text:
    BRYSON v. STATE.
    (No. 4107.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.)
    1. Criminal Law &wkey;> 1144(19) — Appeal Bond —Presumption—Time oe Filing.
    Where the appellant’s motion for a new trial was overruled on the day the court adjourned, and on that day he entered into an appeal bond, the Court of Criminal Appeals, in the absence of proof thereof, could not, on motion to dismiss, presume that the appeal bond was filed while the court was in session, but would presume that the law was complied with by filing it after the adjournment of the court for the term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2774-2781, 2901, 3037; Dee. Dig. &wkey;1144(19).]
    2. Criminal Law t&wkey; 1076(1) — Appeal—Bond —Time.
    The right to give an appeal bond arises at once upon the adjournment of court for the term.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2716; Dec. Dig. &wkey;1076(l).]
    3. Witnesses <&wkey;390 —Credibility —Evidence — Fact in Issue.
    In a prosecution for violating the local option law, where there was a direct conflict as to whether the state’s witness or the defendant was the person selling whisky at the time, and where the state called a deputy sheriff who testified that upon a search he found two empty whisky cases at defendant’s house, and denied having stated to a third party that he found only one whisky case at defendant’s house, and where defendant had testified that there was only one case found at his house, which had been brought there by his brother, the refusal to permit defendant to prove by such third person that the deputy had told him that he found only one case at defendant’s house was error, as it was admissible on the weight to be given the deputy’s testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1247; Dec. Dig. &wkey;390.]
    4. Criminal Law &wkey;940 — New Trial — Newly Discovered Evidence — Materiality.
    In such prosecution, whore it appeared that a witness for the state had told the district attorney and defendant’s counsel that he knew nothing about defendant’s sale of whisky, and was excused, evidence that after conviction a certain party told defendant’s counsel that the former witness had gotten a shipment of whisky on the day of the alleged sale, and that the state’s witness admitted going from the witness’ to appellant’s house, and that the witness would testify that the state’s witness got whisky in his shipment and took it away on the night when the state’s witness went to defendant’s house and bought from defendant, was material on the issue as to which one of the two made the sale.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dec. Dig. &wkey;> 940.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Zeb Bryson was convicted of violating the local option law, and he appeals.
    Reversed, and cause remanded.
    C. H. Crum and T. C. Hutchings, both of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty. Cen., for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and sentenced to one year’s confinement in the state penitentiary.

The record discloses that appellant’s motion for a new trial was overruled on the 19th day of February. He was sentenced on that day, and court adjourned on that day. It further appears that on the 19th day of February (the day court adjourned) appellant entered into an appeal bond. The state asks us to presume that, as the appeal bond was filed on the same day the court adjourned for the term, the appeal bond was filed while the court was in session, and dismiss the appeal. We do not think we are authorized to indulge such presumption. Of course, if in fact the appeal bond was given before the adjournment of court for the term, the motion should be sustained; for the law requires a recognizance to be entered into in open court while the court is in session. But the right to give an appeal bond arises at once upon the adjournment of court for the term, and, in the absence of proof that the court was in session, we must presume the law was complied with in filing an appeal bond.

In this case Nevils Milam swears positive-, ly that he purchased three pints of whisky from appellant and paid him $2.25 for it. No other witness saw him buy it, but Paul Hamilton swears that» he went with Milam to appellant’s house, and he saw appellant and Milam go in the house, and after Milam came out he saw him with some whisky.

On the other hand, appellant swears that Milam and Hamilton came to his house, and that Milam brought some whisky with him when he came; that he tried to sell him some whisky, but he had no money, and they went to the home of Norman Goodwin, and Milam sold Goodwin a pint of whisky on credit, and then sold him a pint on credit. Norman Goodwin testifies that he purchased a pint of whisky from the state’s witness, and saw state’s witness sell to appellant. Thus it is seen there is a direct conflict in the testimony, state’s witness claiming to have purchased whisky from appellant, and appellant and Goodwin testifying that state’s witness, and not appellant, was the person selling whisky on that occasion.

To strengthen the state’s case the state called Deputy Sheriff Ben Reid, who testified that he found two empty whisky cases at appellant’s house, one looking like a gallon had been shipped in it, the other one holding 12 quarts or 24 pints. He denied having stated to Clay Russell that at the time he made the search that he found only one whisky case at appellant’s house. The appellant desired to prove by Clay Russell that Mr. Reid had so stated to him. This the court refused to permit him to do. In this the court erred. Appellant had testified that there was only one case found at his house, and said that this had been brought there by his brother, who had ordered some whisky some time before. It is thus seen there was a direct conflict in the testimony, Mr. Reid testifying that he found two empty cases; one in which whisky of the character the state’s witness had testified he had purchased would likely be shipped. Appellant testified there was only one empty case, the gallon case, and explained it being found there. He ought to have been permitted to prove, if he could, that Mr. Reid stated to Clay Russell a day or two after the search “that he saw only one box or carton which he believed to have contained whisky in the defendant’s house.” This was admissible on the weight to be given Mr. Reid’s testimony when he testified on this trial he found two.

Attached to the motion for a new trial’ is an affidavit claiming newly discovered testimony. J. J. Melton was summoned as a witness by the state. He told both appellant’s counsel and the district attorney he knew nothing about appellant, Zeb Bryson, selling any whisky. He was excused and went home. After conviction Bill Blevins told appellant’s counsel that J. J. Melton had gotten a shipment of whisky on the day of the alleged sale; that state’s witness Nevils Milam was interested in the shipment, and had gotten five bottles out of the shipment at the time he left Melton’s house. Now, Milam had admitted on the trial going from Melton’s to appellant’s house, when he said he bought the whisky from appellant, but when appellant and Goodwin both say they bought whisky from him. Melton swears he would testify that Milam did get four bottles of whisky in his shipment and carry it off with him the night Milam says he went to appellant’s house and bought from appellant, and the night appellant and Goodwin say they bought whisky from Milam. Under the facts in this case we think this testimony very material on the issue of which one of the two made a sale of whisky that night.

