[6] As preliminary to the discussion of further assignments in appellant's brief, attacking the findings of fact filed by the trial court, we think it proper to say that this is one of those cases wherein the evidence is so conflicting upon the material issues that the appellate court would be bound by the findings of fact by the trial court or the ver dict of the jury upon such issues of fact, and in this respect the reviewing court would be required to sustain the verdict and judgment rendered for either party. And while, in the instant case, there is sufficient evidence in [4] In the appellant's second assignment an the record upon the material issues involved attack is made on the contract, as supported which would justify the sustaining by us of by the evidence, on the ground that the evi- a judgment for the appellant, yet we think dence shows that if Bryan, acting for appel- by giving the strongest probative effect to the lant, had contracted to purchase from Stuart evidence in favor of the judgment rendered, the $50,000 worth of stock, at $20 per share, as it is our duty to do, such judgment cannot

at that time it was a mistake, and that he would correct it as soon as the meeting was over; but after the meeting was over, and they had gotten what they wanted, he left."

Under the third specifications of error, appellant urged that the court erred in his findings of fact, wherein he found that an unconditional contract of purchase was entered into by and between this defendant, acting We think the above quotation from the through its agent, and R. T. Stuart, by the record is sufficient answer to the fourth asterms of which defendant absolutely contract-signment, and what we have heretofore said ed and agreed to purchase from said Stuart sufficiently disposes of the question presented $50,000 worth of the capital stock of the in the fifth assignment, which is likewise American Home Life Insurance Company at overruled. $20 per share. Appellant insists that, under the undisputed evidence in this case, the trial court should have found that said contract was merely with reference to the stock owned by said Stuart at said time and by his friends at that time, and not with reference to stock subsequently purchased by Stuart from oth-vided said Bryan would pay the draft for ers than his friends. Stuart testified as follows:

Under the sixth assignment, appellant refers to the fact that plaintiff's letter of August 29, 1914, to Bryan, was dictated and signed by plaintiff, and that in said letter he offered to compromise all claims held by him against Bryan on his alleged contract, pro

$4,500, and accept the certificates representing the 275 shares of stock. Appellant urges "Mr. Bryan proposed that if I would agree that, taking into consideration the fact that to give him a letter saying that I had sold the several letters and telegrams passed between stock to him that I owned in the company, that Bryan and plaintiff, in several of which comI could fix my own price on my own stock, pro- munications the number of shares of stock vided it was within the bounds of reason. He wanted a letter from me stating that I had involved in the deal and the amount of the transferred my stock to the International, in draft drawn were mentioned, "it is unconexchange for their stock, with the understanding ceivable to believe the testimony of R. T. Stuthat, after they got charge of the company, that they would then pay me the money for art to the effect that an error was made in my International stock. I told Mr. Bryan that that way in the face of the letters which I would not even entertain a proposition like passed between them, and therefore the court that, and that the only proposition I would entertain would be that he should give me and my should not have found that such a mistake friends twenty dollars a share for our stock, had been made." It is true the facts menand that I would want him to make a contract tioned by appellant would have amply suswith me to take at least fifty thousand dollars' tained a conclusion contrary to that reached worth of stock at twenty dollars a share; and he said he would not consider that proposition by the trial court. But the trial court heard at all; that he would not agree to pay twenty the testimony, and we cannot say, as a matter dollars a share; that the International could of law, that the conclusion reached by him not afford to pay that much, because he figured is not supported by the evidence. at that time that the liquidating value was about eighteen dollars or nineteen dollars a share, and that they would consider it. I says, 'All right, Mr. Bryan, if you won't consider that, there is no use for us to talk any further.' I left him, and three days later he came back to my office in Dallas and said he had been thinking about the matter, and that he had seen Mr. Wilson, and that they had decided to pay me twenty dollars a share for fifty thousand dollars worth of stock."

We think the evidence quoted is sufficient to sustain the finding of the court in the respect of which complaint is made. Hence we overrule the third assignment, and the fourth, which attacks the conclusion of law by the trial court to the effect that the plaintiff was entitled to recover of the defendants the sum of $1,000. This contention is based on the asserted fact that the evidence shows that by the letter of August 29, 1914, Stuart proposed to accept $4,500 in payment of the 275 shares of stock, and that, if any mistake was made by Stuart in drawing such draft, Bryan had no knowledge or notice that such mistake had been made, and that the payment of such draft by Bryan was a settlement in full of all contracts theretofore made between the parties. As to this feature, Stuart testified in part as follows:

"It is my testimony that Mr. Bryan admitted to me that he knew the draft of $4,500 was a mistake. He made that admission to me on the day of the meeting, on December 20th. He said

We do not think any error is presented in appellant's seventh assignment, wherein it contends that in no event could plaintiff below recover more than the reasonable market value of the 275 shares of stock, which it is insisted the evidence shows to have been $18 or $19 per share. The cause of action was predicated on an alleged express contract on the part of defendant to accept and pay for the stock at $20 per share. If a mistake was in fact made by Stuart or his secretary in drawing the draft, and if Bryan knew that such a mistake had been made, and subsequently promised to pay for the stock pur chased, such promise would reasonably be construed to mean that he would pay the contract price for said stock.

