all the acts required of him under the terms of said contract. about 800 yards from the 15-acre tract. It was further agreed as a part of said contract that the defendant was to pay all ginning charges on cotton produced upon said land during the term of said lease, and was to make arrangements whereby plaintiff could secure from a mercantile establishment in the neighborhood groceries and other supplies reasonably needed by him and his family during the term of said lease, the defendant to guarantee payment therefor. Defendant, as a part of said contract, further agreed to hire the plaintiff to work upon other land owned by him in said neighborhood during the term of said lease and during the time plaintiff was not occupied in labor upon said 15-acre tract, and to pay to plaintiff for such labor the sum of $1 per day. Defendant further agreed to permit the plaintiff to turn one horse owned by plaintiff into defendant's the county of Travis, the aggregate of such expasture during the term of said lease without charge, the reasonable market value of such privilege at said time and place being $1 per month. Plaintiff in said contract was given the privilege of using and cultivating during the term of said lease one-fourth acre of land in another tract for the purpose of cultivating and raising vegetables, all vegetables raised thereon to belong to plaintiff; defendant further agreeing to permit plaintiff to use in cultivating said one-fourth acre tract all implements, teams, and tools reasonably necessary therefor. It was further agreed that defendant was to furnish plaintiff the use of a wagon and team for hauling wood necessary for the use of himself and family. "(4) That the reasonable market value of said tract of 15 acres at the time said contract was made was $150 per acre; that the reasonable market value of said dwelling house at said time was $250; that the reasonable market value at said time and place of the teams, tools, and implements exclusively used by plaintiff and furnished to him by defendant was $250, making an aggregate value of land, house, teams, tools, and implements of $2,750; that under said contract defendant was required to and did, furnish feed for teams used as aforesaid, seed for planting, blacksmithing in connection with cultivation of said tract, cotton sacks for gathering said cotton, ginning of said cotton, and had to pay taxes due the state of Texas and penses being $204.25, all of which was actually and necessarily incurred by defendant in carrying out his said contract with plaintiff; that all of said sums paid were reasonable prices for the articles and services procured; that the aggregate revenue received by defendant from the sale of his portion of the lint cotton and all the cotton seed produced on said tract during the term of said lease was $363.47; that, after deducting the expenses aforesaid, the net revenue from said tract of land for said term was $159.22, the same being a net revenue of 57/10 per cent. on the market value of land and residence, teams, tools, and implements exclusively used thereon as aforesaid; that the cotton and cotton seed raised during said year sold at a much greater price than the average price for many years preceding; that under ordinary conditions and with average prices the said land, teams, tools, and implements would produce a much smaller net return on their value under a contract similar to that herein involved; that if defendant be not permitted to retain the value of all the cotton seed produced on said tract of land during said year, his return on said market value will still further be reduced; that the current rate of interest in Texas at the time said contract was made and ever since was and is 8 per cent. per annum; that said tract of 15 acres is rich black land, free from noxious weeds, and easily cultivated; that there was and is one schoolhouse within 200 yards of said land and another within one mile, each being public free schools, with proper equipment and competent teachers; that said land is easily accessible to churches, markets, and cotton gins; that good roads lead from said tract to all neighboring towns, and said land has an abundant supply of pure water; that the surroundings are healthful, and the neighborhood a desirable one in which to live; that there is and was at said time in Travis county and in many sections of Texas a large quantity of land (3) That the plaintiff is a married man with of equal productiveness, which will, when renta family, and has been engaged in the occupation ed on the same terms as those embodied in the of farming continuously for several years; that contract involved herein, produce as much renplaintiff furnished all the labor for preparing tal revenue per acre as said tract, but which said land for a crop, and for planting, culti was at said time, and is, by reason of less desirvating, gathering, and delivering said crop of able location and other conditions, of much less cotton and cotton seed to the defendant, and market value; that the cultivated agricultural did and performed all of the acts agreed to be land in Texas is divided into thousands of tracts performed by him under the terms of said con- of various sizes, owned by various people; that tract; that the defendant furnished to plain- it was at said time and now is the universal tiff the 15 acres of cultivated land, the dwelling practice of owners of such land either to rent house upon a separate tract, procured groceries it or to cultivate it themselves; that the reand other supplies needed by plaintiff and cultural land has not, will not, and cannot striction of rental that may be charged for agriguaranteed the payment therefor, employed plaintiff in work upon other land during such cause any additional land in Texas to be devoted times as plaintiff was not engaged in labor upon to the production of cotton, grain, or other the 15-acre tract and paid to plaintiff therefor crops, or increase the production thereof, or afthe sum of $1 per day, furnished to plaintiff fect the price ultimately paid by the consumer; pasturage for one horse without charge and that the agricultural land in Texas varies greatfurnished to plaintiff the one-fourth acre of land ly in productiveness, ease and economy of cultiin another tract for a garden, and furnished vation, presence of insect pests, accessibility to the necessary tools and teams to cultivate same, schools, churches, markets, and towns, characfurnished plaintiff with the use of a wagon and ter of houses and improvements situated there "(2) That pursuant to the terms of said contract the plaintiff immediately entered into possession of said land and premises, and prepared for cultivation and planted and cultivated and harvested a crop of cotton on said 15 acres of land during said term, and actually produced on said land during said term 61⁄2 bales of lint cotton, which said lint cotton was of the reasonable market value of, and was actually sold for, the sum of $507.54; that the defendant paid to and for the plaintiff the sum of $253.77, same being one-half of said amount of $507.54 received from the sale of said lint cotton, as per the terms of said contract; that plaintiff produced on said land during said term cotton seed aggregating 5,525 pounds, all of said cotton seed being delivered by plaintiff to defendant in Travis county, Texas, the defendant retaining as a part of the rent for said land all of said cotton seed and all of the proceeds of the sale thereof, in accordance with the terms of said contract; that the reasonable market value of said cotton seed at the time same was delivered to the defendant was the sum of $110.50; that the defendant paid for the ginning of said cotton so produced by plaintiff the sum of $25.54. much land is rented for agricultural purposes facts agreed upon in this case, appellee is where no houses or improvements are furnished not entitled to recover, and judgment should in connection therewith; that some of the land is situated in arid regions and some in regions be rendered for appellant. Opinion. In 1915 the Legislature amended article 5475 of the Revised Statutes (Acts 34th Leg. c. 38 [Vernon's Ann. Civ. St. Supp. 1918, art. 5475]), which secured to landlords a preference lien where land is rented for agricultural purposes, by adding thereto the following language: "Provided, however, this article shall not apply in any way nor in any case where any person leases or rents lands or tenements at will or for a term of years for agricultural purposes where the same is cultivated by the tenant who furnishes everything except the land, and where the landlord charges a rental of more than onethird of the value of the grain and more than one-fourth of the value of the cotton raised on said land; nor where the landlord furnishes everything except the labor and the tenant furnishes the labor and the landlord directly or indirectly charges a rental of more than one-half of the value of the grain and more than one-half of the value of the cotton raised on said land, and any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for, shall be null and void, and shall not be enforceable in any court in this state by an action either at law or in equity, and no lien of any kind, either contractural or statutory, shall attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article; and provided, further, that if any landlord or any person for him shall violate or attempt to evade any of the provisions of this article by collecting or receiving a greater amount of rent for such land than herein provided, shall be collected or received by him upon any contract, either written or verbal, the tenant or person paying the same, or the legal representatives thereof, may, by an action of debt instituted in any court of this state, having jurisdiction thereof, in the county of the defendant's residence or in the county where such rents or money may have [1] We have reached the conclusion that appellant's second contention is correct, and therefore it is not necessary for this court to pass upon the constitutional questions presented by appellant's counsel, and we express no opinion upon that subject. In other words, if it be conceded that the statute is free from constitutional objection, and is a valid law, still, if the facts proved fail to show that the plaintiff was entitled to recover the penalty sued for, the trial court should have rendered judgment for the defendant, and, as the case was tried upon agreed facts, it becomes the duty of this court to render the judgment which should have been rendered by the court below. [2] Turning, then, to the agreed facts, and applying to them the statute in question, is it made to appear with that certainty required in suits of this character that the plaintiff was entitled to recover the penalty which is prescribed by the statute? By the terms of the rental contract, as alleged in plaintiff's petition, it was agreed that the plaintiff was to furnish the labor necessary to produce a cotton crop on the 15-acre tract of land, and defendant was to furnish all teams, tools, feedstuffs and other necessary equipment and appliances for cultivating, producing, and harvesting a crop of cotton on the land. It further appears from the contract, as disclosed by the statement of facts, that the plaintiff was to furnish to the defendant, not only the 15 acres of land which defendant was to cultivate in cotton, but was also to furnish him a residence upon another and different tract of land situated about 800 yards from the 15-acre tract, one-fourth of an acre of land to be used for garden purposes, pasturage for one horse, and a wagon and team to haul firewood for the use of himself and family; was to pay the expenses of ginning the cotton; was to make arrangements by which the plaintiff could purchase supplies on credit, and was to guarantee the payment thereof; and was to furnish the been received or collected, or where said contract may have been entered into, or where the plaintiff employment, and pay him $1 per day party or parties paying the same resided when therefor during the time that he was not ensuch contract was made, within two years aft-gaged in cultivating and harvesting the coter such payment, recover from the person, firm, or corporation receiving the same, double the ton crop. The consideration which rendered full amount of such rent or money so received binding the foregoing obligations assumed by or collected." the defendant was the obligation upon the part of the plaintiff to deliver to the defendant one-half of the cotton and all of the cotton seed produced upon the 15 acres of land. In the case at bar, Prince, the tenant, sued the landlord, Green, to recover the penalty prescribed by that act. The trial court rendered judgment for the plaintiff, and the defendant has appealed, and seeks reversal of the judgment, first, upon the ground that the amendment to the statute passed in 1915, and set out above, is violative of certain provisions of both the federal and state Constitutions; and, second, that if such is not the case, and the amendment is valid legislation, still, when it is applied to the The plaintiff's suit is based upon the theory that the contract by which the defendant was to have half of the cotton and all of the cotton seed was in violation of the statute, and that when the defendant received the same he became liable for the prescribed penalty. In other words, appellee's contention seems to be that the statute prohibited when the railroad refuses to deliver it after tender has been made of all charges shown by the bill of lading. In that case the charges were not specified in, or shown by, the bill of lading, but were specified and shown in the expense account rendered to the owner by the railway. In denying the right of plaintiff in that case to recover, among other things the Supreme Court said: "This act is both remedial and penal. In Sutherland on Statutory Construction it is said: be remedial, as where they provide punitive The general purpose and aim of a statute may compensation to the injured party. But the provisions that enforce the wrong for which a penalty is provided and those which define the punishment are penal in their character, and must be construed accordingly. A statute may be remedial in one part and penal in another.' Suth. on Stat. Con. § 208. making payment or tender of the charges for "For the shipper the act provides that, upon transportation as shown in the bill of lading, he shall have possession of his goods; and in the third section the means of enforcing the right is given in the way of punitive damage. From this standpoint the statute is remedial. It was from the shipper's standpoint that the court viewed the act in Railway v. Harry & Bros., lature to enact the law for the benefit of the 63 Tex. 256, in which the right of the Legisshipper was the question. As to the railway company it is penal, for in the first section it declares certain acts to be unlawful, in the second section it enjoins a duty, and in the third it denounces against the railway company a penalty for violating the previous sections. the defendant from receiving more than, onehalf of what was produced upon the land, and, therefore that when he contracted for and received all of the cotton seed, as well as half of the cotton, he violated the law and became liable for the penalty. That contention might be sound if the defendant, as landlord, had not furnished more than he was required to do by the statute, or by the contract, as alleged in the plaintiff's petition. A fair and reasonable construction of the statute shows that it was intended to apply to general conditions in which land was rented for agricultural purposes upon one of two kinds of contract; viz., where the tenant furnishes labor, teams, implements, and all other things necessary to make and harvest the crop; and the other where the tenant furnishes the labor only, and the landlord furnishes the other things necessary to make the crop. The plaintiff has sought to bring this case within the latter class, but the proof shows that the defendant, who was the landlord, obligated himself to do more than furnish those things that were necessary to raise a crop upon rented premises; and for those additional things he had the right to contract for compensation in addition to his right to contract for one-half of the products of the land. The additional things referred to, and for furnishing which the landlord had the right to contract for compensation, consisted of the use of a house situated upon a different tract of land, payment of all the expenses of ginning, when, as between him and the plaintiff, he was only liable for one-half, furnishing the plaintiff pasturage for one horse, shown to be worth $1 per month, furnishing him onefourth of an acre of land as a garden, a wagon and team to haul firewood, and obligating himself to furnish the plaintiff employment at a stipulated price, and to become a surety to enable him to buy his supplies. The proof fails to show that any of these things were necessary to make and harvest the crop that was made and harvested on the land, and therefore it is not shown that the defendant did not have the right to contract for and receive all the cotton seed as compensation for the things referred to. [3] It is a well-settled principle of law, often announced and applied by our OWN Supreme Court, that when an action is brought for the purpose of recovering a statu-jury is not taken into account. It is an arbitory penalty, the plaintiff must produce proof that brings his case strictly within the terms of the statute. The rule referred to applies, even though in the main the statute may be remedial. For instance, in Schloss v. A., T. & S. F. Ry. Co., 85 Tex. 601, 22 S. W. 1014, which was a penalty suit under a statute See, also, Railway Co. v. Campbell, 91 Tex. which makes it unlawful for railroads to de-551, 45 S. W. 2, 43 L. R. A. 225; T. & P. mand or receive a greater sum for trans- Ry. Co. v. Hughes, 99 Tex. 533, 91 S. W. porting freight than is specified in the bill 567. of lading, and prescribes a penalty which "In the case of Railway v. Dwyer, 84 Tex. 198 [19 S. W. 470], the question was whether the bill of lading was such as is mentioned in the act so as to render the railway company liable, and from this standpoint the court declared the statute to be penal. Whether it be remedial or penal, it is certain that the appellant's right of action is strictly statutory. Without the statute, he had the right to recover compensation for the detention of his goods after payment or tender of the amount due. This right is not taken away or modified by this act. But without this statute he could not recover the damTherefore he ages or penalty specified in it. must bring himself strictly within the provisions of the acts. Suth. on Stat. Con. § 398; De Witt v. Dunn, 15 Tex. 106; De la Garza v. Booth, 28 Tex. 478 [91 Am. Dec. 328]; Scogins v. Perry, 46 Tex. 111; Murray & Bro. v. Ry., 63 Tex. 407 [51 Am. Rep. 650]. * "One of the leading purposes was to punish the failure to perform the duty enjoined by the law. The caption says that penalties are prothe railway company shall be liable to the owner of t. goods in damages, etc. Calling it damages does not change the character of it. The sum to be recovered is not in any respect compensatory for the injury sustained by the detention of the goods; the extent of the in vided, and in the third section it is said that trary sum, fixed, not according to the value of the property, nor governed by the value of their use, but by the sum due as shown by the bill of lading. It is a penalty in every respect, as much as if it had been so declared, and was intended as a punishment of the railway company for a violation of the law." We have not overlooked the fact that the J. D. expressly agreed by the parties "that the Appeal from Hill County Court; Suit by A. L. Smith against H. Hoffman. Judgment for plaintiff in part, and he appeals. Reversed and remanded. J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellant. J. D. Abney and R. M. Vaughan, both of Hillsboro, for appellee. RASBURY, J. Appellant sued appellee for $294.74 alleged to be the damages accruing to him by reason of appellee's failure to deliver 25 bales of cotton sold under parol agreement by the latter to the former. There was trial by jury, resulting in verdict for appellant for $50, followed by similar judgment, from which this appeal is taken. The issues presented in the brief of appellant are, in substance, that the verdict is without support in the evidence. Accordingly it is necessary to state the essential facts deducible from the evidence. Those in support of appellant's theory of the transaction are that at some time after 11 o'clock of the morning of October 11, 1916, in Hillsboro, What was said in the Schloss Case is appellee sold appellant 25 bales of strict equally applicable to the instant case. While middling cotton of the approximate weight the facts show that the defendant contract- of 530 pounds per bale, at the agreed price ed for more than one-half of the products of of $16.07% per hundred pounds, in evidence the land to be cultivated, it also shows that of which appellant gave appellee a written he obligated himself in several respects bene- memorandum or "cotton ticket," stating the ficial to the plaintiff beyond his agreement number of bales, the price and grade agreed to furnish the land, teams, implements, and on, and that payment was to be made through other things necessary to make and harvest Citizens' National Bank. Appellee representthe crop; and as the proof does not showed to appellant that he was in possession of that at the time the contract was made the and prepared to deliver the cotton. value of the things referred to, and of the agreement was made at the time of purchase cotton seed thereafter to be raised, was when the cotton should be actually delivered, agreed upon, with a result that the agreed but when appellant learned, within two or value of the cotton seed was in excess of the three days after the purchase of the cotton, value of the things referred to, it does not that delivery had not been made through the appear that the defendant contracted for or customary medium of tickets and checks received more for the rent of the land than passed through the local banks, he called upone-half of what was produced thereon. on appellee, who explained that delivery had Hence we conclude that the agreed state- not been made because the cotton he had ment upon which the case was tried fails to was not of the grade sold. At this time apshow that appellant has violated the stat-pellant insisted that the cotton be delivered, ute, and therefore the judgment of the court below is reversed, and judgment here rendered for appellant. (Court of Civil Appeals of Texas. Dallas. Feb. 9, 1918. Rehearing Denied March 2, 1918.) Νο and appellee promised it would be. About this time appellant was called away for several days, and upon his return again demanded that appellee deliver the cotton. Appellee again requested further time, and ap pellant agreed to wait until the following day, which was the tenth day after the sale. Appellee did not deliver the next day, whereupon appellant bought in the local market 25 bales of cotton weighing 13,173 pounds to TRIAL 333 VERDICT-AMOUNT-RESPON- take the place of that sold by appellee, and SIVENESS TO ISSUES AND EVIDENCE. which appellant had in turn sold, paying Where plaintiff was entitled to judgment therefor the prevailing market price, and for $294.74, the difference between contract and market prices of cotton on date defendant which was $294.74 in excess of the price breached delivery, or nothing, a verdict for agreed to be paid to appellee for his cotton. plaintiff for $50, presumably based upon compromise offer before suit, is not responsive deliver cotton at any time within 10 days a It is customary in the Hillsboro market to after purchase, when sold under the terms to either issues or evidence, and must be set aside. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and circumstances surrounding the sale by | particularly when the amount was liquidatappellee to appellant. ed and did not call for the exercise of any discretion by the jury, is a finding without support in the evidence, in that it is in disregard of unimpeached evidence and not compensatory. Upon what theory the verdict was awarded we are unable to say, unless it was upon the testimony of appellee, which we find in the record, that appellant offered at one time to accept $50 in compromise of his claim. Such offer of course cannot, for obvious reasons, support the verdict. We are not to be understood as saying that the appellant was or that appellee was not entitled to prevail in the contest, but only that the verdict as rendered was incorrect for the reasons stated, and as a consequence it becomes our duty to reverse the judgment and remand the case for another trial not inconsistent with the views herein expressed. Reversed and remanded. The facts deducible from the evidence which support appellee's theory of the contract are that at the time stated appellee did sell appellant 25 bales of strict middling cotton at $16.071⁄2 per hundred pounds, to be delivered the day of the purchase. Appellee did not deliver the cotton as agreed, for the reason that when he went to the bank and checked up his holdings he ascertained he did not have the cotton he had sold, although he, in good faith, believed he had when he sold it. Appellee had no knowledge of the custom that allowed seller 10 days within which to make deliveries after sale. Appellee discussed with appellant his failure to deliver the cotton, and in several conversations told appellant he would deliver the cotton if he could buy it at the price he could have bought it on the day he sold. Upon consideration of the conflict in the facts concerning the sale and purchase of (No. 7895.) (Court of Civil Appeals of Texas. Dallas. ELECTRICITY 11-DISCONTINUANCE OF DEPOSIT TO SECURE the cotton, it is apparent that a verdict up- TEXAS POWER & LIGHT CO. v. TAYLOR. on either theory would have been warranted; that is to say, a verdict for appellant for the amount sued for or the difference between the amount at which he bought from appellee and the amount which he paid for a sim-1. ilar amount and grade of cotton after appellee refused to deliver, or a verdict in favor of appellee. Incidentally, it was pleaded by appeliee, and is argued here, that appellant, at most, was entitled to recover $1.87, the difference between the price at which he bought from appellee and the market price on the day agreed upon for delivery. While that fact is not of controlling importance, yet we are unable to find in the record any evidence concerning the market price of the cotton on the day upon which appellee claims delivery was to be made. Recurring, then, to the issue made by appellant, do the facts related warrant the verdict? We conclude they do not, since the verdict is responsive to neither the issues nor the evidence. We readily concede it to be the function of the jury to find the facts, to reconcile conflicts in the evidence, to discard facts supporting one theory and to adopt those supporting another; also the wisdom of the resulting rule that denies to appellate courts authority to invade such jury functions. At the same time, the verdict must be founded upon facts reasonably deducible from the evidence. The verdict in the instant case is for appellant for $50, and, fairly put, is unwarranted. To have found any amount for appellant above the amount of $1.87 pleaded by appellee as his damages, assuming it was proven, was to adopt his theory of the contract. When that conclusion was reached, the amount of his loss as a result of appellee's failure to deliver the cotton was without contradiction, and an award for less damages than those proven, The act of a lighting company in discontinuing service without notice upon user's default contract provided for discontinuance on default, for past month's service, held proper, where and it was immaterial that the amount due was not in excess of the amount deposited by user to secure faithful performance of contract. m49 2. DAMAGES ALONE. MENTAL SUFFERING That one became angry because of his light service being cut off for nonpayment, which service was renewed immediately upon payment and request, does not entitle him to recover thereon for mental suffering alone, there being no personal injury, damage to property, or other loss sustained. Appeal from District Court, Hill County; Norton B. Porter, Judge. Suit by H. G. Taylor against the Texas Power & Light Company. Judgment for plaintiff. Defendant appeals. Reversed and rendered. Templeton, Beall & Williams, of Dallas, and Collins, Morrow & Morrow, of Hillsboro, Frazier, all of Hillsboro, for appellee. J. J. Averitte and Wear & for appellant. RAINEY, C. J. Appellee sued appellant to recover actual damages in the sum of $600, and exemplary damages in the sum of $1,000, alleged to be due for a wrongful and malicious discontinuance of electric light from his residence, the purpose being to punish appellee and to injure him in his credit and reputation, and for the purpose of causing him pain and mental anguish and chagrin, etc. Appellant answered by general and special exceptions, general denial, and specially that appellee had been notified of one monthly bill |