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strong enough to support the weight of appellee.

Lee & Halpin "willfully" furnished any ma-
terial whatever that caused the place where
appellee was working when injured to be in- [6] We are further of the opinion that the
herently dangerous. The word "willful" or court did not err, as complained of in appel-
"willfully" is variously construed. Among lants' eighth assignment of error, in admit-
other definitions, it is said that it means, ting in evidence the contract between appel-
not merely voluntarily, but with a bad pur-lants and Dallas county. As said by counsel

pose. Used in connection with the word for appellee:
"knowingly," as it is in the charge in ques-
tion, it would seem that the jury might con-
clude that the trial court was of opinion
that there was some evidence which might
authorize a finding that the defendants Cor-
rigan, Lee & Halpin, with a bad purpose or
evil intent, furnished Gilkison material
which, either alone, or together with the
method adopted in doing the work in which
appellee was engaged, caused the place
where he was at work when injured to be
inherently dangerous. There was no such
evidence, so far as is disclosed by the record,
and the use of the word "willfully," if the
charge in any event embraced an issue which
should have been submitted to the jury and
was otherwise proper, was calculated to un-
duly affect and influence them to the preju-
dice of appellants in arriving at a verdict.
This much has been said with respect to
the charge, more especially in view of an-
other trial of the case.

"Inasmuch as the contract with Dallas county by the defendant firm contained an agreement sublet any part of the work incident to the on the part of such firm that they would not contract, without the written consent of the county, and, inasmuch as it was shown that vision of the contract was a declaration of inthere was no such written consent, such protention not to so sublet, and was therefore an admission to be considered by the jury for what it was worth, that the contract with Gilkison was not one of subletting."

The court instructed the jury not to consider the contract, except as it might tend to show whether or not there was an independent contract made between the defendants Corrigan, Lee & Halpin, and W. D. Gilkison, and for no other purpose. We think the contract was clearly admissible for the purpose stated in the court's charge, and, in view of the limitation placed upon its consideration by the jury, appellants have no just cause of complaint.

There are assignments of error that have not been discussed. They either present questions that have been disposed of adversely to appellants in the disposition made of assignments that have been discussed, or that are not at all likely to arise upon another trial, or which afford no good reason for reversal.

For the reasons indicated, however, the judgment is reversed, and the cause remanded.

Reversed and remanded.

[4] There was no material error in admitting the testimony of the plaintiff, Heubler, to the effect that the boards in the column on which the alleged accident occurred bore concrete stains. The testimony seems to have been offered in support of appellee's theory that said boards were secondhand lumber and defective, and it appears that the witness was familiar with the use to which the lumber is question had been put, and testified, in substance, that the use of the lumber about which he was speaking, in connection with the column, was not such as to expose it to concrete stains, and that the

stains upon it must have been received at GULF REFINING CO. et al. v. BROWN

LLOYD CO. (No. 7144.)

some other place. If, however, it be conceded that the statement of the witness was a mere conclusion, still its admission does not constitute reversible error, for the reason, if no other, that the same testimony substantially was given by other witnesses without

(Court of Civil Appeals of Texas. Dallas.
May 2, 1914. Rehearing Denied
May 23, 1914.)

1.

SALES (8 71*)-CONSTRUCTION-QUANTITY. tiff, who used it in mixing its paints, provided A contract for the sale of gasoline to plainfor the sale of a stipulated quantity during the period of 12 months, or such quantity as plaintiff might require for its own consumption. Held, that the stipulated quantity was merely an estimate of what might be needed, and plaintiff could not, shortly before the expiration of the contract, compel delivery of the full stipufor its own consumption. lated quantity, although it was not necessary

objection.

