to the further question whether or not his interest in the estate would be reconveyed to him after the trial of the suit, he said that he did not know whether that would be done or not. He further testified that he knew that under the law it was necessary for him to transfer his interest in the estate in order to enable him to testify, and that the transfer was executed by him at his own suggestion. It cannot be seriously questioned that in order to remove the statutory inhibition of his testimony it was necessary that such a transfer should have been made in good faith, and that, if the transfer was a mere camouflage or pretext for the purpose of avoiding the force of the statute, it could not have that effect. Under the testimony of Frank Neblett himself, referred to, it is clear that the transfer of his interest to his mother was not in good faith, but a subterfuge only, and executed for the sole purpose of evading the force of the statute. Under such circumstances the transfer could not render his testimony admissible, and the court erred in overruling appellant's objection to such testimony based upon that statute. General Bonding & Casualty Ins. Co. v. McCurdy, 183 S. W. 799; 40 Cyc. 2292, and decisions there cited; Buck v. Haynes, 75 Mich. 397, 42 N. W. 949; De Roux v. Girard (C.. C.) 90 Fed. 537.

[4, 5] We are of the opinion that there was no error shown in admitting the testimony of Charles Neblett to the effect that Mr. Milam, the president of the plaintiff company, admitted, in substance, that his company had only sued for $1,000 originally, and that that amount was the full amount of the guaranty. Nor do we think there was any error in admitting in evidence a copy of plaintiff's original petition, in which only $1,000 was claimed as due upon the guaranty. While the explanation offered by appellant that the petition and the statement of Milam, testified to by Charles Neblett, were all under the erroneous impression that the guaranty was limited to $1,000, still such explanation would not be so conclusive as to exclude such testimony, and render it any the less in the nature of an admission against interest and admissible for that purpose. The printing of the guaranty was in small letters, and one of the theories advanced by the executrix was that that portion of the guaranty relating to future debts was overlooked by both Carver and J. W. Neblett, and, to substantiate that contention, the evidence last referred to was offered to show that, as plaintiff's attorney and president had both overlooked that part of the guaranty, it was reasonably probable that Carver and J. W. Neblett made the same mistake.

[6] We overrule appellant's assignment to the effect that special issue No. 4, submitted to the jury, is a repetition of issue No. 1.

[7] Appellant insists that, as the jury found in answer to issue No. 3 that J. W. 203 S.W.-24

Neblett read the instrument of guaranty before he signed it, he was bound thereby at all events, and that the findings of the jury upon issues 1, 2, and 4 were therefore immaterial; in other words, that if he read the instrument, which is plain and unambiguous in its terms, he could not be heard to say thereafter that he was misled by Carver into believing that his liability thereon was limited to the sum of $1,000.

If, as found by the jury in answer to issue 4, Neblett and Carver, at the time of the execution and delivery of the guaranty, both orally agreed and understood that the guaranty was for not more than $1,000, and if the instrument was executed and delivered under the mistaken belief and with the intention that such should be and was its legal effect, and the instrument was executed and accepted under the mistaken belief by both that such was its legal effect, then a court of equity would so reform the instrument as to give it that effect. 1 Black on Rescission and Cancellation, § 149; also Kelley v. Ward, 58 S. W. 207; Zieschang v. Helmke, 84 S. W. 436.

In addition to the findings by the jury mentioned above, the trial judge filed findings of other facts and conclusions of law, in part as follows:

"I find as a fact from the undisputed evidence of this case that J. W. Neblett guaranteed only to pay the debt of Frank Neblett to the Cooper Grocery Company, with ten per cent. interest thereon, and ten per cent. attorney's fees, at Stephenville, Texas.

"I find as a further fact that the notes and

indebtedness sued on in this case by the Cooper Grocery Company, by agreement between it and Frank Neblett, and to which agreement J. W Neblett, the guarantor, did not assent, are payable at Waco, Texas, and draw 10 per cent. compound interest.

"I conclude as a matter of law from the foregoing facts that by agreement between the Cooper Grocery Company and Frank Neblett, made without the consent of the said J. W. Grocery Company, in behalf of Frank Neblett, Neblett, the contract of indebtedness, which has been materially altered, and that the said J. W. Neblett has been thereby released from any liability on his written guaranty."

Error has been assigned to those findings of fact and that conclusion of law.

The notes upon which the suit was instituted were executed by Frank Neblett subsequently to the date of the instrument of guaranty, each stipulating for the payment of interest annually on the principal from date until paid at the rate of 10 per cent. per annum, and for 10 per cent. additional for collection fees if sued on or placed in the hands of an attorney for collection. Each note is made payable at Waco, Tex., and further stipulates that past-due interest shall draw interest at the rate of 10 per cent. per annum. Plaintiff alleged in its petition that the notes were all executed by Frank Neblett in settlement of accounts for goods sold to him by plaintiff. The contention is made that authority to make the notes payable at Waco instead of at Stephen

ville, and to stipulate that past-due interest shall draw interest at the rate of 10 per cent. instead of the legal rate of 6 per cent., which would obtain in the absence of that stipulation, was within the contemplation of the parties to the contract of guaranty, and, in the alternative, that, at all events, such changes in the original implied contracts of indebtedness of Frank Neblett on open accounts were not so material as to work a release of the guarantor.

[8] We think it clear that a change in any contract of indebtedness, increasing the rate of interest from 6 per cent. to 10 per cent. per annum, is a material change. The stipulation in the notes sued on that they should be paid in Waco, McLennan county, gave the payee the right to sue on them in that county, even though the maker's residence at the time of suit might be in another county, which would be the venue of the suit in the absence of that stipulation. As is often said, the right to be sued in the county of one's residence is a valuable right. Plaintiff could not have sued Frank Neblett upon the accounts he owed in any county other than that of his residence, and the stipulation in the notes taken to cover those accounts that they were payable in McLennan county was likewise a material change in his contracts of indebtedness. In Lawrence v. McCalmont, 2 How. 426, 11 L. Ed. 335, the Supreme Court of the United States, speaking through Justice Story, in construing a contract of guaranty said:

"We have no difficulty whatsoever in saying that instruments of this sort ought to receive a liberal interpretation. By a liberal interpretation, we do not mean that the words should be forced out of their natural meaning, but simply that the words should receive a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed and the purposes to which it is applied."

Many authorities might be added announcing the same rule of construction, including Gardner v. Watson, 76 Tex. 25, 13 S. W. 39, by our own Supreme Court. But it is equally as well settled that a guarantor cannot be held beyond the strict terms of his contract, and that any material change in the obligation guaranteed will release him. 12 R. C. L. 1083, and authorities there cited; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39, supra; Stafford v. Christian, 101 S. W. 876; 20 Cyc. 1436.

Hence we sustain the findings of fact by the trial judge, and his conclusion based thereon, that those changes in the contracts of indebtedness which were covered by the contract of guaranty, and were without the consent of the guarantor, operated as a discharge of the guarantor from liability there for irrespective of the findings by the jury on other issues.

[9] In this connection, however, we will add that there was error in the admission of the testimony of Charles Neblett to prove

expenses and the expense of employing an attorney to procure a change of venue of the suit from McLennan county, since those facts were in no manner material to the issue of the scope of the guaranty, which was in writing and unambiguous in its terms.

[10, 11] We are of the opinion that the fact that plaintiff's counsel, in drafting the original petition, through mistake in reading the contract of guaranty, supposed that the guarantor was bound only for past indebtedness of Frank Neblett, not to exceed the sum of $1,000, and drew the petition in accordance with that interpretation, coupled with the further fact, as testified by Charles Neblett, that Mr. Milam gave the same interpretation of the instrument, would not, without the aid of other evidence, be sufficient to support the findings of the jury upon the issues of misrepresentations by Carver inducing the execution of the guaranty, and the execution of it through mutual mistake of himself and the guarantor as to its legal import. And aside from those circumstances, the only evidence introduced to support those defenses was the testimony of Frank Neblett, which we have held to be inadmissible.

Accordingly, but for our conclusion that there was a material change in the indebtedness guaranteed which operated to release the guarantor, we would feel it our duty to reverse the judgment of the trial court, and here render judgment in favor of the appellant for the undisputed unpaid balance of its debt against Frank Neblett, as appellant insists should have been done.

As the erroneous rulings pointed out resulted in no harm to appellant upon the issue of the discharge of the guarantor, the judgment will be affirmed by reason of such discharge, irrespective of those errors.

Affirmed.

CONNER, C. J., not sitting. Serving on Writ of Error Committee at Austin.

On Rehearing.

DUNKLIN, J. In further support of our conclusion that the conviction and sentence of Frank Neblett was not admissible to impeach or discredit his testimony in this suit, see M., K. & T. Ry. v. De Bord, 21 Tex. Civ. App. 691, 53 S. W. 587, and decisions there cited.

CONNER, C. J., who did not sit in the original hearing, concurs in the conclusion just stated, in the further conclusion reached on original hearing, that Frank Neblett was rendered incompetent as a witness by reason of the fact that he was a party in interest in the suit adverse to appellant, and therefore was precluded from testifying by reason of article 3690, Vernon's Sayles' Tex. Civ. Stats., as announced in the original opinion rendered.

Upon the further question whether or not,

SANDERS et al. (No. 1326.)

(Court of Civil Appeals of Texas. Amarillo. March 27, 1918. Rehearing Denied May 8, 1918.)

1. CUSTOMS AND USAGES 5-GENERALITY. To be admissible, a custom must be so universal as to warrant the inference that the parties contracted with reference thereto, and should be established by clear and satisfactory evidence as having existed for a length of time so as to become widely known to warrant the presumption the parties had it in view. 2. SALES 71(1)-PURCHASE COTTON SEED-DUTY OF BUYER - LIMITATION OF SHIPMENTS.

Where the buyer of two cars of cotton seed, when it made the contract of purchase, understood there was no uniform size of cars used in shipping cotton seed, it should have stipulated the amount per car, or the size of the car, if it wished to limit the quantity of the seed per car, and, after making the contract, it could not ingraft its interpretation as calling for not more than 10 tons of seed per car, and assign a breach on the failure of the sellers to accept the construction.

3. SALES 113-RENUNCIATION TRACT TELEGRAM.

CON

A telegram sent by the buyer of cotton seed to the sellers, stating that on seed purchased from them the buyer would accept only 15 tons to the car, directing the sellers not to ship out larger cars, as the buyer could not accept and would not pay drafts for larger shipments except at a reduced price, and stating that if the sellers had already shipped larger cars the buyer would accept only the total weight of the contract at the rate of 15 tons per car, was not a renunciation of the contract of purchase. 4. SALES 131-RENUNCIATION BY BUYER -OBLIGATION OF SELLERS.

If the buyer of personalty renounces his contract, there is no obligation on the sellers to accept the renunciation and treat the contract

as abandoned or annulled.

5. SALES 133-CONTROVERSY OVER TERMS

-DUTY OF PARTY.

A mere controversy over the meaning of the terms of a contract of sale did not require the sellers either to rescind or to accept the buyer's contention as to the amount of the commodity sold it was permissible to ship in each car.

6. SALES Cm 194

FAILURE TO PAY.

Where the sellers of two cars of cotton seed Where the sellers of two cars of cotton seed observed their duty to place the seed sold on board the cars and to draw on the buyer for the sum due under the contract, with bill of lading attached, the buyer's failure to pay the draft and receive the seed when delivered f. o. b. at the sellers' shipping point was a breach of the contract authorizing the sellers to recover the damages sustained.

7. SALES 334-BREACH BY BUYER-DUTY OF SELLERS-ENHANCING DAMAGES. After the buyer of cotton seed refused to accept and pay therefor at the point agreed upon, the sellers did not have the right to do anything which would enhance their damages, as to ship the seed back for sale on the market, which would have added damages avoidable by selling on the market where the seed was. 8. SALES 381-BREACH-REDUCTION DAMAGES-BURDEN OF PROOF.

OF

In an action against the buyer of cotton seed for its failure to receive and pay therefor, if the seed, after the buyer's refusal, was

BY BUYER

Where the buyer of cotton seed refused to receive and pay for that shipped, the sellers had the right to sell the seed so shipped as the property of the buyer on its account, and to recover the difference between the contract price and the price the seed brought, together with necessary expenses.

Appeal from Taylor County Court; E. M. Overshiner, Judge.

Action by J. E. Sanders and another against the Beaumont Cotton Oil Mill Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

R. C. Chambers, of Abilene, and Smith, Crawford & Sonfield, of Beaumont, for appellant. Sayles & Sayles, of Abilene, for appellees.

HUFF, C. J. This action was brought by Sanders and Will Stith against the Beaumont Cotton Oil Mill Company upon an alleged breach of contract, providing for the sale of three cars of cotton seed at $40 per ton, f. o. b. Lawn, Tex., and for special damages. The defendant answered that the Railroad Com

mission of Texas had fixed a carload of cotton seed at 10 tons, and that it was so fixed by the custom among shippers and dealers in cotton seed, and that defendant had instructed plaintiffs not to ship more than 15 tons per car before plaintiffs had loaded the car, secured bill of lading, and drawn their drafts on defendant, and if defendant breached the contract such breach occurred before procuring bills of lading and drawing the drafts, and no necessity existed for incurring expenses of freight, demurrage, and resale; that after the cotton seed had reached Beaumont, Tex., defendant offered plaintiffs to take so much of the cotton seed as would amount to 15 tons per car at the original contract price and pay the market price for the balance, but plaintiffs refused such order; that the cotton seed were not of the grade and kind that were contracted for, but were of an inferior grade and quality and contained considerable trash and dirt. The case was tried before the court without a jury and he filed the following findings of fact:

"(1) That on the 26th day of October, 1915, plaintiffs and defendant entered into the following contract in writing, viz.: 'Agreement Covering the Sale of Cotton Seed. Agreement covering sale of cotton seed this day made to the Beaumont Cotton Oil Mills Company, of Beaumont, Tex., as follows: Abilene, Tex., October 26, 1915. In consideration of the sum of one dollar, in hand paid, the receipt whereof is

hereby acknowledged, we have this day sold to the Beaumont Cotton Oil Company Mills two cars, tons, sound, dry, and clean cotton seed. Price $40 per ton, of 2,000 pounds, f. o. b. cars by Lawn station, shipment to be made as follows: Within 15 days, Santa Fé. Balance of this contract to be paid under the following terms: S. D. to be made with B. L. attached covering each car on the Beaumont Cotton Oil Company Mills, Beaumont, Tex., weights and quality guaranteed by the seller. The above accepted and agreed to by the undersigned. Beaumont Cotton Oil Company Mills, by J. A. Stoneham, Seed Buyer. Seller: J. E. Sanders Company. Town: Lawn, Texas. Date: 10/26/15. This contract or agreement made in triplicate, one copy retained by the seller, two to be mailed to J. A. Stoneham & Co., seed brokers, Abilene, Tex.'-and another contract of date October 25, 1915, to the same effect and tenor for one car of cotton seed.

"(2) At the time said contract was made and entered into plaintiffs had on hand at Lawn, Taylor county, Tex., about 120 tons of cotton seed of the kind and quality described in the

contract.

"(3) As soon as cars could be obtained plaintiffs began loading the seed according to their contract on November 1, 1915; prior to the receipt of the following telegram had loaded to its full capacity in volume, but not in weight, one car of cotton seed and shipped same in accordance with contract, consigned to defendant at Beaumont, Tex. The other cars covered in said contract were in process of loading on said date, and subsequent to the receipt of said telegram the loading was completed, said cars being loaded to their full capacity in volume, but not in weight, and were shipped to defendant at Beaumont, Tex., within the time limit of said contract.

"(4) On November 2, 1915, plaintiffs received from defendant the following telegram: 'November 1, 1915. Advice that on seed purchased from you through Stoneham Company will accept only 15 tons to the car. Do not ship out larger cars than 15 tons as we cannot accept and will not pay drafts for larger shipments except at a reduced price. If you have already shipped larger car or cars will accept only to total weight of contract at rate of 15 tons per car. B. C. O. M. Co.

"(5) That said three cars of cotton seed duly arrived at Beaumont, and were refused by the defendant, and payment of drafts drawn in accordance with the contract were refused.

"(6) That plaintiffs notified defendant on its refusal that they intended to resell the seed to protect themselves, and that defendant bid on said seed after said notification, but that plaintiffs resold said seed to the Magnolia Cotton Oil Company of Houston, Tex., at $37.50 per ton, which was a higher price than defendant offered for the seed.

"(7) That the seed shipped by plaintiffs were first-class, dry, sound, and clean cotton seed, according to the terms of the contract.

"(8) That there was no market for cotton seed in carload lots at Lawn, Tex., and that the plaintiffs acted in good faith, used due diligence, and obtained the best price for the seed obtainable.

company and to load them by filling them full of cotton seed.

"(10) That the difference between the contract price of cotton seed and the sum for which they were resold on November 24, 1915, is $234.60, and that the freight, demurrage, and necessary expenses incurred by plaintiffs in reselling said seed amount to $458.18, paid out by plaintiffs on November 24, 1915.

"(11) This suit is based on a contract in writing made in Taylor county, Tex., based on telephone conversation between defendant's broker at Abilene and plaintiffs at Lawn, in Taylor county, Tex.

"In response to the request of the defendant for additional findings of fact and conclusions of law, the court finds the following facts and makes the following conclusions in the consecutive order of the request of the defendant:

"Additional Findings of Fact.

"(1) Defendant breached the contract of Norember 17, 1915. "(2) Said breach was made at Beaumont, Tex. "(3) Plaintiffs did not breach the contract. "(4) Place of delivery under the terms of the written contracts was f. o. b. cars at Lawn, Tex., billed to Beaumont, Tex., with sight draft on the defendant at Beaumont, Tex., with bills of lading attached.

"(5) Said contract was to be performed both at Lawn, Tex., and Beaumont, Tex.

"(7) Plaintiffs were aware of the telegram set out in the court's original fourth finding of fact before plaintiffs secured bills of lading for two of the three cars; but this telegram is not notice to plaintiffs that the defendant would not accept the said cars if more than 15 tons were loaded in said cars.

"(8) The evidence does not show a market for cotton seed at Abilene, Tex., on November 1, 2, 3, 4, and 5, 1915.

"(9) The evidence does not show whether plaintiffs could have sold the seed in controversy at Abilene, Tex., or at what price.

"(10) Plaintiffs did not make any effort to sell the seed in controversy on said dates last above mentioned at Abilene, Tex., and the evidence does not show any market near Lawn, Tex.

ton seed in Texas, relative to giving instruc"(11) There was no custom of dealers in cottious to shipper when the contract is in writing and does not specify the number of tonnage to be placed in the cars when the contract just calls for a car of seed, or so many cars of seed.

"(12) The following respective numbers of pounds were placed in the following respective cars: A., T. & S. F. car No. 25950, a total of 56,260 pounds; M., K. & T. car No. 71152, a total of 56.920 pounds; Pa. car No. 34116, a total of 76,100 pounds."

Sanders, while testifying in his behalf, admitted that he had not made out the bills of lading for the shipment at the time the wire was received. The court's findings of fact have support in the evidence.

[1-5] There was no breach of the contract