author: FLV, C. J.

text:
    DOWDY et ux. v. FURTNER.
    (No. 5890.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1917.
    On Motion for Rehearing, Nov. 21, 1917.)
    1. Evidence ⅞=»151(1) — Competency—Hypothetical Statements.
    In a suit to foreclose a deed of trust on land which defendants had deeded to the mortgagor, the testimony of one of the defendants that she would have told plaintiff that she claimed the property as her homestead, and that defendants would not turn it over to the mortgagors until they got a release of a lien on property taken by them in exchange, if plaintiff had told her at the time plaintiff inspected the property prior to making the loan that she was going to make a loan, was properly excluded as self-serving and hypothetical.
    2. Estoppel <®=^94(1) — Gbounds—Failuke to Assert Claim.
    Where, before the loan was made, defend: ants, in response to plaintiff’s request, surrendered possession of the property without protest or notice of any kind of any claim to the land, though they knew their warranty deed thereto was on record, and that plaintiff on the strength of such deed was making a loan which was being used in extinguishing a lien that was superior to all other claims, they were estopped to assert that they would have given notice of their claim if told that a loan was to be made at the time.

      3. Trial <§=541(5) — Exclusion of Witnesses —Violation—Effect.
    On a trial without a jury, it was in the court’s discretion to permit a witness to testify, though the rule had been enforced as to the other witnesses, and he had remained in the courtroom and heard the testimony of the other witnesses, especially where it did not appear that he testified to anything material, and it was not claimed that the complaining parties were injured by his testimony.
    4. Escrows <§=vl4(2) — Unauthorized Delivery — <Ratification or Estoppel.
    If, on an exchange of property, a deed was placed in escrow, the escrow was waived by not objecting to the delivery of the deed, but acquiescing in the delivery and surrendering possession of the property conveyed, and by obtaining the other papers placed in escrow, including the dee'd to the property received in exchange.
    5. Vendor and Purchaser <§=>239(1) — Title and ¿Rights oe Bona Bide Purchasers— Home stead.
    A claim of homestead in property conveyed by warranty deed, duly recorded, and the property surrendered to the vendee, is without foundation as against innocent purchasers.
    6. Attorney and Client <§=5l(kL-NoTicE to Attorney — Imputing to Principal.
    The knowledge of an attorney of an agreement between parties placing deeds with him in escrow, which were subsequently delivered and placed on record, was not the knowledge of one afterwards employing him to pass on the title to the land conveyed by one of such deeds, where she was satisfied when he pronounced the title regular, and he never talked with her or communicated to her any facts in connection with the deed, except his representation that the deed conveyed title.
    7. Pleading @=>21 — Sequestration oe Property — Application—Consistency of Allegations.
    In a suit to foreclose a deed of trust and a builder’s lien, there was no inconsistency in an allegation in an application for sequestration of the property that plaintiff feared that defendants, who were in possession, would make use of the possession to injure the property and convert to their own use the rents, fruits, and revenues thereof, as defendants might very consistently have been guilty of both acts about which fears were expressed.
    8. Subrogation <§=>23(2) — Persons Making Advances for Discharge of Lien.
    One loaning money on a deed of trust, which was used in paying off a builder’s and mechanic’s lien, was subrogated to all the rights of the holders of the builder’s lien.
    On Motion for Rehearing.
    9. Principal and Agent <sc=>23(1) — Transactions Constituting Agency — Opinions of Parties.
    One who made a loan for plaintiff, saw her lawyer for her, and had him draw the deed of trust and pass on the title, and received from him his written opinion as to the title, was plaintiff’s agent in making the loan, though he was also agent for the- borrowers in obtaining- the loan, and though he and plaintiff both testified that there was no agency, as their conclusions could not destroy the relation shown by their acts.
    10. Appeal and Error <§=5637 — Bill of Exceptions — Aider .by Statement of Pacts.
    Where a bill of exceptions was imperfectly drawn, so that it did not show or even state as a conclusion that the testimony of a witness who violated the rule was material, it could not be aided by reference to the statement of facts.
    Appeal from District Court, Bexar County; W. E. Ezell, Judge.
    Action by Prieda Furtner against S. E. Dowdy and others. Prom a judgment for plaintiff, the defendant named and his wife appeal.
    Affirmed.
    Wm. H. Russell, of San Antonio, for appellants. ' McAskill, Simmang & Mauermann, of San Antonio, for appellee.
   FLV, C. J.

This is a suit instituted by ap-pellee against appellants, S. E. Dowdy and Kate Dowdy, Henry Borchers and wife, Katherine Borchers, the First National Bank of Pleasanton, Neta I. -Henderson, M. Cop-pard, trustee in bankruptcy of the estate of Henry Borchers, and the Platter Tobacco Company, ■ to recover on a promissory note executed by -Borchers and wife to appellee for $2,300, and to foreclose a deed of trust executed to appellee by Borchers and wife on two certain lots in the city of San Antonio. It was also alleged that appellants had executed and delivered to H. C. Jones a promissory note for $3,000, which was secured by a builders’ lien on the two lots on which the deed of trust was given; that the note was paid off and discharged by money obtained on the note and deed of trust here-inbefore described; and it was provided in the deed of trust that the note for $2,300, on which this suit is based, should be secured by the builders’ lien as well as by the mortgage lien. Appellee sought a foreclosure of both, liens. The Borchers sought to prevent their personal liability on the note by setting up the bankruptcy proceedings as to Henry Bor-chers! Ooppard, trustee, and the First National Bank disclaimed any interest in the suit and. were dismissed, with their costs. No answer of Neta I. Henderson is found in the record, but judgment was rendered that she recover nothing on her claim, and she does not complain. In an amended answer, Kate Borchers alleged that since the filing of this suit she had been divorced from Henry Borchers, and sought to be relieved from any personal liability on the note.

The appellants answered that the $3,000 note was barred by limitation of four years; that the builders’ lien had been discharged; and that, if appellee paid said note of $3,000, she acted as a volunteer, and discharged the debt and lien. It was alleged that appellants had, on or about April 2, 1914, executed a deed to the property in question to the Bor-chers, a recitation in the deed showing that the Borchers had paid $4,000 in cash for the land, when in truth and fact the real consideration was a promise on the part of the Borchers to convey to appellants a certain tract of land containing 174½ acres,. in Atascosa county; that the deed to the Bor-chers was placed in the hands of W. A. Wurz-bach, who was, by agreement of all parties, to hold the deed In escrow until the Borchers should secure the release of a lien on the Atascosa county land, and execute a deed to the same in favor of appellants; that the lien was held by the Hermann 'Sons Lodge, and the Borchers executed a deed to appellants to the land in question, and placed the same in the hands of W. A. Wurzbaeh, to be delivered to appellants when the lien was released ; that before securing the release, and without the knowledge or consent of appellants, the Borchers obtained possession of the deed made by appellants and recorded the same, and, no release of the lien on the Atascosa county land having been obtained, it was sold for the debt resting upon it. It was further alleged that appellants were in actual possession of the lots conveyed by the deed at the time the note and deed of trust was executed by the Borchers to appel-lee, which gave notice to appellee and put her upon inquiry as to appellants’ claim to the land., A writ of sequestration was sued out by appellee against the land. The court heard the cause without a jury, and rendered judgment in favor of appellee for her debt against Henry Borchers, and foreclosed her mortgage lien as against all of the parties defendant, and ordered a sale of the land, any excess obtained for the land over and above the debt, interest, attorneys’ fees, and costs to be paid over to the Borchers. This appeal is prosecuted by the Bowdys alone.

The facts show that the note and deed of trust were duly executed by the Borchers to appellee; that a deed was on record to the lots executed by appellants to the Borchers, which recited full payment of the purchase money, and appellee had no notice, either actual or constructive, of any claim that appellants had to the land. There are facts tending to show that the deed to Borchers was not put in escrow with Wurzbaeh, but appellants took possession of the land in Atascosa county and gave a lien on it to Lane, after appellants knew that their deed had been delivered to Henry Borchers. S. E. Bowdy, prior to the time the deed was delivered to Borchers, obtained possession of notes which he and wife had executed to the Borchers. Appellants were not in possession of the property in controversy when the note and deed of trust were executed, but Mrs. Bowdy showed appellee through the house when appellee was considering the question of a loan to the Borchers. The deed of appellants to the Borchers was placed on record before the note and deed of trust were given by the latter to appellee, and appellants had actual knowledge that the deed had been delivered to the Borchers and had been placed on record. The two lots in controversy were placed by appellants in possession of the Borchers on the day the note and deed of trust were executed by them to ap-pellee. The deed to the Borchers was recorded on May 9, 1914, and the note and deed of trust were executed on June 9, 1914. The condition of the loan to the Borchers was that appellants were to give possession before the money was paid, and they gave the possession demanded. The money was loaned to the Borchers to pay off a builder’s and mechanic’s lien placed on the lots and improvements, and was used for that purpose.

