author: JENKINS, J.

text:
    CHARLES B. SMITH & CO. v. DUNCAN.
    (No. 5331.)
    (Court of Civil Appeals of Texas. Austin.
    April 8, 1914.
    On Motion for Rehearing, May 20, 1914.)
    1. Trial (§ 156) — Questions lor Jury — Non-suit.
    In determining whether there is sufficient evidence to carry an issue to the jury, only plaintiff’s evidence should be considered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ .354-356; Dec. Dig. § 156.]
    2. Sales (§ 8S) — Actions—Purchase Price.
    In an action for the purchase price of a large quantity of cotton, which the seller claimed was to be fixed by the market price in a certain locality, evidence for plaintiff held sufficient to carry the issue whether that was the agreement between the parties to the jury.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 248-250; Dec. Dig. § 88.]
    3. Sales (§ 77) — Actions—Notice oe Sale.
    Where cotton was sold under an agreement that the sale price might be fixed at the market price of any day between delivery and the succeeding March, the seller, who notified the buyer’s clerk, and attempted to notify the buyer, but was unable to see him, because of his illness, is entitled to have the sale price fixed as of the day he selected, notwithstanding he was unable to personally notify the buyer.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 208-212; Dee. Dig. § 77.]
    4. Sales (§ 77) — Contracts—Construction.
    Where cotton was sold under an agreement that the sale price could be fixed at the market price of any day selected by the seller between delivery and the succeeding March, and on the day selected by the seller the buyer was ill, and could not personally be notified, the buyer ratified the seller’s selection, where, upon finally receiving notice of the seller’s demand, he promised settlement as soon as he recovered.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 208-212; Dec. Dig. § 77.*]
    5. Sales (§ 77*) — Contracts—Construction —“Our Basis Limit.”
    Where cotton was sold under an agreement for settlement on the buyer’s basis limit at any time between delivery and March 1st, the seller’s option as to date, the buyer could not, because he was out of the market for two months, preclude the seller from selecting a day .during one of those months as basis for settlement, for the words “our basis limit” usually mean the same thing as the market price, and the agreement that the seller should have his option as to selecting the day carried an implied agreement that the buyer should be in the market during the time specified, or, if not, that his basis would be the market price.
    LEd. Note. — For other cases, see Sales, Cent, Dig. §§ 208-212; Dec. Dig. § 77.]

      6. Appeal and Error (§ 1068) — Review-Harmless Error.
    The giving of an erroneous instruction, which the verdict clearly showed the jury disregarded, was harmless.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    7. Sales-(§ 54) — Construction—Interpretation op Parties.
    Where a buyer acquiesced in the seller’s interpretation of a contract for the sale of cotton, the price of which was to be determined with reference to the value of cotton thereafter, the courts will enforce the contract as construed by the parties; hence the refusal of an instruction correctly submitting the question as to the rights of the parties in case their minds never met was not error.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 152; Dee. Dig. § 54.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Action by E. M. Duncan against Charles B. Smith, doing business as Charles B. Smith &■ Co. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John B. Durrett, of Belton, for appellant. J. H. Evetts, of Belton, Winbourn Pearce, of Temple, and A. L. Curtis, of Belton, for ap-pellee.

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

   JENKINS, J.

On November 11, 1912, appellant, under the name of Charles B. Smith & Co., and appellee entered into a contract, whereby appellee agreed to sell and deliver to Chas. B. Smith on that date, and on subsequent dates, cotton, upon which appellant was to advance to appellee at the time of delivery about ten cents per pound, balance to be paid for at a price to be named by appel-lee between October 11, 1912, and March 1, 1913. This contract was oral, being made over the phone. Appellant at that time resided in Belton, and appellee in Killeen, some miles distant from Belton. There is no disagreement as to the terms of said eon-tract, except that appellant contends that the price was to be determined by his “basis limit” on the day selected by appellee, and appellee contends that the price was to be the market price “basis middling” on said day in Belton. It is agreed that under this eontract appellee delivered to appellant 618,-431 pounds of cotton, which graded 281/4 points under middling. On the 27th day of November, 1912, appellee went to the office of appellant, for the purpose of informing him that he had selected that day as the one upon which to demand settlement for the cotton. - Appellant was not in his office, but was at home sick. Appellees notified appellant’s clerk, who was in .charge of his office, that he desired a settlement on the basis of the market price of cotton on that day, which was 125/ie. Thereafter, on the same day, appellee went to the home of appellant, for the purpose of seeing him and closing the deal, but was informed by appellant’s wife that appellant was too sick to see him. On the following day appellee requested the brother of appellant to go to see appellant, and inform him that he (appellee) had elected to close the deal on the previous day. The evidence leaves it uncertain as to whether or not appellant’s brother discussed the matter with him at that time. Appellant remained sick and unable to transact business until the 20th of December, and was confined to his room until some time later. On December 20, 1912, appellee addressed the following letter to Smith & Peyton Hardware Company, Belton, Tex. Appellant was the president, business manager, and principal owner of the business of Smith & Pey-ton Hardware Company, and appellee supposed that they were interested in the deal. Such, however, was not the fact, as Smith transacted his cotton business under the name of Chas. B. Smith & Co. on his individual account. The letter referred to reads as follows:

“Dear Sirs: Regarding the settlement on the 1,188 bales of cotton which I shipped to you during this season on consignment, about which I have had considerable correspondence with your office, over the phone and otherwise, I will say that I will be glad to get an early settlement on this account. I am winding up my year’s cotton business, and would like to -get this off my hands. While there have been times when I could have sold for considerably more money, I will expect to settle on the basis of 12 ¡¡A a B/M, as that was the price this was worth when I asked for settlement on the day before Thanksgiving last month. I took the matter up with your Mr. Stockton at that time, and, as Mr. Smith was not able to attend to the matter personally, I told Mr. Stockton that I would expect to settle on that basis. I am in need of the money, and, if agreeable to you, I will draw for the balance due me, guaranteeing both the weights and the grades. Hoping to be able to hear from -you soon, I am, yours truly, [Signed] F. M. Duncan.”

On December 23d, appellant wrote the following reply to said letter:

“Mr. E. M. Duncan, Killeen, Texas. Dear Sir: Your letter 20th inst. to Smith & Peyton Hardware Co. handed me today. While I own four-fifths of this concern’s stock, it has no connection with my Western cotton business; hence Mr. Stockton has no authority to take up the matter with you. The moment I am able to get up, you and I will make satisfactory settlement of the consigned cotton. My doctor says it looks like January 1st. Yours truly, [Signed] Chas. B. Smith & Co., per O. M. S.”

On the same day appellant sent appellee a draft for $3,000. At the market price of cotton in Belton on November 27, 1912, basis middling, the total value of the cotton delivered to appellant by appellee was $73,-361.37; allowing a credit for. the amount paid by appellant, there would still be due appellee $6,570.54, which is the exact amount found by the jury, and for which judgment was rendered in appellee’s favor.

Under his first, second, and third assignments of error, appellant insists that there was no evidence that the price of cotton was to be fixed by tbe market price of cotton in Belton, Tex., but that the uncontra-dicted evidence showed that the price was to be fixed by appellant’s “basis limit.” In support of this contention, appellant testified that this was the contract which he made with appellee over the phone, and that on the following day, he sent appellee the following letter of confirmation:

“Oct. 12, 1912. Mr. F. M. Duncan, Killeen, Texas — Dear Sir: Confirming our conversation over the phone last night, beg to say that we will advance ten cents per pound, basis middling, on such cotton as you may ship us. We to use the cotton and settle with you on .oun basis limit at any time b.etween now and March 1st, 1913, your option as to date. When you report the cotton as sold to us, settlement will be made between us at the difference between ten cents and the basis price you sell at. No charge to be made for interest or insurance. We presume you are shipping the 300 bales today. If you have more we will be glad to use it, not exceeding 1,000 bales on or about the same basis. Yours truly, Charles B. Smith.”

