(218 S.W.)

tiff, the dates of the respective continuances [ recited or for any other purpose than as proof not being shown.

It is true that the party offering an objection to the introduction of evidence that is admissible for any purpose, before he can complain, should ordinarily request an instruction limiting the consideration of the evidence.

Tex. 246. The effect of the objection as it H. & T. C. Ry. Co. v. Poole, 63 was made was a request for the limitation of the testimony, and the ruling of the court, under the circumstances, was an overruling of defendant's contention that the award was admissible only for limited purposes, and the statement of the court, made in overruling the objection, was equivalent to an instruction to the jury that they might consider the evidence for all purposes. Under these circumstances it was not necessary for appellant to make a formal motion to limit the evidence

before he could complain of the action of the | plication if the jury in such case be forced to the alternative of awarding compensation in a lump sum or nothing.

sourt.

The motion for rehearing will be overruled.

(No. 8269.)

(Court of Civil Appeals of Texas. Dallas.
Jan. 10, 1920. Rehearing Denied
Feb. 7, 1920.)

[28, 29] The fact that the award was not read at the time it was offered was not material, we think. It was presumably read when the petition was read; plaintiff's attorney so stated when he offered it, and it was presumably in the hands of the jury as an exhibIt to the petition in their retirement. It ap- BROADHEAD & CHAPMAN v. HARRELL. pears in the statement of facts as having been introduced in evidence. As we have already seen, the evidence was sharply conflicting as to the extent of the plaintiff's injuries, and the jury were evidently in doubt as to the truth of the matter. Under the circumstances 1. BROKERS 106-AUTHORITY TO EXECUTE we cannot say that the admission in evidence of the finding of the Industrial Accident Board, to the effect that the injury had resulted in "total incapacity," etc., might not have had a deciding effect on the jury, and cannot say that the error is harmless. Commonwealth Bonding & Casualty Co. v. Hendricks, 168 S. W. 1010, opinion on motion for rehearing.

[30] Appellant, in its answer to the appellee's motion for rehearing, takes issue with our conclusion that it was improper to submit the case on the theory that plaintiff must recover in a lump sum for total incapacity, or take nothing, and contends that the pleading is insufficient to award any other relief than recovery in a lump sum. The plaintiff pleaded the accident and resultant injuries, from which it was concluded that he had suffered total and permanent incapacity. He also pleaded the amount of his average weekly wage, and other facts which he claimed were sufficient to require payment of the compensation in a lump sum instead of in weekly payments. All these allegations are followed with a prayer for recovery in a lump sum, and for general relief.

The statement of the injuries, the incapacity, and the weekly wage plaintiff was theretofore earning embraced all the essential elements of a good cause of action, and it was not necessary that the proper measure, or any measure of damages, be stated in order to warrant a recovery. St. Louis & Southwestern Ry. Co. v. Jenkins, 89 S. W. 1106; Ara v. Ruthland, 172 S. W. 993. The fact that the plaintiff may have overestimated the extent of the injury or his resultant incapacity, or the amount of his average weekly wage, would not prevent the court or jury from awarding such compensation, as the facts proven would, under the law, entitle him to; nor would the fact that he sought to have a commutation of the damages to a lump sum prevent the court from applying the prescribed measure of damages applicable to all but exceptional cases, in the event plaintiff failed to bring himself within the exception. As may readily be seen, the true justice of the case might be impossible of ap

CONTRACT NOT SHOWN BY EVIDENCE.

Evidence held insufficient to show authority of broker to execute contract binding on his principal for sale of land. 2. BROKERS 103

CONTRACT CONTAINING TERMS IN EXCESS OF AUTHORITY UNENFORCEABLE BY PURCHASER.

Contract executed by broker can be repudiated by principal, so that purchasers cannot that vendor shall furnish abstract brought enforce it; it containing terms, among others, down to date, contrary to provision of authorization to sell that "All prices are net clear of expenses."

3. BROKERS 103-CONTRACT NOT RATIFIED

BY PRINCIPAL UNAWARE OF UNAUTHORIZED
TERMS.

Principal not having seen the contract of sale executed by broker, or known of unauthorized terms therein, cannot be held to have ratified it.

Appeal from District Court, Grayson County; F. E. Wilcox, Judge.

Action by Broadhead & Chapman against D. A. Harrell. Judgment for defendant, and plaintiffs appeal. Affirmed.

J. L. Gammon, of Waxahachie, Head, Dillard, Smith, Maxey & Head and Wood, Jones & Hassell, all of Sherman, for appellants. Wolfe & Freeman, of Sherman, for ap pellee.

