author: HUFF, C. J.

text:
    NATIONAL EQUITABLE SOCIETY OF BELTON v. TENNISON.
    (No. 743.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1915.)
    1. Corporations <§=3507 — Actions—Citation —SUFFICIENCY.
    Where the petition, in an. action against a corporation, prayed that citation be served on the president of defendant, while the citation directed service on the defendant in its corporate name, such citation was proper.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1971-1974, 1976-2000; Dec. Dig. <§=>507.]
    2. Process <§=>34 — Citation—Statement of Demand.
    In an action against defendant corporation, where the citation recited that the plaintiff’s demand was a “suit to recover against defendant the sum of $385, together with interest. For a more particular description of plaintiff’s cause of action, see certified copy of plaintiff’s original petition accompanying this writ” — and where the petition sufficiently stated the nature of plaintiff’s demand, such citation was. not insufficient as not sufficiently stating the nature of the plaintiff’s demand; since the petition may be referred to to supply any omission from the citation where the law requires the petition to contain the matter so omitted or defectively stated in the citation.
    TEd. Note. — For other cases, see Process, Cent. Dig. § 28; Dec. Dig. <§=>34.]
    3. Appearance <§=>24 — Waiver of Objections — Service.
    By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1882,' the filing of an answer is an appearance that dispenses with service of citation, and so cured any defect in such service.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. <§=>24.]
    4. Contracts <§=>303 — Concurrent Conditions — Breach—Decision.
    Where defendant corporation was engaged in the business of lending money upon subscription contracts requiring formal applications for loans and making them conditional upon the defendant’s being in funds, but contracted specially with plaintiff to lend the money in 90 days from the date of his subscription, if he would pay $385,. such contract was regulated by its own provisions, irrespective of the general course of business of the defendant, and it was breach of contract for it not to let plaintiff have the loan as agreed upon, although it did not have the money, and could not let him have the loan, and on such breach by defendant, plaintiff, to rescind and recover the consideration paid by him, was not required to procure and tender to defendant an abstract of title to the land which had been intended to secure the loan.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dee. Dig. <§=>303.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by C. L. Tennison against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    B. M. Baker, of Canadian, for appellant. H. E. Hoover,.of Canadian, for appellee.
   HUFF, C. J.

This was an action instituted by appellee, Tennison, against the appellant, the National Equitable Society of Belton, Tex., to recover the sum of $385, with interest, alleged to have been paid by Tennison to the appellant upon a contract, providing that on receipt of the $385 appellant would, within 90 days, lend Tennison $3,500 on approved real estate security. Tennison alleged the payment of $385, the tender of the real estate security, and the failure and refusal on the part of appellant to make the loan of the $3,500, and prayed for judgment, etc.

Tennison further alleged in his petition that the defendant called upon the plaintiff in Canadian, Hemphill county, Tex., for the purpose of inducing the appellee to take out a contract with appellant, and stated to ap-pellee that, if he would take out a contract for $3,500, and would pay the advance assessment of $3S5, the society would at Canadian, in Hemphill county, Tex., on or before 90 days from the date of the contract, loan the appellee, upon real estate security, the sum of $3,500, at 5 per cent.; that the agent, Logue, wrote a letter to the appellant and asked the appellant to write to the appellee for the purpose of inducing the appellee to enter into the contract, and tell appellee that, if he would take out the contract and pay $385, the company would within 90 days loan the appellee the sum of $3,-500; that appellant replied to this letter through its president, and stated that the company would make the loan within 90 days if the appellee would take out the contract; that under this agreement which the appel-lee relied upon, he was induced to, and did, take out the contract and pay over the $385; that appellee did in all things comply with the contract and agreement, and that appellant refused to make the loan; that appellant never intended to carry out the terms of its contract, and that it perpetrated a fraud upon the appellee, and thus procured his money. The petition charges that the appellee repeatedly called upon the appellant to comply with the terms of said contract; that appellant has refused to do so; that appellant has no means or intention of complying with the contract; that he, appellee, repeatedly offered to return the contract; and that the appellant has refused to receive the same or comply with its agreement. The petition makes a tender of the contract in court, and asks that the same be canceled, and that he have judgment for $385.

