author: MARTIN, Justice.

text:
    SMITH v. FORT.
    No. 3995.
    Court of Civil Appeals of Texas. Amarillo.
    April 5, 1933.
    R. L. Graves, of Brownfield, for appellant.
    Joe J. McGowan, of Brownfield, for appel-lee.
   MARTIN, Justice.

Appellee agreed in writing with appellant to sell and convey to him a section of land -in. New Mexico and to deliver state leases on another section. The only part of the consideration for same which is material here is as follows: The assumption of the payment of $1,920 owing on the land to he conveyed, in three equal payments due in 1933, 1934, and 1935. The written contract further provided:

“First party is to furnish abstract showing •a good and merchantable title subject to the indebtedness above mentioned, together with a good and sufficient deed of conveyance to above described lands.
“First party shall have sufficient time, not to exceed thirty days in which to have abstract and deed of conveyance prepared and second party shall have sufficient time not to exceed ten days in which to have abstract examined, and should defects appear in title, then first party shall have sufficient time, not to exceed ten days, in which to have the defect cured.”

Appellee filed suit alleging the breach of the contract’ by appellant. He made the contract a part of his pleadings. His prayer was for judgment for $640 forfeit money. Appellee’s amended original petition upon which he went to trial neither alleged (1) a performance of the conditions required of him by the contract, nor.(2) a tender of such performance, nor (3) a valid excuse for his failure to do one or the other. He particularly failed to allege that the abstract which he delivered showed a merchantable title. His petition showed that he tendered a deed,' but was void of allegations showing a tender of state leases called for by his contract, nor did he allege in his first amended original petition that he was ready, able, and willing to perform his part of the contract. In a pleading filed subsequent to his first amended original petition, and denominated “Plaintiff’s Answer to Defendant Smith’s Answer and Gross Action,” he pleaded in part: “That at the time he delivered said abstract of title to defendant, Smith, for examination, he thén advised Smith that there was some slight variance between the actual indebtedness against said land and that called for in said contract of sale, but that this plaintiff would adjust that to meet with the terms and conditions of said sales contract, or to suit the pleasure and convenience of defendant, Smith, and that the defendant, Smith, stated at that time that that would be all right.”

It is admitted that the abstract delivered showed a lien against the section sold which was given to secure four notes of $533.33 each, due respectively in 1933,1934, 1935, and 1936. These, of course, were not in compliance with the contract. There was no proof offered that state leases had been delivered or tendered on the ad’ditional section of land.

It is elementary that a party to a contract who is himself in default cannot maintain a suit for its breach. He must either allege a performance of the conditions it imposes upon him or a valid legal excuse for his failure to do so. 13 O. J. pp. 725, 726; Shuttuck v. Griffin, 44 Tex. 566; Matthews v. Deason (Tex. Civ. App.) 233 S. W. 330; Shepard v. Weiss (Tex. Civ. App.) 28 S. W. 355. The delivery or tender of an abstract showing merchantable title and of valid state leases were both conditions precedent to any right of appellee to the recovery of the forfeit money in question. Until and unless he performed or tendered performance of these or alleged a legal excuse for his failure to do so, the appellant was not in default. Obviously appellant breached no contractual obligations by refusing to pay for something materially different from or of less value than what he bought. The petition sufficiently alleged the breach of the contract by appellant, but wholly failed to show a legal right in appellee to the forfeit money. The one is as indispensably necessary as the other. Nor is this fatal defect subsequently cured by the insertion of the additional allegations referred to above in what was intended as a supplemental petition, though otherwise denominated. A supplemental petition could not thus be made to perform the office of an amended petition. Its function is to reply to other pleadings, but not to supply what should have been, but was not inserted in the original petition or some amendment thereof. Crescent Insurance Co. v. Camp, 64 Tex. 521; Putnam Supply Co. v. Chapin (Tex. Civ. App.) 45 S.W.(2d) 283; Atlas Metal Works v. City of Dallas (Tex. Civ. App.) 30 S.W.(2d) 431. The substance of other allegations in the supplemental petition is that the defects in the title would have been cured if any objection had been pointed out. It was not necessary to point out a defect in the title which was known to the seller at the time he delivered the abstract. 39 Cyc. 1522; Middleton v. Moore (Tex. Civ. App.) 4 S.W.(2d) 988. This would be an idle ceremony. Besides, the obligation was contractual to furnish title to the-land with a specific character of indebtedness against it and to deliver state leases. The appellee failed to allege a compliance with these stipulations or a valid legal excuse for his failure to do so. Appellant’s general demurrer to appellee’s first amended original petition should have been sustained.

There may exist reasons which constitute a valid legal excuse for the failure of appel-lee to perform or. tender performance of the conditions of his contract discussed above, but none such, in our opinion, were properly alleged.

Reversed and remanded.


source: Caselaw Access Project

author: LATTIMORE, Justice.

license: Public Domain

text:
    HUMBLE OIL & REFINING CO. v. RECLAMATION CO.
    No. 12767.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 28, 1933.
    Rehearing Denied March 11, 1933.
    R.. M. Rowland, of Fort Worth, and R. E. Seagler, of Houston, for appellant.
    Thompson & Barwise and Ogden Shannon, all of Fort Worth, for appellee.
   LATTIMORE, Justice.

Prior to June 13, 1925, appellee had been, running its gas containing casinghead gasoline to the plant which appellant had bought -before that date, and on said date appellee contracted to run all its gas from its well to appellant during the life of the well. The pertinent clauses of the contract are:

“V. I-Iumble Oil & Refining Company contracts and agrees, at reasonable intervals, and at least once every ninety days, at the request of The Reclamation Company, to make physical tests'of the casinghead gas collected and gathered by it from The Reclamation Company’s well upon said lease; said test to be made by the charcoal absorption process or method, and at and upon The Reclamation Company’s lease from gas coming directly from The Reclamation Company’s said well and at the gathering system to which said gas shall pass for the purpose of determining with reasonable accuracy the amount of marketable gasoline contained in said casinghead gas, and in making and conducting said test no allowance or deduction shall be charged against The Reclamation Company for any air that may -become mixed with said gas after same comes from thé said well and passes into the gathering system hereinbefore mentioned.
“VI. Humble Oil & Refining Company agrees to pay The Reclamation Company and The Reclamation Company agrees to accept in full payment for the amount of gas delivered by it to Humble Oil & Refining Company each month, compensation to be determined upon the following basis:
“(a) The gasoline content of said casing-head gas shall first be determined by physical tests as hereinbefore provided for:
“(b) There shall next be ascertained from the daily meter readings the total amount of casinghead gas that passes through said meter, located upon said Reclamation Company’s lease, as hereinbefore provided for.
“(c) Based upon the gasoline content contained in said gas, ascertained by physical tests, as above provided for, and the total amount of casinghead gas that passes through said meter, as hereinbefore provided for, there then shall be determined the total amount of gasoline contained in the total amount of gas passing through said meter for said month.
“(d) Of the total amount of gasoline so determined as being contained in the total amount of gas passing through said meter for said month, The Reclamation Company shall be entitled at its option, from time to time, to be exercised whenever and as often as it sees fit, to receive 1/4 of the total amount of said gasoline so contained in said total amount of gas passing through said meter; or to receive in full payment for its said 1/4 of said gasoline, adjustment on the basis of the average price per gallon of gasoline received by Humble Oil & Refining Company from sales of gasoline during said month; said average sale price per gallon to be f. o. b. Breckenridge; The Reclamation Company not to be charged with any evaporation or temperature corrections or losses due to weathering operations or other deductions of a similar character.
“(e) The following facts are assumed only as a basis to serve as an illustration of the method of making adjustment for the gas sold by The Reclamation Company to Humble Oil & Refining Company.
“1. Assuming physical tests of the gas, conducted in the manner hereinbefore set out, developed a gasoline content of 2 gallons per 1000 cubic feet, and that the meter readings from the meter on the lease show that 40,000,-000 cubic feet of gas passes through said meter (no deductions being taken for air contents as above set forth.)
“2. Assuming that the average price per gallon received by Humble Oil & Refining Company from sales of gasoline during the month f. o. b. Breckenridge is 10 cents per gallon.
“3. Then the basis of adjustment and payment by Humble Oil & Refining Company to The Reclamation Company, in the event it did not elect to take its 1/4 of the gasoline itself, would be as follows:
“40,000,000 cubic feet x 2 gallon per 100G produces 80,000 gallons of gasoline.
“The Reclamation Company would be entitled to receive 1/4 of this 80,000 gallons of gasoline, which would amount to 20,000 gallons of gasoline. The sale price being 10 cents per gallon The Reclamation Company for its 20,000 gallons of gasoline would be entitled to receive,'and the Humble Oil & Refining Company would be obligated to pay the sum of $2000.00.
“In the event The Reclamation Company elects to have the Humble Oil & Refining Company make payment to it in cash for its portion of said gasoline, based upon the average market price per gallon f. o. b. Breeken-ridge, received by Humble Oil & Refining Company during said month, Humble Oil & Refining Company agrees that during a period of 12 months the average price per gallon of gasoline received by it, and upon which it will make adjustment to The Reclamation Company will equal the average market price per gallon of gasoline of similar quality as established and reflected in the National Petroleum News or any other standard oil publications, quoting casinghead gasoline prices, and in the event the price of Humble Oil & Refining Company does not equal the average market price per gallon of gasoline of similar quality as established in the National Petroleum News or any other standard oil publications, the Humble Oil & Refining Company agrees and obligates itself to make adjustment at the end of each twelve months to The Reclamation Company for the difference of the gasoline purchased from the Reclamation Company reflected between the average market prices received by the Humble Oil & Refining Company per gallon and the average market price as reflected by said oil and gas publication's.
“IX (a). Concerning the option granted to The Reclamation Company, as set forth in Paragraph 6, subdivision (d) herein, it is stipulated that The Reclamation Company will elect to take either money or gasoline in settlement, on a yearly basis; and that notice of such election will be given by The Reclamation Company in advance.”

