author: PLEASANTS, C. J.

text:
    CHRISTENSEN et al. v. CHRISTIANSEN.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1913.
    Rehearing Denied April 24, 1913.)
    1. Master and Servant (§ 302) — Injuries to Third Persons — Scope oe Employment.
    Where defendant’s servant,- employed about a garage and frequently sent out in charge of cars for. carrying passengers, had no authority to use defendant’s automobile, in carrying plaintiff and his wife as passengers for hire, and was using it without defendant’s consent and outside the scope of his employment, the defendant was not liable for injuries to plaintiff resulting from his negligent operation of the car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.]
    2. Master and Servant (§ 330) — Injuries to Third Persons — Actions — Presumption.
    Where plaintiff, in an action 'for injuries resulting from the negligence of defendant’s servant in operating an automobile for hire shows that defendant is the owner of the automobile, and that the servant was employed, by defendant as driver of the automobile, he makes out a .prima facie case against defendant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.]
    Appeal from District Court, Galveston County; Clay S. Brigg, Judge.
    Action by Edwin Christiansen against John Christensen and J. Rasmussen. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    Stewarts, of Galveston, Geo. TI. Burgess, of Dallas, and John .E. Quaid, of Galveston, for appellants. J. B. Darrouzet and James B. & Charles J. Stubbs, all of Galveston, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellants, who compose the firm of John Christensen & Co., to recover damages for personal injuries sustained by him and his wife as the result of the alleged negligent overturning of an automobile of appellants in which appellee and his wife were riding as passengers, and1 which it is alleged was then and there being operated “by appellants and their agents and servants.” It is alleged that the automobile car was run at an excessive, dangerous, and unlawful rate of speed, and on the wrong side of the street or roadway, and though it was nighttime, and very dark, there were no lights on the car, and as a result of such negligence the car ran against a bridge or culvert, collided with a buggy, and was overturned, and appellee and his wife were painfully and seriously injured. The damages sought to be recovered are $10,000 for injuries to appellee and $10,000 for injuries to his wife.

The answer contains a general demurrer and numerous special exceptions, the nature of which it is unnecessary to state. Defendants also deny all the allegations of the petition, and’ specially, deny that they were common carriers of passengers, and denied specially that any of the acts complained of were done by defendants or any one authorized to act for them in the capacity of servant or agent. Defendants further set up that the alleged injuries were caused by plaintiff and his wife assuming the risk of riding in the automobile when in the condition -described in plaintiff’s amended petition, and whatever injuries and damage resulted were caused by plaintiff’s negligence in becoming a passenger in the automobile under the condition alleged, “and defendants further alleged that the machine was under the direction of the plaintiff on the night complained of, and the driver of said car was driving according to the directions of the plaintiff, and plaintiff at all times had control over the machine and driver, and the matters complained of were caused by the plaintiff himself and by the driver following the plaintiff’s directions and instructions.”

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum pf. $2,500.

The evidence is sufficient to sustain the conclusion that appellee and his wife were injured as alleged in the petition by the overturning of an automobile owned by appellants, and in which appellee and wife were riding as passengers, that the overturning of the car was due to the negligence of the driver, as alleged in the petition, and ap-pellee was not guilty of contributory negligence. The evidence also sustains the verdict of the jury as to the amount of damages awarded appellee.

Upon the issue of whether the driver of the car at the time he accepted appellee and his wife as passengers, and undertook to transport them to their desired destination, was the agent and servant of appellant and was acting in the scope of his employment, the evidence is as follows: The appellants own and conduct a garage and automobile repair shop in the city of Galveston. At the time of the accident in which appellee and his wife were injured, and for some time prior thereto, appellants had only two cars in use — one a Ford car, numbered 120, and the other a Rambler, numbered 159. The Rambler car was used in rent service and kept on the streets for the purpose of hire and the carriage of any one who would pay for transportation therein. The Ford car was principally used in connection with the repair business, to carry workmen out to repair cars that had broken down on the road, and to bring cars out of repair to the shop to be repaired. This car was also occasionally rented out on special orders to carry passengers. An employé of the appellants named Sutherland was the driver of the Rambler, and was out in that car looking for business on the night of May 10, 1910, which was the date of the accident in which appellee and his wife were injured. Appellants also had in their employ two repair men, one named Gay and the other Kric-son. These men were mechanics and worked generally' in the repair shop, but both were automobile drivers, and whenever occasion demanded one or the other would take the Ford car and go out to repair cars that had broken down or were out of order, or to bring such cars to the shop for repairs; and, whenever the Ford was sent out on special order to carry passengers, one or the other of these men would drive it. Ericson had frequently been sent out with the said automobile when a call for such service was made at the shop and the other automobile was engaged. He had several times taken parties down the island to the lifesaving station. He was employed by the week in the capacity before stated, and his hours of service were from 7 o’clock a. m. to 12 m. and from 1 p. m. to 6 p. m. He had no authority from appellants to take the Ford ear out of the shop or to use it for any purpose except as before stated, and was not required or expected to be about the shop after his day’s work was over. His fellow workman in the repair shop, Gay, lived in a cottage adjoining the shop, and kept a key to the shop, and had charge of it after appellants left in the evening. * He had a telephone connected with the telephone in the shop, and all calls for assistance in the nighttime by patrons of the shop were answered by him. When a call from a patron came at night, Gay' had authority to take the Ford car, and go out to the relief of any patron who needed assistance. This was the extent of his general authority to use the Ford car at night. He had no authority to permit Ericson or any one else to take this car out at night for any purpose.

On the night of May 10, 1910, Gay had taken a party of friends out to the beach in the Ford ear, and returned to the shop with the car about 11 o’clock. He stopped in front of the shop, and got out of the car to unlock the shop door, and put the car up. Just at this time Ericson came from across the street, got in the car and drove off, saying that he was going to a resort down the Island known as Little Germany to get some friends who had telephoned him to come for them. Gay testified that he did not let Ericson “have the car; he took it.”

The appellee testified that on May 10,1910, his wife, himself, and two friends were at the beer garden known as “Little Germany,” and at 12 o’clock, when they got ready to come home, they found that the street cars had stopped running; that Ericson was there with an automobile, and appellee and his party engaged him to bring them to the city, and agreed to pay him 50 cents a piece for such service. He had never ridden in a car with Ericson before, but he had seen him driving a car about a year before that when he took a friend of his down to the lifesaving station. Harold Hansen, a witness for appellee, corroborates appellee as to the agreement of Ericson to bring appellee and his party to the city for 50 cents a piece. After making this agreement, they got into the car and started back to the city, and had proceeded only a short distance when the car was overturned, and appellee and his wife injured as alleged in the petition. The facts above stated as to the scope of Ericson’s authority and the duties of his employment were testified to by both the appellants and the witnesses Gay and Sutherland. Ericson had left the state, and his testomony could not be procured. In an effort to contradict this testimony, appellee introduced a number of witnesses who testified that at various times they had seen Ericson driving a car of appellants, and on several occasions when the witnesses had wanted a car from appellants Erieson had been sent with the car as driver.. Two or three witnesses testified that they had seen Erieson on the streets in a car of appellants soliciting passengers, but did not fix this at a time which contradicted the testimony of appellants that Erieson had not been sent out with a car in the general passenger service for more than six months before the accident in which appellee and wife were injured.

Under appropriate assignments of error, appellants complain of the verdict and judgment on the ground that the undisputed evidence shows that Erieson in undertaking to transport appellee and wife on the occasion of their injury was not acting in the capacity of servant or agent of appellants, and therefore they cannot be held liable for injuries caused by his negligence.

If Erieson, at the time he took appellee and his wife into appellants’ car and agreed to carry them to their destination, was using the car without the consent of appellants and was not in the discharge of the duties of his employment, no rule of law is clearer in principle or better supported by authority than that appellants are not liable for injury to appellee and wife caused by the negligent operation of the car by Erieson. In the case of King v. Nacogdoches & Southeastern Ry. Co., 146 S. W. 300, the principles upon which this rule is based are stated and many of the authorities in support of the rule are cited. A principal or master being only responsible for the negligent acts of his agent or servant done by his direction or command or within the scope of the servant’s employment, it is necessary in an action seeking to hold one person liable for the act of another to show, not only the existence of the agency or relation of master and servant, but that the act complained of was within the scope of the servant’s employment or agency. In other words, the act must have been done while the servant was in the performance of the duties of his employment. This rule has been applied in a number of cases in which the owners of automobiles have been sued for damages caused by the negligent acts of their drivers.

In the case of Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 339, the Supreme Court of Georgia states the rule, and cites a number of automobile cases in which its application is illustrated. See, also, Lotz v. Hanlon, 217 Pa. 339, 66 Atl. 525, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731. We think in a case of this kind when the plaintiff, as was done in this case, proves that the defendant is the owner of the automobile, and the driver is employed by the defendant as driver of his automobile, that a prima facie ease is made against the defendant. If, however, it appears from the evidence that at the time in question the driver was using the automobile without authority of the owner, and was not in so using it discharging the duties of his employment, the owner is not liable for the negligence of the servant in operating the machine. We think the undisputed evidence, the substance of which wé have before set out, shows that the driver, Erieson, was not in the performance of the duties of his employment in accepting appel-lee and wife as passengers in appellants’ car, and undertaking to carry them to their destination. The uncontradicted testimony of appellants and the witnesses Gay and Sutherland shows that he had no authority to take the car out of the shop, and it was taken without the consent or knowledge of appellants. The fact that he was in appellants’ employment, and that he had frequently been sent out by appellants as the driver of cars used by them for the transportation of passengers, does not tend to contradict the testimony of appellants and their witness that he was not authorized to take the car out on the occasion in question. Appellants testified that they had sent him out on other occasions, and there is no conflict between their testimony and that offered by the appellee.

