to care. knew I was going to leave and did not seem I told my reason I was going to leave was because I would have to go and make a living. He refused to work, and I had to go to work and make the living. I went from there to Shamrock, Tex., where I took the train. My husband took me to Shamrock to the train. I told him at that time when he got something to live on to let me know and I would come back any time he wanted me to; that I was simply going away to make a living. I wrote him that I had reached Enid all right, but I never heard from him until through his lawyer, offering to send me money to get a divorce over there. I never received any letter from my husband, but I replied to his attorney, stating that I did not care for a divorce, but if Mr. Gutheridge wanted one to go ahead. After that I was cited to appear here in a divorce proceeding and came back to court. My husband did not appear, and the suit was dismissed. I saw him about a week before court, but he made no offer for me to come back and live with him. He just asked me to compromise with him on the property. He wanted to divide the land in halves. He did not want to give the baby anything at all and wanted me to support it. I have never received any proceeds from the sale of the land. I have not lived with my husband since February, 1908, when I left him at Shamrock, because I have not had the opportunity. I have never lived in the house on the land in controversy since we went to Chillicothe, but I have had it occupied. leased the land to my father one year. believe he made two crops on it, he and my brother. I have had the use of the land all the time since I left here and have the use of it now. I have people there tending it, and they have been ordered off a time or two, but they still hold it." I I Without quoting further from the evidence, we will state that the record abundantly sustains the court in his finding that the defendants Boverie and Poff were not innocent purchasers, and also that the conveyances of the property in question were made with the fraudulent intent alleged. The questions which we will consider specifically are raised by the following propositions: [3] Under the twenty-eighth assignment of error, which, is that the court erred in holding and in making an accounting between R. W. Gutheridge and Alice Gutheridge, because there were no pleadings in the case warranting the same nor in the prayer therefor, it is urged that there being no allegations of value of the community property now in the hands of R. W. Gutheridge, nor of amounts received by him from that alleged to have been appropriated, and no proof offered as to any of these essential points, the court fundamentally erred in undertaking to partition such properties and adjust community rights herein. An inspection of the pleadings briefly set out above, together with the prayer, shows that the suit as originally instituted by plaintiff was not a partition suit brought either under the statute or as an equitable proceeding, but that the defendants, by their pleadings, endeavored to convert it into a suit for partition under the statute. There was a prayer for the appointment of commissioners, etc. Plaintiff seems to have acquiesced in this, but from some cause the purpose of going into partition of the property under the statute was abandoned, since the record fails to show the appointment of commissioners, the issuance of any writ of partition, or any report by commissioners. If appellants had persisted in their original purpose of having a partition of the property under the statute, their pleadings were manifestly insufficient under article 6097, R. S. 1911, subd. 3, which requires that a petition in such proceeding shall estimate the value of the premises. [4, 5] It is held in this state that the giving of the remedy by statute has never been deemed to take away or in any degree abridge the original inherent powers of the court in an equitable proceeding for that purpose to partition real estate. The statute simply prescribes a procedure which parties may adopt if they see proper, but it is not obligatory. Our courts exercising the powers of courts of chancery may proceed to administer the relief upon the principles of equity, as fully and completely as if the proceedings had been brought and prosecuted under the statute. Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309; Ellis v. Rhone, 17 Tex. 131; Ross v. Armstrong, 25 Tex. Supp. 355, 78 Am. have failed to find any case or any textwriter holding that it was necessary in a bill in equity to allege the value of the property sought to be partitioned. [2] "There being no effort on appellee's Dec. 574; Payne v. Benham, 16 Tex. 364. part, either in her pleadings or proof, to void | We have investigated the question as fully the deed from R. W. Gutheridge to Law- as the authorities at hand would permit and rence Gutheridge, and said Lawrence Gutheridge having died intestate, under ten years of age, the court erred fundamentally in holding that title to the E. 1⁄2 of the N. E. 4, section 28, did not vest in equal halves in his parents, and those holding under them." This proposition has no merit. The transfer of the estate to the minor, and the subsequent death of the minor, left the matter in the same condition as it was before, so far as the rights of the parties in this litigation are concerned. [6] Besides, complaint made in this court by appellants is directed to a defect, if held to be one, in their