(218 S.W.) In such cases, case, because of the difference in the facts. | feasor or to natural causes. since the injured party cannot supply the mate- Appellee in his brief cites numerous cases, chiefly: Bennett v. G., C. & S. F. Ry. Co., 159 S. W. 132; 8 Am. & Eng. Enc. of Law (2d Ed.) pp. 610, 611; 17 Corpus Juris, 755, 756: Ogden v. Lucas, 48 Ill. 492; Gould v. McKenna, 86 Pa. 297, 27 Am. Rep. 705; Jenkins v. Penn. Ry. Co., 67 N. J. Law, 331, 51 Atl. 704, 57 L. R. A. 309; Larned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11; Scheurer v. Banner Rubber Co., 227 Mo. 347, 126 S. W. 1037, 28 L. R. A. (N. S.) 1207, 21 Ann. Cas. 1110; Allison v. Chandler, 11 Mich. 542; and Gilbert v. Kennedy, 22 Mich. 117. It is claimed by appellant's counsel that none of these authorities is in point, because they merely hold that an uncertainty as to the manner or extent of damages in an action for tort does not defeat recovery, and that the amount of damages may be fixed by the jury in the exercise of sound and reasonable discretion; whereas the question in this case is not the amount or extent of the damages, but whether there is any evidence to show that any of appellee's damage or loss was caused by appellant's negligence or breach of duty. It must be confessed that an examination of appellee's authorities will show that they are largely to the effect as contended by appellant. The facts in most, if not all, of them, do not involve the question of an uncertainty as to cause, except that they involve damages resulting from separate and independent causes, concurring in the total injury or damage inflicted. However, the purposes of this inquiry will be aided by brief quotations from some of these cases, announcing principles which are thought to be applicable to the facts of the instant case. In Jenkins v. Penn. Ry. Co., supra, Justice Pitney used this language: "It is obvious that, if the property owner must be confined to nominal damages in such a situation, it is the same in effect, as to say that he is entitled to no recovery. In our opinion, this is not the law. The situation is one that is not very unusual in actions of tort. It many times happens that the damage arising from an actionable injury chargeable to the defendant is, in the nature of things or from the circumstances of the cases, indistinguishable from other damages occurring at the same time, attributable to the acts of an independent tort In Allison V. Chandler, supra, Judge Christiancy, among other things, said: "The law does not require impossibilities, and cannot therefore require a higher degree of certainty than the nature of the case admits. And we can see no good reason for requiring any higher degree of certainty in respect to the amount of damages than in respect to any other branch of the cause. Juries are allowed to act upon probable and inferential, as well as direct and positive, proof. And when from the nature of the case the amount of the damages cannot be estimated with certainty, or only a part of them can be so estimated, we can see no objection to placing before the jury all the facts and circumstances of the case having any tendency to show damages or their probable amount, so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit." [5] In respect to cause or causes of damage, we see no difference in principle from a question of the nature or extent of the damages; and think that the rules just quoted are applicable, at least where the proof tends to show with reasonable certainty that some of the loss has resulted from the negligence of the defendant. In this case, whatever uncertainty may exist as to the proportion in which appellant's negligence and that of other parties contributed to cause appellee's loss, it was occasioned, in part, by appellant's negligence and wrongdoing, and as said in Gilbert v. Kennedy, supra: "Justice and sound policy alike require that it should bear the risk of the uncertainty thus produced." [6] When the facts are carefully examined, we think that sufficient evidence will be found in the record to show that appellee, with reasonable certainty, proved a part, at least, of his damage was caused by appellant. It will be sufficient to recite these facts and circumstances: That until appellant began to construct its roadbed through the pastures none of appellee's cattle has been escaping, and no others had been getting in. Appellee and at least one other witness testified to having seen cattle go in and out of the pastures through gaps left in the fences on appellant's right of way, and numerous tracks were shown to have been found at these places. On the other hand, no witness testified to having seen any cattle come in or go out the pastures through any other gaps or openings, or to have seen any tracks at any other openings. There is ample evidence to show, with approximate certainty, Appeal from Upshur County Court; D. Walker, Judge. the extent of appellee's damages, and to sus- | indulge the presumption that a gift of propertain the jury's verdict as to amounts. The ty, including land from plaintiff husband to jury were expressly instructed not to allow plaintiff wife, attacked by defendant, was made any damages