The judgment is reversed, and the cause remanded.
      ^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    DUNLAP et al. v. SQUIRES.
    (No. 7504.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.
    On Motion for Rehearing, June 10, 1916.)
    1. Afpeal and Error &wkey;>757(l) — Briefs — Specification of Error.
    Where the record shows that certain rulings of the court below were attacked in a motion for new trial, and that such rulings constitute the assignments of error urged in this court, it is unnecessary that appellant’s brief should specifically so state.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. &wkey;>757(l).]
    2. Husband and Wife <&wkey;264^CoMMUNiTY Property — Transfer to Husband — Sufficiency of Evidence.
    Evidence examined, and held insufficient to go to the jury on the question whether certain community property had become the husband’s exclusive property prior to a levy thereon by his wife’s judgment creditor.
    [Ed. Note. — For other cases, see Husband and Wife, Cent Dig. § 916; Dec. Dig. <&wkey;264.]
    3. Pledges <&wkey;34 — Character of Transaction — Sufficiency of Evidence.
    Evidence examined, and held insufficient to go to the jury on the question whether certain cotton had been pledged before being levied upon.
    [Ed. Note. — For_ other cases, see Pledges, Cent. Dig. § 90; Dec. Dig. &wkey;34.]
    4. Appeal and Error <&wkey;562 — Statement of Facts — Essentials.
    The statement of facts need not show the value of the property in controversy when the trial court’s judgment recites that fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2495-2499; Dec. Dig. <&wkey;>
    5. Husband and Wife &wkey;j2C8(l) — Community Property — Liability for Antenup-tial Debts.
    Community property is liable for the ante-nuptial debts of the wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953, 957-960, 964, 967; Dec. Dig. <&wkey;>268(l).]
    6. Appeal and Error <&wkey;1175(l) — Reversal —Final Judgment.
    It is the duty of this court, under the statute, to render final judgment upon reversal when the case has been fully developed in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573, 4575, 4576, 4583-4587; Dec. Dig. &wkey;1175(l).]
    On Motion for Rehearing.
    7. Appeal and Error <@=^1177(1) — Reversal —Necessity of New Trial.
    Reversal held to necessitate another trial, since the record does not conclusively show that the case was fully developed in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604, 4610; Dec. Dig. &wkey;> 1177(1).]
    Appeal from Rockwall County Court; G. W. Reese, Judge.
    Action by Theodore Squires against O. E. Dunlap and F. A. Ferris. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    H. M. Wade, of Rockwall, for appellants. T. B. Ridgell, of Rockwall, for appellee.
   TALBOT, J.

This was a proceeding, under the statute, for the trial of the right of property to six bales of cotton levied on as the property of Mrs. T. H. Squires, wife of the appellee, by virtue of an execution Issued on a judgment obtained by appellants against the said Mrs. Squires prior to her marriage to the appellee. In the tender of issues filed, the appellee, Theo. Squires, as claimant, alleged in substance tbat tbe debt sought to be collected by tbe levy of tbe execution in question was an antenuptial debt of Ms wife; tbat tbe property seized • was not ber separate property and not subject to said execution; that the cotton levied on was raised upon the premises of claimant and was therefore the community property of himself and his said wife, unless the minor children of bis wife had an interest in same, and unless by reason of the facts it was the separate property of claimant; that he had used about $200 of his separate money and property in raising tbe crop of which the cotton in controversy constituted a part, and that said cotton was held by him at the time it was levied upon to secure said advancement; that said cotton at that time was owned and held by claimant to pay for said separate advancement, and also to pay the Citizens’ National Bank of Rockwall for an indebtedness of over $200, which claimant was owing for money used to make said crop of cotton; that said cotton had been delivered to claimant and was being held by him at the time it was levied upon for the purpose of paying, first, the said bank debt, and that if any remained, then to pay said separate advancement. The said appellee and claimant made the further following allegations:

“The plaintiff contends, first, that by reason of the circumstances under which this cotton levied upon was in his possession and control and the purpose for which it was so held by him and so delivered to him, that as a matter of fact and law it was his separate property. If mistaken in the law which he first insists upon and if same should be held to be community property, then he says that same is not liable for the admitted debt of his wife contracted before marriage. The plaintiff further says that the ■defendants are not entitled to recover for the reason that said property was also held at the time and had been delivered to plaintiff for the purpose of securing and paying the debt of plaintiff and to pay the debt of plaintiff to the bank as aforesaid, which debt at the bank was for money and. advances necessary to make said crop, and for which it was understood that said cotton was in the possession of claimant herein pledged to secure the said indebtedness to said bank and all of which facts the defendants knew, or with exercise of diligence would have known, and further by the possession and ownership of plaintiff and by both actual and constructive notice the defendants did know.”

By a trial amendment tbe appellee alleged tbat be bad paid out of bis separate estate about $80 to O. P. Dorsey, and $70 to A. L. Atkins, debts contracted by bis wife before ber marriage to bim, under an agreement tbat be was also to be reimbursed therefor out of tbe cotton in controversy, and tbat be was bolding said cotton, wMcb bad been delivered to bim, for tbat purpose. Tbe appellants, Dunlap and Perris, alleged, in substance, tbat tbe cotton when levied upon was ■on tbe premises of appellee’s wife, Mrs. Squires; tbat they agreed with tbe appellee tbat the debt for which tbe judgment/involved in tbe suit was rendered was an ante-nuptial debt of Mrs. Squires; tbat said cot-con was tbe community property of tbe ap-pellee and the said Mrs. Squires, and as such was liable for tbe antenuptial debts of Mrs. Squires; that appellants, on October 7, 1912, obtained judgment in tbe justice court of precinct No. 1 of Rockwall county against tbe appellee’s wife, Mrs. Squires, for tbe sum of $188.78; tbat said judgment was unpaid, and that on tbe 8th day of October, 1914, tbe execution involved in this suit was issued and levied by tbe constable of said Rockwall county upon the cotton in controversy ; tbat said cotton has been, as appellants have been informed, sold or disposed of by claimant. Appellants further allege tbat the facts pleaded by tbe appellee with reference to tbe character of bis ownership of the cotton in question do not show such ownership in bim as entitles bim to recover in this action; that appellee is tbe legal custodian of tbe community property of himself and wife and lien contracts are prohibited between husband and wife without notice to judgment creditors who have levied an execution upon such property in an effort to collect their debts. Tbe prayer is tbat appellants have judgment subjecting the property in controversy to tbe payment of their debt; tbat if said property should not be forthcoming for tbat purpose tbat they have judgment against the appellee and tbe sureties on his claimant’s bond for tbe amount of said debt, interest and costs of suit. A jury trial resulted in a verdict for tbe appel-lee, and tbe appellants perfected an appeal to this court.