While the testimony of appellant, corroborated by this letter, indicates that the price was to be fixed on Ms “basis limit,” yet, in determining whether or not there is sufficient evidence to raise an issue for the jury, and whether the evidence sustains the finding of the jury, we must look to the testimony of appellee, and not that of appellant. Appel-lee testified that the contract, which, as above stated, was made over the phone, was that the cotton was to be paid for at the market price in Belton, basis middling; that he never saw this letter of confirmation until after this controversy arose between the parties. It is true that he also testified that, if he had received such letter, he would probably have accepted it as a correct statement of their contract, but he explains this by saying that the words “our basis limit,” In the letter, as he understands them, mean the same thing as the market price. He produced testimony of a cotton dealer of long experience, who testified to the same effect. For the reason that the testimony was sufficient to raise the issue as to the price being fixed by the market price at Belton, and also for the reason that the evidence is sufficient to sustain the finding of the jury that such was the contract, we overrule appellant’s first, second, and third assignments of error.

Appellant insists under his fourth, fifth, and sixth assignments of error that the judgment herein should be set aside, for the reason that the court erred in submitting to the jury the issue as to the market price of cotton in Belton on November 27, 1912, and that the jury erred ip finding such market value; for the reason that there was no evidence that appellee notified appellant on that date that the cotton was sold to him as of that date. It is true that appellee did not personally notify appellant on said date that he then desired to close the deal, for the reason that appellant was sick, and appellee was not permitted to see him. Appellee went to his office and notified his clerks, who were there in charge of his business, and went to his house and attempted to personally notify appellant, but was not 'allowed to see him on account of his illness. We think this notice was sufficient. Appellee did all that he could to notify appellant that he desired to close the deal on that date. It has frequently been held that, where a party is required to notify another of given facts, a written notice thereof, postage prepaid, and deposited in the United States mail, is sufficient. Had appellee mailed such' written notice, it would probably have been delivered at the office of appellant, but would not have been delivered to him, because he was too sick to receive the same. In the instant case appellee went in person to the office of appellant, notified his clerk that he desired to close the deal on that day, and, while the clerk was not authorized to settle with him for the cotton, we think notice to him was sufficient notice to appellant; especially in view of the fact that appellee thereafter, on the same day, went to the residence of appellant and attempted to notify him in person.

We think the fourth, fifth, and sixth assignments should be overruled for the further reason that appellee notified appellant on December 20th, that he had elected to close the deal on November 27th, at the then market price of 12s/18. On December 20th, as also on December 23d, the market price of cotton at Belton was 12%. It is true that, under the contract, appellee would not have had the right upon , any given day to name a prior day as the one upon which the price of the cotton was to be fixed, but, when he notified appellant that he had named a prior day, and had so notified appellant’s clerk, from which appellant must have inferred that appellee was relying upon said notice being sufficient, if appellant was not willing to accept said notice as being in compliance with the contract, he should have so informed appellee. Had he done so, appellee might have waived his demand made on the 27th of November, and named the 23d of December as the date on which he would close the deal. On this day, as above stated, cotton was worth three sixteenths above the price at which it was selling on November 27th; but, instead of notifying appellee that he did not accept the notice given to Mr. Stockton as sufficient, while stating that Stockton had no authority to take up the matter, still, in said letter of December 23d, he said:

“The moment I am able to get up, you and I will make satisfactory settlement of the consigned cotton. My doctor says it looks like January 1st.”

This, to our minds, is conclusive of the ' fact that he accepted the notice given to Stockton on November 27th as sufficient, else why did he say:

“You and I will make satisfactory settlement the moment I am able to get up.”

If the deal had not been closed on November 27th, appellee still, had until March 1st to close the same, and the settlement would be made when he should do so, and not as soon as appellant got up. This disposes of the matter complained of in the seventh assignment of error.

Appellant contends that appellee could not have exercised his privilege of closing the deal at any time after the 26th of November, and prior to some time about the middle of January, for the reason that the contract was that the price was to be fixed on his “basis limit,” and that on account of his illness he was not in the market, and had no basis limit within those dates. Even if appellant was correct in his contention that the price was to be fixed on his basis limit, we do not think that by retiring from the market within the period named he could prevent appellee from naming a day upon which to close the contract, but that, in such event, appellee would have the right to recover for the market value of cotton on the day selected by him. The testimony in this case of cotton experts is to the effect that the words “our basis limit,” commonly used in such contracts, means the same thing as the market price, for the reason that, although different buyers do occasionally have different basis limits from that of the market price, yet usually the limit of all buyers is the market price; for which reason it is to be presumed, in the absence of evidence to the contrary, that, if a buyer was in the market on a given day, his limit would be the market price; and it will therefore be presumed that, where a buyer has retired from the market on a given day, if he had been in the market at that time, his basis limit would have been the market price. The contract in this case certainly contemplated that appellant would remain in the market until the 1st of March.

The court instructed the jury that, if they found from the evidence that appellee never at any time prior to March 1, 1913, notified appellant that he desired to close the contract, they would find for appellee the market price of cotton in Belton on February 28, 1913. Appellant complains of this charge, for that the contract fixed the price to be as of a date selected by appellee, and contends that, if appellee never selected any date within the given time, then the measure of his liability would be the value of the cotton on the respective days of delivery of same. If it be conceded that the charge of the court was error in this regard, still it is immaterial in the instant case, for the reason that the jury were authorized to fix the price as of February 28th only in the event that they found that appellee had not notified appellant on the 27th day of November that he selected that day as the time for closing the contract. The verdict of the jury necessarily involved a finding that appellee had notified appellant on November 27th; and therefore the charge complained of could not have been considered by the jury. As evidence that it was not considered by the jury, the market price of cotton on February 28th was more than that allowed by the jury, but was the exact amount that would have been due appellee at the market price on November 27, 1912. Appellant cites 35 Cyc. 104, 105, and Carter v. McNeeley, 23 N. C. 448, cited in the note to the text, in support of his contention that, if appellee did not exercise his option before March 1st, the measure of his recovery would be the market price when the cotton was delivered. The case of Carter v. McNeeley, supra, is the only authority cited in Cyc. in support of the proposition, and, when all the facts of that case are considered, we do not believe that it supports the text. In that case, as appears from page 141 of the same report, the parties entered into the following contract :

“A. G. Carter agrees to sell his crop of cotton to Thomas McNeeley and to deliver the same picked and unpacked at McNeeley’s factory, and McNeeley agrees to pay Carter $1,000 down, and the balance in three, six, and nine months, equal payments, with interest from the time the cotton shall be delivered. The price of the cotton to be fixed in the following manner: Said Carter is to select either Fayette-ville, Cheraw, or Camden, and to name a time; and the prices are to be regulated by the prices at the named market and time. The price to be the same as good crops of cotton sell for at the time, and fifty cents to be deducted for hauling per hundred pounds in all cases. The price to be fixed upon by the 1st June next. This 25th January, 1837. [Signed] Thomas McNeeley. A. 6. Carter.”

Carter not only did not name a time within the period agreed upon, but he did not name a place.

“Upon the trial, the defendant offered to prove that immediately after the execution of the agreement it was said between the parties that, if no time and place should be appointed, the 1st of June should be the day; but the court excluded the evidence. * * * If it had been received, it would not have supplied the defect; since it only went to designate a day, but not one of the places named * * * at which the market price was to govern.” 23 N. C. 450.