The appellant answered that the conditions upon which it was bound under the contract with Tennison to make him the loan were that before Tennison could demand the loan he should file with the society an abstract of title to the real estate offered to secure the loan; the adequacy of security and the title to the real estate to be determined by the society or by its executive committee, and not then until the society had money sufficient in amount for the purpose of its reserve loan fund unincumbered with prior claims upon it. The society pleaded, further, that no such security or absteact of title had ever been offered or tendered it by Tennison, and that its executive committee had never been given the opportunity to examine the abstract to ascertain the validity of the title nor the real estate to determine its value; and, further, that at no time has the society had sufficient money in its reserve loan fund unincumbered with prior demands upon it to enable it to make the loan to Tennison demanded by 'him. Appellant therefore insisted it had not breached the contract made with Tennison, or that Tennison had not tendered the real estate security provided for by the contract, nor given the society an opportunity to pass on the question of the sufficiency of the security nor the validity of the title, and that it was not liable to Tennison on the contract, for the additional reason that it had no money unincumbered in its reserve loan fund with which to make the loan.

The case was tried before the court without a jury, and the trial court files findings of facts at the request of the appellant. We adopt the findings of fact made by the trial court, and for the purpose of this opinion we state that the evidence is sufficient to show the contract made and entered into as alleged by the appellee, and that the appellant refused to make the loan in accordance with its agreement with him, and notified him that it did not have the money, and could not loan the money. The facts in this case are furthermore sufficient to show that the contract entered into with Tennison was one not usually made by the company, but, in order to secure a contract with him, entered into a special contract as set out in plaintiff’s petition, and they have failed and refused to comply with the contract and the terms of their special agreement, as alleged by him.

Appellant in the court below sought. to quash the citation on several grounds, which the court overruled.

The first assignment of error is that the court erred in refusing to sustain appellant’s second ground to quash the citation because the citation was not directed to be served as prayed for in the petition; the petition praying that citation be served on E. O. Olabough, as the president of the defendant corporation, and the citation directing service on the defendant in its corporate name. The petition in this case alleges that C. L. Tennison, thereinafter styled plaintiff, complaining of the National Equitable Society of Belton, Tex., alleges that defendant is a corporation; “that E. O. Olabough is the president of said corporation or incorporated association, and that service of process can be had on him in the town of Belton, in the county of Bell, state of Texas;” and the prayer is “that the defendant be cited as the law directs.” The residence of appellee was alleged to be in Hemphill county, and the suit was instituted in the district court of that county, and the domicile of appellant alleged to be in Bell county, Tex. The citation was directed to the sheriff, etc., of Bell county, commanding him to summons “National Equitable Society of Belton, Tex.” The return thereon shows that appellant, National Equitable Society of Belton was served by the delivery of a copy of the citation, together with the accompanying certified copy of the petition, to E. O. Olabough, president.

In suits against a corporation, the citation may be served on the president. Article 1860, Vernon’s Sayles’ Civil Statutes. The petition in this case shows that it is a suit against appellant corporation, and prays that citation be issued as required by law. The allegation in the petition that service could be had upon its president, E. C. Olabough, was proper. While it was not necessary to so allege, it has been held to be proper to state in the petition upon whom service could be had. When the petition and citation so state, judgment can be taken by default without proof -that the person named is the agent of the corporation. If not stated, there must be proof that the person served is the proper person. El Paso, etc., v. Kelly, 83 S. W. 855, 858, and authorities cited.

The above case was reversed by the Supreme Court on another ground, but expressly sustained in the holding as to the citation. 99 Tex. 87, 87 S. W. 660; Railway Co. v. Gage, 63 Tex. 568; Liverpool, etc., v. McCollum, 149 S. W. 775, 777.

The second. assignment of error presents error on the part of the court on the ground that he should have sustained the motion to quash the citation for the reason that the citation failed altogether in stating the nature of plaintiff’s demand against defendant. The appellant presents as propositions: First, that the law requires the statements in the citation to be sufficient to inform the defendant of the demand against him; and, second, when the nature of the demand is not sufficiently stated, the citation is not aided by the advice contained in it that for a more particular description see plaintiff’s original petition accompanying this writ; the citation referring to the petition not constituting any part of the citation. The citation recites:

“The nature of the plaintiff’s demand is as follows, to wit: Suit to recover against defendant the sum of $385, together with interest from August 25, 1913. For a more particular description of plaintiff's cause of action and relief prayed for, see certified copy of plaintiff’s original petition accompanying this writ.”

The citation further directed the sheriff to:

“Deliver to said defendant, National Equitable Society of Belton, each in person, a true copy of this citation, together with the accompanying certified copy of plaintiff’s petition.”

