county, Texas, as more fully appears by plain- í language in the contract by which defendant tiff's original petition. A. L. Moller. "Sworn to and subscribed before me, this 14th day of September, A. D. 1917. "W. J. Stoner, Notary Public in and for Galveston County, Texas." expressly promised to perform its terms in Galveston county; and certainly it is not one which would necessarily require appellant to perform his part thereof in Galveston county. On the 27th day of September, 1917, the As before stated, the only grounds upon cause was called for trial in the justice court. which appellee claims, in his brief, that apDefendant's plea of privilege was overruled, pellant's plea of privilege was properly overand, upon hearing on the merits, judgment ruled, is that the letters and telegrams taken was rendered in favor of plaintiff, Moller, together constitute a written contract beagainst defendant Harris, for the sum sued tween the parties to be performed in Galvesfor. Harris appealed to the county court. ton county, and therefore appellant must anThe transcript from the justice court was swer to the suit brought against him in that filed in the county court on the 10th day of county. He contends that the expression "f. October, 1917. The cause was called for trial o. b. cars at Alta Loma," appearing in the in the county court on the 18th day of De- contract, implies a promise on the part of cember, 1917. The plea of privilege was pre-appellant to pay the agreed purchase price sented to the court, and, upon hearing evi- of the hay at the town of Alta Loma, which dence relating to the points of contest only, is situated in Galveston county. The contenthe court overruled said plea, and upon hear- tion here made is, we think, in direct conflict ing upon the merits rendered judgment for with the uniform interpretation placed upon plaintiff for the sum sued for. From this rul- such contracts and expressions by the courts ing and judgment defendant, Harris, has ap- of this state. Burkitt & Barnes v. Berry, 143 pealed to this court. S. W. 1187; McCullar Lumber Co. v. Higginbotham Bros., 118 S. W. 885; Russell & Co. v. Heitman & Co., 86 S. W. 75. Appellant presents three assignments, all of which, however, present but one proposition; that is, that the court erred in overruling his plea of privilege. [1] We think the assignment should be sus tained. The averments of defendant's verified plea of privilege, to the effect that he was a resident of Collin county and not of Galveston county, under the provisions of article 1903 of the Revised Civil Statutes 1911, as amended by the Acts of the 35th Legislature 1917, c. 176, p. 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), are prima facie proof of the facts averred and it is provided by said article that "If, however, the plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending." The initial letter, of date April 13, 1917, by appellant to appellee was in effect an offer to purchase from appellee hay to be delivered free on board cars at Alta Loma, that is, without charge for loading on cars, at a price of $11.50 per ton. This offer was accepted by appellee, and before any of the hay was shipped, on the 16th day of April, one day after such acceptance, appellant wrote appellee as follows: "We will thank you to rush the Eddy car as well as all other cars as fast as possible; send draft with B/L's attached for arrival to the First National Bank of Farmersville, Texas, direct." named by appellant, and thereafter draw draft on the bank at Farmersville, Collin county, for the purchase price of the hay, at which point the draft was to be paid. We think the only reasonable interpretation to be placed upon this contract, as thus made, is that appellee agreed to sell appellant hay It will be observed from the controverting at a price of $11.50 per ton, and put it on answer filed by plaintiff, set out herein, that cars at Alta Loma free of charge to appelthe only specific fact alleged by him to ex-lant, and to forward the cars of hay to points ist, which, if true, would confer venue of this cause on the courts of Galveston county, is to the effect that the contract between the parties was in writing and that by its terms all parties thereto were to perform its terms and conditions in Galveston county, Tex. So, then, the averment of the plea of privilege, that defendant was a resident of Collin county and not of Galveston county, is to be accepted as proven without further proof of the facts so averred. As said in the case of Burkitt & Barnes v. Berry, supra: "If an implied promise to pay in Angelina county is shown, this would not defeat defendants' right to be sued in the county of their residence. The agreement or promise to perform in a county other than that of the promisor's [2] This being true, then the only remain-residence, in order to fix the venue in such ing inquiry is: Was the written contract one which was to be performed by defendant in Galveston county by its express terms, or one which of necessity must be performed in said county? We are unable to find any county, must be in writing, and the right of a residence can only be defeated when the