for cattle escaping through oth- in compliance with law, and was not by parol. er openings. In view of this instruction and the testimony, direct and circumstantial, we cannot say that the jury were not warranted in finding that at least 10 of the escaping cattle went through the gaps or openings for which appellant was responsible, and in awarding damages therefor, as well as in the other items of recovery. The proof was as certain as the circumstances and nature of the case would admit, and authorized the inferences found by the jury. It is true that the evidence did not show conclusively, or even positively, that any particular number of the 17 head of cattle escaped through openings on the right of way, and that it is possible all of them may have escaped elsewhere. On the other hand, it is possible, and not at all improbable, that they all escaped through the openings on the right of way. The jury, uncertain upon this point, apportioned the loss, finding that at least 10 out of the 17 head went through the openings at tributable ot appellant. There was some Suit by Dora Belle Fenton and another against J. L. Miller. From judgment for defendant, plaintiffs appeal. Reversed, and judgment rendered in favor of plaintiff Dora Belle. See, also, 207 S. W. 631. The suit is by the appellant Mrs. Fenton, joined by her husband, to recover the possession, or, in the alternative, the value of the specifically described property in the petition. Mrs. Fenton claimed the property as her separate property. The appellee answered by denial, and pleaded that the property was the community property of Mrs. Fenton and her under execution for community debts. The husband, and that it was subject to sale trial was before the court without a jury, and findings of fact were made by the court, and judgment was entered, awarding Mrs. Fenton and the appellee each one-half of the property in suit. The court's findings are not challenged, and are therefore here adopted. The property is alleged by both the plaintiff and the defendant, and as well found by the court in point of fact, to be personal property of a value within the jurisdiction of the testimony that there was a break on the north side of the pasture, and a gate on that side which was sometimes left open, and one witness testified to having seen 7 head of appellee's cattle outside the pasture north of said side, and, the testimony not showing that they were ever recovered, it may be that this accounts for the jury's having divid-county court. The court made the findings ed the loss, so as to hold appellant account able for at least 10 head. The question is regarded by us as close, but viewing the testimony, both direct and circumstantial, as a whole, we believe the jury were justified in the verdict rendered, and that we are not warranted in disturbing it. Finding no reversible error in the record, the case is affirmed. Affirmed. of fact that: (1) One-half of the property in suit was bought and paid for by Mrs. Fenton with land inherited by her from her father's estate, and "that the one-half of the property purchased by Mrs. Fenton from her son was paid for out of the earnings of said gin and grist mill (the property in suit), and became the community property of Dora Belle Fenton and her husband, R. Fenton ;" (2) that "R. Fenton gave to his wife, Dora Belle Fenton, whatever interest he had in and to said gin, gristmill, and house in 1912 or 1914;" (3) that "at the time of this gift the said R. Fenton owed eight or ten different parties;" and (4) that "the plaintiff R. Fenton became indebted to the defendant, J. L. Miller, on March 25, 1915, for a piano, giving two notes." R. L. Miller subsequently sued on the two notes, and under the judg ment obtained against R. Fenton levied upon and sold under execution the property in suit as the property of R. Fenton, the husband. J. L. Miller became the purchaser under execution, and claims title to the property in suit in virtue of the execution sale. Mrs. Fenton claims title to the whole 2. APPEAL AND ERROR 910-LEGALITY OF property as her separate property by virtue GIFT TO WIFE PRESUMED TO UPHOLD JUDG- In the absence of contrary facts found by the trial court, the Court of Civil Appeals must of the original purchase and the gift to her by her husband of the one-half found by the court to be community property. The appellee contended that the gift by the hus For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) band was void because the husband at the | for plaintiff's property were not good notes and time was indebted to various parties. C. E. Florence, of Gilmer, for appellants. well secured as represented by defendant, tried to sell the notes to third persons, and, as defendant's agent, tried to sell to third persons the land he had conveyed to defendant, he waived the fraud practiced upon him by defendant and ratified the contract. 3. VENDOR AND PURCHASER 44-EVIDENCE SUFFICIENT TO SHOW WAIVER OF FRAUD BY VENDOR. In grantor's action to set aside conveyance and cancel note upon ground of grantee's fraudulent representations as to value and security of vendor's notes given grantor in exchange for property, evidence held to sustain findings that grantor, after discovery of the fraud, tried to sell the notes to third persons and to sell the property as grantee's agent. 