It was the contention of McNeeley that, inasmuch as Carter had failed to fix any place or time, as provided in the written agreement, he should have the cotton without paying anything therefor. The court overruled this contention, and held that, inasmuch as there was a failure of the contract to provide for any price, it be construed that the purchaser was to pay the market price at the time and place of delivery. This is a correct construction of a contract of purchase where property is sold and delivered without any agreement as to the price to be paid; and the decision of the Supreme Court of North Carolina in the Carter-McNeeley Case was in accordance with the equities between the parties. But that the court did not intend to hold, as a hard and fast rule of law, that in such case the market price at the time and place of delivery should control is sliown by the concluding portion of tbe opinion, as follows:

“The principle on which we sustain this action must be taken with this qtialification,' that the plaintiff cannot, by the omission to name a day or place, and by any other default on his part, deprive himself of a remedy on the special agreement, and resort to the implied contract, so as thereby to get a higher price than he would, had he literally or duly observed the terms of the special contract. If, therefore, the defendant had shown that the value of cotton at his factory was greater on the days of delivery than it was at Fayetteville, Cheraw, or Camden on any day the plaintiff could have named, within the period allowed for that purpose, then the special agreement could have been properly invoked, as containing a price beyond which the seller could not go, but nothing of the kind appeared on the trial.”

It has been uniformly held that a contract which gives the seller the option to fix the price within a given period means on some day subsequent to the day of sale. Therefore to hold that the price must be taken as of the day of sale is to disregard the contract. While, for the reasons above given, it is unnecessary for us to hold that, upon failure of the seller to name any day, the law would fix the day on which the time expired, still we are inclined to believe that the contract should be so construed. The seller on the last day could have fixed that day, and could not have fixed any prior day; and we see no good reason why, such being the case, the law should not fix the last day on which the option might be exercised as the day of settlement.

To our minds, the most serious objection to the judgment in this case is raised by appellant’s ninth assignment of error, to the effect that the court erred in refusing to give a special charge requested, which, in substance, was that, if appellant offered to buy at a price to be fixed on his “basis limit,” and the appellee understood that the offer was that the price was to be fixed by the “market price,” then the minds- of the parties did not meet, and there was no agreement between them as to the price to be paid for the cotton; and in such case the law would fix the price by implication at its market value at the time of its delivery. This requested charge embodies a correct proposition of law, and it cannot be said that there was no evidence raising such issue, for appellant testified that such was his understanding of the verbal contract. However, we do not think that the error in refusing this charge is sufficient grounds for reversing this case. Whatever may have been appellant’s understanding of the contract, he was certainly informed by appellee’s letter of December 20th that he understood that the-market price at Belton was to govern; and appellant’s reply and his action at that time clearly indicate that he accepted this view of the contract, and was not relying upon the fact that, by reason of their divergent views as to what the contract was, he was entitled to a settlement at the market price at the time of delivery. If such had been the case he would, on December 23d, have been indebted to appellee in the sum of only $92.65, but on that day he remitted to appellee $3,-000, and stated in his letter that he would settle with him as soon as he got up, which must be taken to mean that he would pay him the balance owing him. This was, in effect, a statement by appellant, not only that he accepted November 27th as the date upon which the transaction was closed, but also that his “basis limit,” if he so understood the contract, meant the same thing as the market price. If the meaning of the language used in a contract be doubtful, and the parties thereto have given an interpretation to the contract and acted thereon, courts will accept and enforce such construction as being correct. Waterworks Co. v. Cleburne, 13 Tex. Civ. App. 145, 35 S. W. 733; 9 Cyc. 588-590.

To say the least of it, substantial justice has been done in this ease; and, finding no reversible error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

We adhere to our conclusion that the evidence was sufficient to sustain the verdict that the value of the cotton was to be fixed by the market price in Belton. We were in error in saying that appellant remitted to appellee $3,000 on December 23d. The remittance was on December 20th. We still think, however, that the evidence is sufficient to show that appellant accepted appellee’s version of the contract that the price was to be fixed by the market price in Belton, and that appellee had elected to close the deal on November 27th.

But, if the contract provided that the price at the time selected by appellee was to be fixed by appellant’s “basis limit,” appellant could not deprive appellee of his option to fix the day of settlement by retiring from the market and having no basis limit. Appellant’s failure to have a basis limit on November 27th, and for about two months thereafter, was occasioned by his own default, and it matters not that it was on account of his illness. Appellant having deprived appellee of the privilege of settling at the time selected by him, on appellant’s basis limit, if such was the contract, appellee was entitled to the market price at that time. The evidence shows that,, if appellant had had a basis limit on November 27th, in all probability it would have been the same as the market price, though there are occasional exceptions to that rule.

If appellee did not notify appellant on November 27th that he elected to close the deal on that day, he did all that the contract contemplated that he should do in that regard. He went to appellant’s office, and notified those found in charge, whether they were appellant’s clerks or not; went to his house, and was denied admission, and tried to send word to appellant the next day by his brother that he had elected to close the deal on the previous day, though cotton had advanced, and supposed that his message had been delivered. If appellant did not receive the notice, his failure to do so was Occasioned by his own acts, and it matters not that on account of his sickness he could not avoid such acts. Appellee, having fully discharged his duty, should not be made to suffer on account of the misfortune of appellant.

Believing that we did not err in our opinion herein, appellant’s motion for a rehearing is overruled.

Motion overruled.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    TRINITY & B. V. RY. CO. v. DODD.
    (No. 7130.)
    (Court of Civil Appeals of Texas. Dallas.
    May 2, 1914.
    Rehearing Denied May 23, 1914.)
    1. Master and Servant (§ 293) — Action for Injury to Servant — Instructions.
    In an action for the death of an engineer caused . by a switch tender failing to throw a switch, a charge that if the engineer blew the whistle to signal the switch tender, etc., and that, thereafter he received from the switch tender, or from the switch tenders, a go-ahead signal, etc., was not erroneous in not requiring the engineer to give the proper signal for the switch, since the jury could not have understood that any other than the proper signal was meant.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.]
    2. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    Though such charge were erroneous in submitting whether both switch tenders gave the engineer the go-ahead signal, it was harmless, as there was no evidence that such go-ahead signal was insufficient for the engineer to act on.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    3. Master and Servant (§ 289) — Action por Injury to Servant — Question por Jury.
    In an action for the death of an engineer caused by the failure of the switch tender to throw a switch, the court properly submitted to the jury the question whether the engineer had the right to rely upon a go-ahead signal received from the switch tender.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    4. Appeal and Error (§ 759) — Assignment op Error — Suppiciency.
    An assignment complaining of a charge will not be considered when the charge complained of is not copied into the brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    5. Trial (§ 260) — Requests—Instructions Already Given.
    A special charge which was sufficiently covered by the court’s main charge was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.]
    6. Master and Servant (§ 289) — Actions por Injury to Servant — Question por Jury.
    .In an action for the death of an engineer caused by the failure of the switch tender to properly throw the switch, where there was in evidence a rule requiring the engineer to have his train “under full control” in approaching the switch, what “under full control” meant was properly submitted to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    7. Trial (§ 194) — Action por Injury to Servant — Instructions.
    In an action for the death of an engineer caused by the failure of switch tenders to properly throw switches, where there was evidence that the engineer had the right to rely upon a signal received from one only of the switch tenders, a request requiring him to receive a signal from all was properly refused because upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    8. Trial (§ 260) — Bequests—Instructions Already Given.
    There was no error .in refusing requests already sufficiently covered by other instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    9. Trial (§ 133) — Harmless Error — Argument op Counsel.
    If remarks of counsel in argument to the jury were inflammatory, they were not prejudicial, where the court withdrew them from the jury and instructed them not to consider them.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    10. Trial (§ 114) — Argument op Counsel.
    In a personal injury action, it was legitimate argument for counsel for plaintiff to state in his argument that he believed that $35,000 damages would be fair and reasonable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275-278, 296; Dec. Dig. § 114.]
    11. Appeal and Error (§ 1004) — Review— Verdicts — Amount op Recovery.
    A verdict will not be set aside because excessive, unless it is shown that the jury were actuated by passion, etc., or that some improper influence was exerted upon them.
    [Ed. Note. — For other cases, see Appeal and Error,] Cent. Dig. §§ 394iG3947; Dec. Dig. § 1004. ]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by Sadie Dodd, administratrix, against the Trinity & Brazos Valley Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. Wolfe, Wood & Haven, of Sherman, for appellee.

