McMEANS, J. Thomas Brown sued Alex | all of the building in question except that Feigelson to recover $1,699.94, which he al- portion which was covered by the contract of leged to be due him upon a certain contract | Penman Iron Works, and to complete his conoriginally entered into between the defendant, tract by the 20th day of December, 1906. Feigelson, and the Penman Iron Works; the This contract was not reduced to writing and plaintiff, Brown, claiming that about Decem- signed by the parties until June 11, 1906, but ber 6, 1906, the Penman Iron Works having Penman Iron Works had notice of the terms failed to perform its contract with Feigelson thereof at the time it signed its contract on according to its terms, he, the said Brown, June 8, 1906. The defendant answered by with the consent and acquiescence of the de- general denial, and by way of cross-bill fendant, and with the consent of the Penman sought to recover damages for delay in the Iron Works, and upon an assignment of said completion of the work originally undertaken contract and all rights and liabilities there- by the Penman Iron Works. A trial before a under, agreed with defendant to assume the jury resulted in a verdict and judgment for performance of said contract, as originally plaintiff for $1,270. From this judgment deundertaken by the Penman Iron Works, and fendant has appealed. to carry out and complete the same upon the same terms and for the same consideration as originally agreed upon in the contract being appellee's fourth special exception to certween Feigelson and the Penman Iron Works, tain paragraphs of his cross-bill, presents no and that he thereafter did so complete the reversible error, for the reason that it apcontract. The evidence shows that on June pears that defendant was permitted to file, and did file, a trial amendment in which the exception was fully met, and the omissions which invoked the exception were cured, and the allegations thus supplied established by the undisputed evidence.

The first assignment of error, which complains of the action of the court in sustain

8, 1906, the Penman Iron Works and Feigelson entered into a contract, by the terms of which the former agreed to furnish a lot of columns, girders, and other steel material and to erect and place the same in a building to be constructed for the latter in the city of Beaumont, according to plans and specifications referred to in said contract as Exhibit A and made a part thereof, and to place said material in said building within 10 weeks from the date of the contract, it being provided in said contract, however, that any delay caused by transportation companies and any delays resulting from causes be

yond the control of the Penman Iron Works should be allowed as an extension of time for the performance of the contract. On the 6th day of December, 1906, the Penman Iron Works had not performed its contract according to its terms, and on that date said contract was transferred and assigned by the Penman Iron Works to the plaintiff, Brown, together with all its rights and liabilities thereunder, and Brown agreed to carry out and complete the contract as originally undertaken by the Penman Iron Works. At the time of assuming to complete the contract, Brown and Feigelson entered into a new agreement, by which it was understood and agreed that in consideration of Brown completing the contract within 10 days from December 6, 1906, Feigelson agreed to waive any and all claims for damages that he might have or claim against the Penman Iron Works by its having failed to complete the work as originally undertaken by it. The evidence warrants the further conclusion that, before the expiration of the 10 days within which Brown agreed to complete the work, its completion within that time was waived by Feigelson. The testimony further shows that on or before the 8th day of June, 1906, the date of the contract between Penman Iron Works and Feigelson, the said Feigelson entered into a contract with one Heartfield, by the

field had entered into a contract with the

The fourth assignment complains of the following portion of the court's charge: "If you believe from the evidence that at the time the said Penman Iron Works entered into said contract of June 8, 1906, it had knowledge of the fact that one J. W. Heartsaid Alex Feigelson for the erection and completion of his said building by the 20th day of December, 1906, then you are instructed that the defendant, Feigelson, will be entitled to recover the reasonable rental value of said building from the time that the Penman Iron Works should have performed and completed its said contract with the defendant Feigelson up to the time that the said building was in fact turned over to the said Heartfield for completion by him, but you cannot allow defendant, Feigelson, any amount for the rental value of said building after the time that the said building was turned over to the said Heartfield for completion by him." We think the assignment is without merit. The portion of the charge set out in the assignment is only one part of a paragraph which, considered in the abstract, is not an inaccurate statement of the law. It is a general rule of construction that the entire charge relating to a particular matter must be read and construed as a whole; and, when this is done, in the instant case, we think that the charge was correct as applied to the facts, and is not subject to the criticism offered. The entire paragraph of the charge is as follows: "Now, as to the claim for damages in defendant's plea in reconvention for the rental value of said building, you are instructed as follows: If you shall believe from the evidence that at the time the said plaintiff

