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or individuals will make of the proceeds of or individual will make a more worthy dispositheir business, and determine that this society tion of the proceeds of his business than that, and therefore the one. shall be taxed and the other not."

But the Morris Case was decided before the amendment of the section of the statute under consideration, by which the Legislature attempted to define what was an institution of "purely public charity." It is possible that legislative action was induced by reason of the holding in this case. By the announced purpose contained in the charter of All Saints Hospital "its general purpose shall be to provide for and nurse sick and destitute persons," etc. We think that purpose is included in the definition found in section 6 of article 7507, namely, that:

courts of last resort of that state. Morris | inate between the uses which different societies v. Royal Arch Masons, 68 Tex. 698-704, 5 S. W. 519; Tyler v. St. L. S. W. Ry. Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911; Collier v. Smith, 169 S. W. 1108. While in the case of Gerke v. Purcell the Ohio Supreme Court held that a parsonage did not come within the exemption because used as a private residence, and not as a place of public worship, yet it did hold the school buildings were exempt, although it was shown that contributions were expected from parents of the children who were able to contribute; the court finding that the schools were not established or carried on with a view to profit. To a like effect are the cases of Fordham v. Thompson, 144 Ill. App. 342, 347; Hospital v. Cook County, 233 Ill. 246, 84 N. E. 215, 216; Cook County v. Chicago Policlinic, 233 Ill. 268, 84 N. E. 220; Sisters of St. Francis v. Peoria County, 231 Ill. 317. 83 N. E. 272; Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909, 22 L. R. A. (N. S.) 486; and many other cases which might be cited. Our Supreme Court, in Red v. Morris, 72 Tex. 554, 10 S. W. 681, cited v. Morris, 72 Tex. 554, 10 S. W. 681, cited by both parties, held that school property was exempt from taxation when the owners use it solely for the purpose of keeping a school in it, and receive no profit from it. In this case it was shown that three of the owners lived in the building during term time, and two of them during vacation, but that their presence was necessary in the conduct of the school and to take care of the property. In the earlier case of Red v. Johnson, 53 Tex. 284, the court held that the same property was not exempt, because it

was then shown that the owner lived on the
premises occupying a part of the building
as a residence, and held that the property
was not shown to be used "exclusively for
school purposes," as provided by the stat-
ute.
In the case of Morris v. Royal Arch
Masons, 68 Tex. 698, 5 S. W. 519, the Su-
preme Court held that the use for rental
purposes of two floors of a three-story lodge
building remove the entire property from the
protecting ægis of the exemption statute,
even though the proceeds from the rent of
the two floors were used for charitable pur-
poses. In the Morris Case the court cited
with approval the Ohio case of Cincinnati
College v. State, 19 Ohio, 110, in which it
was held that a store, and the house in
which it was kept, operated for profit by the
college, was not exempt on the ground of
use for school purposes exclusively. The
Ohio court says:

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**

are

"Its funds, property and assets placed and bound by its laws to relieve, aid and administer in any way to the relief of its members when in want, sickness and distress."

charge made to patients who are financially Further, we are of the opinion that the charge made to patients who are financially able to pay the same is shown not to be made "with a view to profit," in the words of our statute, but for the purpose of carrying out

the dominant purpose and general beneficent design of the founders of the institution. Such funds as are collected from patients do not go to any stockholders, for there are none, nor to accumulate in the coffers of the institution, but are used for the maintenance of the hospital and the furtherance of the announced purpose of its foundation. Hence we conclude that the judgment of the trial court should be affirmed; and it is so or

dered.

Affirmed.

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A cause of action is not shown by the peti tion to have been barred by limitation, so as to be subject to special exception, where petition alleges, as the date of conversion, a date less than two years prior to the bringing of the action. 3. FRAUDS, STATUTE OF 63(1)-PAROL RESERVATION OF HOUSE-INTEREST IN LAND.

Where land is conveyed by a warranty deed containing no reservations, a parol agreement reserving title to a house on such land is in effect a parol sale of an interest in land, and within the statute of frauds (Vernon's Sayles' Ann. Civ. St. 1914, art. 3965).

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4. FRAUDS, STATUTE OF PROMISE OF GRANTEE.

144-ESTOPPEL- that they had sold the house to J. W. Win

Where land is conveyed by a warranty deed containing no reservations, but grantor by parol reserves the right to remove a house sold to another prior to the conveyance, grantee is not estopped to assert the statute of frauds, where his promise to permit removal of house was not made with fraudulent intent.

