discontinued by the said defendant W. L. Blair, and to which action of the court the said defendant W. L. Blair, then and there excepted, and thereon duly preserved his bill of exception. "And thereupon the said defendant W. L. Blair refused to amend his pleadings, and refused and declined to introduce any evidence in the cause, and the court thereupon instructed the jury to return a verdict for the plaintiff for the amount of money in the registry of the court, less the sum of $82 as attorney's fees allowed the defendant Union Warehouse & Elevator Company." From this judgment W. L. Blair has appealed. [1] By his first and second assignments it is, in substance, insisted that the trial court erred in finding that the Canal Company owned the money deposited in court and in peremptorily instructing the jury to return a verdict in favor of the Canal Company for said money. The contention of appellant, W. L. Blair, is that the undisputed evidence shows that the Canal Company had contracted with appellant to furnish water for the proper irrigation of his crop of rice; that for such service appellant agreed to pay the Canal Company one-fifth of the rice grown and harvested on the land so watered when the same was grown, harvested, and sacked, and when the Canal Company's one-fifth part thereof had been marked and segregated as the rice of said Canal Company; that the undisputed evidence further shows that no part of said rice was ever segregated, marked, and set aside to the Canal Company, but, upon the contrary, all of said rice was placed by appellant in the warehouse of the Warehouse Company as appellant's property. He further contends that as the Canal Company's one-fifth part of the rice had not been segregated, marked, and delivered to it, it owned no interest in the rice or the proceeds of a sale of the same for which it could sue, but that if the Canal Company had any claim growing out of the contract with appellant, it was an account or debt only due by appellant to it for water rent. There is no merit in this contention. The undisputed evidence shows that the contract between the Canal Company and appellant was, in effect, that appellant was to plant and cultivate the crop of rice in question; that the Canal Company was to furnish the water to irrigate the same, and that after said rice had matured, appellant was to harvest and sack the same; that one-fifth of the rice so harvested and sacked, equal in quality to the other fourfifths thereof, should be the absolute property of the Canal Company and the other four-fifths the property of appellant; and that appellant was to deliver the one-fifth part of the rice belonging to the Canal Company to some public warehouse in Bay City. The undisputed evidence also shows that said rice crop was planted, cultivated, watered, harvested, and sacked as agreed upon by the parties, and that all the rice was delivered by appellant to the Union Warehouse & Elevator Company at Bay City, and that the same was placed in its warehouse, and that thereafter all the rice was sold by the Warehouse Company by the consent of both appellant and the Canal Company; was paid to appeilant; and that the other that four-fifths of the proceeds of such sale one-fifth thereof was held by the Warehouse Company until paid into the registry of the the terms of the contract between appellant the terms of the contract between appellant and the Canal Company, the Canal Company fifth part of the rice crop when the same was was the owner of a specified undivided oneharvested, as distinguished from lien. The two parties were joint owners of the rice, one owning one-fifth and the other fourfifths thereof. Texas Produce Exchange v. Sorrell, 168 S. W. 74; Sparks v. Ponder, 42 Tex. Civ. App. 431, 94 S. W. 428; Antone v. Miles, 47 Tex. Civ. App. 289, 105 S. W. 39. V. Miles, 47 Tex. Civ. App. 289, 105 S. W. 39. ing been made by the consent of both parties claiming an interest therein, and appellant having been paid his four-fifths of the proceeds of such sale, the other one-fifth thereof passed into the registry of the court was the property of the Canal Company, in which appellant had no interest, and the trial court properly so adjudged. court to abide the result of this suit. Under a [2] The sale of the whole of the rice hay What we have already said sufficiently disposes of the third assignment. It is therefore overruled. [3] The fourth assignment is as follows: "The court erred in peremptorily instructing the jury in verbal charge over the objection of the defendant W. L. Blair, demanding that the court prepare a written charge of the jury in order that he might prepare and save his exceptions to the charge of the court.' We have reached the conclusion that under the pleadings and evidence the trial court could have rendered have rendered no other judgment than the one which it did