own pleadings. They sought the partition, took the initiative, and, if the record is insufficient to sustain the court, appellant should not be heard to complain. [7] A careful perusal of the statement of facts, however, fails to disclose any evidence | ue of the property was not alleged, nor was of value, and according to Parker v. Cockrell the Pampa property described. et al., 31 S. W. 221, the question of value should govern more than the item of quantity in making a partition of real estate. Appellant's assignment, therefore, to the effect that there is no evidence supporting the court's judgment in partitioning the property between R. W. Gutheridge and his wife, must be sustained. [8, 9] Rule 62a for Courts of Civil Appeals (149 S. W. x) provides that if it should appear to this court that the error committed by the trial court affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error. We therefore affirm the judgment of the trial court in canceling the deeds mentioned in the judgment and divesting C. B. Boverie, Lee Brown, and J. M. Poff, of any interest in the said N. E. 14 of section 28, block 15, H. & G. N. Ry. Co.; but the portion of said judgment which attempts to partition said quarter section between R. W. Gutheridge and appellee herein is reversed and remanded for the want of testimony to support it, with instructions to the trial court to ascertain the value of all of said property and to partition the same between R. W. Gutheridge and appellee, Alice Gutheridge, in accordance with article 4634, R. S. 1911, and in this connection we hold that the trial court was correct in his finding that all of said property was community property. Young v. Young, 23 S. W. 83; Huntsman v. Huntsman, 147 S. W. 351; Franks v. Franks, 138 S. W. 1110. Affirmed in part, and reversed and remanded in part. On Motion for Rehearing. The motion for rehearing is overruled, except as hereinbefore stated. FAHEY V. BENEDETTI et al. OF ERROR-REVIEW. 1. APPEAL AND ERROR (§ 743*)-ASSIGNMENT An assignment of error that the court erred in directing a verdict on the ground that the evidence was sufficienty conflicting to go to the jury will not be considered on appeal, where the the motion for new trial in which the questions assignment does not refer to the paragraphs of were presented to the trial court, and the statement does not contain such reference, and the ed in the assignment, and the assignment is folmotion contains no reference to the ground urglowed by propositions casting no light on the matter and by a statement failing to comply with the rules. Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 743.*] 2. VENDOR AND PURCHASER (§ 315*)-CONTRACTS-EVIDENCE. In an action by a vendor for the price, evidence held to show performance by the vendor, and that, out of the payment made by the purchaser to the holder of the deed in escrow, taxes on the land and incumbrances were to be paid, so that the purchaser would acquire a good title, authorizing a recovery. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 928-931; Dec. Dig. § 315.*] 3. APPEAL AND ERror (§ 742*)-ASSIGNMENTS -REVIEW. judgment as unsupported by the evidence, will An assignment of error, which attacks the not be considered where no statement is made under the assignment. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 4. APPEAL AND ERROR (§ 742*)-ASSIGNMENTS -REVIEW. [10] After reviewing the record again, we have concluded that we were in error in canceling the deeds except in so far as they purported to convey the interest of appellee in the property. We think they had the effect of conveying whatever right R. W. Guthe-know to what ruling complaint is made. ridge may have had, subject to the right of appellee, to a partition in this action. R. W. Gutheridge certainly could not transfer the interest of appellee and to which she may be entitled, under the facts developed upon another trial. To that extent our original opinion is reformed. An assignment that the court erred in overruling the special exception of defendant to plaintiff's failure to allege a contract in writsubmitted and the court on appeal does not ing will not be considered, where no statement is [11] Appellants contend that, because the pleadings of the appellee did not authorize the court to decree a partition, none should have been made. If either party prays for relief and shows himself entitled thereto by the evidence, the court may grant it, notwithstanding the pleadings of the opposite party do not ask it. This record shows that the court, as well as the litigants, treated it during the trial as a partition suit. However, as held in our original opinion, the val [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. 8742.*] 5. FRAUDS, STATUTE OF (§ 150*)-DEMURRERGROUNDS. Where the petition did not show that a contract for the sale of real estate was oral, an exception to the petition for failure to allege a contract in writing was properly overruled. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 360-362; Dec. Dig. § 150.*] 6. SPECIFIC PERFORMANCE (§ 114*)—SALE OF REAL ESTATE-PERFORMANCE. A petition, in an action for the failure of a purchaser of real estate to perform his part of the contract, which alleges the execution by the vendor of a deed to the premises and delivery thereof in escrow for delivery on conditions specified to the purchaser, and the delivery to the escrow holder by the purchaser of a check for delivery to the vendor on specified conditions, and which avers that the vendor removed to other premises after a sale of her personalty at a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes sacrifice, in reliance on the contract, and a delivery of the possession of the premises to the purchaser and his refusal to take possession and pay the money, alleges such performance by the vendor as will entitle him to specific performance, even if the contract was not in writing. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 356-370, 372; Dec. Dig. § 114.*] Appeal from District Court, Galveston County; Robt. G. Street, Judge. contract of sale be specifically performed, and for costs and general relief. Fahey answered by general demurrer; a special exception that plaintiff in effèct sues for specific performance of a contract to convey real estate, and there is no allegation of a contract signed by Fahey, or of such mutuality among the parties, as would entitle plaintiff to specific performance, and also because the terms and provisions of the contract are not alleged; a general denial; a special answer to the effect that if he bought the property it was with the understanding that the title should be perfect and be satisfactory to and approved by his attorney and the property vacated by plaintiff and deliverJohn W. Campell, of Galveston, for appel-ed to Fahey, and that the title was imperfect lant. Maco & Minor Stewart, J. E. Quaid, and not approved by his attorney, there beHomer Jones, and Louis Lobit, all of Gal- ing at the time an incumbrance by mortgage veston, and C. R. Edwards, of San Antonio, for more than $2,000, as well as a lien for for appellees. taxes, both of which liens were not released at the time of the alleged delivery of the property and the check, and in addition said Action by Mollie C. Benedetti against D. Fahey and others. From a judgment for plaintiff, defendant named appeals. Affirmed. a was a married woman, incapable of selling same without her husband joining in the sale, and her husband did not join therein, and the property was not delivered to Fahey; further special answer that the check was not delivered to Boddeker & Co. as plaintiff's agents, but merely to provide a way for Fahey's attorney to close the sale during Fahey's absence, he then being about to absent himself from the city for an indefinite time, and at the time plaintiff was in possession of the property and no rights in the check were intended to be vested in her unless Fahey's attorney should direct the same to be cashed or delivered to plaintiff; and further answering Fahey alleged that, if he ever bought said property, plaintiff so delayed in the delivery thereof and made accusations against Fahey of forcing her to make a sale to him at much less than the value of the property, that Fahey on account thereof, and because of the mortgages and tax liens, and because the title was not satisfactory to his attorney, declined to accept the property and demanded the return of his check, and it would be unjust to him to require him to pay for said property. He prayed that such sale, if any there was, be set aside, and the check canceled. MOURSUND, J. Mollie C. Benedetti sued David Fahey, J. L. Boddeker, and J. E. Bod-property was the homestead of plaintiff, who deker, the last two being partners under the firm name of J. L. Boddekér & Co., alleging that about March, 1912, Fahey purchased from her a lot in the city of Galveston; that she delivered the deed to J. L. Boddeker & Co. to be delivered to Fahey, which was done, and Fahey, as consideration for said deed, executed and delivered to Boddeker & Co., his check for $2,500, drawn on Ed. McCarthy & Co., Bankers, which check was received by said Boddeker & Co. in trust for plaintiff to be delivered to her; that Fahey stopped payment of the check, and refuses to pay for the property; that by reason of the premises Fahey is indebted to plaintiff in the sum of $2,500, and plaintiff tenders him possession of the premises as she has heretofore done; that as Boddeker & Co. refuse to deliver the check they are made parties to this suit; that it was understood and agreed between plaintiff and Fahey that the taxes and incumbrances against the property sold should be paid out of the $2,500 by Boddeker & Co., and the remainder was to be paid by them to plaintiff; that plaintiff sold her furniture and effects at a sacrifice, rented other property, removed to such other property such of her effects as remained unsold, all with Fahey's knowledge, and delivered to Fahey possession of the property sold him; that Fahey's refusal to pay the money and take possession of the property was for the sole purpose of acquiring for himself the property at less than $2,500, and was done willfully and maliciously for the purpose of harassing plaintiff; that plaintiff is about to lose her property by reason of the incumbrance against same, and, being aged, she suffered mental anguish and distress of mind to such extent as to impair her health. Plaintiff prayed for judgment for $2,500, the amount of the check, for $10,000 actual damages and $10,000 exemplary damages, and that the The court instructed a verdict for plaintiff for $2,500, with interest from March 1, 1912, at the rate of 6 per cent. per annum, out of which was to be returned to Fahey $106.63, taxes, and $2,109.37, the amount of the mortgage debt, and that title to the property be divested out of plaintiff and vested in Fahey. A judgment was entered upon this verdict, which provided for the payment of taxes and the mortgage debt by the clerk of the court out of the $2,500 when the same should be collected under execution, and that upon payment of the judgment the clerk should deliver Fahey the check, also that the judg For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 161 S.W.