(216 S.W.) court erred in refusing to instruct a verdict for the defendant below. The trial court is never justified in giving a peremptory charge, where reasonable minds differ respecting a particular issue under investigation. Railway Co. v. West, 149 S. W. 206; Ward v. Powell, 127 S. W. 851. This proposition is also overruled. [5] Plaintiff in error contends by its fourth proposition under its first assignment of er ror that since the assured failed to make a record of purchases during 1916 when such record was required, the policies became void, and the jury should have been so in structed. On the contrary, it is contended that where assured produced a complete record of his business from July 4, 1916, down to May 6, 1917, which included a complete inventory taken on January 1, 1917, and a summary taken on July 4, 1916, the original inventory of July 4, 1916, having been destroyed through no fault of assured or his servants, there was no breach of the record warranty clause requiring that such records be preserved. Plaintiff in the court below testified: "I had placed the inventory of July 1, 1916, in the safe, and it was not taken out of the safe by me nor with my consent, and I thought it was there in the safe at the time of the fire." J. W. Biggs testified: "My name is J. W. Biggs. I was summoned by the defendant as a witness in this case. I remember the burning of J. I. Biggs' store up at Beckville; that is, I remember the night it was burned. I was at one time connected with the store, but had sold out. An inventory was taken in 1916, from July 4th, for 2 or 3 days. I had something to do with the taking of that inventory. Just before the fire I saw that inventory. I got the inventory out of the safe. I don't think Joe told me to get it. I went there to look at it for some personal information. I did not put the inventory back in the safe. I don't see how Joe could have known about that, because he was not back where I was at the time, he was in the front of the store. I was checking over the inventory when some one I think it was Mr. Pink Barbercalled me to the back door for just a minute, and I opened the top drawer of the desk and laid the inventory in there, expecting to come back in a minute and get it. Well, I was out there some little bit, and forgot to go back and put it back. Joe knew nothing at all about it; I did not tell him anything about it. I was not working for Joe, and had nothing whatever to do with the business; the business was in Joe's charge; I had turned it over to him in July, 1917." In the case of Western Assurance Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661, Mr. Justice Brown of the Supreme Court said: "If the inventory was not produced because it was lost or destroyed by some means not constituting fault, negligence, or design on the part of the insured or his employés, and if the insured used ordinary care to preserve the inventory in accordance with the terms of the contract, then the failure to produce it would not work a forfeiture of the insurance policy." It would, indeed, be a harsh ruling that assured, after furnishing such a complete record as he has in this case, including one complete itemized inventory, should forfeit his insurance for the reason that an old inventory was missing, when the information required is furnished by a summary of this inventory which was preserved by assured. It would be hard to figure out a more substantial compliance with the record warranty clause, unless it be exact in every particular. This case, however, goes much further. The only missing paper was lost through no fault of assured or his agents. Assured exercised every care to keep it in the safe, and it remained to be developed upon the trial of the case that just before the fire a former owner of the stock wished some personal information from off the inventory, secured it without knowledge of assured, and forgot to return it to the safe. This brings up a question which no court could reasonably pass on except in favor of assured. If some stranger in passing through a store should abstract from the files or safe of assured some book or paper which would require assured to furnish the information required by an insurance company from other sources, would assured policy be canceled? If that were true, then the taking the goods from assured without his knowledge and without the making of a proper record thereof would invalidate his insurance. The element of good faith should at least enter into the consideration of this matter, and where assured has made every effort to comply with the record warranty clause in preserving his records, and has furnished all of the information that any company could wish for in order to accurately determine the loss, it would seem that no grounds could exist for a forfeiture of the policy. We find no error in the action of the court on this matter, and