render; hence the verbal peremptory instruction for appellee, if error, was harmless error for which we will not reverse the judgment rendered. Another reason for holding the verbal charge harmless is that we have considered all the complaints of appellant as fully as we could have done had the peremptory charge been in writing, and therefore no injury is shown to have been suffered by reason of the verbal charge complained of. We find no error in the judgment of the trial court, and the same is therefore affirmed. Affirmed. and it can only be called in question in case of 11. CORPORATIONS 269(2)-EVIDENCE-AC PEDEN IRON & STEEL CO. v. JENKINS fraud. et al. (No. 336.) (Court of Civil Appeals of Texas. Beaumont. April 22, 1918. Rehearing Denied May 1, 1918. On Second Motion for Rehearing, May 22, 1918.) 1. TRIAL 412-WAIVER OF OBJECTION TO EVIDENCE-CROSS-EXAMINATION. If it was error for a witness to testify as to value of certain neighboring oil land as a basis for fixing the value of oil lands in suit, the objection was waived, where the same ground was covered on cross-examination, and testimony as to value of still other lands was brought out. 2. EVIDENCE 142(4)-SIMILAR FACTS-VALUE OF OIL LEASE. TION AGAINST STOCKHOLDERS "GOOD FAITH." individually by reason of alleged overvaluation In action by creditor against stockholders of an oil lease in statements to the secretary of state, any surrounding circumstances affecting the property, and methods of arriving at the valuation, were admissible to show good faith, which, as used in law, simply means honesty; without fraud, collusion, or deceit; actually without pretense (citing Words and Phrases, Good Faith). Appeal from District Court, Robertson County; John Watson, Judge. Action by the Peden Iron & Steel Company against E. G. Jenkins and others. Judgment for defendants, motion for new trial overruled, and plaintiff appeals. In arriving at the value of a certain oil lease at a certain time, it was proper to show the value of a similar adjoining lease, the conditions regarding the two leases, improvements, quality, etc., being alike, and what the ad- firmed. joining lease could have been sold for under the existing conditions. 3. APPEAL AND ERROR ERROR EVIDENCE. Af Baker, Botts, Parker & Garwood and J. 1050(1)-HARMLESS C. Townes, Jr., all of Houston, Bowers & Bowers, of Caldwell, and Perry & Woods, of Franklin, for appellant. C. S. Williams, of Caldwell, Searcy & Botts, of Brenham, H. S. Morehead, of Franklin, and W. C. Davis, of Bryan, for appellees. Where oil scouts admitted on the stand that for, it was harmless, if error, to allow the other party to show what oil leases and stock were selling for in the locality at the time. 4. EVIDENCE 501(7)-OPINION EVIDENCEBASIS OF OPINION. an oil lease was worth what it could be sold A witness, testifying as to the value of an oil lease at a certain time, was properly allowed to state facts concerning transactions in the same locality at the time, on which he based his opinion. 5. EVIDENCE 151(1)—VALUATION OF OIL LEASE REASONS. In an action by creditor against stockholders individually, because of alleged overvaluation of the oil land given for the stock, a stockholder, who was one of the incorporators, was properly allowed to testify as to reasons for placing such value on the oil lands. 6. EVIDENCE 142(1)-SIMILAR FACTS-VALUE OF OIL LEASE. In arriving at the value of an oil lease on 10 acres, it was not improper to admit evidence of price of fractions of acres sold adjoining such land. 7. EVIDENCE 113(6)-VALUE OF OIL LEASE -SALE OF STOCK. In arriving at the value of an oil lease claimed to have been overvalued by the incorporators, it was proper to show what specific corporate stock sold for, or could have been sold for, because what the stock would sell for BROOKE, J. About February 21, 1915, a flowing well was brought in in the Thrall oil field, near the town of Thrall, in Williamson county, Tex. The well was on the land A few days belonging to one Fritz Fuchs. later another flowing well was brought in on the Fuchs land, about 150 feet from the first well, known as the Murphy well. Both of these flowing wells continued to flow oil, without apparent diminution as to the quantity of oil produced, until after April 20, 1915. The bringing in of these oil wells in an entirely new field caused quite a lot of excitement. About April 1, 1915, the appellees, 20 citizens, formed a pool, each putting in $300, for the purpose of buying a lease in this new oil field and developing the same for oil. E. G. Jenkins was appointed as agent to visit the field and purchase the lease, if possible. About April 1st Mr. Jenkins purchased the oil rights on 10 acres of land, part of the Diebel tract, paying therefor the sum of $2,500 in cash. This lease carried a three-eighths royalty. Jenkins and his associates, appellees