author: HALL, J.

text:
    WICHITA FALLS MOTOR CO. v. MEADE.
    (No. 1314.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1918.
    Rehearing Denied May 8, 1918.)
    1. Master and Servant <&wkey;258(12) — Injuries to Servant — Pleabin a.
    While it is the general rule that an injured employ^ must allege and prove the specific acts of negligence proximately causing the injury, a petition in a servant’s actipn for personal injuries by a defective motor-driven sheet metal shears which alleged generally that the machine was defective, but that the servant was not familiar with the machine, and was unable to state specifically the defects therein, and that such defects were peculiarly within defendant’s knowledge, was sufficient.
    2. Master and Servant @=»356 — Workmen’s Compensation — Assumption oe Risk.
    Where it appears that a company sued for personal injuries by its servant employs more than five servants, it is subject to the Workmen’s Compensation Aet,i whether a subscriber or not, and consequently cannot plead assumption- of risk.
    3. Trial &wkey;>127 — Conduct oe Counsel — Questions as to Insurance.
    In a personal action it was error to admit a statement by plaintiff that one who had investigated the accident said he was “working for the insurance company.”
    4. Witnesses <&wkey;387 — Inconsistent Statements — Cross-Examination.
    Where plaintiff has testified to facts apparently contradictory to a statement made by him out of court, defendant has the right to fully cross-examine plaintiff as to such inconsistency.
    5. Witnesses <&wkey;396(2) — Inconsistent Statements — Writings.
    In a personal injury action in which portion of written statement of employe made out of court was introduced to show statements inconsistent with his testimony at trial, remaining portion of statement relating to matters immaterial on issue of inconsistency was properly excluded.
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by Noble Meade, by next friend, against the Wichita Halls Motor Company for personal injuries. Judgment for plaintiff, and defendant' appeals.
    Reversed and remanded.
    Martin, Bullington, Boone & Humphrey, of Wichita Falls, 'for appellant. Weeks & Weeks, of Wichita Falls, for appellee.
   HALL, J.

This suit was instituted by ap-pellee, a- minor, then 19 years of age, through his mother, as next friend, against appellant company, to recover for personal injuries alleged to have been sustained while he was employed by appellant company in its factory at Wichita Falls. He alleges, in substance, that he had been employed for several months prior to January 3, 1916; that at all times during said employment defendant had more than five employés in its factory', and was entitled to become a subscriber under the provisions of the Workmen’s Compensation Act; that appellee was employed as a derli in the storeroom of the factory, working with one Guy Davis, who was his vice principal and foreman; that on the date mentioned he was instructed by the said Davis to procure some material for making signs from the storeroom; that in carrying out said instructions he went into the sheet metal department of said factory to cut said material with a motor-driven sheet metal shears situated in that dexiartment. He then describes the shears and their operation in detail, setting out the alleged defects, and further alleges:

“That, if he be mistaken as to the cause of said shears making the extra stroke which severed his fingers as above set forth, then plaintiff says that said extra strokes were caused and brought about by some defect in said machine, known to defendant, but unknown to plaintiff, which defect it was the defendant’s duty to remedy.”

He alleged his want of experience in handling such tools; that the machine was a dangerous instrumentality; that appellant’s servants knew these facts, and negligently failed to warn plaintiff, although they knew he was a minor and inexperienced; that appellant failed to furnish him a reasonably safe place to work or reasonably safe and suitable tools with which to perform the services required of him, and failed to use reasonable care to keep said tools in safe state of repair. After general and special exceptions and general denial appellant answered that plaintiff was employed as a clerk in a storeroom; that his duties consisted in keeping said storeroom and securing and distributing the materials deposited there; that he had been employed in this capacity about two years, and had no authority to go into the sheet metal department nor to use the power machine with which he cut off his fingers; that he was acting wholly without the scope of his employment, by reason of which he assumed all the risk incident thereto ; that he knew or could have known by the exercise of ordinary care tire danger of using the machine; that he was guilty of contributory negligence .proximately causing his injury. By supplemental petition appellee excepted to all that part of appellant’s answer which set up the defense of assumed risk. A trial resulted in 'a verdict and judgment in appellee’s favor for $1,800.

The first assignment of error is that the court erred in overruling appellant’s special exception to that part of the petition alleging that, if neither of the specific allegations contained the correct reason and cause of the injury, the extra strokes of the machine were caused and brought about by some defect in the machine known to the defendant and unknown to plaintiff, which defect it was the defendant’s duty to remedy. The contention is that appellee should be required to allege and prove the specific acts of the master which are relied upon by the servant to show negligence proximately causing the servant’s injury. While this is a general rule, if the injured party is not familiar with the machine and alleges his inability to state more specifically the defects, a general allegation is not improper. Texas Co. v. Giddings, 148 S. W. 1Í42. The allegation here is that the facts are peculiarly within the defendant’s knowledge.

Complaint is made under the second assignment of the court’s action in sustaining the appellee’s exception to all that part of the answer which set up the defense of assumed risk. It having been shown that appellant company employed more than five servants, it was subject to the provisions of the Workmen’s Compensation Act whether as a matter of fact it had really become a subscriber. This court has held that the effect of that act is to abolish assumed risk as a defense in cases of this character. Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309.

Soon after the accident one John P. Marrs visited the appellee, interrogated him with reference to the occurrence, and took a written statement from him concerning it. While appellee was upon the stand this question was asked concerning Marrs: “Did you know for whom he was acting when he got this statement?” Appellee replied: “He told me he was working for the insurance company,” This testimony was improper, and should not have been elicited. When considered in connection with other testimony which tended to create sympathy in behalf of appellee, we think it was highly prejudicial, and the admission of such testimony has often been condemned in this state. Fell v. Kimble, 154 S. W. 1070; Levinski v. Cooper et al., 142 S. W. 959; Houston Car Wheel Machine Co. v. Smith, 160 S. W. 435; Gordon-Jones Construction Co. v. Lopez, 172 S. W. 987.

While appellee was upon the witness stand, he testified to certain facts apparently at variance with facts set out in the statement taken by Marrs. After he had been examined and cross-examined with reference to the matter and the contradictory testimony as contained in the statement had been offered in evidence, appellee’s counsel sought to introduce the entire statement. This was objected to by appellant’s counsel, because it contained this recital:

“My mother is a widow. She has two small children, gilds, 12 and 14 years of age. I have a brother, Carl Meade, aged 17, who also stays here and works at the Western Union. My mother is dependent upon me and my brother for support. I am 19 years of age. My father is dead.”

When appellant’s counsel refused to permit the whole statement to be read, the court instructed the jury not to consider appel-lee’s testimony with reference to the conflict. We think this was error. Appellant had the right to fully cross-examine appellee and to show, if possible, that he had made contradictory statements with reference to the occurrence.

That portion of the statement wherein appellee speaks of the fact' that his mother is dependent upon himself and his brother for support, that she has two minor daughters, is clearly inadmissible. When a portion of a written statement is introduced for the purpose of contradicting a witness, the party producing the witness is entitled to introduce such other portions of the statement as will explain or throw light upon such contradictory evidence, but matters wholly immaterial and irrelevant contained in the statement should not be admitted. The court did not err in refusing to peremptorily instruct the jury to find for appellant.

The eighth assignment is based upon the refusal of the court to give a special charge, but neither the charge nor the substance of it is set out in the brief and this assignment will not be considered.

The ninth, tenth, eleventh, twelfth, and thirteenth assignments complain of various paragraphs of the charge. If certain sentences of the'charge be considered alone, they are subject to the criticism in some instances urged, but we think the charge, as a whole, is a fair presentation of the case to the jury.

On account of the error pointed out, the judgment is reversed, and the cause remanded.

       Acts 33d Leg. c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1314, art. 5240b et seq.).