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

   RAINEY, C. J.

Sadie Dodd, widow, and administratrix of the estate of Weaver Dodd, -sued the appellant for damages for personal injuries to said Weaver Dodd, which resulted in his death, caused by the derailment of one of appellant’s trains on which Weaver Dodd was locomotive engineer. . Defendant answered by general demurrer, general denial, and specially contributory negligence, violation of rules of the company, etc. A trial resulted in a verdict and judgment for appellee, and the railway company appeals.

Conclusions of Fact.

Weaver Dodd at the time of his death was in the employ of appellant as engineer and was operating a locomotive from Galveston, intending to go to Tom Ball Station on appellant’s road. At Virginia Point his train was derailed and he was hilled. At the north end of the causeway that spans an arm of the bay, the railroads installed switches for diverging trains to their respective tracks. Preparatory to the introduction of electricity for the operation of the switches, they were being operated by switch tenders, stationed at either end. When Weaver Dodd approached said switches, traveling 15 miles an hour, he gave the necessary signals for placing or aligning the tracks. This signal was answered by Weiiler, the first switch-man, with a “highball,” meaning “go ahead.” Then Cowart, the second switchman, threw the wrong switch, leaving open the derailed track upon which Dodd ran his locomotive and wrecked the same, by which he was killed. The second switchman was negligent in the- discharge of his duty, which negligence was the proximate cause of Dodd’s death. Dodd did not contribute to his death by the failure to observe any necessary rules for the operation of the engine on said occasion.

Opinion.

The eighth paragraph of the court’s charge reads:

“Now, bearing in mind the foregoing instructions, you are instructed that: (1) If you believe from a preponderance of the evidence in ■ this case that on August 22, 1912, deceased, W. L. Dodd, approached the different switches located at or near Virginia Point, Tex., and blew the whistle of his locomotive for the purpose of notifying the switch tenders of the approach of his train, and that after he gave said signal, if he did, he received from the switch tender, or from the switch tenders, a signal known as a highball, meaning a go-ahead signal, thereby indicating that his train might approach and pass and cross the switches located there with safety, and that the deceased then again blew the whistle of his locomotive for the purpose of notifying said switch tender or switch tenders that he had seen and understood the highball sign and was going to proceed across and past said switches, and he did proceed toward them for the purpose of passing same, and that, when his train approached said switches, it had the right of way over same; (2) and if you further believe that the agents, servants, and employés of the defendants, or of either of them in charge of and operating said switches, were guilty of negligence in not aligning said switches and the tracks for deceased’s train; (2a) or if you further so believe from the evidence that said agents, servants, and employés of the defendants, or of either of them, in charge of and operating said switches, were guilty of negligence in wrongfully aligning said Switches, if they did align same; (2b) or if you believe from the evidence that the agents, servants, and employés of the defendants, or of either of them, were guilty of negligence in giving to deceased a highball or eome-ahead signal without first having the switches over which his locomotive was to proceed properly aligned so that his train could pass over same in safety; (2c) or if you believe from the evidence that the agents, servants, and employés of defendants, or of either of them, in charge of and operating said switches, were guilty of negligence after hearing the signal, if they did hear it, given by deceased, W. L. Dodd, by the blowing of the whistle of his locomotive, if he did, by which they were informed that the deceased’s locomotive and train would pass over said track, in not aligning said switches so that his locomotive could pass over said switches and track in safety; (3) and if you further believe that thereby and on account of one or all of said acts, if any, of said agents, servants, and em-ployés of defendants, or of either of them, said locomotive was caused to leave the track and turn over and thereby kill deceased; and (4) if you believe that said agents, servants, and em-ployés of defendants, or of either of them, in so doing, were guilty of negligence, as that term has been hereinbefore defined to you, and you believe that such negligence, if any, was the proximate cause of the death of W. B. Dodd, and of the injuries and damages alleged and complained of in plaintiff’s petition — you will find for plaintiff, unless you find for defendant under the instructions hereinafter given you.”

The first error urged is that it is “on the weight of the evidence in that it merely required Dodd to blow the whistle for the purpose of notifying the switch tenders of his approach, without reference to whether he blew the proper number and kind of blasts.” The rules of the company specified the character of signal to be given on such an occasion, and the court was not called upon to state to the jury, as in the requested instructions, what said signal was; besides, they could not have understood that any signal other than the proper signal was intended. The second criticism is that it was error in submitting the question whether or not both switch tenders gave Dodd a highball, whereas there was no evidence that Cowart gave him any. This criticism is without merit. The undisputed testimony is that Weiiler gave Dodd the highball in answer to Dodd’s signals, and there was no testimony sufficient to justify the jury in finding that said highball was insufficient for Dodd to act op; therefore the charge in this particular was harmless.

The criticism urged is that it was erroneous “and on the weight of the evidence in treating all switches as a single thing and assuming that Dodd would have a right to go through all switches on a highball from the first switch tender alone, or, in other words, that Weiller’s highball alone would be an assurance that Cowart’s switches, as well as his own, were aligned for the Santa Fé track.”

The court did not err as complained of in this particular; rule 2 being in substance that, approaching from both directions, the train should be under full control and must stop unless receiving a “highball” signal from the switch tender. The testimony shows that Dodd was authorized to rely on the “highball” of one tender, and that Weil-ler, the first switch tender, gave that. Cow-art, the second tender, saw the highball given by the first tender, and there is no excuse in aligning the tracks as tie did. It was proper for the court to submit to the jury whether or not Dodd had the right to rely on the highball given.

There are 14 other propositions urge'd against paragraph 8, all' of which we have considered, but do not think them well taken ; therefore we will not discuss them.

Assignment of error No. 2 is as follows:

“The court erred in giving to tlje jury the eighth paragraph of his main charge for the reasons mentioned in paragraph 111 of defendants’ written objections and exceptions to the court’s main charge, on file among the papers in this cause and hereby referred to and made a part hereof.”

This assignment is not briefed in compliance with the rules, in that the charge complained of is not copied in the b-rief, nor is the substance thereof given.

The fourth assignment of error complains of the refusal of the court to give special charge No. 4, which is as follows:

“If you believe from the evidence that W. L. Dodd, deceased, operated his train up to and upon the switches in charge of switch tender W. B. Cowart without having his said train under full control, then you are instructed that such act on his part (if he did the same) was a violation of causeway rule No. 2 that has been introduced in evidence; and if you further believe from the evidence that this was negligence on the part of said Dodd, and was a proximate cause of the derailment and injury, then you will find for the defendants, unless you also find that the defendants, or one of them, was guilty of some one or more of the acts of negligence charged in plaintiff’s pleadings and submitted to you in the court’s charge, and that such negligence of the defendants or defendant (if any you find) was a concurring proximate cause of the injury, in which latter event you will follow the rule given in the court’s main charge with regard to the effect of contributory negligence.”

