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(218 S.W.) case, because of the difference in the facts. / feasor or to natural causes. In such cases, In the Cholson Case, for instance, it was since the injured party cannot supply the mate. stated by the court that it was largely a mat- rials necessary to enable the jury to make an ter of conjecture and speculation as to what exact computation of the damages in suit, the the death rate of the cattle would have been approved practice is to leave it to the good had not the defendant torn down and re

sense of the jury, as reasonable men, to form

from the evidence the best estimate that can moved plaintiff's fence, and that the death of be made under the circumstances as a basis 125 cattle, or any other number, as a result of compensatory damages for the actionable of defendant's wrongdoing, was a contin-injury.” gency too remote and uncertain to submit to

In Allison the jury. It is also pointed out in that case

Chandler, supra, Judge that no effort was made, either by direct or Christiancy, among other things, said: circumstantial evidence, to approximate the “The law does not require impossibilities, number.

and cannot therefore require a higher degree Appellee in his brief cites numerous cases, of certainty than the nature of the case admits. chiefly: Bennett v. G., C. & S. F. Ry. Co., | And we can see no good reason for requiring 159 S. W. 132; 8 Am. & Eng. Enc. of Law ang higher degree of certainty in respect to the (2d Ed.) pp. 610, 611; 17. Corpus Juris, 755, amount of damages than in respect to any

other branch of the cause. Juries are allowed 756: Ogden v. Lucas, 48 Ill. 492; Gould v.

to act upon probable and inferential, as well as McKenna, 86 Pa. 297, 27 Am. Rep. 705; Jen direct and positive, proof. And when from the kins v. Penn. Ry. Co., 67 N. J. Law, 331, 51 nature of the case the amount of the damages Atl. 704, 57 L. R. A. 309; Larned v. Castle, 78 cannot be estimated with certainty, or only a Cal. 454, 18 Pac. 872, 21 Pac. 11; Scheurer | part of them can be so estimated, we can see v. Banner Rubber Co., 227 Mo. 347, 126 s. no objection to placing before the jury all the W. 1037, 28 L. R. A. (N. S.) 1207, 21 Ann. Cas. facts and circumstances of the case having any 1110; Allison v. Chandler, 11 Mich. 542; and tendency to show damages or their probable

amount, so as to enable them to make the most Gilbert v. Kennedy, 22 Mich. 117.

intelligible and probable estimate which the naIt is claimed by appellant's counsel that ture of the case will permit." none of these authorities is in point, because they merely hold that an uncertainty as to [5] In respect to cause or causes of damthe manner or extent of damages in an ac age, we see no difference in principle from a tion for tort does not defeat recovery, and question of the nature or extent of the damthat the amount of damages may be fixed by ages; and think that the rules just quoted the jury in the exercise of sound and reason are applicable, at least where the proof tends able discretion; whereas the question in this to show with reasonable certainty that some case is not the amount or extent of the dam- of the loss has resulted from the negligence ages, but whether there is any evidence to of the defendant. In this case, whatever unshow that any of appellee's damage or loss certainty may exist as to the proportion in was caused by appellant's negligence or which appellant's negligence and that of breach of duty.

other parties contributed to cause appellee's It must be confessed that an examination loss, it was occasioned, in part, by appellant's of appellee's authorities will show that they negligence and wrongdoing, and as said in are largely to the effect as contended by ap Gilbert v. Kennedy, supra: “Justice and pellant. The facts in most, if not all, of sound policy alike require that it should bear them, do not involve the question of an un- the risk of the uncertainty thus produced.” certainty as to cause, except that they in [6] When the facts are carefully examined, volve damages resulting from separate and we think that sufficient evidence will be independent causes, concurring in the total found in the record to show that appellee, injury or damage inflicted. However, the with reasonable certainty, proved a part, purposes of this inquiry will be aided by at least, of his damage was caused by appelbrief quotations from some of these cases, lant. It will be sufficient to recite these facts announcing principles which are thought to and circumstances: That until appellant bebe applicable to the facts of the instant case. gan to construct its roadbed through the

In Jenkins v. Penn. Ry. Co., supra, Jus pastures none of appellee's cattle has been tice Pitney used this language:

escaping, and no others had been getting in. "It is obvious that, if the property owner Appellee and at least one other witness tesmust be confined to nominal damages in such a tified to having seen cattle go in and out of situation, it is the same in effect, as to say that the pastures through gaps left in the fences he is entitled to no recovery. In our opinion, on appellant's right of way, and numerous this is not the law. The situation is one that tracks were shown to have been found at is not very unusual in actions of tort. It many these places. On the other hand, no wittimes bappens that the damage arising from

ness testified to having seen any cattle come an actionable injury chargeable to the defendant is, in the nature of things or from the cir- in or go out the pastures through any other cumstances of the cases, indistinguishable from gaps or openings, or to have seen any tracks other damages occurring at the same time, at- at any other openings. There is ample evi. tributable to the acts of an independent tort-dence to show, with approximate certainty,