here, did not at once incorporate and sell stock and develop the land. They first had a well sunk on the land. About April 17, 1915, a flowing well was brought in. Three or four days before Evidence held sufficient to sustain a finding this well was brought in, a flowing well was that incorporators did not overvalue an oil brought in on the Thrall Independent Comlease given for stock in their statement to the secretary of state, so as to render them individ- pany tract, a 10-acre lease adjoining that ually liable for debts of the corporation. owned by appellees; the wells being about 350 10. CORPORATIONS 232(3)-STOCKHOLDERS' feet apart. After the well was brought in, LIABILITY-VALUATION OF PROPERTY. the owners of the lease, the appellees, visitAcceptance by the secretary of state of the ed Thrall and inspected the well. They valuation of an oil lease placed upon it by incorporators, who issued stock on such valua- then met at Taylor for the purpose of incortion, renders such valuation prima facie correct, porating, and discussed the value of the was the value of the lease. 8. EVIDENCE 113(6)-VALUE OF OIL LEASE -EXCHANGE OF STOCK. In arriving at the value of an oil lease, it was proper to admit evidence of exchanges of property for stock of the corporation, where the value of such property was shown; its weight being for the jury. 9. CORPORATIONS TION OF PROPERTY. 269(3)-STOCK-VALUA lease with the well on it. It was concluded that the lease with the well on it was conservatively worth $120,000, and that the company should be incorporated for that amount; the lease to be transferred to the company as its capital stock, and each one of the incorporators to own an undivided one-twentieth interest therein, for which, after the company was incorporated, stock was to be issued. No one subscribed for any stock in this company or agreed to pay for same. They transferred the 10-acre oil lease, with the flowing well thereon, to the company for $120,000, and were to receive stock of the company in payment for the same. An application for charter was made. The affidavit accompanying the application for the charter was as follows: "State of Texas, County of Williamson: "Before me, the undersigned authority, on this day personally appeared J. R. Heslep, T. G. Heslep, and H. H. Womble, known to me, who having been by me first duly sworn, on oath say, each for himself: That they are the identical parties who executed the charter of the Caldwell Oil Company as incorporators, and that the full amount of the capital stock of said company has been in good faith subscribed, and that the full amout thereof has been paid in; that the following are the names and postoffice addresses of the parties subscribing to the capital stock of this company: [Setting out names and post office address of each.] That each of the above subscriptions was paid in full by conveying to the corporation a lease on all the mineral rights on ten acres of land out of the Diebold survey situated near the town of Thrall, in Williamson county, Texas, on which there is now one of the largest producing oil wells that there is in the newly discovered field near the town of Thrall, which is now producing at least 2,500 barrels per day. There is also being drilled on this property two more oil wells and others will be drilled from time to time. The land herein conveyed is more particularly described as follows: [Setting out description of property.] "We and each of us, whose names are hereunto subscribed, solemnly swear that the value of $120,000, which we have placed on this prop; erty, is a reasonable and conservative one, and we further swear that every dollar of the stock of each of the stockholders herein can be sold at par and above:" This affidavit is signed by J. R. Heslep, T. G. Heslep, and H. H. Womble, and duly sworn to. The secretary of state accepted the valuation placed on the property and granted the charter. The company then commenced to do business and purchased some oil machinery, etc., from the agent of appellant, who was on the ground for the purpose of selling the goods, and who saw the well and flow of oil from it before he sold the goods. After a short while the wells failed, and the corporation was placed in the hands of a receiver. The appellant then filed suit in Williamson county against appellees, seeking to recover from them individually for the goods sold to the corporation, alleging all sorts of fraud in forming the corporation, and charging that the charter was procured from the secretary of state through fraud, etc. The venue of this suit was by consent changed to Robertson county, after which appellant filed its first amended original petition, abandoning the allegations of fraud made in its original petition, seeking to recover against the appellees on the ground that they had overvalued the lease and had not paid