If the doctrine of estoppel based upon the apparent authority of an agent could be applied in a suit in which the principal is sought to be charged with the negligent act of the agent, neither the pleadings nor the evidence in this case presents that question. We think the assignments before mentioned should be sustained.

This conclusion renders it unnecessary to discuss the other assignments presented in appellants’ brief.

We deem it proper to say that much of appellants’ lengthy brief is taken up in the presentation of questions of no consequence or materiality in determining the merits of the appeal. At least two-thirds of the many assignments of error contained' in the brief present inconsequential and immaterial points. Counsel in preparing briefs for an appellate court should not so burden the court, and require us to waste valuable time in reading assignments and propositions presenting issues that are not material to the disposition of the appeal. The practice of writing unnecessarily long briefs seems to be growing, and often the pleadings and arguments filed in this court could be more properly designated a book than a brief. This practice is the cduse of much of the delay in the determination of appeals and should be discontinued by the profession.

Having reached the conclusion that upon the undisputed evidence the appellants are not liable for the injuries complained of by appellee, it follows that the judgment of the court below should be reversed and judgment here rendered for appellants, and it has been so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    WILLIAMSON et al. v. McELROY et al.
    (Court of Civil Appeals of Texas. Dallas.
    March 22, 1913.
    Rehearing Denied April 19, 1913.)
    1. Appeal and Error (§ 742) — Assignments op Error — Requisites.
    An assignment of error submitted as a proposition but not followed by any statement of the proceedings or part thereof in the record, as required by court rule 31 .(142 S. W. xiii), necessary to explain and support the assignment, will not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Eebob (§ 173) — Questions Not Raised in Tbial Court.
    A defendant in partition, who did not in his answer question the right of the court to partition, but suggested that the same could only be done by a sale, may not on appeal object to a partition on the ground that the trial court had no right to make it.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.]
    3. Partition (§ 12) — Jurisdiction — District Court.
    The district court, having concurrent jurisdiction with the probate court to partition estates where'no administration is pending, has jurisdiction to partition incumbered real estate in the absence of any administration pending, especially where a partition will result in no material injury to any ,of the owners of the property.
    [Ed. ' Note. — For other cases, see Partition, Cent. Dig. § 27; Dec. Dig. § 12.]
    4. Partition (§ 13) — Right to Maintain Partition — Statutes.
    Rev. Civ. St. 1911, art. 6096, providing that any joint owner of any real estate or of any interest therein may compel a partition thereof, authorizes any joint owner or claimant of any estate to compel a partition thereof.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 28; Dec. Dig. § 13.]
    5. Husband and Wife (§ 268) — Community Property — Liability for Community Debts.
    All community property of an estate, except the homestead, is liable for community debts.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 953-967; Dec. Dig. § 268.]
    6. Partition (§' 88) — Community Property —Jurisdiction—Power of Court.
    The district court may partition incumbered community real estate, and, to effect a fair partition, it. may decree, after awarding to persons interested certain lands in severalty, that the land set apart to one of them shall be subject to the incumbrance, especially where the evidence shows that the estate is solvent, and that the land set apart is of value equal to their interests.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 254; Dec. Dig. § 88.]
    7. Appeal and Error (§ 1008) — Findings of Trial Court — Conclusiveness.
    A judgment in partition rendered by the district court hearing the evidence of the value of the land partitioned will not be set aside in the absence of very clear proof of unfairness and abuse of discretion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. § 1008.]
    Error from District Court, Hill County; C. M. Smithdeal, Judge.
    Action by E. A. McElroy and others against Delina Williamson and others. There was a judgment granting relief, and certain of the defendants bring error.
    Affirmed.
    Tom P. Whipple, of Waxahachie, for plaintiffs in error. Morrow & Morrow, of Hills-boro, for defendants in error.

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

   TALBOT, J.

The following statement of the nature and result of this suit is taken from the brief of the defendants in error:

“This suit was brought in the district court of Hill county, Tex., by E. A. Mc-Elroy, Sr., E. S. McElroy, El A. McElroy, Jr., O. B. McElroy, Palley Day McElroy, Idona Carr, and her husband, John Carr, and J. H. McElroy, as next friend for Oscar Mc-Elroy, a minor, as plaintiffs, against Delina Williamson and her husband, James Williamson, as defendants, praying for a partition and distribution of certain real estate and personal property belonging to the community estate of E. A. McElroy, Sr., and his deceased wife, S. A. McElroy. The allegations of the plaintiffs’ petition set out the property belonging to the community estate of E. A. McElroy and his deceased wife, and the value thereof. Said property consisting of real estate situated in Hill, Midland, King, and Martin counties; the value of which real estate and the incumbrances against the various tracts being set put; of personal property of the aggregate value of $4,580; and notes of the aggregate value of $6,160.72. The petition further alleged that there were personal obligations against the estate aggregating the sum of $13,786.24, setting out the nature of each obligation and the amount thereof. The petition further alleged that of said estate E. A. McElroy was entitled to a one-half interest, and each of- the other parties, naming them, to a one-fourteenth interest each, and prayed that a partition of said estate be ordered upon such basis, setting aside to Oscar McElroy his interest in severalty, and to Delina Williamson her interest in severalty, and that the interest of the other parties, E. A. McElroy, Sr., E. S. McElroy, E. A. McElroy, Jr., O. B. McElroy, Palley Day McElroy, and Idona Carr and her husband, John Carr, be set aside to them in an undivided portion; and further prayed that, in partitioning said estate, the obligations existing against same be disposed of.
“Delina Williamson, joined by her husband, answered by general denial and pleaded that the estate could not be partitioned without sale on account of the incumbered condition of the land. Upon a hearing, the court found that E. A. McElroy was entitled to one-half of the property described in plaintiffs’ petition ; that all of said property was the community property of E. A. and S. A. McElroy;. and that each of the other parties were en-. titled to one-fourteenth of said property; found that all of said property was susceptible of partition, and ordered it partitioned among the parties according to their respective interests, the one-fourteenth interest of Delina Williamson to be set aside to her in severalty, and the one-fourteenth interest of Oscar McElroy be set aside to him in sever-alty, and the interests of the others be set aside to them jointly in an undivided portion. The court further found that the obligations and incumbrances against the property and estate were community obligations and that the parties plaintiffs and defendants were charged with the duty of discharging same in the respective amounts of their interests in the property. Commissioners were appointed to partition the property in compliance with this order. The commissioners duly filed into court their report of partition. Said report listed the real estate belonging to the estate, giving the value of each tract and the amount of incumbrance against each tract. The aggregate value of the lands so listed being $84,075, and the total of the incumbrances $19,019, the personal property was listed and valued, the total value being $4,580; the notes due the estate were set out, the total amount of same being $6,160.72, with $297.04 interest, making the aggregate value of the personal property and notes due the estate $11,037.76. The personal obligations of the estate were set out; the total of same being $13,786. The report set aside to Oscar McElroy 19S acres out of survey 98, block 13, Houston & Texas Central Railway survey in King county, free from any incum-brance, valued at $4,557; the entire in-cumbrance against the 640 acres, of which the 198 is a part, to be charged against the remaining portion of said 640 acres, after deducting the 198 acres, and to be paid by the persons to whom the remaining land is set aside. To Delina Williamson was set aside 640 acres in Midland county, valued at $6,-100, against which there was an incumbrance of $1,648. The remainder of the property was set aside to E. A. McElroy, Sr., E. S. McElroy, E. A. McElroy, Jr., O. B. McElroy, Palley Day McElroy, and Idona Carr. Said parties to take the land subject to the in-cumbrances against the same, but they are not to assume the same or make same a charge upon any of the real estate, except the portion thereof upon which they are respectively already an incumbrance. Said last-named parties also to assume all of the personal' obligations of the estate.
“To the report of the commissioners, De-lina Williamson filed her objections, which were, in substance: First, that the report was unfair to her because the property set aside to her was not worth but little more than the incumbrance against it, to wit, $1,-648; second, that her interest was worth $4,-458.96; third, because there were liens, debts, and incumbrances against the estate which would prevent a pártition of same without a sale; fourth, because there were enough notes on hand to pay her her interest; fifth, because the interest set aside to her .did not equal in value $4,458.
“These objections and exceptions were presented to the court, and evidence heard upon them, and the court, after hearing the evidence, confirmed the report of the commissioners and ordered the property partitioned in accordance therewith, and, from this order and judgment, the defendant De-fina Williamson has brought error.”

None of the assignments of error comply with, the late amended rules for the briefing of eases, but the case was tried and final judgment rendered several months before the rules, as amended, became effective.