The appellee elected to receive money instead of gasoline on quality and value.

Casinghead gasoline grades from A down through AA and B to C, the lowest. The testimony, while not very convincing, is sufficient to support the trial court’s finding that appellee’s well at all times produced grade A gasoline. The gas from the various wells connected with appellant’s plant was mixed and thereafter the gasoline extracted from the mixture and the test for quality was made after such gasoline was placed in the tank car. Appellant paid appellee for grade A gasoline the first four months under this contract and thereafter until March, 1930, for lower grades, which were shown to be the actual grades in the tank cars. Appellee accepted the first payment for lower grades without protest, hut thereafter protested 'each payment on the ground that its well was producing grade A gasoline and that it was therefore entitled to pay on grade A prices.

The trial court rendered judgment for ap-pellee for the difference in value for grade A gasoline and that grade actually paid for by appellant, as evidenced by its test for quality on the united product of all its purchases of gas from appellee and other .producers. Appellant claims such judgment is in plain violation of the contract.

Both parties contend in their briefs that this, court should adopt the interpretations of the contract placed thereon by the parties (though they differ in this case as to what that interpretation was). This rule has application though the contract js not ambiguous. San Jacinto Oil Co. v. Fort Worth Power & Eight Co., 41 Tex. Civ. App. 293, 93 S. W. 173; Dublin Electric Co. v. Thompson (Tex. Civ. App.) 166 S. W. 113. Counsel for appellant several times reiterates in italics that appellee “is entitled to pay only for the kind of gasoline which it would have gotten if it had accepted the gasoline itself.”

It is to us quite- plain that that portion of the contract which gave the option to appel-lee to receive gasoline in payment for its sale to appellant conferred the right on appellee to receive one-fourth of the identical gasoline extracted from the gas from appellee’s well. The contract so provides when it recites that the appellee shall be entitled to receive one-fourth of the total amount of “said gasoline” passing through the meter on appellee’s well. Also VI, e(3), of the contract recites that if appellee “did not elect to take its 1/4 of the gasoline itself,” and again, “The Reclamation Company would be entitled to receive 1/4 of this 80,000 gallons of gasoline.” It thus follows that appellant’s theory necessitates our holding that payment is on the value of the gasoline produced from appellee’s well. Where parties have presented a case on an agreed theory this court should accept such theory in passing on the appeal. Wolff & Co. v. Missouri, K. & T. Ry. (Tex. Com. App.) 289 S. W. 1000.

The trial court has found on sufficient evidence that the parties understood in making the contract that appellee’s gasoline was to be mixed at the plant with that from other wells but this is not inconsistent with our reading of the contract, for plainly if the ap-pellee received a gasoline of equal value (i. e., of equal quantity and quality) to that run from its well, the payment is in full, for gasoline is produced by both appellee and appellant to sell. You cannot eat it or decorate with it. Indeed, our belief about this opinion is supported by section 6, subd. A, of the contract which requires such option to be exercised on an annual basis, thus indicating that' appellant realized that tests would have to be made and other different procedure adopted to preserve for appellee its gasoline in case of the exercise of option (a).

We do not find any want of clearness which may be properly called an ambiguity in the contract, but this does not eliminate the application of the rule that where the parties intended in making the contract it should have a certain meaning or have themselves agreed that it bound them in a certain manner and have acted thereon, the court will adopt that meaning. San Jacinto Oil Co. v. Fort Worth Power & Light Co., supra.

We believe the evidence insufficient to support the finding of the learned trial court that “100% efficiency” was intended to refer to quality of recovery. The testimony clearly shows that when appellant agreed to that provision (VIII(d) as providing for 100 per cent, efficiency all parties understood that it had reference to measuring recovery at the well instead of after separation at the casinghead plant of appellant, i. e., as eliminating the loss from evaporation during handling.

Moreover, if we are mistaken in the above affirmance, the contract carries the implied warranty that the appellant will proceed with such skill as the average person engaged in such business with the equipment it had to recover the most profitable quality of gasoline obtainable acting in good faith to itself and to appellee. Freeport Sulphur Co. v. Royalty Co., 117 Tex. 439, 6 S.W.(2d) 1039, 60 A. L. R. 890; Metropolitan Casualty Co. v. Medina (Tex. Civ. App.) 53 S.W.(2d) 1026.

The findings of fact of the trial court fail to cover the situation in that same find that appellant could have “by the installation of proper machinery” recovered grade A gasoline. Appellee had been running the gas to this plant long prior to the time appellant purchased it, and knew the facilities that appellant had for quality recovery when the contract was signed and the court cannot imply an agreement to improve the machinery equipment by new purchases when the parties did not see fit to so require. Only those covenants are implied which are so clearly a part of the contract as that the court can say that the parties considered them so without the necessity of writing them into it, or a necessity to carry out the expressed agreements of the contract. Freeport Sulphur Co. v. Royalty Co., supra. However, when appellant did install such machinery as the evidence shows it did by building a “skimming plant” through which its entire casinghead gasoline receipts could be made grade A, the appellee was entitled to the benefits of same and appellant was not entitled to make grade A part of tlie time and refuse to “skim” the gasoline output the remainder of the time, and thereupon turn out lower grades of gasoline, and adjust with appellee on such basis. Unfortunately, the evidence is not developed to the point that we can decide what portion of the gasoline that could have heen “skimmed” was not thus treated.

As regards the statute of limitation, it is apparent from what is above said that the suit is on the written contract and therefore the four-year statute of limitation (Rev. St. 1925, art. 5527) applies.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    ALAMO LUMBER CO. v. FAHRENTHOLD.
    No. 2360.
    Court of Civil Appeals of Texas. Beaumont.
    April 12, 1933.
    Rehearing Denied April 19, 1933.
    Herbert Oliver, of San Antonio, and S. B. Carr and O. F. Burney, both of Floresville, for appellant.
    Jas. A. Harley, of San Antonio, and C. W. Trueheart, of Longview, for appellee.
   O’QUINN, Justice.

This is a suit by the Alamo Lumber Company, a Texas corporation, against Paul M. Fahrenthold, for permanent injunction to prevent him from operating a lumber business in the town of Poth, Wilson county, Tex., and for damages caused by said Fahrenthold operating such a business at said place.

Briefly, appellant’s petition alleged that on September 18,1926, appellee sold to appellant for $25,257 in cash his lumber business, including certain lots, all fixtures, equipment, building material, and merchandise, situated in said town, excepting one iron safe; also the good will developed by appellee in his said lumber business; and that in addition to all other agreements appellee agreed witji appellant that he would not engage in the lumber business, in said town of Poth as long as appellant operated its lumber business there. It further alleged that all of these matters were entirely and wholly verbal, and no part of the agreement to sell, or the agreement to buy, was reduced to writing before the sale was consummated; that neither party requested that the agreement be put in writing, except as necessary to pass title to the property, and that it was not the intention of the parties, in connection with the contract of purchase and sale, to put the terms of the contract and agreements into writing.

It further alleged that appellee and his wife executed and delivered to appellant a deed conveying to appellant the real estate mentioned, and a. bill of sale covering the corporeal personal property in the lumber yard, in compliance with the oral agreement to purchase and sell; that it was not the intention of the parties to put all their agreement in writing; that the agreement between appellant and appellee wherein appellee agreed not to engage in the lumber business at Poth as long as appellant operated its lumber business at said place was an agreement with ap-pellee alone and not with his wife; and that said Fahrenthold signed the deed and the bill of sale and that he did not sign any, instrument in which it would have been proper to have inserted said agreement.