      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J. BUCK, J.

license: Public Domain

text:
    FROST v. MARTIN et ux.
    (No. 8753.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 26, 1918.
    On Resubmission, March 2, 1918.
    Rehearing Denied March 30, 1918.)
    1. Mines and Minerals &wkey;>78(l)—Oil and Gas Lease — Sinking Wells — “Completed.”
    In an oil and gas lease providing that, “when a well is once begun, the drilling thereof shall be prosecuted with due diligence until same is completed,” the word “completed” means finished, or sunk to the depth necessary to find oil or gas in paying quantities, or to such a depth as in the absence of such oil or gas would reasonably preclude the probability of finding it at a further depth.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Complete.]
    2. Contracts <&wkey;159 — Evidence <&wkey;515 — Technical Teems.
    Since technical words in a contract are to be interpreted as usually understood by persons in the business or profession to which they relate, expert testimony is admissible in case of a disagreement as to the meaning of such words to explain the sense in which such technical terms are generally understood in the business.
    3. Evidence &wkey;>'515 — Oil and Gas Lease— FORFEITURE.
    In a suit to forfeit an oil and gas lease for failing to prosecute the drilling of a well until completion, it was error to refuse to admit testimony of an expert that the well was “completed” within the terms of the lease when driven to the depth of 2,103 feet without finding Oil or gas.
    Appeal from District Court, Stephens County; Joe Burkett, Judge.
    Suit by O. S. Martin and wife against Fred W. Frost to cancel an oil and gas lease. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Earl Conner, of Eastland, Carrigan, Montgomery & Britain, of Wichita Falls, and Walter L. Morris, of Albany, for appellant. W. C. Veale, of Breekenridge, and Theodore Mack, of Ft. Worth, for appellees.
   BUCK, J.

Suit was instituted November 23, 1916, by appellees against appellant to cancel an oil and gas lease. Plaintiffs pleaded forfeiture and abandonment. Defendant denied that any facts existed sufficient to establish either. Upon a jury trial under a general charge, a verdict and judgment was rendered for plaintiffs, from which defendant has appealed.

The lease contract between O. S. Martin and wife and Frost was dated January 20, 1915, and the portions thereof material to a determination of the questions presented on this appeal are hereafter set out, to wit:

“That the lessors, in consideration of the sum of ten ($10.00) dollars to them in hand well and truly paid by the lessee, the receipt of which is hereby acknowledged, as well as in consideration of the covenants and agreements hereinafter contained on the part of the lessee, do hereby grant, sell, convey, and lease unto the lessee all of the oil and gas in and under the following described tract of land, and the possession thereof, for the purpose of entering upon and operating thereon and removing therefrom said oil and gas, with the right to use sufficient water, gas, and oil from the premises to operate said property, with the right of ingress and egress at all times for such purposes, and all rights and privileges necessary for such operations, also the right to remove at any time all property, pipes, and improvements placed on or erected in or upon said land by the said lessee, and also the right of subdividing or transferring all or any part of the rights herein conveyed and the premises hereinafter described. * * *
“To have and to hold the same for the term of five years from the date thereof, and as much longer thereafter as oil or gas is found thereon and therein, in paying quantities. * * *
“Lessee agrees to begin operations for the drilling of a well upon the above-described premises within twelve (12) months from date hereof or thereafter pay to the lessors the sum of 25 cents per acre per annum, payable quarterly in advance until a well is commenced, or until the end of the five years’ term hereof, as a rental and complete remuneration to lessors for delay. When a well is once begun the drilling thereof shall be prosecuted'with due diligence until same is completed.
“Failure to perform the obligations above referred to shall render this lease null and void, except unavoidable accidents, delays and strikes shall not work a forfeiture.
“Lessors are to fully enjoy and use said premises for all purposes not in conflict with this grant.”

The uncontradieted evidence shows that in pursuance of the terms of the lease a very short time after its execution Frost began to arrange for drilling a well, and that by the 1st of September, 1915, the drilling had begun. That drilling was carried on continuously night and day until a depth of 2,103 feet had been reached; this being about Christmas, 1915. Frost had expected to find oil or gas within 975 feet, as at about that depth oil had been found at Strawn, and it was thought that oil-bearing sands in the vicinity where the well was being bored in Stephens county would be found at about the same depth as at Strawn, over the line in Palo Pinto county. The drilling was continued to a depth of 1,250 feet, after striking plain sand at a depth of about 1,150 feet. A further contract with the driller was made to sink the well to a depth of 1,600 feet. No oil having been found, a third contract was made to go 1,800 feet, and a fourth to bore 2,100 feet, but the hole was in fact drilled to 2,103 feet. At this last-named depth the drilling was discontinued, and the machinery was removed and the contractor left. No oil-bearing sands had been found. At a depth of 1,200 feet salt water was struck, and it was necessary to case the well to the top to shut off the salt water. No gas' or oil was discovered. Four different sands were entered. Frost had secured the co-operation of the Strawn Oil Company in the sinking of this well. It had been his intention, and he had made arrangements with said Strawn Oil Company, to drill three wells on the land. When he spoke • to the officers of said Strawn Oil Company about drilling other wells, they told him that, owing to the fact that the Strawn oil-bearing sands had not been struck at a reasonable depth in this territory, it would be a little difficult to organize another company for the purpose of further prosecuting the development of the land under lease, but that they felt sure that they would be back within three months and begin drilling again.

During the interval between the cessation of drilling and the removal of the machinery and casing, about Christmas, 1915, and the filing of this suit, which was on November 23, 1916, a number of conversations occurred between Martin and Frost, Martin insisting upon a further prosecution of the drilling, and at first demanding that Frost either drill deeper or drill other wells, or surrender his lease, and later insisting upon the surrender. On the other hand, Frost kept promising to do all in his power to get some other drilling contractor to sink a well or wells, and did enter into certain correspondence to that end. He was out of money, and offered to pay Martin “a little money if lie would let the lease stand.” Martin declined to accept any money, and continued to insist on the development of the leased land or the surrender of the lease, and finally demanded the cancellation of the lease and declined to give Frost any further time. The suit followed.

It will be remembered that the lease contract provided that:

The “lessee agrees to begin operations for the drilling of a well upon the above-described premises within twelve months from date thereof, or thereafter pay to the lessors the sum of 25 cents per acre per annum, payable quarterly in' advance until a well is commenced, or until the end of the five years’ term hereof, as a rental and complete remuneration to lessors for delay.”

We think it is a fair construction of this portion of the lease to hold that, if the lessee began, in good faith, the drilling of a well within the 12 months stipulated, he relieved himself from the alternative obligation to pay rental, and of the penalty of forfeiture for a failure so to do, unless there should be a lack of good faith and diligence in the prosecution of such drilling as provided in the last sentence of the paragraph from which the above quotation is taken, to wit:

“When a well is once begun, the drilling thereof shall be prosecuted with due diligence until same is completed.”'

There is no contention that up to Christmas, 1915, the lessee did not prosecute the drilling of the well, or of the “dry hole,” with due diligence, and, if said well was “completed,” as that term is used in the contract, then appellant’s first assignment, directed to the failure of the court to give a peremptory instruction for the defendant, probably should be sustained. We think that in the sense the word “completed” is used in this contract it means finished, or sunk to the depth necessary to find oil or gas in paying quantities, or to such a depth as in the absence of such oil or gas would reasonably preclude the probability of finding oil or gas at a further depth. It should not be construed to mean that the lessee bound himself, under the penalty of a forfeiture, to sink a well or oil or gas in paying quantities, or, in the absence of oil or gas, to bore through to China. It therefore became a material question as to whether the hole drilled to the depth of 2,103 feet was a “completed” well, as that word was used and understood by the parties.