Appellee objects to a consideration of any of appellant’s assignments of error. Tbe objection is, in substance, that neither of the assignments is supported by any statement in the brief showing tbat the ruling of tbe court assigned as error was embraced in a motion for a new trial filed in tbe lower court. Tbe objection is not well taken. Tbe record discloses tbat there was a motion for a new trial made in tbe court below, and tbat grounds assigned in that motion constitute the assignments of error urged in this court. Thus it appears tbat tbe rulings of tbe court complained of in this court were embraced in a motion for a new trial in tbe court below, and it is not absolutely essential to a consideration of tbe assignments of error tbat a specific statement to tbat effect should appear in the brief. Western Indemnity Co. et al. v. Ellen MacKeelmie, 185 S. W. 615, recently decided by this court, but not yet officially reported.

The first and second assignments of error complain of tbe court’s refusal to give requested charges, in different forms, directing tbe jury to return a verdict in favor of appellants. Tbe contention of the appellants is, in effect, that the community property of tbe husband and wife in this state is subject to tbe payment of the antenuptial debts of the wife; that on the trial of this case in tbe court below the value of the property in controversy was shown; tbat by the admissions of appellee and the undisputed evidence, as such admissions and evidence appear in the record sent to this court, it was shown that the judgment sought to be collected by the execution issued thereon and levied on said property was rendered upon an antenuptial debt of appellee’s wife, and that said judgment was unpaid; that said execution had been levied on the property in controversy, and that said property was the community property of appellee and his wife. On the other hand the appellee contends, in substance, that the property in controversy, not being the separate property of Mrs. T. H. Squires, the appellee’s wife, and the debt sought to be collected being an antenuptial debt of Mrs. Squires, said property was not subject to the payment thereof; that in no event was appellant entitled to recover, and no other judgment could have been rendered by the lower court than the one rendered, because the evidence, as shown by the statement of facts, failed to disclose the value of the property in controversy, or that appellant had judgment against appellee’s wife for any amount, or that an execution had been issued and levied upon the property in controversy to satisfy any amount. If this contention of the appellee was sustained by the record, then it would be clear that no other judgment than that rendered by the court could .properly have been rendered, and in that case a verdict should have been directed for appellee. Evidently, the trial court was not of the opinion that the appellants had failed to make proof of the judgment, the execution and its levy upon the property in controversy or the value of said property. The case was submitted to the jury on a charge, in which the court, in effect, assumes that all these facts had been established, .and instructing them that if they believed from the evidence that the property in controversy was the separate property of the .appellee,' who is referred to as the plaintiff, “or the community property of himself and wife, and was not the personal earnings of the said wife, nor the rents and revenues from her separate property,” to find for plaintiff. In submitting the converse of the propositions the court told the jury that if they believed from the evidence “that the cotton in controversy was the separate property of Mrs. Theo. Squires, or that it was a part of her personal earnings or that the same was a part of her income rents and revenues from her separate property to find” for appellants, who are designated as “defendants,” as against the plaintiff and his bondsmen in appeal for the possession of said cotton or its proven value, etc. It is manifest, therefore, from the charge that the court regarded the existence of the judgment, the issuance and levy of the execution, and the value of the property levied on as facts conclusively established by the evidence. The correct-mess of these conclusions is verified by the statement of facts and other parts of the record before this court. In his tender of issues the appellee made no denial of the existence of the judgment sought to be collected nor of the issuance and levy of the execution in question .on the property in controversy. On the contrary he practically admits in his pleadings the existence of said judgment, the issuance and levy of said execution on said property, and that the debt of appellants which had been merged into said judgment was an antenuptial debt of his wife. 1-le also admits that the cotton levied on was the community property of himself and wife, unless the minor children of his wife have an interest in the same, or unless by reason of the facts it was and is his separate property. He alleges:

“That the property levied upon by said defendants is not subject to the debt of Mrs. T. H. Squires, which debt was an antenuptial debt of the wife of plaintiff, and said property or cotton not_ being the separate property of Mrs. T. H. Squires [his wife] is not subject to the execution in this cause, and defendants should take nothing by their suit, and plaintiff should have judgment establishing his right and ciaim to said cotton.”

That he had furnished about $200 of his separate money and property to make the crop of which the cotton in question was. a part, and that at the time said cotton was levied upon it was held by him to secure said advancement. That at said time it was, in fact, owned and held by plaintiff for said advancement, -and also to pay the Citizens’ National Bank of Boekwall an indebtedness of over $200, which plaintiff was owing for money used to make said cotton and crop. That by reason of the circumstances under which said cotton was in his possession and control and the purposes for which it was so held by him it was his separate property. He further avers that:

“If he is mistaken in the law as first insisted upon, and if said property should be held to be community property of himself and wife, the same is not liable for the admitted debt of his xoife contracted before marriage." (Italics ours.)

By the trial amendment hereinbefore referred to ■ the appellee made the .following aliegations:

“That plaintiff has paid out of his separate estate about $8!) to C. P. Dorsey, and $70 to A. L. Atkins for his wife, and which were debts of his wife and were made before marriage, and under agreement he was also to be reimbursed and paid out of this cotton, and he was holding-same for that purpose, and same was so delivered to him for that purpose.”