5. REFORMATION OF INSTRUMENTS

RISDICTION.

31-Ju

Where title to a house on land conveyed by warranty deed is reserved by parol, a court having jurisdiction will reform deed to include reservation, but such jurisdiction is in the district court, and not in the county court. 6. FRAUDS, STATUTE OF

125(2)-PAROL SALE OF INTEREST IN LAND - ACTION THEREON.

Where land is conveyed by warranty deed, but by parol agreement grantor reserves right to remove house sold to another prior to the conveyance, such agreement being within the statute of frauds, grantor cannot recover damages for breach thereof.

ters for the price of $150 and the land to Robbins without the house for $1,850; that they would not have sold to Robbins both the house and land for less than $2,000, and so informed Robbins at the time of the sale to him. In one count of the petition plaintiff sued for $150 as the value of the house, together with legal interest thereon, but it was further alleged in other counts of the petition that the house was worth $250, and judgment was sought against Robbins for that sum. In view of the allegations last mentioned, we overrule appellant's first assignment of error to the effect that the petition shows upon its face that the damages sought were less than $200, and that the allegation of damages in the sum of $250 was made for the fraudulent purpose of conferring jurisdiction upon the county court in

Error from Erath County Court; A. P. which the suit was instituted, rather than in Young, Judge.

Action by F. B. Winters and another against B. E. Robbins. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Hickman & Bateman, of Dublin, for plaintiff in error. Chandler & Pannill, of Stephenville, for defendants in error.

the justice court, which had exclusive jurisdiction of the amount really in controversy.

[2] The date of the conversion of the house by Robbins as alleged in the petition was less than two years prior to the institution of the suit, and the petition contains no allegations of any character tending to show

that the cause of action arose more than two years prior to the date of the institution of the suit. Hence there is no merit in the second assignment in which complaint is made of the action of the court in overruling a special exception addressed to the petition upon the ground that it showed upon its face that the cause of action alleged was barred by the statute of limitation of two years.

DUNKLIN, J. F. B. Winters and his wife, Mrs. Donnie Winters, sold a tract of land to B. E. Robbins, upon which was situated two houses, and the deed of conveyance contained the usual covenants of general warranty of title. Prior to the execution of that deed the grantors sold to J. W. Winters one of the houses situated on the property. That sale was in parol. and not by any instrument of writing. When the land was sold to B. E. Robbins he was informed by the grantors of the prior sale of the house to J. W. Winters, and he agreed with the grantors at the time of the conveyance that J. W. Winters might remove the house from the land whenever he so desired, but there was no reservation in the deed to that effect; the deed being in terms unconditional and sufficient to convey full title to the land and all improvements thereon. After Robbins took possession of the land under and by virtue of the conveyance to him he refused to permit J. W. Winters to remove the house theretofore purchased by him. J. W. Winters then reconveyed the title to the house to F. B. Winters and wife, Donnie Winters. Robbins also refused to permit F. B. Winters and wife to remove the house from the land, and this suit was instituted by them to recover its value, upon allegations that the defendant, Robbins, had converted the same to his own use. Plaintiffs recovered a judgment, and the defendant has prosecuted this writ of error. [1] It was alleged in plaintiffs'

[3] By another special exception to plaintiff's petition the defendant invoked the statute of frauds as barring a recovery in view of the fact that according to the allegations in the petition the sale of the land to Robbins without any reservation of title to the house conveyed title to the house as well as to the land, since the same constituted a part of the realty, and a parol reservation of title thereto would be in effect a sale of an interest in realty by a parol agreement, contrary to the provisions of the statute of frauds, article 3965, 3 Vernon's Sayles' Tex. Civ. Stats.

[4] We are of the opinion that that exception should have been sustained. Plaintiffs sought to avoid the operation of the statute by invoking against the defendant the equitable rule of estoppel by reason of the defendant's express agreement made prior to and at the time the deed was executed that the house might be removed from the land, and the further fact that it was the intention and understanding of all parties to the deed that the same should not operate as a conveyance of the title to the house. But the plea of estoppel contained no allegations petition of misrepresentation of facts inducing the ex

ecution of the deed; the only basis for estoppel being the parol agreement of the defendant to permit the removal of the house after the execution and delivery to him of the deed to the land and the parol understanding and agreement between the parties that such right would be reserved to the grantors in favor of J. W. Winters, to whom they had already orally contracted to sell the house.