It further alleged that the consideration paid to appellee was in part for the lumber business and its good will, and part for the real estate and materials, and part for the promise of appellee not to re-engage in the lumber business. It was also alleged that as an inducement to appellant to purchase, ap-pellee stated that he did not desire to further engage in the lumber business at Poth, but that he intended to move away, and that appellant relied upon his promise to do so.

It further alleged that it paid $10,000 for the real estate conveyed by appellee, and that of this $5,000 was for the residence of appellee which was of no value to appellant, and would not have been purchased but for appellee’s promise not to further engage in the lumber business in the town, of Poth as long as appellant operated its lumber business there; that it continued to operate its lumber business at said place, and is now so doing, but that appellee, in willful and intentional disregard of his promise and agreement not to re-engage in the lumber business at Poth, is actively engaged in said business at said place, and will continue to do so; that appellant has been damaged in the sum of $5,000, the amount it paid for appellee’s residence, and the sum of $5,000, the amount it has lost by reason of loss of sales because of the business appellee received which otherwise would have gone to appellant, for all of which damages it prayed judgment, as well as for injunction to restrain appellee from further operating his said lumber business in the town of Poth, for as long as appellant continues to operate its lumber business at said town.

For answer appellee denied that he agreed not to engage in the lumber business in Poth • as long as appellant operated its lumber business there, or that he made any such representations or promise to appellant as an inducement to it to enter into the contract in question. 1-Ie also denied that appellant’s purchase included the good will developed by appellee in his lumber business, and said that all prior negotiations in relation to the purchase and sale were merged into the written instruments, the deed conveying the real estate and the bill of sale conveying the personal property, which were executed and delivered on September 18,1926, and particularly the bill of sale which, appellee says, in detail recites and specifies all character of property whatsoever, other than the real estate, that was sold to appellant for a consideration of $15,257, which said bill of sale was upon its face, and is, a complete expression of the mutual engagements and agreements of the parties thereto. Appellee further alleged that his alleged oral agreement not to engage in the lumber business, as alleged by appellant, is and would be void as against public policy except only so far as reasonably necessary and incident to the sale evidenced and effected by said written bill of sale.

The case was tried to the court without the aid of a jury, and judgment rendered for ap-pellee. From this judgment, appellant brings this appeal.

At the request of appellant the court filed his findings of fact and conclusions of law. There is also a full and complete statement of the facts in the record duly agreed to by the parties and approved by the court. From these it appears that the negotiations between appellant and appellee for the purchase and sale of the lumber business at Poth were entirely oral, and that an agreement for the sale and purchase, including all the terms of sale, was reached on September 14, 1926. An inventory of the property on the lumber yard had to be taken. This was concluded on September 17th and the deed to the real estate and the bill of sale to the corporeal personal property were executed and delivered on September 18, 1926. When the oral agreement on the part of appellee to sell and of appellant to buy the property was reached, appel-lee asked appellant if it was necessary for the contract of sale to be in writing and was told by appellant that it was not. The execution of the deed by appellee and his wife conveying the real estate, and the bill of sale conveying the corporeal personal property to appellant closed the deal, and was the consummation of the previous negotiations. They were drawn by appellee's lawyer. The court, in his findings of fact, found that in the oral negotiations between the parties looking to the sale, appellee did include the good will of his business and did agree not to re-enter the lumber business in the town of Poth as long as appellant operated its lumber business there. The contract of sale, the bill of sale, contains no such provisions. It reads:

“State of Texas, County of Wilson:
“Know all Men by These Presents: That we, Paul M. Fahrenthold, and wife, Mrs. Isabel Fahrenthold, of Wilson County, Texas, for and in consideration of the sum of Fifteen Thousand, Two Hundred and Fifty Seven ($15,257.00) Dollars paid to us by the Alamo Dumber Company, a private corporation, whose domicile and principal office is in San Antonio, Bexar County, Texas, the receipt of all of which is hereby acknowledged, have bargained, sold, transferred and assigned and by these presents, do bargain, sell, transfer, assign and deliver unto the said Alamo Lumber Company, a private corporation, domiciled in Bexar County, Texas, the following described property located on Block No. Eight (8) in the town of Poth, in Wilson County, Texas, belonging to us, as follows, to-wit:
“One Ford Truck, Engine No. 10,365,126, ■now in Poth, in Wilson County, Texas.
“All the stocks of goods, wares, merchandise and fixtures of every kind and character whatsoever, located on that part of Block Eight (8) in said town, this day conveyed by us to said Alamo Lumber Company, especially including the entire stock of lumber and all building material, goods, wares and merchandise of every description, including all fixtures, tables, desks, all office equipment and every species and kind of personal property on said [portion c,. said Block Eight (S), especially including the list of material included in the inventory taken by Paul M. Fahrenthold and Mr. Dawson on September 15th, 1926, said Mr. Dawson being an agent or representative of Alamo Lumber Company, which inventory referred to is made part hereof, providing however, there is excepted from this bill of sale, one iron safe in the office of the lumber yard on said property.
“To have and to hold unto the said Alamo Lumber Company its successors and assigns forever, all and singular the property herein-before described, and each part and portion thereof.
“And we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend all and singular the title to the said property above described and hereby conveyed, and each part thereof unto the said Alamo Lumber Company, its successors and assigns against every person whomsoever lawfully claiming or to claim the same, or any part thereof.
“It is understood between the parties hereto that all taxes for the years 1926 on the property described-and conveyed shall be prorated between the parties hereto, to the date of this bill of sale. ■
“Witness our hands this 18th day of September, A. D. 1926.
“Paul M. Fahrenthold.
“Isabel Fahrenthold.”

This instrument was duly acknowledged by Paul M. Fahrenthold and Isabel Fahren-thold September 18, 1926, and on said date duly filed for record in the county clerk’s office of Wilson county, Tex. The deed from Fahrenthold and wife conveying to appellant the real estate mentioned was a full warranty deed in due form, was duly acknowledged and filed for record on said September IS, 1926. This deed contained nothing relative to the contract of sale of the lumber company, but simply conveyed lots Nos. 1, 2, 3, 4, 5, and 6, in block No. 8 in the town of Poth.

The failure of the written contract of purchase and sale to contain any such stipulations was one of the grounds upon which the court denied the relief sought by appellant. We think this reason is entirely sufficient to sustain the court’s conclusion and judgment. The oral agreement to purchase and sell was reached on September 14, 1926, and we take it would have been reduced to writing then except for the fact that an inventory of the corporeal personal property had to be made. Immediately after this was done, September 18,1926, four days later, the contract of sale was consummated by the e:&eeution of the written contract, the deed, and bill of sale, and it is well settled that where a written contract is clear and certain, and on its face imports completeness, it must be taken to express the will of the parties and it is not proper to look elsewhere for their intention. As was said by Chief Justice Willie, in Milliken v. Callahan County, 69 Tex. 210, 6 S. W. 681, 684: “All preliminary negotiations, whether written or unwritten, which have led to the execution of the agreement, are deemed to have been absorbed and merged in it, and the writing must be taken as expressing the final views of the parties.”

The deed shows that $10,000 of the consideration paid by appellant was for the real estate. The remainder of the consideration, $15,257, was for the corporeal personal property specifically and minutely set out and enumerated in the bill of sale, set out above. Neither the good will of appellee’s business, nor his selling his right to further engage in the lumber business in the town of Poth as long as appellant operated its lumber business at that place, are named. There is absolutely nothing in the written contract to intimate that either of said matters were intended to be included among the things for which the consideration was paid. Appellant insists that it was entitled to show that the oral agreement for the purchase and sale of appellee’s business included the purchase of the good will of the business it was buying, and also included, as a part of the consideration for which the money was paid, the agreement of appellee not to re-enter the lumber business at Poth as long as it operated its business there, and further contends that it was not necessary to incorporate said matters in the written bill of sale. We overrule these contentions. To show this it would have to be done by oral testimony. No rule is better settled than that where a written contract is clear in its terms and on its face imports completeness, parol evidence is not admissible to vary, alter, add to, or extend its terms. In such case the rights of the parties are to be measured by the terms of the written contract, and cannot be enlarged or diminished by contemporaneous or prior stipulations, unless there be allegations and proof of fraud, accident, or mistake in merging the oral agreements into the written contract. Houston Transfer & Carriage Co. v. Williams (Tex. Com. App.) 221 S. W. 1081; Guarantee Life Ins. Co. v. Davidson (Tex. Com. App.) 234 S. W. 883; Ellerd v. Bell, 112 Tex. 536, 249 S. W. 456; Sullivan & Co. v. Schreiner (Tex. Civ. App.) 222 S. W. 314 (writ refused); White, Ward & Erwin v. Hager, 112 Tex. 516, 248 S. W. 319. It is.too clear for dispute that to add the good will of appellee’s business to the other named property for which the consideration was paid would be to add to and extend its terms by thus including the good will of the business sold, and tlie negation of the right of app té-lee to enter the lumber business at Poth as long as appellant operated its lumber business at said place.