The first assignment of error assails the action of the court in refusing to permit Mrs. Bowdy to testify “that she would have told the plaintiff that she claimed the property as her homestead, and that these defendants would not turn it over to the Borchers until they got a release from the Hermann Sons, as the deeds had beep left in !Mr. Wurz-bach’s office for that purpose, had the plaintiff told said defendant at the time plaintiff inspected the property with Mr. Feldman prior to making the loan that she, the plaintiff, was going to make a loan on the property to the Borchers.” The testimony was self-serving, hypothetical, and clearly inadmissible; but, if it had been admitted, it would not have been of any consequence, because in response to a request of appellee, made through Feldman, possession of the place was surrendered before the loan was made, and he was not informed of any facts that would impair the title of the Borchers to the land. After calmly moving off the land when requested, without protest or notice of any kind of any claim to land to which they had given a warranty deed which they knew was on record, appellants are estopped to state what they would have said if certain questions had been asked them. It was incumbent on appellants to notify appellee of their claim to the land, and not remain silent, and surrender possession of the land, when they knew that money was being loaned on the strength of their warranty deed, which money was to be used in extinguishing a lien that was superior to all other claims to the land. The assignment is overruled.

The second assignment of error complains of the action of the court in permitting H. 0. Feldman to testify, although the rule had been enforced as to the other witnesses and he had remained in the courtroom and had heard the testimony of the other witnesses. It does not appear from the bill of exceptions that Feldman testified to any material facts in the case, and it is not claimed in the bill of exceptions or the assignment of error that appellants were injured by the testimony. As stated by this court in Railway v. Pacheco, 185 S. W. 1051.

“It is well settled that it is within the sound discretion of the trial court to -permit a witness, who has violated the rule of exclusion from hearing the testimony of other witnesses either directly or through another, to testify, and the action of such trial judge will not be reversed unless there is a clear abuse of such discretion.”

In this case, as in the cited one, the trial was had without a jury, and the rule as to discretion would apply with even greater force than in a jury trial. There is nothing to indicate that there was any abuse of the discretion given the trial judge.

The assignments of error, from the third to the eighth, inclusive, are overruled. There was testimony which tended to show that the deed executed by appellants was not placed in escrow, and, if it had been so placed, appellants waived the escrow by not objecting to the delivery of the deed, but acquiesced in such delivery and surrendered possession of the property conveyed by it. Their acts were such as to estop them from setting up the escrow, even if appellee had been notified of their claim. She had no notice of the private agreement between appellants and the Borchers, and appellants’ acts were such as to lead every one to be-' lieve that they had delivered the deed and had received full consideration for the land. They knew that the deed had been delivered and recorded, and yet they made no effort to notify appellee or any one else of their claim, and it would be inequitable and unjust to permit them to press a claim after appellee’s rights have become involved through their silence when they should have spoken. If the papers were left in escrow, the agreement was violated and destroyed by the acts of S. E. Dowdy in returning and carrying off notes executed by him and a note executed by the Borchers. If there was any agreement as to escrow, it was put aside by both parties taking their respective deeds. A claim of homestead in property conveyed by warranty deed, which was duly recorded and the property surrendered to the vendee, is totally without foundation, so far as innocent purchasers are concerned.

There is no foundation whatever for the claim that the knowledge of W. A. Wurz-bach as to the agreement between appellants and the Borchers as to the deeds being placed in escrow, because the knowledge of appellee when she afterwards employed him to pass upon the title of the Borchers to the land. The fact that the attorney pronounced the title regular was sufficient to cause appellee to be satisfied therewith, and it was not shown that Wurzbach ever talked with appellee and communicated to her any facts in connection with the deed to the land, except in so far as his representation that the deed conveyed title to the land. ■

The tenth assignment of error is overruled. The court properly overruled the motion to quash the writ of sequestration. There is no inconsistency in the allegation in the application for sequestration of the property “that plaintiff fears the defendants, S. E. Dowdy and wife, Katie 0. Dowdy, the persons in possession of such property, will make use of such possession to injure such property and convert to their own use the rents, fruits, and revenues thereof.” Appellants might very consistently .have been guilty of both acts about which fears were expressed. The case of Clark v. Elmendorf, 78 S. W. 538, is not in point. In that ease twcf distinct acts were alleged disjunctively. They were clearly inconsistent.

The eleventh assignment is but a reiteration of other assignments, herein disposed of, and is fully answered by our conclusions of fact.

We do not think that limitation had run against the mechanic’s and builder’s lien, .which was made the basis of the deed of trust. The facts make out a clear case of subrogation in favor of appellee of all the rights of the holders of the builder’s lien.

The judgment is affirmed.

On Motion for Rehearing.

Appellants seem to labor under the mistaken idea that where an agent or principal, or both, deny agency, it must be taken that there was no agency; which is not the law. The check for the Borchers was placed in the hands of Feldman by appellee, and he made the loan for her. He represented her in .making the loan, and his conclusions and those of appellee as to agency could not destroy the relation of principal and agent as shown by their acts. Feldman may have been representing the Borchers in procuring the loan, but he was also representing ap-pellee in making it. He went to see her lawyer for her, and had him to draw the deed of trust and pass on the title. The written opinion as to the title was given by the attorney to Feldman and not to appellee.

It is preposterous to contend that appellants did not have an opportunity to tell ap-pellee that they claimed the land. They knew that their warranty deed to the Bor-chers had been recorded, they knew that ap-pellee was looking at the house and property for some purpose, and if they had' any claim to the land they should have asserted it. Their mouths were closed of their own volition, and nothing could have prevented them from making their claim had they so desired. What one or both of them would have said if some one had told them a certain thing of course was not evidence. The fact remains that they set up no claim to the land until they realized they had made a bad trade. There was nothing to put appellee upon notice that appellants were claiming the property, but when they were requested to surrender possession before the loan -was made they promptly surrendered it. Appellee, through her agent, not only made inquiry, but demanded a surrender of the property before the loan was made. There was nothing to put appellee upon notice as to any claim except possession and that was promptly removed.

Appellants fail to comprehend the ruling of this court as to Feldman’s testimony. This court did not hold that Feldman’s testimony was not material, but that it did “not appear from the bill of exceptions that Feld-man testified to any material facts in the case.” This court held that the bill of exceptions was not so framed as to show that1 the testimony was material. The difference in the two statements is apparent. The bill of exceptions fails to show what Feldman swore to or to even state the conclusion that it was material. The bill of exceptions was imperfectly drawn, and could not be aided by a reference to the statement of facts. Appellants’ contention amounts to a claim that a reversal should follow if a witness not under the rule is permitted to testify whether his testimony was material or not. The matter was within the sound discretion of the court, and it was not abused.

The loan was not made until the premises were vacated by appellants, whether that vacation took place on June 9 or 10. Feld-man swore positively that he “did not negotiate the loan while they were in possession.” He was acting as the agent of appellee. She made her check payable to him, and he gave checks for the different sums held against the property.

This is a plain and simple case, and nothing should probably have been written in reply to the intemperate motion for a rehearing. The motion has constructed an imaginary case not borne out by law or' facts, and upon that supposititious case places its long and none too respectful demand for a rehearing. This court has based its opinion upon the testimony of the witnesses of ap-pellee, following the verdict of the jury, as in duty bound it was compelled to do, and that testimony fully| sustains the veirdiet and judgment.

There is no merit in the motion for rehearing, and it is overruled.

        GzaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=sFor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    TAYLOR et al. v. LAFEVERS.
    (No. 1824.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 12, 1917.
    On Motion for Rehearing Oct. 4, 1917.)
    1. Trial <§=> 343 — Verdict on Conflicting Evidence — Effect.
    A verdict settles conflicts in the evidence in favor of the successful party.
    2. Contracts <§==>130 — Consideration—'Illegality of Contract.
    While an agreement to refrain from bidding at a judicial sale in order to suppress competition is illegal, the mere fact that several combine to purchase property offered at a judicial sale does not, of itself, amount to such fraud as to render the contract unenforceable between the parties; and hence, where the property of a bankrupt was first offered for sale in three different classes and then offered in its entirety to any person who would raise the three highest separate bids for the property, an agreement that defendant should purchase the whole of the property and would sell to plaintiff the notes and accounts of the bankrupt for the amount of plaintiff’s previous bid therefor, which was the highest for that class of property, is not, though coupled with an agreement that plaintiff should not participate in subsequent bidding, open to attack on the ground of illegality of consideration, where plaintiff desired none of the other property, and there was no fraud.
    3. Evidence <§=>142(1) — Market Value — Sale of Other Property.
    Proof that other notes and accounts belonging to bankrupt estates had been sold in that territory does not, in an action for breach of an agreement to transfer to plaintiff notes and accounts of a bankrupt purchased by defendant, establish any market value for such property, for that showed no market value for the actual notes and accounts involved.
    4. Sales <§=>384(1) — Contracts — Breach — Measure of Damages.
    Where defendant, who bought in the entire property of a bankrupt, broke an agreement to transfer to plaintiff the notes and accounts of the bankrupt, plaintiff’s measure of damage is the difference between the amount he agreed to pay and the reasonable value of such property, and its market value cannot be taken as the criterion, for such class of property has no market, as in the case of ordinary chattels, for its value depends on the solvency and honesty of the debtors and makers of the negotiable instruments.
    5. Trial <§=>272 — Instructions—Waiver of Objections.
    Whore there was no objection to the submission of the issue of conversion, an instruction defining conversion is not ground for objection.
    On Motion for Rehearing.
    6. Sales <§=>388 —Actions —Breach —Instructions.
    Plaintiff and defendants were bidders at the sale of property of a bankrupt. The property was first divided into three classes, and bids submitted on each class. Plaintiff’s bid for the notes and accounts was the highest. Thereupon, the trustee having offered the entire property to any one who would bid more than the amount of the three highest separate bids, defendant agreed, in event of purchasing the property, to transfer to plaintiff the notes and accounts for the amount of his bid, and plaintiff agreed to refrain from further bidding. Held, that in an action for defendant’s breach of contract, defendant having bid in the whole of the property, requested charges that if the. contract had a tendency to suppress competition in bidding, verdict should be for defendant, though requiring a finding that it was the purpose of the parties to suppress competition, were properly refused; the contract not necessarily being invalid despite such purpose.
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by J. M. Lafevers against P. G. Taylor and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Neff & Taylor, of Waco, and Chas. L. Black, of Austin, for appellants. Alva Bryan, Cross & Rogers, and Chas. B. Braun, all of Waco, for appellee.
   HODGES, J.

This suit was filed by the appellee, Lafevers, in the court below against P. G. Taylor and the Taylor-Hanna-James Company, a private corporation, to recover the sum of $4,292.65 as actual and $5,000 as exemplary damages for the breach of a contract for the sale of a number of notes and accounts, and in the alternative for their conversion. The evidence shows that the Elk Mercantile Company, doing business in the town of Elk in McLennan county, had filed a petition in bankruptcy, and John Maxwell had been appointed a trustee of the bankrupt estate, which consisted of a stock of goods, store fixtures, and certain notes and accounts. On January 16, 1915, the trustee offered this property for sale at public auction. He separated the estate into three classes, one consisting of the stock of goods, another the store fixtures, and a third of the notes and accounts. He took bids on each of these classes separately. He then added the three highest bids together, and offered the entire lot to any person who would raise the sum of those bids. It also appears from the evidence that when the notes and accounts were offered separately, the appellee had bid $900, the highest price offered for that class. He alleged in his petition that after separate bids were made, and before the sale was completed, he had an understanding and agreement with P. G. Taylor, who then represented the Taylor-Hanna-James Company, that he (Taylor), in the event he purchased the property, would sell the notes and accounts to the appellee for the sum 'of $900. The petition consisted of two counts: The first charged, in substance, that P. G. Taylor, acting for the defendant corporation, agreed with the plaintiff to act as his agent at the bankrupt sale, and in that capacity to buy the notes and accounts for the plaintiff for the sum of $900; the other that the defendants and the plaintiff entered into a contract whereby the defendants agreed that if they were successful bidders at such sale, they would sell him the notes and accounts for the sum of $900. A trial before a jury resulted in a judgment in favor of the appellee against P. G. Taylor and the Taylor-Hanna-James Company jointly for the sum of $2,183:24 as actual damages. This amount is presumably the value of the notes and accounts, less the sum of $900 which the appellee agreed to pay. It is undisputed that P. G. Taylor purchased the goods at the sale and afterwards refused to convey the notes and accounts to the ap-pellee according to the agreement which the appellee alleged was made. The evidence was conflicting as to the existence of any contract between the appellee and P. G. Taylor by which the latter agreed, in the event he was the successful bidder, to sell the notes and accounts to the appellee for $900. Taylor testified that there was no such agreement. The following is the version given by the appellee:

“Just as Maxwell started the bids on the entire stock and fixtures and the accounts and notes together, Mr. Taylor came over to me where I was sitting, and pushed me on the shoulder and said, T want to speak to you.’ We walked to the front end of the store, and Mr-. Taylor wanted to know if I would give $900 for the accounts. I said, T will.’ Pie said, ‘Now, if you will stay out of the bidding I will bid the whole thing in with the understanding that you have the accounts;’ and I was to have the accounts for $900. I said, T will do that; I will stay out with the understanding that you buy the accounts for meand he said he would, We walked back, and that about ended the conversation; and Mr. Taylor went ahead with the bidding, and I didn’t bid another time.”

The verdict of the jury settled the conflict in the evidence in the appellee’s favor.

The first and principal defense urged in this appeal is that the contract relied on is void for the reason that it is based upon an illegal consideration, a promise to refrain from bidding at a public judicial sale. While the court submitted the ease to the jury upon both counts in the petition, we think the testimony, properly construed, shows only an agreement by which Taylor bound himself and his principal, in the event he was successful bidder, to sell the notes and accounts to the appellee for $900, and the latter bound himself to take them at that price. It may fairly be assumed that it was contemplated by the appellee and Taylor that the latter was to buy the entire property then being offered for sale, pay for it from the funds of his company, and then assign a part of it — the notes and accounts —to the appellee. The right of the appellee to demand the delivery of the notes and accounts after their purchase would depend upon his tender of payment according to the terms of his contract. Taylor was therefore acting as the agent of his company, and not for the appellee. But inasmuch as under the facts the measure of damages would be practically the same upon either theory of the plaintiff’s case, there was no reversible error in the charge on conversion.

Treating this transaction as one for the breach of a contract, the question is, Was it based upon an illegal consideration? That an agreement to refrain from bidding at a judicial sale in order to suppress competition and enable the contracting parties to make purchases at a reduced price is illegal and unenforceable is too well settled to now require the citation of authorities. Courts refuse to enforce contracts of that kind because they are founded upon a consideration which involves the perpetration of a wrong by taking an unfair advantage of those who resort to public auctions for disposing of their property. But it is not every transaction which has the effect of suppressing competition that is subject to that particular objection. Courts now seem to look to the intent of the parties in making such agreements rather than solely to the practical consequences which follow, and hold that the mere fact that a competitive bidder is eliminated is not alone sufficient to annul such contract, See cases collated in notes of Coal & Coke Ry. Co. v. Marple, 38 L. R. A. (N. S.) 720. The author of the above notes says:

“The authorities all agree that a contract entered into by several persons under which one of them is to purchase property at public sale for the benefit of all the parties is void as against public policy, and .is ground for setting the sale aside where it appears that it was made to prevent competition at the sale or fpr any other fraudulent purpose. But the great majority of the cases hold that the mere combination does not, of itself, amount to such fraud as to render the contract unenforceable as between the parties or to constitute grounds to set aside the sale.”