The case of Brown v. Roland, reported in 92 Tex. 54, 45 S. W. 795, was a suit which involved transactions very similar to the present suit. In that suit, as in the present, the vendor of land sold by parol agreement a certain fixture upon the land which constituted a part of the realty. Thereafter the land was sold to another without any reservation of title to the fixture, and the suit was between the first purchaser of the fixture under the parol sale and a subsequent purchaser of the land with notice of said sale. Our Supreme Court held that the subsequent purchaser of the land acquired title to the fixture, notwithstanding such notice of the claim of the prior purchaser of the fixture by reason of the fact that such parol sale was in contravention of our statute of frauds. However, in that suit no plea of estoppel was urged to avoid the defense based upon the statute of frauds. To the same effect is Lancaster v. Richardson, 13 Tex. Civ. App. 682, 35 S. W. 749. In 10 R. C. L. pp. 833, 834, it is stated in effect that according to some authorities it is not permissible for an estoppel in pais to work a transfer of legal title to land in violation of the statute of frauds requiring such transfer to be evidenced by an instrument in writing. But it is further stated that the weight of authority supports the view that the statute of frauds may become inoperative by an estoppel in pais, but to accomplish that result the acts constituting such estoppel must amount to a clear and palpable fraud. See, also, 16 Cyc. 725, and 20 Cyc. 213.

In 16 Cyc. 752, it is said:

"The doctrine of estoppel by representation is ordinarily applicable only to representations as to facts either past or present, and not to promises concerning the future which, if binding at all, must be binding as contracts. The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act."

See, also, 16 Cyc. 726; Union Mutual Life Ins. Co. v. Mowry, 96 U. S. 544, 24 L. Ed. 674; Equitable Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301.

It seems clear to us that if it be a correct doctrine that a party may be estopped to rely upon the statute of frauds to avoid the enforcement of a parol contract, the claim for such estoppel must rest upon conduct or representations of fact, or else upon an agreement made with the fraudulent intent

to deceive, and thereby to acquire a financial advantage which would not be acquired in the absence of such agreement. In the present suit, as noted already, the estoppel invoked is founded not upon any acts of the defendant or any representation of fact by him which misled the plaintiffs to convey the land to him, but merely upon defendant's parol agreement that title to the house should not pass by the deed, and might be removed in the future by J. W. Winters, in consideration of which agreement the land was sold to the defendant for the price of $1,850; while but for such agreement plaintiffs would not have made the sale for less than $2,000. If, under such circumstances, the force and effect of the statute of frauds could be avoided, then it seems to us that the statute could never be enforced if a plea of estoppel should be urged; and the result would be that the statute would practically be a dead letter. It is to be noted further that in the present suit the plea of estoppel contained no allegation that such parol agreement by the defendant was made for the purpose of defrauding the plaintiffs and with no intention of complying therewith. Nor was there any proof of such fraudulent intent at the time the sale of the land was consummated; on the contrary, plaintiffs have cited evidence to support the contention advanced in their brief that after the conveyance of the land to defendant he recognized J. W. Winters' title to the house and his right to remove it from the land. Furthermore, there is no suggestion in the record that when plaintiffs erected the house upon the land they had no intention that the same should not become a part of the land; but, on the contrary, the evidence all shows conclusively that when erected the house did become a part of the realty.

[5] While the statute of frauds does not operate to prevent the reformation of an instrument, the execution of which was the result of fraud, accident, or mistake (20 Cyc. 279), and, while in one count of the petition, mutual mistake of the parties to the deed in failing to include in its terms the reservation of title to the house was pleaded, together with further allegations that defendant fraudulently procured the drafting of the deed in such manner as to omit therefrom such reservation of title to the house, yet it is clear that the trial court was without jurisdiction either to reform or cancel the deed. Jurisdiction to grant that relief was exclusively in the district court.

[6] As noted above, plaintiffs' suit was for damages for conversion of the house, the title to which it was claimed never passed to the defendant, but was reserved from the operation of the deed. There are other allegations in the petition which may in general terms present a claim for damages for breach of the oral contract to permit the removal of the house from the land. That theory of

recovery is untenable, since the primary object of the statute of frauds is to prevent any action founded on a contract which is not in compliance therewith. 20 Cyc. 284. For the reasons indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded.