The proposition urged is:

“Defendants were entitled to have said special charge No. 4 given in order that the jury might be specifically, positively, and affirmatively instructed that a failure by Dodd to have his engine and train under full control as he approached W. B. Cowart’s switches would be a violation of causeway rule No. 2.”

The special charge was sufficiently covered by the court’s main charge, and the refusal did not work any injury to appellant.

The court did not err in refusing requested charge No. 5 of appellant, which reads:

“You are instructed that the expression ‘under full control,’ as used in causeway rule No. 2 and in the charges given by the court, means that the train is to be under such control that the engineer can stop the same within the distance that he can see the track ahead of him and observe that it is clear.”

Causeway rule No. 2 does not define “under full control,” and for the court to have defined its meaning, as requested, would have been upon the weight of the evidence, as there was evidence raising the issue as to whether the running at 15 miles an hour would not have been “under full control.”

What “under full control” meant was properly left for the jury to determine.

The seventh assignment presented is that the court erred in refusing special charge No. 6, which is as follows:

“If you believe from the evidence that W. L. Dodd, deceased, operated his train up to and upon the switches in charge of W. B. Cowart without having received a proceed signal (called a highball) from said Cowart, than you are instructed that such act on Dodd’s part (if he did the same) was a violation of causeway rule No. 2; and if you further believe that in so acting the said Dodd did not use such care as a person of ordinary prudence would have used under the same circumstances, and that such act of Dodd’s (if he did the same) was a proximate cause of the derailment and injury, then you will find said Dodd guilty of negligence and give effect to such finding in, accordance with rules furnished you in other charges given you by the court.”

This charge was upon the weight of the evidence, as the evidence of John Weiller was that Dodd had the right to rely on the highball given by him. Causeway rule No. 2 says the engineer may proceed upon receiving a signal from the switch tender.

The eighth assignment of error complains of the court for refusing special charge No. 7. This charge was fully covered by the main charge of the court, and there was no error in refusing said charge.

The failure of the court to give special charge No. 9 is assigned as error, viz.:

“If you believe from the evidence that W. D. Dodd, deceased, while approaching the switches at Virginia Point on the occasion in question, sounded two long blasts of the engine whistle, and that this caused switch tender W. B. Cow-art reasonably to believe that the train approaching was a Southern Pacific train and to act on such belief by going over to the Southern Pacific track and aligning the switch for it, and that such mistake on the part of Dodd in the use of the whistle (if he made such mistake) was a proximate cause of the switches at the interurban crossing not being aligned for the safe passage of his train, and if such mistake (if any) on the part of said Dodd was due to a want of such care as an engineer of ordinary prudence would have exercised under the same circumstances, then you will find said Dodd guilty of negligence and give effect to such finding in accordance with rules furnished you in other charges given you by the court.”

The substance of this charge was embraced in the court’s main charge. Besides, we cannot see how this charge could relieve Cowart of negligence, for, if he went over to the Southern Pacific track to align that track for Dodd’s train, he failed to do so, but threw the derailed track, when, if he had opened the Southern Pacific track, the injury would not have occurred. There was no error in refusing the charge.

The tenth assignment relates to remarks of plaintiff’s counsel in his argument to the jury, because inflammatory. • If said remarks can be said to be inflammatory, the court withdrew them from the jury and instructed them not to consider same. We conclude no injury was done appellant.

Appellant also complains that:

“During the closing argument in the case, Mr. James P. Haven, of counsel for plaintiff,' stated to the jury in substance, and repeatedly, that he believed a verdict for plaintiff in this case for $35,000 would be fair and reasonable, and that he thought the jury ought to give $35,-Ó00 as damages, apportioning the same $15,000 to Mrs. Sadie Dodd and $10,000 to each of the two children. As soon as said attorney finished his argument, the defendants in open court, and before the jury retired to consider of their verdict, objected and excepted to said remark or argument on the grounds that it was outside the record, improper, and prejudicial to defendants’ rights, and was in effect the giving of testimony by plaintiff’s attorney as to the amount of damages to be awarded without having been sworn as a witness in the case. Defendants then and there asked the court to instruct the jury that such remark was improper and outside the record and was not to be considered by them. The court overruled defendants’ said objections and declined to give the jury any instructions whatever regarding said remarks, to which action of the court, as well as to the conduct of counsel, defendants excepted.”

There was no error in the court overruling said objection.. We do not see any error in the remarks of counsel. He was suing for damages and endeavoring to recover as large a verdict as he sued for, and it was legitimate to argue for the amount of damages the evidence shows plaintiff sustained.

The next assignment complains that the verdict is excessive. There is nothing in the record to show that the injury in rendering the verdict was actuated by undue passion or prejudice, and, as the law makes them the judges of the amount to assess, their verdict will not be disturbed, unless it had been shown that some improper influence had been exerted upon them.

The evidence clearly supports the verdict; we find no error in the record; and the judgment is affirmed.


author: HENDRICKS, J.

text:
    SUGGS et al. v. SINGLEY et al.
    (No. 608.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1914.
    Rehearing Denied May 30, 1914.)
    1. Husband and Wife (§ 273) — Subvivob of Community — Payment of Community Debts.
    The survivor of a community may pay community debts out of the community estate, and, having done so to the full value of the community personal property, one of the heirs could not recover anything from such survivor on that account.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.] .
    2. Husband and Wife (§ 274) — Community Estate — Division—Family Settlements.
    Where a daughter on the death of her mother received certain land from her father as the survivor of the community, and acquiesced in a division for five years, occupying the portion of the real property received without objection, she would be held thereby to have agreed to the receipt of such property in full satisfaction of her claim against her mother’s estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. §
    3. Husband and Wife (§ 266) — Interest in Community Estate — Surrender.
    A wife may not renounce to her husband her interest in the community estate by contract, practically without consideration, even through the intervention of a trustee.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 925-928; Dec. Dig. § 266.]
    4. Partition (§ 9) — Division among Children — Acquiescence—Effect.
    Where parents made a partition of land to their children in anticipation of the death of the mother, and each child took possession of their respective interests and improved the property, and after the death of the mother continued to acquiesce therein for several years, it would be enforced in equity as a partition between the heirs.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 26-32; Dee. Dig. § 9.]
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Suit by J. W. Singley and others against Ethel Suggs and others. Judgment for complainants, and defendants appeal.
    Affirmed.
    J. L. Lackey, of Wellington, and Presler & Thorne, of Memphis, for appellants. R. H. Templeton and O. C. Small, both of Wellington, for appellees.

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

   HENDRICKS, J.

This suit was instituted by the appellees, J. W. Singley, E. A. Singley, and H. E. Singley, against the appellants, Mrs. Ethel Suggs (née Singley) and her husband, W. W. Suggs, for the purpose of confirming an alleged parol partition of certain lands in Collingsworth county, and an alleged settlement of the community estate owned by the appellee J. W. Singley and his deceased wife; the appellant Mrs. Ethel Suggs and .her brothers, E. A. and H. E. Singley, being the surviving children of said J. W. Singley and wife. The cause was tried by the court, without the intervention of a jury, and judgment was rendered against Mrs. Suggs and her husband, in favor of the three Singleys, appellees herein, confirming the alleged settlement of said community estate, and divesting the title of the interest, of each in the respective tracts of land.