The statement of the demand is not at variance with the demand set out in the petition, and cannot be said, we think, to be a misstatement. It is not set out fully or the grounds upon which it is based given. In this it is distinguishable from the case of Carlton v. Mayner, 47 Tex. Civ. App. 47, 103 S. W. 411. In the case of Pruitt v. State, 92 Tex. 434, 49 S. W. 366, it was held by our Supreme Court that the failure to state the date of the filing of the plaintiff’s petition in the citation was not cured by a certified copy of the petition on which the date of filing was copied. This holding was made on the ground that the file mark was no part of the petition, and the certified copy need not contain a copy of the file mark. Therefore it followed in that case that the court was not authorized to presume that the copy of the petition served contained a copy of the file mark. See, also, Wichita, etc., v. State, 57 Tex. Civ. App. 165, 122 S. W. 427. Where the defendant resides out of the county in which the suit is pending, a certified copy of plaintiff’s petition shall accompany the citation (article 1853), and the officer serving the citation shall also deliver to the defendant in person a certified copy of the petition (article 1857), and his return must show the manner of the service, and must show that a true copy of the citation and that the certified copy of the petition was delivered to the defendant in person (Lauderdale v. Ennis, 80 Tex. 496, 16 S. W. 308). We find upon investigation of the authorities an apparent confusion in the decisions. It is said in the case of Delaware, etc., v. Farmers’, etc., Bank, 33 Tex. Civ. App. 658, 77 S. W. 628:

“The citation in question makes no statement whatever of the nature of plaintiff’s demand, but refers to ‘the certified copy of the petition hereto attached.’ The copy of the petition * * ⅜ ⅛ no part of the citation. Where the defendant, as in this case, liveh out of the county, the statute requires a certified copy of the petition to accompany the citation, and it was to comply with this statute that the copy of the petition was attached to the citation. * * * This statute does not, and was not intended to, change the statutory requirements of a citation.”

That court cites Pruitt v. State, 49 S. W. 366, as supporting the holding. The Court of Civil Appeals for the Fourth District, in Griffin v. State, 147 S. W. 328, citing the two cases last named, nevertheless holds that, where a citation is accompanied with the certified copy of the petition, even though the statement of the nature of the demand was defective in the citation, a reference to the petition for the demand was a substantial compliance with the statute. It said that the Supreme Court, in the Pruitt Case, held such a citation would not support a judgment by default, but the court, in passing on the case, held that such holding would be entirely too technical where the citation refers to the accompanying petition, and the defendant had appeared and made his defense.

In the case of Old Alcalde Oil Co. v. Ludgate, 85 S. W. 453, judgment by default was taken upon the service of the citation, in which the court held:

“The statement of the demand in the citation of itself is not sufficient, but the certified copy of the petition attached thereto, which is shown to have been served on the defendant, supplied its want of fullness, and the failure to state it more fully in the 'writ could not have operated to the prejudice of the defendant.”

In El Paso, etc., V. Hall, 156 S. W. 356, instead of the citation giving a brief statement of the nature of the demand in the place left blank for such a statement, the clerk attached a copy of the petition. This was held sufficient by the court.

In Wood v. Warren, 157 S. W. 301, it is held the copy of the petition accompanying the citation can be looked to for the purpose of supplying the date of the filing of the original petition required by statute to be stated in the citation.

In the Pruitt Case Judge Gaines, it will be observed, held that, as the file mark on a petition is the act of the clerk, and constitutes no part of the petition proper, the court was not therefore authorized to presume the date on the copy of the petition delivered to the defendant contained the date of the filing of the suit. It being a prerequisite made so by statute that, the citation giving the date of the filing of the suit, and its provisions being mandatory, unless there is substantial compliance with the statute, it will not support a judgment by default. The same learned judge, in the ease of Graves v. Drane, 66 Tex. 658, 1 S. W. 905, held, even though the citation did not give all the names of the partners plaintiff in full, the petition which gave all their names could be looked to in aid of the citation. These two cases by Judge Gaines, when rightly understood, do not conflict. The law requires the petition to name the parties plaintiff and defendant, and hence it was held in the Graves Case that the court was authorized to presume, when the defendant was delivered a copy of the petition, he was notified by such service who the parties plaintiff were, and that the court was authorized to look to such petition, while in the Pruitt Case the file mark was not a part of the petition, and no such presumption should prevail. The statute is no more specific when requiring the citation to give “the date of filing” than it is in requiring “the name of all the parties.”

Judge Roberts, in the case of Guimond v. Nast, 44 Tex. 114, held that, where the citation referred to the accompanying petition:

“We must presume that the accompanying ' copy of the petition corresponded with the petition on file, which did state more fully the names of the parties by which the defendant served was fully informed on that subject.”

Kirk v. Murphy, 16 Tex. 654, 67 Am. Dec. 640, holds substantially the same. The evident purpose of tlie statute in requiring the defendant living out of the county to be served with a copy of the petition is to give him full notice of the cause of action and the grounds upon which it is based. When the statement in the citation is not sufficient to give its nature, yet, if the citation itself directs the defendant to the petition for the full nature of the statement of the cause of action in the accompanying petition, we cannot see any good reason why the purpose of the statute had not been fully complied with. It occurs to us that the extent of the holding by the Supreme Court is, where the citation omits some requirement, the petition may be referred to in supplying the omission or in aid of an insufficient citation where the law requires the petition to contain the matter so omitted or defectively stated in the citation; but where the omitted matter is not part of the petition, as required by law, then there is no presumption that the defendant was notified as required by law. This being our conclusion, we overrule appellant’s assignments assailing the action of the court in overruling the motion to quash.