It is the general purpose of all rules for the construction of contracts to aid in ascertaining the intention of the parties, and, since it is a well-recognized canon of construction that technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless it is evident that they were used in a different sense (see 2 Elliott on Contracts, § 1511), we think expert testimony was admissible, in case of a disagreement as to the meaning and purport of such technical words, to explain the sense in which such technical terms were understood generally by those engaged in the business of drilling oil or gas wells. The issue was sharply drawn by the pleadings as to whether or not the hole drilled by the lessee was a “completed” well, plaintiffs contending that it was not, and defendant insisting that it was. The charge of the court instructed the jury that, if “the defendant did fail to prosecute the work upon the well in question upon said premises with 'due diligence, and you further believe from the evidence that said well was not completed by the defendant,” etc., to find for the plaintiffs. On the other hand, the court instructed the jury to find for the defendant if they should find “that the work was prosecuted with due diligence on same until said well was completed.” The court did not attempt to define the word “completed” as applied to a well; hence the jury were left without a guide or chart, except of the common experience and knowedge of mankind, to assist them in determining the sense in which the word “completed” was used by the parties to this contract.

In his eleventh assignment appellant urges error to the action of the court in excluding the testimony of his witness H. A. Johnson to the effect that the well drilled by the defendant on the lands in controversy was a completed well. This witness, if he had been allowed to testify upon this question, would have testified in part as follows:

“I am acquainted with the Frost well on the Martin place, and at the time that that well was drilled there there had been no oil development in or about that section of the country. The wells at Moran are at an average depth of about 2,000 feet, and the wells in the Strawn field are of a much less depth on the average. The prospecting in the field that Mr. Frost caused a well to bo bored on the Martin lease was with the hope of reaching the Strawn sand, and, those sands being a depth of not more than about 1,000 feet, it was considered that a fair tost for oil was at a much less depth than 2,100 feet, the depth to which the Frost well was drilled, and, in my opinion, the Frost well was not only a fair test for development purposes, but it was a completed well as that term is generally understood by oil men.”

This witness was shown to have been in the oil and gas business in Texas about six years. He testified:

“I know the depth of wells in this territory, that is, in Northwest Texas, that is, a great many of them — the average depth. I had charge of the drilling of ten wells. Our contract depth was 2,100 feet. On the average we drilled about 2,000 feet. Where we thought it would pay, we went on deeper. We did not get anything below 2,100 feet. * ■* * I have information regarding- the drilling of the wells in the Strawn field. I know where the land on which the well in controversy is located is with reference to the Strawn field. It is north of the Strawn field, or northwest from the field, from the wells. It is northeast, I should say, from the Moran field and north of the Strawn field. * * * A year ago there was not any oil developments between the Moran oil field and the Martin tract of land in controversy. The first well at Moran was brought in about two years ago. * * * There had been wells drilled in the Moran field up to December, 1915, a large number. The average depth was 2,000 feet. There had been wells brought in or drilled in the Strawn field, about a mile from Strawn. The Strawn oil field is about 25 or 30 miles from the Martin tract of land. As to the average depth of wells in the Strawn field, I,believe the first well in the Strawn field was 1,000 feet. • * * I think there are some wells in the vicinity of Thúrber that are 2,000 feet. I think there was a well drilled prior to the time the well was put down on the Martin land, * * * on the Corbitt ranch, that is, about 8 or 10 miles from the Martin ranch. I do not recall the depth exactly, but it was between 1,900 and 2,000 feet.”

Enough has been quoted to show that this .witness qualified to testify as an expert upon the meaning of the technical words used by oil men and drillers of oil and gas wells, and we think the trial court improperly excluded this, testimony, and that the error was a material one, which will call for a reversal of the judgment.

There were several objections directed to the fourth paragraph of the court’s charge, complained of in appellant’s second, third, sixth, seventh, eight, and ninth assignments, but we will not undertake to discuss these assignments separately but will only say that in our opinion the state of the evidence adduced on this trial did not justify a submission to the jury of the issue of defendant’s failure to prosecute with diligence to completion the drilling of the well sunk on plaintiff’s land, unless it can be said that the well so sunk was not a “completed” well as the term “completed” was used and understood by the parties. Upon another trial the jury may have the benefit of expert testimony up on the meaning of the word “completed” as applied to an oil or gas well, and the court will submit that issue to the jury under proper instructions.

For the reasons given, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.

CONNER, C. J'., not sitting, serving on writ of error committee at Austin.

On ResuBmission.

BUCK, J.

At the time this cause was under consideration on its first submission Chief Justice CONNER was absent, in attendance on the writ of error committee at Austin. Subsequent to the judgment heretofore rendered, January 26, 1918, Associate Justice DUNKLIN discovered that an oil lease taken by a company in which he was interested contained a provision similar to the one involved in the lease in this case, and therefore felt that he might be disqualified to sit in this case. In deference to his wishes, the former judgment was set aside February 9, 1918, and the cause set for resubmission February 22d, at which time the counsel for appellee appeared and submitted oral and written argument to sustain the contention that the judgment of the trial court should be affirmed. At this last submission, Chief Justice CONNER was present, heard the argument of counsel, and has since, with the writer, given the case a careful reconsideration. We find no reason to change the views expressed in the opinion of the court on the first hearing. Hence we adopt that opinion as expressing the conclusions of the court at this time.

The judgment of the trial court is reversed, and the case remanded for further proceedings not inconsistent with this opinion. ,

DUNKLIN, J., not sitting.
      e^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes


author: HODGES, J.

text:
    FIRST STATE BANK OF EUSTACE v. BOWMAN et al.
    (No. 1953.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 28, 1918.)
    1. Limitation op Actions &wkey;>145(5) — Parol AGREEMENT TO EXTEND DATE OP PAYMENT— Consideration.
    A new consideration is essential to a parol agreement, extending the date of payment of a note in order to postpone the beginning of the period of limitation.
    2. Limitation op Actions <&wkey;27 — Agreement to Extend Date op Payment.
    A parol agreement by payee, extending date of payment in consideration of the payment of interest to extended date, is a new contract, and limitation for such contract is not that for note, but that for parol agreement.
    3. Limitation op Actions &wkey;> 141 — Acknowledgment op Debt — Statute.
    Rev. St. 1911, art. 5705, providing for extension of the period of limitations, by a written acknowledgment, has no application where payee of a note, by parol agreement, had extended the date of payment in consideration of the payment of interest to extended date; this being a new contract superseding note.
    Appeal from District /Court, Hendersou County; J. S. Prince, Judge.
    Action by the First State Bank of Eus-° tace against Sam 'Bowman and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.

      J. N. Starr, of Athens, for appellant. W. L. Faulk and N. Faulk, both of Athens, for appellees.
   HODGES, J.

On November 14, 1010, Sam Bowman and wife executed and delivered to the appellant their promissory note fo,r the sum of $575.70 due one year after date and providing for the payment of interest and attorney’s fees. To secure the payment of this note they also executed a mortgage on some personal property and 74 acres of land. On January 12, 1016, more than four years after maturity of the note, appellant filed this suit against Bowman, claiming a balance due of $505.45. Some time after the institution of the suit Bowman died, and by an amended original petition his heirs were made parties and the suit continued. In the amended original petition the appellant alleged that by agreement between the parties made before the note was barred the date of payment had been twice extended, and by the terms of the last agreement it was due November 14, 1013, and that as a consideration for that agreement interest had been paid to that date by Bowman. The defendants pleaded limitation generally, and further alleged that the land upon which the mortgage was executed was a part of the homestead of Bowman and wife at the time it was incumbered. In a trial before the court judgment was réndered in favor of the defendants below. The record contains no findings of fact, but the arguments presented in the briefs of the parties indicate that the court based his judgment upon the conclusion that the debt was barred by limitation.