The first assignment of error, which is submitted as a proposition, asserts that the court erred in rendering - judgment of partition, because there was no evidence offered showing title in the community estate of E. A. McElroy and his wife to the lands attempted to be partitioned. This assignment is grouped in the brief with the second assignment of error, which presents an entirely different question for decision, and besides there is not subjoined to said first assignment a brief statement of such proceeding or part thereof contained in the record, as required by rule 31 (142 S. W. xiii) relating to the briefing of cases, as is necessary to explain and support said assignment-. Indeed, said assignment of error is not followed by any statement whatever pertinent to it. The assignment, therefore, is not in compliance with the rules as they were before amended, and not entitled to consideration. If, however, we were disposed to consider the assignment of error, we are not prepared to say that it points out reversible error. The answer of the defendants practically admitted that the estate sought to be partitioned was community property of E. A.. McElroy and S. A. McElroy, and the trial court expressly found, as appears from the judgment entered, that such was the character of said property.

The second and third assignments of error present the same question for decision, and are, in substance, that the description of the .property in plaintiff’s petition and the report of the commissioners appointed to divide the same show that practically all the property was incumbered to such an extent that the same could not be legally partitioned, until an administration of the estate could be had; that the incumbrance on the lands aggregate $17,977, and the personal debts $12,264, exclusive of interest; therefore the court erred in appointing commissioners to divide said estate among the heirs.

The precise question here presented does not seem to have been raised in the court below. The answer of the defendants does hot seem to have questioned the right of the court to partition the estate, but suggested, that the same could only be done by a sale of the property, and it in no wise claimed that the interests of the parties to the suit were not as alleged in the petition of plaintiffs and as found by the court. The effect of the answer was, in our opinion, not to deny the right or object to a partition of the property, but to insist that partition should be made by a sale of the property and a division among the heirs of the proceeds arising therefrom in accordance with their respective interests. This being true; the defendants are in no position to object in this court to the partition as made and question the right of the trial court to make it for the reason assigned.

Again, there was no administration pending upon the estate in question, and the plaintiffs and defendants, being joint owners of said estate, were entitled, as a matter of right, to have it partitioned among them according to their respective interests; and the district court having concurrent jurisdiction with the county or probate court to partition estates, where no administration is pending, the district court was not without jurisdiction to partition the property involved in this suit, notwithstanding the incumbrances upon it and the debts against the estate, especially where such partition would result in no material injury to either of the owners of said estate.

The plaintiff in error, Mrs. Delina Williamson, joined by her husband, is the only one of the interested parties complaining in this court of the judgment of partition, and that they have not sustained any injury by reason thereof seems manifest from the record. The right of a joint owner or claimant of any estate to compel a partition thereof between the other joint owners or claimants “is recognized by our statute in the broadest terms.” Article 3606, Rev. Stats. .1895; article 6096, Rev. Stats. 1911; Morris v. Morris, 45 Tex. Civ. App. 60, 99 S. W. 872.

The fifth assignment of error is to the effect that the court erred in confirming the report of the commissioners, because the indebtedness against the community estate attempted to be divided was of such a nature that the same could not be shifted as was attempted to be done. The proposition advanced under this assignment is that “all the community property of an estate, except the homestead, is liable for the community debts.” The proposition states the law correctly, but it does not necessarily follow, it occurs to us, that the court erred in confirming the report of the commissioners because of the existence and nature of the indebtedness against the community estate.

The-partition under the circumstances may be unusual, but that the district court of Hill county had jurisdiction to partition the estate cannot be denied, and, for the purpose of effecting a fair and just partition, had the power, especially in view of the fact that the assets of the estate were very largely in excess of its liabilities, to decree, after awarding to the minor, Oscar McElroy, and Mrs. Delina Williamson in severalty certain lands belonging to said estate, that the said Oscar McElroy and the said Mrs. Williamson should “be held free and harmless from the payment of any of the personal obligations (of the estate) and from any of the obligations whi(?h are incumbrances upon the land,” except that Mrs. Williamson was to take the land set apart to her, subject to the incum-brance thereon of $1,648. It appears that the estate was solvent to the extent of $40,-000, and, in the adjustment and partition made, it does not seem likely that either Oscar McElroy or Mrs. Williamson has or will suffer any damage by reason thereof. The evidence is amply sufficient to show that the land set apart to them, respectively, is of value fully equal to their interests in the estate; and if it should be said that creditors of the estate were not bound by the decree, and that the lands decreed to Oscar McEl-roy and Mrs. Williamson are still subject to the payment of all debts of creditors, it may be said in reply that the decree of partition creates in their favor an equitable lien on the lands awarded to other parties to the suit to secure them in a reimbursement of such sums as they may be forced to pay on said debts, and that, in view of the solvency of said estate, it is a bare possibility 'that either of them will ever be called upon by creditors. However, as to Oscar McElroy, he is not here complaining, but, so far as the record discloses, is satisfied with the decision made. .

The contention that the property set apart to Mrs. Williamson was not of the value of the incumbrances thereon is not sustained by the record. The incumbrance is $1,648; Mrs. Williamson’s interest in the estate is $4,458.96; and the evidence shows that the land given her in the partition decree is of the value of $6,100. The district court was vested with authority to determine whether the property involved in this suit was susceptible to partition without a sale, and having determined that said property was capable of division without sale, and having heard evidence as to the value of the land set aside to Mrs. Williamson, and having determined that she received her fair share and interest of the estate, we would not be warranted, in the absence of very clear proof of unfairness and abuse of discretion, to set aside his judgment.

What we have already said disposes of the seventh and eighth assignments of error adversely to plaintiff in error’s contention. At any rate, these assignments do not, in our opinion, disclose reversible error.

We think the judgment of the court below should not be disturbed, and it is affirmed.


author: HARPER, C. J.

text:
    ALBERS v. ROBERTS et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 3, 1913.
    Rehearing Denied April 24, 1913.)
    L Appeal and Error (§ 544) — Statement oe Pact — Necessity.
    In the absence of a statement of facts, the appellate court can consider only such fundamental errors of law as are apparent upon the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 242S, 2478, 2479; Dec. Dig. § 544.]
    2. Appeal and Error (§ 548) — Review—Instructions.
    In the absence of a statement of facts, assignments of error based upon the refusal of special charges, which submit questions of fact or error in the charge given, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 2433-2440; Dec. Dig. § 548.]
    3. Appeal and Error (§ 548) — Review-Questions Presented.
    In the absence of a_ statement of facts, assignments of error relating to the admission of evidence cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 648.]
    Appeal from El Paso County Court; A. S. J. Eylar, Judge.
    Action by J. B. Roberts and another against A. K. Albers. From a Judgment for plaintiffs, defendant appeals.
    Affirmed.
    See, also, 150 S. W. 596.
    Seymour Thurmond and S. P. Weisiger, both of El Paso, for appellant. Stanton & Weeks, of El Paso, and E. B. O’Quinn, of Houston, for appellees.

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

   HARPER, C. J.

This is an action by J. B. Roberts, appellee, as assignee of Mark Miller, to recover of appellant compensation, in the nature of broker’s commission, for securing a purchaser for certain real estate belonging to appellant, and which appellee Mark Miller claimed to have been authorized by appellee to sell. The suit was instituted by an original petition filed on the 27th day of January, 1912. On the 16th day of March, 1912, plaintiff filed his first amended original petition, in lieu of his original petition, alleging that “on the 4th day of September, 1911, the defendant Mark Miller was a land agent and real estate broker doing business in the city of El Paso, El Paso county, Tex.; that the defendant A. K. Albers, on said date, to wit, the 4th day of September, 1911, owned lots Nos. 18, 19, 20, 21, 22, and 23, in block No. 2, Sunset Heights addition to El Paso, Tex.; that the defendant A. K. Al-bers desired to place said lots upon the market and to make sale of the same; that he did on said date make and enter into a verbal contract with the said Mark Miller, as land agent and broker, to sell for him, the said A. K. Albers, said lands; that the said Albers authorized and employed the said Miller to sell the said lots on the following terms, to wit, $5,000 to be paid in cash, and as much more as said Miller could get over and above $11,000; that- said Miller was authorized to sell said land for any sum in excess of $16,000; that any excess over $16,000 was to be his commission for selling said land; and that the said Albers would require the purchaser to pay as much as $5,000-down and the remainder to be paid in equal payments in 1, 2, and 3 years, together with 8 per cent, interest from date. And it was specifically agreed and understood that if the said Miller should sell the said land for a greater sum than $16,000 that the said Al-bers would pay the said Miller as commission all in excess of $16,000 out of the $5,000 payment then and there to be made. Plaintiff would further represent to the court that said Miller did on said 4th day of September, 1911, sell said land to one F. R. Tobin, and. that said sale and contract was in writing, whereby said F. R. Tobin agreed and bound himself to pay to said Albers the sum of1 $17,000 for said lots of land, and that he-agreed to pay $5,000 in cash, and three notes, for equal payments, payable in 1, 2, and 3 years, and that said contract was reduced to-writing, and that the said Tobin did deposit in the Rio Grande Valley Bank & Trust Company a certified check for the sum of $500 to guarantee his good faith in the premises.”

