and that he also, after discovering said fraud, dealt with the land which he had conveyed to Willmann as the property of Willmann, and thereafter endeavored to sell the same for Willmann as his property for a commission. Following these recitals the court rendered the following judgment:

"It is therefore and thereupon considered, ordered, and adjudged by the court that the plaintiff, E. W. Kiehn, take nothing by his suit and that he pay all costs of this suit.

"It is further considered, ordered, and adjudged by the court that the deed of conveyance from the plaintiff, E. W. Kiehn, to the defendant, R. J. Willmann, of date January 31, 1916, and recorded in volume 101, on page 50, of the Deed Records of Fayette county, Tex., conveying 161.9 acres of land, a part of the Noah Karnes league, in Fayette county, Tex., and fully described in said deed, be and the same is hereby declared a valid and subsisting deed, and that said defendant, R. J. Willmann, be quieted in his title and possession to said land and in and to his title and possession of said note for $1,200, and that he recover of plaintiff, E. W. Kiehn, all costs in this suit."

W. at page 854; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 597; Winters V. Coward, 174 S. W. 940; Zundelowitz v. Waggoner, 211 S. W. 598; Pomeroy on Cont. (2d Ed.) § 279; Pomeroy's Equitable Jurisprudence (3d Ed.) §§ 964 and 965.

There being no question but that palpable fraud had been committed by Willman, by means of which he obtained a deed from Kiehn conveying to him the land in controversy, and also the note of Kiehn for the sum of $1,200, as before stated, the only important inquiry now is: Is the evidence tending to support the answers of the jury to special issues 12 to 19, inclusive, sufficient to support such answers?

The undisputed evidence shows that appellee, Willmann, as part consideration for the land of appellant and for appellant's $1,200 note which was delivered to him, transferred to appellant, Kiehn, the following notes, three notes aggregating $2,100, purporting to be secured by a first lien on 10 lots in the city of Quanah, Hardeman county, Tex., notes aggregating $2,250, purported

Assignments 1 to 11, inclusive, are complaints of the refusal of the court to permit the plaintiff to introduce certain evidence which he contends tends strongly to support his allegations that the defendant, Willmann, is a swindler, and that he did defraud him, Kiehn, as alleged by him.

[1] In view of the findings of the jury in answer to questions 1 to 10, inclusive, submitted by the court, which were amply supported by the evidence, to the effect that the fraud as alleged was practiced upon Kiehn and that it induced him to make the contract in question and to transfer the property involved in this suit and to execute and deliver to Willmann his note for $1,200, the refusal of the court to admit the evidence tendered, if error, became harmless. Such refusal furnishes no cause for a reversal of the judgment rendered, and in view of the disposition we shall make of this appeal it is no longer a material question and need not be discussed further in this opinion.

[2] We have reached the conclusion that the only material question left for our determination is: Was there sufficient evidence to support the answers of the jury to special issues, 12 to 19, inclusive? If there was, the judgment of the trial court must be affirmed; if not, such judgment should be reversed and the cause remanded for another trial. We think there can be no controversy but that such answers of the jury, if supported by sufficient evidence, convict appellant under the well-established rule of law of having waived the fraud practiced upon him by appellee and of having ratified the contract which he now seeks to rescind. Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S.

land in Pecos county, Tex., and one set of notes aggregating about $2,250 purported to be secured by a lien on 70 acres of land in Dimmitt county, Tex.; that one W. B. Dennis was the maker of the first two sets of notes and one C. B. Thrailkill the maker of the third set; and that the contract between the parties to this suit was consummated on the 31st day of January, 1916.

Appellant, Kiehn, testified that in a few days after he got the notes from Willmann, on the 31st day of January, 1916, the people of Schulenberg told him that the notes were no good; that he got the information that the notes were no good at Schulenberg from the First National Bank; that when he turned the matter over to his attorney about the 15th day of March, 1916, he knew, or believed rather, that the notes were worthless and of no value; that they were no good. He also testified that when he turned the matter over to his attorney about March 15, 1916, he gave his attorney such information as he had acquired relative to the value of the notes and the property securing same, and that he turned over to said attorney all letters he had received relative to such matters, and that at that time he had reached the conclusion that the notes were worthless. Again he testified:

"I closed the deal the last day of January. I found out that there was something wrong about these notes shortly after that; I judge about two or three weeks after that, maybe a month. Possibly I did write Willmann three days after that and told him that friends of mine at Schulenberg said the notes were not worth anything; were no good. It has been so long ago, I don't know who these friends were. Possibly the bank informed me or told me on or about the 3d day of February, 1916, that

Again he said:

that time.