plaindefendant to be sued in the county of his tiff brings his case clearly within the exception contained in the statute. Cohen v. Munson, 59 Tex. 237; Mahon v. Cotton, 13 Tex. Civ. App. This language is peculiarly applicable to the facts of the present case. 239, 35 S. W. 869; Russell & Co. v. Heitmann | Hutcheson, or either of them, and therefore & Co., 86 S. W. 75.” he was not required to give notice to appellees of his claim to the land in order for such claim by adverse possession and use to It is apparent from what has been said ripen into title. The facts of his adverse that we think the court should have sustain-claim and possession for more than ten years ed the plea of privilege and have transferred the cause to the proper court of Collin county, Tex. It follows from the conclusions before stated that the judgment of the trial court should be reversed, and judgment here rendered directing the transfer of this suit to the court for justice precinct No. 1 of Collin county, Tex., and it has been so ordered. Reversed and rendered, with instructions. DOLEN et al. v. LOBIT et al. (No. 7617.) (Court of Civil Appeals of Texas. Jan. 16, 1919.) Dissenting opinion. Galveston. be here rendered in his favor. The fact that being undisputed, I think judgment should appellants do not ask to have judgment rendered does not, in my opinion, authorize this court to remand a cause for a new trial, when the facts in the case are shown to be fully developed and are undisputed. (Court of Civil Appeals of Texas. Texarkana. 1. HUSBAND AND WIFE 273(9)-COMMUNI• Where notes held by defendant constituted a valid, subsisting community debt, secured by For majority opinion, see 207 S. W. 143. a vendor's lien on the land, the purchaser's PLEASANTS, C. J. (dissenting in part). I fully concur with my Associates in the conclusion that the judgment of the trial court in this case should be reversed, but I do not think the record presents any question of fact which requires the cause remanded for a new trial. All of the material facts are undisputed. During the time the land in controversy was held by Baker and Hutcheson as tenants at will of appellees, Dolen was the "boss" of their cattle ranch, and as such boss or foreman had general control and care of the stock and looked after the fences Without culpable negligence on part of a grantor, and where the rights of innocent third parties do not intervene, one executing a deed in ignorance of its character and contents and delivering it under the impression that it was for another purpose, under certain conditions, may be relieved from its terms. 3. TRESPASS TO TRY TITLE 35(2)-PLEA OF NOT GUILTY-PROOF-LATITUDE. Much latitude is allowed in suits to recover around the several pastures composing the the title and possession of realty when plainranch. He did not live on the land in question of trespass to try title and is only met tiff's petition is in the ordinary form of an action, nor in the pasture in which it was in- by a plea of not guilty. closed with other lands. The undisputed ev ITY OF DEED-PLEADING-FRAUD. In trespass to try title met only by a plea of not guilty, either party may offer evidence by way of confession and avoidance, and, under certain conditions, may prove that a deed relied upon by his adversary is void because procured by fraud, or as the result of mistake. 5. TRESPASS TO TRY TITLE ATIVE RELIEF-PLEADINGS. 47(1)—AFFIRM idence shows that, about the time the firm of 4. TRESPASS TO TRY TITLE 35(2)—INVALIDBaker and Hutcheson sold out their cattle business and Dolen's employment with them ceased, one side of the fencing inclosing the pasture in which this land was situated was destroyed by fire and the land remained uninclosed for several years before Dolen fenced, took possession, and set up claim to it. Neither Baker nor Hutcheson placed Dolen in possession of the land or authorized him to fence it, or even knew that he intended so doing. When Dolen took possession he did not know that appellees had a title to the land, and knew nothing of the agreement under which Baker and Hutcheson had previously held possession of the land as tenants of appellees. I think these undisputed facts show that Dolen was never a tenant of appellees, and his possession of the land was not obtained through or under Baker and In trespass to try title, met only by a plea of not guilty, affirmative relief to plaintiff, because the deed relied upon by his adversary was void for fraud or mistake, will be granted in response to appropriate pleadings bringing himself within the conditions that entitle him to a rescission. 6. CANCELLATION OF INSTRUMENTS 37(4)— DEEDS-RESTORATION OF CONSIDERATION. When transaction out of which a conveyance results involves payment of a valuable con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sideration by grantee, the grantor cannot have the land and the money too, and if he elects to rescind and reclaim land he must restore or offer to restore what he has received from his grantee, and should by his pleading inform the court as to such facts. 