March 21, 1912, plaintiff filed a trial amendment wherein he alleged that if he was “mistaken in alleging in his petition that the commission or amount to be received by said Miller, over and above the aforesaid sum of $16,000, was to be paid out of said $5,000 cash payment, which was to be made by the said Tobin, and that if he is mistaken in alleging that there was an express contract to that effect, the said plaintiff alleges in the alternative that at the time of making of the aforesaid contract, as set forth in the first amended original petition of plaintiff, there was a well-known and existing general custom among the real estate agents and landowners to the effect that, upon a sale being made by real estate brokers or agents, the commission would be paid out of any cash payment to be made under the terms of said sale, and which custom and usage existed in the city and county of EJ Paso, Tex., and was well known to the owners and real estate brokers of El Paso, Tex., and was well known to all of the parties to the aforesaid contracts, and set forth in the aforesaid amended petition, and that, in any event, the said custom being general in its character, the said defendant A. K. Albers, and other persons connected with transactions, are chargeable with notice of said custom nnd the terms and provisions thereof.”

Defendant answered by general and special exceptions and general denial, and other special answers and pleas which it will not he necessary to recite, inasmuch as the general denial put in issue the allegations of plaintiff’s pleading upon which he sought to recover.

The case was tried in the county court of El Paso county, beginning on the 21st day of. May, and ending on the 23d day of May, 1912, before a jury, which returned a verdict in favor of plaintiff and against appellant for $1,000. Judgment was rendered in accordance with the verdict, and on the 3d day of June, 1912, appellant’s motion for a new trial was overruled and appellant gave notice of appeal.

There being no statement of facts which can' be considered by the court under its rules, our consideration of the case must be confined to such fundamental errors of law as are apparent upon the record. The statement of facts was heretofore stricken out by this court because not in conformity with the statutes and rules of this court. We therefore consider the assignments of error in appellant’s brief only with a view to find if there is fundamental error in the record, for otherwise the motion of appellees to strike out the brief should prevail. .

The first assignment charges that the court erred in ref using the third and fifth special charges requested by defendant, to the effect that if the jury believes that Albers authorized Miller to sell the property at the price of $16,000 net to Albers and upon terms of “$5,000 in cash, and three notes for equal payments, payable in 1, 2, and 3 years, and that said contract was reduced to writing, and that the said Tobin did deposit in the Rio Grande Valley Bank & Trust Company a certified check for the sum of $500 to guarantee his good faith in the premises,” because the charge of the court must conform to the case made by the pleadings and be limited to the facts alleged in the pleadings and be supported by the evidence. “If you believe from the evidence in this cause that the defendant A. K. Albers did, as alleged by plaintiff, authorize the defendant Mark Miller, a real estate agent, to secure for him (Albers) a purchaser of the property described in plaintiff’s petition at the price of $16,-000 net to Albers and upon the terms of $5,000 to be paid in cash and the balance of $11,000 in three equal annual payments, or said balance of $11,000 on terms to suit the purchaser, and that Miller was to be compensated, if at all, by what he should sell the property for in excess of said $16,000, and you further believe that said Miller secured in F. R. Tobin a purchaser of said property, ready, able, and willing to buy said property at the price of $17,000, payable $5,-000 in cash and $12,000 to be paid in three equal annual installments of $4,000 each, and that under and by virtue of such contract of sale, had the samé been consummated, the defendant Albers could not have received, after deducting from the cash proceeds of such sale and paying to defendant Miller $1,000, as much as $5,000 in cash,without selling or transferring or negotiating one or more of the promissory notes, then in such ease, and if you so find, the plaintiff cannot recover of defendant A. K. Albers, and if you so believe and find your verdict should be for the defendant A. K. Albers. You are charged that if you believe from the evidence that the defendant A. K. Albers authorized the defendant Mark Miller, a land agent, to secure for him (Albers) a purchaser for the property described in plaintiff’s petition at the net price of $16,000 on terms of $5,000 cash and balance on time, but that Albers did not agree to pay Miller anything for his services in securing said purchaser, other than that Miller should secure such sum as said Miller should sell said property for in excess of said net price of $16)000, then in such case, and if you so find, you are charged that at this time and in this suit for the plaintiff to recover herein, it would be incumbent on him (plaintiff) to show by a preponderance of the evidence that Miller' had secured a purchaser ready, able, and willing to purchase said property at a price exceeding $16,000 and to pay in cash such excess over and above said $16,000. Therefore, if you believe from the evidence that Miller did secure a purchaser in F. R. Tobin, ready, able, and willing to purchase said property, but that said Tobin did not agree or contract to pay any greater sum or part of the purchase price in cash than $5,000, you are charged that plaintiff would not be entitled to recover anything of this defendant Al-bers.”

' It will be noted that the special charges complained of submit questions of fact, and therefore cannot be considered by this court in the absence of a statement of facts in the record.

In the case of Mayo v. Goldman, 44 Tex. Civ. App. 80, 97 S. W. 1061, the court holds that errors assigned which relate to the charge of the court cannot be considered in the absence of a statement of facts, and is a settled law of this state.

This rule inhibits consideration of the second and third assignments for the same reason.

The fourth assignment complains that the court erred in permitting counsel for plaintiff to ask a witness a certain question. Under Boyette v. Glass, 140 S. W. 819, we hold that, as there is no statement of facts here, the assignments relating to the evidence cannot be determined.

There being no fundamental error apparent upon the face of the record, and no error assigned, the cause must be affirmed, and it is so ordered.


author: RAINEY, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. SEARS.
    (Court of Civil Appeals of Texas. Dallas.
    April 5, 1913.
    Rehearing Denied April 19, 1913.)
    1. CakbieRs (§ 281) — Passengers—Incompetent Persons.
    Where plaintiff, an insane person, boarded defendant’s train without a caretaker, and his condition was evident to persons observing him, the carrier was bound to exercise a very high degree of care to protect plaintiff from harm while he was a passenger and to restrain him, if necessary, to prevent him from leaving the train before reaching his destination.
    [Ed. Note. — Por other cases,' see Carriers, Cent. Dig. §§ 1093-1097, 1241; Dec. Dig. § 281.]
    2. Trial <§ 194) — Instructions—Assumed Pacts — Weight oe Evidence.
    Where the insane condition of a passenger was evident to the carrier’s servants when he boarded the train, from which he subsequently alighted before reaching his destination and was injured, an instruction that the failure of defendant’s servants to restrain him constituted negligence, instead of leaving that question to the jury, was not objectionable as a charge on the weight of the evidence.
    ' [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    3. Trial (§ 194) — Instructions—Weight oe Evidence.
    Where an insane passenger was permitted to wander from the train at an intermediate station, where he was subsequently struck by another train and injured, an instruction that the duty of protection imposed on a carrier towards passengers must he in proportion to the passenger’s condition, and if he is physically or mentally infirm and the carrier has notice of such disability it must exercise the highest degree of care that would be used by a very cautious, prudent, and competent person to transport the passenger in a safe condition, was not erroneous as on the weight of the evidencei nor as invading the province of the jury, since, while the standard of care remains the same, the law requires that the amount of vigilance be in proportion to the exigencies of the occasion.’
    , [Ed. Note. — Por other cases, see Trial. Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Appeal and Error (§ 1068) — Instructions — Measure oe Damages — Excessive Verdict.
    Where the verdict for personal injuries is not attacked as excessive, the judgment will not be reversed because of a confusing instruction on the measure of damages.
    ■ TEd. Note. — Por other eases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    5. Appeal and Error (§ 1195) — Decision on Pormer Appeal — Law oe Case.
    A determination on a prior appeal that the porter of a carrier had no authority to receive an incompetent person as a passenger was the law of the case on retrial.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    . Action by William Sears, by next friend, against Chicago, Rock Island &’ Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 130 S. W. 1019.
    N. H. Lassiter and Robt. Harrison, both of Pt. Worth, and Bennett Hill and Dabney & Townsend, all of Dallas, for appellant. Hatton W. Sumners and Leake & Henry, all of Dallas, for appellee.

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

   RAINEY, C. J.

Thi§ suit was filed in the district court of Dallas county, Tex., by William Sears, by next friend, G. R. Sears, to recover damages against the Chicago, Rock Island & Gulf Railway Company, on the allegations that on December 2, 1906, the plaintiff, who was then temporarily of unsound mind, took passage over the defendant’s line of railway from Lawton, • Okl., to Dallas, Tex.;, that it was the defendant’s duty to give him that degree of care which was made necessary by his condition; that he was negligently permitted by the defendant to leave the train at Chickasha; that, while there, his condition became worse, and he was again placed upon a train at that- point for the purpose of completing his journey to Dallas; that the officers of the defendant were advised of his mental condition, and with full knowledge of this condition they undertook to care for him with the degree of care made necessary by his condition; that he was unable to take care of himself, apd it was necessary that he should be protected and restrained in order to prevent his injuring himself; that he was negligently permitted to escape from the train at Ring-gold, at which place he remained until the next day, and while there his condition was apparent to the representatives and agents of the company, including the station agent, telegraph operator, and the section foreman; that the defendant negligently failed to give the plaintiff protection while at Ringgold; and that he was struck by an engine of the defendant company near the depot at that place. It was alleged that he was seriously injured, and that, in addition to his other personal injuries, the temporary mental aberration was caused to be permanent. The defendant pleaded a general denial, and averred that the plaintiff’s injuries were the result of his own contributory negligence, and of the negligence of his custodian, who placed him on the train at Chickasha, in permitting and causing the plaintiff to embark upon the said • train unattended while he was mentally unsound. Further, that it had in force, at the time of the plaintiff’s injury, a written rule and instruction forbidding its employés to accept as a passenger any disorderly person, and that by reason of this rule no trainman or employé had any authority to accept the plaintiff as a passenger under the circumstances alleged in the plaintiff’s petition, and if any such action was taken by an employé, as was alleged, in tbe plaintiff’s petition, it was done in violation of this rule, and was without authority on the part.of the employs so accepting him as a passenger. Further, it was averred that the plaintiff was, before he undertook this journey, hopelessly and permanently insane. The case was tried on June 22, 1912, and a verdict was returned in favor of the plaintiff for the sum of $5,000, from which verdict and the judgment thereon the defendant has duly appealed to this court.