If the maturity of the original note be taken as the date for computing the period of limitation, the appellant’s cause of action was barred by the four-year statute, and there was no written acknowledgment sufficient to revive the debt as required by article 5705 of the Revised Civil Statutes. While conceding that fact the appellant insists that, the time of payment having been extended by a valid agreement, the statutes of limitations began to run from the date of payment as fixed in the last contract of extension, which was less than four years before this suit was filed. The note offered in evidence had the following indorsements:

“Cr. by cash $ 85.70
Cr. by cash 1-0-12 14.30
Interest paid to Jan.
0-12 & extended to Nov. 1-12
“Cr. by cash 1-23-13 $100.00
Interest paid to Nov.
14-13. Extended to Nov. 14-13.”

These furnished the only evidence of the contracts of extension pleaded. It will be observed that each of them was made before the note itself was barred. Assuming that those indorsements alone, without any evidence as to when or under what conditions they were made, were sufficient to prove the making of valid contracts of extension, the question arises, -Did the appellant sue before his right expired by the terms of the last contract of extension? That the parties to a note may, by a parol agreement made before the debt is barred, extend the date of its payment and postpone the beginning of the period of limitation, is supported by both authority and sound reason. Heisch v. Adams, 81 Tex. 04, 16 S. W. 790. But to have that effect the agreement must be based upon a new consideration, and must be something more than a gratuitous indulgence on the part of the creditor which adds nothing to the burden of the original obligation of the debtor. Wells v. Moor, 42 Tex. Civ. App. 47, 93 S. W. 220.

An agreement which binds the creditor not to sue prior to the new date, and the debtor to pay interest for the entire period of extension has been held to be a sufficient consideration to support a contract which releases a surety upon a note. Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128. That holding is based upon the ground that the debtor and creditor had substituted a new and valid contract which supersedes that to which the surety was a party. Upon the same principle it would seem that an agreement having all the essentials of a' valid contract may constitute a new and enforceable obligation whose duration is governed by the law applicable to the form in which it is expressed. In this case the indebtedness sued for is not how evidenced by a contract in writing. The note may be evidence of the amount due or which was originally promised, but it is no longer the contract to pay that sum. The indorsements on the note are merely memoranda of the later parol agreement which the parties had entered into. The creditor cannot claim the note as the contract for one purpose and invoke a substituted parol contract to escape its legal effect. There is a difference between the continuation of the same debt and the continuation of the same promise. The promise is what expires in the course of time. The last one made, if accompanied by the essentials of a complete contract, supersedes all others.

Article 5705 of the Revised Civil Statutes is intended to prescribe a method for reviving contracts which have expired by limitation. Under its provisions a written asknowledgment of the justness of the debt, when signed by the debtor, is sufficient to create an obligation to pay the former debt, even without any further consideration. That statute has no application to parol agreements to pay existing debts at a different time and upon different terms when based upon an independent consideration. Limitation in this case began to run against the appellant after the maturity of the last contract of extension, which was November 14, 1913; and the bar was complete two years later. This suit was not filed till some time in January, 1916, and was therefore too late.

Since the obligation upon which the lien sought to he foreclosed was founded is not enforceable, it is unnecessary to discuss questions relating to its validity.

The judgment of the district court is affirmed.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J..

text:
    PHILLIPS v. PHILLIPS.
    (No. 8821.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 16, 1918.
    Rehearing Denied April 13, 1918.)
    1. Appeal and Error &wkey;s389(3) — Affidavit in Lieu op Bond — Verification.
    ' An affidavit for appeal in lieu of bond under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2098, may be made before a notary public* who is affiant’s attorney, since such affidavit is evidence merely.
    2. Appeal and Error <®=>351(1) — Time poe Appeal — Entry op Oedee.
    Where court adjourned March 31st and a new term began April 2d, a motion for appeal and an affidavit in lieu of bond filed April 7th was timely under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2084, requiring the affidavit to be filed within, twenty days after notice of appeal, although the order granting the appeal' was not entered until May 5th; the Court of Civil Appeals having, by article 1593, power to ascertain matters of fact touching its jurisdiction.
    3. Divobce &wkey;>249(6) — Disposition' op Community Peopeety — Title.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4634, providing that neither party to a divorce suit may be compelled to divest himself or herself of the title to real estate, the court has power to enter such a decree as will properly protect the wife and minor children in the use of the community property which constitutes a homestead, but it cannot divest title thereto out of one of the parties.
    4. Divobce &wkey;>249(6) — Disposition op Peop-' EETY — SUPPORT OP CHILDREN. ■
    The power of the court in a divorce suit to grant to the mother who has been awarded the custody of the minor children the use of the homestead for a designated period is an equity power to bo exercised primarily for the benefit of the minor children that the mother may fulfill her duty to support them; the husband’s duty to support his wife ceasing on the severance of the marital relation.
    5. Divorce >&wkey;309 — Custody op Children— Modification op Deoeee.
    Where a mother had been granted the custody of the children in a divorce suit, it was proper on the reopening of the ease for the trial court to determine from the evidence then before him what provision was necessary for their support; conditions having changed since the original decree.
    Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.
    Petition by Newton H. Phillips against May Phillips for a bill of review to set aside a judgment in a divorce action. From a decree for plaintiff, defendant appeals.
    Affirmed.
    R. H. Smith, of Ft. Worth,.for appellant. Bryan, Stone & Wade, of Ft Worth, for appellee.
   BUCK, J..

On November 1, 1916, appellee filed a petition in the nature of a bill of review to set aside a judgment rendered in the same court and at the previous term, whereby appellant was granted a divorce from appellee, given the custody of their minor children, and awarded the title and right of possession to all of their community property, consisting of improved premises in Ft. Worth alleged to he a homestead, certain lots in Oklahoma, and the household furniture. The appellee alleged that subsequent to the filing of the original divorce suit by his wife they become reconciled and resumed the relationship of husband and wife; later moved from Ft. Worth to Dallas, where they continued to live together as husband and wife until February, 1916; that in November 1915, it was agreed between appellant and appellee that the divorce suit should be dismissed; that appellant in February, 1916, without cause or justification, abandoned ap-pellee and returned to Ft. Worth, where she had continued to reside separate and apart from appellee; that without appellee’s knowledge appellant, on September 18, 1916, and without notice to appellee caused said divorce suit which she had agreed with ap-pellee to have dismissed to be heard, without any regular setting thereof, and secured the judgment and decree against appellee which he sought to have vacated. Appellee further alleged a rule or custom of the district court, where said suit was pending, where answers have been filed, as he alleged had been in this case, to require plaintiff’s attorney to hand to the clerk of the court the style and number of the case upon which a trial was desired and that such rule or custom provided that the trial could not be had until two weeks subsequent to said notice given and request made; that if appellant’s attorney had complied with this rule or custom of the court, as appellee had the right to expect, the latter’s attorneys would have been advised of the fact that the divorce case had not been ’dismissed, and that the appellant was intending to have the same tried, and that appellee would have been present with his testimony and defense, which he alleged was sufficient to establish that appellant was not entitled to the judgment rendered. Appellee further alleged that appellant was not the proper person to be awarded the custody of the minor children, alleging that one of the children, a young lady, was working in Dallas and making her own living, the second child was living, with him (appellee), and that the youngest, a boy, was living with appellant, who was not so situated that she could give him the proper attention, care, and education ; that he was able, financially and otherwise, to care for and educate said children. He further alleged that he and appellant -were cotenants of the community prop; erty, all of which, under the judgment had been awarded to the appellant, and that he was entitled to a one-half interest therein. He prayed for citation to he issued, and that upon hearing the former judgment be set aside in so far as it decreed the custody of the children and awarded the title and the possession of the described real estate to appellant alone. The defendant, after a general denial, pleaded res adjudicata. The court reopened the case and set aside the former judgment in so far as it affected the real estate, the plaintiff in the course of the trial having withdrawn and abandoned his plea as to the custody of the children, and adjudged the title and right of possession in said real estate to be in plaintiff and defendant jointly, and, having found that the said real estate was not susceptible of division, ordered it to be sold by a commissioner, who was duly appointed. From this judgment the defendant has appealed.