Appellee testified, as shown by the statement of facts agreed tq by the parties and approved by the trial judge, that he was claimant of the cotton levied on in this case, and that same was raised on the farm occupied by himself and family, and that when he married the present Mrs. Theo. Squires she and her children owned the said farm where said cotton was raised; that during the year 1913 he paid some $200 of the ante-nuptial debts of his wife to C. P. Dorsey, the Pair Dry Goods Store, and others; that the Citizens’ National Bank loaned him $200 during the year 1914, which money was used to make the crop and cotton levied on in this case; that he owed this money at the time levy was made and told the agent of defendants at the time of levy that this was 'the case; that he was holding said cotton to pay said indebtedness at the bank and that he had left the tickets at the bank, but no mortgage of any character had been executed by plaintiff on said cotton; that there was about 10 bales of cotton on the farm when levy was made on the 6 bales; that he cultivated and raised on said farm each of the years 1913 and 1914 about 23 bales of cotton and sold same and would have paid this indebtedness of his wife if he had had the money; that this debt was a note owed by his wife prior to his marriage with her; that his wife had turned over all of said cotton to him to pay the money borrowed by plaintiff to make the crop with or any other indebtedness which might be due; that “he filed a claimant’s oath and bond and took said cotton out of the hands of the officer levying said writ and took the cotton and sold same and used the money to pay off the note owed by me to the Citizens’ National Bank.” Upon being recalled he further testified that he had owned the interest of his wife and Charley Crawford in the farm upon which the property in controversy was raised since September, 1912. This is all of the testimony offered by the appellee in support of his alleged claim and right to the property in controversy and is insufficient, especially in view of the other facts of the case, to establish his claim, even if his allegations were sufficient, which may be gravely doubted, to authorize the maintenance of our statutory action of the trial of the right of property. The testimony is sufficient to show that appellee paid out of his separate funds antenuptial debts of his wife during the year 1913 amounting to about $200, but it does not show that before the levy of the appellants’ execution the cotton seized had been separated from the other cotton raised on the farm for the year 1914 and actually appropriated to reimburse himself for such expenditure, or that he was even holding said cotton at the time of the levy of the execution for the purpose of reimbursing himself for the money paid out on his wife’s antenuptiál debts. It does show that he did not so appropriate the cotton, hut that he sold it and used the money derived from such sale to the payment of a note owed by him to the “Citizens’ National Bank.” It shows that the “Citizens’ National Bank” loaned appellee $200 during the year 1914, which was used to make the “crop and cotton levied on,” but is insufficient to show that the cotton levied on had been pledged to that bank to secure the payment of such indebtedness, and that appellee was holding it as such for the bank. Appellee testified that he was holding the cotton to pay the debt he owed the bank, and that he had left the “tickets” at the bank, and that he had, as before stated, sold the cotton and paid the bank’s debt, but the character of the tickets and the purpose and effect of leaving them with the bank was .not shown. 1-Ie further testified, however, in this connection, that no mortgage of any character had been executed by him on the cotton. The money borrowed by appellee from the bank became the community property of himself and wife, and the debt contracted thereby was a community debt, and so far as the record before us shows, the bank had no greater claim on the cotton in controversy for the payment of this debt than any other creditor of appellee.

The statement of facts recites that the appellants introduced in evidence the judgment recovered by them against Mrs. Squires before her marriage with the appellee, the execution issued thereon and levied on the cotton in controversy, the officer’s return indorsed on said execution, and that the cotton was of the value of 5% to 6 cents per pound, but neither the amount of said judgment nor the amount for which the execution was issued, nor the officer’s estimated value of the cotton, nor its weight is shown. There was, however, as before stated, no issue made by the pleadings as to these matters, and the case was submitted to the jury by a charge of the court which, in effect, assumes that all those facts were conclusively established by the evidence and the admissions of the appellee in his tender of issues. Neither the weight of the cotton levied upon nor its estimated value by the officer making the levy is admitted by appellee in his pleadings, but the judgment of the court recites that it was valued at $179.40. This recital in the judgment shows a finding of the court that the value of the cotton in controversy was the amount stated, and there is nothing in the record that impeaches this finding. The evidence of such' a fact, like others, should and ordinarily does appear on appeal in the statement of facts, but such method is not the only way that the appellate court may be informed of its establishment on the trial in the lower court. It may be shown, as we understand, either by the statement of facts, or by a recital thereof in the judgment, or in a bill of exceptions. The precise question we have here has not been decided by any appellate court of this state so far as we know, but we cite the following cases, which very clearly indicate that our conclusion is correct: Salinas v. Wright, 11 Tex. 572; De Garcia v. San Antonio & A. P. Ry. Co., 77 S. W. 275; Classcock v. Price, 45 S. W. 415; Parlin & Orendorff Go. v. Cantrell, 40 S. W. 415. In the first case cited the Supreme Court said:

“To authorize the revision of a judgment, on the merits, a formal statement of facts is not essential, where all the evidence legally and conclusively appears by the record.”

And in that case it was held that it may so appear by a bill of exceptions. In the other cases cited the facts considered as having been established were recited in the trial court’s judgment.

That the cotton levied on was the community property of appellee and his wife was conclusively shown, and that such property is liable to execution for the debts of the wife contracted before marriage is settled law in this state. Taylor v. Murphy, 50 Tex. 291. Looking, therefore, to the statement of facts, the admissions of the appellee, as they appear in his pleadings, and to the recitals in the trial court’s judgment, it appears, we believe, that every fact essential under the law to the right of appellants to recover in this case was conclusively established, and that judgment should have been rendered in their favor. In no event under the law and the undisputed facts was appellee entitled to judgment. The trial court therefore erred in submitting the case to the jury.

Appellants complain of several paragraphs of the court’s charge, but if we are correct in the views expressed it becomes unnecessary to a proper disposition of the appeal to consider the assignments of error attacking those charges. We shall take occasion, however, to say that, in our opinion, the most of the paragraphs assailed were not only unnecessary for the guidance of the jury, but were calculated to confuse and mislead them.

The case appears to have been fully developed, and it becomes our duty, under the statute, to render such judgment in this court as should have been rendered in the court below. It is therefore ordered that the judgment of the county court be reversed, and that judgment be here rendered for appellants against the appellee and the sureties on his claimant’s bond for the value of the cotton levied upon, namely, $179.40, together with legal interest and all costs.

Reversed and rendered.

On Motion for Rehearing.

The appellee insists that since there was a statement of facts in the record sent to this court which did not contain any evidence of the value of the cotton in controversy, we erred in holding that the recital in the judgment of the value of the cotton established that fact. There is force in this insistence, and upon further consideration of the question we conclude that possibly we were mistaken in that conclusion.

It is further contended, in effect, that we were in error in holding that it appeared that the case had been fully developed and in rendering judgment, for that reason, in favor of the appellants. A further careful review of the record upon appellee’s motion for a rehearing has led us to the conclusion that this contention should be sustained. This court has heretofore held that where it does not conclusively appear that the case was fully developed in the trial court, the appellate court, instead of rendering judgment, must remand the cause for another trial. Allen v. Anderson & Anderson, 96 S. W. 54. A re-examination of the statement of facts and record convinces us that it does not so appear in this case. The judgment of this court rendering judgment in favor of appellants will therefore be set aside, and the judgment of the county court will be reversed, and the cause remanded.