The motion to quash the citation was filed August 25, 1914, and was overruled August 20,1914. On the day the motion to quash was filed the defendant filed its answer in bar of plaintiff’s alleged cause. Upon this answer the case was tried, and final judgment rendered in the case August 26, 1914. We believe under article 1882 the filing of the answer should be treated as constituting an appearance, thereby dispensing with the service of citation. The authorities on this question are not satisfactory, but we believe Judge Fisher states the correct rule in the case of M., K. & T. Ry. Co. v. Scoggin et al., 57 Tex. Civ. App. 349, 123 S. W. 229. Substantially the same ruling was made in the case of Griffin v. State, 147 S. W. 328, in which last case a writ of error was refused by the Supreme Court. King v. Oliphant, 137 S. W. 1167; Degetau v. Mayer, 145 S. W. 1054.

On the merits of the ease we think the facts found by the court were sufficient to justify the judgment. Had not the appellant, by letter, entered into the agreement set up by the appellee, it may be that he would have been required, under the terms of the subscription contract, to have made a formal application for a loan, and to have awaited such time as appellant would have been in funds sufficient to have made the loan; but, under the special terms of the contract as evidenced by appellant’s letter to appellee, and as found by the court, it agreed to lend the appellee $3,500 within 90 days from the date of the subscription if appellee would pay $385. This he paid, and, upon applying for the loan, appellant notified him it did not have the money and could not let him have the loan as agreed upon. This was a breach of its contract to make the loan, and when this occurred we think appellee had the right to rescind the contract and demand the return of his money. When the appellant announced that it would not and could not comply with its contract, we do not think it was necessary to make out an abstract of title and tender the same to appellant, or to show that the board of directors examined and approved the real estate and the loan. When it renounced the contract and refused to comply therewith, appellee, to rescind, was not required to do and show all the other necessary prerequisites which may have been necessary if there had been no renunciation. The renunciation by appellant of the contract gave appellee the right to treat- it as rescinded, and excused him from the necessity of performance on his part. Brown v. Binz, 50 S. W. 483; Cornelius v. Harris, 163 S. W. 346, 349, and authorities cited; Bost v. McCrea, 172 S. W. 561; 9 Cyc. 635. According to the contract alleged and proved, concurrent acts were to be done by the parties. The appellee was to pay $385, and to furnish real estate as security, together with abstracts of title, and the appellant was to loan to him thereon $3,500 in 90 days. In such case, if one party refused to do what he agreed to do, the other party need not do nor formally offer to do what he had engaged to do; readiness to do it being all that he needed to allege or prove. Cornelius v. Harris, supra, citing Cook v. Doggett, 2 Allen (Mass.) 439; Cundiff v. McLean, 40 Tex. on page 394.

We find no error in the judgment of the court, and it therefore will be affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    SMITH BROS. GRAIN CO. v. JENSON.
    (No. 426.)
    (Court of Civil Appeals of Texas. El Paso.
    March 25, 1915.)
    1. Courts <®=121 — Jurisdiction—Amount in Controversy — County Court.
    The county court has no jurisdiction to enjoin the enforcement of a justice court judgment which is for less than $200.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 410, 413-426, 428, 437, 450, 452, 458, 459, 466; Dec. Dig. <g=»121.]
    2. Appeal and Error <⅜=>719 — Assignment op Errors — Necessity—Want op Jurisdiction.
    Error by the county court in assuming jurisdiction to enjoin the enforcement of a justice court judgment for less than $200 is an error of law apparent on the face of the record, and necessitates a reversal, though not assigned or briefed.
    [Ed. Note.' — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <®^710.]
    Appeal from Ward County Court; Burch Carson, Judge.
    Suit by O. P. Jenson against the Smith Bros. Grain Company and another. Judgment for the plaintiff, and Smith Bros. Grain Company appeals.
    Reversed and dismissed.

      J. A. Drane, of Pecos, and Slay & Simon, of Et. Worth, for appellant. B. W. Baker, of Barstow, for appellee.
   HIGGINS, J.