We overrule the preliminary contention of appellees for a dismissal of this cause, on the ground that the record is not adequate for the perfection of the appeal, and that jurisdiction was not conferred. There is no specific attack upon the certificate of the clerk, and we are inclined to think that the presumptions in favor of the performance of duty, in the preparation of the records in the lower court, is sufficient on this subject.

The trial court found the following conclusions of fact and law:

“Plaintiff J. W. Singley moved to Collings-worth county about thirteen years ago; his intention being to secure enough land to divide up with his children, of whom he had three— all grown up — two boys, Henry and E. A. Sing-ley, and a daughter, Mrs. Ethel Suggs. He bought three sections of land, being the land in controversy, in Collingsworth county. It was talked over and agreed afterwards. among the family that the land should be divided so as to give each child a half section at the death of either parent as his or her part of the community estate of such as should die first. Mrs. Suggs, however, was not present when this arrangement was made, nor was her husband, but was afterwards advised of it. In anticipation of the death of one of the parties, the two boys were each given a half section; that is to say, no deed was made to either, but they each went into possession of what they each considered was his part of the land as agreed between the parents. The daughter, who lived in another part of the state, was urged to come also and live near the old couple and take a half section of land. Her mother paid her a visit in Bell county, where she was living at the time, and remained for several months. This Was a short time before she died, and she was then in feeble health. While on this visit the mother insisted on Mrs. Suggs and her husband selling out their business in Bell county, Suggs being engaged in the saloon business there, and taking her half section in Collingsworth county and moving to same. Mrs. Suggs was anxious to do so, and her husband was finally persuaded, after the death of the mother in May, 1908, to sell out said business and move to Collingsworth county. The mother had stated that she intended for her daughter to have the E. % of section 36; but when she came she selected the W. % of section 37, block 15, which adjoined section 36 on the east, and was not quite as good land as the E. % of section 36, but had a well of good water on it and some fencing, while the E. % of section 36 was unimproved. The E. % section 36 was school land, and was incumbered to the extent of 97% cents per acre, due the state, while the W. % section 37 was unincumbered. Her husband built a house and other improvements on the place, expending about $4,000, went into possession, and has since lived there five years and paid taxes on said land and exercised other acts of ownership. The arrangement with all parties seemed to have been entirely satisfactory, and acquiesced in by all, for about five years, until some months ago, when ill feeling grew up between the parties, and this suit was instituted. I find there is no material difference in the value of the land of the respective parties, except that the land selected by the two Singley boys was worth at the time of the death of the mother about $1 an acre more than that of the daughter, but, as to one half section, it was incumbered by the 97% cents per acre due the state. As to the land kept by the elder Singley, it was about the same value on an average as that selected by the daughter. There was some personal community property at the date of the death of the mother of the value of $800 and community debts to the amount' of $900, which were afterwards discharged by the elder Singley out of the community estate. From all the facts and circumstances in the case I find that said Mrs. Suggs and her husband took the said W. % section 37 as her part of her mother’s estate, and same was given to her for that purpose.”
Conclusions of Law.
“(1) The survivor in community was entitled to pay the community debts out of the community estate, and, having done so to the full amount of value of the personal property, the said Mrs. Suggs is not entitled to recover anything from him on that account.
“(2) As to the land received by her, having acquiesced in the arrangement made by the other parties hereto for five years or thereabouts, agreed to by her acts in the premises and her long acquiescence in the arrangement, she thereby agreed to and did receive said property in full satisfaction of her claim on her mother’s estate, and became thereby a party to the original agreement between her kinsmen to partition the property, and is entitled to recover her said W. % of section 37, which she herself selected and has since made her home, and nothing more.
“(3) On the death of the mother-the parties hereto became cotenants of the premises; by their own acts theretofore and thereafter they did partition same. Each had reached majority, and each is presumed to have intended to do what they actually did. It therefore follows that it is competent for the court to confirm said partition and thereby vest the legal record title in each of said parties to the respective portions of the said premises, respectively, heretofore selected and taken possession of by the respective parties hereto.”

If we interpret the position of appellants correctly in this cause, it is that the- tentative agreement alleged and proved by the appellees, with reference to a division of the community property of the parents with the children, before the death of the mother, is void, and that the testimony is not sufficient to establish a subsequent settlement and partition of the community estate of the deceased parent, after the survivors became tenants in common of such property. J. W. Singley, the father of Mrs. Suggs, the ap-pellee, and the other appellees testified:

“Along about 1908 or prior thereto a certain partition was had of our property. * * * There was a division of the estate of my wife- and my own.”
Again he said:
“Mr. and Mrs. Suggs were at my house pretty regularly about four years prior to the death of my wife, and about that time I told Mrs. Suggs this half section of land had been allotted to her. * * * She took that half section of land, but not at that time; later she entered upon it (after the death of her mother), and they have improved it with a good well, good' house, and good barn.”

He further testified that about six weeks-prior to the death of his wife, while Mrs-Suggs, the daughter, was on a visit to their home from a distant part of the state, that something was again said in regard to a division cf the property, and that he informed, her that the particular half section of land was allotted to her as her part of the property.

The sons of J. W. Singley, and the brothers of Mrs. Suggs, in substance testified similarly to the father; one of them stating “that was-the general understanding, and we talked of' it a number of times.” The other Singley testified that, when his sister was visiting, their home in Collingsworth county, the mother was in 'very bad health, and she wanted the daughter to return to that county, and informed her “that she had a half section of land there, and it was all understood right there. Mrs. Suggs did not object to it at that time, but said she would come here if she could.”

Mrs. Suggs testified:

“I took the half section of land because my father wanted me to come and live near him. My father does not exercise any claim on the land how. I made claim to it. I have been, paying taxes on it.”

Again she said, ‘‘My husband has never objected to living on that land;” and further stated that she and her husband had each demanded deeds from the father for the land that she and her husband had settled upon and improved.

The husband testified:

“I did decide to wind it up; as to going to him for a deed to this property, I supposed it would all have to be deeded. I understood that they would have to deed me mine, and I would deed them theirs; exchange deeds between us. I asked for a deed to this land I have been living on as a home, and I thought that I would have to have that, and they would have to have their deeds.”

He further said:

“I have exercised all the privileges of ownership of the land. T was acting for myself and wife at the time I went down there and took possession under the direction of Mr. Singley [meaning his wife’s father].”

The further position of appellants is that Mrs. Suggs, the daughter, merely took possession of this land at the direction of the father, J. W. Singley, as a gift inter vivos, subsequent to the death of the mother, and the testimony could not be construed as an agreement by her, joined by the husband, of a partition and settlement of her interest in the estate. We think the testimony amply justifies the court’s conclusion that after the death of the mother Mrs. Suggs took possession of the half section, with her husband cooperating therein, and improved the land and lived upon the same for nearly five years, with the understanding that it was a partition and settlement of the community interest of the mother in said estate. The first objection, after several years’ occupancy, was just a few weeks previous to the institution of this suit.

The case of Proetzel v. Schroeder, 83 Tex. 684, 19 S. W. 292, decided by the Commission of Appeals, according to our view, has no application to this cause. One of the elements of the agreement of the wife and mother in that cause was an entire renunciation to her husband of “all the community property to which she may be entitled under the laws of this state,” and she gave to her husband “full power and authority to sell and convey, or in any manner dispose of, all the community, real, personal, or mixed which he [the husband] now possesses or may hereafter acquire.” The Supreme Court said that the proof in that cause showed that the agreement was practically a surrender by the wife to the husband of five-sixths of her estate or interest in the community, without any consideration whatever, and could not appeal to the court for the purpose of enforcement on any equitablé grounds, holding that said contract was void. Judge Hobby, in rendering the opinion in that cause, further discussed the question of the conveyance by an heir of a contingent and expectant interest, rather viewing such a release as void, but not specifically deciding the proposition.