-57 ment should be satisfied upon the filing by | off the mortgage and tax liens out of the Fahey of receipts showing the payment of check, while Boddeker's testimony is clear the taxes and the mortgage debt and upon his paying the remainder of the judgment to the clerk together with the costs, and it was further ordered that J. L. Boddeker and J. E. Boddeker be dismissed from the case, and that they recover of Fahey all costs incur red by them. Fahey appealed. and explicit, and the facts show beyond dispute that it was contemplated by all parties that the charges against the property should be paid out of the $2,500 to be paid by Fahey. He, as well as the other parties, knew that plaintiff had no way of paying such charges except out of the price received for her home. Fahey made his check payable to the Boddekers, instead of to plaintiff. It was undisputed that the Boddekers were stakeholders for the parties, intrusted by each with certain duties to be performed. For Fahey they were to see that not only the amounts due for taxes and incumbrance were paid, but also the amount due for the abstract of title. Fahey told Boddeker to get an abstract of title and deliver the same to his attorney, which was done. This is not disputed by Fahey. Why did he order the abstract of title? If plaintiff was unable to procure same, how was she expected to pay for same unless out of the proceeds of the sale? Why was the check made payable to the Boddekers if these charges were not to be paid out of same? No reason is given, and it is clear, even without the testimony of Boddeker, that the understanding was that the charges were to be paid by Boddek [1] By the first assignment of error it is contended that the court erred in instructing a verdict for plaintiff, three grounds being urged, each being a contention that in a certain particular the evidence was sufficiently conflicting to go to the jury. The assignment does not refer to the paragraphs of the motion for new trial in which the questions were presented to the trial court for revision, nor does the statement contain such reference, and upon examination of the motion we find no reference to the last ground urged in the assignment of error as a reason why the verdict should not have been instructed for plaintiff. The assignment is followed by three propositions, all of which are mere abstract propositions of law, casting no light upon the matter under investigation. These propositions are followed by a statement which fails to comply with the rules, as it consists of appellant's conclusions concerning what the testimony shows, interspersed with argu-er out of the proceeds of the check, and Bodments. Reference is incidentally made to deker at once made out his checks and had the fact that the testimony of Fahey and them ready to close up matters as soon as that of plaintiff and J. L. Boddeker is set out plaintiff should move from the premises. in the brief, and we find the same in a The facts also show beyond dispute that Fa"Statement of Material Facts," wherein ap- hey's attorney had stipulated what must be pellant devotes 12 pages of the brief to a done to have the title made satisfactory to statement of all the testimony deemed ma- him, and that nothing remained to be done terial by him. No reference is made to the except to pay off the taxes and furnish repage or pages of the preliminary statement | ceipt and pay off the incumbrance of which on which the matter bearing upon this as- he had himself drawn the release, and he signment is to be found. In fact, we are knew and acquiesced in leaving it to the Bodleft to search the entire preliminary state-dekers to make such payments. He left a ment to see whether any merit exists in any of the contentions attempted to be made by the assignment. Each issue raised by the assignment should have been presented by an appropriate proposition, and supported by a statement of the evidence relating to that particular issue. The assignment, not being briefed in accordance with the rules, should not be considered. We are, however, of the opinion that there is no merit in the two contentions which could have been presented under this assignment. [2] We do not consider the evidence conflicting upon the issue whether the amounts due for taxes and incumbrance were to be paid out of the $2,500 to be paid by Fahey. Fahey testified he had no idea the money was to be paid out of his check, that he did not look at it in that way at all, and never paid any attention to it, that all he wanted to know was that the property was straight, and all he wanted Boddeker to do was to be guided by his attorney. His testimony is evasive when asked to state what occurred in Boddeker's office with respect to paying memorandum with them of the amounts to be paid to satisfy the mortgage debt. Further, it does not appear that plaintiff was to vacate the premises within any certain time, nor that she delayed unduly, nor that Fahey was in any way prejudiced by such delay as took place; that the Boddekers at his request nailed on the house upon the premises a "For Rent" sign, and it does not appear that any one wanting to rent was prevented from doing so by reason of