Attack is made, under the eighth assignment, on the findings of fact by the trial court to the effect that in writing said letter of August 29, 1914, Stuart dictated the same to his secretary, leaving the amount of shares and the amount blank, telling his secretary to look up the number of shares on hand and to figure the same at $20 per share, and to fill out said blank accordingly, and to draw on said J. W. Bryan for the amount. It is insisted that the undisputed evidence shows that Stuart knew the said number of shares he was promising to sell to said Bryan at the time of dictating said letter, and at said

tion in Texas, whereby the ancillary adminis-
trator could intervene, was necessary, this be-
ing particularly true as under the Texas stat-
utes providing for distribution of the recovery
the amount recovered could be distributed in
accordance with the New Mexico laws.
4. EXECUTORS AND ADMINISTRATORS 518(1)

time, according to his evidence, dictated the [ did not extend beyond New Mexico, administranumber of shares to the stenographer, and only the amount was left blank, and not the number of shares which he was selling. Even if the state of evidence be as claimed by appellant, and the court was not justified in finding that both the number of shares and the amount of the draft were left blank, yet such mistake, if any, becomes immaterial, since the judgment rests on the theory that the mistake was made as to the amount of the draft.

[7] It is urged in the ninth assignment that it is evident that Stuart was guilty of gross negligence in making the mistake claimed by

him as to the amount for which the claim was to be drawn. We do not think, under the circumstances, it is a question of negligence. Even though plaintiff was negligent in the respect mentioned, if Bryan knew that a mistake had been made, at the time he accepted the stock and paid the draft, he could not avoid the effect of the mistake, by reason of said negligence on the part of plaintiff, espcially in view of said Bryan's agreement and promise thereafter to right the mistake.

We think what has been said heretofore

has sufficiently disposed of the questions raised, and the remaining assignments, to wit, the tenth and eleventh, and therefore all assignments are overruled and the judgment is affirmed. Affirmed.

CONNER, C. J., not sitting. Serving on Writ of Error Committee at Austin.

-ANCILLARY ADMINISTRATION. Under Const. art. 5, § 16, declaring that the county court shall have the general jurisdiction of a probate court and shall grant letters testamentary and of administration and transact all business appertaining to estates of deceased persons, the county court, though a special court with defined powers, has, sitting as a court of probate, jurisdiction to grant ancillary letters of administration when necessary.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Petition by W. S. Berkshire for appointment as ancillary administrator and personal representative of the estate of Robert S. Herrington, deceased. After appointment the Atchison, Topeka & Santa Fé Railway Company intervened, filing its protest. From a judgment of the district court which affirmed the action of the probate court in denying the protest, intervener appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, and Turney, Culwell, Holliday & Pollard, of El Paso, for appellant. Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.

WALTHALL, J. The appellee, W. S. Berkshire, on January 29, 1917, filed in the probate court of El Paso county, Tex., his application for appointment as ancillary administrator and personal representative of the estate of Robert S. Herrington, deceased, represent

ATCHISON, T. & S. F. RY. CO. v. BERK- ing therein that Robert S. Herrington, on

SHIRE. (No. 804.)

El Paso.

(Court of Civil Appeals of Texas. March 1, 1918. Rehearing Denied

the 28th day of February, 1916, through the negligence of appellant, was killed at Santa Rita, N. M.; that he died intestate, and left a surviving wife and three minor children; 1. DEATH 35-JURISDICTION-TRANSITORY that the estate has a suit and cause of action ACTION.

March 21, 1918.)

The cause of action for wrongful death given by Comp. Laws N. M. 1884, §§ 2309, 2310, as amended by Laws 1891, c. 49, which must be instituted in the name of the personal representative of the deceased, is transitory, and may be maintained in a state other than that of New Mexico.

2. DEATH 31(3)-RIGHT TO SUE "PERSON-
AL REPRESENTATIVE.
The words "personal representative" ordi-
narily mean the executor or administrator of
decedent.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Personal Representative.]

against the appellant by reason of the negligence causing the death of deceased; that on the 15th day of May, 1916, the probate court of Grant county, N. M., appointed Fred F. Fletcher administrator of said estate, and that said Fletcher, as such administrator and personal representative of Herrington, deceased, instituted in the district court of El Paso county, Tex., a suit against the appellant for damages growing out of the death of said Herrington; that there is a doubt as a matter of law as to the right of such foreign administrator to prosecute suit in the courts of the state of Texas, but that by reason of the filing of said suit the same Where the domiciliary administrator of res- constitutes an estate in El Paso county, Tex., ident of New Mexico who had met his death of the probable value of $5,000, and that in that state, brought in Texas an action against there is a necessity for the appointment a railroad company alleged to be liable, the appointment of an ancillary administrator in of an ancillary administrator and personal Texas is proper, for as, under Comp. Laws, N. representative of the estate of Herrington, M. 1884, §§ 2309, 2310, as amended by Laws deceased, with authority to intervene in the 1891, c. 49, an action for death can be maintained only by the personal representative, and suit filed and prosecute same to final terminathe authority of the domiciliary administrator tion. The wife of deceased waived her right to

3. EXECUTORS AND ADMINISTRATORS 518(1) ANCILLARY ADMINISTRATORS - APPOINT

MENT.