4. ACTION 25(2)-ACTION ONE IN EQUITY FOR RESCISSION AND NOT AT LAW FOR DAMAGES. Vendor's petition, alleging that vendor's notes on other land received for the land sold were valueless, held to state a cause of action LEVY, J. (after stating the facts as above). [1,2] If the gift by the husband to the wife of the one-half of the property in suit was legal and not void, then the wife was entitled to recover all of the property instead of only one-half of the same. According to the court's findings of fact the gift to the wife was made "in 1912 or 1914," and according to the court's findings, "R. Fenton became indebted to the defendant, J. L. Miller, on March 25, 1915, for a piano, giving the said Miller two notes." The appellee therefore was a creditor subsequent to the time of the gift in evidence by the husband to the wife. Article 3967, Vernon's Sayles' Statutes, expressly provides that such gift shall not, because merely without consideration and voluntary, be void "as to subsequent creditors," as the appellee was. The appellee therefore cannot attack the gift on that ground. And while the court finds that at the 5. PLEADING ✪~279(4)—SUPPLEMENTAL PETItime of the gift the husband "owed eight or ten different parties," there is no finding that the husband was insolvent at the time and could not pay the parties the amounts he owed them. It does not appear in the court's findings that the gift was parol; and therefore, in the absence of further facts, this court must indulge the presumption on appeal that the gift was made in compliance with the law. The opinion in case in 207 S. W. 631, did not involve the question of gift as here. The judgment is reversed and here rendered in favor of the appellant Mrs. Fenton for title and possession of all the property in suit. KIEHN v. WILLMANN.. (No. 7760.) 1. APPEAL AND ERROR 1056(4)-EXCLUSION MINATION ON OTHER ISSUE. In action to set aside conveyance for fraud, exclusion of evidence tending to show that defendant was a swindler, if error, was harmless, where the court found that defendant had made the fraudulent representations but gave defendant judgment on ground of estoppel. 2. VENDOR AND PURCHASER 43(1)-PUR CHASER WHO ATTEMPTS TO SELL NOTES RE CEIVED FOR PROPERTY AFTER DISCOVERY OF FRAUD WAIVES FRAUD. If plaintiff, after discovering that the vendor's notes transferred to plaintiff by defendant in equity for rescission and recovery of the property transferred, and not a suit for damages. TION SETTING UP NEW MATTER NOT CONSTI- In suit to set aside deed, new matter alleged in supplemental petition attempting to set up claim for damages, but not constituting a reply to any allegations in defendant's answer, under district and county court rule 5 (142 S. W. xvii), was not sufficient to warrant submission of question of damages, since such matter, under rule 15, should have been pleaded by amendment to the petition. Appeal from District Court, Fayette County; M. C. Jeffrey, Judge. Action by E. W. Kiehn against R. J. Willmann. Judgment for defendant, and plaintiff appeals. Affirmed. John T. Duncan, of La Grange, for appellant. Dibrell & Mosheim, of Sequin, and L. D. Brown, of La Grange, for appellee. LANE, J. This suit was instituted by E. W. Kiehn, appellant, against the appellee, R. J. Willmann, to set aside a deed of conveyance from appellant to appellee to 161.9 acres of land situated in Fayette county, Tex., and to cancel a certain note for $1,200, executed by appellant and payable to appellee. The cause of action as alleged by appellant is substantially: That appellee traded appellant three sets of vendor's lien notes, aggregating the sum of $6,600, and some accrued interest, for appellant's tract of 161.9 acres of land, which was valued at $8,850, but was incumbered by an indebtedness of $3,350, the payment of which appellee assumed. the difference between appellant's equity in the tract of land and the aggregate amount For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For of appellee's vendor's lien notes, with accrued interest, appellant gave appellee his personal note for $1,200, secured by one set of the vendor's lien notes so traded him by appellee. The notes traded appellant by appellee were secured by the vendor's lien against certain lands and lots situated in Pecos, Dimmitt, and Hardeman counties. Reduced to the ultimate, the complaint of appellant, as alleged in his original petition, is that the appellee knowingly and willfully, and for the purpose of deceiving and robbing him of his property, fraudulently represented to him that said notes traded to him were good notes, that they were well secured, that the payments recited in the deed retaining the vendor's liens had been made, and that the notes were gilt-edged; but that such representations were false and untrue, and were known to be false by appellee when made; that the security, instead of being good as represented, was practically worthless and grossly inadequate, and that said notes were not good, well-secured, gilt-edged notes, but were practically worthless; but that