The good will of an established going business concern is property, recognized and protected by law as such, and capable of sale or other transfer from one owner to another in connection with a transfer of the property or business to which it is an incident. 28 O. J. 730. It is an asset which may be sold in connection with a business to pay creditors, Myers Co. v. Tuttle (C. C.) 183 F. 235, and must be conveyed by specific words to show its transfer. Edelstein v. Edelstein (Tex. Civ. App.) 6 S.W.(2d) 400 (writ dismissed). We do not think it can be said that the right to engage in a legitimate business is not a valuable one. There is nothing in the written contract in the instant case to indicate that either the good will of the business sold, or the right to re-enter the lumber business, was included. There is no contention that the omission of these from the written contract resulted from either fraud, accident, or mistake. Without such an allegation and proof, parol evidence may not be admitted to show that they were included in the sale of the business. As the agreement to purchase and sell was oral, and the contract later reduced to writing, in the language of Judge Willie, in Milliken v. Callahan County, supra, we again say that all preliminary negotiations, whether written or unwritten, which have led to the. execution of the agreement, are deemed to have been absorbed and merged in it, and the writing must be taken as expressing the final views of the parties.

What we have said disposes of the case, and so i.t is not necessary to discuss- the other matter presented. The judgment should be affirmed, and it is so ordered.

Affirmed.


author: GALLAGHER, Chief Justice.

text:
    HUDSON INS. CO. v. McKNIGHT et al.
    No. 1300.
    Court of Civil Appeals of Texas. Waco.
    March 23, 1933.
    Rehearing Denied April 20, 1933.

      L. W. & B. D. Shepperd, of Groesbeck, for appellant.
    W. M. White, of Mexia, and J. E. & B. L. Bradley,- of Groesbeck, for appellees.
   GALLAGHER, Chief Justice.

This suit was instituted by appellees, Dr. W. C. McKnight, Ora Etta McKnight, his wife, W. D. Freeman, and H. W. Freeman, to recover on a fire insurance policy issued by appellant, Hudson Insurance Company, to Dr. McKnight on a residence building in the city of Mexia. -The lot on which the building was situated seems to have been purchased by the MeKnights after their marriage. The title thereto was taken in the name of Mrs. McKnight. Dr. McKnight was indebted to the Freemans and they held a lien on the lot to secure such indebtedness. Said lot, with the improvements thereon, constituted the homestead of the MeKnights. The policy sued on was for the sum of §5,000. It was issued to Dr. McKnight with a clause making loss, if any, payable to the Freemans as their interests might appear. The building covered by said policy was seriously damaged or destroyed by fire in the early morning of September 16, 1931. The sufficiency of the pleadings to raise the issues hereinafter discussed is not questioned.

The case was submitted to a jury on special issues. The jury found in response thereto, in substance, as follows:

(1) The insured building was not totally destroyed by the fire.

(2) The difference in the value of said building immediately before and immediately after' the fire was $6,200.

(3) It would have required the sum of $6,-200 to restore the building to the condition it was in immediately before the fire.

(4) Dr. McKnight did not burn said building nor cause it to be burned.

The court rendered judgment in favor of appellees against appellant for the sum of $5,000, with legal interest from January 25, 1932, and apportioned the recovery between the Freemans and the MeKnights. There is no complaint of such apportionment.

Opinion.

Appellant, in its third assignment, contends that the court erred in failing and refusing to submit to the jury its requested issue as follows: “Do you find from a preponderance of the evidence that the building covered by the policy sued on was allowed to -become unoccupied for a period of more than thirty days prior to September 16, 1931?”

Appellant alleged that the policy sued on contained a provision, in substance, that if the insured building was a dwelling, said policy should be void if such dwelling should be or become unoccupied for a period exceeding thirty days, and that said provision was breached. The policy contained the provision so pleaded and the insured building was used by the MeKnights as their family residence. Dr. McKnight testified that Mrs. McKnight left home on a visit during the first week in July preceding the fire; that he fumigated the house and closed and chinked the larger openings; that he reserved for his use during her absence one room which had an outside door, and that he slept in that room one night in every four or five from ttat time until the fire; that when he did so he went to such room after night and left before day; that he had a sleeping room at his office and slept there most of the time while his wife was, away, but that he frequently slept there before she left. He further testified in this connection that his work frequently required his presence at the office at various hours of the night. He further testified that the house was never opened from the time his wife left until the fire, a period of about two and a half months; that his wife returned home two or three weeks before the fire but that they stayed at Mrs. Ohitwood’s, which he stated was their former home. Mrs. McKnight testified she had not been at the house since she left on her visit; that the reason was that it would have to be opened up. Both Dr. McKnight and his wife testified that the bedroom in which he testified he had slept from time to time during her absence was without light and that neither toilet nor bath was available. Dr. McKnight testified that he slept in said room the night before the fire but that he left the same and returned to his office between 4 and 5 o’clock in the morning. Several neighbors testified in the case and none of them recalled having seen Dr. McKnight in the house or on the premises after his wife left on her visit.

A dwelling is occupied when it is in actual ,use by human beings, who are living in it as a place of habitation, and it is “unoccupied” when it has ceased to be a customary place of habitation or abode. 3 Cooley’s Briefa on Insurance, p. 2571 et seq.; 26 C. J. p. 213, § 259; 14 R. C. L. p. 1103, § 2S2; East Texas Eire Insurance Co. v. Kempner, 87 Tex. 229, 236 et seq., 27 S. W. 122, 47 Am. St. Rep. 99; Fidelity Union Fire Ins. Co. v. Pruitt (Tex. Com. App.) 23 S.W.(2d) 681, 683, par. 6; Liverpool & London Globe Ins. Co. v. Baker (Tex. Civ. App.) 198 S. W. 632, 634; National Union Fire Ins. Co. v. Richards (Tex. Civ. App.) 278 S. W. 488, 489, par. 1. The purpose of requiring occupancy of an insured building is that some one shall have such care and supervision thereof as will naturally result in protecting it from loss by Are. 26 C. J. 212, 213, par. 258, and authorities cited in note 79. The authorities recognize that continuous occupancy of a dwelling as such is improbable and on occasions practically impossible, so where a policy provides for a forfeiture immediately upon the building’s becoming unoccupied, the courts have sometimes been inclined to ameliorate such rigorous provision by holding that a forfeiture for a mere temporary failure of occupancy was not within the contemplation of the parties. A number of such cases were cited and considered by our Supreme Court in East Texas Fire Insurance Company v. Kempner, supra. The court, however, in that case held that a proper construction of the policy would control. The policy sued on in' this case fixes the period of permissible nonoccupaney generally at thirty days. Such provision excludes any reasonable contention that so-called temporary non-occupancy might extend beyond such limit without the resulting forfeiture as stipulated In the policy. East Texas Fire Insurance Company v. Kempner, supra; Liverpool & London Globe Ins. Co. v. Baker, supra.

Occupancy or lack of occupancy can, of course, be proved by circumstantial as well as direct and positive evidence. The circumstances shown by the testimony above recited are ample to raise an issue of whether the house was unoccupied continuously from the time Mrs. MeKnight left until the fire, a period of approximately seventy-five days. Ap-pellees, to avoid the force and effect of such circumstances, rely solely on the direct testimony of Dr. MeKnight that he slept in said particular room in the house one night in every four or five. The general rule for determining whether the court erred in refusing to submit an issue on the ground that the same was not raised by the evidence is that the appellate court must consider the evidence in the most favorable aspect for the party requesting submission, disregarding all evidence to the contrary. Williams & Chastain v. Laird (Tex. Civ. App.) 32 S.W.(2d) 502, 505, par. 1 (writ refused), and authorities there cited. Dr. MeKnight was a party to the suit and vitally interested in the result thereof. His credibility and the weight to be given his testimony were, under the facts in evidence in this ease, jury questions. Goodrich v. Pandem Oil Corp. (Tex. Com. App.) 48 S.W.(2d) 606, 609, par. 3;. Thraves v. Hooser (Tex. Com. App.) 44 S.W.(2d) 916, 921, par. 4, and authorities there cited. The jury had a right to accept and credit so much of his testimony as was favorable to appellant and to reject and disregard so much thereof as was adverse to its contention. General Motors Acceptance Corporation v. Killingsworth (Tex. Civ. App.) 54 S.W.(2d) 266, 268; 17 Tex. Jur. 930, and authorities cited in notes 19 and 26. The jury, in passing upon the issue requested, had it been submitted, would have had a right to accept and credit so much of the testimony as tended to show lack of actual occupancy of the building during the period under consideration, and to reject Dr. McKnight’s testimony that he slept there one night out of every four or five during such period. The testimony raised a jury issue with reference to whether said building was unoccupied, within the meaning of that term as used in the policy, for a period exceeding thirty days prior to the fire, and the court erred in refusing appellant’s request to submit such issue to the jury for determination.