"I went to Judge Duncan some time in March, according to my best recollection. I gave him all the information I had in my possession at * At the time I brought suit I was convinced that the notes were worthless. * * I wrote to one or two loan offices in San Antonio and they wrote they wouldn't have anything to do with the notes. I have no idea the name of them now. I wrote a pretty good while after I had them, shortly before I filed suit, evidently in March. I cannot tell the time exactly. I cannot tell the name of the loan company to whom I wrote."

J. F. Johnson testified by deposition as follows:

"Something like three or four months ago Mr. Kiehn, or some person of such name, wrote a letter to some real estate agent in Quanah, Tex., and the same was placed in my box at the post office. And in this letter it asked that the agent try to sell some notes that he had which were secured on some farm lots in Quanah. I do not know that this was Mr. Kiehn, but the name was very similar. I answered this letter and asked for a description of the lots, and told him I would help him dispose of the notes. And I received a letter in a few days giving description of the lots and notes, and after I had examined the lots I wrote him and told him that the lots were worth about $10 apiece. I did not keep these letters and cannot attach them hereto."

Testifying with reference to a letter written by Mr. Hankins to him, wherein it was stated the ten lots in Quanah were not worth more than $10 each, appellant said:

"I exhibited that letter from Mr. Hankins, I know, or whatever his name is, to Judge Duncan when I employed him. The letters must be among the papers; as near as I know I turned them over to Judge Duncan. I had that information about the value of the property before I employed Judge Duncan."

"I am devoting my entire time and attention at present toward selling one set of the notes which I obtained from you, but in every instance I meet with adversities, which disappoint me very much."

That one Emil H. Baumgarten, who brought suits against appellee, Willmann, wherein he charged fraud and deceit on the part of Willmann, and appellant, Kiehn, were neighbors; that they went to La Grange, the county site of Fayette county, together and there consulted and employed the same attorney at the same time to bring their respective suits.

Willmann as follows:
On March 21, 1916, appellant, Kiehn, wrote

"I do not think that there is much business with the parties interested in the 162-acre farm. It will be a good idea for you to come here this week; I may be absent next week."

With reference to this postal Kiehn testified:

"I wrote this postal card dated March 21st; that is my handwriting. The land it refers to is 161.9 acres I conveyed to Mr. Willmann. On March 21st I was attempting to sell this land for Mr. Willmann, and he was to pay me a commission. The commission was to be 5 per

cent."

On the 28th day of March, 1916, appellant placed in the San Antonio Express an advertisement reading as follows:

"Notes for Sale.

"$4,400 worth of first vendor's lien 8 per cent. notes for sale at a great discount. Notes well secured, perfect title; 124 Schulenberg, Texas."

On the 1st day of April, 1916, one Adolph Seidemann, of New Braumels, wrote Kiehn as

follows:

"I noticed in San Antonio Express that you are offering for sale notes aggregating the sum of $4,400 (forty-four hundred dollars), said notes bearing interest at the rate of 8 per cent. per annum, said notes being secured by lien.

That on February 3, 1916, three days after he got the notes, Kiehn wrote R. J. Willmann as follows:

"I just arrived home and upon investigation find that my client who is interested in my farm bought a small place in his neighborhood. I do not think that this is enough land; however, I shall investigate, and if I think that we can do something I will write or telephone you, if necessary. I made some inquiry with reference to selling my land notes, but seem to meet with many adversities. My friends told me that these notes are 'no good.'"

will you furnish abstracts of title for examination?

"Please advise me at your earliest convenience."

On the 4th day of April, 1916, Kiehn replied:

"I have your favor of the 1st inst., relative to my ad in the San Antonio Express concerning certain notes.

"I have one set of notes amounting to $2,250, payable $250 in June, 1916, $500 in June, 1917, 1918, 1919, and 1920. These notes are secured by 70 acres of land in Dimmitt county.

I have an abstract down to date and title has been investigated by a guaranty company and approved. I have their written statement that said notes are first and the only lien on said land. These notes bear 8 per cent. interest; are signed by C. P. Thrailkill, who resides in San Antonio. Since advertising these notes I changed my mind concerning the other notes that I hold, which are secured by land further West. I desire to retain said notes and they are off the market.

"Hoping that you may be in a position to handle the above-described notes, which I am willing to discount liberally, together with accrued interest. Telephone me upon receipt of this letter and I shall forward abstract for your investigation.

"Any favor and courtesy that you may be good enough to grant me herein, I assure you, shall be very highly appreciated, and thanking you in advance for an immediate and favorable reply, I am

"I put the advertisement in the paper because I wanted to, thought I might have sold one set of notes. I was trying to find out whether the notes could be sold. I wanted to see whether or not the notes were salable, if some one would be interested in them. I got a letter from a man by the name of Seidemann, and I replied to this letter. I did not intend at that time to give up my right to recover from Willmann this land I am now suing for. The notes secured by the Quanah lots were not in the hands of the bank as collateral; it was a note executed by Thrailkill. The gentleman by the name of Seidemann wrote me that he had seen my advertisement and asked me to give him more particulars about it, and then I offered him the notes secured by the 70 acres in Dimmitt county. These are the notes that the bank have. If Seidemann had replied to me that he would buy the notes, of course I would have sold them to him. I told him that I would sell them. I wanted to do so, so I could pay off the note the bank held. That was the purpose I was trying to sell the notes for. I suppose I offered these notes to Mr. Seidemann on the 4th day of April, 1916. I wanted the money for the purpose of paying off the bank that held the notes, so that I could have them back."

It will also be noted that while appellant furnished his attorney with the information as to the acts of fraud practiced upon him by Willmann about March 15th, his suit was not filed until the 3d day of April thereafter. [3] We have reached the conclusion that the evidence was amply sufficient to support the findings of the jury to special issues Nos. 12 to 19, inclusive, and that it was the duty of the trial court upon such findings to render the judgment it did render.

In the case of Evans v. Goggin, 5 Tex. Civ. App. 129, 23 S. W. 854, it was held that fraud may be ratified and remedies against it may be lost by acquiescence; that is, as is said by Pomeroy, by some act, not deliberately intended to ratify, but recognizing the transaction as existing, and intended in some extent at least to carry it into effect, and obtain or claim the benefits from it. 2 Pomeroy, Eq. Jur. §§ 964 and 965.

In Wells v. Houston, 23 Tex. Civ. App. 653, 57 S. W. 594, it is said:

"It is well settled that a party having recognized a contract as existing, and having done something to carry it into effect and to obtain or claim its benefits and having thus taken his chances, cannot be suffered to repudiate the transaction and allege its voidable nature." In Winters v. Coward, 174 S. W. 940, it is said:

"The remedy of rescission and cancellation is no prime favorite of courts, and slight circumstances, tending to show a purpose or intent upon the part of the person seeking a rescission to waive such right, will prevent the granting of the relief. The right of rescission is one that can be waived, and when waived, the rights of the parties are placed upon a new basis. Scarborough v. Arrant, 25 Tex. 129; Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Kallison v. Poland, 167 S. W. 1104; Kempner v. Thresher Co. [54 Tex. Civ. App. 650], 118 S. W. 714; Trausettel v. Kjellman, 163 S. W. 689."

In Sundelowitz v. Waggoner, 211 S. W. 598, it is said:

"Fraud which renders a contract voidable may be waived or condoned and the contract ratified by the party defrauded, but acts relied upon as ratification must be done after the person defrauded 'has obtained full knowledge of all the material facts involved in the transaction, has become fully aware of its imperfection and of his own rights to impeach it, or ought and might, with reasonable diligence, have become so aware.' 2 Pomeroy (3d Ed.) par. 964; North American Accident Insurance Co. v. Miller, 193 S. W. 758; Ingram v. Abbott, 14 Tex. Civ. App. 583, 38 S. W. 626; Black on Rescission and Cancellation, par. 591."

In 3 Pomeroy's Equity Jurisprudence, §§ 964 and 965, the following rule is stated:

"Sec. 964. Where a party originally had a right of defense or of action to defeat or set aside a transaction on the ground of actual or constructive fraud, he may lose such remedial right by a subsequent confirmation, by acquiescence, and even by mere delay or laches. Contracts which are merely voidable because contrary to good conscience or equity may be ratified, and thus established. If the party originally possessing the remedial right has obtained full knowledge of all the material facts involved in the transaction, has become fully aware of its imperfection and of his own rights to impeach it, or ought and might, with reasonable diligence, have become so aware, and all undue influence is wholly removed, so that he can give a perfectly free consent, and he acts