The Supreme Court, however, has held that an expectancy of an heir to his ancestor’s estate, or the anticipated rights of a person as next of kin, may be the subject of a contract in equity, which will be equivalent to an assignment when the estate vests. Hale v. Hollon, 90 Tex. 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819.

It is again held by the Court of Civil Appeals that a son’s expectant interest in the estate of his mother, who is a lunatic, may be the subject of a valid conveyance. Searcy v. Gwlatney Bros., 36 Tex. Civ. App. 158, 81 S. W. 576.

Of course the wife could not renounce to the husband her interest in the community estate, where it is attempted to be grounded upon contract, if practically without consideration, even through the intervention of a trustee. Kellett v. Trice. 95 Tex. 160, 66 S. W. 51. We are not prepared to say, however, that if the parents were to make a partition with their children of the expectant interests of the children in anticipation of the death of either parent, and each child and the mother and father, in pursuance of such agreement, were to take possession of their respective interests and improve the property, and after the death of one of the parents, and after several years’ acquiescence, that the agreement would not be enforceable, in a court of equity, if fairly and equitably made. If the heir could sell his or her expectant interest, why could it not be partitioned?

It is unnecessary to cite authorities to sustain a parol partition of land where acted upon, and fairly made, even by married women. When Mrs. Suggs and her husband took possession of the property shortly after the death of the mother, they knew the other Singleys were claiming the interest in the respective land occupied by each, which she might have been otherwise entitled to as an heir — at least all of their acts indicate it— and were bound to have known of the improvements made upon the land respectively claimed by those who had enhanced the value of the same occupied by them. Aside from the question of an agreement for division, made before the death of the mother, which the court finds she had knowledge of, the acts, admissions, and spoken words, with the long acquiescence, resolving the construction of the testimony as the trial court resolved it, bespeak an agreement of partition and settlement of her mother’s estate. The demurrers by appellants do not show to have been presented to the court. The community personal property was clearly absorbed by the debts, and we think the judgment of the trial court should be affirmed, and it is so ordered.

Affirmed.


author: FLY, C. J.

text:
    BURKHISER v. LYONS.
    (No. 5284.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 13, 1914.
    Rehearing Denied Tune 3, 1914.)
    1. Pleading (§ 127) — Answer—Sufficiency of Denial.
    Where a paragraph of the petition alleged that the defendant had stated that plaintiff had stolen all he raised on defendant’s place, and was a thief, an answer denying the language used as set forth in that paragraph, but pleading the truth of any charge made that the plaintiff had been guilty of fraudulent acquisition of ' property, and conversion thereof to his own use, is not an admission of the speaking of the words charged.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 264r-268; Dec. Dig. § 127.].
    2. Libel and Slander (§ 100) — Variance— Proof of Words Used.
    Proof that defendant had charged that plaintiff had swindled or stolen from defendant in the purchase of a mule for defendant, was not proof of the slander charged in that paragraph of the petition, which referred to theft of the products from the land of the defendant.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 246-256, 258-272, 291, 322, 323; Dec. Dig. § 100.]
    3. Libel and Slander (§ 100) — Variance-Proof of Words Used.
    In actions for slander, the material and actionable words must be proved strictly as they are alleged in the petition.
    [Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. §§ 246-256, 258-272, 291, 322, 323; Dec. Dig. § 100.]
    4. Libel and Slander (§ 56) — Justification — Truth of Charge.
    Proof that plaintiff, acting as agent for the defendant in the purchase of a mule, drew upon the defendant for a sum in excess of that paid for the mule, and converted the excess to his own use, is sufficient to justify a statement by defendant that plaintiff was a thief, under Code Or. Proc. 1911, art. 772, which provides that theft shall include swindling and all. unlawful acquisition of personal property punishable by the Penal Code.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 153-156; Dec. Dig. § 56.]
    5. Libel and Slander (§ 123) — Sufficiency of Evidence — Truth as Justification.
    In an action for slander, where the defense was that the charge by defendant that plaintiff had stolen the hay from defendant’s place was true, evidence held sufficient to take to the jury the issue of the truth of the words spoken by defendant.
    [Ed. Note. — For other cases, see Libel, and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § . 123.]
    6. Libel and Slander (§ 124) — Words Imputing Crime — Nature of Crime.
    Words imputing crime should be weighed and considered in the light of the circumstances surrounding the parties at the time, and that effect given to them which they probably produced on the person to whom they were used, and a charge that 'plaintiff stole defendant’s property, made to one who knew that plaintiff was in possession of defendant’s property, and therefore could not have been guilty of technical theft, may be construed as a charge of swindling.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. Dig. § 124.*]
    7. Libel and Slander (§ 94) — Justification — Truth.
    Where defendant had stated that plaintiff had stolen every blade of grass upon defendant’s place, proof that any part of the hay on the place had been stolen or fraudulently appropriated by the plaintiff is sufficient to take to the jury the question of justification.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 219-225; Dec. Dig. § 94.]
    8. Libel and Slander (§ 123) — Admissibility of Evidence — Mitigation.
    In an action for slander, the character of the plaintiff and business transactions between him and the defendant and other parties affecting the rights of the defendant may be considered bt the jury in mitigation of damages, even though they did not justify the accusation.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.]
    9.Libel and Slander (§ 111) — Pleading— Justification.
    In an action for slander, justification must be specially pleaded with such particularity as to notify the plaintiff as to what charge he will be compelled to meet.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 315-324; Dec. Dig. § 111.]
    10.Trial (§ 194) — Requested Instructions —Weight of Evidence.
    A requested charge on the weight of the evidence is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446454, 456-466; Dec. Dig. § 194.]
    Appeal from District Court, Jackson County ; John M. Green, Judge.
    Action for slander by C. L. Lyons against John Burkhiser. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    Guy Mitchell and Rose & Sample, all of Edna, for appellant. F. G. Moffett and Mc-Crory & Vance, all of Edna, for appellee.

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

   FLY, C. J.

Appellee instituted this suit against appellant for damages alleged to have accrued on account of slanderous language of appellant about appellee. Appellant filed general and special exceptions, and gen.eral denial, and pleaded the truth of any language used by him in justification. There were three counts in the petition, only two being submitted to the jury, and they in a peremptory charge to find for appellee. The-result was a verdict for $250 actual and $500 exemplary damages on each count, and judgment was rendered for appellee for $1,-500.

The two counts upon which the verdict was based are as follows:

“(14) That for further cause of action plaintiff says that on or about August 1, 1912, defendant, John Burkhiser, openly, publicly, and maliciously and falsely, speaking of plaintiff, pronounced and published to and in the presence and hearing of O. A. Rodesney, and other of plaintiff’s fellow citizens, the following scandalous and false words of and concerning plaintiff, to wit: 'This man, Lyons, on my. place stole all he raised last year, and is trying to steal everything this year. He is a thief; but I am going right after him.’ ”
“(20) That for further cause of action against defendant plaintiff says that on or about August 1, 1912, defendant, speaking of and concerning plaintiff to Bryant Garrett, Jr., falsely, maliciously, and willfully in the vicinity of Ganado, Tex., called plaintiff a thief, and said to said Garrett, ‘He [meaning plaintiff] stole every blade of grass [meaning hay] off the place [meaning the Burkhiser place] last year.’ ”

The court instructed the jury that appellant had admitted that he had used the language set out in both of the counts, and that they should find for such actual and exemplary damages as the facts warranted.

There was no admission by appellant in pleading or evidence that he had used the language attributed to him in the fourteenth paragraph of the petition. In the supplemental answer was the following:

“This defendant denies the language used to G. A. Rodesney as set out in paragraph 14 of plaintiff’s said amended petition, but specially pleads the truth of any statement or charge that may have been made to him or in his presence to the effect that he had been guilty of the fraudulent acquisition of property and the conversion thereof to his own use.”

The error of the charge is apparent so far .as the fourteenth paragraph of the petition is concerned.

The evidence failed to sustain the language set out in the paragraph in question. Rodesney testified that appellant told him that appellee should not stay on his place “because he was cheating him and stealing from him, something of that kind; there is one point I remember especially, and that was the matter of those mules. He mentioned the fact that he had furnished Mr. Lyons $500 for a pair of mules, but found out Mr. Lyons had only paid $400 for them.” The witness further said that the “general trend of his conversation was” to the effect “that Lyons had been stealing from or cheating him.” The witness also said:

“What I remember is that this man had swindled him or stolen $100 from him in the mule transaction.”

That language did not sustain the charge that appellant had said:

“This man, Lyons, on my place stole all he raised last year, and is trying to steal everything this year. He is a thief; but I am going right after him.”

It is evident that the language alleged had reference to theft of products raised on the land of appellant in 1911 and 1912, while the language used to Rodesney had reference to a transaction about mules. In actions for slander, the material and actionable words must be proved strictly as they are alleged in the petition. Newell, Slander and Libel, § 49, p. 804; Perry v. Porter, 124 Mass. 338; Stern v. Loewenthal, 77 Cal. 340, 19 Pac. 579; Chapin v. White, 102 Mass. 139; Perry v. Porter, 124 Mass. 338.

In paragraph 20 of the petition, here-inbefore copied, there is an allegation that appellant had called appellee a thief, and further there is an allegation of a charge of theft of hay. Appellant admitted using the language set out in that paragraph, and the court, on account of that admission, instructed a verdict for appellee regardless of his evidence of justification. There was evidence which tended to show that appellee had been intrusted by appellant with authority to buy two mules, and he did so, agreeing to pay therefor the sum of $450, but represented to appellant that he had paid $550 for the mules, and obtained from appellant, by that false pretext, the sum of $100.

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit or the person taking.” Penal Code, art. 1329.

That article standing alone would not include other fraudulent conversions of property; but in article 772 of the Code of Criminal Procedure theft is made to include “swindling and all unlawful acquisitions of personal property punishable by the Penal Code.” Swindling is defined as:

“The acquisition of any personal or movable property, money, or instrument of writing conveying or securing a valuable right, by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same.”

Evidence of an agent buying property for a certain price, and then drawing a check on his principal for a much larger sum to pay for the same, would be swindling, and would be comprehended under the terms “theft.” It was not necessary that appellee should in terms have told appellant that he paid $550 for the mules when he really had purchased them for $450; but the false pretext would be implied from the conduct of appellee in drawing the check for the greater sum. Ap-pellee had no authority to draw the check for anything but the money to pay for the mules. He knew that appellant would think it was for the mules and would pay it. It was a false pretense by which appellee obtained $100 from appellant which he intended to appropriate and did appropriate to his own use. Under the law and in general acceptation it was theft, and proof of it was a justification of the charge that appellee was a “thief.”

Although appellant admitted the charges in the twentieth paragraph, which was an accusation made to Bryant Garrett, Jr., the latter did not, by his testimony, sustain the charge that “he stole every blade of grass off the place last year.” Garrett stated that appellant sold him some corn and wanted him to gather it, and, when asked why the tenant could not gather it, replied, “He is such a thief and liar that I want some one else to gather it.” The witness also stated that appellant said, “They had stolen all the hay on the place the year before that.” In view of the admission, we shall consider the language as proved.

To justify the language in regard to theft of the hay, appellant proved that on January 16, 1912, appellee gave him a lien in writing on 100 tons of hay that was cut on appellant’s place to secure $373.98 due by ap-pellee for rent of the place in 1911, and also a written lien on all hay to he cut and gathered on the premises during 1912, to secure the rent for that year, that he sold the hay of 1911 and appropriated the proceeds, and also sold 168 tons of hay cut in 1912 and appropriated the money therefrom to his own use and benefit, and gave a mortgage on the balance he had cut, some 60 tons, and that uncut, to a bank. Undoubtedly the charge ' that appellee was a thief .was met by the proof of swindling perpetrated by him on appellant; but the further questions arise whether proof of appellee being a thief would meet the charge of theft of the hay raised in 1911, and, if not, if proof of fraudulently disposing of mortgaged hay would justify a charge of theft of the hay.

There is some authority to the effect that the charge of being a thief can only be met by proof of theft in its restricted sense, that a charge imputing one crime cannot be justified by proving another, though of the same general character; but there are other authorities that hold that proof of a crime included in the elements of the crime charged is sufficient. Quaid v. Tipton, 21 Tex. Civ. App. 131, 51 S. W. 264; McLeod v. Crosby, 128 Mich. 641, 87 N. W. 883.

The words used in imputing crime should be weighed and considered in the light of, the circumstances surrounding the -parties at the time, and that effect given to them that they probably produced on' the person to whom they were used. If the person knew that the defendant meant embezzler or swindler or a fraudulent disposer of mortgaged property when he said thief, that should be taken into account in determining whether the accusation was justified by the facts. In the Michigan case of Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752, the defendant had charged plaintiff with being a thief; but those to whom he spoke knew that he referred to the fraudulent appropriation of ice belonging to a firm of which the plaintiff was a member, and the court approved this charge:

“If you find that the utterances charged in the declaration were made by the defendant, but that they referred to the taking of ice in such a way that they could not be larceny, and that the utterances were so understood by Daniels, Barnes, and Rowley, such utterances could not be actionable, and your verdict must be for the defendant.”

That charge was copied in the case of youngs v. Adams, 113 Mich. 199, 71 N. W. 585, and approved; and, while it was held that an imputation of theft could not be justified by proof of cheating or fraud, still it-was a question for the jury to determine whether the words were understood .to mean embezzlement or obtaining money by false pretenses. The Michigan court said: ■

“The defendant should not be found guilty if the circumstances showed that the words ought not to have been understood in their ordinary sense.”

In this case Garrett knew that Lyons was a tenant, knew that he must have been in possession of the hay, knew that he could not have taken it from the possession of appellant, and therefore could not have been guilty of technical theft, but that appellee had appropriated the hay that was in his possession to his own use and deprived appellant of his part of it. The evidence was sufficient to raise that issue, and it should have been submitted to the jury.

There is no merit in the contention'that justification for, the accusation could only be obtained by proof of “every blade of grass” on the place having been stolen. If any part of the hay was stolen or fraudulently appropriated by appellee, the defense would be sufficient to go to a jury. Quaid v. Tipton, herein cited. The fraudulent conversion was the main point.

The character of appellee, as well as any and all business transactions between him and appellant and transactions with other parties affecting the rights of appellant, should have been considered by the jury in mitigation of damages, even though they did not justify the accusation. Newell, Slander and Libel, § 62, p. 882 et seq.

Justification must be specially pleaded, and with such particularity as to notify the plaintiff of what charge he will be compelled to meet. Under that rule the plea stricken out by the court, of which complaint is made in the tenth assignment of error, was too general and indefinite, and was properly stricken out.

The charge asked by appellant, the refusal of which is complained of in the ninth assignment of error, was on the weight of the-evidence, and was properly refused.

For the errors herein indicated, the judgment is reversed, and the cause remanded.