Appellant, in its ninth and tenth assignments of error, contends that the court erred in permitting one of appellees’ attorneys to make certain statements in his argument to the jury, and in overruling its objection thereto. The extent of damage to the insured building was a contested issue. Appellant’s witness Bert Hewitt testified that he was a carpenter and contractor and had been soi engaged for many years; that he had examined the burned building and had made an estimate of the reasonable cost of repairs necessary to restore the same to the condition it was in before the fire; and that the cost thereof would be approximately $3,500. One of appellees’ attorneys, in closing the argument in the case, said: “Mr. Hewitt went up there and made an examination and bid for the insurance company. I know Bert Hewitt is not any more of a contractor than a snake is a thousandleg. He is just a carpenter, working around when he can get a job. He worked on my house some. I have had him work for me lots of times. He said he was a contractor on the Gay ton job. He didn’t have any contract on the Cayton house. He just had a contract to work on the house.”

None of the facts so stated were in evidence. Appellant objected to said argument on various grounds, among which was included the specific objection that such statements of the attorney constituted in effect un-sworn testimony before the jury, all of which objections were overruled. The argument complained of was subject to such specific objection. Texas & N. O. R. Co. v. Harrington (Tex. Civ. App.) 98 S. W. 653, par. 7; Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435, 439, par. 9; Cooke-Teague Motor Co. v. Johnson (Tex. Civ. App.) 50 S.W.(2d) 399, 400, par. 1; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169, 178, par. 28; Dallas Railway & Terminal Co. v. Smith (Tex. Civ. App.) 42 S.W.(2d) 794, 795, par. 2; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662, 665, par. 9. The jury found, in substance, that the reasonable cost of restoring the building to the condition it was in before the fire would be $6,200, which was nearly twice the amount of the estimate made and testified to by said witness.

Appellant alleged that the insured burned the building covered by the policy sued on, or caused it to be burned, and denied liability on that ground." The statement of facts contains approximately 500 pages. A large part of the testimony included therein bears directly or indirectly on this issue. The court submitted such issue to the jury for determination and they answered the same in the negative. One of appellees’ attorneys, in closing the argument in the case, said: “Remember, gentlemen, if you answer this special issue ‘yes’, that arson is a crime, and that is what is charged against Dr. McKnight in this cause, ánd remember that if you answer this special issue ‘yes’, you caused him to be sent to the penitentiary. It is better that ninety-nine guilty men escape than that one innocent man be convicted. This is an old adage and it is true now as it ever was, and that is what you are doing if you find that he burned his house.”

Appellant objected to said, argument on various grounds, among which were the specific objections that this was not a criminal case; that an affirmative answer to such issue would not send Dr. McKnight to the penitentiary; and' that the jury were not supposed to know nor consider the effect of their answer to such issue, all of which objections were overruled. The argument was subject to the objections so urged. It not only embodied an erroneous proposition of law, but it invoked a negative answer to the issue under consideration out of concern for Dr. Me-' Knight’s continued liberty and safety. Statements in argument of erroneous propositions of law, when material to the issue under discussion, and appeals to sympathy, are generally held improper. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765, 766, par. 1, and p. 768, par. 6; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213, 216 et seq., pars. 4 and 5; Behringer v. South Plains Coaches (Tex. Com. App.) 13 S.W.(2d) 334, 336, par. 6; Southwestern Telegraph & Telephone Co. v. French (Tex. Civ. App.) 245 S. W. 997, 1003, par. 16 (writ refused); McMahan v. City of Abilene (Tex. Civ. App.) 8 S.W.(2d) 554, par. 2; Houston & T. C. R. Co. v. Clement Grain Co. (Tex. Civ. App.) 295 S. W. 234, 235, par. 3; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169, 178, pars. 26 and 27. Improper argument requires reversal of a judgment if under all the circumstances there is any . reasonable doubt of the harmful effect thereof. Whether there is such doubt is a question of law and not of fact. Tabor v. McKenzie (Tex. Civ. App.) 49 S.W.(2d) 874, 879, pars. 10 and 11, and authorities there cited. We cannot say that the arguments complained of by appellant in said assignments were clearly without harmful effect.

Appellant, in several other assignments, contends that the court erred in permitting appellees’ attorneys to make certain other statements in their respective arguments to the-jury. Since the judgment will be reversed for the errors above discussed, consideration in detail of such other assignments is not deemed necessary. The particular combination of circumstances which evoked each of such arguments Will not necessarily occur upon another trial, but if any such combination does occur, any reasonable objection to the argument made thereon can be easily avoided.

Appellant,» in its fourth assignment, contends that the court erred in refusing to submit its requested issue with reference to the keeping of certain inflammables in the insured building. Should the testimony on another trial raise such issue, it should be submitted in appropriate form.

The judgment of the trial court is reversed and the cause remanded.


author: MURRAY, Justice.

text:
    GOODWIN et al. v. HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1.
    No. 9025.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1933.
    Rehearing Denied April 12, 1933.
    Hill & Greer, of Mission, and J. IL Dougherty and L. J. Freeman, both of Beeville, for appellants.
    Brown & Bader, of Edinburg, Don A. Bliss, of San Antonio, and Cofer & Gofer, of Austin, for appellee.
   MURRAY, Justice.

This is the second appeal of this case. The first appeal was 'by writ of error. The majority opinion of this court is reported in 14 S.W.(2d) 321. See, also. 6 S.W.(2d) 231. The opinion of Section A, Oommissicm of Appeals-, is-reported in 25 S.W.(2d) 813, 819.

The written instrument out of which this controversy arose is set out in full in hiec verba in both of said opinions, and will not be recopied here.

The all-important question in this appeal is, Have the appellants proceeded under this optional contract to such an extent as to amount to an exercise of the option extended, thereby making this option a binding contract?

The appellants are E. M. Goodwin and Hidalgo cbunty water control and improvement district No., 6. The appellee is Hidalgo county water control and improvement district No. 1.

By a careful reading of the written instrument involved in this controversy, it will be seen that it is an offer on the joart of district No. T to contract with the new district to be created (which afterward became district No. 6) and E. M. Goodwin. This writing is divided into two divisions, to wit, “a” and “b.” Division “a” states the optional features, and division “b” states the terms and stipulations of the offer. The offer contained in this writing had to be accepted by either one or both of appellants before" it could become a binding contract in any off its terms.

The only claim of acceptance advanced by appellee is that appellants proceeded under the terms of this option and thereby accepted the offer extended to them. Unless appellants have so proceeded, this option cannot be enforced against either of them. Appellee bases its contention that the option had been exercised-primarily upon the contention that the Commission of Appeals in its opinion in the former appeal held, as ⅛ matter of law, that appellants herein had proceeded under the option and had thereby accepted the terms of the same; that as a result of such holding that question is now res adjudicata, and cannot be further inquired into. We cannot agree with this contention for many reasons.

In the first place, very different pleadings and evidence are offered on this appeal from those which were offered on the former appeal. On the former appeal appellee proceeded to trial on its first amended original petition ; on this appeal appellee proceeded to trial on its third amended original petition, The two petitions are very different and ask for different remedies. On the former appeal the statement of facts contained 514 pages, while on this appeal the statement of facts contains 1,675 pages. It would not be practicable to here point out the many differences in both the pleadings and the evidence. It is well-settled law in this state that the opinion of the appellate court cannot be considered as res adjudicata in subsequent trials and appeals where both the pleadings and the evidence are different. Frankland v. Cassaday, 62 Tex. 418; Green v. Priddy, 112 Tex. 567, 250 S. W. 656; Roberts v. Armstrong (Tex. Com. App.) 231 S. W. 371; Ogden v. Bosse (Tex. Civ. App.) 23 S. W. 730 (reversed on other grounds) 86 Tex. 336, 24 S. W. 798; 3 Tex. Jur. § 942, p. 1342; Barcus v. J. I. Case, etc., Co. (Tex. Ciy. App.) 209 S. W. 205; Galveston, H. & S. A. Ry. Co. v. Faber, 77 Tex. 153, 8 S. W. 64; Kempner v. Huddleston, 90 Tex. 182, 37 S. W. 1066; 4 Corpus Juris, p. 1217, § 326S; Woods v. Bost (Tex. Civ. App.) 26 S.W.(2d) 299.