for their stock. The case was tried before a jury, and the only issue for the jury's determination being the reasonable market value of the Caldwell Oil Company's lease on April 20, 1915, and the jury having answered that the market value was $120,000, judgment was rendered in favor of appellees on June 13, 1917. tion for new trial was by the court overruled, and the case has been properly brought by appeal to this court. [1] The first assignment of error complains of the action of the court in permitting the witness Dr. Y. F. Hopkins, over the objection of plaintiff, to testify to the effect that he thought he could have sold his certain lease on a certain 10-acre tract of land in the vicinity of the Caldwell Oil Company's lease for $200,000, because and for the reason that said testimony is incompetent and immaterial, in that it does not tend to show the value of the lease in question, and because the same does not show even the market value of said adjacent lease, which said witness testified he could have gotten $200,000 for, and said testimony merely tends to show the opinion of said witness as to the value of said lease, without his first having qualified as an expert upon the value of leases of the same kind and character as the one at issue. It is contended by appellees, among other things, that if the court committed error in admitting the testimony of Dr. Hopkins, as complained of, which is not admitted, then appellant waived such error by its attorney fully going over the same subject on crossexamination of said witness, and bringing out new and additional testimony of like kind from said witness. Without setting out the testimony of Dr. Hopkins in full, it is sufficient to say that upon cross-examination plaintiff's attorney brought out the following testimony from the witness, which was not testified to on direct examination, to wit: "I had some people begging me to get my associates together and sell that 20 acres for $250,000. That was the Home Independent, just north and east of the Thrall Independent. That was considerably east of the Caldwell Oil Company's 10-acre tract. It was not close to production. It was further from production; that is, most of it was. There was a little point that ran down just east of the Thrall Independent nearest strip. * * * They were not going to organize a company and give me some stock in it. We were not to have any stock in it. We were not to have anything to do with it. They wanted to buy the lease. That was the last of April, or something like that; during the last few days of April. That was for $250,000 for 20 acres. It was a real estate man or agent who made the offer. who made the offer. I don't know who he was buying for; some Eastern parties." As before said, nothing was asked this wit- | share, and that he had been offered $200 for ness on direct examination about this 20-acre some of his stock. It was not error, it is conlease or its value. In the case of Cathey v. tended, to permit him to state that in his judgM., K. & T. Ry. Co. of Texas, 104 Tex. 41, ment he could have sold the Thrall Independ133 S. W. 417, 33 L. R. A. (N. S.) 103, Judge ent for $200,000. Having given the facts upRamsey, speaking for the Supreme Court, on which he based his reason or opinion, the used the following language: question went to the weight, and not to the admissibility, of the evidence. "The position announced in the above case with respect to cross-examination is unsound, yet we understand the rule to be that where a party on cross-examination of a witness, brings out facts not testified to by the witness on direct examination, he makes the witness his witness as to such facts. And if upon cross-examination he brings out similar but different facts to those testified to on direct examination, to which his objection was directed, he waives the objection." In the case of Provident National Bank of Waco v. Howard, 199 S. W. 658, the court holds that, when a party elicits certain matters from plaintiff on cross-examination, it is harmless to admit the same evidence by a later witness. In the case. of Slayden v. Palmo, 108 Tex. 413, 194 S. W. 1104, the Supreme Court held that a case would not be reversed for the admission of improper evidence, when similar testimony had been given without objection. It will be remembered that the testimony of Dr. Hopkins objected to was that he believed he could have sold his 10-acre lease on a certain 10-acre tract in the vicinity of the Caldwell Oil Company lease for $200,000. It is further contended by appellees that it was competent for the appellees to show the value of leases adjoining their lease, of similar acreage, location, and character of soil, etc., that, reduced to the last analysis, values are but opinions of witnesses; and, further, that what one can sell his property for is what it is worth, and that