Conclusions of Fact.

The following statement is taken principal ly from the .brief of appellant: Wm. Sears, then 42 years of age, apparently sound mentally, left his home in Dallas, to make a visit of a few'days in Lawton, Okl. While there he showed signs of mental unsoundness, and it became clear to the gentleman whom he was visiting that his mind was unbalanced. Two days after the first appearance of this mental unsoundness, he bade his host farewell and went to the depot to take passage for Dallas, and after buying his ticket became possessed of the hallucination that some of the people on the platform wanted to rob him, and he determined to remain over until the following morning. At the time he left for Dallas, he appeared to be rational, and his conversation with his host and the members of the family was intelligent. He left the train at Chickasha, and went to the postmaster, telling him that he had come for protection, that he was afraid of being attacked and robbed, and tried to hire the postmaster to accompany him home for protection. The postmaster turned him over to the chief of police, L. D. Hopkins, who took care of him 'for about three hours until train time, at which time he took him to the depot and put him on the train. Hopkins testified that when he put him on the train he told the porter or brakeman to take care of him, and that the porter or brakeman said he would, and that after the train had started, and by the time it had run perhaps the length of the platform, he jumped off the train. Another train was due in a few minutes, so they waited until that train came in, and Hopkins put him on this second train and says he told the porter to take care of him. At Ringgold he jumped off the train about 100 yards south of the depot about 4 o’clock in the afternoon. There is no evidence that any agent of the defendant knew that Sears got off the train at Ringgold, or that any agent at Ringgold knew that he was, or had been, a passenger on defendant’s train; but a sec-tionman saw Sears jump off the train at Ringgold, and afterwards saw him acting strangely. He spent the night at Ringgold, being a part of the time in the depot, and indicated to observers that he was mentally unbalanced during this time. The next morning'he went about two miles north of Ringgold to where the section gang was at work, and talked to them for a while, and while near them a passenger train api proached, which struck him, breaking his leg and inflicting a wound on his head. Sears is now permanently and hopelessly insane, and the testimony is conflicting as to whether or not there was any hope for an improvement in his mental condition prior to the accident. The defendant’s testimony was to the effect that no charge was given to any trainman with reference to the • plaintiff’s condition, and that none of the trainmen knew anything about his being mentally unbalanced. Sears was in a badly insane condition during the time he was at Chickasha, and this fact was noticeable to any one observing him. The representatives of the railway company, at Ringgold, including the station agent, telegraph operator, and three section foremen, knew that Sears was insane and unable- to take care of himself. The helpless condition of Sears was observed by all persons with whom he came in contact. On the train between Chickasha and Ring-gold, and while Sears was at Ringgold, wandering about the railroad tracks, up to the time he was hurt, nothing was done in any way to protect him from injury, although trains were constantly passing and repassing on the line of defendant through the Ring-gold station.

Conclusions of Law.

The first assignment of error is: “The court erred in that portion of its charge to the jury wherein it instructed them as follows: ‘Now, if you find and believe from the evidence that William Sears, the plaintiff in this case, when in a condition of unsound mind, was a passenger on a train of the defendant, and that his mental condition was such that it was reasonably probable that, if left unrestrained to follow his own course, it would result in physical harm and injury, either to others or to himself; and the defendant or its agents or employes charged with the duty of looking after the safety of its passengers had notice or knowledge of such mental condition on the part of William Sears, and failed to exercise- the high degree of care that would be exercised by a very cautious, prudent, and competent person under similar circumstances to restrain the said William Sears and to keep him in safety, and through the failure, if any, of the defendant, or its agents or employés, to exercise such degree of care, the said William Sears was permitted to leave, and did leave, the train of defendant at or about the station at Ringgold, Tex., and as the proximate result of being thus permitted to place himself at large, or as the proximate result of the agents or employés of the defendant at Ringgold failing, if they did fail, to exercise the care of ordinary prudent persons to prevent, the plaintiff from going upon the track of the defendant at Ringgold, under the circumstances in which he did, if you find that they had knowledge of his demented condition, if he was in a demented condition, or as the direct - and proximate result of both such causes united, the plaintiff was run upon by an engine of the defendant and received personal injuries • as alleged in his petition, then you will return a verdict in favor of the plaintiff’ — as set up in paragraph 45 of the defendant’s amended motion for a new trial.” The proposition submitted under this assignment by appellant is: “The charge is upon the weight of the evidence, and invades the province of the jury in assuming that it was the defendant’s duty upon the conditions stated to exercise the high degree of care that would be exercised by a very cautious, prudent, and competent person under similar circumstances to restrain the plaintiff. It was for the jury, and not for the court, to determine whether, under the circumstances, a cautious, prudent, and competent person in the exercise of a high degree of care would have restrained or attempted to restrain the plaintiff.”

The condition of William Sears when received by the company was such as required a very high degree of care on the part of appellant to protect him from harm while he was a passenger. It was appellant’s duty to look after and watch him to prevent his leaving the train, and if necessary in the exercise of that degree of care to restrain him from so doing. This was the measure of appellant’s duty, and we see no error in the court so telling the jury. If it was probable that injury would result to him or to others by reason of his leaving the train, then the only practical way, we think, for the servants of appellant to exercise that care, was to restrain or prevent him from leaving the train. It may not have been necessary to have used force for that purpose, but that end could doubtless have been accomplished by persuasion as he was not violent.

Ordinarily, it is error for the court to charge the jury that certain facts constitute negligence per se, unless the act has been made negligent by the statute; but in this; as with all general rules, there are exceptions, as said by Hr. Justice Gaines, speaking fof the court in Railway Co. v. Gasscamp, 69 Tex. 545, 7 S. W. 227: “According to the rule in this court, in order that an act shall be negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say without hesitation or doubt that no careful person would have committed it.” So, ih this case, if the appellant’s servants knew of Sears’ condition, and the jury, by their verdict, have found that they did, we think it clearly appears from the evidence that common prudence dictated that Sears should have been restrained, and the charge of the court was not error. In any event, the servants, as shown by the evidence, used no care to prevent his leaving the train, and we are unable to see that the use of the word “restraint,” as used in the charge, under the evidence could possibly have been prejudicial to the appellant.

The second assignment of error is: “The court erred in that portion of its charge to the jury wherein it instructed them as follows: ‘The duty of protection which the law imposes upon the carrier toward the passenger must also be in proportion to the passenger’s condition, as, if he is physically or mentally infirm and the carrier has notice of such disability, if any, it must exercise the high degree of care and prudence that would be used by a very cautious, prudent, and competent person to transport the passenger safely to his destination in view of his infirm condition’ — as set up in paragraph 42 of the defendant’s amended motion for a new trial.” The criticism is as follows: “The charge is upon the weight of the evidence, and invades the province of the jury in stating that the duty of protection which the law imposes upon the carrier toward the passenger must be in proportion to the passenger’s -condition.”

This charge is not on the weight of the testimony, nor does it invade the province of the jury in telling them the duty owing by the appellant to invalid and helpless passengers. While the standard of care remains the same, the law requires the amount of vigilance to be proportioned to the necessities and exigencies of .the occasion. Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 520; Railway Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; Railway Co. v. Keeling, 102 Tex. 521, 120 S. W. 847; Railway Co. v. Coopwood, 96 S. W. 102; Railway Co. v. Redeker, 45 Tex. Civ. App. 312, 100 S. W. 362. Appellee was a helpless passenger on appellant’s train, and the court in its charge only told the jury the principle of law required in such a case, and in this there was no error.

The third assignment complains of the court’s charge on the measure of damages. This charge is a little confusing, but we think it becomes harmless, as there is no assignment complaining of the amount of the verdict, as the verdict is not attacked as being excessive, and if the "charge is error it will not be cause for reversal of the judgment.

The contention is made that the porter had no authority to receive Sears as a passenger and the company is not bound by such act in receiving him in his then condition. This question was considered by us on the former appeal and we adhere to our former holding. Railway Co. v. Sears, 130 S. W. 1019.

Appellant presents other assignments of error, and we have considered them all; but none in our opinion point out reversible error. The court correctly submitted to the jury all controverted issues and gave ¿11 special charges where applicable and not covered by the main charge, and where charges were refused and were not covered by the main charge there was no error in the refusal thereof.