However, treating the opinion of the Commission of Appeals as res adjudicata, it does not hold that district No. 6 ever proceeded under the option. It only holds that. Goodwin so proceeded. In holding that Goodwin so proceeded under the option, the Commission of Appeals was passing on the facts that were then before it-, and could not have been passing upon all the facts and circumstances presented in the present statement of facts. If the Commission of Appeals had intended that such holding should forever settle the question, it would have reversed and rendered this cause as to Goodwin instead of only reversing and remanding the entire cause.

Were the facts in the present record so clear and undisputed as to justify the trial court in finding, as a matter of law, that Goodwin had proceeded under the contract? Before discussing this question, we wish to set out chronologically the events as they happened:

(1) In the early part of 1926 Goodwin secured an option on 5,600 acres of land and be gan negotiations with district No. 1 for wate rights.

(2) On May 24, 1926, Goodwin filed applica* tion with the board of water engineers for a water permit.

(3) On June 26, 1926, the written option out of which this cause grows was signed by district No. 1 and Goodwin.

(4) On September 29, 1926, board of water engineers granted Goodwin a water permit.

(5) On September 1, 192|,' district No. 1 passed a resolution ext/endirig time of maturity to September 1, 1Q2J. £

(6) During February, 1927, district No. 6 was organized and incorporated.

(7) Shortly after district No. 6 was organized, it nofifie-d" district' No. 1 that it would not accept the option extended to it in the writing of June 26, 1926.

(8) On June 15, 1927, board of water engineers issued a water permit to Goodwin.

(9) On August 15, 1927, Goodwin assigned this wate¿ permit to district No. 6.

ft will be seen from the above statement that Goodwin -had already proceeded with his application for a water permit before the; option'was executed on June 26, 1926. The evidence further shows that G'oodwin informed district No. 1 that he might decide to irrigate his land by establishing his own irrigation system and take water from the Rio Grande.

It further appears from the evidence that the officers of district No. 1 were laboring under ^he false impression that they had a binding contract, in any event, with Goodwin, and blit for this false impression would not have waived their rights and urged the water board to issue Goodwin a water permit. Goodwin coulchnot be held responsible for this false impression, unless he created it by his own fraudulent conduct, which was neither pleaded nor proved. There is considerable doubt that a permanent water right can be waived in the manner in which district No. 1 contends that it waived its prior rights. Article 7559, R. O. S. 1925,' in effect declares a permanent water right to be real estate and an easement to the land, and to pass with the title thereto. Under the statute of frauds, article 3995, R. C. S. 1925, an oral waiver would be insufficient to pass title t;o a permanent water right. Furthermore, ' both appellants herein have filed written disclaimers of any title to appellee’s prior wáter rights.

Subdivision “a” of the option first extends an option to the new district to be created, and ■only in the event no. new district is created does it extend an option to Goodwin. This is plain from the writing itself, which reads as follows: “It is contemplated by the said E. M. Goodwin that a water improvement district, or a water control and improvement district, shall be organized and after the incorporation of such a district, said district as so incorporated shall have the right at its option to contract with the said I-Iidalgo County Water Control and Improvement District No. 1, as hereinafter set forth, and that in the event no such district should be organized under the laws of the State of Texas, then the said E. M. Goodwin at his option shall have the right to contract upon the terms and under the conditions as hereinafter set forth.”

The new district was actually created, and therefore no option was even extended to Goodwin. The creation of district No. 6 by Goodwin could not be construed as an acceptance of an option 'which was not extended to him in the event he did this very act, that is, created district No. 6.

The granting of the permit was an act of the board of water engineers and not an act of Goodwin. The question as to whether or not Goodwin induced district No. 1 to waive its prior appropriation of water and as to whether district No. 1 acted in the capacity of a volunteer in waiving its prior rights were disputed questions of fact.

It seems to us that, placing all of these facts in the most favorable light, the greatest deduction that could be made is that a question of fact as to whether or not Goodwin had proceeded under the option was raised, which should have been submitted to the jury. For the court to decide as a matter of law that Goodwin had proceeded under the option was error.

As to district No. 6, we can find no evidence which tends to show that it had proceeded under the contract. In the first place district No. 6, as soon as it was created, notified district No. 1 that it would not accept the option and definitely declined the offer. This ended the matter as far as district No. 6 was concerned. As said in the American Law Institute’s Restatement of the Law of Contracts, § 34:

“An offer until terminated gives to the of-feree a continuing power to create a contract by acceptance of the offer.”
Section 35: “An_offer may be terminated by (a) rejection by the offeree.”
Section 37: “A communication from the offeree to the offefo'r, stating in effcet that the offeree declines to accept the offer is a rejection.” ,

Goodwin or no one else could bind district No.i 6 before it was created, and its rejection of the offer terminated the matter as far as district No. 6 was concerned. The fact that several months after such rejection district No. 6 purchased the water permit from Goodwin could not be construed as the acceptance of an offer already definitely rejected. If Goodwin did not have good title to the water permit, and district No. 6 was charged with knowledge of this fact, it would not be an innocent purchaser of the permit, and might be forced to surrender such permit, but certainly could not be forced to perform the many provisions and stipulations of an option that it had previously rejected. Especially is this true since water rights are real property. R. C. S. art. 7559 ; Texas Co. v. Burkett, 117 Tex. 16, 296 S. W. 273, 54 A. L. R. 1397; Edinburg Irrigation Co. v. Paschen (Tex. Com. App.) 235 S. W. 1088; 20 Tex. Jur. § 64, p. 274; Mudge v. Hughes (Tex. Civ. App.) 212 S. W. 819; McGhee, etc., Co. v. Hudson, 85 Tex. 587, 22 S. W. 398. Where personal property is wrongfully taken, the owner may treat the property as belonging to the wrongful taker and sue for the value of the property taken. With real estate the rule is different, the suit must be for the recovery of the real estate, together with rents and damages. 26 R. C. L. 1098; Hooser v. G. M. Carlton Bros. & Co. (Tex. Civ. App.) 288 S. W. 1095; Willis & Bro. v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634.

District No. 6, by accepting the water permit, did not accept all of the terms of the option. Weatherford, etc., Ry. Co. v. Granger, 86 Tex. 350, 24 S. W. 795, 798, 40 Am. St. Rep. 837, in which opinion we find the following language by the Supreme Court: “We deem it proper to say in conclusion that if the opinion in the case of McDonough v. Bank, 34 Tex. 309, is to be construed as holding that by merely accepting the benefit of the plaintiff’s labor the defendant ratified and became bound under the promoter’s contract, it does not meet our approval.”

There is another reason why district No. 6 is not bound by the terms of the option. The option involved the conveyance of real estate, and was a contract not to be performed within one year. Our statute of frauds, article 3995, R. S. 1925, provides that such contracts to be valid must be in writing and signed by the party to be charged. There is no contention that district No. 6 signed either the option or any written acceptance of the same.

District No. 6 did not accept the permit under the terms of the option, but rather in breach of same. If Goodwin was bound by the option, it was his duty to convey this permit to district No. 1. Contrary to the terms of the option, he conveyed the permit to district No. 6. This might be a breach of the option, but could not be a performance of the option. District No. 6 could not accept the option by breaching its terms.

It seems that the theory on which the trial court proceeded was that, while the writing of June 26, 1926, was a mere option, never-tlieless paragraph 9 of division “b” thereof w.as not optional, or that, while Goodwin and district Ño. 6 had not accepted all of the paragraphs of the option, they had accepted paragraph 9 of subdivision “b.” We say this because the trial judge did not submit but one question to the jury, and that had to do with the value per acre of the water appropriations and/or the permit. The trial court therefore found, as a matter of law, that paragraph 9 of subdivision “b” was a binding obligation, and that the other paragraphs of subdivision b were not binding obligations, because, if all paragraphs of the option were binding, the price of the water permit per acre was fixed at $17.50. The. trial court probably made this holding on-account of the language found in the opinion of the Commission of Appeals, which is as follows: “This provision of the contract is not optional with reference to the obligations on the part of Goodwin to convey the additional water permit to the district. It is an unconditional agreement on his part. Under section 9 he agreed to convey to the district any water rights he might secure. * * * We are 0¡ opinion that upon its face section 9 of the contract is not an optional contract.”