HUFF, C. J. This was an action brought by O'Kelley and Wolfe for damages to 115 head of hogs, occasioned by the negligence of the Texas Midland Railroad. It is alleged by the appellees that on the 9th day of January, 1917, they made a contract with the appellant company to ship 115 hogs from Quinlan, Tex., over its road by the way of Greenville and the St. Louis & Southwestern Railway Company to Ft. Worth, and that its duly

TEXAS MIDLAND R. R. v. O'KELLEY et al. authorized agent agreed that a car would be

(No. 1293.)

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in railroad stock pens.

3. CARRIERS 129-CONTRACT TO FURNISH

CARS-DISCRIMINATION.

A carrier knowing of a car shortage cannot evade its obligation to furnish cars for hogs where it so contracted, where it did not notify the shipper of such shortage, to the shipper's damage, by showing that it would have been a discrimination against other shippers.

4. APPEAL AND ERROR 932(1) - MATTERS REVIEWABLE-ORAL FINDINGS.

In the absence of a special finding on rendering a general judgment, it will not be presumed that the trial court allowed more than was asked for in the petition for certain items of damages, although the court orally stated that damages on such items were an amount in excess of that asked for.

5. APPEAL AND ERROR

926(7)—QUALIFICA

TION OF WITNESSES-PRESUMPTIONS.

Where no objection was made as to the qualification of witnesses to express opinions, it will be presumed that the court satisfied himself of their qualification, and that appellant was satisfied therewith. 6. APPEAL AND ERROR -REQUESTS-REVIEW.

931(9)-FINDINGS

Since statute requires a party who desires specific findings of fact to make requests therefor when the case is tried before the court, in the absence of such requests, the appellate court will view the evidence in the light most favorable to the judgment.

7. APPEAL AND ERROR 553(1)-STATEMENT OF FACTS-BILLS OF EXCEPTIONS-REVIEW. A bill of exception cannot be considered as a part of the statement of facts, nor as part of the judgment, nor as a finding of fact by the court upon which the judgment is based.

Appeal from Hunt County Court; A. J. Gates, Judge.

Action by S. F. O'Kelley and another against the Texas Midland Railroad. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Coke & Coke and S. W. Marshall, all of Dallas, and Dashiell, Terry & Brown, of Terrell, for appellant. Carpenter & Horton, of Greenville, for appellees.

furnished at Quinlan for such service on January 11, 1917, following, and that appellees advised the agent they would have their hogs there on that day ready for shipment; that in pursuance to such agreement they placed their hogs in the pens of appellant on the morning of the 11th, but appellant failed

to furnish a car at said time and not until January 17, 1917; on the third day following the placing of the hogs in the pens a seveninch snow fell, and that until the car arrived the hogs were in open pens, exposed, etc.; that there were no troughs in the pens, and the hogs were mast fed and not used to dry feed. By virtue thereof and in routing them by Terrell and the Texas & Pacific Railway Company, instead of by Greenville, as directed, the appellee suffered damages, itemizing the damages, aggregating $565.45. alleges want of authority in the agent to make the contract, and alleges there was an unprecedented demand for stock cars at that time and that it was impossible to furnish the cars on that day without discriminating against other shippers, and alleged contributory negligence and driving the hogs to pen off the mast without first knowing that the car was ready, and in thereafter holding them in the pens, etc. The case was tried before the court without a jury, who rendered judgment for $270.30 damages. There are no findings of fact or conclusions of law in the record filed by the trial court.

The first assignment is that the court erred in not holding the contract void because the car could not have been furnished without discriminating against other shippers desiring to transport stock.

[1-3] The local agent had authority to make the contract for cars. McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164; Easton v. Dudley, 78 Tex. 236, 14 S. W. 583; Railway Co. v. Bishop, 154 S. W. 305, 310. If the testimony of the appellees is true, after delivering the hogs they asked the ed each time that he would have it there the agent about the car every day, and he promisnext day, and on one occasion after the hogs were in the pen he said there was a car shortage, but promised to have the car there the next morning, and on another occasion said that McKay told him not to trouble him any more about the car. Written notice was given by appellee on the 15th to furnish the car, and on the 17th the car was furnished. The court, from the evidence, we think,

was justified in finding that the appellee had no notice of any car shortage until after the hogs were placed in the pen, and, when they received this notice it was coupled with a promise to have the car there the next morning. Written notice was then given, and the car arrived in less then two days. Before appellant agreed to furnish the car, if it desired to cast the onus on appellee, it was its duty to notify them of the shortage. Railway Co. v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410; Railway Co. v. Word, 159 S. W. 375, 383. We do not think, if the appellant knew of the car shortage when it made the contract to furnish the car on the 11th and thereby induced the shippers to deliver the hogs at the pens for shipment, that it can then evade its obligation by showing that owing to a shortage there would be discrimination against other shippers. Knowing the facts at the time it made the contracts it ought not to have made the agree ment to furnish the car on that date, thereby inflicting loss by its own wrong.

a greater amount than he did under the evidence as shown by the record.