As supporting this statement of the law we may refer to the following cases as particularly applicable: James v. Fulcrod, 5 Tex. 513, 55 Am. Dec. 743; Hopkins v. Ensign, 122 N. Y. 144, 25 N. E. 306, 9 L. R. A. 731; De Baun v. Brand, 61 N. J. Law, 625, 41 Atl. 958; Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; Wicker v. Hoppock, 6 Wall. 94, 18 L. Ed. 752; Venner v. Denver Union Water Co., 40 Colo. 212, 90 Pac. 623, 122 Am. St. Rep. 1055; 2 Elliott on Contracts, §§ 760, 761, and notes.

The record before us shows that appellee agreed to take the notes and accounts at a fixed price when purchased by Taylor. It appears that these were the only articles then being offered for sale which the appellee desired to purchase. In order to get them under the mode of sale adopted he was required to either buy all of the bankrupt property or to make an arrangement similar to the one he says he did make. It seems to he conceded that the appellee and Taylor might legally have agreed that one of them would refrain from bidding with the understanding that the other should purchase for their joint benefit all of- the property then being offered. We can see no material difference in principle between that kind of an agreement and the one here assailed. The fact that the parties are to have specific portions of the property purchased would be no more offensive to the law than if they were to own it all in common. The vice, if any, in such an agreement lies, not in the terms of dividing the property, but in the stipulation that only one should bid for it. It cannot be said as a matter of law that ap-pellee’s agreement to take the notes and accounts instead of an undivided interest in the entire property is alone sufficient to vitiate the agreement. The law should be as much concerned in promoting the legitimate rights of the bidder as in protecting those of the parties interested in the property being sold. Its policy is to discourage compacts which are designed to secure an illegitimate and unfair advantage by buying off competition. In the case of Hopkins v. Ensign the court said, in discussing this character of contract:

“When such an agreement is made for the purpose and with the view of preventing fair competition and by reason of want of bidders to depress the price of the article offered for sale below the fair market value, it will be illegal, and may be avoided as between the parties as a fraud upon the rights of the vendor; but, on the other hand, if the arrangement is entered into from no such fraudulent purpose, but for the mutual convenience of the parties and for a reasonable and honest purpose, such agreement will be valid and binding.”

The same court, quoting from an opinion by Justice Swayne in Wicker v. Hoppock, continues:

“The validity of such an arrangement depends upon the intention by which the parties are animated and the object sought to be accomplished. If the object be fair — if there be no indirection — no purpose to prevent the competition of bidders, and such is not the necessary effect of the arrangement in a way contrary to public policy, the agreement is unobjectionable and will be sustained.”

The court, continuing, uses this language:

“The courts will now look to the intention of the parties, and if that be fair and honest, and the primary purpose be not to suppress competition, but to protect their own rights, and there be no fraudulent purpose to injure or defraud others interested in the result of the sale, the agreement may be upheld. The question is one of fact to be determined by the trial court upon the evidence before it.” .

In the case of Wicker v. Hoppock, before referred to, Justice Swayne, referring to a leading case, says:

“In one of the cases to which our attention has been called there was an agreement between two persons that one of them only should bid, and that, after buying the property, he should sell a part of it to the other upon such terms as the witnesses to the agreement should decide to be just and reasonable.”

In the case of James v. Fulcrod a tract of land was being sold at public outcry. The parties entered into .an agreement by which only one was to bid for the entire property, with the understanding that it was to be divided between them afterwards. The court held that such a contract was not against public policy, and said, among other things:

“The law does not require that all who attend at public auctions should bid for all or any of the articles exposed to sale. Were this the case, bidders might be subject to the most ruinous sacrifices to promote the interest of the vendors. They may abstain from action if it be their pleasure or conduce to their advantage. But should they act, they cannot be required to purchase in any other mode or on any other terms than may be advantageous to their own interest — they cannot be permitted to. enter into combinations to stifle competition with the design of purchasing property at less than its fair value; but they may unite in any such number as may be necessary to make the purchase advantageous to themselves — provided this junction of interest be without any dishonest motives or injurious consequences.”

Under the authorities referred to we think the contract here under consideration was not subject to the objections urged.

The appellants requested two special charges, both of which were refused by the court, and we think properly so. In each of them the jury were told that if the contract had the tendency to suppress competition in bidding, to find for the defendants. As we have seen from the cases discussed, that tendency alone is not sufficient to vitiate such agreements.

On the measure of damages the court, charged the jury that if they found for. the plaintiff, to assess his damages at such an amount as would compensate him for the damages suffered, and that in arriving at such sum, they should take into consideration. the reasonable value of the notes and accounts on January 16, 1915, together with 6 per cent, interest per annum therefrom after deducting the sum of $900. Appellants objected to this charge upon the ground that it did not furnish the proper measure of damages, and requested the following, which was refused:

“You are instructed as a part of the law in this case that the measure of damages, if any, is the difference between the contract price, if any, of said notes and accounts and the market value of the same at the time and place of delivery of said notes and accounts.”

The proposition urged under a group of assignments which follows is that the proper measure of damages in suits of this character is the market value of the notes and accounts at the time they were to be delivered. If this cause of action be treated as one for the breach of a contract to sell notes and accounts, the measure of the plaintiff’s damages would be the difference between what he was to pay for them and the value of what he was to get. The only evidence introduced in the trial below tending to show that these notes and accounts had a market value was the testimony of witnesses, who based their conclusions that there was a market value upon the fact that other notes and accounts belonging to bankrupt estates had been sold in that trade territory. How often such sales had occurred, or whether the notes and accounts disposed of on such occasions were against the parties who owned these notes and accounts, did not appear. The fact that a note belongs to the estate of a bankrupt should no more affect its value than it would the value of the bankrupt’s horses and cattle, or land. The evidence relied on was, we think, insufficient to show an established market for the particular notes and accounts involved in this litigation.

In the case of horses and cattle, or stock and bonds having a commercial rating, and other articles of merchandise bought and sold daily in the open market, there is a similarity between the component units of each group which makes the value of some such articles furnish a correct criterion for estimating the value of others. But with evidences of indebtedness the situation is entirely different. One note may be worth its full face value, while others for an equal amount may not be worth 1 per cen^. of that sum. The value in each instance must be determined, not alone by the face of the instrument, but by the solvency and honesty of the debtor; hence no one can tell the value of a debt without knowing something about the debtor. The fact that the note of one individual has sold upon some occasion in the past at a certain percentage of its value is no evidence of what another note against another debtor at a different time is worth. The fundamental purpose of all rules for fixing a measure of damages for the loss of property is compensation. Where the articles lost or injured were intended for sale in the open market, or when there is an established market where others of the same kind and quality may be procured, then the market value furnishes a fair and just standard for measuring the damages. But to resort to the market value when there is none, or when there is one that is not reliable, is not only confusing to the jury, but unfair to the injured party. In this instance the appellee was entitled to recover what he lost, and the amount he lost can be ascertained only by taking into consideration the face of the notes and accounts he contracted to purchase and the solvency and honesty of those who owed those debts. In addition to these they should also consider claims for credits and offsets, if any, which must be allowed upon a final settlement. These conditions are so diverse as to distinguish this class of instruments from other commodities whose value may be determined by a fixed market. Presumably the same conditions which determine the reasonable value of a debt would also fix what the debt would sell for in the market; hence there is little ground for assuming that the market value is less than what would be their reasonable value. If when tested by the market value the appellee would be required to take less than he would have realized from the purchase of the notes and accounts contracted for, the rule would not allow him compensation. When such conditions result courts will not apply a rule so manifestly unjust. We, therefore, conclude that the court submitted the proper measure of damages in this case. This disposes, not only of the objections to the charge, but the assignments based upon the refusal to give the special charge and the exclusion of certain evidence offered by the appellants.

At the instance of the plaintiff the court'gave a charge defining what constituted a conversion. This was objected to upon the ground that it submitted an issue not raised by the evidence, was upon the weight of the evidence, and was misleading and confusing. It appears from the general charge that the court submitted, without objection upon that ground, the issue of conversion. While we are of the opinion that there was no just basis for the submission of that theory of the appellee’s cause of action, we also conclude that there was no reversible error in giving the abstract definition here complained of when no such objection was made against the concrete presentation of that theory in the court’s main charge. The remaining assignments of error are without merit, and are overruled.