7. TRESPASS TO TRY TITLE PRECEDENT. purpose of defeating the prima facie title shown by the deeds to Grundy, the appellee offered in evidence a deed executed by the appellant Eliza Grundy as the surviving widow of her deceased husband, conveying the land in controversy to the appellee in con4-CONDITIONS sideration of the cancellation of the five purchase-money notes before referred to. This deed was dated December 18, 1912, was in the ordinary form of an absolute conveyance, and properly acknowledged. The five notes were also offered in evidence, showing that they were marked canceled on the date the deed was executed. The evidence further showed that Eliza Grundy remained in possession of 1915, when she was forcibly ejected. the premises until some time during the year Surviving wife and children, suing in trespass to try title after decedent's notes secured by a vendor's lien had been barred by limitations, might satisfy the debt or offer to pay it as a condition to cancellation of surviving wife's deed to defendant, and so enable court to adjust their equities. 8. TRESPASS TO TRY TITLE 25-LACHES. One seeking to repudiate a contract for fraud or mistake must act promptly on discovery thereof, and where plaintiff admitted that in 1913, less than a year after her deed to defendant, she learned that he was claiming the land, a suit in trespass to try title not filed until latter part of February, 1916, justified a finding that the right of possession had been lost. 9. DEEDS ERATION. 17(2)—INADEQUACY OF CONSID Where, in payment of indebtedness of about $1,000, land was conveyed which the evidence offered by grantor tended to show was worth about $1,500, the difference between its value and the indebtedness was not so great as to require court to set aside deed for inadequacy of consideration alone. 10. APPEAL AND ERROR 736—ASSIGNMENT OF ERROR-MULTIFARIOUSNESS. An assignment of error complaining of the court's refusal to submit certain different issues was multifarious, and for that reason should be disregarded. force of the conveyance from Eliza Grundy to The appellants endeavored to evade the Greene, by proof that Eliza was an ignorant and illiterate negro woman; that at the time she executed the deed she did not know its contents, and signed it under the impression that the instrument merely conveyed a right to the rents due from her tenants for the purpose of satisfying a debt claimed by Greene. They also offered evidence tending to show that there was an agreement between Emanuel Grundy prior to his death and the appellee Greene, whereby the latter accepted the conveyance of another tract, known as the Sulphur land, in payment of the purchase-money notes given for the land in controversy. This testimony, however, was disputed. The court submitted the following special issues: (1) Did Emanuel Grundy owe a community debt to F. M. Greene, including the vendor's lien notes on the land in controversy, at the date of Emanuel Grundy's Appeal from District Court, Cass County; death? (2) Did Eliza Grundy execute and de H. F. O'Neal, Judge. Trespass to try title by Eliza Grundy and others against F. M. Greene. Judgment for defendant, and plaintiffs appeal. Affirmed. Mahaffey, Keeney & Dalby, of Texarkana, for appellants. O'Neal & Allday, of Atlanta, for appellee. liver in December, 1912, the deed conveying Both of these questions were answered in the the land in controversy to F. M. Greene? affirmative. (3) Did Eliza Grundy know at the time of the execution of that deed that it was a deed conveying the land in controversy to F. M. Greene in satisfaction of the vendor's lien notes held by him against the land? HODGES, J. The appellants are the widow and adult children of Emanuel Grundy, who died in 1909. They instituted this suit against the appellee, Greene, to recover 1691⁄2 acres of land situated in Cass county. The pleadings of the plaintiffs were in the ordinary form of an action of trespass to try title, and the answer was simply a plea of not guilty. The proof showed that Emanuel Grundy had purchased the land many years before his death. Papers which were introduced as evidence of title showed that he had executed five promissory notes as part of the original purchase price. There was some dispute as to whether or not those notes had been satisfied prior to his death. For the [1] There being no contention that the The answers of the jury established subGrundy died leaving unpaid the five purchasestantially the following facts: That Emanuel money notes given for the land; that these notes constituted an existing community debt at the time of his death; that Eliza Grundy did execute the deed relied upon by the appellee as the basis of his title; but that she did not at the time know its true nature and purpose, and did not intend to convey the land. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes notes were paid after the death of Emanueleration, the cancellation of the purchaseGrundy and prior to the conveyance made by money notes. She was clearly not entitled to his widow in December, 1912, the conclusion hold this land freed from the debt with which of the jury that they were unpaid at the time it was incumbered; and it devolved upon her, of his death was, in effect, a finding that the if she wished to avoid her deed, to satisfy the notes were not settled in the sale of the Sul- debt or to restore or offer to restore the phur tract of land at an earlier date. It creditor to his original status. Until she did follows that, when Eliza Grundy made her that, her deed was binding. Chaney v. Coleconveyance to Greene, the notes held by him man, 77 Tex. 100, 13 S. W. 850; State v. constituted a valid and subsisting community Snyder, 66 Tex. 687, 18 S. W. 106; Williams v. debt secured by a lien on the land, for the Rand, 9 Tex. Civ. App. 631, 30 S. W. 509; payment of which she had a legal right, if Parks v. Knox, 61 Tex. Civ. App. 493, 130 S. necessary, to convey the land. Morse v. W. 209; 2 Black on Res. & Can. §§ 590, 610, Nibbs, 150 S. W. 766, and cases cited; Speer's 626. Her claim to the right of having her Law of Mar. Rights, § 581. deed canceled presented an issue which the trial court was required to determine in her favor as a condition precedent to a decree awarding her the land. Such an issue must be presented by appropriate pleadings seeking the equitable relief necessary. 5 Pomeroy, Eq. § 4; 4 Ruling Case Law, p. 518. The appellants have not in this case asked for any such relief, nor have they offered to comply with the conditions upon which the deed should be canceled. De Perez v. Everett, supra; 6 Pomeroy, Eq. § 688. [2-6] The question then arises: Does the fact that Eliza Grundy did not know the char. acter and contents of the instrument at the time she signed it, and that she executed and delivered it under the impression that it conveyed only rents from the premises, require the rendition of a judgment in her favor? It is well settled that in the absence of culpable negligence on the part of the grantor, and where the rights of innocent third parties have not intervened, one who executes a deed under such circumstances may, under certain [7] Even if we should assume that the conditions, be relieved from its terms. De pleadings are sufficient to enable the court Perez v. Everett, 73 Tex. 431, 11 S. W. 388; to inquire into and adjust all the equities Edwards v. T. & B. V. Ry. Co., 54 Tex. Civ. which the parties might claim, including the App. 334, 118 S. W. 572. But that relief will cancellation of Eliza Grundy's deed, he had be granted only in response to appropriate a right to deny a recovery of the land when pleadings. Much latitude is allowed in suits the appellants made no pretense of an offer to recover the title and possession of real es- to do equity. At the time Eliza Grundy extate when the plaintiff's petition is in the or- ecuted her deed, the purchase-money notes dinary form of an action of trespass to try were due and were secured by a vendor's lien title and is met with only a plea of not guilty. upon the land. At the time this case was In such cases either party may offer evidence tried, they had become barred by limitation, by way of confession and avoidance, and may, and the lien was lost. The court had no pow. under certain conditions, prove that a deed er to forcibly restore an extinct debt and relied on by his adversary is void because lien; but the appellants had a right to satisfy procured by fraud or as the result of a mis- the debt or offer to pay it as a condition to take. McSween v. Yett, 60 Tex. 183, and the cancellation of the deed, and thus enable cases cited. But the plaintiff is entitled to no the court to adjust their equities. But they affirmative relief except that sought in his failed to do this, and the trial judge had a petition. When, in order for him to recover right to construe that failure as a refusal. the title or possession, it is necessary that he [8] There is still another ground for holdbe relieved from the provisions of a conveying that the trial court was not required to enance valid upon its face, but conditionally ter up a judgment in favor of the appellants. voidable, there is something more involved than the mere legal right of possession. The right of recovery depends upon the right of rescission and he should by appropriate pleadings bring himself within the conditions that entitled him to have a rescission. When the transaction out of which a conveyance results involves the payment of a valuable consideration by the grantee, the grantor cannot have the land and the money too. If he elects to rescind and reclaim his land, he must restore, or offer to restore, what he has received from his grantee and has no right to retain, and should in his pleadings acquaint the court with these facts. In this case the deed of Eliza Grundy was valid upon its face; its execution was admitted; and it was based upon a valuable consid It is elementary that one who seeks to repudiate or cancel a contract for fraud or mistake must act promptly upon a discovery of the fraud or mistake. Eliza Grundy admitted that in the fall of 1913, less than a year after she signed the deed, she learned that Greene was claiming the land. In 1915 she was ejected from the premises. This suit was not filed till the latter part of February, 1916, or more than three years after the deed had been executed. That delay, and the conditions which it brought about, were