tract, as herein before explained, within a period of 10 days from the 6th day of December, 1906, the defendant Feigelson agreed with the said Brown to waive any and all claim for damages that he might have had against the said Penman Iron Works for its failure to carry out and complete said contract, then you are instructed that the defendant, Feigelson, cannot recover anything for the rental value of said building by reason of the fact that the same was not completed within the time prescribed in said contract, and, if you so find the facts to be, you will find against the defendant Feigelson on his plea in reconvention for the rental value of said building, and so state by your verdict in so many words; on the other hand, if you shall believe from the evidence that at the time said Brown assumed to carry out and perform said contract within said 10 days the said defendant, Feigelson, agreed to waive said claim for damages in the event only that the said Brown should carry out and complete said contract within 10 days after the same had been assumed by him, then you will pro

ceed to further consider whether the defend

ant, Feigelson, is entitled to recover anything

the cause of action asserted in this suit, and charged that the Penman Iron Works is the true owner of the cause of action sued on, and that, if the contract and the amount due thereon was in fact assigned by the Penman Iron Works to Brown, such assignment was a scheme or device to enable the suit to be brought in Brown's name; that said assignment was not made in good faith and for a valuable consideration, and if in truth it was ever made, it was made without the consent of the board of directors of the corporation, and for that reason is invalid.

Appellant complains of the action of the court in sustaining plaintiff's special exception No. 6, which is as follows: "Plaintiff further excepts to paragraph No. 11 of said answer, because it is alleged in said answer that the assignment by the Penman Iron Works of said claim to the American National Bank was made shortly after June 8, 1906. and that the forfeiture of the charter of said Penman Iron Works did not take place until the 2d day of July, 1907, and for this reason the alleged forfeiture of the charter could in ment made a year previously, and of this no manner affect the validity of said assignon his claim for the rental value of said plaintiff prays the judgment of the court. building under the following instructions. If you believe from the evidence that at the time wherein it alleges that said assignment by Plaintiff further excepts to paragraph No. 11, the said Penman Iron Works entered into said contract of June 8, 1906, it had knowl- Penman Iron Works to the American Nationedge of the fact that one J. W. Heartfield had al Bank was invalid because not made with entered into a contract with the said Alex the consent of the board of directors because Feigelson for the erection and completion of it is not further shown that the board of dihis said building by the 20th day of Decem-rectors did not ratify said assignment, or ber, 1906, then you are instructed that the defendant, Feigelson, will be entitled to recover the reasonable rental value of said building from the time that the Penman Iron Works should have performed and completed its said contract with the defendant, Feigelson, up to the time that the said building was in fact turned over to the said Heartfield for completion by him, but you cannot allow the defendant Feigelson any amount for the rental value of said building after the time that the said building was turned over to said Heartfield for completion by him. But in this connection you are further instructed that if there were any delays caused to the said Penman Iron Works on account of wrong measurements for material to be furnished by said iron works or on account of delay in procuring extra material for the said Feigelson, if any, or on account of any delay on the part of any transportation company, if any, in delivering the material to be used on said contract, then any and all such delays, if any, cannot be chargeable to the plaintiff herein in computing the time for the rental value of said building, for the reason that neither the Penman Iron Works nor the plaintiff would be chargeable with such delays, if any." The defendant set up in its answer that the charter of the Penman Iron Works was forfeited on July 2, 1907, and

that said board of directors or any stockholder has ever made or is making, or contemplates making, an attack upon the validity of said assignment; and, further, because it does not appear that the president of the Penman Iron Works was without authority to make said assignment, and that such authority was vested exclusively in said board of directors, and of this plaintiff prays the judgment of the court." Appellant's proposition under this assignment is that "to show that plaintiff has no title to, and does not own, either at law or equity, the cause of action upon which the suit is brought is a complete defense to the suit." The exception did not attack that portion of the answer which alleged that the assignment of the claim of the Penman Iron Works to Brown was not made in good faith and for a valuable consideration, and was in fact a mere scheme or device to enable the suit to be brought in Brown's name. It appears from the evidence that this issue was thoroughly gone into on the trial and the bona fides of the assignment fully established. The assignment is overruled.

By his third assignment appellant assails the following portion of the court's charge: "You are further instructed that the plaintiff, Brown, alleges in his petition that he at an additional expense over and above the said

The sixth assignment is without merit, and is overruled without further comment. The seventh assignment points out no reversible error. While the expense bill introduced in evidence was inadmissible to prove the length of delay caused by the transportation company in failing to deliver the material, the delay thus occasioned was estab

no objection was urged. and the error in admitting the expense bill was therefore harmless.

said Penman Iron Works and said Alex Feigelson, at the special instance and request of the said Feigelson, furnished to the said Feigelson extra material used for extra girders which were not contemplated in the original plans, of the additional value of $350. And, as to this item, you are instructed that if you shall believe from the evidence that such extra material for said girders was so furnish-lished by other competent evidence, to which ed to the said Feigelson, and you shall further believe that the same was not included and contemplated by said contract when read in the light of said plans and specifications, then, in addition to the amount that you shall allow the said plaintiff on the original contract price of said material, you will add the reasonable value of such extra material which was not so contemplated and included in said original contract; but, if you believe from the evidence that such material was in fact contemplated to be used according to the terms of the original contract between the said Penman Iron Works and the said defendant Feigelson, when read in the light of the plans and specifications of said building, then you will not allow any additional sum to said contract price for said material." Appellant contends that the plans and specifications being in writing, it was the duty of the court to construe the same, and that it was reversible error for the court to submit the legal effect of such instruments to the jury. It is no doubt the law that if there is no ambiguity about a written instrument, and the intention of the parties may be ascertained from the terms thereof without explanation, it is the duty of the court to construe it for the jury and to instruct them as to the rights of the parties thereunder. Soell v. Hadden, 85 Tex. 187, 19 S. W. 1087. It is also the law that, where the contract is ambiguous or a part of it is doubtful and uncertain of meaning, it is equally the duty of the

The ninth and twelth assignments are predicated upon the refusal of the court to give appellant's first and fourth special charges, in which it was sought to have the jury instructed that, if Brown was acting for the Penman Iron Works in the completion of the portion of the building included in its contract, then the agreement by Feigelson with Norvell or Brown to waive his damages for delays of Penman Iron Works in the completion of its contract was without consideration and void. There is nothing in the statement following the assignments to show that Brown was acting for Penman Iron Works in performing its contract with Feigelson, nor is such fact elsewhere pointed out by appellant in his brief, and, for aught that appears, the court was not authorized by the facts to submit the issue raised by the special charges to the jury.

We have examined all the other assignments urged by appellant, and are of the opinion that no reversible errors are presented in any of them.

The judgment of the court below is affirmed.

Affirmed.

BALL et al. v. BELDEN.

court to submit it for the determination of (Court of Civil Appeals of Texas.

Jan. 20,

1910. On Motions for Rehearing
March 16, 1910.)

the jury. Levy v. Tatum, 43 S. W. 941; Ginnuth v. Blankenship, 28 S. W. 828. The contract called for the use of "girders." The 1. VENDOR AND PURCHASER (§ 100*)-ACTION facts show that two kinds of girders are used in buildings, one known as "single girders" and the other known as "box girders." The latter are the more expensive. It was proper, therefore, for the court to allow the jury to determine which of the two kinds were called for in the contract. There was no error in the court's charge in the respects complained of in appellant's fifth assignment of error. The contract between Feigelson and the Penman Iron Works provided that "inclement weather, strikes, delays of transportation companies, and causes beyond the control of the contractor shall be allowed as an extension of time." The charge does nothing more than to inform the jury that delays from such causes would not be chargeable to the contractor, and the charge was authorized by both the pleadings and evidence.

FOR PURCHASE MONEY-DEFENSES. When a vendor has received part of the purchase money, and gives indulgence after default in payment of another part, there must generally be a demand of payment and notice of intention to rescind the contract before advantage can be taken of the default and a rescission had; and, where defendants' predecessor in interest purchased land from plaintiff's intestate, paying part of the purchase price, and giving his note for the remainder, which note defendants agreed to pay on becoming the owners of the land, and no demand was made for the payment of the note for nine years after its maturity, the payee being in a foreign' country, and suit was then brought two days after demand of payment, and defendants came into court, offered to pay it, and there was evidence of their willingness and ability to do so, it was error for the court, after the suit had been changed from one on the note to trespass to try rescission of the sale and return of the land to title to the land, to peremptorily instruct a plaintiff, since defendants had a right under the

facts to have the equities between the parties, essary parties to a suit on the note and for foreclosure of the lien. adjudged.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 170; Dec. Dig. § 100.*] 2. VENDOR AND PURCHASER (§ 105*)—RESCISSION OF CONTRACT-RECOVERY OF LAND.

Under the rule that when a vendee is willing to perform the contract, and the vendor has received a part of the consideration, or has delayed for an unreasonable time to ask for a rescission, or when for any reason it would be inequitable for the vendor to recover the land, equity will not permit him to do so, where a vendor failed to make demand for payment, or ask for rescission for nine years after a note given for part of the purchase price became due, this delay warranted adjustment of equities in favor of those claiming under the vendee.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 183-187; Dec. Dig. 8 105.*]

3. TENDER (§ 24*)-MODE AND SUFFICIENCY. In a suit on a note, where defendants came into court and offered to pay it, this tender was sufficient although no money was paid into

court.

[Ed. Note. For other cases, see Tender, Cent. Dig. $$ 79-81, 94; Dec. Dig. § 24.*]

5. TENDER (§ 12*)-MODE AND SUFFICIENCY. Where plaintiff did not ask for attorney's fees, defendants on offering to pay the claim sued on need not tender them.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 778-782; Dec. Dig. § 279.*]

9. INTEREST (§ 46*)-TIME OF COMPUTATIONFAILURE TO DEMAND PRINCIPAL-ABSENCE OF PAYEE.

Where parties purchased land agreeing to pay a note given by a prior grantee as part of the purchase price, it was their duty to tender the amount of the purchase money to their vendor and demand a release of the vendor's lien from him, and they cannot escape payment of interest on the note by a plea that the original vendor to whom the note was given had been for a long time abroad, and no demand was made for payment of the note, since the relation of creditor and debtor did not exist between them and the original vendor, so as to give them the benefit of a forfeiture of interest because the payee absented herself from the country.

[Ed. Note.-For other cases, see Interest, Cent. Dig. 88 95-105; Dec. Dig.' § 46.*]

On Motions for Rehearing.

7. VENDOR AND PURCHASER (§ 169*)-PAYMENT OF PURCHASE PRICE-DEMAND.

Where a vendor took the vendee's note for part of the purchase price, the vendee alone could complain of her absence from the state and failure to demand payment, and the vendor was not required to demand payment from any one but the vendee; he being primarily liable. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 169.*]

10. APPEAL AND ERROR (§ 714*)-RECORDSUFFICIENCY.

Where the contents of an original petition in a suit are stated in the brief of one of the parties, and the statement is not disputed in the brief of the other, but he merely states that they are immaterial, which is a virtual admission that they were properly stated, the court may accept the statement as correct, and allude to the contents of the petition in its opinion, although they do not appear in the transcript. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2962; Dec. Dig. § 714.*]

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Action by Samuel Belden, Administrator, against Frank X. Ball and others. From a judgment for plaintiff, defendants appeal. Reversed and rendered.

C. C. Clamp and S. S. Searcy, for appelEd. Note.-For other cases, see Tender, Cent.lants. Anderson & Belden and Geo. C. AltDig. § 21-28; Dec. Dig. § 12.*]

gelt, for appellee.

6. INTEREST (§ 15*)-TIME OF COMPUTATIONSUSPENSION.

FLY, J. This is a suit instituted by appelWhere a vendor accepted the note of the vendee for part of the purchase price, and by lee, as administrator of the estate of Juana a separate agreement declared without value F. Montes de Flores, deceased, against F. X. the consideration named in the note concerning Ball and Mary Fest. The original suit was the interest, this relinquished the right to interest before maturity of the note only, and it on a promissory note for $3,000, executed by bore interest from that time until paid, since Antonio F. Cadena to Juana F. Montes de it must be assumed that the parties intended Flores for part of the purchase money of certhe note to be paid at maturity, and the agree-tain land; a vendor's lien being reserved in ment as to interest had reference to the time up to that time only.

the deed to secure the payment of the note.

[Ed. Note.-For other cases, see Interest, Cent. After appellants had filed an answer admitDig. § 28; Dec. Dig. § 15.*]

ting the execution of the note by Antonio F. Cadena, but setting up that the interest specified in the note had been set aside and released by Mrs. Flores to Cadena, and they were ready, able, and willing to pay the $3,000 without interest, appellee filed an amended petition, in which he sought to recover the land, and in the alternative prayed for judgment on the note. J. P. Hickman and O'Farrell were made parties defendant, but were dismissed by the court. The cause was tried by jury, and under instruction of the court a verdict was returned in favor of appellee for the land.