Reversed and remanded.
      <fc=ol'or other cases see same topic and KEY-NUMBEU in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    WICK et al. v. McLENNAN.
    (No. 5603.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 15, 1916.
    Rehearing Denied May 31, 1916.)
    1. Brokers ■&wkey;86(4) — Action foe Commission — Suffioierov of Evidence.
    Evidence in an action for commissions due on the sale of real estate as agent for defendants, held to sustain a finding that plaintiff was the procuring cause of a sale by defendants to a certain purchaser.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117; Dec. Dig. &wkey;j86(4).]
    2.Brokers <&wkey;56(3) — Contract for Commission — Construction.
    Under an agency contract providing that plaintiff should receive a commission “on all sales to customers furnished and sales closed,” through the efforts of himself and subagents, the agent was not required both to procure the customer and also close the sale before being entitled to a commission.
    [Ed. Note.- — For other cases, see Brokers, Cent. Dig. §§ 86-89; Dec. Dig. <&wkey;>56(3).]
    3. Appeal and Error <&wkey;930(l)_Review-Question of Fact.
    On appeal from a judgment for plaintiff in an action for commissions, the Court of Civil Appeals, in deference to the verdict for him, must take his testimony as true.
    [Ed. Note. — For other eases, see Appeal and Error, Ceat. Dig. §§ 3755, 3756, 3758; Dec. Dig. &wkey;930(l).]
    4. Bartnersiiip &wkey;296(3) — Action for Commission — Sufficiency of Evidence.
    In an action for real estate commissions on certain sales under plaintiff’s agency contract with defendants, evidence held to sustain a finding that there had bqen no dissolution of the defendants’ firm when the contract of sale was made.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 662, 673; Dec. Dig. &wkey;290(3)J
    5. Partnership &wkey;296(3) — Action for Commission — Burden of Proof.
    In an action against several as partners to recover commissions for the sale of real estate under an agency contract, where the evidence was that the land sold had been controlled by the partnership and was controlled by it, unless it had been dissolved, and where the issue submitted was whether it was controlled by the partnership or by one of the partners individually, equivalent to the question whether the partnership had been dissolved before the making of the contract, the burden of proof was on the defendants.
    [Ed. Note. — Eor other eases, see Partnership, Cent. Dig. §§ 662, 673Dec. Dig. <&wkey;>296(3).]

      G. Brokers &wkey;>80(8), 88(14) — Action foe Commissions — Sufficiency of Evidence.
    In such action, finding for plaintiff for $: . 155, held not supported by the evidence and the pleadings.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 130; Dec. Dig. &wkey;86(8), 88(14).]
    7. Evidence <&wkey;138 — Similar Acts — Brokers —Action for Commissions.
    In such action the fact that plaintiff’s wife, in his absence, was asked to identify one of the defendants at a bank to enable him to draw money, was inadmissible to prove that certain checks given by such defendant to plaintiff were given under the same circumstances.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 414, 414% ; Dec. Dig. &wkey;138.]
    8. Brokers <&wkey;85(l) — Action for Commission-Issues — Evidence.
    In such action, where defendants admitted that plaintiff was entitled to a commission on a certain sale, but contended that he was entitled to only half of the amount claimed, and did not claim that they had paid any part of the commission to any one else or were liable to any one else, the purchaser’s testimony that he had a commission contract with plaintiff and that he claimed a commission on such sale which defendant had declined to pay was irrelevant.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 106, 108, 110, 115; Dee. Dig. <i&wkey; 85(1).]
    9. Assignments <&wkey;33 — Construction—Broker’s Commission.
    In an action upon an agency contract whereby plaintiff was to receive commission on the sale of realty to which an assignment was attached, whereby it was agreed between the parties that all commissions earned or to be earned on the contract should be assigned to plaintiff’s wife, signed by both of the parties, the refusal of a charge for defendant, that by reason, of the assignment plaintiff had no cause of action, was not erroneous.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 64; Dee. Dig. &wkey;>33.]
    Appeal from District Court, Bexar County ; W. F. Ezell, Judge.
    Action by L. W. McLennan against Frank W. Wick, J. 6. Fowler, and C. S. Fowler, as partners in the Wick-Fowler Colonization Company, with counterclaim by defendants. Judgment for plaintiff against defendants, and for defendants Fowler over against defendant Wick, and defendants appeal.
    Reversed, and cause remanded.
    Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellants. Swearingen & Ward and John H. Bickett, Jr., both of San Antonio, for appellee.
   MOURSUND, J.

Appellants’ statement of the case is adopted, as follows:

Plaintiff (appellee), in his first amended original petition, sought to recover from Frank W. Wick, J. G. Fowler, and O. S. Fowler, as partners in the Wick-Fowler Colonization Company, certain real estate commissions claimed due on a sale made to J. A. Burton and a sale to P. E. Nispel and E. S. Krause, under a general agent’s contract with said partnership, a copy of which contract was attached to the petition as an ex-Mbit. In addition to stating that plaintiff was the procuring cause of said sales, this petition, in line with the -terms of this contract, alleged that said sales were closed through the efforts of plaintiff, and that the lands sold were controlled by the Wick-Fowler Colonization Company. On the Burton deal, $2,560 was claimed due, as of July 6, 1912, and on the Nispel and Krause deal, $640, it being alleged with reference to the latter that there was a special verbal agreement that plaintiff should have $4 per acre on the 160 acres sold, instead of $2 per acre, the amount provided for exchanges in the written contract.

Defendants! first amended original answer alleged, under oath, that the Wick-Fowler Colonization Company was dissolved about June 1, 1912, and that said partnership had no interest whatever in the Burton sale, aft-erwards made, and denied that the land sold was, at the time of sale, controlled by said partnership. It was further alleged by defendants that, after plaintiff had attempted and failed to sell the land for the Wick-Fowler Colonization Company to J. A. Burton and J. F. Ringler, the defendant Wick, individually, contracted with Mrs. Shaw, the then owner of said land, that she should deed this land to whomsoever Wick designated, and that immediately thereafter, on June 26, 1912, Wick himself procured the contract of sale with J. A. Burton and his wife, under which contract this property was, on July 6, 1912, deeded by Mrs. Shaw to J. A. Burton. It was further denied by the defendants that plaintiff was the procuring cause of this salo, or that same was closed through his efforts, but defendants alleged that, on June 15, 1912, plaintiff was discharged, and notified of his discharge, by the Wick-Fowler Colonization Company for violations of his employment contract, for selling lands in South Texas, other than lands the sale of which was controlled by said firm, and that prior to this time he had been notified of the dissolution of this firm and had himself virtually abandoned his employment with them; that plaintiff had represented that he would not claim a commission on this Burton deal, and that Wick had acted upon this representation when he closed his contract with Burton. With reference to the Nispel deal, it was admitted by defendants that a commission had been earned by plaintiff on same, but defendants alleged that this was an exchange of lands, upon which $2 per acre, instead of $4, was to be paid, and that all of the $320 that was due had actually been paid plaintiff. Attached to this pleading, as an exhibit, was an itemized statement showing commissions earned by plaintiff, and advancements made on same by defendants, and. the balance due defendants of $1,451, which amount defendants asked might be offset against anything found due plaintiff.

