Volume 244 — South Western Reporter

E. Monteith, Judge. Suit by R. N. Little and others against the City of Houston and others. Judgment for plaintiffs, and the named defendant appeals.

<p>1. Courts <&wkey;209(I)— Criminal Court of Appeals without authority to determine issues of fact except those involving its jurisdiction.</p> <p>The Criminal Court of Appeals is not a nisi prius court, and is without authority to hear evidence and from it determine issues of fact in any case save one involving its jurisdiction.</p> <p>2. Habeas corpus <&wkey;>l07 — Will issue to hear and determine allegations of former jeopardy; where right to bail depends on facts, writ will issue to hear facts, and fix bail, if justified.</p> <p>Where the right of applicants for habeas corpus, on the ground of former jeopardy, to a bond commensurate with the facts depended upon what those facts might be shown to be, which must be determined by a court having power to hear them, the writ should be issued, with directions that such court hear the facts, and if satisfied that defendants have been tried and acquitted for the identical acts and offenses embraced in the indictment under which defendants are held to fix nominal bail for their appearance for trial upon the merits.</p>

<p>Original application by E. ,T. Miller for a writ of habeas corpus against the Sheriff of Randall County.</p>

<p>Criminal law &wkey;>507(l), 511(10) — Party negotiating, but not selling or receiving intoxicants, or buying intoxicants, but not at same time paying cash therefor, is accomplice; one accomplice cannot corroborate another.</p> <p>Where two parties, wishing to buy whisky, procured a third, who found defendant, the seller, and conducted the negotiations, save that one of the two paid defendant, and where the second was “broke,” but would pay later, all three were, prior to Dean Law (Gen. Laws 1921, First Called Sess. c. 61 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588%, et seq.]) accomplices, and they could not corroborate one another.</p>

<p>1. Appeal and error <&wkey;!050(l) — Principal and agent &wkey;sl22(l) — Agent’s admissions of lack of authority and testimony in another trial inadmissible to support principal’s denial of authority and the admission 'of such evidence was prejudicial.</p> <p>Where a principal, denying his agent’s authority to draw checks in his name, testified he had instructed the drawee bank not to pay the checks, and was his own and only material witness, and was contradicted by defendant banker, his testimony, concerning the agent’s admission to him of lack of authority and what the agent swore to in another trial, was inadmissible and prejudicial to the bank.</p> <p>2. Principal and agent <&wkey;120 (4) — Conversations between principal’s daughter and agent, whose- authority principal denied, held inadmissible on question of agent’s authority.</p> <p>Where principal denied his agent’s authority to draw checks-in his name paid by defend-' ant drawee bank, and showed he had instructed the bank not to pay the checks, it was error to permit principal’s daughter to relate conversation concerning the agency between principal and the agent, had when the bank owner was not present.</p> <p>3. Appeal and error <&wkey; 1062 (5)— Submission of unnecessary issue not prejudicial error.</p> <p>Where a principal, denying agent’s authority, had instructed defendant bank not to pay cheeks drawn by the agent for hogs purchased, held that the bank was not injured by submission of the unnecessary issue of authority to buy certain hogs.</p> <p>4. Principal and agent &wkey;>l89(4) — Proof of lack, of authority held variance from allegations- of restricted authority.</p> <p>Where principal alleged he informed drawee bank not to cash his agent’s checks unless given in payment for hogs, and denied liability on a check with notation that it was for mules, there was a variance between allegations and proof, where principal showed he informed the bank not to cash any of agent’s cheeks.</p>

<p>I. Brokers <&wkey;55(2) — Broker, who was procuring cause; entitled to commission, though sale for less price finally made through other broker.</p> <p>A broker, who was the efficient and procuring cause of the sale, was entitled to his commission under a contract authorizing broker to procure a purchaser on terms satisfactory to owner, though the final negotiations were conducted* and the transaction finally consummated through another broker, and the land was purchased for a price less than that at which it was offered purchaser by first broker.</p> <p>2. Brokers <@=»86(4) — Evidence held to prove broker procuring cause of sale.</p> <p>In broker’s action for commission, evidence field to sustain finding that the plaintiff was the efficient and procuring cause of the sale,' though the" final negotiations were conducted, and the transaction was finally consummated, through another broker.</p>

<p>1. Husband and wife <&wkey;274(l) — Daughter held not entitled to all of community property as against a son of surviving widow by a former marriage.</p> <p>The surviving widow has the right, and it is her duty, to control and manage the community property, and, where the community estate consisted of the family homestead, in which the widow had a life estate, and she was prudent and diligent in the preservation of the property, and frugal and provident in the use and application of the fruits and revenues derived therefrom, a daughter was not entitled to more than one-half of the property as against a son of the widow by a former marriage, to whom the widow bequeathed all her property.</p> <p>2. Husband and wife <&wkey;274(l) — Appropriation of personal property of the community estate by surviving widow held net to amount to a parol partition.</p> <p>Appropriation by the surviving widow of all the personal property of the community estate did not amount to a parol partition by which she elected to take the personal property as her portion, and leave the real property as the portion of her daughter, where the widow used the money derived from the personal property to improve the real estate, which she preserved intact until her death.</p>

P. Bolding, Judge. Action by W. W. Fitzwater against Erwin Smith. From a judgment of the county court, on appeal from justice court, reducing amount of judgment against defendant, and taxing defendant with costs, he appeals.