On the threshold of the consideration of the appeal on its merits, we are presented with appellee’s motion to dismiss because of the alleged failure of appellant to perfect her appeal under the statute providing for an appeal on affidavit in lieu of bond. This motion must be overruled. The affidavit under article 2098, V. S. Tex. Civ. Stats., is not bad simply because made before a notary public, even though such notary be the attorney of affiant. The proof of the inability of one seeking to appeal under this statute to pay the costs of appeal must be made before the court trying the case when in, session, otherwise before the county judge of the county of affiant’s residence, and while, in the absence of contest, such proof may consist of the affidavit alone, yet the affidavit is merely a matter of evidence, and if the proper magistrate considers the proof evidenced by the affidavit and acts thereon and, enters his ionder it is immaterial that the affidavit was made before a notary public. The motion in this case was directed to the trial court, and the proof was submitted to the court and acted on while in session. Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S. W. 435; Smith v. Oil Co., 85 S. W. 481; Wood v. Railway, 43 Tex. Civ. App. 590, 97 S. W. 323; Sidoti v. Railway Co., 35 Tex. Civ. App. 131, 79 S. W. 326; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659. In the last-cited case, the Supreme Court said:

“This court has often had occasion to discuss and construe this statute, and has not yet succeeded in removing all the doubt and uncertainty besetting an appellant who attempts to avail himself of its indefinite provisions. These uncertainties in the statute itself suggest ‘that care should be taken to avoid such a construction and application of the law as would impair or unnecessarily complicate the exercise of the right of appeal.’ Pendley v. Berry, 95 Tex. 75 [65 S. W. 32]. The statute defines what the proof it requires shall be when it provides that it ‘shall consist of the affidavit of said party, stating his inability to pay the cost’ (Stewart v. Heidenheimer, 55 Tex. 644; Pendley v. Berry, supra); and ‘its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security, and to enable those having conflicting interest to controvert such proof,’ etc. (Wooldridge v. Roller, 52 Tex. 451). When it is made before the ‘court trying the case, if in session,’ the statute requires no other action if there be no contest. It is only where the affidavit is made before some officer not authorized to determine the facts in case of a contest that it has been held or intimated by this court that it must be presented to one who is so authorized for further action on his part.”

In Wooldridge v. Roller, supra, and other cases cited by appellant, the Supreme Court did not say or even intimate that the affidavit could not be made before a notary public, but to the contrary. The attorney of record is authorized to administer the oath to an affidavit to his client. Forest Oil Co. v. Wilson, 178 S. W. 626.

It appears from the record that the order of the trial court authorizing this appeal on affidavit was made at the subsequent term that the court entered the order granting the appeal on May 5, 1917. The court adjourned March 31, 1917. The new term began April 2, 1917. The affidavit shows that it was filed April 7th, and the motion was filed on same date. There is presented in this court an affidavit of appellant’s attorney that the court in session granted the motion on the day it was filed, but by inadvertence the formal order to that effect was not entered till May 5th. Order overruling motion for new trial was entered March 27th. Article 2084, V. S. Tex. Civ. Stats., requires the affidavit in lieu of bond to be filed within 20 days after notice of appeal is given, but does not require the order of the court granting the appeal to be entered within said period, nor, perhaps, that proof shall be heard by the court within said time. But, at any rate under article 1593, V. S. Tex. Civ. Stats., Courts of Civil Appeals have power by affidavit or otherwise, to ascertain matters of fact touching their jurisdiction. I-Ience we find that the affidavit was filed, proof heard, and the order made, though not formally entered on the docket, within the statutory period, and the appel-lee’s motion to dismiss the appeal is overruled.

We will now consider the case on its merits. The first assignment urges that the trial court erred in vacating the former judgment in so far as it purported to decree to the appellant here the entire title and right of possession to the realty of the community estate of appellant and appellee. Under the law (article 4634, V. ®. Tex. Civ. Stats.) neither party to a divorce suit may be compelled to divest himself or herself of the title to real estate. While in granting a divorce the court has power to enter such a decree as will properly protect the wife and minor children in the use of the community property which constitutes a homestead (Holland v. Zilliox, 38 Tex. Civ. App. 416, 86 S. W. 36, writ denied), yet it has no authority to divest title thereto out of one of the parties (Tiemann v. Tiemann, 34 Tex. 523; Craig v. Craig, 31 Tex. 203). Of course an equitable partition of the community property may be adjudged decreeing title in each to half of the joint property. But no partition was attempted in the judgment rendered to vacate which the action herein was brought. Hence we hold that the trial court properly entertained the suit, and awarded the relief sought, independent of the question as to whether the record discloses that appellee had notice in term time of the judgment rendered in the divorce suit. However, the evidence as to this is conflicting, and the court could reasonably have concluded that appellant did not have actual notice, and had been misled into believing that the suit had been dismissed according to the alleged agreement.

We do not think the court erred in excluding the evidence offered by appellant as to the grounds for divorce in the original suit and the testimony which would tend to warrant the original trial court to award the defendant herein the use of such homestead in addition to awarding to her the title and possession of an undivided one-half interest in such homestead, as urged in the fifth assignment. In fact, this was not the judgment entered. Since all claim for relief was abandoned by appellee except- as to the title and the right of possession of the real, estate, the propriety and validity of the judgment granting the divorce and awarding the custody of the minor children to the appellant and awarding her the community personalty ceased to be an issue.. The appellant in this last proceeding failed to allege or to sustain by proof the necessity of provision for the support of the minor children. The power of the court granting a decree of divorce to grant to the mother, who has been awarded the custody of the minor children, the usd of the homestead for a designated period, is an equity power to be exercised primarily for the benefit of the minor children in order that the mother, up$n whom has been placed the responsibility for their care and support as the head of the family, may be enabled to fulfill that duty. In this state the legal duty of the husband to support his wife ceases upon the severance of the marital bonds, nor has a court the power to decree that a husband or his property may he subjected to such support after divorce. Permanent alimony is not provided for by Texas statutes. Pape v. Pape, 13 Tex. Civ. App. 99, 35 S. W. 479; Bond v. Bond, 41 Tex. Civ. App. 129, 90 S. W. 1128. But the liability of a father for necessaries for his minor children continues after the legal separation of the parents, though it has been held that a decree in a divorce suit requiring the father to pay a designated monthly sum for the support of the minor children whose custody has been awarded to the mother is not authorized under the statute. Bond v. Bond, supra; Ligon v. Ligon, 39 Tex. Civ. App. 392, 87 S. W. 838. Hence the court may only by decree provide for. a contribution by the father towards the support of the children awarded to the mother by imposing a use on the father’s part of the community estate. However, this subjection is not in the nature of alimony to the mother, but for the support of the children. Therefore when the necessity for such support ceases the reason for such provision ends.

In the instant ease, the uncontradicted evidence shows that at the time of the last trial the two girls were living in Dallas with their father or at the same house, and that they would not live with their mother in Ft. Worth; that one of the girls was supporting herself, and the father was supporting the other. The boy was with his mother in Ft. Worth. The cause having been reopened, it/ was competent for the trial court to determine from the evidence before him, not from that introduced at the former hearing as to the necessity for making provision for their support. He evidently determined that matter adversely to appellant.