[5] There appears to be a contention that the witnesses testifying as to the weight of the hogs, their appearance, and the effect upon their sale upon the market, by reason thereof, etc., were not qualified in such matters. There was no objection to their evidence, and, in the absence of such, we think that we should presume the court satisfied himself as to the qualification of the witnesses to give their judgment in such matters. and if appellant had not been satisfied as to their qualification it would have made the proper objection.

[6] The statute requires a party who desires specific findings of fact to make the proper requests therefor when the case is tried before the court. In the absence of such it is the duty of the appellate court to view the evidence in the light most favorable to the judgment. The evidence will support the amount for which the judgment was rendered, and more.

[7] A bill of exception cannot be consider

should it be considered as part of the judgment or as a finding of fact by the court upon which the judgment is based. To say the least of it, this action in taking a bill of exception in order to bring up specific findings by the trial court in lieu of the findings required by the statute is a novel one in our practice, and we do not believe we are authorized to consider it as a finding of fact: The judgment is affirmed.

CELAYA et al. v. CITY OF BROWNSVILLE. (No. 5907.)

(Court of Civil Appeals of Texas. San Antonio. March 27, 1918. Rehearing Denied May 1, 1918.)

1. APPEAL AND ERROR 1122(4)-ADOPTING UNDISPUTED STATEMENT OF FACTS.

[4] Assignments 2 to 6, inclusive, are based on a bill of exception taken upon the trialed as part of the statement of facts; neither to an oral statement by the trial judge that his judgment was based on certain items and the amount of the respective items. The judgment is a general one for $270.30. There is no finding of fact in the record showing upon what the judgment is founded. One ground or item, as shown by the bill, is for feed at Ft. Worth to prepare the hogs as to condition before placing them on the market. It is said by appellant that this was unnecessary; that the hogs would have sold as well without it on the day of arrival as they would without rest and feed. There was a difference of opinion expressed by the witnesses on that point. It is asserted that the amount allowed for shrinkage on account of delays, etc., was too much, as shown by the preponderance of the evidence, and that the item for decline in price based upon the poor appearance of the hogs on account of the treatment was too much. These items were based upon the opinion of witnesses, and there was simply a difference of opinion. It is also asserted that certain feed bills allowed by the court, as shown by his oral statement, were too much; that is, more than the items so alleged and set out in the petition, and therefore fundamental error. The evidence upon the trial warranted the court in stating that the amount stated by him was actually paid for extra feed, etc. But in the absence of a special finding on rendering judgment it will not be presumed that the trial court allowed more than was asked for in the petition for those items. It is also asserted that appellee should have been charged with at least a portion of the injuries asserted. There is nothing in the record to show the court did not do so. In fact, he could have rendered judgment for

As statement of undisputed facts made by counsel for appellant is unchallenged, and the record, the court on appeal may adopt the facts therein stated are in accord with the statement as its finding of fact. 2. MUNICIPAL CORPORATIONS

409-STREET IMPROVEMENTS-ASSESSMENT OF BENEFITS

REIMBURSEMENT OF CITY.

arts. 1006-1017, empowering city to procure Under Vernon's Sayles' Ann. Civ. St. 1914, three-fourths of the cost of paving from abutting property owners and procure costs of paving that portion of street occupied by railway and to procure the balance of the cost, if any, or street railway tracks from the companies by other means, a city cannot assess property owners for benefits to reimburse the city for the taxpayers for paving streets and expended funds derived from the sale of bonds voted by by the city in paying for improvements made on such streets.

3. MUNICIPAL CORPORATIONS 428-STREET

IMPROVEMENTS-SPECIAL ASSESSMENTS.

Under Vernon's Sayles' Ann. Civ. St. 1914, arts. 1008-1017, relating to street improvements, a city is not authorized to assess bene

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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