therefore this proposition is overruled. [6] The fifth proposition of plaintiff in error is as follows: "Either the plaintiff has failed to make proof of any loss on fixtures, which could preclude him from any recovery, since the undisputed evidence showed that he breached the record warranty clause, or he has shown a loss of more than the items of insurance on fixtures, in which event a peremptory instruction should have been given for the defendant below, and the court rendered judgment for the plaintiff for the fixtures." On the contrary, it is urged that where assured furnished in evidence a record of cash sales and record of purchases for the year previous to that in which the fire oc curred, and detailed the manner in which an accurate record of his business could be determined from the books presented, there was no breach of record of warranty clause requiring that a complete record be kept. The court submitted the following issues to the jury: "Question No. 3: Did the plaintiff, Biggs, within 12 calendar months prior to November 1, 1916, take a complete itemized inventory of his stock in his store at Beckville? Answer this question Yes or No." (To which question the jury answered "Yes.") "Question No. 4: Did the plaintiff, Biggs, between July 4, 1916, and the time of the fire, make and prepare and keep, in the regular course of his business, a set of books which clearly and plainly present a complete record of his business, including all purchases and all sales, whether made for cash or on credit? Answer this question Yes or No." (To which question the jury answered "Yes.") "Question No. 5: Did the plaintiff, Biggs, between October 17, 1916, and the time of the fire, make and prepare and keep, in the regular course of his business, a set of books which clearly and plainly present a complete record of his business, including all purchases and all sales, whether made for cash or on credit? Answer this question Yes or No." (To which the jury answered "Yes.") was properly submitted to the jury, and in this case the findings of fact by the jury upon these points were never objected to in the motion for new trial. Plaintiff in error does not contend that the verdict of the jury was contrary to the evidence, but merely assigns as error the fact that the court refused to instruct a verdict in its favor. In our judgment, the only question here for the court is whether or not there was sufficient evidence before the court to authorize it to submit the issue to the jury. We overrule this proposition. [7, 8] Plaintiff in error's second assignment of error is that the court erred in submitting any issue to the jury, since the evidence was undisputed that each policy was breached. The counter proposition to this is that where assured produced books, inventories, and other data to show compliance with the record warranty clause, from which records and data the jury could, by reasonable cor sideration of same, determine whether or not the record warranty clause had been complied with, it was proper for the trial court to submit such evidence to the jury for consideration. It would manifestly have been error for the trial court to have refused to submit these books and this testimony to the jury for consideration, and the fact that the trial court did submit them is the only error that the plaintiff in error complains of. It is our position that the error alleged could not have affected the rights of plaintiff in error in any "Question No. 6: Did the plaintiff, Biggs, between November 1, 1916, and the time of the fire, make and prepare and keep in the regular course of his business a set of books which clearly and plainly present a complete record of his business, including all purchases and all sales, whether made for cash or on credit? Answer this question Yes or No." (To which ques-way. tion the jury answered "Yes.") "Question No. 7: Did the plaintiff, Biggs, between July 4, 1916, and January 1, 1917, make and prepare, in the regular course of his business, a record showing all of the sales made by him, during that period, for cash? Answer this question Yes or No." (To which question the jury answered "Yes.") The court also gave two charges which were requested by plaintiff in error, as fol lows: "Did the plaintiff have on hand on October 17, 1916, a complete itemized inventory of his stock, together with a set of books showing a complete record of business transacted?", (To which the jury answered "Yes.") "Did the plaintiff have on hand on November 1, 1916, a complete itemized inventory of his stock, together with a set of books showing a complete record of business transacted?" (To which the jury answered "Yes.") No other charges were requested by plaintiff in error other than the one to instruct a verdict in its favor. See Westchester Fire Ins. Co. v. McMinn, 198 S. W. 638; Ins. Co. v. Hardin, 151 S. W. 1152; Fire