The judgment is affirmed.

On Motion for Rehearing.

It is earnestly insisted in appellants’ motion for a rehearing that the special charges requested by them upon the issue of suppressing competition in bidding at tbe sale have not been properly construed by this court in the original opinion.. It is contended that the charges referred to not only required a finding that the contract between Taylor and Lafevers tended to suppress competition, but that such was the purpose of the parties. The language of the charge quoted in appellants’ motion appears to justify that statement, but we do not regard that qualification as sufficient to make the charge,under the facts disclosed, a proper one. If, under such circumstances, the parties have a legal right to make a contract which logically tends to suppress competitive bidding, the fact that it was their purpose to accomplish that end is not, in every instance, sufficient to' vitiate the contract. Let us suppose that' in this case Taylor wanted only the stock of goods and the furniture and fixtures, and that Lafevers wanted only the notes and ac-' counts. Under the plan adopted by the seller neither could get what he wanted without buying the entire bankrupt estate then offered for sale. The law is no more solicitous for the welfare of the seller under such circumstances than for that of the buyer. If the former by an arbitrary arrangement combines and offers for sale articles that may fairly and properly be separated without injury to their value, and thus compels the successful bidder to take all or none, he has no right to complain if two or more competitive bidders, in order for each to get only what he wants, agree upon a division which results in the elimination of one or more bidders. To require them, under the circumstances, to compete with one another would be to force them into a contest no less unfair to them than the fraudulent suppression of bids would ordinarily be to the seller. If bidders may lawfully agree that one only should bid for the entire property, the fact that they intend by that method to eliminate one bidder is no legal objection to the agreement. The mere existence of such a purpose, without any fraudulent design to gain an unfair advantage by a reduction of the purchase price, is not enough to avoid such an agreement upon grounds of public policy. In this particular instance the property had been divided into three lots, upon which separate bids were taken. It is not contended that it was not susceptible of that division; neither is there any intimation that the bids submitted upon the separate offerings were not fair and just. Eor some reason which is not made apparent the trustee refused to accept those separate bids, and grouped all of the property, requiring the successful bidder to raise the aggregate, thereby compelling him to take all of the property or none. The agreement upon the part of Lafevers to take the notes and ac- ■ counts at a stipulated price and to refrain from bidding on the aggregate is not upon its face unfair. There was a minimum below which no bid would be entertained; and this arrangement may have caused Taylor to raise the aggregate to a sum greater than he otherwise would have given had he not been assured of a sale of the notes and accounts for a fixed sum. The case is wholly unlike one where the parties agree to share the property in common in pursuance of a scheme for securing an unfair advantage of the seller.

The special charges which it is claimed the court improperly refused were by their terms as applicable to a fair and legitimate agreement among the bidders as to one which may have had for its purpose the accomplishment of an unfair advantage. Under the facts of this case we think they were correctly refused.

The motion for a rehearing is overruled.
      €=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    TURNER v. GARRARD.
    (No. 272.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 10, 1917.)
    1. Brokers <@=>88(1) — Sale on Land — Annulment on Contract — Evidence.
    In an action for commission for furnishing a buyer for land, evidence held not to warrant a directed verdict for plaintiff, although the contract was admitted but was claimed to have been annulled.
    2. Appeal and Error <@=>1064(1) — Instructions — Harmless Error.
    In an action for commission for procuring a buyer of land, the burden is on the plaintiff to show that a sale was made while the agency contract existed, even though defendant admitted the contract and negotiation with the buyer while it was in force, but claimed it had been annulled before the sale; so that instruction that plaintiff must prove that contract had not been annulled was harmless error.
    Appeal from Liberty County Court; - C. N. Smith, Judge.
    Suit by J. K. Turner against W. G. Gar-rard. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    H. E. Marshall, of Liberty, for appellant. H. B. Pickett, Jr., of Liberty, for appellee.
   HIGHTOWER, C. J.

The appellant, J. K. Turner, who was plaintiff below, filed this suit in the county court of Liberty county, against appellee, W. G. Garrard, seeking to recover judgment against appel-lee in the sum of $225, together with interest thereon at the rate of 6 per cent, per annum from the - day of April, 1916, to the date of payment.

Appellant alleged, substantially in his petition: That at the special instance and request of appellee he procured and obtained a purchaser for a certain tract of land in Liberty county owifed by appellee to which purchaser, so procured by appellant, appel-lee, about the-day of April, 1916, sold said tract of land for a consideration of $4,500; that it was agreed between appellant and appellee that appellee would pay appellant, ■ as a commission on a' sale of tlie land, 5 per cent, of tlie purchase price paid by the purchaser- therefor. Appellant then alleged that after the sale of said land by appellee to ,the purchaser thereof, who was one Stephen Jackson, appellee repudiated his obligation to pay appellant a commission for the sale of said land, and in all things denied his liability to appellant under the contract by which appellee obligated himself to pay appellant said commission, and that appellee-has never paid appellant such commission, or any part thereof.

Appellee answered by general demurrer and general denial.

The case was tried with a jury, to whom the cause was submitted by the court on the following special issue alone:

“Question No: 1. At the time the sale was made by Garrard to Jackson for the 300 acres of land, or at the time Jackson agreed to purchase said land on Garrard’s terms, had the contract .which the plaintiff before that time .had with the defendant about receiving a commission from the sale of the land'been abandoned? And thé above question you will answer, ‘Yes,’ or, ‘No,,’ on a .separate sheet of paper which will . be furnished you for that purpose, and let that ' answer.be signed by your foreman. And in answering the above question, you are charged that the burden of proof is upon the plaintiff to prove the, negative of said question by the preponderance of the evidence, and ‘preponderance of the evidence’,means the greater weight of credible testimony.” '

. The court then ..proceeded to instruct the jury that they were the judges of the facts proved, 'of the credibility of the witnesses, and the weight to be 'given to their testimony, etc. In response to .the,question above submitted by the court, the jury answered, “.Yes,” vUpon this verdict of the jury, the court' entered judgm'ent1 in favor of appel-lee, Garrard, to the effect that appellant, Turher', take nothing by the suit, and that appellee: recover - his costs, etc. Motion' for new trial was seasonably made, which was by the court overruled, and its action in that respect duly excepted- to, and the case is now before us &>r review.

. The--;first-assignment of error complains of the action of the' court below in refusing to give to the jury a 'peremptory instruction requested by - appellant . directing a verdict for appellant-, for the full amount sued for.

It is urged by this assignment that the undisputed evidence showed that the defendant below, Gárrard, had employed the plaintiff, Turner, to procure a purchaser for the land on an agreed commission of 6 per cent., and that Turner procured Stephen Jackson to purchase the land, and was the procuring cause of said llaekson purchasing the land, and that Turner thereby earned the commission sued for, said authority to sell the land having never been revoked or in any manner modified or canceled, and defendant’s intention to cancel or annul same was never brought to plaintiff’s knowledge. 'The proposition under 'this assignment is as follows:

“Where the owner of land agrees to pay an agent a certain commission for selling same for him, and never recalls the offer, time not being the essence of the contract, and the undisputed evidence shows that the land was sold through the procurement of the said agent, the agent is entitled to his commission.”

There seems to be, and really is, no contention by appellee that the verbal contract by which appellee agreed to pay appellant a commission of 5 per cent, for the sale of the land was not made, as claimed by appellant; but it was the contention of appel-lee, on the trial below, and is his contention here, that the contract for the sale of this land on the commission specified was completely abandoned by appellant, and was at an end before and at the time the sale of the land by appellee to Jackson in April, 1916, was made, and that therefore appellee was not obligated to pay appellant anything as commission for the sale of the land to Jackson. Thus, it will be seen that the only real issue on the trial below was whether the verbal contract between appellant and ap-pellee, by the terms of which appellant was to have a commission of S per cent, on the purchase money obtained for said land, was in existence or in effect at the time appellee sold the land to Jackson in April, 1916.