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

Appeal from Upshur County Court; D. cannot say that the jury were not warranted Walker, Judge. in finding that at least 10 of the escaping Suit by Dora Belle Fenton and another cattle went through the gaps or openings for against J. L. Miller. From judgment for dewhich appellant was responsible, and in fendant, plaintiffs appeal. Reversed, and awarding damages therefor, as well as in judgment rendered in favor of plaintiff Dora the other items of recovery. The proof was Belle. as certain as the circumstances and nature of See, also, 207 S. W. 631. .the case would admit, and authorized the inferences found by the jury. It is true that

The suit is by the appellant Mrs. Fenton, the evidence did not show conclusively, or joined by her husband, to recover the posseseven positively, that any particular number sion, or, in the alternative, the value of the of the 17 head of cattle escaped through specifically described property in the petiopenings on the right of way, and that it is tion. Mrs. Fenton claimed the property as her possible all of them may have escaped else- separate property. The appellee answered by where. On the other hand, it is possible, and denial, and pleaded that the property was the not at all improbable, that they all escaped community property of Mrs. Fenton and her through the openings on the right of way. husband, and that it was subject to sale The jury, uncertain upon this point, appor

under execution for community debts. The tioned the loss, finding that at least 10 out of trial was before the court without a jury, and the i7 head went through the openings at- findings of fact were made by the court, and tributable ot appellant. There was some

judgment was entered, awarding Mrs. Fenton testimony that there was a break on the and the appellee each one-half of the propnorth side of the pasture, and a gate on that

erty in suit. The court's findings are not side which was sometimes left open, and one

challenged, and are therefore here adopted. witness testified to having seen 7 head of The property is alleged by both the plaintiff appellee's cattle outside the pasture north and the defendant, and as well found by the of said side, and, the testimony not showing court in point of fact, to be personal propthat they were ever recovered, it may be erty of a value within the jurisdiction of the 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- suit was bought and paid for by Mrs. Fenton

of fact that: (1) One-half of the property in able for at least 10 head.

with land inherited by her from her father's The question is regarded by us as close, but viewing the testimony, both direct and estate, and “that the one-half of the propcircumstantial, as a whole, we believe the erty purchased by Mrs. Fenton from her jury were justified in the verdict rendered, gin and grist mill (the property in suit), and

son was paid for out of the earnings of said and that we are not warranted in disturbing became the cominunity property of Dora it. Finding no reversible error in the record, (2) that “R. Fenton gave to his wife, Dora

Belle Fenton and her husband, R. Fenton;" the case is affirmed.

Belle Fenton, whatever interest he had in Affirmed.

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 differ

ent parties;" and (4) that “the plaintiff R. FENTON et al. v. MILLER, (No. 2203.)

Fenton became indebted to the defen int, (Court of Civil Appeals of Texas. Texarkana.

J. L. Miller, on March 25, 1915, for a piano, Jan. 8, 1920.)

giving two notes." R. L. Miller subsequently

sued on the two notes, and under the judg. 1. FRAUDULENT CONVEYANCES Ew208 – VOL- ment obtained against R. Fenton levied upon

UNTARY GIFT TO WIFE NOT VOID AS TO SUB- and sold under execution the property in SEQUENT CREDITORS.

suit as the property of R. Fenton, the hus. Under Vernon's Sayles' Ann. Civ. St. 1914, band. J. L. Miller became the purchaser art. 3967, a husband's gift to his wife, merely under execution, and claims title to the because without consideration and voluntary, property in suit in virtue of the execution is not void as to subsequent creditors.

sale. Mrs. Fenton claims title to the whole 2. APPEAL AND ERROR Cw910-LEGALITY OF property as her separate property by virtue GIFT TO WIFE PRESUMED TO UPHOLD JUDG- of the original purchase and the gift to her

by her husband of the one-half found by In the absence of contrary facts found by the court to be community property. The the trial court, the Court of Civil Appeals must appellee contended that the gift by the hus

MENT.

Om 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.

well secured as represented by defendant, tried

to sell the notes to third persons, and, as deC. E. Florence, of Gilmer, for appellants.

fendant's agent, tried to sell to third persons T. H. Briggs and J. N. Aldridge, both of the land he had conveyed to defendant, he waivGilmer, for appellee.

ed the fraud practiced upon him by defendant

and ratified the contract. LEVY, J. (after stating the facts as above).