when we speak of the market value of property we mean for what it can be sold, and that the witness, having given the facts upon which he based his opinion of values, had the right to give his opinion of what his 10-acre lease, with a flowing well in it, as well as what the Caldwell Oil Company's lease, was worth; and, further, that any person living in the neighborhood of lands and familiar with the same can testify as to their value, and that it is permissible to prove values of lands by comparison with similar lands in the same locality; and it is argued that the property of a corporation is represented by the stock issued to its stockholders, and what the stock sells for is what the corporation is worth; that there are several ways of arriving at the value of the stock or the property belonging to the corporation. The witness Hopkins testified that the lease of the Independent Thrall adjoined that of the Caldwell Oil Company, and that both had a flowing well on their land, the Caldwell Oil Company's well flowing twice as much oil as the Thrall Independent's well, and further testified that he had bought and sold leases, and that stock in his, or the Independent It is further argued, and with apparent truth, that the general rule is that the true test of the value of a thing is what it will bring on the market. But, to constitute market value, it must appear that similar things have been bought and sold in the way of trade in sufficient quantity or frequency to establish a market value for such things; that, where there is no market value for the thing, its value must then be ascertained by the circumstances of the case, the intrinsic value of the thing, the cost of it, its uses, the price asked and offered for it, and, indeed, any facts which would naturally affect the mind of parties buying or selling in determining the price asked or given. There was no lease in the Thrall oil field, with a producing well on it, bought or sold, and, that being the case, we are unable to compare what leases with a producing well on them sold for, in determining the value of a lease that had been developed and had a producing flowing well or gusher on it, and so, it is argued, the only way of determining the value of the Caldwell Oil Company's lease, at the time, was to show what stock in this, as well as in the Thrall Independent, sold for, or could have been sold for, and the demand for the property. We are cited to the case of St. Louis & I. M. Ry. Co. v. Maxfield Co., 94 Ark. 138, 126 S. W. 84, 26 L. R. A. (N. S.) 1111, in which the following language is used: "As a general guide to the range which the testimony should be allowed to assume, we think it safe to say that the landowner should be allowed to state, and have his witness to state, every fact concerning the property which he would naturally be disposed to adduce in order attempting to negotiate a sale of it to a private to place it in an advantageous light, if he were individual. *** In offering testimony on this issue, the owner was not limited to any pre-existing use of the land. If it was of little value as a farm, or for common uses, and was of great value as mineral land, or as a town site, that fact might be shown, though it had never been so used." It seems that Dr. Hopkins lived in the neighborhood of the Thrall oil field, visited the field practically every day after the first well came in, bought and sold leases, knew of the excitement created by the bringing in of this field, of the number of people that flocked to the field for investment purposes, brought in a flowing well on a 10-acre lease adjoining that of the Caldwell Company's lease, knew stock in his company had sold for $150 to $180 per share, and he had been offered $200 for some of his stock. [2] The question is: Was it proper for him to state what his lease with the well on Railway Co. v. Hill, 70 Tex. 54, 7 S. W. 659; Railway Co. v. Mackie, 71 Tex. 498, 9 S. W. 451, 1 L. R. A. 804, 10 Am. St. Rep. 766; Letcher v. Morrison, 79 Tex. 241, 14 S. W. 1010; Wallis v. Schneider, 79 Tex. 479, 15 S. W. 492; Slayden v. Palmo, 108 Tex. 413, 194 S. W. 1103; Railway Co. v. Packard, 193 S. W. 397. could have been sold, and by comparison | 171 Mo. 1, 71 S. W. 239; Brinkerhoff v. state what the Caldwell Company's lease Home Lbr. Co., 118 Mo. 447, 24 S. W. 133; with a flowing well on it was worth? We are of opinion that it is proper, in proving the value of the Caldwell Oil Company's lease with a flowing well on it, to show the value of the Independent Thrall 10-acre lease with a flowing well on it, which was adjoining the Caldwell lease, the conditions regarding the two leases, improvements,, quality, etc., being alike, and in proving the value of the lease of the Independent Thrall it was proper to prove what it could have been sold for under existing conditions. The well of the