Finding no error the judgment is affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    CUERO COTTON OIL & MFG. CO. v. FEEDERS’ SUPPLY CO.
    (No. 8800.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 23, 1918.
    Rehearing Denied March 30, 1918.)
    1. Sams &wkey;>52(5) — Mee,tino oe Minds — Sue-xiciENcy oe Evidence.
    In suit for seller’s breach of alleged contract for sale of cotton seed oil products, evidence held to support conclusion that there was a meeting of minds creating a valid contract.
    2. Ookpoeations <&wkey;503(2) — Venue—1“Cause oe Action.”
    In suit in T. county against a corporation domiciled in another county and having no office or representative in T. county, evidence held to show that contract was consummated in T. county, so that court properly overruled plea of privilege, although breach did not occur in such county, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 24, providing that suit against a corporation may be maintained in any county in which cause of action or a part thereof arose; “cause of action” consisting of contract and breach.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cause of Action.]
    3. Sams &wkey;>80 — Place oe Payment — ‘‘F. O. B.”
    The term “free on board,” or “f. o. b.” is one generally understood and recognized by shippers to mean delivery of the goods without charge for drayage or other expenses previous to the loading, and has nothing to do with the fixing of the time or place of payment of the agreed purchase price, and does not bind the purchaser to pay at the place of shipment, but merely binds Mm to accept the property delivered on board the cars at that point (citing Words and Phrases, Second Series, E. O. B).
    4. ContRaots <&wkey;145 — Consummation — Place,’.
    If the communications leading up to the contract are had over the telephone, the contract is deemed to have been made at the place where the offer of one is accepted by the other.
    5. Corporations <&wkey;503(2) — 'Venue.
    Since under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1S30, subd. 24, the “cause of action” consists of the contract and the breach, and the contract was made in T. county, the requirement of the subdivision that part of cause of action must have arisen in county where suit is sought to be maintained has been satisfied.
    Appeal from District Court, Tarrant County ; Bruce Young, Judge.
    Suit by the Feeders’ Supply Company against the Cuero Cotton Oil & Manufacturing Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. L. Lockett, Jr., of Ft. Worth, and H. W. Wallace, of Cuero, for appellant. Lattimore, B'ouldin & Lattimore, of Ft. Worth, for ap-pellee.
   BUCK, J.

This suit was instituted by ap-pellee, Feeders’ Supply Company, against the appellant, Cuero Cotton Oil & Manufacturing Company, in the Forty-Eighth district court of Tarrant county to recover damages alleged to have been sustained by the alleged breach by appellant of an alleged express contract for the sale by appellant and purchase by appellee of certain cotton seed oil mill products. Appellant duly filed its pléa of privilege to be sued in De Witt county, its domicile, and subject thereto answered by demurrer and plea, denying the existence of the alleged contract. In its original petition, plaintiff alleged that the contract was made over the telephone, and by its terms “plaintiff purchased from defendant 300 tons of prime screened cracked cake or meal, 200 tons for prompt shipment, which expression is a common one in this sort of business, and jneans within ten days from date of purchase, and 100 tons to be delivered at any time up to September 15, 1916.” . Plaintiff admitted in course of trial that none of the exceptions to exclusive venue in the county of the domicile of defendant existed in this cause, except that it was not admitted that the exceptions contained in subdivision 24, article 1830, Vernon’s Sayles’ Tex. Civ. Statutes, did not exist. This article reads in part as follows:

“Suits against any private- corporation, association or joint stock company may be” maintained “in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its original office is situated.”

From a judgment in favor of plaintiff in the sum of $525, the defendant has appealed.

There are only two assignments presented in appellant’s brief. The first attacks the judgment of the court below on the ground that the undisputed evidence fails to show that any contract and agreement was made by the defendant company with the plaintiff company, as alleged by plaintiff, and that the undisputed evidence shows that the minds of the parties did not meet upon an agreement so as to create in law a binding contract. While the evidence was conflicting as to the nature and purport of the conversation between D. G. Dumas, representing the appellee company, a corporation, and Thornton Hamilton, representing appellant company, also a corporation, yet we are of the opinion that, taking the evidence in its strongest probative effect in favor of appel-lee, which the trial court had a right to do, such evidence is sufficient to sustain the contention that contract was entered into by the parties over the phone. As it will be necessary for us to refer to certain phases of the evidence in our discussion of tlm second assignment, which evidence in our opinion supports the conclusion reached by the trial court that a contract was made, we will not undertake to discuss at length each assignment separately.

Dumas testified in part as follows:

“I was representing the Feeders’ Supply Company during the month of August, 1916, and up to the present time, in the capacity of local manager. In August, 1916, I received from the Cuero Cotton Oil & Manufacturing Company the following letter: ‘Cuero, Texas, August 8, o1916, The Feeders’ Supply Company, Ft. Worth, Texas — Gentlemen: We offer you, subject to your immediate wire acceptance and prior sales, all or any part of 300 tons of prime screened cracked cake or meal, at your option, for August and first half of September shipment at $28.75 per ton, f. o. b. Cuero, net to us. We guarantee this meal or cake to have 51 per cent, protein and fat combined. This price is strictly in line with the export market. Yours very truly, Cuero Cotton Oil & Mfg. Co., per Thornton Hamilton.’ * * * I called Mr. Hamilton over the phone and asked him if he could give me some of the cake he had quoted me, prompt shipment, as I had some orders on my desk, and’ needed some for prompt shipment, and he told me. he could. The first thing when I called him, I asked him if the offer stated in the letter was still open, or if he had sold the stuff, and he said he had not, and when he agreed to give me some on prompt shipment, I told him that I would take the entire amount of 300 tons, as mentioned in his letter, at the price stated in the letter.
“After I told Mr. Hamilton I would take this cake or meal, he said he had sent Ms analysis to the chemist, but had not received a report from it; that during the years previous he had made some shipments as prime that did not grade up- to prime and that he came near to getting into trouble about it, and that he did not want to get into trouble this time; if he was not making prime, he did not want to ship it as prime, and I told him that I did not want it unless prime, and that I would give him the privilege of canceling, provided his analysis showed that he was making a lower grade than prime meal or cake. I asked him when he expected to receive his analysis and he says, ‘Tomorrow or not later than the day following.’ I then told him that I would give him until the day following, which would be the 11th, and if he found he was making a lower grade than prime to wire me; otherwise I would consider the purchase made. I did not receive any wire from Mr. Hamilton in regard to the matter, nor any information from him as to whether his cake or meal was prime or bettér, until it must have been the 12th of August, that I received a letter from him, after I had wired him on the 11th; I then received a letter from him in which he stated that the cake was prime or better. I never received any wire from Mr. Hamilton to the effect he was not making prime cake.
“After I had this conversation over the phone with Mr. Hamilton, I waited until the 11th, which was the time limit which I had given him to hear from his analysis, and then, not hearing anything from him to the contrary, I wired • him in orders for three cars, for prompt shipment, concerning which I had phoned him. s * jn reply to this telegram I received, a telegram from the Cuero Mills, in which he sáid he had no contract. It is my recollection I received that wire on the 12th. I never received 'any of this cake or meal which I purchased from the Cuero Oil & Manufacturing Company. I -made a further demand on the Cuero Cotton Oil & Manufacturing Company for this shipment, after my telegram .above referred to. * * * In this conversation ovér the phone; Mr. Hamilton told me • he could let me have as much as 150 or 200 tons of prompt, and I told him I did not need that amount. The balance of the cake was to be shipped the last half of August or the first of September, at $28.75 per ton.”

It is undisputed that appellant had no office, agent, or representative in Tarrant county at the time of this contract or at the time of the filing of the suit. If plaintiff below was entitled to maintain this suit in Tar-rant county it must be on the theory that the offer made by appellant in its letter of August 8, 1916, was accepted by appellee without change on its part of the terms contained in the letter, or- that a different proposition was made over the phone by appellant’s agent and accepted by appellee’s agent at Ft. Worth. It will be remembered that this letter offered the cake or meal for shipment “for August and first half of September shipment $28.75 per ton, f. o. b. Cuero, net to us.” The term “free on board,” or “f. o. b.,” is one generally understood and recognized by shippers to mean delivery of the goods without charge for drayage or other expenses previous to the loading, and has nothing to do with the fixing of the time or place of payment of the agreed purchase price and does not bind the purchaser to pay at the place of shipment, but merely binds him to accept the property delivered on board the cars at that point. Bussell & Co. v. Heitmann & Co., 86 S. W. 75, and other cases cited in 2 Words & Phrases, p. 658 et seq. The term thus used did not imply that the shipper should pay the freight, or that it should deliver the shipment at any point in Tarrant county. In fact, the appellee’s direction for shipment, as contained in his telegram of 8 — 11—1916, was that one car was to be shipped to Topeka, and one to Terra Cotta, Kan., and a third to Big Spring, Tex.

While jurists have found some difficulty in defining the term “cause of action,” yet, in construing the expression in the subdivision of the statute upon which the claim of venue in Tarrant county is based it has been held that a “cause of action” is made up of the contract and its breach. Railway v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Iron Works v. Beeves & Co., 43 Tex. Civ. App. 254, 95 S. W. 739. The breach of the contract did not take place in Tarrant county, because the breach, if any, arose upon the failure to deliver f. o. b. cars at Cuero within the time specified.

If the communications leading up to the contract are had over the telephone, the contract is deemed to have been made at the place where the offer of one is accepted by the other. 1 Elliott on Contracts, § 62, p. 92; Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 Pac. 855, 65 L. R. A. 90. This holding follows the general rule that a contract is made where the acceptance of the offer is given. Insurance Co. v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813; 1 Elliott on Contracts, § 62, p. 91. The issue then presents itself for our consideration, Did D-umas, for the appellee, accept, without change or qualification, the offer made in the letter of August 8th? According to this letter the Cuero Mill would have had the right to ship the cake or meal at any time during the remaining days of August, and the first half of September. In order to constitute the acceptance, appellee must have agreed to accept shipment “for August and first half of September.” Dumas, for appellee, testified:

“In my conversation with Mr. Hamilton, in the first place, he told me he could let me have as much as 150 or 200 tons of prompt if I wanted it, and I told him that I had these orders or inquiries that I had to fill with ‘prompt,’ and that is the reason I called him over the phone, was to see if he could give me some prompt with which to fill these orders.”

As was said in the case of Washington v. Rosario Min. & Mill. Co., 28 Tex. Civ. App. 430, 67 S. W. 459:

“The rule is unvarying, and the authorities uniform, that in order to constitute an acceptance of an option, or an offer to sell, the acceptance must be unconditional. There must be no new terms imposed, and no departure from those offered.”

Ordinarily, where a delivery is to be made within a certain period, say within a designated month, the seller has until the last day of the ‘named period to make delivery. 35 Cyc. 177; Magnolia Cotton Oil Co. v. Continental Oil & Cotton Co., 183 S. W. 10. Therefore, if Dumas, over the phone, stipulated that in order for him to accept the offer contained in the letter he must have a part of the 300 tons as a “prompt” shipment, such stipulation constituted a counter offer on his part to pay the price required by appellant, if a part of the shipment could be made “prompt.” The agreement on the part of Hamilton, acting for appellant, to this change would consummate the contract, and ,this agreement or acceptance having been made at Cuero, the venue would properly be in De Witt county, even under the rule that a contract over the telephone is consummated in the county where the acceptance is given. Bank of Tolo v. Sperry Flour Co., supra. But the evidence justifies a conclusion sustaining the judgment of the trial court that Dumas, upon calling up Hamilton at Cuero, first asked him if he could ship a part of the 300 tons as “prompt,” and that Hamilton replied that he could, 150 "to 200 tons; that thereupon Dumas agreed to take the 300 tons at the price made in the letter of August Sth. The testimony of Dumas heretofore quoted in this opinion, as well as other portions of his testimony of like import, would justify that conclusion. Dumas testified:

“The terms of the purchase which X made over the phone, in my conversation with Mr. Hamilton, were in accordance with a letter I had received from the Cuero Mill. ‘$28.75, f. o. b. Cuero;' shipment the last half of August or the first half of September.’ I cannot give the conversation verbatim, but I have stated the substance of it; it was in accordance with the terms specified in the letter, with the added agreement that he was to let me have some of the cake for ‘prompt’ shipment; X had some ■orders on my desk which called for prompt shipment. But with that exception the contract over the phone was in accordance with the letter from the Cuero Cotton Oil & Manufacturing Company. * * * ”

The contract was made by the acceptance of the offer. If there was an offer on the part of Hamilton, acting for appellant, to ship a part of the 300 tons in accordance with Dumas’ expressed wishes and need, and Dumas then accepted this changed offer, and such acceptance consummated the contract sued on, it would seem that the judgment of the trial court must be sustained. Since the cause of action consists of the contract and its breach and the contract was made in Tarrant county, it would appear that the statutory requirements that at least a part of the cause of action must have arisen in the county where suit is sought to be maintained, has been satisfied.

Appellee urges that at the time of the phone conversation between Dumas and Hamilton Dumas merely inquired as to whether, under the offer as made by appellant in the letter, a sufficient shipment of “prompt” would he allowed to fill the orders that ap-pellee then had on hand. And that an inquiry does not constitute a counter offer. Appellee cites Stevenson v. McLean, 6 Eng. Rul. Cas. 82, 49 L. J. Q. B. N. S. 701. This •case is cited in 9 Cyc. in a footnote on page 269. The text of the Cyc. there uses the following language:

“If an offer is accepted as made, the acceptance is not conditional and' does not vary from the offer, because of inquiries whether the of-ferer will change his terms, or as to future acts, or the expression of a hope or suggestion,” etc. I

But even if the judgment cannot he sustained on this theory, we are of the opinion that it should ■ be sustained on the ground that the contract was consummated by the acceptance of Dumas given in Tarrant county. It is true that no right of action arose until the breach had occurred, and that the alleged breach occurred in De Witt county, arising by reason of the failure of the defendant company to load f. o. b. the. shipment of three cars ordered by plaintiff. “The right of action springs from the cause of action, but does not accrue until all of the facts which constitute the cause have occurred.” 1 C. J. p. 946, and the authorities cited under footnote 38; 1 Bouvier’s Dict. 436. That the defendant may not by his own wrongful breach determine the venue of a cause of action arising under a contract .consummated in a county other than that of defend-ant’s domicile is decided in Peach River Lumber Co. v. Ayers (writ of error denied) 41 Tex. Civ. App. 334, 91 S. W. 387, cited in 40 Cyc. p. 84. See Harvey v. Parkersburg Ins. Co., 37 W. Va. 272, 16 S. E. 580.

In discussing the meaning of the term “arose” or “arises” used in connection with the expressions “the cause of action arose,” or the “cause 'of action arises,” the Supreme Court of Oklahoma, in Doughty v. Funk, 15 Okl. 643, 84 Pac. 484, 4 L. R. A. (N. S.) 1029, says:

“We cannot, therefore, in determining the meaning of the phrase under consideration, hold that a cause of action has arisen only when the remedy and the right occur at the same time. But we do hold that a cause of action arises when the obligation was created which gave rise to a right of action as soon as such right accrued thereon.”

The question of venue here involved is not one entirely without difficulty, but we have concluded that under the authorities cited the trial court properly overruled defendant’s plea of privilege. All assignments are overruled, and the judgment is affirmed.