3. VENDOR AND PURCHASER 44-EVIDENCE [1,2] If the gift by the husband to the wife

SUFFICIENT TO SHOW WAIVER OF FRAUD BY of the one-half of the property in suit was

VENDOR. legal and not void, then the wife was en

In grantor's action to set aside conveyance titled to recover all of the property instead and cancel note upon ground of grantee's fraudof only one half of the same. According to ulent representations as to value and security the court's findings of fact the gift to the of vendor's notes given grantor in exchange for wife was made "in 1912 or 1914," and ac- property, evidence held to sustain findings that cording to the court's findings, "R. Fenton grantor, after discovery of the fraud, tried to became indebted to the defendant, J. L. Mil. sell the notes to third persons and to sell the ler, on March 25, 1915, for a piano, giving the property as grantee's agent. said Miller two notes." The appellee there- 4. ACTION 25(2)-ACTION ONE IN EQUITY fore was a creditor subsequent to the time of FOR RESCISSION AND NOT AT LAW FOR DAM the gift in evidence by the husband to the AGES. wife. Article 3967, Vernon's Sayles' Statutes, Vendor's petition, alleging that vendor's expressly provides that such gift shall not, notes on other land received for the land sold because merely without consideration and

were valueless, held to state a cause of action voluntary, be void “as to subsequent cred in equity for rescission and recovery of the itors," as the appellee was.

property transferred, and not a suit for damThe appellee

ages. therefore cannot attack the gift on that ground. And while the court finds that at the 5. PLEADING Ow279(4)_SUPPLEMENTAL PETItime of the gift the husband "owed eight or

TION SETTING UP NEW MATTER NOT CONSTI

TUTING A REPLY INSUFFICIENT. ten different parties,” there is no finding that the husband was insolvent at the time and in supplemental petition attempting to set up

In suit to set aside deed, new matter alleged could not pay the parties the amounts he claim for damages, but not constituting a reply owed them. It does not appear in the to any allegations in defendant's answer, under court's findings that the gift was parol; and district and county court rule 5 (142 S. W. therefore, in the absence of further facts, xvii), was not sufficient to warrant submission this court must indulge the presumption on of question of damages, since such matter, unappeal that the gift was made in compliance der rule 15, should have been pleaded by amendwith the law. The opinion in case in 207 s. ment to the petition. W. 631, did not involve the question of gift as here.

Appeal from District Court, Fayette CounThe judgment is reversed and here ren- ty; M. C. Jeffrey, Judge. dered in favor of the appellant Mrs. Fenton Action by E. W. Kiehn against R. J. Willfor title and possession of all the property in mann. Judgment for defendant, and plaintiff suit.

appeals. Affirmed.

John T. Duncan, of La Grange, for appellant.

Dibrell & Mosheim, of Sequin, and L. D.' KIEHN v. WILLMANN.. (No. 7760.) Brown, of La Grange, for appellee. (Court of Civil Appeals of Texas. Galveston, Dec. 4, 1919. Rehearing Denied

LANE, J. This suit was instituted by E. Jan. 15, 1920.)

W. Kiehn, appellant, against the appellee,

R. J. Willmann, to set aside a deed of convey1. APPEAL AND ERROR Ow1056(4)—Exclusion ance from appellant to appellee to 161.9 acres

OF EVIDENCE HARMLESS IN VIEW OF DETER- of land situated in Fayette county, Tex., and MINATION ON OTHER ISSUE.

to cancel a certain note for $1,200, executed In action to set aside conveyance for fraud, | by appellant and payable to appellee. exclusion of evidence tending to show that defendant was a swindler, if error, was harmless, is substantially: That appellee traded ap

The cause of action as alleged by appellant where the court found that defendant had made the fraudulent representations but gave defend- pellant three sets of vendor's lien notes, agant judgment on ground of estoppel.

gregating the sum of $6,600, and some accrued 2. VENDOR AND

interest, for appellant's tract of 161.9 acres PURCHASER 13(1)-PUB

of land, which was valued at $8,850, but was CHASER WHO ATTEMPTS TO SELL NOTES RECEIVED FOR PROPERTY AFTER DISCOVERY OF incumbered by an indebtedness of $3,350, the FRAUD WAIVES FRAUD.

payment of which appellee assuined. For If plaintiff, after discovering that the ven

the difference between appellant's equity in dor's notes transferred to plaintiff by defendant the tract of land and the aggregate amount