Plaintiff’s first amended first supplemental petition, after denying most of the defendants’ allegations, and reaffirming the original contentions of plaintiff, alleged that Wick, on June 15, 1912, had fraudulently canceled plaintiff’s contract with a view to precluding plaintiff from receiving a commission on the Burton deal, which he contended had previously been worked up and all but concluded by plaintiff, and that-Wick’s transactions with Mrs. Shaw were part and parcel of such fraudulent scheme on the part of defendants. Plaintiff further set up the statute of two years’ limitation against defendants’ counterclaim for advancements, also alleging that certain of these items of advancement shown in defendants’ first amended original answer covered the Lower deal and the Neal deal, not charged in the account by plaintiff of the commissions earned, while other items, particularly a check of April 3, 1912, for $200, payable to Mrs. Lula I. Mc-Lennan, represented checks cashed for defendant Wick by plaintiff.

The defendants filed a first supplemental answer, denying the allegations of plaintiff’s first amended first supplemental petition; and prior to the announcement of ready, defendants also filed their trial amendment, which withdrew from the account of commissions paid by defendants to plaintiff the above item for $200, and added to defendants’ account of commissions paid an item of $125, and to the account of commissions earned by plaintiff the like sum, due plaintiff by defendant Wick personally on the Neal deal.

The case was submitted to the jury upon special issues, and on the basis of the jury’s answers to these, judgment was rendered, on May 13, 1915, in favor of plaintiff, and against all the defendants, for the sum of $3,155.04, together with interest and costs, and in favor of the defendants C. S. Fowler and J. G. Fowler for a like sum over against the defendant Frank W. Wick. The amount of the judgment, as shown by the decree, as well as by the verdict of the jury, was made up as follows: $2,560, together with interest amounting to $438.18; $320 on the Nispel deal, together with interest amounting to $53.86; and a deduction of $200, together with interest thereon amounting to $17, representing advancements made by the defendants, and allowed as a credit on the amount due plaintiff.

The questions submitted to the jury, with the answers thereto, were as follows:

“Q. (1) Was plaintiff, McLennan, the procuring cause of the trade which was actually consummated by J. A. Burton and wife, purchasing the 1,280 acres of land in Victoria county, Tex. ? By ‘procuring cause,’ as used in this connection, is meant that the efforts, acts, and negotiations, if any, of plaintiff, McLennan, induced the trade which was actually made. Ans. Xes.
“Q. (2) Did the Wick-Fowler Colonization Company, through F. W. Wick, for good cause, and in good faith, cancel their contract with plaintiff, McLennan, on or about June 15, 1912? Ans. No.
‘‘Q. (3) By whom was the 1,2S0 acres of land purchased by Burton and wife in Victoria county, controlled for purposes of sale at the time the contract of sale was made, between Burton and wife and Wick which was actually consummated? Ans. Wick-Fowler Colonization Company.
“Q. (4) Did the plaintiff, McLennan, state to J. A. Burton, before the making of the contract between Burton and wife and Wick, which was actually consummated, that he (McLennan) would not claim any commission if Burton purchased or traded for the 1,280 acres in question, and did Burton communicate such statement, if any such was made, to Wick, and did Wick rely upon said statement, if any such was made, in closing the trade? Ans. No.
“Q. (5) Did the defendants or either of them agree to pay plaintiff, McLennan, $4- per acre commission on the land purchased by Nispel and Krause in Victoria county, or -was he to receive only $2 per acre as provided in the written contract? Ans. Two dollars per acre.
“Q. (6) What amount do you find from the evidence that L. W. McLennan received in cash as advances or otherwise from Wick and Wick-Fowler Colonization Company that should be allowed defendants as a credit on all commissions earned by plaintiff, McLennan, on the sales made by him under his contract? Ans. Twenty-five hundred and fifteen dollars.
“Q. (7) What amount _ do you find from the evidence was earned by ’ McLennan as commissions on sales of land made By Mm under his contract with the Wick-Fowl er Colonization Company? And in this connection, you are instructed not to consider either the Burton or Nispel deal, in fixing this amount, as these issues are submitted in previous questions. Ans. Twenty-three hundred and fifteen dollars.

By the first assignment of error it is contended that the answer to the first issue submitted to the jury is contrary to and wholly unsupported by the evidence. Tbe testimony of McLennan and Burton shows that Burton became interested in the Shaw land through the efforts of McLennan; that Burton finally agreed, in May, 1912, to buy the land if he could make satisfactory arrangements ; that Wick met Burton and Mc-Lennan in McLennan’s office in Lincoln, Neb., and the price of the Shaw land, as well as the price of the lands owned by Burton to be taken as part payment, was agreed upon. The only difficulty resulted from the fact that the owner of the 1,280 acres wanted $4,-000 in cash. Burton and McLennan tried to borrow $10,000 on Burton’s land, but were unable to do so, so Wick returned to Texas to arrange for some money. Wick returned to Nebraska and closed a deal with Burton and wife, on June 26, 1912, in accordance with the prices agreed upon about June 1st and without requiring any cash payment. He testified that on this trip he again visited Burton’s lands and while there met a man from Iowa who agreed to buy part of the land for cash If Wick became the owner, and appellants contend that as McLennan did not discover the man from Iowa he cannot be held to be the procuring cause of the trade being made. It appears from the testimony of McLennan and his wife that while the trade was being discussed in the early part of June Wick tried to get McLennan to accept the equity in a certain place in Lincoln as his commission. Wick did not testify that he failed to raise the money in Texas, and Ms return to Lincoln indicates that he was prepared to close the trade without exacting any cash from the Burtons. It is not at all clear that he would not have closed had he not discovered the man from Iowa. It is frequently the case that terms are changed and even the price, and frequently many things conduce to cause a trade to be finally closed. It is indeed difficult to determine sometimes whether or not the agent is the procuring cause of a trade being consummated, but we think the evidence is sufficient in this case to justify the jury in finding that the sale to Burton was induced and brought about by McLennan. Hancock v. Stacy, 103 Tex. 219, 125 S. W. 885; McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721; same case in Court of Civil Appeals, 98 S. W. 913.