The evidence, we think, fully supports the judgment, and it is affirmed.


author: SPEER, J.

text:
    STEPHENS COUNTY v. PALO PINTO COUNTY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 8, 1913.
    Rehearing Denied April 12, 1913.)
    Counties (§ 7) — Boundaries—Establishment— Statutory Pbovisions.
    An established and definitely marked boundary line between two counties, recognized by the Commissioner of the General Land Office and the two counties at the time of the adoption of Rev. Civ. St. 1911, § 1400, providing that the county boundaries as recognized and established are adopted as the true boundaries, is the boundary line, though not mathematically correct.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 3; Dec. Dig. § 7.]
    Appeal from District Court, Parker County ; J. W. Patterson, Judge.
    Action by Palo Pinto County against Stephens County. From a judgment - for plaintiff, defendant appeals.
    Reversed and rendered.
    N. N. Rosenquest and Fred W. Frost, both of Breckenridge, and Alexander, Power & Ridgway, of Ft. Worth, for appellant. J. T. Ranspot, of Palo Pintó, J. C. Houts, of Mineral Wells, and Stennis & Wilson, of Weatherford, for appellee.

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

   SPEER, J.

This is an action brought under article 1385, Revised Statutes 1911, by Palo Pinto county against Stephens county to establish the boundary line between those counties. The honorable district judge of Parker county, before whom the cause was tried, made the following findings of fact:

“(1) I find that in October, 1883, the commissioners’ court of Stephens county appointed W. M. McConnell, then county surveyor, to proceed, on the 3d Monday in November, 1883, to survey and establish the boundary line between plaintiff and defendant counties, and that the commissioners’ court of Palo Pinto county appointed Joel McKee, county surveyor of that county, to join in that survey, and that said McConnell and McKee, together with H. M. Berry, deputy surveyor of Palo Pinto county, began on the 3d Monday in November and made a survey of the boundary line between said counties, and that said line is practically the same, as the line surveyed by J. J. Metcalf in 1857; that the field notes of £aid survey of 1883 were returned to, approved, and recorded in the minutes of the commissioners’ court of each of said counties; that in November, 1887, the commissioners’ court of Palo Pinto. county sent a certified copy of said field notes to the General Land Office of Texas, but said office, nor the commissioner, never recognized said filed notes; that only five surveys through which said line passed were called for by said field notes, and no plat accompanied the same.
“(2) I find that said McConnell and Me-. Kee survey of 1883 was a well-marked line upon the ground, with marked corners and milestones, and that the field notes are the same as set out in plaintiff’s petition, and that the plat of said survey sent to the General Land Office by M. Y. Smith in 1906 is a correct plat of the said survey of 1883. •
“(3) I find that T. W. Brown, a practical surveyor, made a survey of said boundary line between plaintiff and defendant in 1888 and 1889, acting under orders of both the county and commissioners’ courts of Stephens county, but I find the evidence that notice was given to Palo Pinto county is insufficient to show legal notice, and I find that Palo Pinto county did not appoint a surveyor to assist in making said survey; that the Brown field notes and proper plat were returned and recorded in the minutes of the county and commissioners’ courts of Stephens county, and in 1889 a certified copy of said field notes and plat were returned to and filed and approved by the General Land Office, and since that date has been recognized by the General Land Office as the true boundary between said counties; that said Brown line of 1889 began for its north starting point 30 miles west of the west line of Parker county.
“(4) I find that said Brown line was, and is since 1889, a well-marked line upon the ground, with marked corners and milestones; that its field notes are the same as set out in the defendant’s original answered herein.
“(5) I find that said line of 1899 is, at its north end, 797 vs. and at its south end 1,100 vs. east of the McConnell-McKee line of 1883.
“(6) I find that from 1857 up to 1889 the territory in dispute was under the supervision and control of Palo Pinto county, and that since 1889 and up to the present time said disputed territory has been under the supervision and control of Stephens county.”

Upon the facts so found, which we adopt, in so far as necessary to support our judgment, judgment should have been rendered establishing the boundary line according to the field notes set out in appellant’s original answer. In the view we take of the case, no other question need be considered or decided, save that raised by appellant’s contention that article 1400 (822). of the. Revised Statutes of 1911 is decisive of the controversy in its favor. That article was adopted in 1895, and reads as follows: “The county boundaries of the counties in this state as recognized and established are adopted as the true boundaries of such counties, and the acts creating such, counties and defining the boundaries are continued in force.” The above findings show without dispute, we think, that at the time this act became a law the boundary line contended for by appellant had been established, and was recognized by the Commissioner of the General Land Office and both interested counties. It can make no difference whether this line, commonly known as the Brown line, is mathematically correct or not. It was the purpose of the act quoted to quiet all controversies over county boundary lines where, at the time the act took effect, such lines were established (that is, definitely marked and known) and recognized, irrespective of the accuracy of such surveys. It is a wholesome statute, and should be liberally construed and enforced.

The judgment of the district court is accordingly reversed, and judgment here rendered establishing the boundary line between appellant and appellees according to the field notes as set out in appellant’s original answer.

Reversed and rendered.


author: KEY, C. J.

text:
    KOLLMAN v. BROOKS et al.
    (Court of Civil Appeals of Texas. Austin.
    March 12, 1913.
    Rehearing Denied April 9, 1913.)
    Brokers (§ 64) —Compensation — When Earned.
    A broker, employed to procure a purchaser of real estate under an agreement that in the event of the failure of the purchaser to take the land no compensation shall be paid, may not recover compensation where the purchaser procured by him refused to perform the contract and the owner accepted the sum specified in the contract of sale as liquidated damages and relieved the purchaser from liability.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. § 64.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action by Will Kollman against M. E. Brooks and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    W. A. Barlow, of Taylor, for appellant. W. H. Tarkington, of Taylor, and Nunn & Love, of Georgetown, for appellees.

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

   KEY, C. J.

This is a suit for compensation, alleged to be due from appellees to appellant for services rendered as a broker in the sale of a tract of land. The county court rendered judgment for the defendants, and the plaintiff has appealed.

The judge filed findings of fact which are supported by testimony, and adopted by this court. The facts show that appellant procured two prospective purchasers, who entered into a written contract with appel-lees in reference to the purchase of the land. The contract contains a stipulation by which the proposed purchasers obligated themselves to pay appellees the sum of $500 as liquidated damages, should they fail and refuse to take the land in accordance with the terms of the contract. They did so' fail and refuse, and, after repeated efforts on the part of appellees to induce them to comply .with the contract and take the land, appellees accepted from them the sum of $500 as damages, and thereby released them from their obligation to take the land. The findings of fact show, in effect, that before the written contract for the sale of the land was entered into, it was agreed and understood between appellant and appellees that, in the event of the purchasers’ failure or refusal to comply with the contract and take the land, appellant was to receive no compensation. The trial court found, in effect, that appellant had rendered all the service necessary to entitle him to recover, with the exception that he had not procured purchasers who were willing or bound to take the land. Counsel for appellant contends that notwithstanding the stipulation binding the purchasers to pay $500, as liquidated damages for a failure to comply with the contract, appel-lees had the right to waive any claim for damages, maintain a suit for specific performance, and compel the purchasers to take the land. We find it unnecessary to decide that point, because we sustain the ruling of the trial court upon the other point. The facts found by the trial court show that it was understood and agreed that appellant was to receive no compensation unless the contract of purchase was voluntarily complied with. Appellant contends that proof of the latter agreement was not admissible, because there was no pleading to authorize such proof. The case originated in a justice of the peace court, where pleadings may be oral, and it does not appear that such plea was not interposed. Besides, much less strictness and particularity is required as to pleadings in justice of the peace courts. In fact, the record indicates that the defendant’s answer included that plea.

No reversible error has been pointed out,, and the judgment is affirmed.

Affirmed.


text:
    GLOBE-WERNICKE CO. v. B. DEUTSER FURNITURE CO.
    (Court of Civil Appeals of Texas. Galveston.
    March 5, 1913.)
    1. Sales (§ 384*) — Remedies of Buyer-Counterclaim: for Breach of Contract-Measure of Damages.
    In an action for a seller’s breach of contract to repurchase goods at the net price at which they were sold to the buyer, the measure of damages is the difference between such net price and the market value of the goods' at the time of the breach.
    [Ed. Note. — For other cases, see Sales, Cent; Dig. §§ 1098-1107; Dec. Dig. § 384.*]

      2. Sales (§ 379) — Remedies of Buyer— Counterclaim fob Breach of Contract— Judgment.
    In an action or counterclaim for damages for breach of a seller’s contract to take back goods at the net price agreed to be paid therefor by the buyer, where there was no evidence •of the market value of such goods at the time of the breach, but only at the time of the trial, so that the correct measure of damages might be determined, a judgment for the buyer should be reversed.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1094; Dec. Dig. § 379.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by the Globe-W'ernicke Company against the B. Deutser Furniture Company, with counterclaim by defendant. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. Smith, Crawford & Sonfield, ■of Beaumont, for appellee.

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

   PLEASANTS, C. J.

This suit was brought "by appellant against appellee to recover $224.95 alleged to be due upon an account for goods and merchandise sold appellee by .appellant. Appellee, defendant in the court below, acknowledged the indebtedness claimed by plaintiff, but pleaded as set-off and •counterclaim thereto damages claimed to be ■due it by plaintiff for failure to comply with its contract to repurchase from defendant, .-at the net price at which it had sold them to defendant, the goods for the unpaid balance of the price of which plaintiff sues. ‘The amount so claimed by defendant was the .sum of $685.35. The trial in the court below with a jury resulted in a verdict in favor of defendant for the sum of $261.56, which was the difference between the amount ■claimed by plaintiff and the amount found by the jury to be due defendant on its counterclaim. After the return of the verdict the defendant filed a remittitur of $207.09, .and judgment was rendered in its favor for .$54.27.