RAINEY, C. J. Appellants brought this suit against appellee, seeking to enforce specific performance of a written contract for the purchase of certain land lying in Grayson county, Tex., and, in the alternative, for damages for its breach. The said contract was executed by Claude Eatherly as agent of appellee to sell and convey to appellants several tracts of land, reciting, among other things, that he was the duly authorized agent of appellee. Appellee answered denying the agency to sell and convey said land and his authority to enter into said contract. Appellants by supplemental petition plead a ratification and adoption of said contract after full knowledge of its terms. The case was tried before a jury and the court in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.)

structed a verdict for appellee, and plaintiffs appealed.

The appellants complain of the court for instructing a verdict for appellee, because the evidence shows that Eatherly was duly authorized by appellee to make for him as his agent a binding contract for the sale of the land as per the contract in evidence. The evidence of Eatherly shows that the first negotiation in reference to the sale of the land was made between him and appellee over the long distance phone on October 25, 1917, and his testimony in relation thereto is, in substance:

"I had previously put in a call for Mr. Harrell through the Sherman office, and asked that he be called at Groom, Tex. Over the telephone I asked the defendant the price of his land, the home place and adjoining land, and also the Pruitt places and the Carr place. He priced it to me at $105 per acre net, clear to him without expense. I told him I had a man I could sell it to. I told him I had a man who

would buy it. He said 'Bring your man and come up here and we can close it up to-day.' I says, 'I can't come to-day.' He says, 'Are you not at Shamrock?' I says, 'No, sir; in Sherman.' He says, 'I thought you were at Shamrock.' He went ahead and priced the different tracts of land to me. He put the prices at $105 an acre for the home place and adjoining, and the Pruitt places and the Carr place and the Fuller place at $37.50, and the Kersey place at $80. These prices had to be net to him, clear of any expense. Mr. Harrell asked me in the telephone conversation I have mentioned if I could hold the man there, and I told him I could close it that day. I asked him how many acres of land there were in the Pruitt places, and he said 115 acres on the south side of the road and about 50 acres on

was fresh as to the matters concerning which I testified. In the telephone conversation I had with the defendant he did not say anything about figuring with other parties for the sale tioned about other deals in that telephone conof the land. I don't think anything was menversation. Mr. Harrell did not tell me in that conversation over the telephone not to do anything until I heard from him, but he did tell me not to go into any writing until I got the telegram. He did not tell me not to close any deal until I heard from him; that he was on a deal with other parties. He did not, in the telephone conversation, say that or anything to

that effect."

On cross-examination of the witness J. C. Eatherly, defendant read in evidence a part of his ex parte deposition taken February 20, 1918, wherein, among other things, he testified in reply to the eighth direct interrogatory:

"I have stated that the contract was made over the telephone in part and in part by telegrams, copies of which telegrams have heretofore been attached. As to the terms of the contract they were as follows: I was to sell his home place and all lands adjoining the home place for $105 per acre net to him, and was to get $80 per acre for the Kersey place, and $37.50 for the Fuller place, and $105 for the Pruitt places per acre, and these prices were to be net to him, and I was to have all the money I obtained above these prices as commissions for selling the lands. Yes; I told him over the telephone conversation that I had a buyer for the home place and adjoining land, also the Pruitt places, and could close the deal on that date. He told me not to go into a contract until I received a telegram from him which he would send that night, and I would have it in black and white so we would have no misunderstanding. He also, in this conversation, priced the other places as I have heretofore stated, and I told him that I thought I could sell the Kersey place. Yes; I have stated the sum and substance of all that was said."

In reply to the ninth interrogatory the witness testified:

"Yes; I claim that I was authorized to make a sale of all the lands mentioned by telephone conversation and by telegrams from the defend

ant."

the north side. I told him I did not know he had any on the north side of the road; that I thought his brother Willis had bought that land. He said, 'No'; he still owned it, and to put it in if I could. He said: 'Close your deal there to-day, and hold the party until morning. Don't go into writing until you get a lettergram tonight pricing all the places, and you will have it in black and white, and there will be no misunderstanding about it.' When I told Mr. Harrell that I was at Sherman and not at Shamrock, as he thought, he then asked me if I could hold my man there until the next morning. I told him I could, and then he said to close the deal, but not to go into writing until I got his telegram. He said, 'I will send a night letter to-night, and you will have it in black and white.' He said the night letter was to confirm the prices he was making over the telephone. He said, 'For fear you might misun- On the night of October 25, 1917, a telederstand the prices over the phone, I will send gram was sent by Mrs. Harrell, wife of D. this night letter.' (The telephone conversation A. Harrell, by appellant's authority, and reoccurred on October 25, 1917. The night letter ceived by Eatherly on the 26th of October, referred to in the telephone conversation was 1917, which reads as follows: sent on the night of October 25th, received by J. C. Eatherly on the morning of October 26, 1917. J. C. Eatherly's ex parte deposition was taken on February 20, 1918. The trial of this case occurred in January, 1919.) My deposition was taken in this case in February, 1918, on the 20th, I believe. At that time my memory | Fuller place thirty-seven fifty. Pruett place one

|

In reply to the tenth interrogatory he says: "There was no other writings other than the ones before attached."

"Groom, Texas, Oct. 25, 1917. "Claude Eatherly, Sherman, Texas: Would take one hundred five dollars per acre all joining home place, eighty dollars per acre Kursey place, all prices are net clear of any expense;

hundred five. Carr place sold. If you have prospect, wire me as on deal with others.

"Mrs. D. A. Harrell."

[1] The foregoing evidence of Eatherly of the phone conversations and the night letter constitutes, in substance, all the authority given by Harrell to Eatherly to make a sale of said land binding on Harrell. The telegram sent by Harrell to Eatherly on the night of October 25, 1917, which was received before the contract of sale was made, shows that Harrell never intended for Eatherly to close the trade, for it concludes, "If you have prospect, wire me as on deal with others." Harrell had authority sale himself or contract with others, and if Eatherly thought he had authority to enter into a contract for Harrell, that telegram ought to have informed him that Harrell had not intended for him to contract the

to make

sale of the land. Watkins v. Campbell, 100 Tex. 542, 101 S. W. 1078; Brillhart v. Beever, 198 S. W. 973; Moulton v. Kershaw, 59 Wis. 316, 18 N. W. 172, 48 Am. Rep. 516; 9 C. J. § 28, p. 526. Section 28, Corpus Juris,

reads as follows:

"Except where the power to complete a sale or to enter into a contract of sale binding on the principal is clearly given to the broker by the terms of his contract of employment, the ordinary authority of a real estate broker employed to sell real estate is merely to find a purchaser who is ready, able, and willing to enter into a contract on the terms specified by or acceptable to the principal; and in the absence of such special authorization he has no authority to enter into a contract to sell, or to sell and convey, binding upon the owner."

erly exceeded his power if he had authority
to make a sale, and Harrell had the right to
repudiate the acts of Eatherly in so doing.
Evants v. Fuqua, 102 Tex. 430, 118 S. W.
Fergu-
132, 132 Am. St. Rep. 892; Hagler v.
son, 102 Tex. 432, 118 S. W. 133, 132 Am.
St. Rep. 895; Colvin v. Blanchard, 101 Tex.
231, 106 S. W. 323; Daugherty v. Leewright,
174 S. W. 841; Gough v. Coffin, 55 Tex. Civ.
App. 550, 120 S. W. 210; Caldwell v. Scott,
143 S. W. 1192; De Sollar v. Handscome,
158 U. S. 216, 15 Sup. Ct. 816, 39 L. Ed. 956.

In the powers granted to Eatherly by Harrell he was only authorized to sell the land at terms as stated by Harrell, as follows, "All prices are net clear of any expense." Such terms as imposed by the contract of sale were surely beyond the powers delegated

to Eatherly.

[3] But it is contended by appellants that appellee ratified and provision as to the furnishing of an abstract and all the other provisions objected to. We cannot concur in this contention, as the evidence fails to show that Harrell ever knew of all

of such provisions or ever saw the contract, and not knowing its terms he is not bound by Eatherly's acts in respect to the terms

of said instrument.

We have duly considered all of the assignments presented by appellants, but find none well taken, and the judgment is affirmed.

Affirmed.

HENSON et ux. v. PETERSON et al. (No. 2178.)

We think the evidence is lacking to show authority in Eatherly to execute a binding contract for the sale of the land; that there is no reason for reasonable minds to differ (Court of Civil Appeals of Texas. Texarkana, as to its meaning; therefore there is no error in the court's giving the peremptory charge to find for defendant.

Dec. 8, 1919. Rehearing Denied
Jan. 22, 1920.)

1. REFORMATION OF INSTRUMENTS 19(1) MISTAKE MUST BE MUTUAL.

A deed will not be reformed on the ground of mistake, where the mistake was not mutual.

10 - REMAINDERMEN'S IN

TEREST UNDER DEED CONVEYING LIFE ES-
TATE CANNOT BE DEFEATED BY AGREEMENT
BETWEEN GRANTOR AND GRANTEE.

[2] If it could be conceded that the evidence is sufficient to show that Eatherly had authority to sell the land, it does not show that he was authorized to bind Harrell in several particulars, as therein written. For 2. REMAINDERS instance, the written contract binds Harrell to furnish an abstract brought down to date, to pay all taxes against the land for the year 1917, to make a general warranty deed to the land, to free the land of all liens and incumbrances, to correct any defects shown to exist by the abstract, to make arrangements about the lands rented, and to give immediate possession of the home place upon execution of the deed. Doing some of these things may have been very simple and easily complied with, but under some circumstances they may have been very burdensome to Harrell and he may not have been willing to subscribe to them, but Eath

Where deed conveyed life estate, with remainder to grantee's children, grantor and grantee could not, by subsequent agreement, enlarge the grantee's estate, or divest the remaindermen of the interest acquired by them under the terms of the deed.

3. REFORMATION OF INSTRUMENTS ~~47

--

DEED WILL NOT BE CONSTRUED WHERE REF-
ORMATION IS DENIED.

In suit to reform a deed, court in denying reformation will not construe deed solely for the purpose of relieving an uncertainty regarding its legal effect.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S. W.)

Appeal from District Court, Camp County; [ and which evinced a purpose to limit the inJ. A. Ward, Judge.

Suit by Dave Henson and wife against W. Y. Peterson and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Moses M. Smith, of Pittsburg, for appellants.

terest of Fannie B. Henson to a life estate in that lines were drawn through these words the property conveyed. The evidence shows at the time the agreement was executed. It is also alleged that the language of the deed above referred to was originally inserted by the grantor by mistake; that Fannie B. Hen

Bass & Engledow, of Pittsburg, for appel- son was ignorant of the phraseology usually lees.

HODGES, J. Fannie B. Henson, joined by her husband, Dave Henson, filed this suit in the district court of Camp county against her father, W. Y. Peterson, and her four minor children. The purpose of the suit as stated in the petition is to reform a deed. It is alleged that in February, 1917, W. Y. Peterson executed the following deed of conveyance: "Know all men by these presents: That I, W. Y. Peterson, of the county of Camp, state of Texas, for and in consideration of the sum of one hundred and fifty dollars and the love and affection for my daughter Fannie B. Henson to me paid and secured to be paid by Fannie Belle Henson as follows: [Then follows a description of three vendor's lien notes aggregating $150] have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Fannie Belle Henson, of the county of Camp, state of Texas, all that certain tract or parcel of land." [Then follows a description of a tract of land containing 69.4 acres.] This deed is intended to convey to Fannie B. Henson a life estate in the above-described land, and after her death said land shall be the property of her children, to have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Fannie B. Henson, her heirs and assigns forever, and I do hereby bind myself, heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Fannie B. Henson, her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."

employed in deeds, did not understand the
legal effect of the terms employed in this con-
veyance, and did not know the contents of the
deed for some time after it had been delivered
to her. The petition closes with a prayer that
the plaintiffs "have judgment and a decree
reforming the deed, declaring Fannie B.
Henson to have the title in fee simple in said
land against Peterson and the four minor chil-
dren, and that such decree stand in lieu
and stead of a deed to said land to be recorded
as such in the deed records of said county,"
and for such other and further relief as the
plaintiffs might be entitled to receive. W.
Y. Peterson answered, denying that there was
any mistake on his part in the execution of
the deed, and alleging that it was executed
just as he intended it-for the purpose of
conveying a life estate only in the grantee,
The minor defendants
Fannie B. Henson.
through their guardian ad litem answered
with a general denial and general demurrer,
claiming also that the erasure of that part
of the deed which sought to limit the interest
of Fannie B. Henson to a life estate in the
property conveyed was made some time after
the execution and delivery of the deed, and
that it was of no effect in divesting them of
the remainder which they took under the
original terms of the deed. They also adopt-
ed so much of the pleadings of the codefend-
ant, Peterson, as was applicable. The case
was tried before the court without a jury,
and a judgment rendered in favor of the de-
fendants. The findings of the court upon the
material issues of fact are, in substance, as

follows:

She

Another paragraph follows which stipu"There was no understanding or oral agreelates for the retention of the vendor's lien.ment prior to the execution of the deed that The deed was dated February 13, 1917, and it should convey a life estate to Fannie B. Henwas acknowledged on the 10th day of Febru- son with remainder to her children, but the ary following. There was appended to the deed was intentionally executed in that form, deed the following writing: and Fannie B. Henson was present and heard the deed read at the time of its delivery. thereafter received it without objection, and no complaint was made by her until some time afterwards, when she and her husband desired to sell the land. Peterson intended to convey to his daughter only a life estate at the time he executed the deed, it being exactly what he desired it should be, and therefore there was no mutual mistake of the parties. The court further finds that there was no fraud practiced by Peterson on his daughter, and that there were no facts which would justify a reformation of the deed."

"Pittsburg, Texas, November 27, 1918. "Know all men by these presents: That we, W. Y. Peterson, the maker of this deed, and Fannie B. Henson and husband, D. C. Henson, to whom this deed is made, all being present and giving full consent that the last three lines of the written part of this deed be stricken out before the deed was put of record."

This writing was signed and sworn to by all three of the parties mentioned. The deed was filed for record on the 29th day of November, 1918. The lines referred to as having been stricken out were those italicized above immediately following the description,

[1-3] The findings of fact are fully sus tained by the evidence. If there was no mu