Jenson brought this suit in the county court against H. O. Cantrell, sheriff of Ward county, and Smith Bros. Grain Company, to restrain the enforcement of an execution issued upon a judgment for less than $200 rendered in the justice court. This appeal is prosecuted from a judgment granting the relief sought. The county court has no jurisdiction to enjoin the enforcement of a justice court judgment for less than $200. De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882; Philips v. Sanders, 80 S. W. 567; Lyons Bros. v. Corley, 135 S. W. 603; Staley v. Derden, 57 Tex. Civ. App. 142, 121 S. W. 1136.

No briefs have been filed, but the error of the court in assuming jurisdiction is an error in law apparent on the face of the record and necessitates a reversal, though not assigned or briefed.

The judgment of the court below is reversed, and judgment here rendered that the suit be dismissed.

Reversed and dismissed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: J.

text:
    SMITH BROS. GRAIN CO. v. MILLER.
    (No. 427.)
    (Court of Civil Appeals of Texas. El Paso.
    March 25, 1915.)
    Appeal from Ward County Court; Burch Carson, Judge.
    Suit by John Miller against the Smith Bros. Grain Company and another. Judgment for the plaintiff, and Smith Bros. Grain Company appeals.
    Reversed and dismissed.
    J. A. Drane, of Pecos, and Slay & Simon, of Ft. Worth, for appellant. B. W. Baker, of Barstow, for appellee.
   J.

Miller brought this suit in the county court against H. C. Cantrell, sheriff of Ward county, and Smith Bros. Grain Company, to restrain the enforcement of an execution issued upon a judgment for less than $200 rendered in the justice court.

For the reason indicated in Smith Bros. Grain Co. v. Jenson, 174 S. W. 981, this day decided, the judgment of the court below is reversed, and judgment here rendered that the suit be dismissed.

Reversed and dismissed.


author: HALL, J. HENDRICKS, J.

text:
    CITY OF MEMPHIS ex rel. DIAL et al. v. BROWDER et al.
    (No. 731.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1915.
    Rehearing Denied March 27, 1915.)
    1. Waters and Water Courses <©=>188 — Water Company — Franchise — Construction.
    The grant of a franchise to maintain a waterworks system in a city must be construed strictly against the grantee and in favor of the public.
    [Ed. Note. — For other cases, see Waters' and Water Courses, Cent. Dig. §§ 287, 288; Dee. Dig. <©=>188.]
    2. Waters and Water Courses <⅜=203 — Public Water Supply — Franchise.
    Where a waterworks franchise in its list of maximum rates that might be charged included a provision “churches free,” the company was obliged to furnish water to a church for the operation of a pipe organ, though none of the churches in the city at the time the franchise was granted maintained a pipe organ, and such an instrument could be operated by power other than water power.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 289, 290-299; Dec. Dig. <©=>203.]
    3. Waters and Water Courses <©=>203 — Public Water Supply — Franchise—“Domestic Purpose.”
    If the franchise could be construed to re-fluiré water to be furnished free to the churches only for. domestic and baptismal purposes, the furnishing of water for the operation of the pipe organ would be a “domestic purpose” (citing Words and Phrases, 'Second Series, Domestic Purposes).
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 289, 290-299; Dec. Dig. <©=>203.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Mandamus by the City of Memphis, on relation of W. P. Dial and others, against D. Browder and others. Judgment for the defendants, and relators appeal.
    Reversed and rendered for relators.
    Presler, Thorne & Hamilton, of Memphis, for appellants. • Moss & Leak, of Memphis, for appellees.
   HALL, J.

This was a mandamus proceeding by appellants to compel appellees, who ,are operating the Memphis waterworks, under a franchise, to furnish free of cost to the Methodist Episcopal Church South of that city water required by the church. The action is based upon the terms of an ordinance dated May 7, 1907, granting to appellee D. Browder, his successors and assigns, a franchise to erect, operate, and maintain a system of waterworks in said city. It is alleged that the ordinance by express terms fixed maximum rates and, among other charges and regulations, provided that each church in the city of Memphis should be furnished water free of charge; that water was furnished to said church free of charge until a pipe organ was installed in said church. When appellees began to present bills for water furnished and upon the refusal of the church to pay the same, appellees disconnected and cut off the water supply. It is alleged that the term of the franchise is 25 years.

Appellees answered by general demurrer, special exception, general denial, and specially denied that, under the terms of their fran-' ehise, they contracted to furnish' water free to churches, except for “domestic and baptismal purposes; that it was not contemplated or understood that appellees should furnish water for the operation of a pipe organ, and that such purpose was not contemplated and included within the terms of their franchise; that the pipe organ in said church could be operated by electricity or any other power used for operating machinery, and that appellees had not contracted to furnish power; that they had never refused to furnish appellants with all the water necessary for “domestic and baptismal” purposes, as was understood and agreed by the terms of their franchise; that prior to the installation of the pipe organ appellees had always furnished relators water free of charge, and had not refused to do so except to operate said pipe organ. Other matters are alleged which we think are Immaterial, and will not be stated.