<p>1. Judgment <&wkey;l I — Rendered after expiration of term held void.</p> <p>Judgment of district court of the Seventy-Ninth district created by Acts 34th Leg. (1915) c. 48, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30, subd. 79), rendered on April 14, 1921, held void where the cause was not tried at a special term, nor under an order extending the former term, since under such statute the term expired April 10th, and Acts 37th Leg. (1921) c. 8, § 1 (Vernon’s Ann. Civ. St. Supp. 1922, art. 30, subd. 79), extending the term to May 1st, had not taken effect.</p> <p>2. Statutes <&wkey;251 — Statute prescribing terms for Seventy-Ninth judicial district court held not to have taken effect until 1922, notwithstanding emergency clause.</p> <p>Acts 37th Leg. (1921) c. 8, § 1 (Vernon’s Ann. Civ. St. Supp. 1922, art. 30, subd. 79), purporting to change the time of holding court in the Seventy-Ninth district, though it contained an emergency clause, did not become effective upon its passage on February 2, 1921, but did not take effect until 1922, since it operated to deprive Duval county of the spring term provided for in Acts 34th Leg. (1915) c. 4S, § 2 (Vernon’s Ann. Oiv. St. Supp. 1918, art. 30, subd. 79), repealed by such statute, thus giving it only one term for the year 1921, in violation of Const, art. 5, § 7.</p> <p>3. Judgment <&wkey;25 — Void judgment not validated by subsequent enactment of statute.</p> <p>Where judgment was void because not rendered during the term, the subsequent enactment of curative act (Acts 37th Leg. First Called Sess. 1921, c. 5, § 1 [Vernon’s Ann. Civ. St. Supp. 1922, art. 30, subd. 79]) did not validate the judgment.</p>

<p>Appeal from District Court, Hemphill County; W. R. Ewing, Judge.</p> <p>Action by George Gerlach against the North Texas & Santa Fé Railway Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Deon County Court; O, D. Craig, Judge.</p> <p>On Rehearing.</p>

<p>Original application for habeas corpus by E. R. Humphrey.</p>

L. Hutchinson, Judge. Action by Bill Rolerson against the Standard Life Insurance Company. Judgment for ■defendant, and plaintiff appeals. The appellant brought the suit to recover on a policy of life insurance issued by it -on the life of Alice Rolerson in the sum of $500.