Upon this construction of the option appel-lee was given a judgment in the sum of $169,-500, together with a mandamus compelling the officers of district No. 6 to levy a tax against the landowners in such district sufficient to pay the judgment. However, appellee in its brief repudiates this construction of the option in the following language: “This was an illogical holding, of course. Paragraph 9 can only become, and is, binding only because it is a part and parcel of the entire contract, optional in its inception, but which had become binding in its entirety because, as the Supreme Court had held, the option -had been exercised. We did not then, have never,- and do not now, make any such foolish contention that paragraph 9 of the contract can become binding except in so far as the same is an integral part of the entire contract, paragraphs 1-11, inclusive. We have insisted at all times that the option had been exercised; that the contract in its entirety had become binding ; and that paragraph 9 of the contract had become binding because it was a part of the entire contract and one of the eleven paragraphs thereof. * * * We do not quite ap5„-predate the attempt of the learned counsel to saddle this ridiculous contention' upon us after we had argued for a week the very contrary. * * *»

We are unwilling to believe that the Commission of Appeals intended to hold that paragraph 9 of subdivision “b” of the option could stand alone and be a binding contract while all the other paragraphs of subdivision “b” remained optional. It seems there can be no question but that paragraph 9 must stand or fall along with all the other paragraphs of subdivision “b” of the contract.

Having concluded that the writing of June 26, 1926, was a mere option, that it was not only never accepted by district No. 6, but definitely rejected, that the evidence does not show as a matter of law that Goodwin had accepted the option extended, we cannot permit the judgment in this case to stand..

Appellants contend that appellee’s cause of action, as alleged in appellee’s third amended original petition, filed on October 81, 1931, was barred by the statute of limitations. We cannot agree with this contention. Article 5539b, as amended by the Acts 1931, 42d Leg. p. 194, c. 115, § 1 (Vernon’s Ann. Civ. St. art. 5539b) provides as follows: “Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such'amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application of the opp&site party, the court may postpone or continue the case as ¿justice may require.”

It is clear that the cause of action stated in appellee’s third amended original petition is not based upon, and does not grow out of, a new, distinct, or different transaction and occurrence from that stated in its original petition, and is not thefefore barred by any statute of limitation.

There are other assignments of error with reference to the charge of the court and argument of counsel. As these matters will not probably occur upon another trial, we will not discuss them here. The disposition we make of this case renders these assignments immaterial.

The judgment of the court below will be reversed, and the cause remanded.


text:
    HANOVER INS. CO. OF NEW YORK v. STEVENSON.
    No. 12765.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 28, 1933.
    Rehearing Denied March 11, 1933.
    E. G. Senter, of Dallas, for appellant.
    Geo. M. Hopkins, of Denton, for appellee.
   LATTIMORE, Justice.

Appellant wrote insurance to appellee on a house in Denton, originally for $4,300, which policy provided that it should be void if the property remained vacant more than ten days, and also provided for cancellation by the company on five-day notice to assured. On April 16, 1931, a fire occurred which left the building in an untenantable condition, all of which was known both to the appellant and its local agent in Denton, when on May 9, 1931, the parties by agreement reduced the insurance to $1,798. Another fire occurred on May 21, 1931, causing $235 damage. On July 26, 1931, appellant’s agent Bailey, under appellant’s instruction, notified Mrs. Bralley, daughter of appellee, who “was looking after his property,” that he would have to cancel the insurance, and she told him she would write appellee about it and did so, who thereupon, on July 27, 1931, inquired from Kerens by long distance telephone of Bailey what was the trouble, and Bailey told him of his instructions." Appellee replied that he had “five days on it” and if the agent had instructions to cancel “I guess you’ll just have to do it.” On July 28th Bailey mailed his check, drawn on a Denton Bank, to ap-pellee at Kerens, for the premium due appel-lee by cancellation, marked the policy “can-celled” and mailed it to appellant. Appel-lee received the check on July 29th and that day “cashed” it or deposited it at the Kerens State Bank. This check was en route through collection agencies via the Federal Reserve Bank at Dallas when, on July 30th, another fire occurred, which the trial court found totally destroyed the building. The check reached the Denton Bank next day but before it was paid by that bank the Kerens Bank called on long distance and asked that the Denton Bank return the check unpaid. This was done and Stevenson mailed it to Bailey who declined to accept it and the check thus remains unpaid.

On trial before the court judgment was rendered for the plaintiff and the above is taken substantially from the findings of fact made by the trial court. That assured could waive his right to five days notice of cancellation or make oral agreement of cancellation independent of such time, we have no doubt. - It is plain that the notice to Mrs. Bralley was ineffectual and that all the parties recognized that she was without authority to accept such notice — slie by asking her father what to do about it, he by calling Bailey, and Bailey by his dealing with ap-pellee instead of Mrs. Bralley. Mrs. Bralley and appellee testified that she had no authority other than to convey information to him and it is not controverted. We thus are brought to the telephone conversation and the check. The former has been found by the trial court to show that Stevenson did not agree to a cancellation before five days and did not understand that Bailey intended any sooner cancellation. There is evidence to sustain it.

The check bore a notation, “Ret. prem. Hanover Pol. 525.” Appellee does not attempt to say that he did not know it was such but neither does he say that he knew it was for a cancellation which would be effective sooner than the conclusion of the five-day period. There was no notation on the check to show the policy was already canceled, or would be sooner than five days, hence cases such as Kean v. S. W. Natl. Bank (Tex. Civ. App.) 50 S.W.(2d) 839, which hold a party bound by cashing a check with a notation on it showing acceptance of a proposition advanced by the drawer of the check, are not in point. Neither is the question of whether the drawee bank paid the check, vital. The question is what was the state of mind of appellee toward the check from its receipt by him? Did he accept the offer made by appellant to cancel on the 29th? It is entirely consistent that he believed the check to be for the amount of the return premium after the five-day notice had expired.

Bearing in mind the want of conclusive notice on the. face of the check as to its full import, this cheek becomes a part of all the evidence — the telephone conversation, the old age of appellee, the appearance of the witnesses while testifying, and the many other items before the court — on the issue of immediate cancellation of the policy which the-trial judge has resolved against such cancellation. There is no wiser rule in our procedure than that which requires us to uphold the discretion given an upright diligent trial judge in deciding disputed issues. We overrule those assignments which claim cancellation of the insurance policy before the fire.

After the first fire the building was untenantable. This means more than vacant. An insurance company might well issue its policy with the ten-day vacancy clause on a vacant house and yet be heard to say that it had no reason to think the house would not be tenanted within the ten days. East Texas Fire Insurance Company v. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 199. But if the house is untenantable no such presumption could arise. It will not be tenanted until rebuilding of the insured house makes it possible. The company knew of this condition. Such “is tantamount to an assertion that the policy is valid at the time of delivery and is a waiver of the known ground of invalidity.” Wagner & Chabot v. Ins. Co., 92 Tex. 549, 50 S. W. 569, 572; Assurance Co. of America v. Continental Savings Ass’n (Tex. Civ. App.) 8 S.W.(2d) 787. The evidence is sufficient to sustain the court’s finding that the building was a total loss.

The date of furnishing proofs of loss is of no importance in fixing the date of liability on the policy. The appellant promptly denied liability on the policy and hence waived any proofs of loss. It was not necessary for appellee to have furnished them at all, for the grounds of resistance of liability ha'd no connection with proof of loss.

All assignments have been carefully considered and are overruled, and the judgment of the trial court is affirmed.


author: HAWKINS, Judge.

text:
    Nona BRUNSON v. STATE.
    No. 15780.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    Arthur R. Eidson, of Hamilton, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

The information charged appellant under article 1410 of the P. C. with theft of seed cotton of the value of $8.75. The punishment for theft of property under the value of $50 and over the value of $5 is imprisonment in jail not exceeding two years, and by fine not exceeding -$500, or 'by such imprisonment without fine. See article 1422, P. O., as amended by Acts 40th Leg., p. 232, e. 157 (Vernon’s Ann. P. O. art. 1422). The 41st Leg. (1929) c. 28, p. 62 (Vernon’s Ann. P. 0. art. 1426a), apparently attempted to define an offense for fraudulently taking cotton or cotton seed, and fixing a penalty therefor in the following language: “Whoever shall fraudulently take cotton and cotton seed or either cotton or cotton seed under the value of Fifty ($50.00) Dollars, shall upon conviction for .the first offense be fined not less than. Fifty ($50.-00) Dollars nor more than Five Hundred ($500.00) Dollars and by confinement in the County Jail not less than thirty (30) days nor more than six (6) months; and for the second and subsequent offenses he shall be punished by confinement in the Penitentiary not less than one year nor more than five years.”

In the present case the court over objection authorized the penalty fixed by the act of the Forty-First Legislature, and appellant’s punishment was assessed at a fine of $50 and 30 days in jail. This is precisely the situation which arose in Musick’s Case, reported in (Tex. Cr. App.) 51 S.W.(2d) 715, in which the act of the Forty-First Legislature was held invalid. For the same reason the judgment in the present case cannot stand.

Appellant urges that the evidence does not support the verdict. We do not discuss it, but express grave doubts as to its sufficiency. It may not be the same on another trial should one be had.

For the error in the penalty authorized in the court’s instructions, the judgment is reversed, and the cause remanded.


text:
    H. L. BULLARD v. STATE.
    No. 15929.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    Bozeman & Cathey, of Quitman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed. •


author: MORROW, Presiding Judge.

text:
    E. J. GARNER v. STATE.
    No. 15756.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    W. D. Colvin, of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is the unlawful manufacture of intoxicating liquor; penalty assessed at confinement in the penitentiary for one year.

The indictment is regular. The evidence heard in the trial court is not brought up for review. There are no legal questions presented by bills of exception or otherwise.

The judgment is affirmed.


author: LATTIMORE, Judge.

text:
    William QUINN v. STATE.
    No. 15723.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    W. A. Anderson, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for receiving and concealing stolen property;, punishment, five years in the penitentiary.

A large quantity of valuable ladies’ wear was stolen from a store in San Angelo in May, 1929. Mrs. King testified that in June following she rented to appellant a room in Dallas, and that he had a quantity of ladies’ dresses which he left with her, ashing her to sell such of them as she could. Officers came to the house and got the garments. The owner of the store in San Angelo identified same as his property and as having been stolen in May. Appellant was charged with receiving and concealing the property of an unknown owner. It was shown by the testimony of the grand jury that they were unable to ascertain from whom appellant got the property. He took the stand as a witness in his own behalf and testified that the property belonged to a man named Tuller who got him (appellant)' to turn same over to Mrs. King to be sold by her. The jury evidently did not believe appellant’s story as to the purpose for which he received the property from Tuller. They had a right to reject his testimony.

We find in the record no hill of exception complaining of any matter of procedure. We think the testimony sufficient to support the verdict.

Finding no error in the record, the judgment will be affirmed.


text:
    Robert Louis ROBINSON v. STATE.
    No. 15984.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Wallace Hughston, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the Státe.
   HAWKINS, Judge.

Conviction is for unlawfully carrying a pistol; punishment assessed at confinement in jail for one month.

Appellant has filed in this court his affidavit stating that he no longer desires to prosecute his appeal.

Upon that information the appeal is ordered dismissed.


text:
    Robert Louis ROBINSON v. STATE.
    No. 15985.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Wallace Hughston, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Aggravated assault is the offense; penalty assessed at a fine of $25.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Frank SHIELDS v. STATE.
    No. 15732.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    6. W. Dunaway, of Midland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for forgery; punishment, two years in the penitentiary.

The record is before us without any statement of facts or bills of exception. The matters of procedure being regular, and no error appearing, the judgment will be affirmed.


text:
    H. B. SWOR v. STATE.
    No. 15704.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    P. S. Jones and A. M. Linscome, both of Beaumont, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The appellant was charged with assault with intent to murder, and convicted of aggravated assault; penalty assessed at a fine of $75 and confinement in the county jail for a period of 30 days.

The issue of aggravated assault alone was submitted to the jury. The charge authorized a conviction upon proof that the appellant committed an unlawful assault and battery upon the person of R. H. Duggan by striking him on the head with a pistol. The evidence of Duggan is definite in declaring that the appellant, using a pistol as a bludgeon, struck him (Duggan) upon the head and injured him.

In his testimony the appellant concedes that he struck the blow, but denied that he used a pistol or any bludgeon, claiming that he struck Duggan with his fist alone. The wounds upon Duggan were described by a doctor, who declared that they were such as to justify the jury in concluding that in striking Duggan the appellant used some instrument other than his fist.

No complaints .of the rulings of the trial court are brought up for review by bills of exception or otherwise, save in the motion for new trial'appellant makes various criticisms of the court’s instruction to the jury. No objections to the charge are preseiwed by exception as contemplated in article 658, "O. O. P. 19⅝5; (as .amended by Acts 1931, c. 43 [Vernon’s Ann. C. O. P. art. 658]), and art. 660.

The judgment is affirmed.


author: CALHOUN, Judge.

text:
    S. B. WARRICK v. STATE.
    No. 15737.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, theft of a turkey; the punishment, one year in the penitentiary.

Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal.

The motion is granted, and the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Eula WILLIAMS v. STATE.
    No. 15703.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Fletcher S. Jones, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, two years in the penitentiary.

There are no bills of exception in the record. The testimony is comparatively short, and the only question is as to its sufficiency. The undertaker who handled the body of deceased testified that he was shot in the back. Appellant as a witness admitted that she did the shooting. The state had introduced an officer who came to the scene shortly after the shooting took place, to whom appellant admitted also that she fired the shot. The claim of appellant, and a friend of hers who was present but said that she did not actually see the shooting, was that the shooting was accidental. Appellant testified that her sister had been cleaning a pistol, and, as she thought, had taken all the shells out of it, but had left one in it. She said after deceased came to the house she picked up the pistol and was playing with it when it accidentally went off and killed him. The dying statement of deceased was in evidence, in which he stated positively that it was not an accident, that he was leaving the place when appellant shot him in the hack.

Appellant’s chief complaint appears to be that she was not granted a continuance to get the testimony of her sister whom she averred was out of the state at the time of the trial, and that she did not know how long she would be gone. No bill of exception was taken to the refusal of the ’continuance. No diligence was shown in an effort to get the testimony of the witness. It appears from her affidavit made after the trial that she had appeared and had testified for appellant upon an examining trial in the case. Upon this showing and of the further fact that she was out of the state, the testimony of the witness given upon the examining trial could have been reproduced.

The jury have resolved the conflicting testimony. We find nothing in the record justifying us in doing otherwise than affirming the judgment, and it is so ordered.


author: WALTHALL, Justice.

text:
    Albert KANE v. TEXAS & PACIFIC RY. CO.
    No. 2795.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1933.
    Rehearing Denied March 30, 1933.
    E. B. O’Quinn, of Marfa, for appellant.
    Howard & Jackson and J. C. Ross, all of El Paso, for appellee.
   WALTHALL, Justice.

This case was heard and final judgment entered on the 8th day of June, 1932. Appellant has filed no’brief herein. We have examined the record for fundamental error, and, finding none, the judgment of the trial court is affirmed.


author: WALLACE, Justice.

text:
    Michelle SPRAGUE, a minor bnf Jack Sprague et al., Appellants, v. MEMORIAL BAPTIST HOSPITAL SYSTEM, Appellee.
    No. 17257.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 4, 1979.
    Rehearing Denied Feb. 8, 1979.
    John H. Holloway, Houston, for appellants.
    Butler, Binion, Rice, Cook & Knapp, Michael Connelly, Richard E. Gray, III, Houston, for appellee.
   WALLACE, Justice.

Minor appellant Michelle Sprague BNF Jack Sprague appeals from the granting of summary judgment in favor of Memorial Hospital System, based on the defense of charitable immunity.

Minor appellant was born at Memorial Baptist Hospital on August 22, 1963. She was immediately admitted as a patient and remained until August 25, 1963 at which time she and her mother were discharged. Both Michelle and her mother were paying patients at the appellee hospital. At the time of minor appellant’s birth, there existed a test for phenylketonuria, which test was not performed on the minor appellant. As a result of phenylketonuria, which remained undetected and untreated for several years, the minor appellant is permanently retarded.

Appellee alleges two points of error; first, that the doctrine of charitable immunity is inapplicable to a paying patient, and second, that the doctrine of charitable immunity is inapplicable to the cause of action of a minor, which cause of action arose during minority and was filed subsequent to March 9, 1966. We will consider the points of error in that order.

The first point was considered by the Supreme Court in Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749, 750 (1943). The plaintiff in that case was a paying customer at a college football game on the S.M.U. campus. The injury giving rise to the cause of action occurred when temporary bleachers erected by the University and maintained by them collapsed. The Supreme Court held that in applying the doctrine of charitable immunity, no distinction should be made between beneficiaries of the charity and strangers thereto. Therefore, appellants first point of error is overruled.

Appellant’s second point of error challenges the trial court's application of the doctrine of charitable immunity to the cause of action of a minor which was filed subsequent to March 9, 1966. This date is important because on that date the Supreme Court denied the Motion for Rehearing in Watkins v. Southcrest Baptist Church, 399 S.W.2d 530, 535-536 (1966). In Watkins, the Supreme Court expressed concern about the continued application of the doctrine of charitable immunity in Texas and, in effect, warned that the doctrine might well be reexamined at a later date and possibly abrogated. In 1971, the Supreme Court in Howle v. Camp Amon Carter, 470 S.W.2d 629, 630 (1971) did in fact reconsider the doctrine of charitable immunity and abrogated it as to all causes of action “arising from events which occurred subsequent to March 9, 1966.”

The only contact between appellants and the appellee hospital necessarily occurred between August 23 and August 25, 1963. Therefore, the events which gave rise to the present cause of action against the appellee hospital necessarily occurred prior to March 9, 1966. This being so, the doctrine of charitable immunity is applicable in this manner. The judgment of the trial court is affirmed.