1092

201 SOUTHWESTERN REPORTER

Under the third specifications of error, appellant urged that the court erred in his findings of fact, wherein he found that an unconditional contract of purchase was entered into by and between this defendant, acting through its agent, and R. T. Stuart, by the terms of which defendant absolutely contracted and agreed to purchase from said Stuart $50,000 worth of the capital stock of the American Home Life Insurance Company at $20 per share. Appellant insists that, under the undisputed evidence in this case, the trial court should have found that said contract was merely with reference to the stock owned by said Stuart at said time and by his friends at that time, and not with reference to stock subsequently purchased by Stuart from others than his friends. Stuart testified as follows:

at that time it was a mistake, and that he would
but after the meeting was over, and they had
gotten what they wanted, he left."
correct it as soon as the meeting was over:

We think the above quotation from the
record is sufficient answer to the fourth as-
signment, and what we have heretofore said
sufficiently disposes of the question presented
in the fifth assignment, which is likewise
overruled.

Under the sixth assignment, appellant refers to the fact that plaintiff's letter of August 29, 1914, to Bryan, was dictated and signed by plaintiff, and that in said letter he offered to compromise all claims held by him against Bryan on his alleged contract, provided said Bryan would pay the draft for ing the 275 shares of stock. Appellant urges $4,500, and accept the certificates represent"Mr. Bryan proposed that if I would agree that, taking into consideration the fact that to give him a letter saying that I had sold the several letters and telegrams passed between stock to him that I owned in the company, that Bryan and plaintiff, in several of which comHe I could fix my own price on my own stock, pro- munications the number of shares of stock vided it was within the bounds of reason. wanted a letter from me stating that I had involved in the deal and the amount of the transferred my stock to the International, in draft drawn were mentioned, "it is unconexchange for their stock, with the understanding ceivable to believe the testimony of R. T. Stuthat, after they got charge of the company, that they would then pay me the money for art to the effect that an error was made in my International stock. I told Mr. Bryan that that way in the face of the letters which I would not even entertain a proposition like passed between them, and therefore the court that, and that the only proposition I would en- should not have found that such a mistake tertain would be that he should give me and my friends twenty dollars a share for our stock, had been made." It is true the facts menand that I would want him to make a contract tioned by appellant would have amply suswith me to take at least fifty thousand dollars' tained a conclusion contrary to that reached worth of stock at twenty dollars a share; and he said he would not consider that proposition by the trial court. But the trial court heard at all; that he would not agree to pay twenty the testimony, and we cannot say, as a matter dollars a share; that the International could of law, that the conclusion reached by him not afford to pay that much, because he figured is not supported by the evidence. at that time that the liquidating value was about eighteen dollars or nineteen dollars a share, and that they would consider it. I says, 'All right, Mr. Bryan, if you won't consider that, there is no use for us to talk any further.' I left him, and three days later he came back to my office in Dallas and said he had been thinking about the matter, and that he had seen Mr. Wilson, and that they had decided to pay me twenty dollars a share for fifty thousand dollars worth

of stock."

We think the evidence quoted is sufficient
to sustain the finding of the court in the re-
spect of which complaint is made. Hence we
overrule the third assignment, and the fourth,
which attacks the conclusion of law by the
trial court to the effect that the plaintiff
was entitled to recover of the defendants the
sum of $1,000. This contention is based on
the asserted fact that the evidence shows that

by the letter of August 29, 1914, Stuart pro-
posed to accept $4,500 in payment of the 275
shares of stock, and that, if any mistake was
made by Stuart in drawing such draft, Bryan
had no knowledge or notice that such mistake
had been made, and that the payment of such
draft by Bryan was a settlement in full of all
contracts theretofore made between the par-
As to this feature, Stuart testified in
part as follows:

ties.

"It is my testimony that Mr. Bryan admitted t to me that he knew the draft of $4,500 was a mistake. He made that admission to me on the day of the meeting, on December 20th. He said

did not extend hern tion in Texas, whtrator could interre

ing particularly
utes providing f
the amount resCT IN
accordance with

4. EXECUTORS AN
-ANCILLAR
Under Cons
county court
tion of a prot
testamentar
act all bus? P
ceased pers
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