Caldwell people was brought in on April 17, 1915. The well of the independent Thrall, on an adjoining lease and out of the same survey, was brought in on April 13, 1916. The Caldwell people incorporated on April 20, 1915. The value placed by them on their property in the corporation is assailed as being excessive. We believe it was proper for the appellees, in showing the value of their 10-acre lease with a flowing well on it, to show the value of the Thrall Independent 10-acre lease with a flowing well on it. The two leases were adjoining and similar with reference to improvements and in other respects, and in showing the value of the Thrall lease it was proper to show what it could have been sold for. The second assignment of error complains that the court erred in permitting the witness, Dr. L. L. Lee, to testify over the objection of plaintiff with reference to what he was offered for a 10-acre lease owned by him, as is more fully shown in plaintiff's bill of exception No. 21. The issue in the case was the market value of the Caldwell Oil Company's lease. The contention of appellees is that appellant was contending, among other things, that the Thrall oil field had not settled down to a steady production, and that there was no way of showing it had a market value, although it introduced a lot of oil scouts, who attempted to show that the lease was not worth $120,000. It was contended that it was proper, therefore, under the circumstances, to show the value of this lease, by showing, not only what similar leases sold for, but what they could have been sold for; there being no market value [3] The contention of appellant is that the for the stock or property on April 20, 1915, lease of the Caldwell Oil Company had no and the purpose of appellant being to show market value at the time it was incorporated, that, on account of the well on the lease of or, if it did, that no one could testify as to appellees having been brought in on the 17th its value, except some oil experts. Some of of April, 1915, and the corporation formed these scouts were permitted to tell the jury on April 20, 1915, that there was no market what, in their opinion, the lease was worth, value for the stock or property at this paralthough each of them admitted on cross-ticular time, that the only way market value examination that no one could tell where oil was located, or when found, how long it would last, etc., and that property was worth what you could sell it for. Therefore we believe it was proper, the appellant having introduced this character of testimony, for appellees to show by Dr. Hopkins, who lived in the neighborhood of the Thrall field, visited the field daily from the time the original well was brought in, bought and sold leases, saw trading in them, developed a 10-acre lease adjoining the Caldwell lease, knew of stock in his well selling for from $150 to $180 per share, was offered $200 per share for some of his stock, the par value being $10, the value of his well, for what it could have been sold, and by comparison state what in his judgment the Caldwell Company's lease with the well on it was worth. Therefore we hold that, if the admission of this testimony was error, it is not reversible error, under the circumstances of this case. Therefore the assignment is overruled. City of Ft. Worth v. Charbonneau, 166 S. W. 387; Boyce v. Gingrich, 154 Mo. App. 198, 134 S. W. 81; Railway Co. v. Maxfield Co., 94 Ark. 135, 126 S. W. 85, 26 L. R. A. (N. S.) 1111; Railway Co. v. Davis, 1 White & W. Civ. Cas. Ct. App. § 147, p. 58; State v. Meysenburg, could be proven for this property was by a lot of oil scouts, who were familiar with the different oil fields in Texas, and had had experience in buying and selling oil leases in other places, but not in this field. On the contrary, the contention of appellees was that the lease with the oil well on it was worth $120,000, the amount they incorporated for, and that in proving the value of the lease they were not confined to the oil experts, but anybody familiar with the property and locality of the lease, and conditions existing at the time, could testify, and that in testifying as to the value of other property in the neighborhood similarly situated, what stock in this company and other companies similarly situated with reference to improvements, etc., sold for, was proper to go to the jury to aid them in arriving at what the property was worth. And it is further contended by appellees that the general rule is that the true test of the value of a thing is what it will bring in the market; that, where there is no market value for such a thing, its value must then be ascertained by the circumstances of the case, the intrinsic value of the thing, the cost of it, its uses, the prices asked and offered for it, and, indeed, any facts which would naturally affect the minds of |