Ass'n v. Masterson, 83 S. W. 49. It seems that the books introduced by plaintiff below, together with the testimony of assured, clearly presented an issue which The verdict of the jury exactly coincides with the undisputed testimony as to value, and if a division of the items is desired, it can be accurately determined from the testimony and the findings of the jury just what was meant in this respect. In addition to this, plaintiff in error stood by in the open court and heard the reading of the verdict, and did not complain of same at the time when the error could have been corrected. If there was ever any serious question in this case, it hinged around the proposition of whether the assured could properly account for the loss of the itemized inventory for the preceding year, and, if not, could he show such substantial compliance as would avoid a breach of the record warranty clause? It is shown conclusively that assured, with all the care of an ordinarily prudent man, carefully preserved the old invoice in his safe, and that just preceding the fire it was removed from the safe without the knowledge or consent of assured, by one who had no connection with the business. Not only is this true, but assured went further, and supplied the loss by introducing in evidence a summary of the inventory for the express purpose of showing a substantial compliance of the record warranty clause which evidence was considered in the trial of Tex.) LOUISIANA & TEXAS LUMBER CO. v. SOUTHERN PINE LUMBER CO. 281 (216 S.W.) the case without objection upon the part of plaintiff in error. ander Henry survey of land in Trinity county, Tex. All of the defendants entered generAfter a careful consideration of the matter al pleas of demurrer, denial, not guilty, and complained of, we are of opinion that the of disclaimer as to other parts of the survey court did not err, and the assignment is over-than such different parts of it as they severruled. ally specifically described and set up claims The third assignment of error is that noto by limitation; defendant R. L. Hutson so judgment can be rendered on furniture and claiming one particular 160-acre tract, and fixtures or fountain since the policy is di- all other defendants another and different visible on these items, and there is no sepa- 160 acres. rate finding as to each. Without comment The cause was first tried in August, 1917, we overrule this assignment. The fourth, before a jury, upon whose verdict the court fifth and sixth assignments are also over- entered judgment in the lumber company's ruled, and we might say that in our opinion favor for the balance of the survey as a the matters complained of did not constitute whole, after decreeing to R. L. Hutson the a breach or violation of any of the warran-160-acre tract he claimed, and to the remainties or conditions or provisions of the policy. Ins. Co. v. Angier, 214 S. W. 451. 1. NEW TRIAL FENDANTS. In trespass to try title, that portion of a judgment awarding a tract to certain defendants may be set aside, and a new trial granted, without disturbing a portion of the judgment which awarded another tract to another defendant on separate and distinct defenses. 2. TRESPASS TO TRY TITLE 35(2)-DEFENSES AVAILABLE UNDER PLEA OF NOT GUILTY. In trespass to try title, defendant, filing a plea of not guilty as well as one of limitations, may show that he was a tenant in common with his codefendants, and had an interest in the fee of less than a whole by virtue of a timber deed. ing defendants the other 160 acres claimed by them. On motion for a new trial at the same term, the court set aside so much of its first judgment as awarded to the defendants other than R. L. Hutson their 160-acre tract, but refused to disturb his recovery of the 160 acres thereby vested in him. At the July term, 1918, the cause was tried for a second time between the lumber company and the defendants other than R. L. Hutson as to the 160-acre tract claimed by them, and upon a jury's verdict in their favor they were again given judgment for the same land as before. [1] The lumber company appeals, contending, first, that the court erred in its charge in eliminating from the jury's consideration in the second trial the R. L. Hutson 160 acres; the theory being that the setting aside of the first verdict and judgment as to the other defendants had the legal effect of nullifying it as to him also. this position. We are unable to agree with The land awarded to R. L. Hutson was an entirely different tract from that claimed by the other defendants, his defenses to the appellant's suit were separate and distinct from theirs, and in such inthat there may be two final judgments. stances our Supreme Court has directly held Boone v. Hulsey, 71 Tex. 176, 9 S. W. 534 (on rehearing); Mills v. Paul, 30 S. W. 242245; Hess v. Webb, 103 Tex. 46, 123 S. W. 111; Danner et al. v. Walker-Smith Co. et Appeal from District Court, Trinity Coun- al., 154 S. W. 295-302; State v. Dayton Lumty; E. A. Berry, Judge. Trespass to try title by the Louisiana & Texas Lumber Company against the Southern Pine Lumber Company and others. Judgment for certain defendants as to part of the land involved, and plaintiff appeals. Affirmed. Nunn & Nunn, of Crockett, for appellant. R. E. Minton and Nelms & Platt, all of Groveton, for appellees. GRAVES, J. This suit was an action in trespass to try title, brought in the court below by the appellant as plaintiff against the appellees as defendants, to recover the Alex ber Co., 164 S. W. 49. It is next said the evidence was insufficient to support the jury's finding that the other defendants than R. L. Hutson had title to the 160 acres recovered by them under the 10year statute of limitation. After a careful examination of the statement of facts, we conclude otherwise, and find that the proof justified the verdict and judgment. It may be that there was not such proof under an actual and specific claim of ownership for as much as 10 years prior to the O'Neill survey of September 18, 1905; but it is shown that immediately thereafter the particular 160 acres in question was itself surveyed, and it was then continuously claimed and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes occupied up until the filing of this suit on | September 12, 1916, a period in excess of 10 years. void of merit; this company was a defendant in the suit, and having filed a plea of not guilty, as well as one of limitation as to the 160-acre tract, might show under them, as in fact it did, that it was a tenant in common with its codefendants in the ownership thereof, and had by virtue of its timber deed an interest in the fee of less than the whole. Hutchins v. Bacon, 46 Tex. at page 414; Hill v. Whitworth, 162 S. W. 434; Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803. Leo Tarleton and A. L. Matlock, both of San Antonio, for appellant. R. J. McMillan, J. D. Dodson, and U. S. Algee, all of San Antonio, for appellee. [2] Lastly, it is claimed the verdict and judgment,are unauthorized and cannot stand, because the defendant Southern Pine Lumber FLY, C. J. Appellant sued appellee to reCompany was permitted to recover the tim- cover the sum of $900, alleged to be due him ber only upon the 160-acre tract otherwise as clerk of the corporation court of said city. awarded to its codefendants, when its plead- It was alleged that appellant was removed on ing alleged it to be the owner of the land in September 10, 1912, and appellant's term of fee. This assignment is thought to be de-office did not expire until May 31, 1913, and that his salary was fixed at $100 a month; that he was removed for political reasons, and without compliance with the provisions of the city charter, which require the mayor in making a removal to file his reasons at the time, and that such removal shall not go into effect until approved by a majority of the city council. The cause was submitted to a jury on special issues as to whether appellant was discharged from office because the mayor deemed him inattentive to the duties of the office and for the good of the service, and to avoid friction in the conduct of the business of the city, or on either of these grounds, or was he discharged solely for political reasons? The jury answered that he was discharged for the reasons placed on file by the mayor, and on those answers the court rendered judgment in favor of appellant for $104.66, for salary for 23 days of September, 1912, with interest at 6 per cent. per annum from October 1, 1912. [1] The evidence showed that on SeptemSan An- ber 21, 1912, A. H. Jones, mayor of the city of San Antonio, filed his reasons, in writing, with the city clerk, for the removal of appellant from the office of the clerk of the corporation court, and the same was approved by a ma These conclusions require the overruling of all assignments of error and an affirmance of the judgment; that order will be entered. Affirmed. BRADEN v. CITY OF SAN ANTONIO. (No. 6284.) (Court of Civil Appeals of Texas. tonio. Nov. 26, 1919.) 1. MUNICIPAL CORPORATIONS 159(6)-BUR DEN OF PROOF IN ACTION BY REMOVED OF- In an action by a removed city officer to recover salary, the burden is upon such officer, if so claiming, to show that reasons for his dismissal filed by the mayor in compliance with the provision of the city charter, were not the true reasons for the dismissal. jority of the city council on September 23, 1912. The reasons given were "inattention to the duties of said office, and for the good of the service, and to avoid friction in the conduct of the business of the city." The question of whether the reasons given by the mayor were true ones was submitted to the jury, and were found to be the real reasons. The burden rested upon appellant to show that the true reasons for his dismissal were not filed by the mayor, and upon the testimony presented by appellant the jury found against him. [2] Appellant contends that he went out of office on September 10th, and that, there being no reasons on file at that time, the filing of the reasons on September 21, and the approval of the council on September 23, did Appeal from Bexar County Court; John not comply with the requirements of the H. Clark, Judge. Suit by Joe Braden against the city of San Antonio. Judgment for defendant, and plaintiff appeals. Affirmed, charter. That is doubtless true so far as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (216 S.W.) BENSON v. ASHFORD et al. (No. 6115.) 