appellant, believing such representations to be true, relied thereon and was thereby defrauded by appellee of his land and property and induced to execute and deliver to appellee the note for $1,200, and that he has been actually demaged in the sum of $6,500; and, further, that, by reason of the oppression and deceitful misrepresentations of appellee, he demands the sum of $1,000 as punitory damages; that he tenders into court, and to appellee, the notes received by him from appellee, and then prays relief from the court as follows: "That the deed executed by this plaintiff through and on account of the fraudulent representations of the said defendant on the 31st day of January, 1916, and recorded in volume 101, pp. 50-51, of the Deed Records of Fayette county, shall be canceled, annulled, and held for naught, and the title of said land be divested out of the defendant, R. J. Willmann, and be reinvested in this plaintiff; and, further, that the defendant be commanded to deliver into this court this plaintiff's notes executed in part payment for said notes, and that the same be canceled and annulled and held for naught; and that, if the defendant herein have in any way disposed of said note, then he asks for judgment against the defendant for the amount of said notes, with the same rate of interest which said note bears, and he asks for all such other relief, whether the same be legal or equitable, which he may be entitled to under the facts herein pleaded and proven in this cause, for costs of suit and general relief, for all of which he will ever pray." Appellee answered by general denial and by special plea in bar of appellant's right of rescission of the contract between the parties, as follows: "This defendant, R. J. Willmann, further represents and shows to the court that plaintiff is not in a position in this case to invoke the equitable powers of this court, and is estopped from doing so, for the reason that this defendant says that if the securities transferred and assigned by him to plaintiff as alleged in plaintiff's petition are worthless securities, and that said notes were given for land and lots of inferior value and worth far less than the amount of said notes, this defendant charges that such fact became known to plaintiff long before the institution of this suit, and that plaintiff received the information alleged by him to have been received, and whether true or false, such information was believed by plaintiff to be true; and that after plaintiff ascertained that said securities from his point of view were inadequate and worthless this defendant charges that plaintiff, in an endeavor to impose upon others, offered said securities for sale, and endeavored to sell said securities for their face value, and hence defendant says that plaintiff does not come into this court with clean hands, but comes tainted with an effort to commit fraud, and hence is estopped from asking equity of the court; and defendant here now pleads in bar of plaintiff's right to ask that the deed to said land made to this defendant be set aside and held for naught, and that the note executed by plaintiff to this defendant be canceled and held for naught, and asking for a rescisestoppel in bar of any right in plaintiff to ask sion of the entire contract, the principle of equity in this cause, and by offering said notes for sale said plaintiff has elected to accept said property, and being aware of all the facts relating to said securities he waived the right to the rescission of said contract of sale. "Defendant further avers that if there was any fraud practiced upon plaintiff as averred, have been rescinded, which defendant does not or if there was any reason why said sale should confess, but denies, then he says that after plaintiff became aware of such and believed same to be true, or after he had information concerning same which put him upon inquiry, which inquiry, if pursued, would have disclosed all facts concerning the property in question, plaintiff, by his own acts, elected to accept the properties passed to him and to treat the properties passed to defendant as being defendant's, and had transactions with defendant concerning same, and waived his right to rescind said sale, if any he had, and is now forever estopped from seeking a rescission of said sale at the hands of this court." He prayed that his title to the property in controversy be quieted. By what is styled plaintiff's second supplemental petition, appellant alleged that in his contract with appellee he (appellee) was to pay the accrued interest on the $3,350 note, the payment of which was assumed by appellee; that said accrued interest amounted to $190 or $200; that he paid appellee $167 to pay said accrued interest, and that appellee expended the same for his own use and benefit and did not pay said accrued interest as he had agreed to do; that as no interest had been paid on the note suit was instituted thereon by the holder thereof, and by reason of such suit appellant's liability was increased $250 as attorney's fees; and that by reason of the refusal of appellee to reconvey (218 S. W.) to him his land he had been damaged in the further sum of $500. In this supplemental petition he prayed for judgment for the $167 paid by him to appellee for the purpose of paying accrued interest, and for such other damages as he had sustained, in addition to the relief prayed for in his original petition. The cause was submitted to a jury upon special issues, and in response thereto they, in effect, made the following answers: 1. R. J. Willmann did represent to E. W. Kiehn that the notes he traded to him, Kiehn, secured by a lien on the Dimmitt county land, were gilt-edged, first-class, commercial paper. 2. That such representations so made by Willmann were false. 3. R. J. Willmann did represent to E. W. Kiehn that the notes he traded to him, Kiehn, secured by a lien on the Quanah lots, were good notes and well secured. 4. That the representations so made by Willmann were false. 5. R. J. Willmann did represent to E. W. Kiehn that the notes he traded to him, Kiehn, secured by a vendor's lien on the Pecos county land were good, and that they were giltedged, and that the consideration recited in the deed had been paid. 6. That the representations so made by Willmann were false. 7. That each and all of such representations so made by Willmann to Kiehn were false and were known to be false by Willmann when made, and were made by him for the purpose of deceiving Kiehn and inducing him to trade for said notes. 8. Kiehn did rely upon such representations so made by Willmann to him, and made no manner of investigation as to the value of said notes sold and transferred to him by Willmann. 9. R. J. Willmann did tell Kiehn that he, Willmann, had not seen the property for which said notes were given. 10. Willmann did not furnish to Kiehn a description of the property securing said notes in order that he might be able to investigate the value of the securities offered, and suggest that he do so, before the trade was concluded. 11. None required nor made. 12. Plaintiff, Kiehn, turned over his papers relative to his trade and controversies arising therefrom to his attorney for attention about the 15th day of March, 1916. some part thereof, was insufficient security therefor, did advertise such notes for sale on or about the 28th day of March, 1916, and did try to sell said notes, or some of them, to Adolph Seidemann on or about the 4th day of April, 1916, and to any other person or persons, for the purpose of raising money to pay off his note at the bank and to obtain a benefit therefrom. 16. The offer of Kiehn to sell said notes to Seidemann was with a bona fide intention of disposing of the notes, and was not made for the purpose of ascertaining the true commercial value of the notes, as contended by Kiehn. 17. After Kiehn had discovered the fraud practiced upon him by Willmann which induced him to trade for said notes, he recognized the sale of the notes to himself as existing, and did thereafter continue to deal with them as his own with the intent to ob tain the benefit of said sale and of the notes transferred and delivered to him. 18. After Kiehn discovered said fraud on the part of Willmann he recognized the sale of the land in controversy to Willmann as existing, and he did thereafter continue to deal with the same as the property of Willmann and did try to sell the same for Willmann for a commission. 19. Before Kiehn offered the notes he got from Willmann for sale and before he advertised them for sale he did have knowledge of such facts as would put a man of ordinary care and prudence upon inquiry as to the value and extent of the security for said notes and the solvency of their makers. 20 and 21. The evidence shows that W. B. Dennis and C. P. Thrailkill, the makers of the notes in question, are both insolvent and without sufficient means to pay their respective obligations. The trial court approved the findings of the jury and in the judgment rendered recites, in substance, that the contract of sale and exchange of properties between the parties was induced by the fraudulent representations and deceitful conduct on the part of appellee, as alleged by appellant; but it is further recited therein that it also appeared to the court from the findings of the jury that while appellee, Willmann, was guilty of fraud in the transfer of the vendor's notes to appellant, Kiehn, which were insufficiently secured, as a part of the consideration for the deed to the land in controversy, that Kiehn, after discovering the fraud practiced upon him by Willmann, advertised the notes for sale which he got from Willmann in said trade and endeavored to sell them for the purpose of raising money to pay off the $1.200 note executed by him to Willmann which was held by the bank, and to obtain a benefit therefrom, and that he dealt with the notes trans15. Kiehn, after discovering that the prop-ferred to him by Willmann, after the diserty securing the notes traded to him, or covery of said fraud, as his own property, 13. Kiehn was warned by some one on or before February 3, 1916, that the notes traded to him by Willmann were no good. 14. Some party living in the town of Quanah did, prior to the 28th day of March, 1916, write Kiehn that the Quanah lots, which secured one set of notes, were worth no more than $10 each. 218 S.W.-2 |