It may be said in this connection that McLennan sued upon a contract which provides that McLennan is to receive a commission “on all sales to customers furnished and sales closed through the efforts of said second party and of his subagents.” It was not contended that this clause is ambiguous, and no testimony was introduced to show what was meant thereby. Does it mean that Mc-Lennan must not only procure the customer, but must also close the sale before being entitled to commission? We think not. The parties do not appear to have so construed it, for Wick did not refuse to pay on any such ground. The word “sales” is mentioned twice, thus indicating an intention to pay commissions not only on all sales to customers furnished by McLennan, but also on all sales which should be closed by him.

Assignments 1, 2, and 3 are overruled.

By assignments 4 and 5 it is contended that the uncontroverted evidence shows that when the second Burton sale was closed Wick was the only person who controlled, for the purpose of sale, the 1,280-acre tract of land purchased by Burton. There can be no doubt from the evidence that the Wick-Fowler Colonization Company had controlled this land, and still controlled it at the time of the contract, unless the members of said firm had dissolved their partnership. Wick testified the firm was dissolved on May 29, 1912, by verbal agreement between Wick and J. G. Fowler, and the other members of the firm fixed the time at between May 25 and June 1, 1912. They testified that the firm was not interested in the Burton deal as finally made, but that it was made by Wick individually. The agent of the owner of the land testified to making an oral agreement with Wick, individually, between June 15 and June 20, 1912. It appears that Wick at that time and also when he closed the deal with Burton stated that the partnership had been dissolved. On the other hand, if McLennan is to be believed, and we must take his testimony as true in deference to the verdict of the jury, Wick said nothing to him about the dissolution of the firm at the time the trade was being discussed during the first week of June, 1912. Taking this testimony as true, it appears that Wick failed to notify McLennan that he no longer had any contract, but on the contrary telegraphed him on June 1st from Omaha, and availed himself of his services for several days without saying a word about any dissolution of the firm. It further appears that on June 15th Wick wrote McLennan a letter signed in the firm name, canceling his agency contract on the ground that its terms had been violated by him, and stating that he would not be recognized “as having any interest in any sales or real estate transactions which we may negotiate in the future.” No mention is made in this letter of the dissolution of the firm. A draft given in the Nispel deal, dated July 20, 1912, payable to the order of the Wick-Fowler Colonization Company and so indorsed by Wick as manager, was introduced in evidence. It appears that there was a corporation by the name of Fowler Bros. Land Company, of which C. S. Fowler was president, and J. G. Fowler secretary and treasurer. Two letters to McLennan by this corporation appear in the statement of facts, one dated June 12, 1912, in which receipt of a letter dated June 7th is acknowledged, and promise made to take care of him if he should come down on the 18th. This letter was signed by C. S. Fowler as president of the corporation. The other was dated February 15, 1913, in reply to two letters by Mc-Lennan. It stated that the writer, J. G. Fowler, was waiting until he could communicate with Wick, in order to give a definite answer concerning the various phases of Mc-Lennan’s letters. Prior to the execution of the agency contract sued upon McLennan had a similar contract with Fowler Bros. Land Company. Wick signed all checks to McLen-nan, and had the general management of the business. Letter heads of “Wick-Fowler Colonization Co.” were introduced, on which letters signed by Wick, written November 16, 1912, hud October 29, 1912, were introduced in evidence. McLennan testified he never heard of the dissolution of the firm until April, 1913, when he came to see Fowler Bros, about paying his commission.

We believe the foregoing is a fair statement of the evidence upon the question raised by appellant. The court placed the burden of proof upon defendants upon the issue, and the jury found'there had been no dissolution of the firm at the time the contract of sale was made. We have carefully considered the matter, and conclude that the jury, in the exercise of its right to judge of the credibility of the witnesses, could arrive at such conclusion.

In this connection we will consider the contention made under assignment No. 6 to the effect that the court erred in instructing the jury that as to question No. 3 the burden of proof .was upon the defendant. The evidence showed that the land had been controlled by the partnership and was still controlled by it, unless it had been dissolved. This is recognized by appellants, for under the two preceding assignments the sole contention is made that the partnership had been dissolved about May 29th, and that therefore the land was controlled by Wick individually. The court, in framing the question, stated that the jury should answer: “By Wick-Fowler Colonization Company or by Wick individually.” This was, of course, an assumption that it was controlled either by the firm or by Wick, which assumption was correct under the evidence, and no objection was made thereto. We think that for all practical purposes the issue can be treated as the equivalent of the question whether the partnership had been dissolved prior to the making of the contract, and on such issue it appears to us that it would have been improper to place the burden on plaintiff of establishing the negative. We therefore overrule the sixth assignment.