The issues of fact, as well as of law, were submitted to the court, and from a judgment in favor of appellees this appeal is prosecuted. Neither findings of fact nor conclusions of law were filed. The determination of this controversy necessarily turns upon the construction of the franchise. In construing its language the trial court evidently applied the rules of interpretation applicable to ordinary contracts. In this we think he erred. While a franchise is in one sense a contract, they must be strictly construed against the grantee and in favor of the public. If there is a doubt as to the extent of the grant or the rights of the parties thereunder, such doubt must be resolved in favor of the public. Galveston Wharf Co. v. Gulf, Colorado & Southern Ry. Co., 81 Tex. 494, 17 S. W. 57; Ennis Waterworks Co. v. City of Ennis, 105 Tex. 63, 144 S. W. 930; East L. & R. R. Ry. Co. v. Rushing, 69 Tex. 306, 6 S. W. 837.

The Supreme Court of the United States, in Slidell v. Grandjean, 111 U. S. 437, 438, 4 Sup. Ct. 487, 28 L. Ed. 329, 330, used this language:

“It is also a familiar rule of construction that, where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, and there is a doubt as to the meaning of its terms, or as to its general purpose, that construction should be adopted which will support the claim of the government, rather than that of the individual. Nothing can be inferred against the state. As a reason for this rule it is often stated that such acts are usually drawn by interested parties; and they are presumed to claim all they are entitled to. The rule has been adopted and followed by this court in many instances in the construction of statutes of this description. [Authorities omitted.] The rule is a wise one; it serves to defeat ahy purpose concealed by the skillful use of terms, to accomplish something not apparent on the face of the act, and thus sanctions only open dealing with legislative bodies.”

In Muncie Natural Gas Co. v. City of Muncie, 160 Ind. 97, 66 N. E. 436, 60 L. R. A. 822, where the court was construing that portion of the terms of a franchise fixing the price of gas for heating purposes, this language is used:

“For heating purposes, the price of gas was not to exceed ‘three-quarters of the present current price of wood or coal for fuel,’ and the cost of natural gas for lighting was not to exceed a like ratio to the cost of artificial gas. Then follows the provision as to the submission of the schedule of charges for heating purposes; next, the provision that the ‘schedule shall not exceed the price above stated’; and, finally, the then current prices of wood, coal, and artificial gas are fixed. The parties sought a standard, and it ought to be the endeavor of the court, so far as possible, to give to that standard the element of certainty, and not to import elements of uncertainty into it that the parties did not see fit to mention. If there be any question concerning the correctness of this construction, the doubt must be solved in favor of the city, because public contracts should be construed, not contra proferentem, but liberally in favor of the public.”

In the instant case the appellees bind themselves as follows: “Sec. 7. The following maximum rate may be charged by grantee to the consumers.” Then follows a schedule fixing the maximum monthly rate for residences, banks, hotels, etc., and contains this item: “For each church, * * * free.” It appears that at the time the franchise was granted the churches in the city were small frame buildings. Since that date several of the religious denominations, including the members of the Methodist Episcopal Church South, have constructed modern buildings of brick costing between $20,000 and $35,000, provided with pipe organs, steam-heating plants, toilet rooms, and other conveniences of modern churches. It appears that at the time the pipe organs were installed the electric light company in the city of Memphis did not furnish a day current. On this account the pipe organs were installed to be operated with water motors. It is shown that the cost of operating the motor over and above water for other necessary purposes, in and about the Methodist Episcopal Church, would amount to the sum of approximately $4 per month. It does not appear that a day current is yet furnished by the electric light company, but the evidence shows that the organ bellows could probably be operated by one man.

It is insisted by appellees that at the time the franchise was granted it was not contemplated by the parties that water power would ever be used for operating the pipe organ, or they would not have agreed to furnish water to the churches free. D. Brow-der and his son both testified that at that time there was no pipe organ in any of the churches in Memphis; that they had never seen one in this section of the country.

Appellants insist that by any reasonable construction of the franchise it conferred upon appellees valuable concessions; that, since the term of the franchise existed for 25 years in a growing city, appellees might have reasonably expected an increase in the membership of the churches, resulting in more modern and up-to-date structures, to be heated by steam, furnished with pipe organs, and that, because this growth and expansion of the city also enhanced the value of appel-lee’s franchise, they would be compensated for an increase in the amount of water to be furnished to the churches. This argument is persuasive, even though a consideration is not necessary to support a franchise.