Affirmed.
      <@s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=»For other cases see. same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    BOWERS v. BENNETT et al.
    (No. 7577.)
    (Court of Civil Appeals of Texas. Galveston.
    April 18, 1918.)
    Homestead <&wkey;115(3) — Improvements—1Trust Deed — Sale.
    A husband and wife owning property entered into a written contract for the building of a house thereon, and agreed that the builder should have a mechanic’s lien, for labor and material, the building cost to be paid in yearly installments of $400, for which they gave five notes for $400 each, secured by deed of trust, providing that on default in the payment of any , part of the indebtedness the trustee might sell the property and apply the proceeds thereon, /' and a purchaser from the owners assumed the notes, and the property was sold under the trust deed. Const, art. 16, § 50, permits the sale of a homestead to enforce a mechanic’s lien only when the work and material are contracted for in writing with the consent of the Wife, and Rev. St. 1911, art. 5680, provides that a sale to enforce a mechanic’s lien must be upon judgment rendered by some court of competent jurisdiction, foreclosing the lien and ordering a sale. Held, that the sale under the deed of trust was a sale under a contract, and not a statutory lien, and was valid.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by Annie L. Bowers against Herbert Bennett and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Atkinson, Graham & Atkinson, of Houston, for appellant. Fred R. Switzer, of Houston, for appellees.
   PLEASANTS, C. J.

The facts upon which this litigation arose are undisputed and are as follows:

On February 12, 1909, W. S. Jackson and his wife, Margaret Jackson, who owned the property involved in this suit, entered into. a written contract with J. R. Brubaker-to build for them a residence upon the property and agreed to pay him for the material and labor used in the construction of said residence the sum of $2,000, and for the payment of which sum it was agreed and stipulated in the contract that Brubaker should have a materialman's, mechanic’s, and laborer’s lien on the property. This contract was duly executed and acknowledged by all the parties thereto. On the same day, and as a part of the same transaction, there was an assignment by Brubaker of his right to the $2,000 compensation due him upon the completion of his contract, together with the liens given in the contract to secure the same, to B. A. Everts, who then agreed with the Jacksons that the $2,000 should be paid in yearly installments of $400, with interest at the rate of 8 per cent, per annum. In pursuance of this agreement the Jacksons executed five notes for $400 each, payable to the order of B. A. Everts in 1, 2, 3, 4, and 5 years, respectively, from date, and to secure the payment of these notes executed a deed of trust in which E. L. Dennis was appointed trustee. The deed of trust recited the facts above stated, and authorized the trustee in event of default in the payment of any part of the indebtedness thereby secured to sell the property after advertising the sale in the manner required by the statute and apply the proceeds to the payment of the indebtedness.

The residence was constructed by Brubaker in accordance with the contract, and was occupied by the Jacksons as their homestead until June 17, 1911, when they sold it to J. L. Bowers for the sum of $4,000. Of this amount Bowers paid $2,100 in cash, and assumed the payment of three of the $400 notes in favor of Everts, which were then unpaid. He also executed two notes for $350 each in favor of the Jacksons, and secured by a vendor’s lien on the property. These two notes were paid by J. L. Bowers on September 20, 1911. J. L. Bowers married the appellant herein on May 21, 1912, and the property was occupied by him and appellant as their homestead until his death in April, 1916. Prior to August, 1915, J. L. Bowers paid all of the $400 notes above mentioned, except the fifth and last one, and paid $100 on that, leaving a balance .of $300 and interest due thereon. On the date last named Everts transferred and assigned the unpaid note to Y. H. Roos. The balance due on this note remained unpaid, and at the request of the holder, A. O. Van Yelzer, who was. appointed substitute trustee, the said E. L. Dennis having died, advertised the property for sale in accordance with the terms of the trust deed. After due advertisement the property was sold on September 7, 1915, and the appellee herein became the purchaser for the sum of $363. At the time of this sale appellant with her husband, J. L. Bowers, lived on this property, and has continued to reside thereon.

The appellee is the daughter of J. L. Bowers by his former wife, and was living with the appellant and said Bowers at the time she purchased the property. She did not record her deed from the trustee, Van Yel-zer, until February 20, 1916. Shortly after the record of this deed, J. L. Bowers having theretofore died, appellant brought this suit against Jessie Mae Bennett and her husband, Herbert Bennett, and the trustee Van Vel-zer, to cancel the deed executed by Van Vel-zer to Mrs. Bennett and to recover possession of the property. In her petition appellant offers to redeem, and tenders into court the amount paid by Mrs. Bennett for the property with interest. The trial in the court below without a jury resulted in a judgment in favor of defendants.

The first assignment of error presented in appellant’s brief and the proposition submitted thereunder are as follows:

“The court erred in holding that the sale made by A. G. Van Velzer, substitute trustee, September 7, 1915, to satisfy said balance due on said mechanic’s and materialman’s lien, was valid and binding under said deed of trust dated April 1, 1909, because under article 5630 of the Revised Statutes of Texas such sales can only be made upon judgment of a court of competent jurisdiction foreclosing said lien and ordering the property sold, and said sale was and is void.”
“Every sale of real estate made to satisfy a mechanic’s and materialman’s lien must be upon judgment rendered by a court of competent jurisdiction foreclosing such lien and ordering sale of such property, and said property cannot be sold by the trustee or substitute trustee under the powers conferred in a deed of trust given on said property to secure the indebtedness thereon, but said mortgage lien created by said deed of trust must be foreclosed upon judgment rendered by a court of competent jurisdiction ordering said property sold, otherwise the sale by the trustee or substitute trustee and the trustee’s deed are void and do not pass title.”

The exact question presented by this assignment has been decided by our Supreme Court adversely to appellant’s contention. Lippencott v. York, 86 Tex. 276, 24 S. W. 275; Loan Association v. Goforth, 94 Tex. 259, 59 S. W. 871, In the case of Lippencott v. York, supra, tke facts were:

“A husband and wife, * * * desiring to make certain improvements upon their homestead, applied to a party for the loan of money for that purpose, offering to secure the debt by a lien on the homestead, and the party, declining to make the loan in that way, but agreed with them that if they would have the work done, and a mechanic’s lien fixed on the property that he would take up the debt and lien, and extend the time of payment for five years, and accordingly the husband and wife arranged with a contractor, by a contract in writing duly executed, who erected the improvements and by agreement between the contractor and the husband and wife a mechanic’s lien was duly [executed and] fixed upon the homestead; and the contractor, while the mechanic’s lien was in force, assigned the debt, together with the lien,' to such party first mentioned, and the husband and wife executed to such assignee new notes, extending the original debt and lien five years, and a deed of trust upon the homestead to secure them, such deed of trust expressing the original lien, and being properly executed with privy acknowledgment by the wife.”

It was held by the court that the deed of trust given under the above state of facts was a valid lien upon the homestead, and in passing said the Constitution of the state provides:

“No mortgage, trust deed, or other lion on the homestead shall ever be valid except for the purchase money therefor or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien shall have been created by the husband alone or together with his wife. Constitution, art. 10, § 50. This section of the Constitution, while it operates as a restriction on the power of a husband and wife to impose charges upon the homestead, recognizes their power to do this by mortgage, trust deed, or other lien.to secure payment for work or labor used in constructing improvements upon it.”

The court then takes up the distinction between statutory and contract liens, and then states:

“The one can be enforced only through the judgment of a court foreclosing the lien and ordering the sale of the property. Act April 5, 1889 (General Laws, p. 113). The other may be thus enforced, or it may be enforced in the manner provided by the contract. The lien in the one case would cease to be operative, as the law was, if suit was not brought to enforce it within twelve months after it is fixed, although the debt secured by it was still valid and might be enforced through a personal judgment. General Laws 1889, p. 114. The lien created by contract, however, may be enforced so long as the debt it was given to secure exists, unless limitation be pleaded; and that the debt may be thus barred would furnish no obstacle to its collection by sale of the property under a power given in the instrument creating the lien.”

Section 10 of the act of 1899, construed by the court in the Lippencott Case, is now article 5630 of the Revised Statutes, cited by appellant.

The remaining assignments of error presented in appellant’s brief only raise in another form the identical question presented by the first assignment. This question being settled against appellant’s contention, it'follows that the judgment of the court below must be afljrmed, and it has been so ordered.

Affirmed.
      (gc^jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes