dig. 18(1).]
    2. Injunction <§=>7 — Foreclosure — As-signee of Judgment — Remedy by Appeal.
    Where the assignee of a foreclosure judgment against a nursery company in the hands of a receiver was not satisfied with the terms of the order of sale requiring the land and nursery stock to be sold separately and denying its right of lien upon the stock, its remedy was to appeal, and not to buy in the land and then seek to enjoin the receiver from selling or removing the stock.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. <S==>7.]
    3. Mortgages <®=»133 — Extent of Lien — Nursery Stock.
    Whether nursery stock, prima facie a part of the realty, is subject to the lien of a mortgagee of the land depends upon the intention of the parties at the time the mortgage was executed.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig*. §§ 260, 264, 265; Dec. Dig. @=?133.]
    4. Mortgages ©=ol33 — Extent of Lien — Nursery Stock — Intention.
    Where a nursery company mortgaged its land, if it was contemplated by the parties that the company should have the right each year to sell the nursery stock without accounting to the mortgagee for the proceeds, and such right was exercised by the company, it was the intention of the parties that the nursery stock was to be regarded as personalty not subject to the mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 260, 264, 265; Dec. Dig. <S=wl33.]
    5. Mortgages <3=^133 — Property Covered-Chops.
    Crops grown upon land covered by a mortgage are personal property of the mortgagor, and not subject to the mortgage.
    [Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 260, 264, 265; Dec. Dig. <3^>133.]
    Appeal from District Court, Harris County; Chas.'E. Ashe, Judge.
    Suit by the Colonial Land & Loan Company against Paul W. Joplin, receiver. From an order refusing an application for temporary injunction, plaintiff appeals.
    Affirmed.
    Bryan & Bryan, of Houston, for appellant. Sam, Bradley & Fogle, of Houston, for ap-pellee.
   PLEASANTS, C. J.

This appeal is from an order of the judge of the Eleventh judicial district, refusing an application for temporary injunction in a suit for injunction brought by appellant against the appellee. The facts upon which the injunction .was sought are as follows: The property of the Alvin Japanese Nursery Company, a private corporation, was placed in the hands of a receiver in September, 1914, and its business as the owner and seller of nursery stock, consisting of fruit trees, ornamental trees, shrubs, vines, etc., and its .business as the grower of an orange orchard was continued under the orders of the court by the receiver. On March 31, 1915, the Lumberman’s National Bank of Houston, Tex., intervened in the case, and asked for a foreclosure of certain deeds of trust liens, the first of which had been given in 1909, and the second, which was but in effect an extension of time of the first indebtedness, was given in 1914, and both deeds of trust covered that portion of the land owned by the Nursery Company upon which it had and was growing its said nursery stock. On June 2, 1915, the court entered a judgment in favor of the bank for $29,225.72, with 10 per cent, interest per annum thereon from date, together with a foreclosure of said liens upon the land, and providing that an order of sale would issue in due course of the receivership, commanding that said property be seized and sold under execution subject to the approval of the court. On July 5, 1915, the bank sold and assigned its said judgment to the appellant, Colonial Land & Loan Company, .which company, on October 13, 1915, intervened in the case, and on the 23d of October, 1915, filed a motion asking that the court order a sale of the property covered by its judgment lien, and the court thereupon appointed commissioners to sell all of the property of the nursery company at private sale and report the same to the court. The appellant, having been the only bidder at private sale, and its bid having been reported to the court, a hearing was had thereon, and on the 10th day of December, 1915, the court refused to confirm the bid, and ordered the land, exclusive of the nursery stock, sold at public sale by the commissioners on the first Tuesday in January, 1916, subject to the approval of the court. On December 13, 1915, the court filed its conclusions of fact and law with reference to the nursery stock, a copy of which findings is attached to the appellant’s petition and injunction herein, and marked “Exhibit A,” in which the court found that, from the facts, the nursery stock was not a part of the realty, but was personal property, and not subject to appellant’s deeds of trust liens. Afterwards the land, exclusive of the nursery stock, was offered at public sale, on the first Tuesday in January, 1916, and the only bid made for the land, exclusive of the nursery stock, was that of the appellant, and afterwards, upon the hearing of the confirmation of this sale, at the suggestion of the court, the appellant made an additional bid or raise on its bid, and the court confirmed the sale and ordered a deed made to appellant for the land. After crediting appellant’s judgment indebtedness with the amount bid for the land, there was a balance due appellant of something over $10,-000 on its judgment. At the sale of the land in January, in addition to its bid for the land, appellant bid the further sum of $14,-000 for the nursery stock, the amount of said bid to be credited with the balance due on appellant’s judgment after crediting said judgment with the amount bid for the land. This bid of appellant for the nursery stock was not recommended for confirmation by the master in chancery, to whom the report of sales ,was referred, for the reason, as stated in his report, “that it was unnecessary for him to pass upon it, as it did not appear to be regular or in conformity with the court’s order of sale”; but the master found that the value of the nursery stock was $20,-000. The court rejected appellant’s bid for the nursery stock. The order of December 10th, before referred to, by which the court refused to confirm the first sale of all of the property and ordered the sale of the land and the nursery stock to be made separately, contains the following recitals:

“The Colonial Land & Loan Company, without waiving its claim that the said nursery stock is now subject to its lien, and that by reason thereof it has the right to follow the proceeds of the sale of such stock, having stipulated in open court that the status of such nursery stock (as to whether it is subject to such lien) ] shall not be held to be affected by a sale of said J land upon which said nursery stock is situated prior to a sale, or severance of such nursery stock — that is, that the nursery stock on the land at date of sale will not pass by sale of the land because of the fact that the stock was on the land at date of sale, in this connection — it is further ordered that the sale of the lands upon which the nursery stock is situated shall be made subject to the right of the receiver or his assigns to remove the nursery stock at any time prior to March 1, 1916.”

To the action of the court in holding the nursery stock as being personal property and not subject to its mortgage lien, the Colonial Land & Loan Company excepts, and to all of which the Citizens’ State Bank of Alvin, Tex., excepts. After the confirmation of the sale of the land and the refusal of the court to confirm appeUant’s bid for the nursery stock, it filed this suit for an injunction to restrain the receiver from selling or removing the nursery stock. In addition to the facts before set out, the petition alleges (and it is an admitted fact) that the nursery company is insolvent, and unless appellant subjects the nursery stock to the payment of the balance due upon its judgment, it will lose said balance.

In his order refusing the application for injunction the trial judge states that the injunction was refused because he was of opinion that the nursery stock was not a part of the realty, and therefore not subject to appellant’s lien, but that if it could be considered a part of the realty the injunction should be granted. We think it clear that the injunction was properly refused, regardless of the question of whether appellant has a lien on the nursery stock to secure the payment of the balance of its judgment. The agreement of appellant, recited in the order of sale, before set out, that the title to the nursery stock should not pass by the sale of the land, and its acquiescence in the order of the court “that the sale of the land upon which the nursery stock is situated shall be made subject to the right of the receiver or his assigns to remove the nursery stock at any time prior to March 1, 1916,” is a complete answer to appellant’s claim of a right to enjoin the sale or removal of the nursery stock.

Appellant cannot claim that the title to the nursery stock passed to it by its purchase of the land under the terms of the order of sale before set out. The only right that it preserved to itself in said order was the right to assert the claim that the proceeds of the sale of the nursery stock should be subjected to its lien, and it cannot, in violation of the terms of the order under which it purchased the land, enjoin the sale and removal of the nursery stock. If appellant was not satisfied with the terms of the order of sale, which required the land and nursery stock to be sold separately and denied its claim of lien upon the nursery stock, it should have appealed therefrom. Having acquiesced in the order of sale, it is bound by its terms, and tlie receiver cannot be enjoined from selling or removing the nursery stock.

This conclusion will require the affirmance of the order of the trial judge, and this opinion could properly end here. In view, however, of the fact that when the nursery stock has been sold appellant is not precluded from asserting its claim of lien upon the proceeds of such sale, we deem it proper to say that, in our opinion, the question of whether the nursery stock on the land is subject to appellant’s lien depends upon the intention of the parties at the time the trust deed was executed. The rule is stated by Jones in the Law on Mortgages of Real Property ([5th Ed.] vol. 1, page 35) as follows:

“Trees and shrubs planted in a nursery garden for the temporary purpose of cultivation and growth until they are fit for market, and then to be taken up and sold, pass by a mortgage of the land, so that neither the mortgagor nor his assigns or creditors can remove them as personal property. One claiming that trees and shrubs, whether growing naturally, or planted and cultivated for any purpose, are not part of the realty must show special circumstances which take the particular case out of the general rule; he must show that the parties intended that they should be regarded as personal chattels. The mere fact that the trees and shrubs were the stock in trade of the mortgagor in his business as a nursery gardener is insufficient for this purpose. They are prima facie parcel of the land, unless specially excepted, and in the same way, unless specially excepted, pass to a mortgagee. Although planted by the mortgagor after the execution of the mortgage, they become a part of the realty and part of the mortgage security.”

If the evidence justifies the conclusion that at the time the mortgage was executed it was contemplated by the parties that the mortgagor should have the right each year to sell the nursery stock without accounting to the mortgagee for the proceeds of such sales, and that this right has been exercised by the mortgagor continuously since the execution o'f the mortgage, we think it should be held that it was the intention of the parties that the nursery stock placed or grown on the land was to be regarded as personal property, and not subject to the mortgage. Hutchins v. Masterson, 46 Tex. 551, 26 Am. Rep. 286.

It is a settled rule of decision in this state that crops grown upon land covered by a mortgage are personal property of the mortgagor, and not subject to the mortgage. Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284.

While under the general rule above quoted nursery stock is prima facie a part of the realty, when the circumstances in the particular ease show it was the intention of the parties to the mortgage that it should be regarded as personal property, it is not any more subject to the mortgage on the land than would be a growing crop.

In accordance with the conclusions before expressed the judgment of the court below is affirmed.

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