It would serve no useful purpose to dis-cuss in detail the several assignments of. er.ror presented in appellant’s brief, and we will ■ content ourselves with a brief statement of the reasons upon which our conclusion, that the judgment of the trial court should be reversed, is based.

Under the facts pleaded and proven, ■ defendant’s measure of damage for the breach by plaintiff of its contract to take back the goods sold by it to the defendant at the net price agreed to be paid for the goods by the -defendant was the difference between such net price and the market value of the goods .at the time of the alleged breach by plaintiff • of its contract by refusing to take and pay for said goods according to its contract. There was no evidence of what the market value of the goods was at the time plaintiff refused to repurchase same from the defendant. The only testimony in regard to the market value of the goods was that of B. Deutser, president of defendant corporation. This witness testified, in answer to some question which does not appear in the statement of facts: “Tes, sir; they (meaning the goods in question) have a market value. No, sir; the market value is not as great to us as if we had the various parts to fill the various orders. It is all right for somebody who has the line, because they can fill in, they have some value, there is no question about that. I would estimate the market value of them to be from 40 to 50 per cent, of the net cost. It has less value to the B. Deutser Furniture Company than the market value. I estimate it to be worth to the B. Deutser Company as stock, considering the character of the stock and the method of selling it and the method at which you would have to fill in, at 25 per cent, of the net value.”

We do not think any other interpretation can be placed upon this testimony than that the witness was giving his estimate of the market value of the goods at the time he was testifying, which was two years after the alleged breach of the contract by the plaintiff. Manifestly this testimony was not sufficient to show the market value of the goods at the time of the alleged breach of the contract. Other testimony in the case tended to show that the value of the goods, or at least some of them, would decrease each year because of change in the style or fashion of manufactured articles of this kind. There was no evidence that the market value of the goods was the same at the time of the trial as at the date of the alleged breach of the contract; but, on the contrary, the testimony before stated indicates that the value of the goods at the date of the alleged breach of the contract was greater than their value at the time the witness fixed such value at 40 to 50 per cent, of their net cost price. Recognizing that it was only entitled to recover as damages the difference between said net cost price and the market value of the goods at the time of the alleged breach of the contract, appellee remitted 40 per cent, of the amount of the verdict, which allowed defendant credit for the full net price for which the goods were sold by plaintiff. This remittitur reduces the amount of defendant’s recovery to the market value of the goods at the time of the trial; but as this was not the measure of defendant’s damage, and there is no evidence in the record showing what defendant’s damage was under any legal or proper rule for its measure, the judgment based on the verdict and remitti-tur cannot be affirmed. For aught that appears in the record, the market value of the goods at the. time plaintiff refused to take them may have been as great or greater than the price which plaintiff had agreed to give for them, and in such case defendant suffered no damage because of plaintiff’s refusal to take the goods.

We think it is clear from the evidence that the goods designated as cabinet supplies were not included in the goods that plaintiff agreed to take back from the defendant, and no recovery can be had for the failure of plaintiff to take such goods.

The court did not err in submitting to the jury the question of whether defendant accepted plaintiff’s offer to take the goods within a reasonable time after such offer was made, and the verdict upon that issue is simply supported by the evidence.

What we have said disposes of the material questions presented by the appeal.

For the reasons above stated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


author: RICE, J.

text:
    TURNER v. STEPHENS.
    (Court of Civil Appeals of Texas. Austin.
    April 2, 1913.)
    1. Animals (§ 44) — Wrongful Killing oí? Dogs — Issues—Evidence—Admissibility.
    A defendant in an action for the wrongful killing of dogs of plaintiff may show on the issue of exemplary damages that shortly before the killing he had found his sheep killed by dogs, though he relies alone on a general denial.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. § 44.]
    2. Animals (§ 44) — Weongeul Killing— Inconsistent Instructions.
    An instruction in an action for the wrongful killing of dogs directing a verdict for plaintiff for the amount of the value of the dogs as shown by the evidence, and an instruction that a person may protect his property against any unlawful attack by any vicious animal, and if defendant believed that the dogs had killed his sheep, and the dogs were killed, in his inclosure, the verdict must be for him, are inconsistent and erroneous.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. § 44.]
    3. Teial (§ 251) — Issues—Insteuctions.
    The court may not charge on a matter outside of the issues raised by the pleadings, and on which a verdict may be rendered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    4. Animals (§ 44) — Weongeul Killing op Dogs — Issues.
    A defendant in an action for the wrongful killing of dogs who relies alone on a general denial may not excuse or justify the killing; and to show excuse or justification he must plead it.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. § 44.]
    Appeal from Concho County Court; C. F. Cottrell, Judge.
    Action by J. T. Turner against J. M. Stephens. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    A. 6. Walker, of Brady, for appellant.

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

   RICE, J.

On the 15th of January, 1912, appellant, Turner, owned two well-trained dogs, which were shown by the evidence to have been killed by appellee’s son in accordance with his, appellee’s, directions. It appears that a short while before these dogs were killed 18 head of appellee’s sheep had been killed, presumably by dogs, though it does not affirmatively appear that these dogs had anything to do with said killing. After said sheep were killed, appellee instructed his son to set his traps in the pasture nearby the place of the killing for the purpose of catching whatever may have killed them. In a day or two thereafter his son found two dogs caught in his traps, which he reported late in the evening to his father, who directed him to kill them next morning, which he did. These dogs were afterwards seen and identified by appellant as his. This suit was brought by appellant against appellee to recover damages, both actual and exemplary, for said killing. Ap-pellee answered by general exception and general denial. A jury trial resulted in a verdict and judgment in behalf of defendant, from which this appeal is prosecuted.

The first assignment complains of the action of the court in permitting appellee to testify over appellant’s objection that the week before his son had killed the dogs he found 18 head of his sheep dead in his pasture, which appeared to have been killed by dogs, on the ground that appellee had not pleaded any justification or excuse for killing same. It is- true that evidence going to show such excuse or justification cannot Be offered in defense for recovery of actual damages, but only on the issue of exemplary damages under a general denial. See Towner v. Sayre, 4 Tex. 30; Sasser v. Davis, 27 Tex. 659; G., H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 688; Mims v. Mitchell, 1 Tex. 443; Coles v. Kelsey, 2 Tex. 542, 47 Am. Dec. 661. So that the evidence was admissible under the pleading on the issue of exemplary damages.

It is said in 8 Cyc. p. 563, that “a plea in confession and • avoidance is one which avows and confesses the truth of the aver-ments of the fact in the declaration, either expressly or by implication, but then proceeds to allege new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them.”

At the instance of appellant the jury were instructed, in effect, to return a verdict for him against defendant for such amount as actual damages as the dogs were shown to be worth under the evidence; and likewise the court gave, at the instance of appellee, an instruction to the effect that a person has the right to protect his property against any unlawful attack made by any person or by any vicious animal, and that if they should,believe that appellee .killed the dogs, but further believed that they had been destroying his sheep, and that the dogs at the time they were killed were caught in his inclosure, then.to return a verdict in favor of defendant. ■ This last charge is made the basis of the second assignment, on the ground .that it should .not have been given for the reason i,.that- it was contradictory of the first charge, and was not authorized by the pleadings or .the evidence, and in our judg-ment must be sustained for both of said ■reasons.- Where contradictory charges are given x>n a material issue, the rule is to reverse the case, unless it is shown that no prejudice has resulted therefrom. " See San Antonio & Aransas Pass Ry. Co. v. Robinson, 73 Tex. 284, 11 S. W. 327.

It is not permissible for the court to charge on a matter outside of the case as made by the pleadings and upon which the verdict might have been rendered. See H. & T. Y. Ry. Co. v. Terry, 42 Tex. 455; Loving v. Dixson, 56 Tex. 79; Markham v. Carothers, 47 Tex. 22.

In the present case, appellee relied alone upon a general denial; therefore no evidence tending to show excuse or justification was proper, and, in the absence of such plea, such evidence, if offered, could not support a finding in his favor. And, since it is clear that the jury must have based their verdict upon such theory, such charge was prejudicial and necessitates a reversal. . It is therefore ordered that the judgment of the court below be reversed, and the cause remanded.