<p>1. Damages <&wkey;>83 — Whether provision is for penalty or liquidated damages for the court.</p> <p>Whether a stipulation in a contract is to be considered as a penalty or as liquidated damages is a question of law for the court.</p> <p>2. Specific performance <&wkey;>58 — Provision for liquidated damages does not bar specific performance.</p> <p>Though there is a definite agreement for damages fixed by the parties to a contract, the injured party may nevertheless elect and at his option maintain a suit for specific performance.</p> <p>3. Specific performance &wkey;>117 — Allegations of legal fraud heid sufficient to permit introduction of evidence as to understanding of contract.</p> <p>Allegations in answer in suit for specific performance of contract for the sale of land that defendant was unacquainted with legal terms and the force and effect of the language used, and that he would not have executed the contract if its legal effect had been explained to him as plaintiff contended, was sufficient to show legal fraud and entitled defendant to introduce evidence as to the understanding of the parties at and before the signing of the contract.</p> <p>4. Contracts <&wkey;94(7)— Contract not binding in equity where one party was induced by misstatements as to legal effect of contract.</p> <p>Though statements by an attorney of a party to the contract were made in good faith, if he was mistaken as to the legal effect of the language used in framing the contract, it would amount to fraud in law if such statements induced the other party to act relying upon their correctness, and the contract under such eir-' cumstances would not be binding in equity.</p> <p>5. Evidence <&wkey;46l (I) — Evidence of conversation and surroundings of the parties admissi- . ble to explain ambiguous contract.</p> <p>Where the issue is whether the stipulation in the contract is one for liquidated damages or a penalty, and the intent of the parties is- not clear from the language of the instrument, evidence of the facts and circumstances attending the execution of the contract and the conversation and the surroundings of the parties at the time may be looked to in ascertaining what the real intention was and what meaning should be given to the words.</p> <p>6. Evidence <s&wkey;506 — Validity of title for the court.</p> <p>Validity of the title to land is a question of law for .the court; hence evidence as to the opinion of the attorney of a purchaser as to the validity of the title was inadmissible.</p> <p>7. Specific performance <&wkey;f 20 — Evidence as to attorney’s opinion of title held admissible to show that purchaser accepted title.</p> <p>In a suit for "specific performance'of a contract to sell land, evidence that the purchaser’s attorney reported the defects in the title to the vendor, and that the vendor corrected them, after which the title was passed by the attorney, was admissible to establish the vendor’s contention .that the objection to the contract had 'been cured, and that the purchaser had accepted the title and waived any objection thereto.</p> <p>8. Trial <&wkey;255(4) — Adverse party must request testimony to be limited.</p> <p>Where testimony is admissible for one reason and inadmissible for .another, if the adverse party desires to have the testimony limited, he must request the court to do so.</p> <p>9. Evidence &wkey;>l23(2)~Letter from purchaser to vendor held admissible as part of the res ges.tie.</p> <p>In suit for specific performance of contract for the sale of land, a letter by the purchaser to the vendor reminding the latter of his promise to furnish an abstract title and his failure to comply with the promise, though more than five months had elapsed since the date of the contract, and further stating that he had received no word of explanation for the unreasonable delay, and that he had concluded to call the deal off, was admissible as part of the res gestte.</p> <p>Í0. Principal and agent <&wkey;6 7l (9) — Suit on contract signed by agent held ratification of agent’s act.</p> <p>• In principal’s action on contract signed by agent, allegation or proof that the contract was made under the authority of the principal or that he had ratified the contract was unnecessary, as the suit was a sufficient ratification of the agent’s act.</p> <p>11. Specific .performance &wkey;>l 14(4) — Plaintiff must allege and prove performance or tender of performance on his part.</p> <p>In suits for specific performance'of a contract, plaintiff must allege and prove performance or tender of performance of its terms upon his part, and that defendant is estopped or has waived performance.</p> <p>12. Vendor and purchaser <&wkey;149 — Abstract not brought down to date does not show merchantable title.'</p> <p>An abstract of title not brought down to the date fixed for closing the deal does not show a merchantable title.</p> <p>13. Vendor and purchaser <&wkey;I43 — Defects not pointed out by attorney authorized to pass upon title are waived.</p> <p>Where the purchaser authorized an attorney to examine the abstracts and pass upon the title, all defects not pointed out by the attorney are waived.</p> <p>14. Vendor and purchaser <&wkey;>l4I — Provision requiring objections to title to be in writing hold waived v/here vendor undertook to cure defects orally pointed out.</p> <p>Where the vendor undertook to cure the defects in the title verbally pointed out by the purchaser’s attorney, he waived the stipulation in the contract requiring objections to the title to be stated in writing.</p> <p>15. Attorney and client <&wkey;<77 — Attorney held to act as agent for vendor in preparing deed in absence of showing to contrary.</p> <p>That an attorney was authorized by the purchaser to examine the abstracts and pass on the title does not authorize him to prepare or even pass on the sufficiency of the deed, as the law makes it the duty of the vendor to prepare and tender a deed in accordance with the terms of the contract, and, in the absence of a showing that the attorney prepared the deed on request of the purchaser, he will be held to have acted in doing so as the agent of the vendor.</p> <p>16. Specific performance <§=>96-~Joint conveyance pursuant to contract by plaintiff alone held not to entitle him to specific performance.</p> <p>Where the contract for the sale of land provided for a warranty of title to all the land from the vendor named in the contract, a conveyance executed by the vendor and a joint owner did not entitle the vendor to a specific performance.</p> <p>17. Specific performance <&wkey; 128(3) — Judgment for full purchase price erroneous where vendor had not paid all indebtedness on the land.</p> <p>A judgment for plaintiff for the full purchase price in a suit for the specific performance of a contract to purchase land was erroneous where plaintiff had not discharged all the indebtedness against the land, as a payment to plaintiff would not he a satisfaction of the indebtedness.</p>

<p>Appeal from District Court, Marion County; R. T. Wilkinson, Judge.</p> <p>Action by Paul W. Torrans against the Dempsey Oil Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, HarrisoD County; P. O. Beard, Judge.</p> <p>Suit by Lillie Harris and others against Mollie Mayfield and another. From a judgment for defendants, plaintiffs appeal.</p>

H. Davidson, Judge. 1 Suit by H. L. Eagin and others against M. E. Yount and others for recovery of land and cancellation of defendants’ title under a receiver’s sale. Judgment' for plaintiffs, and •defendants appeal.

Appea[ fri>m District Court, Liberty County; D. F. Singleton, Judge. Action by the Cleveland State Bank against J. S. McCombs and others. Judgment for plaintiff, and the named defendant appeals.

<p>Appeal from District Court, Jim Wells County; Hood Boone, Judge. Nicolas Bruketta was convicted of forgery, and he appeals.</p>