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

of appellee's vendor's lien notes, with accrued equitable powers of this court, and is estopped interest, appellant gave appellee his personal from doing so, for the reason that this defendant note for $1,200, secured by one set of the ven

says that if the securities transferred and asdor's lien notes so traded him by appellee. signed by him to plaintiff as alleged in plain. The notes traded appellant by appellee were said notes were given for land and lots of in

tiff's petition are worthless securities, and that secured by the vendor's lien against certain ferior value and worth far less than the amount lands and lots situated in Pecos, Dimmitt, of said notes, this defendant charges that such and Hardeman counties.

fact became known to plaintiff long before the Reduced to the ultimate, the complaint of institution of this suit, and that plaintiff reappellant, as alleged in his original petition, ceived the information alleged by him to have is that the appellee knowingly and willfully, been received, and whether true or false, such and for the purpose of deceiving and robbing information was believed by plaintiff to be him of his property, fraudulently represented said' securities from his point of view were in

true; and that after plaintiff ascertained that to him that said notes traded to him were adequate and worthless this defendant charges good notes, that they were well secured, that that plaintiff, in an endeavor to impose upon the payments recited in the deed retaining others, offered said securities for sale, and enthe vendor's liens had been made, and that deavored to sell said securities for their face the notes were gilt-edged; but that such rep- value, and hence defendant says that plaintiff resentations were false and untrue, and does not come into this court with clean hands, were known to be false by appellee' when but comes tainted with an effort to commit made; that the security, instead of being of the court; and defendant here now pleads

fraud, and hence is estopped from asking equity good as represented, was practically worth- in bar of plaintiff's right to ask that the deed less and grossly inadequate, and that said to said land made to this defendant be set aside notes were not good, well-secured, gilt-edged and held for naught, and that the note exécutnotes, but were practically worthless; but ed by plaintiff to this defendant be canceled that appellant, believing such representations and held for naught, and asking for a rescisto be true, relied thereon and was thereby cstoppel in bar of any right in plaintiff to ask

sion of the entire contract, the principle of defrauded by appellee of his land and prop- equity in this cause, and by offering said notes erty and induced to execute and deliver to ap- for sale said plaintiff has elected to accept said pellee the note for $1,200, and that he has property, and being aware of all the facts rebeen actually demaged in the sum of $6,500; lating to said securities he waived the right and, further, that, by reason of the oppression to the rescission of said contract of sale. and deceitful misrepresentations of appellee,

"Defendant further avers that if there was he demands the sum of $1,000 as punitory any fraud practiced upon plaintiff as averred, damages; that he tenders into court, and to or if there was any reason why said sale should appellee, the notes received by him from ap- confess, but denies, then he says that after

have been rescinded, which defendant does not pellee, and then prays relief from the court plaintiff became aware of such and believed as follows:

same to be true, or after he had information "That the deed executed by this plaintiff concerning same which put him upon inquiry, through and on account of the fraudulent rep- which inquiry, if pursued, would have disclosresentations of the said defendant on the 31st ed all facts concerning the property in quesday of January, 1916, and recorded in volume tion, plaintiff, by his own acts, elected to accept 101, pp. 50-51, of the Deed Records of Fayette the properties passed to him and to treat the county, shall be canceled, annulled, and held properties passed to defendant as being defendfor naught, and the title of said land be divested ant's, and had transactions with defendant conout of the defendant, R. J. Willmann, and be cerning same, and waived his right to rescind reinvested in this plaintiff; and, further, that said sale, if any ke had, and is now forever the defendant be commanded to deliver into this estopped from seeking a rescission of said sale court this plaintiff's notes executed in part pay

at the hands of this court." ment for said notes, and that the same be canceled and annulled and held for naught; and

He prayed that his title to the property that, if the defendant herein have in any way

in controversy be quieted. disposed of said note, then he asks for judgment

By what is styled plaintiff's second supagainst the defendant for the amount of said plemental petition, appellant alleged that in notes, with the same rate of interest which said his contract with appellee he (appellee) was note bears, and he asks for all such other relief, to pay the accrued interest on the $3,350 note, whether the same be legal or equitable, which the payment of which was assumed by appelhe may be entitled to under the facts herein lee; that said accrued interest amounted to pleaded and proven in this cause, for costs of $190 or $200; that he paid appellee $167 suit and general relief, for all of which he will to pay said accrued interest, and that appellee ever pray."

expended the same for his own use and benAppellee answered by general denial and efit and did not pay said accrued interest as by special plea in bar of appellant's right of he had agreed to do; that as no interest had rescission of the contract between the parties, been paid on the note suit was instituted as follows:

thereon by the holder thereof, and by reason "This defendant, R. J. Willmann, further

of such suit appellant's liability was increasresents and shows to the court that plaintiff is ed $250 as attorney's fees; and that by reanot in a position in this case to invoke the son of the refusal of appellee to reconvey

rep

(218 S.W.) to him his land he had been damaged in the some part thereof, was insufficient security further sum of $500. In this supplemental | therefor, did advertise such notes for sale petition he prayed for judgment for the $167 on or about the 28th day of March, 1916, and paid by him to appellee for the purpose of did try to sell said notes, or some of them, to paying accrued interest, and for such other Adolph Seidemann on or about the 4th day damages as he had sustained, in addition to of April, 1916, and to any other person or the relief prayed for in his original petition. persons, for the purpose of raising money to

The cause was submitted to a jury upon pay off his note at the bank and to obtain a special issues, and in response thereto they, benefit therefrom. in effect, made the following answers:

16. The offer of Kiehn to sell said notes to 1. R. J. Willmann did represent to E. W. Seidemann was with a bona fide intention of Kiehn that the notes he traded to him, Kiehn, disposing of the notes, and was not made for secured by a lien on the Dimmitt county the purpose of ascertaining the true comland, were gilt-edged, first-class, commercial mercial value of the notes, as contended by paper.

Kiehn. 2. That such representations so made by

17. After Kiehn had discovered the fraud Willmann were false.

practiced upon him by Willmann which in3. R. J. Willmann did represent to E. w. duced him to trade for said notes, he recogKiehn that the notes he traded to him, Kiehn, nized the sale of the notes to himself as secured by a lien on the Quanah lots, were existing, and did thereafter continue to deal good notes and well secured.

with them as his own with the intent to ob4. That the representations so made by tain the benefit of said sale and of the notes Willmann were false.

transferred and delivered to him. 5. R. J. Willmann did represent to E. W.

18. After Kiehn discovered said fraud on Kiehn that the notes he traded to him, Kiehn, the part of Willmann he recognized the sale secured by a vendor's lien on the Pecos county of the land in controversy to Willmann as land were good, and that they were gilt- existing, and he did thereafter continue to edged, and that the consideration recited in deal with the same as the property of Willthe deed had been paid.

mann and did try to sell the same for Will6. That the representations so made by mann for a commission. Willmann were false.

19. Before Kiehn offered the notes he got 7. That each and all of such representa- from Willmann for sale and before he advertions so made by Willmann to Kiehn were tised them for sale he did have knowledge of false and were known to be false by Will such facts as would put a man of ordinary mann when made, and were made by him for care and prudence upon inquiry as to the the purpose of deceiving Kiehn and inducing value and extent of the security for said him to trade for said notes.

notes and the solvency of their makers. 8. Kiehn did rely upon such representations

20 and 21. The evidence shows that W. B. 80 made by Willmann to him, and made no Dennis and C. P. Thrailkill, the makers of manner of investigation as to the value of the notes in question, are both insolvent and said notes sold and transferred to him by without sufficient means to pay their respecWillmann.

tive obligations. 9. R. J. Willmann did tell Kiehn that he, The trial court approved the findings of the Willmann, had not seen the property for jury and in the judgment rendered recites, in which said notes were given.

substance, that the contract of sale and ex10. Willmann did not furnish to Kiehn a change of properties between the parties was description of the property securing said induced by the fraudulent representations and notes in order that he might be able to in- deceitful conduct on the part of appellee, as vestigate the value of the securities offered, alleged by appellant; but it is further recited and suggest that he do so, before the trade therein that it also appeared to the court was concluded.

from the findings of the jury that while ap11. None required nor made.

pellee, Willmann, was guilty of fraud in the 12. Plaintiff, Kiehn, turned over his papers transfer of the vendor's notes to appellant, relative to his trade and controversies arising Kiehn, which were insufficiently secured, as therefrom to his attorney for attention about a part of the consideration for the deed to the 15th day of March, 1916.

the land in controversy, that Kiehn, after 13. Kiehn was warned by some one on or discovering the fraud practiced upon him by before February 3, 1916, that the notes traded Willmann, advertised the notes for sale which to him by Willmann were no good.

he got from Willmann in said trade and en14. Some party living in the town of Qua- deavored to sell them for the purpose of nah did, prior to the 28th day of March, 1916, raising money to pay off the $1.200 note exwrite Kiehn that the Quanah lots, which ecuted by him to Willmann which was held secured one set of notes, were worth no more by the bank, and to obtain a benefit therethan $10 each.

from, 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,

218 S.W.-2

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