[5] Nor do we think the court erred in admitting the testimony of the plaintiff, Heubler, to the effect that, had a good piece of ship-lap been used in the construction of the column from which appellee fell, it would not have broken with a man of appellee's weight. Appellee was a carpenter, familiar with the strength of the character of lumber in question, and sufficiently qualified himself as an expert to testify as to the relative strength of a good piece of ship-lap lumber, and the piece which is alleged to have given way and caused appellee to fall from the column, and whether or not the piece that gave way was

In construing a written contract, words used should be accepted in their ordinary and that they were used in a different sense. popular sense, unless there is something to show

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.*]

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.*] 2. CONTRACTS (§ 152*)-CONSTRUCTION.

Appeal from Dallas County Court; W. F., ness within the remaining 10 days of the Whitehurst, Judge.

Company

Action by the Brown-Lloyd against the Gulf Refining Company and others, begun in justice's court and appealed by defendant to the county court, where, judgment being again rendered for plaintiff, defendants again appeal. Reversed and rendered.

D. Edward Greer, of Beaumont, and Etheridge, McCormick & Bromberg, of Dallas, for appellants. John L. Young, of Dallas, for appellee.

RASBURY, J. Appellee sued appellant in the justice court for $200, alleging such sum to be the difference between the price appellee paid in the market for certain gasoline

and the price at which appellant had contracted to sell it to appellee, but which appellant had declined to do. Upon trial in justice court without jury, judgment was for appellee. There was an appeal to the county court at law, and trial de novo before the county judge, who also rendered judgment for appellee, from which this appeal is taken. No issue arises upon the pleading, and it is unnecessary to relate them further than we have. In fact, the issues presented by the briefs arise wholly upon certain undisputed facts and the construction to be placed upon the contract between the parties. The appellee, at the time the contract was entered into, was a private corporation engaged in outdoors advertising, and painted signs for its customers who advertised in It used considerable gasoline in mixing its paints. To secure gasoline for such purpose, appellee contracted with appellant, from whom it had previously been purchasing gasoline. Omitting formalities and references to delivery, payment, and other matters and conditions not at issue, the contract provided as follows:

that manner.

"That first party sells and agrees to deliver to second party, and second party agrees to purchase and receive from first party, during the period of twelve months, commencing March 1st, 1912, 5,000 gallons of gasoline at 10% cents per gallon, or such quantity of the above products as second party may require for its own consumption."

contract. There is other testimony in reference to the motives of both parties in relation to their respective attitudes toward the contract and the construction each placed upon the contract, but we do not think such facts material, and for that reason omit detailing same.

Appellee's construction of the contract is in effect that appellant was bound to furnish appellee on demand, at any time before the expiration of the contract, the 5,000 gallons of gasoline specified therein, since there was an absolute sale of that amount, and in ad

dition as much more as was required by appellee for consumption in its business. Apother hand, is in effect that the intention of pellant's construction of the contract, on the the parties, as evidenced by that portion of of the above product as second party may rethe contract that recites, "Or such quantity quire for its own consumption," was that

appellee should have whatever amount his business required, and that the specification of 5,000 gallons was in legal contemplation but an estimate of the amount appellee would probably consume.

[1, 2] The precise question, involving facts practically identical with those in the instant case, was decided adversely to appellee in Gulf Refining Co. v. Pegues Mercantile Co., 164 S. W. 1113.

The latter

In construing such contracts precisely, what the parties intended must be determined according to the plain import and the ordinary or popular significance of the language used therein. By the provisions of the contract under discussion, the appellant agreed to furnish appellee 5,000 gallons of gasoline or as much as was required by appellee for its own consumption. portion of the clause undeniably modifies what precedes it, and in our opinion it cannot intelligently be maintained that the purpose of the contract, as evidenced by its terms and the testimony of appellee's witnesses, was other than to furnish appellee whatever amount of gasoline it might require for its own consumption, whether the amount so required was more or less than 5,000 gallons. Such conclusion is sufficiently support

In pursuance with the terms of the fore-ed by the modifying portion of the contract, going contract, the parties operated without but is also sustained by appellee's witness, differences until February 18, 1913, 10 days who concedes the consumption or use of gasbefore the expiration of the contract, at oline by appellee was only for mixing paints, which time appellee demanded 1,600 gallons and that they contracted for no other purof gasoline, which would not have exceeded pose. The 5,000 gallons specified could not the 5,000 gallons specified in the contract. have been intended as an absolute sale at all Appellant declined to deliver the amount de- events of that much gasoline, for, if it had manded, but did offer to deliver to appellee been, both parties would have concluded the daily on each of the remaining 10 days an agreement with such clear, unequivocal specamount of gasoline equal to the largest ification. Counsel for appellee recognize the amount appellee had ever demanded during force of such conclusion as we have said, and any one day. This appellee declined, insist- seek to avoid same by the claim that the paring on his demand for 1,600 gallons. Appel- ties intended to sell the 5,000 gallons outlee used gasoline for no purpose other than right, and in addition thereto as much more in mixing paints, and it could not have con- as appellee required for its own consumption,

164

substituted for "or," which is a rule of law in some cases, and that the word "require" should be given its literal meaning, rather than the meaning intended by the parties as gathered from the contract and the testimony. We think the contention unsound. However, the meaning to be given the word "require" is immaterial, since to construe it to mean all the gasoline "called for," as urged by appellee, would only mean all "called for" "for its own consumption," and it is undisputed that such amount was furnished. To substitute "and" for "or" would make it necessary to destroy almost entirely the modifying clause placed in the contract by the parties, since, in order to make complete appellee's construction, it would also be necessary to strike out the word "consumption" so as to make the concluding paragraph read as appellee argues the parties intended it should; i. e., “and in addition such quantity of the above product as second party may call for during the period of the contract.” As we have said, the rule is that to words contained in a contract there shall be applied the ordinary and popular sense, unless there is something to show they were used in a different sense. Here the contract was to furnish 5,000 gallons of gasoline modified by the parties as meaning more or less if appellee required it in its business, and, since such is the last word, the conclusion is inescapable that the specification of the number of gallons was but an estimate of the probable requirements of appellee, and, since it is conceded that appellee demanded more than was necessary for such purpose, and refused to accept an amount that would have met its actual needs, it was not entitled to recover any sum.

So viewing the controversy, it becomes necessary to reverse the judgment of the county court at law and here render judgment in behalf of the appellant.

Reversed and rendered.

DENCE.

Evidence, in trespass to try title to certain land alleged to be a part of survey No. 188, and to be a strip lying between the plotted part of such survey and the east boundary line thereof, held not to show the location of the east boundary line.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*] 2. BOUNDARIES (§ 33*)-BURDEN OF PROOF.

In trespass to try title to a strip of land lying between the plotted part of a survey and the east boundary line thereof, the plaintiff had the burden of showing the true location of such line, and of furnishing testimony by which the court could ascertain and by its judgment fix

such line.

3. EVIDENCE (§ 471*)-FACT OR CONCLUSION -SURVEY.

(Tex.

that the section was never actually surveyed In such action, the statement by a witness he further testified that he got that idea beupon the ground was clearly speculative, where cause the field notes do not call for any corners on the ground.

Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]
[Ed. Note. For other cases, see Evidence,
4. EVIDENCE (§ 83*)-PRESUMPTION-SURVEY.

must be presumed that surveyors, in making a
In the absence of proof to the contrary, it
survey, did their duty and marked the corner
thereof with some object of reasonable perma-
survey was actually made on the ground.
nence, and the presumption is that the original

Cent. Dig. § 105; Dec. Dig. § 83.*]
[Ed. Note. For other cases, see Evidence,

Appeal from District Court, Potter County; James N. Browning, Judge.

Trespass to try title by Coke W. Harkrider against J. R. Gaut and others. Judgment for defendants, and plaintiff appeals. Affirmed.

HARKRIDER v. GAUT et al. (No. 603.)
(Court of Civil Appeals of Texas.
April 25, 1914. Rehearing Denied
Amarillo.
May 23, 1914.)

Plaintiff, by mesne conveyances, has shown himself entitled to recover any portion of sec

1. BOUNDARIES (§ 37*)-SUFFICIENCY OF EVI-tion No. 188 which the evidence shows not

to have been platted in the town, and which might not be construed to be included within the terms of the deeds of the several defendants. The original plat of the town of Amin evidence, though it does not appear in the arillo, filed on May 29, 1888, was introduced statement of facts. several lots and blocks thereon extend to the It does appear, however, from the statement that this plat shows the line of the survey. tified that he was living at Amarillo, and was The witness Wetsell tesinterested in the title to the property at the time the plat was made, and that the section was actually surveyed, and the entire section platted, and it was agreed that it was the in

Cooper, Merrill & Lumpkin, of Amarillo, for Y. W. Holmes, of Plainview, for appellant. appellees.

suit in trespass to try title and for damages. HALL, J. [1] Appellant instituted this Thereafter he acquired title from a number of other persons and filed an amended petition, in which he claims certain lands alleged to be a part of survey No. 188, in block 2, A. B. & M., surveys in Potter county; such land being a strip lying between the plotted portion of said survey and the east boundary line thereof. Appellees answered by a plea of not guilty, pleas of three and five years' limitations, estoppel, and further alleged that survey into lots and blocks, and called the plaintiff's grantors had plotted all of said same the town of Amarillo, and by said plot it was made to appear that each of the lots owned by appellees extended to the east boundary line of the survey, and that plaintiff was estopped from claiming otherwise. After the evidence was all in, the court peremptorily instructed the jury to find for the defendants.

[Ed. Note.-For other cases. see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tention of the owners of the section at the time to do so. Plaintiff offered in evidence the deposition of Twichell, a surveyor, to prove the location of the boundary line on the east of said survey. His testimony upon this point is in substance that he surveyed the line between sections 188 and 169 and marked them and gave a corner for each section by driving down an iron pipe; that this was about 24 years ago; that he found the original corners on the ground at the northeast corner of section 163, block 2, and the northwest corner of section 15, block 1, and at the northeast corner of section 41, block 1. He then proceeded as follows:

"I then ran south following a line which had been marked by a previous survey, but not the original survey, and I ascertained that this line would cause block 2 to conflict with block 9 on the west, so I determined where the true south would place this line, and I found it would fall considerably east of where I had placed it, and

that there was more than room to relieve the conflict. I then retraced the line, placing it far enough east to relieve the conflict, and measuring exactly 1,900 varas to the mile to the south from the northeast corner of 163, so tracing the east line of sections 163, 164, 165, 166, 167, 168, and 169. I then placed the corners for the east line of section 188 at right angles west from the east corners of 169, 1,900 varas."

know whether he checked back on Twichell's survey or not.

[2] Giving this evidence all the force to which it is entitled, we think it fails to establish the location of the east line of section 188. The burden is upon the plaintiff to show the true location of this ne. As said by Key, Justice, in Rosson v. Miller, 15 Tex. Civ. App. 603, 40 S. W. 861:

"In order to enable the court to render a judgment fixing the line in dispute, and settling plaintiff, not merely to show in general terms the question of boundary, it devolved upon the that the defendant had inclosed more land than he was entitled to, but to furnish testimony by which the court could ascertain and define exactly where the line should be run that would restore to the plaintiff the excess so held by the defendant; and such testimony was not furnished."

The fact that the line was at some point east of where it was attempted to be located by Twichell's survey, under this authority, is not sufficient upon which to base a judgment.

[3] The statement by Trigg that section 188 was never actually surveyed upon the ground is clearly speculative upon his part. Aransas Pass Colonization Co. v. Flippen, 29 S. W. 813.

[4] It is said by the Supreme Court, in Thatcher v. Mathews, 101 Tex. 122, 105 S. W. 317, that, in the absence of proof to the contrary, it must be presumed that surveyors, in making a survey, did their duty and marked the corner thereof with some object of reasonable permanence; and in Wilkins v. Clawson, 50 Tex. Civ. App. 82, 110 S. W. 103, the doctrine is announced that the presumption is the original survey of the league was actually made on the ground. Kuechler v. Wilson, 82 Tex. 645, 18 S. W. 317; Maddox v. Fenner, 79 Tex. 279, 15 S. W. 237. Twichell does not state that the pipes used by him in establishing corners are along the line originally surveyed, but expressly states that his survey was based on a line subsequent to the original survey. We have not undertaken to discuss appellant's assignments and authorities in detail. It appears that the court peremptorily instructed the jury because of the failure of the evidence to show the location on the ground of the east line of said section 188. In this we think the court was correct. The judgment is affirmed.

Howard Trigg testified that there was a difference between the land platted into lots and blocks and the line as established by W. D. Twichell; that he knew the location of the iron pipes that marked the corners be tween 169 and 188 were set by Twichell. Al. so testified that he found cedar stobs marking on the ground the lots and blocks of the town of Amarillo, and that they checked up with the railroad; that the line he took for the east boundary line of section 188 was the line marked by Twichell. It appears that the original monuments mentioned by Twi. chell in his testimony are called for in the field notes of section 163, and also of sections 12, 15, and 41. Trigg testified that he resurveyed 188 and connected back to the original corners of the block at different times; that he had laid out section 188 and knows something about the original survey; that he had the field notes of the original survey be fore him and traced them; that he found no original corner of 188, because there is none to be found on the ground; that it was never surveyed on the ground at the time of the original survey; that he began surveying in this country in 1898 for the Santa Fé; COLLIN COUNTY NAT. BANK v. TURNER that he gets the idea that the original section was not located on the ground because the field notes do not call for any corners on the ground. There are no original corners to look for. The field notes do not call for anything.

et al. (No. 1302.) (Court of Civil Appeals of Texas. Texarkana. April 23, 1914. Rehearing Denied May 7, 1914.)

1. BANKS AND BANKING (§ 171*) - COLLECTIONS LIABILITY FOR WRONGFUL ACTS.

On cross-examination, however, he testified that they called for a stake and mound. He further testified that Twichell may have marked the line of 188, but he had checked it back to the original corners, but did not

Where a bank, which received and accepted drafts with bills of lading attached, indorsed in blank by the shipper, with the shipper's written instructions that they should be delivered in violation of the instructions and without auto the S. Company upon payment of the drafts, thority permitted the bills of lading to be de

its agent for whatever sum it may have to pay on the plaintiff's cross-action against it as principal. The Collin County National Bank answered both the petition and cross-action by demurrer, exceptions, and general denial, and pleaded the statute of limitations. There was a trial to the court without a jury, and judgment was entered for the plaintiff against both banks, and in favor of the First National Bank of Wortham on its crossaction against the Collin County National Bank. The appeal is by the Collin County National Bank.

The findings of fact made by the court are warranted by the evidence, and are as follows:

"I find that on July 29, 1905, the plaintiff shipped a car of oats containing 273 sacks, from Richland, Tex., to Breaux Bridge, La., shipper's order, notify Southwestern Grain Company of McKinney, Tex., and that on July 31st he shipped a car of oats containing 322 sacks from Richland, Tex., to Breaux Bridge, La., shipper's order, notify Southwestern Grain Company, McKinney, Tex., and that each of said sacks contained 4 to 42 bushels of oats, and that said oats were worth 30 cents per bushel at Breaux Bridge, La., and at Richland, Tex.; that the Southwestern Grain Company had bought said oats from plaintiff and had agreed to pay 30 cents per bushel therefor.

"I further find that on the 31st day of July the plaintiff gave to the defendant First National Bank of Wortham two drafts, one for $296.55, the purchase price of the first car of oats, and one for $350.05, the purchase price of the last car of oats, said draft having the bills of lading attached, and that said bills of lading were indorsed in blank by plaintiff, and that plaintiff instructed said bank to collect the same and to deliver said bills of lading only on payment of said drafts. And I find that defendant First National Bank of Wortham sent with said drafts and bills of lading written instructions to this effect, to the Collin County National Bank, which bank received said drafts upon July 31, 1905.

"I further find that said cars of oats went to Breaux Bridge, La., and that the Collin County National Bank of McKinney, Tex., permitted the bills of lading to be detached from plaintiff's draft without paying the same, and to be attached to the Southwestern Grain Company's drafts on A. Steen, of Breaux Bridge, La., and that the Collin County National Bank forwarded such drafts of Southwestern Grain Company so attached to a bank at Breaux Bridge, La., for collection. I find that the Appeal from District Court, Collin Coun- drafts of the Southwestern Grain Company on ty; G. R. Smith, Special Judge. A. Steen were for a greater amount than the drafts of plaintiff.

Collin
From

Action by C. J. Turner against the
County National Bank and another.
a judgment against it, the defendant named
appeals. Affirmed.

See, also, 111 S. W. 670.

"I further find that after said bills of lading with the drafts of the Southwestern Grain Company attached thereto had been received by the bank at Breaux Bridge, La., the said A. Steen, to whom the Southwestern Grain Company had contracted to sell said two cars of oats, went to the bank and examined said bills of lading and drafts attached thereto, and thereafter caused the said two cars of oats to be attached as the property of the said Southwestern Grain Company on account of some indebtedness which he, the said A. Steen, claimed against the Southwestern Grain Company, and that the said two cars of oats were sold at sheriff's sale to satis| fy said claim of A. Steen against the said grain company. "I further find that the bank at Breaux Bridge, La., subsequently returned the said bills of lading to the Collin County National

tached from the drafts and attached to different drafts drawn by the S. Company on a third party, thereby placing the apparent legal title to the shipment in the S. Company and enabling and causing its creditors to attach and sell the shipment as its property, it was liable as for conversion for the damages thereby occasioned the shipper.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. 88 597-617; Dec. Dig. § 171.*]

2. LIMITATION OF ACTIONS (§ 127*)-COMPUTATION OF PERIOD OF LIMITATION-AMENDMENT OF PLEADINGS.

Where, in an action against a bank receiving drafts for collection, which in violation of its instructions detached the attached bills

of lading and attached them to others drawn by the consignee, as a result of which the consignee's creditors attached and sold the shipment, the original petition filed in time to stop the running of limitations alleged the facts in respect to detaching the bills of lading and the loss occasioned thereby, and was sufficient as against a general demurrer to set up default or conversion, the cause of action was not barred by limitations, though an amended petition making the allegations more specific was filed after the expiration of the period of limitation. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]

3. LIMITATION OF ACTIONS (§ 56*)-COMPUTATION OF PERIOD OF LIMITATION-COMMENCE

MENT OF PERIOD.

Limitations would not run against the right of action of a bank which received drafts for colection against another bank to which it forwarded them and which detached the attached bills of lading and attached them to others drawn by the consignee until it paid the judgment recovered against it by the drawer.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 307-311; Dec. Dig. § 56.*]

4. BANKS AND BANKING (§ 175*) - COLLECTIONS-MEASURE OF DAMAGES FOR WRONGFUL ACTS.

The measure of damages for the act of a bank to which drafts were sent for collection in detaching the attached bills of lading and attaching them to other drafts drawn by the consignee enabling the consignee's creditors to attach and sell the shipment was prima facie the face of the drafts which represented to the bank's knowledge the contract amount payable by the consignee.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 634-652; Dec. Dig. § 175.*]

The suit is by C. J. Turner against the First National Bank of Wortham and the Collin County National Bank for damages occasioned by surrendering, contrary to instructions, a bill of lading accompanying a draft

received and forwarded for collection. The petition fully averred the facts. The First National Bank of Wortham pleaded general denial, and by cross-action sought to recover against the Collin County National Bank as

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