The facts are without contradiction, and

8 VENDOR AND PURCHASER (§ 279*)—FORECLOSURE OF VENDOR'S LIEN-PARTIES.

Where a vendor accepted a note for part of the purchase price, expressly reserving a vendor's lien, subsequent purchasers were not nec

knowledge of the suit, promising to give the matter attention in a few days. Appellants had at all times been ready, willing, and able to pay off and discharge the note, without the interest, upon a release of the vendor's lien, but no demand was made, so far as shown by the record, for the money from the execution of the note until April 1, 1908. The court peremptorily instructed the jury to return a verdict in favor of appellee for the land.

show Juana F. Montes de Flores, a feme sole, | April 6, 1908, this suit was filed. She anhad title to 579 5/10 acres of land, about 12 swered the letter on that date, without miles south of the city of San Antonio, on the San Antonio river, and on May 17, 1897, conveyed the same to Antonio F. Cadena for $895 cash and a note for $3,000, due two years after date, with interest at the rate of 6 per cent. per annum and attorney's fees, and reserved a vendor's lien to secure payment of the note. Four days after the execution of the deed and note, Mrs. Flores executed to Antonio F. Cadena an instrument in Spanish, a translation of which is as follows: "San Antonio, Texas, May 21, 1897. Confiding in the loyalty of my nephew, Antonio Cadena, I declare without value the consideration named in the note signed by him concerning the 6% interest on the sum of three thousand dollars that he owes me on the purchase price of the ranch." That some time in 1900 Antonio Cadena died without having paid off and discharged the note for $3,000 which had become due on May 17, 1899, and his wife, Caroline E. Tarin de Cadena, qualified as independent executrix of his will. On February 26, 1903, the executrix sold the land in controversy to F. O'Farrell, for $1,600 cash and assumption of payment of the $3,000 note herein mentioned. In the deed was the following recital: "Also for the same consideration I hereby transfer and assign to the said F. O'Farrell the right which my said husband obtained from said Juana F. Montez de Flores by and through a certain document in writing signed, executed and delivered by said Juana F. Montez de Flores to my said deceased husband, Antonio F. Cadena, in regard to the release of payment of interest on said $3000.00 note and which instrument is duly recorded in the general records of Bexar county in book volume 161 on pages 447-448 to which instrument in writing reference is hereby made and is made a part and parcel of this conveyance."

The suit in this case was in effect one for a rescission of the contract of sale, and it is the rule that when a vendor has received part of the purchase money, and gives indulgence after default in payment of another part of the purchase money, there must, as a general rule, be a demand of payment, and notice of an intention to rescind the contract, before advantage could be taken of the default and a rescission had. Equity and fair dealing furnish a sufficient reason for the existence of such a rule. Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238; Scarborough v. Arrant, 25 Tex. 129; Hild v. Linne, 45 Tex. 476; Tom v. Wollhoefer, 61 Tex. 277; Estell, v. Cole, 62 Tex. 695; Milligan v. Ewing, 64 Tex. 258; Reddin v. Smith, 65 Tex. 26; Hamblen v. Folts, 70 Tex. 134, 7 S. W. 834; Wright v. Dunn, 73 Tex. 293, 11 S. W. 330; Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Phillips v. Herndon, 78 Tex. 378, 14 S. W. 857, 22 Am. St. Rep. 59; Pierce v. Moreman, 84 Tex. 596, 20 S. W. 821. As said in the cited case of Moore v. Giesecke: "The remedy by rescission is not favored, and, as has been said, slight circumstances, when they may be properly treated as indicative of a purpose upon the part of the vendor not to insist on that remedy, may be treated as a waiver of the right to rescind, unless its maintenance becomes necessary to enable the vendor to enforce the payment of the considOn March 2, 1903, F. O'Farrell conveyed eration for which he contracted to sell the the land in question to Frank X. Ball and land; and, when a suit for the recovery back Mary Fest, appellants, for the recited consid- of the land has been brought, where any poreration of $2,000 in cash and the assump- tion of the purchase money has been paid, or tion of the payment of the $3,000 note exe- where valuable and permanent improvements cuted by Antonio F. Cadena to Mrs. Flores. have been placed upon the land by the venIt was recited in the deed that the interest dee, or by purchasers under him, and the deon the note had been released by the instru- fendant, when sued, brings into court and ment hereinbefore copied, and reference was offers to pay the balance of the purchase made to the place of its record. The release money, with costs of suit, unless there exist made by Mrs. Flores was duly acknowledged strong countervailing equities, the money by her, and recorded on August 6, 1897. ought to be received and a recovery of the Mrs. Flores died in France, and appellee land denied." The principles announced are qualified as administrator of her estate. No peculiarly applicable to the facts of this case. demand was ever made for the money due The note was given to Mrs. Flores in 1897, on the note until about April 1, 1908, when became due in 1899, and from the last date an attorney representing appellee wrote Mrs. to a few days before the suit was instituted, Fest a letter, asking for a conference with a period of nine years, no effort was made, her in regard to the note. In that letter it not even a demand, to obtain payment of the was promised that suit would be withheld note. The payee of the note was in France, until Mrs. Fest was heard from in regard to and no one seemed to know where the note the matter. She swore that she received the was kept. After that long period a suit was