Appellees do not allege an ambiguity on the face of the franchise, and, under the authority of Morgan v. Turner, 4 Tex. Civ. App. 192, 23 S. W. 284, we doubt if evidence was admissible to explain such an ambiguity, if any existed. However, the testimony was admitted without objection. If the words “each church free” require and admit of explanation by proof of surrounding circumstances, and such proof creates a doubt, it should have, under all the authorities, been resolved in favor of appellants.

“Public grants of franchises,' powers, rights, privileges, or property in which the government or public has an interest must be construed in favor of the grantor, and strictly against the grantee. ⅜ ⅜ ⅜ This rule applies in cases of doubt or ambiguity in the meaning or interpretation of language used, or whore the grant is susceptible of two constructions; for, if the meaning is plain ánd clear, and the intention obvious, there is no room for construction.” Joyce on Franchises, § 264.

.Appellants contend for the rule that the intention of the parties to a written contract must bd derived from the contract itself when its meaning is clear. Cheveral v. McCormick, 58 Tex. 440; Watrous Heirs v. McKie, 54 Tex. 65; Menard v. Sydnor, 29 Tex. 257. This rule applies with peculiar force to the language used in a grant.

“Corporate powers can never be created by implication nor extended by construction. No privilege is granted unless it be expressed in plain and unequivocal words, testifying the intention of the Legislature in a manner too plain to be misunderstood. When the state means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the powers whi«h belong to her, it is so easy to say so that we will never believe it to be meant when it is not said;. and words of equivocal import are so easily insertéd by mistake or fraud that every consideration of justice and policy requires that they should be treated as nugatory when they do find their way into the enactments of the Legislature. In the construction. of a charter, to be in doubt is to be resolved; and- every resolution which springs from doubt is against the corporation. This is the rule sustained by all the courts in this country and in'England. No other has ever'received the sanction of any authority to which we owe much deference. This court has asserted it times without number.” Pennsylvania R. R. Co. v. Canal Commissioners, 21 Pa. 9.
“Grants of franchises by the state are to be so strictly construed as to operate as a surrender of the sovereignty no further than is expressly declared by the terms of the grant; the grantee takes nothing in that respect by inference.” Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167 (22 N. E. 381, 5 L. R. A. 546).
“Acts of incorporation and other statutes granting special, privileges are to be construed strictly, and whatever is not given in unequivocal terms is withheld.” Moran v. Miami County. 2 Black, 722, 17 L. Ed. 342. “When a statute makes a grant of property, powers, or franchises to a private corporation or to a private individual, the construction of the grant in doubtful points should always be against the grantee, and in favor of the government.” Oregon R. & N. Co. v. Oregonian Ry. Co., 130 U. S. 1, 9 Sup. Ot. 409, 32 L. Ed. 837.

The authorities might be multiplied interminably announcing this rule. R. D. Shure, a witness for appellees, testified that he was an agent engaged in selling pipe organs since 1907; that pipe organs are run principally by water power, but that they could be run by electricity, or by hand levers, but that the majority of such organs now sold are run by water power; .that when he placed a contract with an organ company, which did not specify the kind of power to be used, it was generally understood that it should be operated by water power, because that was the most common form of power used in operating such organs. If we should admit'that the terms of the franchise with reference to furnishing water to the churches is ambiguous, and that neither Browder nor his son had in contemplation the use of water power to operate pipe organs, the testimony of this witness creates such a doubt as to the proper construction to be placed upon that term of the contract as would require it to be resolved in favor of appellants. Yfe gather from the record that churches in Memphis in 1907 had none of the modern conveniences, and that the Methodist Church was heated with ordinary stoves. Appellees could as consistently insist that they should not be required to furnish water for the steam-heating plant, since the church might still be heated with stoves, or with a hot-air furnace. The record does not show that any of the churches had baptistries at that time, and they could as consistently contend that those churches which define “baptizo” to mean immersion, and who doubtless baptized their converts in the creek, should not now be entitled, under the franchise, to sufficient water to fill their baptistries. Such a construction is manifestly too narrow. If we should accept the construction given by appellees, to the effect that the contract bound them to furnish water for “domestic and baptismal purposes only,” still we think the court erred in rendering judgment against appellants.

The word “domestic” is rarely applied to public buildings. In Kimball v. N. E. H. W. Co., 107 Me. 467, 78 Atl. 865, 32 L. R. A. (N. S.) 805, the court said:

“Priv. Laws 1883, c. 168, chartering a water company to supply water for ‘domestic’ purposes, requires the company to furnish water to-operate an elevator in a summer hotel; such' use not being a development of power for commercial or industrial purposes.” W. & P. 2d Series, 131.
“The words ‘domestic purposes,’ as used in an ordinance granting a franchise to a water company, include all uses which contribute to the-health, comfort, and convenience of the family in the enjoyment of their dwelling as a home,. Mitchell v. Tulsa W. L., H. & P. Co. [21 Okl. 243], 95 Pac. 961; Crosby v. City Council of Montgomery [108 Ala. 498], 18 South. 723.” Words and Phrases (2d Ed.) 2d Series, p. 131.