sufficient to justify a finding by the court that the right of rescission had been lost. G., H. & S. A. Ry. Co. v. Cade, 100 Tex. 37, 94 S. W. 219; Crutchfield v. Stanfield, 2 Posey, Unrep. Cas. 480; 6 Pomeroy on Eq. § 687. [9, 10] Appellants also insist that the court 6. MASTER AND SERVANT 234(1)-CONTRIBUTORY NEGLIGENCE COMPREHENSION PERIL. OF An employé could not be negligent in performance of dangerous duty where he had no knowledge of the danger. should have submitted other special issues:|5. MASTER AND SERVANT 281(10)—DEATH One, finding the amount due on the notes; OF EMPLOYÉ-CONTRIBUTORY NEGLIGENCE. another, the issue relating to the sale of a In action for death of employé incurred in different tract of land; a third, the value of turning on electric switch, in compliance with the land; and, a fourth, did Grundy and wife order, evidence held insufficient to sustain finddeed Sulphur tract of land in payment of the ing that employé realized the danger. notes? The answers to some of these questions are involved in the answers to those submitted. Appellants offered evidence tending to show that the land was worth about $1,500 at the time of its conveyance to Greene. There was other evidence that there was something over $1,000 then due upon the notes. The difference between the value of the land and the amount of the indebtedness was not so great as to require the court to set aside the deed for inadequacy of consideration alone. However, the assignment complaining of the refusal of the court to submit those issues is multifarious, and for that reason we think it should be disregarded. The judgment is affirmed. SAN ANTONIO PORTLAND CEMENT CO. San Antonio. 189(7)-"VICE 1. MASTER AND SERVANT PRINCIPAL"-EXTENT OF POWERS. Foreman who had control over men working under him, and whose recommendations for employment and discharge of employés in his department were invariably made effective by the company, was a vice principal. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Vice Principal.] 2. MASTER AND SERVANT 149(2)—NEGLI GENCE AS TO INEXPERIENCED EMPLOYÉ. Employer knowing that duty of turning on electric switch was dangerous, and that employé was ignorant of such danger, was negligent in ordering employé to turn on switch. 3. MASTER AND SERVANT 286(39)-DEATH OF EMPLOYÉ-JURY QUESTION-SUFFICIENCY OF TESTIMONY. 7. TRIAL 252(11) - INSTRUCTIONS - EVIDENCE-CONTRIBUTORY NEGLIGENCE. Refusal of instruction on contributory negligence of servant injured was not error where there was no evidence of such negligence. 8. TRIAL 351(5)-SUBMISSION OF ISSUESISSUE COVERED BY ONE PREVIOUSLY SUBMITTED. In action for death of employé refusal to submit issue of whether foreman informed employé of danger incident to work was not error, where issue of whether employé comprehended danger had previously been submitted, such issue completely covering that refused. 9. MASTER AND SERVANT 289(37)—APPRECIATION OF Danger-JURY QUESTION. Testimony held sufficient to require submission to jury of whether employé killed in turning on electric switch, as ordered by his foreman, had knowledge of the danger incident to turning, of switch. 10. EVIDENCE 471(8) CONCLUSIONS OF OF FACT-KNOWL WITNESS-STATEMENT B. In action for death of employé involving question of whether employé comprehended danger of work, foreman's testimony that employe's "wages were never raised, because Mr. thought he did not have enough experience to justify it," was the statement of a fact, and not objectionable as a conclusion. 11. MASTER AND SERVANT 274(4)—EmPLOYÉ'S EXPERIENCE EVIDENCE. In action for death of employé involving question of whether employé realized dangerous character of work, foreman's testimony, "Wages were never raised because Mr. B. thought he did not have enough experience to justify it," held relevant and material. 12. EVIDENCE 471(8)-CONCLUSION-STATEIn action for death of employé incurred in MENT OF FACTS-KNOWLEDGE OF EMPLOYÉ. turning on electric switch, alleged to have been In action for death of employé, involving caused by employer's negligence in ordering em- question of whether employé comprehended danploye to turn on switch with knowledge of dangerous character of work, foreman's testimony ger, and employé's ignorance thereof, employer's negligence was, under the evidence, for the jury. 4. MASTER AND SERVANT 190(19)-NEGLIGENCE OF EMPLOYER-DELEGATION OF DUTY. Where employer knew that certain duty was dangerous, and that employé was ignorant of such danger, it was liable for death of employé incurred in the discharge of the duty, after being ordered to discharge duty by foreman, the negligence being that of the employer. that, "I am satisfied that G. [employé] did not understand dangers connected with handling of live wires and switches, on account of careless way in which he handled them, but he seemed to understand routine of work," was statement of facts, and was relevant. 13. APPEAL AND ERROR 1060 (4)-HARMLESS ERROR-ARGUMENT OF COUNSEL. In action against corporation employer for death of employé, plaintiff's counsel's reference to employer as a "heartless and soulless corpora For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |