of a more comprehensive transaction or agree"(b) Where a written instrument is but a part ment, parol evidence is admissible to prove the part not included in the writing.

"(c) The findings of the master in chancery Court of Civil Appeals. are not conclusive on either the trial court or the

stance of the agreement to effectuate the inten"(d) Equity looks through the form to the subtention of the parties.

We think it well, in addition to the above assignment, to consider with it the appellant's second assignment, which is as follows:

"The court erred in paragraph 5 of its findings of fact, wherein it holds that it was 'agreed between the bank and the Nursery Company that no preference or advantage should be given to the bank over the other creditors, but that as to the old loan, the relations of the bank and the Nursery Company should remain the same, except as to any proportionate distribution made to the creditors,' because the uncontradicted evidence shows that the payment of the $6,000 note was a condition precedent to any further loans from the bank to the Nursery Company, and that said $6,000 note was never paid, because the Nursery Company was placed in the hands of a receiver, with the consent and at the instance of the Nursery Company."

The propositions under these assignments are as follows:

"(a) Where a nursery company is indebted to a bank in the sum of $5,450, which is secured by a mortgage lien on live stock and other property, and desires to procure an additional loan in the sum of $550, which it receives from the bank, and as security therefor, in addition to the sum already due, it executes a new note in the sum of $6,000, secured by the property theretofore mortgaged and in addition thereto, by the entire rice crop grown upon land described, the court would be unwarranted in finding that the mortgage executed as last above mentioned was security for the sum of $550 only, even if the evidence shows that a reloan of the difference between $6,000, and the $550, plus the bank's pro rata portion of a distribution to creditors should be made to the mortgagor, at least when no payment whatsoever was made by the mortgagor.

"(b) In a case where all interventions have been referred to a master in chancery, whose powers are not defined by the order, and who has heard evidence and has reported findings of law and fact, and where no jury is demanded and no additional evidence introduced upon a hearing before the court to adopt the report of the master, the court is bound by the findings of the master, as a matter of fact, and as a mat

ter of law.

"(c) Where material conditions precedent are to be performed before a contract takes effect, a showing must be made of the performance of the conditions, before either of the parties to the contract is bound."

On the contrary it is urged:

"(a) The evidence sustains the findings of the trial court that the mortgage on the rice crop

We have given a great deal of time to the consideration of the propositions under the above and foregoing assignments. First we will consider the question with reference to whether or not the report of the master in chancery was conclusive of the matter inquired into.

Article 2156 of Vernon's Sayles' Texas Civil Statutes uses the following language:

"Master in Chancery; Qualification; Duties and Appointments.-The court shall, in every case of the appointment of receiver, also after his qualifying, appoint a master in chancery, who shall be a citizen of this state, and not an attorney for either party to the action, nor related to either party, who shall perform all of the duties required of him by the court, and shall be under orders of the court, and [shall] have such power as a master of chancery has in a court of equity."

As stated above, the master in chancery in the instant case was appointed shortly after the appointment of a receiver, and before the filing of this intervention, the court, as above said, entering the following order:

"T. C. Ford appointed master in chancery, to whom all interventions are referred."

It appears that there was no agreement with reference to the appointment of the master in chancery in the instant case, but that the court, acting upon its own initiative, made the appointment, and that neither party was consulted with reference to the ap pointment of same.