plaintiff's slow removal therefrom. [3] The second and third assignments also attack the judgment as unsupported by the evidence, but no statement of any kind is made under either of them, and they will not be considered. [4] The fourth assignment reads as follows: "The court erred in overruling the special exception of defendant to plaintiff's failure to allege a contract in writing, because the plaintiff must, before being allowed to have contract specifically performed, show that it is of such character as entitled her to relief sought." No statement is submitted LETTERS-CARBON COPIES. The letters of confirmation were acts and declarations of defendants through their agent and manager, and were admissible as such to bind them. under this assignment, and we do not know | 4. EVIDENCE (§ 243*)—Best anD SECONDARYwhether complaint is sought to be made of the overruling of the special exception hereinbefore stated in setting out defendant's pleadings, or a similar special exception urged in a so-called "First Supplemental Answer." The assignment should not be considered. [5] However, the petition does not disclose that the contract was verbal; hence the exception was properly overruled. Thomas v. Hammond, 47 Tex. 42. Lewis v. Alexander, 51 Tex. 578; Robb v. Traction Co., 82 Tex. 392, 18 S. W. 707; Land Co. v. Dooley, 33 Tex. Civ. App. 636, 77 S. W. 1030. [6] Besides, the petition alleged such a performance on the part of plaintiff as would entitle her to have specific performance required of Fahey. Tinsley v. Miles, 26 S. W. 1000; Showalter v. McDonnell, 83 Tex. 158, 18 S. W. 491; Fulton v. Robinson, 55 Tex. 401. The judgment is affirmed. E. R. & D. C. KOLP v. BRAZER. (Court of Civil Appeals of Texas. Amarillo. Nov. 15, 1913. On Motion for Rehearing, Dec. 13, 1913.) [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 908-915; Dec. Dig. § 243.*] 5. EVIDENCE (§ 471*)-OPINIONS-STATEMENT OF FACT. In an action for broker's commissions, a statement of a witness that plaintiff sold certain parties was not objectionable as an opinion. Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] SWER-RESPONSIVENESS-TIME OF TAKING. Objections that answers to questions in a deposition are not responsive must be taken by exception before announcement of ready for trial. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 309-319; Dec. Dig. § 107.*] 7. BROKERS (8 54*)-SALE OF GOODS-RIGHT TO COMMISSIONS-PURCHASER READY, WILLING, AND ABLE TO BUY. In an action for broker's commissions in the sale of feedstuff manufactured by defendants, plaintiff was not required to prove that his customers were ready, willing, and able to buy under the terms proposed, where defendants on being notified of the sales wrote letters to the purchasers and to plaintiff confirming the same. [Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 75-81; Dec. Dig. § 54.*] 1. PRINCIPAL AND AGENT (§ 123*)-AUTHOR-8. BROKERS (§ 86*)-COMMISSIONS-ACTION. ITY OF AGENT EVIDENCE. In an action for broker's commissions on the sale of feedstuff for defendants under a contract between plaintiff and defendants' agent, evidence held to warrant a finding that such agent was acting for defendants in the premises and that he acted within his authority in writing certain letters on defendants' behalf to plaintiff and arranging for the payment of commissions for the sale of the material. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. 8 123.*] 2. EVIDENCE (§ 185*)-BEST AND SECONDARY -NOTICE TO PRODUCE. Where plaintiff gave defendants notice to produce the original letters written by plaintiff to them and defendants excused the failure to produce the letters and papers called for on the ground that the mass was so great that it would take considerable time to find them, etc., plaintiff was properly permitted to introduce carbon copies of the letters as secondary evidence. [Ed. Note. For other cases, see Evidence, that he had made sales to them. Where, in an action for broker's commissions in the sale of feedstuff manufactured by defendants, plaintiff testified that he made the various contracts in question for the sale of the cars of material, and such fact was not rebutted by defendants, except by general statement that they knew nothing of it, and it was also shown that the sales were confirmed by defendants' managing agent, and notice sent to the purchasers-with copies to plaintiff and de fendants-such proof established a prima facie case, and plaintiff was not bound to prove by each of the purchasers that he had made the contract with them. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*] Appeal from Tarrant County Court; Charles T. Prewett, Judge. Action by Wm. P. Brazer against E. R. & D. C. Kolp. Judgment for plaintiff, and defendants appeal. Affirmed on rehearing. Flournoy, Smith & Storer, of Ft. Worth, for appellants. Baskin, Dodge & Eastus, of Ft. Worth, for appellee. HUFF, C. J. On October 25, 1913, we rendered a decision in this case, reversing and remanding it. Appellee has filed a motion for rehearing and called to our attention errors that we are now persuaded we committed in our former opinion, in applying the law to the facts of the case; we therefore grant the motion for rehearing and file this opinion as our conclusion of the law governing the case. We may be permitted to state, partly in justification of our former opinion, that appellee did not brief the case, and we considered the case alone For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |