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been rendered in said partition proceeding, but that, nevertheless, the interest of appellants, as tenants in common with said Hughes, Baten, and others, could be and would be fully and adequately protected in said partition suit in Hardin county, when judgment therein should be rendered, and that such judgment could there be rendered as would give effect to the deed made by said Hughes, Baten, and others to appellee, and confirm in it the specific portions of said North and South Hooe surveys as were conveyed to it by said deed, and that at the same time the interest of appellants could and would be fully protected in said partition proceeding.

the said Hughes, Baten, and others convey- I said plaintiffs therein and appellants here, ed to appellee, by specific metes and bounds, but that no judgment of partition had yet a certain strip or parcel of land across said North, Middle, and South Hooe surveys, said strip being 50 feet in width and in length sufficient to cross all of said surveys; that the purpose of appellee in purchasing this strip of land across said Hooe surveys was to make it the owner thereof, and enable it to build and construct a tram railroad over said Hooe surveys from its mill on the W. S. Brown survey in Tyler county, to the timber owned by it on the George Brown league in Hardin county, so that it might cut and remove said timber to its said mill; that appellee had commenced the construction of its tram railroad, and at the time of the presentation of said petition to said judge, praying for the injunction herein, had nearly reached the north line of the North Hooe survey with its said tram railroad.

(3) Appellee alleged that at the date of said deed to it from Hughes, Baten, Gordon, Little, Parker, and McLean, they, the said Hughes, Baten, and others, owned jointly with the appellants here the said North Hooe survey and the south half of the South Hooe survey, but that such ownership was as tenants in common, the interests of said owners being undivided in said Hooe surveys; and it is alleged by appellee that in consequence of said deed to it by said Hughes, Baten, and others, tenants in common with appellants here, appellee became the sole owner of said strip of land across said Hooe surveys, and that appellee is entitled to the exclusive possession thereof, for the exclusive operation of its contemplated tram railroad; that said strip of land conveyed to appellee across said Hooe surveys is of no greater value than any other portion of said Hooe surveys, and that appellants' cotenants, Baten, Hughes, and others, owned a much larger interest in said North and South Hooe surveys than was conveyed by their said deed to appellee, and that under such circumstances appellants' cotenants, Hughes, Baten, and others, had a right to convey to appellee the specific portions of said North and South Hooe surveys, as they undertook to do by said deed, and that appellee was entitled to construct its tram railroad upon those portions of said surveys so conveyed, and to use the same for its tram railroad purposes, to the exclusion of and without being interfered with by appellants.

(5) It was further alleged in the petition that appellee feared that appellants would interfere with its attempt to construct its. said tram railroad across said Hooe survey, and would interfere with its operation of its said tramroad, as appellants had threatened to do, and, if so, appellee would be prevented from manufacturing its said timber, and would be greatly and irreparably damaged, etc.

The prayer of appellee found in the petition was as follows:

"Plaintiff prays that the defendants be cited in terms of law to answer this petition, and that issue his most gracious writ of injunction, repending the final hearing hereof, your honor do straining the defendants and each of them, their agents, servants and employés, from in any way possession of that portion of the North Hooe interfering with or disturbing plaintiff in its survey and south half of the South Hooe survey described in the deed from Thomas Hughes and others to this plaintiff, and herein describand employés, be enjoined and restrained from ed; that said defendants, their agents, servants in any wise interfering with the track or tramroad placed upon the portion of the North Hooe and south half of the South Hooe surveys deto plaintiff, and that they be enjoined and rescribed in said deed from Thomas Hughes et al. strained from interfering with the operation thereof pending the final hearing of this cause; that your honor do, upon such final hearing, such other and further relief, both general and perpetuate said injunction and grant plaintiff special, to which it may be entitled hereunder, and as in duty bound it will ever pray."

The order made by Judge Llewellyn in chambers and without notice to appellants, but requiring them to make a bond in the sum of $1,000, was as follows:

"It is therefore considered, ordered, adjudged and decreed by the court that the defendants [naming them], their servants, agents and emway interfering with plaintiff's possession of that portion of the North and South and Middle Hooe surveys described in plaintiff's petition, on which it is now engaged in constructing a district court of Tyler county, Texas, issue writs tram railroad track; and that the clerk of the of injunction as provided by law, and that the same be made returnable to the next term of the district court of Tyler county."

(4) It is further shown from the petition that at the time the deed from Hughes, Ba-ployés, be restrained and enjoined from in any ten, and others, appellants' cotenants, was made to appellee, whereby appellants' said cotenants attempted to convey certain designated portions of said North and South Hooe surveys to appellee, a suit for partition had been instituted in Hardin county by the said Hughes, Baten, Gordon, Little, Parker, and McLean against the appellants, in which suit partition of said North and South Hooe surveys is prayed for, as between the

Appellants here assign a number of reasons for which they claim the injunction in this case was improvidently and erroneously

granted, in so far as the same relates to the, award to appellee exclusive possession of North Hooe survey, and the south half of the those portions of the North and South Hooe South Hooe survey, but we shall only men- surveys described in said deed of appellants' tion the two principal contentions made by cotenants to appellee, and to permit appellee appellants. to go ahead and construct valuable improvements thereupon in the shape of a tram railroad, and to authorize its exclusive operation for the private benefit and profit of appellee, to the total exclusion of appellants, and over their protest. After thinking the matter over carefully, we cannot concede that this contention made by appellee is correct.

Appellants' first contention, in effect, is that since the petition of appellee showed upon its face that appellee could in no event have any greater right in the North Hooe survey and the south half of the South Hooe survey than that of a tenant in common with appellants, appellee was not entitled to have a court of equity, by an injunctive writ, in advance of partition, grant any certain designated portion of said surveys so owned in common, to the exclusion of appellants, for the private use and benefit of appellee. In other words, it is the contention of appellants, in effect, that appellee's petition upon its face showed no legal or equitable right to the injunction prayed for, and which was granted in this cause, and this contention, we have concluded, must be sustained. As far back as the case of McKey v. Welch, 22 Tex. 390, the Supreme Court of this state, speaking through Chief Justice Wheeler,

said:

"It appears to be well settled, and upon good reasons, that one joint tenant, or tenant in common, cannot convey a distinct portion of the estate, by metes and bounds, so as to prejudice his cotenant; for, to give effect to such alienations, as against the cotenants of the grantor, would be to create new tenancies in common, in distinct tracts or parcels of the estate, held in common, to the injury of the cotenants. As one tenant in common has no right, on partition, to select any particular portion of the land, and insist on having his part set off in that specific portion, so he cannot convey such a right to his grantee."

This rule, as thus announced, has been followed by the appellate courts of this state down to date, without a single exception, in so far as we have been able to find, and we do not understand that counsel for appellee contended that the rule is otherwise. But, as we understand appellee's contention here, it is to the effect that a deed by one or more tenants in common, without the acquiescence or consent of other cotenants, conveying a distinct portion of the common estate to a stranger, will be upheld and given effect in equity, where, upon partition proceedings between all the tenants in common of the estate, such can be done without, injury to the

tenants in common, who are not parties to

such deed; and appellee says, in effect, that since it is alleged in its petition that upon partition in the suit for that purpose pending in Hardin county, the specific portions of the North and South Hooe surveys attempted to be conveyed to appellee by appellants' said cotenants, Hughes, Baten, and others, can be allowed and confirmed in appellee, without injury to appellants, Judge Llewellyn, as the district judge of Tyler county, was authorized in this proceeding to make the order which he did, and which has the effect, in advance of an ascertainment of the facts

We are fully aware of the rule in this state to the effect that where one tenant in common conveys to a stranger a designated portion of the common estate, although such conveyance be without the consent or knowledge of the grantor's cotenant, a court of equity, upon partition proceedings, will give effect to a deed thus made by one cotenant, and will confirm in the stranger to the estate the title to a specific portion of the same, where, upon hearing all of the facts adduced upon the hearing in the partition proceeding, it can be shown that a partition of the estate can be equitable, made by allowing the stranger to take such designated portion under such deed, and that the interest of the cotenants, not a party to such deed, can be fully protected in such partition proceeding, by giving effect to such deed. This is a wellestablished rule in this state, and appellants do not here question its soundness, and if, upon hearing the facts in the partition proceeding in Hardin county, that court should believe and find therefrom that the designated portions of the North and South Hooe surveys now claimed by appellee under the deed from Hughes, McLean et al. can be allowed him, and at the same time that the interests of appellants, as cotenants, can be fully protected, after so doing, then, doubtless, that court will so decree, and would be correct in doing so, but we think that to give effeet to the order of Judge Llewellyn in this case, which, in advance of hearing in the partition proceeding, has, in effect, given to appellee the right of exclusive possession of certain portions of the North and South Hooe surveys, as against appellants, and over their protest, and authorized appellee to place thereupon valuable improvements for its own private use and profit, would be not only to deny the rule well established in this state possession in all portions of the common that all tenants in common have a right of estate, but would be also in effect to determine, in advance of the partition proceeding now pending, that appellee should have those specific portions of this common estate claimed by him. We have been unable to find any adjudicated case in this state that could be construed as authority for the order made by Judge Llewellyn in this case, and none of the authorities cited by appellee go to any such extent.

a tenant in common in possession of a part of the common estate, and using and enjoying same as such, and whose possession and use is sought to be interfered with and prevented by a wrongful act on the part of appellants, as its cotenants, but the situation here is that appellee desires now to go into exclusive possession of a certain designated portion of the common estate, for the purpose of building and constructing a tram railroad thereon, and to operate the same for its own private use and benefit, to the exclusion of appellants, and the judge's order has the effect to permit appellee to do this, and we hold that the court was unauthorized, from a legal or equitable standpoint, to make such order.

It is next contended by appellants that the order of Judge Llewellyn was improvidently and erroneously made, for the reason that it has the effect to greatly embarrass the partition proceeding now pending in Hardin county between appellants and appellee's grantors, by bringing new issues into such partition proceeding, and to change the situation and status of the parties, and condition of the common estate, as they existed when the partition proceeding was instituted in Hardin county, and that for this reason Judge Llewellyn should not have granted the order, and we believe that this contention on the part of appellants is sound.

At the time the partition proceeding for this common estate was instituted by appellee's grantors against appellants, in Hardin county, the simple matter for determination, in so far as the petition here discloses, was merely to divide the interests between the co-owners, and there was nothing pertaining to any equities claimed by any of them for improvements made upon any portion of the common estate, and no question of the value of improvements placed thereon by any cotenant, would be before the court for consideration, and it would seem that it was and is the right of appellants to have that partition proceeding disposed of and concluded upon the facts as they existed when the same was instituted; but if appellee should be permitted by the judge of the district court of Tyler county to go ahead, in advance of a judgment in the partition proceeding, and construct a tram railroad on designated portions of the common property, it would necessarily follow that the district court of Hardin county would be called upon to take into consideration, in that partition proceeding, these new equities that

pellants, which leaves out entirely other cotenants, in fact, all of appellants' cotenants under whom appellee now claims, and we hardly see how the district court of Tyler county could proceed to partition this estate between appellants and appellee without appellants' other cotenants being made parties thereto, and we cannot assume that they will be made parties thereto. It was suggested, however, by appellee in the argument here, that this court ought to assume that the district court of Tyler county will make no order that will be in any way inconsistent with or embarrassing to the partition proceeding in Hardin county, notwithstanding the prayer in the petition of appellee is that the district court of Tyler county, upon final hearing, shall perpetuate the injunction which was granted by the judge in this case.

We have concluded that for the reasons specifically mentioned above, Judge Llewellyn erred in granting the writ of injunction in this case, in so far as the same pertains to the North and South Hooe surveys, and for such error the judgment is reversed, and the injunction, to that extent, is here now canceled and set aside, and all costs of this appeal adjudged against the appellee.

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-NOTICE.

Where the seller of machinery stipulated in the contract that the buyers must notify it by registered letter of any defects therein within six days of the first use of the engine, the bound thereby. stipulation was reasonable, and the buyers were

3. JUDGMENT 256(2)-AUTHORITY OF COURT TO ENTER-SPECIAL VERDICT.

Although the trial judge is required to rendict, yet where the verdict finds issues in favor der judgment in conformity to a special verof one or the other party, and it finds facts supported by the evidence which clearly entitle one to a judgment, the court should so render 4. SALES 121 ACCEPTANCE judgment.

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TIME FOR RETURNING GOODS-WAIVER OF RIGHT TO RESCIND.

Where the undisputed evidence shows that months, after knowing of the defects therein, the defendants used the machinery for several without offering to rescind, they confirmed the contract of purchase and waived the right to rescind. 79-FRAUD AND

appellee would claim, or his grantors claim for him, and very probably the partition proceeding would be much more embarrassed and difficult of solution and disposition, by reason of the building and construction of these valuable improvements, and exclusive appropriation by appellee. And, further, it occurs to us that the effect of this proceeding is real- 5. CHATTEL MORTGAGES DECEIT EVIDENCE. ly to institute another partition proceeding in Evidence, in a suit upon notes and chattel Tyler county between appellee here and ap-mortgage given by purchaser of machinery, held

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

6. SALES 418(19)-BREACH OF CONTRACT. Where the seller of machinery did not agree to pay for labor or repairs thereon, the buyer cannot recover therefor.

7. SALES 418(19)-BREACH OF CONTRACTDAMAGES-SPECULATIVE DAMAGES.

insufficient to show that fraud or deceit was [ers. Plaintiffs in error entered into a writpracticed inducing defendants to sign the con- ten contract for certain machinery with detract. fendant in error. When plaintiffs in error called for it defendant in error did not have the kind first ordered, and it would require some time to secure it from the factory. Having other kinds in stock plaintiffs in error agreed to take another kind from that which was first ordered, which was delivered. The notes, mortgage, and contract were all signed and executed, and the plaintiffs in error hauled the machinery home. The machinery purchased was one Big 4-20 Model "D" Gasoline Tractor, and one 2-36-10 Emerson Disc Plow.

In a suit by seller to recover on notes and chattel mortgage given by buyer for purchase of an engine and plows, the defendant cannot recover damages for breach because of defects in machinery, preventing them from plowing for others; the profits thereof being conjectural and speculative.

8. SALES 418(19)-BREACH OF CONTRACTDAMAGES.

In a suit for price of engine and plows, the buyer cannot recover damages resulting from inability to plow for others due to defects in machinery, where the buyer did not inform the seller at the time of purchase that he expected to plow for others.

Early in May, 1915, the plaintiffs in error tested out the machinery and the discs furnished, which proved unsatisfactory, and defendant in error was notified and others were furnished by it and accepted by plain

Appeal from District Court, Dallas Coun- tiffs in error, who proceeded to use the maty; E. B. Muse, Judge.

Suit by the Emerson-Brantingham Implement Company against S. J. Board and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Ross & Zumwalt and J. H. Synnott, both of Dallas, for appellants. Spence, Haven & Smithdeal, of Dallas, for appellee.

RAINEY, C. J. Suit was by defendant in error against plaintiffs in error on three promissory notes aggregating $2,000, with interest and attorney's fees, and to foreclose a chattel mortgage on certain machinery for which said notes were executed as shown by a written contract of sale. Plaintiffs in error denied under oath the written contract, and alleged that the machinery was bought upon a verbal contract, and further, pleaded failure of consideration; that defendant in error made certain warranties which had been breached, and further pleaded for damages. In replication defendant in error set up the written contract, and, among other things, that if said machinery failed to comply with the warranties after six days' test plaintiffs in error were to notify defendant in error in writing, which plaintiffs in error failed to do; that said machinery was delivered to plaintiffs in error on April 30, 1915, and accepted and was used by plaintiffs in error, who used said machinery plowing their land and threshing their grain, and exercising the right of ownership over it until December 15, 1915, and they could not now be heard to say that it had not been accepted. The case was submitted to a jury on special issues and answers returned. Both sides moved for judgment thereon, and the court found for defendant in error, from which this appeal is

taken.

Conclusions of Fact.

Defendant in error is a dealer in farming implements and plaintiffs in error are farm

chinery without any offer to return it and rescind the trade. They plowed 350 or 400 acres of land for themselves and threshed 8,000 bushels of wheat during 1915 without making any offer to defendant in error to return it, and it was laid up on December 15, 1915. After being in plaintiffs in error's possession for twenty days they wrote defendant in error, "Our engine and new plow we got last week are doing fine." Plaintiffs in error knew of the defect in machinery complained of early in May, but continued to use it for their own use until December 4, 1915, when they wrote defendant in error that the tractor had entirely failed and requested defendant in error to repair it.

Opinion.

[1] The first error assigned is to the court overruling the general demurrer to plaintiff's first supplemental petition. Said supplemental petition is in reply to defendants' answer, which answer, in effect, denies the validity of the notes; also setting up agreements between the parties in relation to the purchase of the machinery, false representations made by plaintiff as to the capacity and quality of the machinery, and a breach of the warranties. The said supplemental petition also pleaded the written contract which was signed by both the plaintiff and defendants, and other matters which render it not subject to a general demurrer. There are 15 objections set forth by defendants as reasons why the general demurrer should be sustained, but if any are good there is enough in the supplemental petition to render it not liable to the general demurrer.

[2] Plaintiffs in error complain in their second assignment of error of the overruling of special exception No. 3. "Said paragraph of plaintiff's petition pleads that part of the written contract wherein the defendants are required within six days of the first use of the engine to notify plaintiff by

registered letter of defects in said engine; the special exception being that the plaintiff should not be permitted to claim or assert as a matter of defense said provision, for the reason that the limitation shown to be imposed upon defendants with reference to the time within which defendants should discover and make known defects in said engine, and limiting such time to six days, is unreasonable, void, and in contravention of the statutes." There is no error in this ruling of the court, as the validity of said clause in the contract is upheld by our appellate court. Shearer v. Gaar, 41 Tex. Civ. App. 39, 90 S. W. 684; Buffalo Pitts Co. v. Alderdice, 177 S. W. 1044.

[3, 4] The plaintiffs in error's third and fourth assignments complain of the court for not rendering judgment for them on the findings of the jury. The jury found, in effect, that the warranties failed; that defendant in error was notified after six days' use that fraud was practiced upon plaintiffs

in error and the consideration for the notes

had failed. The jury also found that plaintiffs in error discovered the full extent of the defects of the engine sold them by defendant in error before they ceased to use the same in November, 1915; that plaintiffs in error plowed 350 or 400 acres of land and threshed 8,000 bushels of grain. They further answered in the affirmative the following issue:

"If you find that the defendants plowed any ground and threshed any grain with said machinery in answer to the above question, then state if any of said ground was plowed or any of said grain was threshed after the defendants had learned that the machinery was defective in any of the ways alleged in their answers or testified to by them. Answer: Yes."

While the law requires a trial judge to render a judgment in conformity to a special verdict, yet when the verdict finds issues in favor of one or the other party, and it finds facts supported by the evidence which clearly entitles one to a judgment, the court should so render judgment. Should the trial court, under such circumstances, have declared a mistrial and granted a new trial this court would have the power, under the law, to render such judgment as the trial court should have directed. Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607.

in threshing their grain and plowing their land for more than six months after they had discovcannot now be heard to say that they have not ered the alleged defects in the said engine. They accepted said engine and cannot refuse to pay the purchase price thereof. The court therefore did not err in overruling plaintiffs in error's motion for judgment and in granting defendant in error's motion for judgment.'

The evidence shows without dispute, and was so found by the jury, that plaintiffs in error used the machinery for their own benefit for several months, knowing of the defects, without offering to rescind. By thus acting they confirmed the contract of purchase and waived the right to rescind, and this warranted the trial court in directing a verdict for defendant in error. Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Bancroft v. Implement Co., 194 S.

W. 991.

[5] The evidence fails to show any fraud or deceit practiced by defendant in error in procuring the signatures of the plaintiffs in error to the contract relied on by it. Plaintiffs in error both swear that they signed the contract; that there were no misrepresentations made by the defendant in error, nor do they make any legal excuse why they did sign it, and of not knowing its contents.

[6] Defendant in error did not agree to furnish the plaintiffs in error any parts or to Therefore funds expended by plaintiffs in pay for labor for the repair of said engine. error on same and the value of labor in repairing same is not recoverable against defendant in error.

[7] The plaintiffs in error are not entitled to recover for damages on account of not being able to do plowing for other people; such damages claimed being conjectural, speculative, imaginery, and uncertain profits.

[8] It was shown in this case, and so found by the jury, that plaintiffs in error did not tell the defendant in error at the time or before they agreed to purchase said engine that they expected to plow for other people, Mills Co. v. Iron Works, 1 Tex. Civ. App. nor how much land they expected to plow. 683, 22 S. W. 1097; Railway Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642.

The judgment is affirmed.

Defendant in error in reply to assignments MURCHISON et al. v. MURCHISON et al. 3 and 4 submits the two following counter

propositions:

(No. 253.)

May 1, 1918.)

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"(1) Where vendees of a traction engine use (Court of Civil Appeals of Texas. Beaumont. the traction engine in plowing their lands and threshing their grain for a period of more than six months after they had learned of defects in said traction engine, they cannot be heard to say that they have not accepted said traction engine, because the long-continued use of the traction engine by the vendees is utterly inconsistent with the right of rejection, and consistent only with the claim of title and ownership.

(2) The findings of the jury established the fact that the plaintiffs in error used the engine

1. INSURANCE 448 LIFE INSURANCE MURDER OF INSURED BY BENEFICIARY. Despite Const. art. 1, § 21, and Rev. St. 1911, art. 2465, providing that no conviction shall work forfeiture of estate, the beneficiary named in a life insurance policy, who feloniously kills insured to accelerate the due date of the policy and collect the money, cannot recover the proceeds of the policy against the insurance company issuing it.

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