Appellants contend that the answer to question 7 is unsupported by the evidence and the pleadings. This answer is a finding that McLennan had earned as commissions on sales made by him under his contract, exclusive of the Nispel and Burton deals, the sum of $2,315. Defendants pleaded that plaintiff was indebted to them in the sum of $1,451 by reason of the fact that the Wick-Fowler Colonization Company had advanced and paid to him that sum in excess of commissions earned by him. The items paid him were set out, the aggregate thereof being $2,-853.50. The items of commission earned were set out, aggregating $1,402.50, which, however, included $320 on the Nispel deal. Plaintiff denied that said account showed all commissions which were earned by him and .were due to him by the company, and denied there was any balance due by him to the defendants. He specially denied the justness of the charge of $100 on June 5, 1911, and $100 on July 8, 1911, on the ground that they were given him in payment of his commission for trading to one John Neal a certain brick building which he alleged was the property of defendants. He also denied the justness of the charge of $675 on December 4, 1911, and of $100 on December 9, 1911, because said sums were paid him in settlement of his commission for the sale of lands of D. E. and R. A. Lower. He alleged that he was not given credit for any of such commissions in the account of defendants, though he is charged with payment of same. Defendants denied these allegations. In a trial amendment defendants alleged that to the items of commissions there should be added $125 due plaintiff as commission on a sale to John Neal, made by Wick personally, and $176 to the account of sums paid plaintiff, which item covered the payment by the defendants of said $125, together with other amounts incurred by plaintiff as expenses. These pleadings made the issue whether, aside from the Burton and Nispel deals, plaintiff was indebted to defendant. The court, in trying to have this issue determined, framed question No. 7, .without objection from either party, so as to require a finding as to amount of commissions earned under the contract. The jury found a greater amount than was even suggested by plaintiff, for the only items in a'ddition to those mentioned in defendant’s account suggested by plaintiff are the following: Amount on Lower deal $750; amount on Neal deal $200; amount on Bennett deal $176.80. These amounts, added to the $1,082.50, make a total of $2,209.30, while the jury found the amount to be $2,315. It also appears that the Bennett item was not pleaded by plaintiff, and he testified it was earned from Wick individually and paid by him, and that it did not appear on either side of the account pleaded by defendants. Defendants by their trial amendment attempted to add the amount of $176.80 to their account of advancements made, but upon the theory that it included the commission on the Neal deal and certain expenses. We cannot say whether the jury added such amount to each side of the account in answering questions 7 and 8. While there is evidence that defendants charged plaintiff with payments made in settlement of the Lower, Neal and Bennett deals, there is no evidence that these sums were earned as commissions under the contract. They were all earned before the contract was made, and the Neal and Bennett ones were paid before it .was made, if plaintiff’s testimony is correct. The Lower deals were not completed until in December, 1912, and according to plaintiff the commissions were then paid, but the contracts were- signed before the contract between plaintiff and defendants was made. Appel-lee contends that even if we find in accordance with appellants’ contention the error is harmless, because the pleadings and evidence would warrant the court in finding the amount of expenses paid for defendants by plaintiff and the amount of advances by plaintiff to defendants. This contention is based on the theory that issues not submitted and not requested to be submitted are to be found so as to support the judgment, provided there be evidence upon which they can be based. The court submitted in question 8 to find what amount plaintiff received in cash as advances or otherwise from the company that should be allowed defendants as a credit on all commissions earned by plaintiff on the sales made by him under his contract. The jury answered $2,515. In answering this question it was the duty of the jury to exclude all items paid plaintiff to pay expenses justly chargeable against defendants and all items, if any they found, representing money drawn by McLennan for the accommodation of Wick and received by the latter. It is apparent that the jury has passed upon the very issues that aijpellee says this court can. pass upon. How the jury could have arrived at the answers to questions 6 and 7 is a mystery, but the answer to No. 6 is not attacked and must stand, while the answer to No. 7 cannot be sustained.

Assignment No. 7 is sustained.

Plaintiff testified that certain items in the account of advancements pleaded by defendants were for money not paid to him; that Wick drew cheeks on the Victoria bank, and, desiring to cash same in Lincoln, made them payable to McLennan, who cashed them and handed the money to Wick. Wick denied this testimony. Thereupon he was asked if he had not induced Mrs. McLennan, in the absence of her husband, to accompany him to a bank in Lincoln, and indorse a check for §200, payable to her, and whether the money was not paid to him and retained by him. He admitted giving the check and receiving the money, but testified it was a payment on her husband’s commission account, and that after they left the bank he gave her the money. He stated that on account of some trouble with the bank Mrs. McLennan did not want to draw the money herself. Plaintiff then introduced the depositions of Mrs. Mc-Lennan in which she stated that Wick asked her to indorse for purposes of identification, and that she received no part of the money. Plaintiff also introduced the depositions of the employs of the bank, who testified that Mrs. McLennan hesitated to indorse, whereupon Wick said, “This is only for purpose of identification;” that he paid the money to Wick. All of this testimony relating to the transaction between Wick and Mrs. McLen-nan was objected to as irrelevant, and on the further ground that the witness could not be impeached on a collateral matter. We do not think that the fact that Mrs. McLennan, in the absence of her husband, was asked to identify Wick at the bank so as to enable him to draw money, would tend to prove that certain checks given by Wick to McLennan were given under the same circumstances. Stuart v. Kohlberg, 53 S. W. 596; Drumm-Flato Corn Co. v. Meat Co., 33 Tex. Civ. App. 587, 77 S. W. 634; Dooley v. Boiders, 128 S. W. 690; Kingsbury v. Bank, 30 Tex. Civ. App. 387, 70 S. W. 551. Assignments 8, 9, and 10 are sustained.

By the eleventh assignment complaint is made of the admission of the testimony of P. E. Nispel to the effect that he had a commission contract with McLennan, and that he claimed a commission of $2 per acre on the Nispel-Krause deal, but defendants had not paid the same, and in fact had declined, to pay it. Plaintiff sued for commission on the Nispel-Krause deal, and defendants admitted he was entitled to a commission, but there was a contest as to the amount, defendants contending it was §320, and plaintiff that it was §640. No contention was made by defendants that they had paid any part of the commission to any one else, or that they were liable for same to any one else. Nis-pel’s testimony was irrelevant to the only issue to be decided. The assignment is sustained.

Appellants’ twelfth assignment of error reads as follows;

“The court erred in refusing to give charge No. 1, requested by the defendants, which is as follows: ‘Tbu are instructed to return a verdict for the defendants in this case for the reason that it appears from the contract and accompanying transfer thereupon introduced in evidence in this case, that plaintiff’s claim for commission under said contract was duly assigned by the plaintiff to Lula I. McLennan, and therefore the claim for said commissions, if any, is due and belongs to the said Lula I. McLennan, for the reason that the contract introduced in evidence and the assignment attached to same, which said assignment was also introduced in evidence by the plaintiff and defendants, shows that the proceeds due and to become due to plaintiff, if any, under said contract was assigned to Lula I. McLennan, and the plaintiff therefore has no cause of action for same.”

The instrument referred to in said assignment, which was attached to the contract sued upon, reads as follows:

“October 24, 1911.
“It is hereby agreed between the first and second parties to the above contract that all the commissions earned or to be earned on this contract shall be assigned to Lula I. McLennan. [.Signed] L. W. McLennan. Wick-Fowler Colonization Oo., by Frank W. Wick, Mgr.”

There is no testimony with' regard to the situation of the parties, nor of any acts or declarations from which the intention can be ascertained. Must this instrument be construed as an assignment to Mrs. McLennan of the commissions, or is it merely an unenforceable promise or agreement to make a future assignment? Literally, it is the latter, but it is not at all certain that the literal meaning was intended. However, construing the instrument with the light before the court, we are not prepared to say that he erred.

The judgment is reversed, and the cause remanded.
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