1. CONTRACTS 10(2)-EXECUTED CONTRACT NOT UNILATERAL. A written contract for the construction of a house was not unilateral and unenforceable because signed only by the person for whom the house was to be constructed, where it was accepted by the other party and acted upon by him by building the house. 2. REFORMATION OF INSTRUMENTS TAKE OF LAW BY SCRIVENER. 18-MIS A mistake by a scrivener in drawing an instrument which would warrant a reformation applies to mistakes of law as well as mistakes of fact, and a contract can be reformed where a scrivener uses a word in a mistaken sense." 3. LIMITATION OF ACTIONS 127(4)-AMEND MENT TO PLEADINGS NOT NEW CAuse of ac- In an action on a contract, an amendment by plaintiff to the pleadings, setting up a mistake in the contract and asking that the same be corrected, was not a new cause of action as respects the statute of limitations. Error from District Court, McLennan County; H. M. Richey, Judge. Suit by J. C. Ashford and another against Eula Benson. Judgment for plaintiffs, and defendant brings error. Affirmed. See, also, 189 S. W. 1093. H. C. Lindsey, of Waco, for plaintiff in er ror. J. D. Willis and R. L. Neal, both of Waco, for defendants in error. JENKINS, J. This was a suit by defend [1-3] Plaintiff in error's first contention is that the contract cannot be enforced, because it is unilateral, in that, while it was signed by the plaintiff in error, it was not signed by the defendants in error. The evidence shows that the contract was accepted by defendants in error and acted upon by them, in that they built the house. Such being the case, it was binding on both parties. Martin v. Roberts, 57 Tex. 568; Campbell v. McFadin, 71 Tex. 28, 9 S. W. 138. The mistake in the contract was as to the legal meaning of the words "frame house," both parties accepting the contract understanding that this phrase meant a box and weatherboarded house, as agreed upon between them. A mistake by a scrivener in drawing an instrument applies to law as well as to fact. 34 Cyc. 910, 919. The amendment which set up the mistake and asked that the same be corrected was not a new cause of action, and therefore limitation would not apply. Plaintiff in error filed a cross-action, alleging mistake as to some of the specifications, and that the house was not built in accordance with the true contract. The court heard the evidence on this point, and found against plaintiff in error. The evidence justified such finding. The finding of the court as to the amount of judgment to which defendants in error were entitled is also sustained by the evidence. Finding no error of record, the judgment of the trial court is affirmed. FRANK V. SUFFORD. (No. 6307.) ants in error upon promissory notes given by (Court of Civil Appeals of Texas. San Anto nio. Oct. 8, 1919.) 305(1)—APPEAL ONLY MODE FOR REVIEW IN ELECTION CONTEST. plaintiff in error for the erection of a house, Under Vernon's Sayles' Ann. Civ. St. 1914, art. 3065, a decision in an election contest can be reviewed only by appeal, and a writ of error to review the same must be dismissed. Error from District Court, Brooks County; V. W. Taylor, Judge. Election contest between George O. Frank and Ed. Sufford. There was a judgment for Writ the latter, and the former brings error. dismissed. Terrell & Terrell, of San Antonio, for plaintiff in error. The testimony shows that there was a verbal agreement to erect a box and weatherboarded house, a memoranda of which was reduced to writing, but not signed by the parties. Thereafter a lawyer undertook to reduce the contract to writing, and wrote the same as dictated by defendants in error, in the presence of plaintiff in error, except that he used the words "frame house," instead of "box and weatherboarded." His attention was called to this at the time, and he stated that the words "frame house" meant a house COBBS, J. This controversy grew out of built of wood, as distinguished from one built a contested election case. It is brought to of brick and cement. The court reformed this court by an application for a writ of erand enforced the contract. J. W. Wilson, of Falfurrias, for defendant in error. ror. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |