erence to the sale of the real estate by plain- | pany. He did not pay me that money he tiff to Hubbard and the agreement that $600 owed at the time the contract was entered inof the contract price therefor should be paid to, but he paid it through me. He never has by Hubbard to the Realty Company or to its paid me the indebtedness he owed me at the laborers engaged in the building of plaintiff's time the contract was entered into, but I canhouse, instead of paying said sum directly to celed it. He owes me now the difference in plaintiff, and that plaintiff should receive the contract for not completing the building. credit therefor on the building contract, ma- I had an understanding with Mr. Hubbard at terially changed the terms of the original that time that this money should be applied contract, that such change was authorized that way. I did not have any trouble with by the provision of the bond above quoted, Mr. Hubbard except that he stopped work on and that the sureties on said bond were not the building, and I could not get my house. discharged thereby. We think, however, the It come pay day, and Hubbard did not have case must be reversed and remanded as to all the money to pay the laborers, and the laborof the defendants except J. A. Hubbard. As ers were threatening to quit work, and they neretofore shown, appellant alleges, in effect, asked me to pay it, and I told them no that that by the terms of the contract entered into Mr. Hubbard was to pay it, but I was there for the erection of his house he was author- to see that it was paid, and Mr. Hubbard ized, in the event of the failure or refusal of went over into town and borrowed it and the Hubbard Building & Realty Company to come back and paid it off, and I saw him complete said house, to provide such labor count out the money to the laborers. He paid and material as was necessary to finish the it to the contractors and laborers. At the same, and, if the expenses incurred thereby time I let the contract to Mr. Hubbard it was exceeded the unpaid balance on the contract agreed between he and I that he was to pay price, then the said company was to pay such me that $600. Then he said: 'What's the difexcess to plaintiff. The burden of proof was ference? I will pay it out to the workmen therefore upon plaintiff to establish, not only and you can go there and see that I do pay that the defendant company failed to com- it out. That is the same as if I paid you and plete said house, but that he, in order to do you paid it back to me.' I don't mean to say so, was compelled to expend a greater sum that I saw Mr. Hubbard go out and get the than the price agreed to be paid said defend- money and bring it back over there. I did ant and the amount thereof. To do this it not see him go and get it, but he went off and became necessary to show that the $600 which I saw him come back with it. I don't know J. A. Hubbard had agreed to pay for plaintiff how much he had, but I do say I saw him by reason of the land transaction mentioned pay the laborers. There were eight, ten, or had in fact been paid by him and paid out of twelve men around there. I thought he paid his individual funds, and not with funds out about $600. It was for that week's work belonging to the Hubbard Building & Realty and expenses. I suppose that was J. A. HubCompany. As has been seen, appellee Bryant bard's money, because he paid it out on the contends that the evidence offered in proof contract. I do not know whose money it was of such payment by J. A. Hubbard was so as far as I am concerned, but he had it." lacking in probative force that such an issue was not thereby raised, and hence the court upon that phase of the case properly instructed a verdict for appellee. With this contention we do not agree. Appellant, who alone testified touching the matter, says: "As to whether I paid that $600 to the Hubbard Building & Realty Company, I do not hardly know how to answer your question, but it was just the same thing, because, if Mr. Hubbard had paid me, I would have paid him back. I did pay these estimates in good and lawful money of the United States to the Hubbard Building & Realty Company, all except that $600, provided you do not consider that such a payment. I considered that I paid all of it, the whole thing, in money. If you want to get down to a fine point, I did not exactly pay that first $600 in money, but it was the same thing. On the 3d day of March, 1906, J. A. Hubbard was personally indebted to me in the sum of $600, which indebtedness arose by my selling him my old home place, and that $600 was part payment from him to me on that old home. I consid

We think the testimony was sufficient to justify the inference that the $600 in question was paid by J. A. Hubbard out of his individual money, and therefore required the submission of that issue to the jury for their determination. If said sum was so paid by Hubbard, then plaintiff has fully complied with his part of the building contract, and if, upon another trial, the evidence is the same as shown by the record now before us, and it should be found that said sum was so paid by Hubbard, plaintiff will be entitled to recover judgment for the amount sued for by him against the defendants the Hubbard Building & Realty Company, Louis Longbotham, and C. A. Bryant. If it should be found that it was not so paid, but paid with money belonging to the defendant Hubbard Building & Realty Company, then, as said sum exceeds the amount sued for, plaintiff will not be entitled to recover against either of the said last-named defendants.

It is therefore ordered that the judgment of the lower court in favor of plaintiff against J. A. Hubbard be affirmed, and, for the error

[Ed. Note. For other cases, see Appeal and which the same was constructed, and reError, Dec. Dig. § 1068.*]

5. CONTRACTS (§ 212*) — TIME FOR PERFORM-vember, 2,260 during the month of December,

Appeal from District Court, Orange Coun- value to him and a total loss, and he was ty: W. B. Powell, Judge.

terms and conditions hereinafter set out, | There is set out in full the charge by the plaintiff has suffered damage in the sum of court on the same subject, which it is in$15,000, and in this connection it shows to the sisted is erroneous. court that said boat could have been operated at a net profit to plaintiff of $750 per month in either raising logs or recovering logs, and said contract could have been reasonably worth to plaintiff the sum of $15,000 had the same been in good faith entered into as agreed by defendant and in good faith carried out, and because of all of which plaintiff has been damaged in said sums aforesaid." Additional damages are claimed on the ground that plaintiff built a boat for this special purpose, which was useless for any other, and that plaintiff lost in building said boat three months' time, worth $150 a month. Defendant answered by general demurrer and several special exceptions, which, inasmuch as there was no ruling on any of them, need be here noticed. Defendant also made general denial. The testimony of appellant tends to show that he entered into a contract with appellee of the general character of that stated in the petition. It, however, tends to show that a verbal contract was made, and not that appellee agreed on certain conditions to enter into the contract, but that it agreed to put the verbal contract in writing, which appellant was inclined to insist upon, but which seems not to have been considered essential by either party, as appellant went ahead, built his boat, and did several months' work, for which he was paid before he was stopped by appellee. He further testified that appellee agreed to give him such work for two years or more, or that the work would last that long.

There is no merit in the first assignment of error. Appellant is in error in the statement of fact that appellee demurred to the evidence, and of law, as to the legal consequences, if he had done so. Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007.

There was no error in the refusal to give the charge requested referred to in the second assignment. The charge given by the court covered the same ground. Strictly speaking, it was not correct to interject the condition that plaintiff "was competent to comply with and perform his part of the contract," as there was no issue presented either by the evidence or pleading as to his competency. The court simply used the wrong word, meaning "ready" or "equipped"; and we do not think the jury was misled thereby. We are not disposed to follow the extremely technical decisions in cases where the charge requested is merely couched in better, simpler, or more accurate language than the one given by the court.

The third assignment of error is barely sufficient to require consideration. It presents the alleged error of the court in refusing appellant's requested charge No. 2. The requested charge is not set out even in substance, but we are referred to the page

The fifth assignment assails this charge as given, and it will be sufficient to consider that assignment. This charge must be held to be erroneous. The jury was instructed that in arriving at the amount of profit plaintiff may have made all the expenses of building the boat must be taken into consideration along with other expenses of carrying out the contract, to be deducted from the amount to be realized for the work. This was error. This was not a part of what would have been the expense of carrying out the contract and earning the price, which was saved to appellant by stopping the work, and which must be deducted from the price in estimating the profits. The expense with regard to the boat had been incurred by appellant to the extent, according to the petition, of $450, and it would rather seem that this should be added to, rather than subtracted from, the other damages (Hutt v. Hickey, 67 N. H. 411, 29 Atl. 456), but this question is not raised by the charge, nor any request to charge. We think that it would be proper to deduct as part of the expense of carrying out the contract a reasonable compensation for the services of appellant, confining this, however, to such services as he would have personally rendered in the matter. Long v. McCauley (Sup.) 3 S. W. 691. As the jury rendered a verdict for defendant, it might be urged, but is not by appellee's brief, that it is apparent that such verdict is predicated upon the issue of liability vel non, and that in such case an erroneous instruction on the measure of damages does not require a reversal. We cannot, however, be sure that the verdict is not based upon a finding that appellee breached the contract as alleged, but that no damages assessed by the rule laid down were shown. For this reason the fifth assignment is sustained, which requires a reversal of the judgment. In view of another trial, we call attention to the confusing language at the end of this charge.

There was no error in that portion of the charge referred to in the fourth assignment. Appellant's testimony authorized the limitation of two years as the term of the life of the contract.

That portion of the court's charge objected to in the sixth assignment of error is misleading. As set out, it is error. If there was no time expressed within which appellant was to do the work, the law would imply that it was to be done within a reasonable time. Under the facts of this case, this issue was not presented. We are inclined to think that what the court really meant was that if under the contract the employment was not to continue for any specified time either party would have the right to put an end to it at any time, and this would be

second complaining of so much of the charge of the court as submitted to the jury the question of ratification of an alleged agreement by agents fixing a boundary line, the objection being that such ratification was not pleaded. In disposing of these two assignments we hold that the testimony justified the submission of the question of limitation; and, this being an action of trespass to try title, it was not necessary for the plaintiff to specifically plead the agreement settling the disputed boundary line, and rat ification thereof.

except the element of time of employment. | timony bearing upon that question; and the Railway Co. v. Mitchell, 38 Tex. 95. As the case is presented by the pleadings, which make no reference to any time during which the employment is to continue, and the evidence, we are unable to say whether the contract was to reclaim all of the logs then stranded or sunk or to do such work for a specified time. If there was neither element in the contract-that is, if it did not embrace any definite quantity of logs, certain or capable of being made certain, nor any specified time of employment-we think either party could discontinue the contract at any time on reasonable notice. This question does not seem to be clearly presented by either the pleadings or evidence.

For the errors indicated, the judgment is reversed and the cause remanded. Reversed and remanded.

On Motion for Rehearing.

We are inclined to think that we were in error in the portion of the opinion in which it is said that if the contract did not em

brace any definite quantity of logs, certain or capable of being made certain, nor any specified time of employment, either party could discontinue the contract at any time "on reasonable notice." The error was in

adding to what was said about the right to discontinue the contract, the condition "on reasonable notice." This language we desire to withdraw.

The motion for rehearing is overruled.

CUNEO v. ZILKER.

No error has been pointed out, and the judgment is affirmed.

A finding on special issues, in a suit by the husband for the adultery of the wife, that the husband after knowledge thereof had "admitted her into his conjugal society or embraces" is a finding that he condoned her conduct after acquiring knowledge of her acts.

[Ed. Note.-For other cases, see Divorce, Cent.

Dig. § 497; Dec. Dig. § 149.*]

2. DIVORCE (§ 197*)-DENIAL OF DECREE-ATTORNEY'S FEES.

Where the court, in a suit by the husband for divorce, in which the wife by a cross-action sought a divorce, refused to grant a divorce to either party, it could not render a judgment for the wife against the husband for attorney's fees and costs, and make the same a charge against the personalty belonging to the marriage. [Ed. Note.-For other cases, see Divorce, Cent.

(Court of Civil Appeals of Texas. Feb. 2, Dig. § 582; Dec. Dig. § 197;* Husband and Wife, Cent. Dig. § 137.]

1910.)

BOUNDARIES (§ 32*)-PLEADING-AGREEMENT
SETTLING BOUNDARY.

TORNEY'S FEES.

On Rehearing.

In trespass to try title, plaintiff need not 3. DIVORCE ($ 221*)-DENIAL OF DECREE-ATspecially plead an agreement by agents settling the disputed boundary line, and the ratification of such agreement, in order to avail himself thereof.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. § 145; Dec. Dig. § 32.*]

Where a divorce as prayed for by both husband and wife was refused, attorney's fees in favor of the wife against the husband were not recoverable as alimony, under Sayles' Ann. Civ. St. 1897, art. 2986.

[Ed. Note.-For other cases, see Divorce, Cent.

Appeal from District Court, Travis Coun- Dig. § 642; Dec. Dig. § 221.*] ty; Geo. Calhoun, Judge.

Action by A. J. Zilker against A. E. Cuneo. From a judgment for plaintiff, defendant appeals. Affirmed.

4. DIVORCE (§ 197*)-DENIAL OF DECREE-ATTORNEY'S FEES.

The attorney's fees were not recoverable as costs of the suit.

[Ed. Note.-For other cases, see Divorce, Cent.

Allen, Hart & Patterson, for appellant. Dig. § 582; Dec. Dig. § 197.*] Geo. E. Shelley, for appellee.

KEY, J. This is an action of trespass to try title, which resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

The case is presented in this court upon two assignments of error-the first asserting that the question of the plaintiff's title by limitation should not have been submitted to the jury, because of the lack of tes

5. DIVORCE (§ 197*)-DENIAL OF DECREE-AT-
TORNEY'S FEES.
Where, in a suit by the husband for di
vorce, in which the wife filed a cross-petition for
divorce, the court refused a divorce to either, the
attorney's fees incurred by the wife, if recover-
able from the husband, were recoverable because
it was necessary for the wife to incur them in
the preservation of her rights, but the right to
recover them arose in favor of the attorneys ren-
dering the service.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. § 582; Dec. Dig. § 197;* Husband and Wife, Cent. Dig. § 137.]

Appeal from District Court, Harrison Coun- | longing to the community estate between apty; R. W. Simpson, Sitting in Exchange pellant and appellee, which property he diwith W. C. Buford, Judge. rected should be sold in satisfaction of the Consolidated actions by Manson Hill against | judgment, canceling the alleged vendor's lien Lula Hill, in which defendant filed a cross-note, and perpetually enjoining Charlie Hill petition, and by Lula Hill against Charlie from enforcing the judgment secured by him Hill and others. From a judgment granting in a justice court foreclosing his alleged relief to Lula Hill, Manson Hill appeals. Af- mortgage lien. After he had rendered a judgfirmed in part. Reversed in part. ment as stated, the court, at the request of On the ground that she had been guilty the parties, made findings of fact not made of adultery with one Sylvanus Coach, appel- by the jury, which, together with his conlant sued appellee for a divorce. She anclusions of law, he reduced to writing and swered, denying the charge, alleged that filed with the papers in the case. Among without cause appellant had abandoned her, others, the court found as facts: That appellee by her own labor, and unaided by appeland on the ground of cruel treatment, by a cross-action, sought a divorce from appel- lant, during the year 1909 had grown a crop on the land referred to; "that the mortgage lant, and a decree awarding to her the possession of a tract of about 60 acres of land, upon the crop for the year 1909, as well as constituting their homestead, and of certain the personal property belonging to the compersonal property exempt to appellant un-munity and lien upon same retained in the der the law. Both the land and the personal judgment, is for her attorney's fees, and Manproperty belonged to the community estate son Hill did not agree to the granting of between appellant and appellee. Pending the said lien, and was not a party thereto;" and suit one Nolan, appellant's brother, it seems that the allowances for attorney's fees were commenced a suit against him in the same made on appellee's application therefor to court to foreclose an alleged vendor's lien cover services of attorneys representing her reserved to secure a note given for a part in the divorce and injunction suits and in the of the purchase-money of the land, and Char- suit to foreclose the alleged vendor's lien, lie Hill, also appellant's brother, in a suit and that same were fair and reasonable. As commenced in a justice court, obtained a matters of law the court concluded: That judgment foreclosing a mortgage lien assert- the land was the homestead of appellant and ed by him on certain of the personal prop- appellee; that the personal property was erty referred to. At the suit of appellee, exempt from forced sale; that the attorinstituted in the court rendering the judg-ney's fees allowed were necessarily incurred ment from which this appeal is prosecuted, by appellee in defending the divorce suit and the enforcement by Charlie Hill of the judgment obtained by him was enjoined. pleadings in the suit to foreclose the alleged vendor's lien and in the injunction suit are not in the record on this appeal, but it seems that appellee's contention in those suits was that the indebtedness claimed, respectively, by Nolan and Charlie Hill against appellant was fictitious, and that the latter, in collusion with his brothers, was asserting same to exist for the purpose of defrauding her of her rights in connection with the property. By agreement of the parties, it is recited in the judgment appealed from, the injunction suit, and the suit to foreclose the alleged vendor's lien were consolidated with the divorce suit. The case as consolidated WILLSON, C. J. (after stating the facts as was submitted to a jury on special issues. above). The assignments attacking the judgThe jury found that appellee had been guilty ment as not supported by the findings of the of adultery with Coach April 10, 1907, or jury, in so far as it refused a divorce to after that time, but that, with knowledge of the parties, are overruled. The contention her conduct, appellant afterwards had "ad- is that the jury did not find that appellant mitted appellee into his conjugal society or had condoned all the acts of adultery of embraces." They further found that the in- which they found appellee to be guilty. But debtedness represented by the alleged ven- we think the court properly construed the dor's and mortgage liens was fictitious and finding that appellant, after he knew of apin fraud of appellee's rights. The court, on pellee's adulterous conduct, had "admitted the return of the verdict, rendered a judg- her into his conjugal society or embraces," ment refusing either party a divorce, adjudg- as a finding by the jury that he had coning the costs, including an allowance to ap-doned her conduct after he had acquired pellee of $150 as attorney's fees in the three knowledge of all the adulterous acts on her suits, against appellant, and declaring same part shown by the evidence.

The

protecting the community property of her marriage with appellant against attempts to subject it to the payment of fictitious debts; that she had a right to mortgage the personal property to procure counsel to defend the divorce and foreclosure suits and to prose

cute the injunction suit, as her husband had abandoned her, and had refused to defend as against the foreclosure suits; and that the court had power to decree a lien to ex

ist upon the personal property belonging to said community estate to secure said attorney's fees.

Y. D. Harrison, for appellant. Young & Abney, for appellee.