Reversed and remanded.


text:
    TEXAS CENT. R. CO. v. ELDREDGE.
    (Court of Civil Appeals of Texas. Dallas
    March 22, 1913.
    Rehearing Denied April 19, 1913.)
    1. Master and Servant (§ 6) — Contract-s of Employment — Actions por Breach-Evidence. '
    In an action on a parol agreement to employ plaintiff for life in consideration of his written release of a claim for damages for the I9SS of an eye, where the release recited a consideration of only $74.25, evidence as to the circumstances surrounding the accident and the extent of the injuries was admissible as bearing on the probability of such contract having been made.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 6; Dec. Dig. § 6.]
    2. Evidence (§ 317) — Hearsay — Contracts op Employment — Actions por Breach.
    In an "action on a contract to employ plaintiff for life in consideration of his release of a claim for personal injuries, evidence as to the knowledge of defendant’s representative, who procured the release, that defendant’s attorneys had given an opinion that defendant was not liable for the injuries was hearsay and inadmissible; it not appearing that plaintiff was present or knew of such opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174r-1192; Dec. Dig. § 317.]
    3. Master and Servant (§' 3) — Contracts op Employment — Enforceability.
    A contract by an employer to' employ an employé for life in consideration of his release of a claim for damages for personal injuries was sufficiently definite as to the time of employment to be enforceable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 2, 3; .Dec. Dig. § 3.]
    4. Contracts .(§ 10) — Mutuality — Contracts op Employment.
    An agreement to employ plaintiff for life in consideration of his release of a claim for damages for personal injuries was not nonenforceable because optional on plaintiff’s part as to how long he would remain in the employment, where he accepted work thereunder and continued to work for defendant for about eight years and until discharged; this being notice to defendant that he intended to work for the time stipulated in the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.]
    5. Master and Servant (§ 3) — Contracts op Employment — Enforceability.
    An agreement to employ -plaintiff for life in consideration of his release of a claim for damages for personal injuries was’ npt nonenforceable because there was no stipulation as to the compensation, .character of his services, or the manner of performance, where he was a machinist and following the agreement worked as such for a number of years without any dispute as to the compensation, character of work, or manner of its performance.
    [Ed. Note. — For other cases,, see Master and Servant, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.] -
    6. Evidence (§§ 417,'419) — Parol Evidence Affecting Writing.
    A parol agreement to employ plaintiff for life in consideration of his written release of a claim for damages for personal injuries, which release recited a money consideration, could be proved either under the rule that parol evidence is admissible to show the consideration for a contract, although the contract is in writing and expresses a consideration therein, or under the rule that, where a contract is part in writing and part verbal, the verbal part may be established by parol evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1899, 1912-1928; Dec. Dig. §§ 417, 419.]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Action by E. L. Eldredge against the Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex. S. Coke, of Dallas1, and Spell & Sanford and W. E. Spell, all of Waco, for appellant. Morrow & Morrow, of Hillsboro, for appellee.

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

   RAINEY, C. J.

Appellee was' an employe of appellant, and while at work in the'performance of his duties' in January, 1903, in appellant’s machine shops situated at Walnut Sp'rings, Tex., was struck in the eye by a piece of wood which caused the loss thereof. Some months thereafter appellee signed a written release for such damages as he had sustained in consideration of 574.25, recited therein, but at said time it was understood and agreed that, as a further consideration for the execution of said release, appellant was to give appellee a lifetime job. Appel-lee then went, by virtue of said agreement, into and continued in said position until August. 1911, when he was discharged without fault on his part, and in violation of said agreement. This suit was brought by appel-lee to recover against appellant for a breach of said contract to employ him for life. Appellant pleaded a general demurrer, general denial, and the statute of limitation of two years.

A verdict and judgment were rendered in favor of plaintiff for 51,750, from which this appeal is taken.

Appellant’s first assignment complains of the admission of appellee’s testimony on direct examination when he stated what he was doing and where he was at the time he received his injury, who he was working for, and what his duties were, to whom the saw belonged, as to the ball of the eye being gone and not being able to see out of that eye, as to the amount of pain caused, and as to the condition of his sight since one eye was gone.

The proposition submitted under said assignment is: “The evidence admitted over the objection of the appellant, as disclosed by the above and foregoing bills of exception, was immaterial and irrelevant in that it did not tend to elucidate or make plain any relevant fact that was authorized by the plaintiff’s pleading upon which the case was tried. The effect of the introduction of such testimony was to improperly influence them in the matter of reaching a verdict, in that it tended to inflame their minds and appealed to their sentimental nature, and in no wise could it or did it tend to aid them in determining the crucial point in the case, to wit, whether or not the appellant and ap-pellee entered into a contract of settlement as alleged and for the consideration alleged in said contract, and, further, as1 to whether or not the said contract had been breached by defendant, as alleged.”

The petition of plaintiff had alleged, in effect, that appellant had breached a contract wherein it had agreed to give him employment for life in consideration of a release of damages arising from the loss of an eye by appellee; the injury having been sustained while engaged in the performance of his duties as appellant’s employs. It was neeesL sary for plaintiff to sustain his allegations by proof of a consideration for the promise of appellant to give him a lifetime job, as the making of said agreement was part in writing and part in parol, and that in parol was denied by appellant, about which the evidence was conflicting. The evidence objected to was admissible as a circumstance to show the probability of the making by appellant of a promise for a lifetime job, when the consideration stated in the written contract was 574.25, which was exceedingly small for the loss of an eye.

Complaint is made of the court’s action in not permitting R. M. Cox to testify that Clark and Bolinger, appellant’s attorneys, just after appellee was injured and before the release was executed by him, had given an opinion as to appellant’s liability to appellee for said injury, which opinion was adverse to appellee’s right to recover. We are of the opinion that said testimony was clearly hearsay and not admissible. That Cox, acting for appellant in making the settlement, had in view the opinion of appellant’s general attorneys is in no way binding on appellee; he not being present or knowing of said opinion, and his actions not having been influenced by same.

The following charge was requested by appellant and refused by the court, of which the appellant complains, viz.: “You are instructed that the evidence in this case is insufficient to support a judgment for the plaintiff in this ease; you will therefore return a verdict for the defendant.” Under this assignment, it is urged that, “where a contract of the nature and kind alleged in the appel-lee’s petition forms the basis of a suit, or, for that matter, a basis for agreement to do or not to do a particular thing, it must be in terms sufficiently explicit and definite to show that the minds of the parties had met and agreed as to all of the material elements of the contract to which the agreement looked, and, in the absence of such definiteness and certainty, the contract would be necessarily void.”

It was alleged and proven that, by reason of the claim of appellee for damages against the appellant, an agreement was entered into by which, in consideration of $74.-25 and a promise of lifetime employment to appellee, a written release was signed by appellee releasing appellant from further liability for damages. The contract, as pleaded and as shown by the evidence, was definite as to time of employment, being for the natural life of appellee, and said contract is not uncertain in that respect. Nor is it nonenforceable because optional on appellee’s part as to how long he would remain in appellant’s employment. In Railroad v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758, it is said: “There can be no doubt but that a contract may be so made as to be optional on one of the parties and obligatory on the other, or obligatory at the election of one of them.” That there was a valuable consideration to support such a contract there cannot be any question. The contract was optional with appellee, and he acted thereon when immediately after the making of said contract, he accepted work thereunder in the employ of appellant, and continued to so work for about eight years without interruption, from which we think it fair to conclude that both parties considered the contract as binding, and that it was notice to appellant that appellee intended to work for the time stipulated in the contract and that he would insist upon appellant performing its contract as obligated.

The further contention is that there was no compensation stipulated for appellee to receive, nor the amount of which he was to perform, nor the character thereof, which renders the contract void for uncertainty. Appellee was a machinist, and he had worked for appellant for a number of years in the machine shops before he was injured; after the injury, appellee was put to work under said contract in his former place and continued therein for about eight years, when he was discharged without cause. During that time there was no difference between them about the amount of compensation, the character of work, nor the manner of its performance. So to conclude that because the contract was silent about these matters becomes immaterial. That an agreement for a valuable consideration to give employment for life is valid is recognized in the following cases: Railroad Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758; Railroad Co. v. Scott, 75 Tex. 84, 12 S. W. 995; Railway Co. v. Morris, 29 Tex. Civ. App. 491, 69 S. W. 103; Lennard v. Lumber Co., 46 Tex. Civ. App. 402, 94 S. W. 385. It is insisted that: “The terms and conditions of a valid written instrument voluntarily entered into cannot be altered or changed by parol testimony, in the absence of fraud or mutual mistake.”

It is a general rule that parol evidence is not admissible to change, vary, or contradict a written contract. This is so well settled that it is useless to cite authorities. This rule, however, is not applicable here. There is another rule that applies here, and that is that parol evidence is admissible to show the consideration for a contract, although the contract is in writing and the consideration expressed therein. Jones on Ev. § 468; Hansen v. Yturria, 48 S. W. 797. There is also a rule that, where a contract is part in writing and part verbal, parol testimony is admissible to establish the part that is verbal. The contract sued on comes under either of the last-named principles. The testimony of appellee is in effect that the consideration expressed in the written release did not' constitute all of the consideration for his signing the release. So we hold that there was no error in admitting parol evidence to show what the full consideration was.

We are of the opinion that the evidence is sufficient to show that R. M. Cox, when the contract was made, was acting within the scope of Ms authority in making the contract, and same is binding on appellant..

Complaint is made of the giving of the following charge: “On the other hand, unless you believe from the evidence that the defendant, by and through R. M. Cox, did make an agreement with the plaintiff to employ him for life, and that plaintiff was ready to carry out his part of the agreement and entered the service of the defendant for that purpose, and that the defendant after-wards breached said agreement, if any, discharging plaintiff or dismissing him from the service of the defendant, you will find for plaintiff.” We think the evidence warranted this charge in that it showed Cox was acting within the scope of his authority in making said agreement with appellee and the allowing of-appellee to work after the injury by appellant. The paying him wages for the number of years he worked, under the contract for life, was an implied notice to and acceptance by appellant that appellee intended to work .during his lifetime.

Other assignments . complaining of the court’s charge and of the refusal to give special charges have been considered, but we find no reversible error, and the judgment is affirmed.