But, disregarding the construction evidently given tlie franchise by appellees, and strictly construing it, either in connection with or without the evidence admitted by the trial judge to explain its terms, we think appel-lees are bound to furnish water to each of the churches in the city of Memphis for all purposes connected with, and appropriate to, the worship and religious exercises and sacraments of the church. Organ music is, of course, an important part of each service, and the choice of power to be used in producing it is a matter which appellees cannot control. They had the right when the franchise was granted to specify and limit the supply of water to be- furnished for any particular purpose. Failing to do this, and having accepted and acted under a franchise binding them in general terms only, they must furnish water for all purposes consistent with the proper conduct and management of such buildings and incident to the religious rights, exercises, and ordinances of that particular religious denomination.

Independent School Dist. of Le Mars v. Le Mars City Water & L. Co., 131 Iowa, 14, 107 N. W. 944, 10 L. R. A. (N. S.) 859, was % case in which a similar franchise was consfrued. The Supreme Court of Iowa did not apply the rule of strict construction to the franchise, but nevertheless said:

“ ‘The following shall be the maximum water rates to be charged annually by said grantee, his heirs or assigns, for the use of water, until changed as hereinafter provided.’ Following this is a long schedule enumerating the service for which the maximum charges are fixed by the section, including therein public and private bathtubs, hotels, restaurants, boarding houses, and public and private water-closets and urinals. _ Churches and schools were designated therein as free. At the time the ordinance was passed the plaintiff owned and used three school buildings, which have ever since been furnished free water for drinking, cleaning, and heating purposes by Dunn and his successors. In 1904 the plaintiff erected a high school building on the site formerly occupied by one of the three old buildings. The new building is modern, and is provided with the usual and necessary water-closets and urinals, which are connected with the sewer system now in use in the city. After the completion of the building the plaintiff applied to the defendant for a sufficient supply of water for said building free of charge, and, the defendant refusing to so furnish it, this action was commenced. * * * The plaintiff’s use of the water was not limited by express language or by implication; and, if the parties contemplated that the future growth and improvement of the city would demand water-closets and urinals in public and private buildings, there is no reason for saying that the public school buildings were excluded by implication from such consideration. It may as well be said that, because there was no sewer at the time, the rate fixed for such conveniences is not to govern.”

The judgment is therefore reversed, and here rendered for appellants.

HENDRICKS, J.

The rule of construction that where, by a statute, or act of the government, or subdivision of same, there is extended a grant, whether of property or of franchise, .is construed strictly against the grantee and in favor of the government, as applicable to the construction of the franchise in this ease, while not dissenting from same, I am not concurring therein. In the examination I have made of the subject with reference to public service corporations enjoying a franchise in performing services to the public, the rule is generally applied in cases where the question involved was whether the government or subdivision had extended the right, or power, claimed by the holder of the franchise to have been granted. Any power not granted is reserved by the government; any right not extended is retained by the grantor; and the rule of strict construction against the grantee is a protection to the government, and you infer it against the holder of the franchise and in favor of the government, where this question of power, or the exercise of the same, are involved. Likewise, where the government grants property, the extent of- the grant is also resolved against the grantee. Of course, in this cause there is a contract with the town of Memphis, and the question of the right to charge the church for water for pipe organ purposes is involved, and in a sense the question of power to charge is involved, measured by the contract; but whether, when the matter of consideration for the grant in favor of the city, or in favor of some other person claiming the right through the city’s dispensation, is involved, I am not wholly prepared to say that the rule of strict construction against the grantee, though it has its force, applies.

I think, however, that the franchise contemplates free water to churches for the life of the franchise consistent with the legitimate needs and purposes of the particular church. If the language, “The grantee herein shall furnish water to all churches free during the period of this franchise for the legitimate use of their church buildings for religious purposes,” had been used, it would mean no less and no more that the actual language “churches free,” as used in this franchise; and to attempt to limit this language to “baptismal” and so-called “domestic” purposes is strained. I think what is contemplated by the contract is the free use of water in the use of the church property for legitimate purposes for the period of said franchise, and that the use of a pipe organ is a legitimate purpose and contemplated by said contract, and the rule of parol proof for the purpose of interpreting its meaning as applied to the character of testimony in this record would not apply.

While not dissenting for the reason stated from the holding as to the application of the rule of strict construction to the franchise, however, I wholly concur in the disposition of the cause on the ground stated by me.
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