Without attempting to set out the evidence in detail bearing upon this point, because it is unnecessary to do so, we think it will suffice to say that the following constitutes substantially the material portions of the evidence hearing upon this point:

At the time this contract between appellant and appellee for the sale of the land was made, appellant, it seems, was aware that said Stephen Jackson was, desirous of purchasing somé land in Liberty county, and he also knew at the time that appellee was desirous of selling this tract of land; and it was appellant who suggested to- appellee that he could probably obtain a purchaser for the land, and would undertake to do so for the usual commission of 5 per cent, on the sale, to which appellee agreed. Appellant testified that he could not remember, at the time of the trial below, what the price was that appellee agreed with him to take for the land, but was satisfied that the price originally named by appellee was in excess of $4,500, and might have been as much as $6,000, or somewhere between $5,000 and $6,000. Appellant further testified, in substance, that he went to see Stephen Jackson and made an effort to sell him the land for the price, whatever it was, demanded by appellee, and that he finally succeeded in having Jackson come to Liberty county and look at the land, and that, when Jackson saw the property, he declined to buy it at the price for which the same was offered to him by appellant, and stated to appellant that the price asked was too much for the land. Appellant’s testimony further shows that he thereafter again succeeded in having Jackson go to Liberty-county and. look at the land, and that, after talking with appellee about the salé of the land, Jackson again declined to buy, for the reason that the price demanded was more than he was willing to pay for the land. Appellant’s testimony further shows that ap-pellee was anxious to sell the land, and was impatient about 'the matter, and, among other things, stated to appellant that he (appellee) wanted to place other improvements on the land, unless Jackson was going to purchase the same, and that he could not wait much longer about the matter, and that thereupon appellant suggested to appel-' lee that he go ahead and make such improvements on the land as he contemplated making, and that, in the event Jackson should finally take the land, appellee could add the cost of the improvements to the purchase price. This situation seems to have continued during the most of the year 1916, and finally, about January, 1916, according to the testimony of appellant, appellee again inquired of him regarding the probability of Jackson’s taking the land, and that at this time appellant told appellee that the trade to Jackson was off, but that appellant meant by this, that the trade was only off in so far as Jackson’s willingness to take the land at that time was concerned, and that he again suggested that appellee go on and improve the land, if he desired to do so, and, if there should be a sale to Jackson, the cost of the improvements could be added to the purchase price, and that appellant did not mean, by stating to appellee that the trade was off with Jackson, that he (appellant) would not continue his efforts to sell the land to Jackson, but that he intended to continue his efforts in that connection, and to carry out his contract with appellee in that respect. He further testified, in substance, that on the day that the land was, in fact, sold by appellee to Jackson, in Sour Lake in Hardin county, he (appellant) accompanied appellee to Sour Lake to see Jackson, for the purpose, among other things, of assisting in the consummation of- the trade with Jackson, and that on that day in Sour Lake, after the sale to Jackson was made by appellee, he requested appellee to pay him the commission agreed upon for the sale of the land, and that appellee declined to do so, stating at the time that he did not consider that he owed appellant anything for the reason, in substance, that the land was not sold by appellant to Jackson under the contract originally agreed upon between appellee and appellant, and appellee declined to recognize any obligation in1 that respect to appellant.

The testimony of appellee on this point was, in substance, that he made the contract with appellant, by which he authorized appellant to sell the land for him, and that he agreed at the time of making the contract to take $4,500 cash for the land, and told appellant that if he could sell the place for that price he would pay him $225, and that appellant agreed to sell the land or undertake to do so for that price; that appellant, shortly thereafter, mentioned to appelltee that appellant thought he had interested Stephen Jackson in the land, and would perhaps be able to consummate the sale to him on the terms given him by appellee; that appellant did, in fact, get Jackson to come and look at the land, and Jackson came to see the land perhaps several times, but each time declined to buy the land, stating that the price demanded by appellee was more than he was willing to pay, and Jackson never did agree to take the land during the time that appellant was trying to sell the land to him; that some time about the 1st of January, 1916, and after appellee had several times urged appellant to consummate the sale with Jackson, appellant told appellee that the trade was all off, and that he could not sell the land to Jackson, and that appellee then understood that there was no further chance to sell the land to Jackson, and that appellant so understood, and that appellee considered that there was no further contract between him and appellant for the sale of the land; that, in fact, appellant ceased his efforts to sell the land; and that, when appellant told appellee that the'trade was off, appellee told him all right, and the matter was ended, as appellant knew and. understood. Appellee testified, further, in' substance, that on the day the land was sold to; Jackson in Sour Lake by appellee, appellant, in fact, was in Sour Lake, but had gone there, not for the purpose of assisting ap-pellee in the salé of the land, nor was he in any manner connected with appellee in the sale of the land to Jackson at that time, but, on the contrary, that appellant had gone to Sour Lake on that occasion for the sole purpose of bringing a mare home from Sour Lake, and that, in fact, appellant took no part whatever in the final sale-to Jackson.

Joe Boucette, a witness for appellee, testified, in substance, that witness had a conversation with appellant in connection with his claim to a commission for the sale of the land in question, and that in such conversation -appellant said, among other things, “X told Mr. Garrard that I had called the trade off;” that, in making that statement, appellant did not put any condition' to it; that-nothing was said about a con-ditjioni; that this conversation was some time in the fall, while witness was on the-farm; and that it was after Mr. Jackson had finally bought the land. Witness further stated that appellant made the statement to witness several times to the effect that he (appellant) had told Mr. Garrard that the sale of the land to Jackson was off; that in neither of such conversations did appellant put any condition with reference to what he told Garrard at the time the statement that the trade was off was made to Garrard.

Jim McGreight, another witness for appel-lee, testified, in substance, that witness had a conversation with appellant about the commission claimed by appellant, and tnat in such conversation appellant made a remark about having called the trade with Jackson off. This witness further stated that, in connection with the discussion of the commission claimed by appellant, appellant, among other things, said to witness: “I will have to admit that we called the trade off, that is true”; that, in making such statement to witness, appellant did not explain that he had told Mr. Garrard to go ahead and add what improvements he wanted to, and he could charge for the additional improvements he added; that this was the only conversation witness had with appellant about the matter.

We should add further, perhaps, that appellant, on being recalled to the stand, also testified that subsequent to the time he had stated to appellee that the trade with Jackson was off appellee again requested appellant to see Jackson further about the matter, and to continue his efforts to sell the land to Jackson. This statement on the part of appellant, however, was flatly contradicted by appellee.

We believe that the foregoing states substantially the material testimony bearing upon the only contested issue in the case; that is, as to whether, the contract between appellant and appellee for the sale of the land was still in existence at the time of the sale to Jackson, or whether it had been abandoned and considered at .an end between the parties at that time.

Now, the question is: Does this evidence show, without dispute, as in effect contended by this assignment, that appellant was entitled to have a verdict instructed in his favor for the amount sued for, on the ground that he sold appellee’s land or procured a purchaser therefor under the terms of his contract with appellee, and while the same was still in force? We have concluded that such evidence does not show, without dispute, that appellant earned the amount of money claimed, under the terms of his contract with ap-pellee, by selling or procuring a purchaser for the same during the time that the verbal contract between himself and appellee was in force; but, on the contrary, we hold that the evidence was in sharp dispute on this point; and, further, we think that the evidence clearly preponderates in favor of ap-pellee’s contention that appellant had abandoned the contract between himself and ap-pellee to sell the land to Jackson several months prior to the time appellee, himself, sold the land to Jackson, and that this was so understood, both by appellant and appellee, at the time the sale was made to Jackson, and for several months prior thereto. We therefore hold that the trial court was not in error in refusing to give the peremptory instruction requested by appellant, and overrule the assignment complaining of that action.

The second assignment of error complains of the action of the court in giving to the jury that portion of the charge which instructed the jury that the burden rested upon appellant to prove by a preponderance of the evidence that the contract between him and appellee for the sale of the land, and the commission to be paid appellant therefor, had not been abandoned at the time of the sale by appellee to Jackson.

It will be observed, from what we have stated, that the only real issue between the parties was whether or not the verbal contract between appellant and appellee for the sale of the land was, at the time appellee sold the land to Jackson, in effect; and the court, in the submission of the issue to the jury, assumed, as it was authorized to do, that the contract, as declared on by appellant, had, in fact, existed, and only left to the jury to determine whether it was still in existence at the time of the sale to Jackson. The precise complaint in this connection by appellant is that this instruction by the court compelled appellant to prove a negative.