As to what are the duties of the master in chancery, and there having been no orders made by the court with reference to the matters that were referred to the said master in the instant case, we are compelled to consult his general powers and duties, as a master in chancery in a court of equity. In 26 Cyc. p. 1587, a master in chancery is defined as being "an officer of a court of chancery, who acts as an assistant to the judge or chancellor." In 16 Cyc. p. 429, with reference to masters and similar officers, the following is said:

"There were in the English chancery and there are still in most American jurisdictions, officers known as masters in chancery, who act as assistants to the court, performing both judicial and ministerial functions. Their powers are usually derived from and confined to the terms of the order of reference, but sometimes general powers are conferred. Duties usually devolving upon masters are in some jurisdictions perforsaed by officers more or less similar in

the adoption of the benefits of one will preclude him from afterwards asserting the right to the other. In jurisdictions where the distinction between proceedings at law and those in equity ter, except of such issues as the court may, in its discretion, frame and submit to a jury. The court has the power to decide all questions, those of fact as well as those of law; and, to aid it in the exercise thereof, it sometimes appoints a master in chancery to investigate and report upon such matters as are submitted to him, his report being addressed to the court for its consideration, and not to a jury. Hence in such cases it is held that it is too late for a party to ask to have the issues of fact tried by a jury after he has acquiesced in a reference to and a trial by a master. No right of trial by jury exists. But the right does exist in cases arising is involved in such proceedings because none under the common law; and in states where constitutions merely protect the right of trial by jury in general terms it is held that parties without the aid of statute, to submit them to to such causes cannot be compelled, with or auditors, commissioners, or other referees. Ency. Pl. & Pr. 994. But in many states statsent, which contemplate the substitution of those utes exist providing for such references by conproceedings, with the action of the courts upon the reports of referees, in the place of trials by jury. It is therefore held in such cases, also, that the party who voluntarily submits to one mode of trial thereby waives the right to the other. Many decisions upon such questions are cited in 17 Am. & Eng. Ency. Law, p. 1102. But those decisions are inapplicable in this state, because of our legislation differing from that upon which they are based.

In line with the foregoing, Judge Williams of our Supreme Court, in the case of San Jacinto Oil Co. v. Culberson, 100 Tex. 465, 101 S. W. 197, used the following language: "The assignments of error complain of the ruling of the trial court in admitting in evidence the master's report, and of the charge giving to it the effect of prima facie evidence, and placing upon the defendant the burden of proof upon the contested issues of fact. The Court of Civil Appeals were inclined to hold that these rulings were erroneous, but thought they could not avail the appellants because under the facts stated they were not entitled to a trial by jury. The Court of Civil Appeals held that a jury should have been demanded before the cause was referred to the master, and that in acquiescing in such reference by appearing before him and participating in the contest they had waived the right to a jury; and, further that, in order to entitle themselves to object in court to the action of the master, exceptions thereto must have been reserved before him and embodied in those presented to the court; and that, as such objections were not made before the master, it was the duty of the court to approve the report and render judgment for the amounts allowed by it. Hence it was concluded there was nothing to try when the cause was submitted to the jury. We think a sufficient answer to this position would be that, as it does not appear affirmatively from the record that the demand for a jury was not timely made, nor that the objections to the conclusions of the master were not presented before him, the presumption, from the action of the trial court in allowing a jury, should be that all that was essential to entitle the defendant thereto had been done. The parties were certainly entitled either to action upon the report of the master by the court, or to a trial by jury; and when the former course was not taken, but the latter ordered, the natural conclusion' from the record is that the conditions existed to make it proper. But we do not rest our decision on so narrow a prop osition. The defendant was entitled to a trial by jury of the contested issues of fact, although it had not demanded a jury before the cause went to the master, and had not reserved its exceptions before him. The question whether or not the proceeding was legal or equitable is wholly immaterial. The combined effect of sections 8 and 10 of article 5 of the Constitution is to give the right in 'all cases' and 'without regard to any distinction between law and equity,' upon demand and payment of the prescribed fee. The time for the demand, as fixed by the Legislature, is the first day of the term at which the cause is to be tried (Rev. St. 1895, art. 3189), and a jury trial at one term is not waived by the failure to demand it at preceding terms, as is made plain by the provision that at each term the docket is to be called to give parties the opportunity to make the demand (Id. art. 3192). It follows that at the term of court when the issues of fact in this cause were to be tried the defendant still had the right to have them passed upon by a jury, unless it be true, as supposed, that the facts that the cause of action of interveners, without objection, had been referred to the master, that the defendant may have appeared and contested it before him, and that it had been passed upon by him, constituted a binding and perpetual waiver of the right to a trial by jury.

"It may be true that where the state of the law is such that a party is called upon to make choice between two inconsistent modes of trial,

17

"The statute providing for the appointment of masters in chancery in receivership proceedings is as follows (Rev. St. 1895, arts. 1485, 1493): "The court shall, in every case of the appointment of a receiver, * * appoint a the duties required of him by the court, and master in chancery, who shall perform all of shall be under the orders of the court, and have such powers as a master of chancery has in a court of equity.' It will be observed that the appointment is to be made, and such powers as are given are to be exercised in all such proceedings without reference to the consent of the parties. Whatever the court may lawfully require the master to do, he may do without such consent; and it is therefore not contemplated that the parties shall be put to their choice between a trial before a jury and a trial before the master. As we have already seen, the Legislature cannot deprive any party of his right of trial by jury in any cause, legal or equitable, and hence this statute must be so restricted in its operation as not, by itself, to have that effect. It would have that effect if the master's proceeding be treated as a substitute for the jury trial, for it does not attempt to provide a mode in which the parties may by consent waive their right to a jury. They have no choice but to submit to the doing of the things which the court through the master may lawfully do. Obviously, in such proceeding, such a referee may render great assistance to the court in many ways without infringing upon the constitutional right of trial by jury, and the statute may therefore have a broad operation without conflict with that right; and it is to be construed as consistent with it, and not as a denial of it. When it is so construed, it follows that parties to such proceedings, by merely submitting to the course prescribed by the court under its authority, do not give a consent which it does not require them to give; in other words, that they do not consent to substitute the action of the master and of the court upon his report for that of a jury. Such a choice is not to be inferred because the statute does not require it. To still demand a jury to try the is

After considering this motion, and after overruling defendant's motion for a peremptory instruction, the court gave this charge:

"In this case you are instructed to return a verdict in favor of the plaintiffs for the amount due on the lease offered in evidence before you, together with 6 per cent. interest thereon.

"Wm. Masterson, Judge Presiding." The record further discloses that no special instructions were asked by the defendant, except the special instruction asking for a peremptory instruction for the amount admitted to be due by the defendant. The amended original petition of the plaintiffs set up the 99-year lease, as follows: "The State of Texas, County of Harris. This agreement and lease contract this day entered into by and between Mrs. Sarah P. Dunn, a widow, and Annie Lee Eicke, joined herein by her husband, J. O. Eicke, hereinafter called lessors; and M. E. Foster, hereinafter called lessee, witnesseth:

"First. That the lessors are the owners in fee simple of that certain tract or parcel of land, being lots nine (9), and ten (10), and the adjoining forty (40) feet off of lot eight (8), in block one hundred and thirty-two (132) fronting one hundred and four (104) feet on McKinney avenue, and one hundred and forty (140) feet on San Jacinto street, all on the South Side of Buffalo bayou, in the city of Houston, Harris county, Texas, together with the improvements and buildings now thereon.

"Second. The lessors, for and in consideration of the rents hereinafter reserved, and the covenants and agreements of the lessee hereinafter contained-which said covenants and agreements are understood and agreed to be conditions precedent to any continued possession, or right of possession, of the leased premises on the part of the lessee-the lessors have demised, let and leased, and do by these presents demise, let and lease unto the lessee all of the above-described premises and improvements, for and during the term of ninety-nine (99) years from and after the date of execution hereof, unless the said term be sooner terminated under the terms hereof.

Third. The lessee agrees and binds himself, in consideration of the leasing aforesaid, to pay to the lessors as rent for said premises, during the whole of the term aforesaid, the sum of three hundred ($300.00) dollars per month for the first twenty-five (25) years hereafter, and three hundred thirty-three and 33/100 ($333.33) dollars per month for the remaining six ty-four (64) years; said amounts to be paid on the first day of each month in advance, in the equivalent of gold coin of the United States of America, of the weight and fineness now obtaining at the mints of the United States; and each of such payments to be made without any deduction or abatement whatever, at the First National Bank of Houston, in the city of Houston, Harris county, Texas, or such other place in the city of Houston as the lessors may in writing direct; and also as a further consideration for the lease herein, and as additional rent, the lessee covenants, agrees and binds himself to pay in full all taxes and assessments, water rents, and other impositions and tax levies of any nature whatsoever, ordinary or extraordinary, general and special, which may be levied, charged or imposed upon said premises or any part thereof, or any improvements which may now be thereon, or which may be hereafter placed thereon, for and during the whole of the term of this lease as aforesaid.

"Fourth. Upon the payment of the sum of sixty-six thousand and 00/100 ($66,000.00) dollars to the lessors by the lessee, at any time

twenty-five years from and after the execution of this lease, such payment to be made in cash, or upon terms of part cash and part deferred payments, the lessors agree to deliver to the lessee a warranty deed to the property herein leased, and such agreement as to the privilege of the lessee to purchase this property as above stated, is construed as a vital element of this lease, but not as a waiver of any of the further terms and conditions of this lease, in case the option to purchase is not exercised by

the lessee.

"Fifth. It is further agreed that the lessee shall have the right to sublet and subrent all or any portion of the leased premises-however only for lawful purposes or to assign said lease provided the lessee shall continue originally liable for the performance of each and all of the terms and conditions of this lease, unless at the time of such subleasing or subrenting the lessee shall have erected improvements thereon of the value of ten thousand ($10,000.00) dollars in excess of all incumbrances thereon.

"Sixth. And it is further understood and agreed that in case at any time default_shall be made by the lessee in the payment of any rent herein provided for, upon the day the same shall become due and payable, and the same shall remain unpaid for a period of sixty days after becoming due; or if the lessee shall fail to pay any rates, taxes or assessments herein provided to be paid by the lessee before suit shall be filed on the same; or in the event the lessee fails in keeping and performance any and all of the covenants and agreements of this lease by the lessee to be kept or performed, after sixty days' notice of such nonperformance, then in any or either of such events it shall be the lessors' right to declare this lease terminated and ended, and it shall thereupon be the right of the lessors to re-enter and take possession of the premises herein leased, together with the improvements which are now thereon, or which may hereafter be placed thereon: provided nothing herein is construed as waiving the lessee's right to contest in the courts any taxes or assessments considered illegal or unwarranted.

"Seventh. It is further understood and agreed event of the termination of this lease, at any by and between the parties hereto that in the time before the regular expiration of the lease term of ninety-nine (99) years, upon a breach by the lessee of any of the covenants herein contained, that then all buildings, fixtures and improvements then situated on said leased premises, by whomsoever there placed, shall be forfeited to said lessors, and become their property, and no compensation therefor shall be paid to said lessee.

"Eighth. It is further understood and agreed by and between the parties hereto. that the lessors shall, at all times, have, and there is now expressly given in their favor, a valid first lien on and against any and all property of whatever kind which may be erected or built on said premises, or which may be placed in any buildings or improvements on said leased premises, in order to secure the payment of all rent, moneys and other obligations which may become due and payable, as herein specified.

"Ninth. It is agreed and understood that the various rights, powers, options, elections and remedies of the lessors contained in this lease, shall be construed as cumulative, and no one of them is exclusive of the other or exclusive of any rights or remedies allowed by law.

"Tenth. It is further understood and agreed that no waiver of a breach of any of the covenants of this lease shall be construed to be a waiver of any other or succeeding breach of the same or other covenant.

"Twelfth. It is agreed that the lessee may from time to time during the continuance of this lease, alter or remove the improvements now upon said property, or that may be here after erected thereon, and the said property so removed shall become the property of the lessee, provided that before such removal or alteration is begun the lessee shall give sufficient security that said lessee shall, within six months after such removal or alteration, begin the erection of other improvements on said property of the value at least equal to the improvements removed, and shall complete the erection of such new improvements with all reasonable dispatch. Should the parties hereto disagree as to the sufficiency of such security offered, the same shall be fixed by arbitration, in the same manner as hereinafter provided. And it is further agreed that should the improvements now on said property, or the improvements hereafter to be erected on said property, be destroyed by fire, storm or other casualty, the lessee shall, with due diligence, construct repairs or new improvements on said premises equivalent in cost to the insurance collected by the lessee for said loss or damage.

"Thirteenth. It is further agreed and understood that at the end and expiration of this lease, ninety-nine (99) years, the same shall, at the option of the lessee, be renewed for another term of ninety-nine (99) years, at a rental to be agreed upon by and between the lessee and lessors, but if no agreement can be reached by them as to the rental value of said property and improvements, within sixty (60) days before the expiration of the same, then the lessors shall designate one man, the lessee another, and these two shall choose a third, who shall meet together and fix a fair and reasonable rental value upon said premises, which arbitration shall be conclusive and binding upon the parties when made as herein provided: and if the lessee shall fail or refuse to accept the rental value and pay the same as determined by said board of arbitration, then, and in that event, immediate and peaceable possession of all and singular the premises and improvements then thereon shall be given to the lessors and become and be their property.

"Witness our hands this 18th day of September, A. D. 1911, at Houston, Texas, signing in duplicate.

"[Signed] Mrs. S. P. Dunn.

"Mrs. Annie Lee Eicke. "J. O. Eicke. "M. E. Foster." (Said instrument is duly and legally acknowledged by Mrs. Sarah P. Dunn, and by Annie Lee Eicke, and J. O. Eicke, in Harris county, Tex., on September 18, 1911, and by M. E. Foster on September 19, 1911.)

that in the early part of 1915, an agreement was had between plaintiffs and defendant whereby the plaintiffs contracted that for a period of 12 months, beginning with December, 1914, the rental would be $200 instead of $300 per month. The defendant claimed to have tendered into court the sum of $200 per month for the 12-month period, but, in fact that tender was only made in the pleadings, as no tender of any money was ever made actually into the registry of the court, either before or after the trial. By supplemental petition, plaintiffs alleged that the transaction between the parties with reference to the reduction of the rental was nothing more than an offer upon the part of the plaintiffs, which was never accepted by the defendant until after said offer had been recalled, and, further, that said offer or agreement to reduce the rentals, if any was made, was wholly without consideration to support it.

[1] The first assignment of error complains of the action of the court in refusing to give in charge to the jury defendant's special charge No. 1, which is as follows:

"Gentlemen of the jury, you are instructed that, under the law applicable to the evidence that has been introduced upon the trial of this cause, the plaintiffs are entitled to recover from the defendant the sum of $2,400, and therefore you will return your verdict in favor of plaintiffs for that amount"

for the reason that the undisputed evidence showed a valid agreement, based upon a sufficient consideration, between plaintiffs and defendant, to accept said amount for the rental obligation during the year 1915, in lieu of the amount stated in the lease, thus constituting a valid novation. This assignment is submitted as a proposition, and in addition thereto, the following propositions are urged:

"(a) If, through change of circumstances, a contract becomes oppressive, an agreement to increase or diminish the consideration, or to annul or modify it, is not invalid for want of consideration.

"(b) Any consideration, however slight, is sufficient to support a novation.

"(c) Parties to an agreement may, by mutual concurrence, change its terms at any time after its execution so as to meet their pleasure or

interest."

On the contrary, it is insisted by appellee: "The court was correct in refusing to give the peremptory instruction requested by defendant, for the reason that the evidence was undisputed that no novation was ever had."