While this court does not give its approbation to the form of the charge here complained of, yet we are of the opinion that owing to the facts and circumstances of this particular case, and the character of the only issue which was left for the determination of the jury we should not hold that the giving of the instruction in this form was such error as should work a reversal of the judgment. It is unquestionably correct to say, and appellant frankly admits, that the burden of proof upon the whole case rested upon appellant, and by the whole case is meant, as we understand it, every material issue of fact necessary to be determined, before the plaintiff would have been entitled to a recovery under the terms of the express contract alleged. Before appellant would have been entitled, as plaintiff below, to have recovered anything against appellee, he was required to prove, in accordance with his allegations, that the contract between him and' appellee had been made, as alleged, and that he carried out his part of such contract, by procuring a purchaser for the land in question upon the terms agreed upon between him and appellee, during the life or existence of the contract between him and appellee, and, if he failed to prove all of these facts, he was not entitled to recover anything, even though it was shown, without dispute, that the contract declared on did, at one time, exist between him and appellee. In other words, appellant had not made out his case merely by proving that at one time there existed a contract between him and appellee, as declared on in his petition, but he was required to go further, and prove that he complied with the contract and sold the land or procured a buyer willing, ready, and able to take the land, during the life or existence of the contract, and had such proof been made, and that issue found in appellant’s favor, unquestionably he would have been entitled to a verdict for the amount of his commission, as fixed by the contract. But falling short in the proof of the fact that a purchaser was procured for the land while the contract was in existence between him and appellee, he was not entitled to recover a commission from appellee under the terms of the contract between them.

We think that the effect of the instruction given by the trial court, although we do not approve the form, was no more than to tell the jury that, before appellant would be entitled to recover, the burden of proof rested upon him to show that he complied with the terms of the contract between him and ap-pellee by selling the land to Jackson or procuring Jackson as a purchaser of same, during the existence or life of the contract, and. that the fact that this instruction, in form, compelled the proof of a negative in this particular — that is, compelled the proof by appellant that the contract had not been abandoned — was not, under the circumstances of this case, prejudicial to appellant. And further, believing as we do, that a preponderance of the evidence adduced on the trial was in favor of appellee’s contention, that the contract between him and appellant for the sale of the land was at an end and so considered by the parties at the time of the sale to Jackson, we have concluded that this assignment does not point out such error as could reasonably be considered prejudicial to appellant, and we overrule the assignment.

The judgment of the trial court is therefore, in all things, affirmed.
      ®=>For other caseá see same topic and KEY-NUMBER in all-Key-Numhered Digests and Indexes


author: SWEARINGEN, J.

text:
    MOORE et ux. v. MOORE et al.
    (No. 5880.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 31, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Wills <®=»62 — Joint Wills as Contracts.
    A husband and wife executed a joint will devising their community land to the children and grandchildren, and providing that on the death of either the survivor should have the exclusive use and control of all property and the use and revenues thereof, with the option, however, of surrendering the property to the executor, who was thereupon directed to proceed with its disposition and distribution. After the husband’s death, the wife probated the will, accepted the revenue and use of the entire estate, and executed a codicil, expressly ratifying the joint will. Held, that the will evidenced an agreement by the survivor to take a life estate in all of the property, and for a valuable consideration, vesting the fee in the devisees.
    2. Wills i@=>1S8 — Revocation oe Joint Wills — Power to Revoke.
    At least after the execution of the codicil, the widow could not abrogate the provisions of the joint will, and she owned only a life estate, and the children and grandchildren owned the fee.
    3.Dike Estates <3=^24 — Mortgages by Dike Tenant — Liability oe Remainderman.
    As the widow owned only a life estate, and as the will gave her no power to sell or mortgage the remainder,, a mortgage executed by her to secure a note made by her and one of the sons covered only the life estate, and where such son paid the note after the widow’s death, the other devisees took their devises free from the lien, and were under no legal liability of contribution.
    Appeal from District Court, Eayette County; Prank S. Roberts, Judge.
    Suit by C. W. Moore and wife against Scott Moore and others. Prom a judgment for defendants,. plaintiff appeals.
    Affirmed.
    Duncan & Burleson, of La Grange, for appellants. L. D. Brown and C. D. Krause, both of La Grange, and J. E. Shropshire, of Brady, for appellees.
   SWEARINGEN, J.

This is a suit by appellants, C. W. Moore and Lizzie Moore, against Mrs. Mattie Redd Northrup and her husband, S. G. Northrup, W. Scott Moore, and T. W. Moore to compel contribution towards, payment of a debt of $2,100, alleged to have been the unpaid debt of Martha Moore, from whom appellees are alleged to have received, by inheritance, real property. The trial court sustained a general demurrer to the pleadings of appellants, and rendered judgment against appellants in accordance with the ruling upon the demurrer. The act of the court sustaining the demurrer is assigned as error and presents the one question for our consideration.

It appears from the pleadings that R. A. Wolters, on December 26, 1905, received a note for $2,100, which was signed by Martha Moore, her son, C. W. Moore, and Lizzie Moore, his wife. The note was secured by a deed of trust on certain property, the title to which depends upon the terms of the joint will of Martha Moore and her husband, T. C. Moore. After Wolters brought suit to collect the amount of the note and to foreclose the deed of trust, appellants, C. W. Moore and his wife, Lizzie Moore, paid the entire amount to Wolters and obtained a release of the entire lien. This payment is alleged to have been a forced payment of a debt due by the estate of Martha Moore. It is alleged that appellees, as beneficiaries of their mother’s will, received real estate. Appellants adopted the allegations of the petition filed by Wolters in so far as the same did not contradict their own pleading, and made the joint will of Martha Moore and T. C. Moore, which was a part of appellees’ answer, a part of their own petition. From the various pleadings thus filed and adopted, it was alleged that T. O. Moore and Martha Moore owned, in community, an estate consisting largely of real property; that on September 3, 1895, they executed the following will:

“The State of Texas, County of Fayette.
“Know all men by these presents, that we, Thos. O. Moore and wife, Martha W. Moore, of said county and state, being of sound mind and memory, and desirous of making disposition of such property with which it has pleased God to bless us, do make and declare this to be our last will and testament, hereby revoking any and all other wills by us at any time made.
“First. Whereas, we have had our lands and lots surveyed and numbered and allotted, and a map of the same made, we hereby make and constitute said map a part of this will which is marked ‘Map No. A’ which is hereto attached.
“Second. We hereby appoint and constitute Charles W. Moore (our son) executor of this our last will and testament and it is our desire that no bond be required of him while acting as such. It is also our desire that no action be had in any court in probating this will further than to return an inventory of our estate, and to prove and record this will.
“Third. In the event that said Charles W. Moore be not living at our demise or the demise of either of us, then it is our desire and we hereby direct that the majority of our sons then living shall choose and elect an executor of this our will, and we desire that no bond be required of the one so elected.
“Fourth. It is our desire and we hereby direct that all of our just debts and funeral expenses be paid out of our estate by the executor of this will as soon after our demise as by him shall be deemed practicable and convenient.
“Fifth. For the purpose of locating and describing the lands herein after devised all lands lying south of a line running east and west, beginning at the N. E. corner of Charles W. Moore’s post oak survey of 35 acres, thence east to the S. A. & A. P. Railroad right of way for cornei-, all south of said line to be known and designated as post oak lands, and all north, of said line to be known and designated as river or valley lands.
“Sixth. We bequeath and devise unto our son, Charles W. Moore, tract No. 1 of post oak lands, as per map hereinbefore referred to, said tract containing twenty acres 'of land more or less. Also we bequeath and devise unto our son, Charles W. Moore, tract No. 7 of river or valley land as per said map containing one hundred and six acres of land, said tract lying north of the line described in the 5th paragraph and containing all of our lands lying north of said line and west of the ,S. A. & A. P. Railroad north to the M., K. & T. RaUroad right of way.
“Seventh. We give and devise unto our son Charles W. Moore the lot or block upon which our home and residence is situated said lot or block lying immediately east of the S. A. & A. P. Railroad and the (3) three fractional lots, fronting on Lafayette street adjoining our residence block, which said lots were purchased by Thos. C. Moore from Bing Admiral and by him from F. A. Hess and wife said fractional lots appearing upon the map of West Point according to the plan of record, the residence block being number 3 on the map hereto attached and referred to.
“Eighth. We give and bequeath unto our son, C. W. Moore, the following personal property to wit: One pair of mules, one yoke of oxen and three milk cows, all of which to be selected by him before disposition be made of any personal property. We also give unto our son, O. W. Moore, the gun, pistol and bowie knife we may die possessed of.
“Ninth. We hereby bequeath and devise unto our son, J. H. Moore, post oak tract No. 2 on map of survey hereto attached containing twenty-nine acres of land more or less, also tract No. 9 river or valley land as appearing on said map, containing one hundred and twenty-eight acres of land more or less.
“Tenth. We hereby bequeath and devise unto i W. S. Moore, our grandson, post oak tract No. 5 as appearing on said map hereto attached containing twenty-six acres of land more or less. Also tract No. 10 river land as appearing on said map or survey hereto attached containing eighty-seven acres of land, more or less. Also one house and lot, to wit, lot No. 5 as appearing upon said map said house known as the Jerry Crawford house. Also block No. 6 as appearing on said map, said block being known as the John Crawford place.
“It is provided, however, that in case of the death of our grandson, W. S. Moore, before this will is proven and recorded, then the bequests and devises as made to him to be null and void, and the property so devised unto him to be equally divided between the other legatees as named in this will.
“Eleventh. We bequeath and devise unto our granddaughter, Mrs. Mattie Redd Northrup née McClellan post oak tract No. 6 as appearing on said map or survey hereto attached containing twenty acres of land more or less, also tract No. eleven of river or valley; land, according to said map or survey containing eighty acres of land more or less. Also block No. 4 as per said map, including the house known as the Ike Simms house, excepting out of said block that portion surveyed off east end of said block known as the Webb tract.
“Twelfth. We bequeath and devise unto our son, Dyer Moore, post oak tract No. (3) three as appears on the map or survey hereto attached containing twenty-nine acres of land more or less. Also tract No. (12) twelve of river land as appears on said map containing one hundred and fifteen acres of land more or less. Also block No. (7) seven and known as the Jack Andrews place.
“Thirteenth. We bequeath and devise unto our son, Dr. T. W. Moore, post oak tract No. 4, as appears on the map or survey hereto attached containing (29) twenty-nine acres of land more or less. Also tract No. (13) thirteen of river or valley land containing one hundred and twenty acres of land more or less, also block No. (8) eight as on said map and known as the Albert McDuffy place.
“Fourteenth. Whereas some of our children and legatees herein, are indebted unto us, in various sums of money, and whereas we do not desire the collection of said money by our executor, we hereby cancel any and all indebtedness due us by them up to August the 31st, 1895.
“Fifteenth. We hereby bequeath and devise unto our daughter-in-law Lizzie D. Moore as a token of our esteem and affection for her patience and kindness exhibited to us, through long years, such buggy and buggy and horse as we may die possessed of.
“Sixteenth. We bequeath unto our son, O. W. Moore our new sole leather trunk for his own use and benefit, also one wagon to be selected by him before any disposition of personal property is made.
“.Sixteenth. We direct that all the residue of our property both real and personal, which is not mentioned herein, be sold by the executor of this will, and upon such terms as by him may be deemed best, and the proceeds arising from the sale thereof to be equally divided between our four sons, and two grandchildren, to wit, J. H. Moore, Dyer Moore, Dr. T. W. Moore, Charles W. Moore, W. S. Moore and Mrs. Mattie Redd Northrup.
“It is expressly provided and directed that in the event of the death of W. S. Moore before the final distribution of the personal property as hereinbefore directed, then the amount of the proceeds as directed to be paid to him, is to be equally divided by the executor hereof between the remaining five mentioned legatees.
“Seventeenth. We direct and desire that at the death of either of us, that this will be offered for probate, as the last will and testament of- the one .deceased, but for no other purpose than to prove and record same, and we expressly direct and desire that the survivor shall have the exclusive use and control of all the property both real and personal, and the use, fruits revenues, of said nroperty shall be the exclusive property of the one so surviving', provided however that the survivor shall have option of the surrendering said property herein bequeathed and devised to the executor herein named and upon such surrender of the property to the executor by the survivor then the executor hereof is directed to proceed with the disposition and distribution of the property both real and personal as hereinbefore directed.
“In testimony whereof we hereunto subscribed our names in the presence of John T. Dris-dale and F. A. Hess who subscribe the same as witnesses at our request in our presence and in the presence of each other this the 3rd day of September A. D. 1895.
“T. O. Moore.
“Martha W. Moore.
“Signed in our presence and in the presence of ea.ch other and we subscribe the same as witnesses at their request this 3rd, 1895.
“J. T. Drisdale.
“F. A. Hess.”

Afterwards T. O. Moore died. The joint will was probated, but Charles W. Moore, it seems, did not qualify as executor, but the widow, Martha Moore, elected to remain in control of the entire estate and use the revenues thereof to the exclusion of all the beneficiaries. On June 18, 1900, Martha Moore, in addition to the evidence of ratification of the joint will by exclusively using the entire estate, expressly ratified the same by a solemnly executed codicil to the joint will:

“The State of Texas, County of Fayette.
“That I, Martha W. Moore, of said County and .State, having in connection with my deceased husband, T. C. Moore, made our mutual Will of date Septr. 3rd 1895, which said Will was duly probated in said County as the last Will and Testament of said T. C. Moore and duly recorded in said County’s probate records in Book or Yol. U pp. 558 to 563 inclusive with all the maps diagrams & plats, thereto attached and being desirous that any will and testament in all particulars conform to said will probated and recorded as aforesaid do declare this my codicil thereto is only to confirm said will probated and recorded as aforesaid in all its particulars as my last Will and Testament, and I do adopt and confirm, and do declare all the bequests and devises, the appointment of the independent executor, with all the powers in him, without any bond, and all'other provisions in said will probated as aforesaid, together with the maps, platts & diagrams thereto attached and recorded as aforesaid this June 18th 1900.
“Mai-tha W. Moore.
“We sign as witnesses at the request of said Martha W. Moore, in her presence and in the presence of each other. J. T. Drisdale.
“L. W. Moore.
“J. P. Haynie.”

Her son, Chas. W. Moore, lived with her and acted as her agent. December 26, 1905, Martha Moore executed the joint note with Charles W. Moore and Lizzie Moore, and executed the deed of trust securing the note. In 1907 Martha Moore died, and the joint will was probated as her will.

The will itself evidences an agreement between Martha Moore and her husband, T. O. Moore, in September, 1895, whereby Martha Moore agreed to take a life estate in all of her husband’s portion of the community property to the exclusion of their sons and , daughters and to reduce her own community rights in the estate to a life estate. By this agreement she and her husband, by a reciprocal agreement between them, arid for valuable consideration to the survivor, vested the fee in their lawful heirs named in the joint will; After the death of T. C. Moore, the widow, Martha Moore, had the power, doubtless, to revoke the joint will, in so far as it was her will, but she did not. On the contrary, she had the will probated, and in accordance with its terms she accepted the benefit of the revenue and use of the entire estate until June, 1900, when she executed the codicil, for the express purpose of further ratifying the agreement made with her husband and expressed in the terms of the joint will.

After June IS, 1900, at least, Martha owned only a life estate in the lands devised by the joint will, and the children owned the fee in the particular real estate allotted to each in the joint will. On December 26, 1905, when the note for $2,100 and the deed of trust were signed by her, she owned only a life estate in the property bequeathed by the joint will. The fee was in the children. The will gave to her no power to sell nor to mortgage the children’s fee title in remainder. She could, of course, mortgage her life estate.

The law applicable to the facts above adduced is so learnedly analyzed and so clearly stated by Mr. Justice Rice, in the case of Larrabee v. Porter, 166 S. W. 395, that we will not attempt to discuss it further than to submit the following quotation:

* * * It seems clear from the authorities, G. W. Larrabee at any time prior to his death, after having probated the will and accepted the benefits thereunder, could not himself have abrogated it. ⅜ * * ”

Appellants alleged no facts tending to raise the issue of innocent purchaser; hence they are limited to the exact title that Martha Moore had in the estate, and nothing better.

When Martha Moore died, the life estate ended. Our conclusion is that the appellees obtained their portions of the inheritance free from the debt, and are under no legal liability of contribution.

There was no error in the judgment, which Is affirmed.
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