(222 S.W.) Judge Hendricks, speaking for the Court of Civil Appeals in this case, says: In the recent case of Carey v. State of | determining in the light of the facts whether South Dakota, 250 U. S. 118, 39 Sup. Ct. 403, plaintiff, at the time he claimed the railway 63 L. Ed. 886, the court had under considera- company waived its right to have the cattle tion the validity of the State Game Laws of actually tendered for shipment, was in a poSouth Dakota. The question involved was sition to lawfully tender them for transporwhether the state law, in view of the provi- tation without having them dipped. sions of the federal Migratory Bird Act, enacted subsequent to its passage, was void. The federal act provides that all wild geese, wild ducks, and other migratory birds which in their migration passed through and did not remain permanently the entire year within the borders of any state should thereafter be deemed to be within the custody and protection of the government of the United States, and should not be destroyed or taken contrary to regulations thereinafter provided for. The state law provided that no person should ship, convey, or cause to be shipped or transported, by common or private carrier, to any person either within or without the state, wild duck of any variety. Carey was convicted in the state court for violation of the state statute under a charge of shipping wild dụcks from a point within the state to Chicago. He urged that, inasmuch as Congress by the language of the national act assumed exclusive jurisdiction over the class of migratory birds in question, the then existing state laws on the subject were thereby abrogated. The court in the course of the opinion upholding the validity of the state law say: "It is, however, urged that Congress has manifested its intention to assume exclusive jurisdiction of the subject, and that the failure to make any provision in the federal act concerning shipping evidences the purposes of Congress that the shipping of game birds shall not be prohibited. This argument rests upon the clause which declares that the migratory birds 'shall hereafter be deemed to be within the custody and protection of the government of the United States.' But that clause may not be read without its context; and the words immediately following show that the custody and protection is limited to prohibiting their being 'destroyed or taken contrary to regulations' which are to fix the closed seasons in the several zones. If, reading the federal act as a whole, there were room for doubt, two established rules of construction would lead us to resolve the doubt in favor of sustaining the validity of the state law. First. The intent to supersede the exercise by a state of its police powers is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state. Savage v. Jones, 225 U. S. 501, 533; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 623. Second. Where a statute is reasonably susceptible of two interpretations, by one of which it would be clearly constitutional and by the other of which its constitutionality would be doubtful, the former construction should be adopted." [2] The state quarantine regulations are, in our opinion, valid, and must be looked to in "We necessarily infer that the jury believed that Jones, as federal inspector, informed Lucas, the agent, that under the federal regulations these particular cattle, purchased by Hall, had the right to go to Kansas City, Mo., for immediate slaughter. If under the federal regulations a permit for that purpose was neceslows that Jones, as federal inspector, would sary to be issued by Jones, it inferentially folhave issued such a document. It also follows, we think, logically that the agent had no right to refuse to receive uninspected, clean cattle in the pens at Bovina for shipment for immediate slaughter at Kansas City and St. Joseph, Mo., unless the same were dipped. We inhave issued a permit for the movement of these fer that Jones, as state inspector, would not cattle from Warren & Son's ranch to the stock pens, but also conclude that, if a permit were necessary, he would have issued one as federal inspector, permitting the movement of the cattle to Kansas City and St. Joe, Mo., for the open market for immediate slaughter." The inference relied upon in the foregoing excerpt cannot be indulged except upon the presumption that the inspector would have violated his official duty. Under the provisions of rule 20 of the state live stock commission, only two ways were open to plaintiff for moving his cattle from the pasture where located, to wit: (a) By securing a certificate from the inspector stating that the owner of the cattle tendered and complied with the state laws, rules, and regulations, and that his range and cattle were free of infection; and (b) by securing a permit from the inspector. Jones stated to the station agent that the cattle "were not eligible to a certificate," and it appears from the rule that they were not. The range was not free from infection, and it is not to be inferred that a certificate would have been issued so stating. There is no basis in the record for indulging the inference that the inspector would have issued a permit to move the cattle without their being dipped, even if his statement that under the state regulations the cattle "couldn't come from the range without dipping" be disregarded. There is no ground for presuming that protection of the territory between the pastures and the shipping points, from the spread of disease therein, was not equally as important as protecting the territory along the route of shipment from the same menace. We see nothing in the state rules to indicate that they are unreasonable, or that they were not promulgated in good faith for the protection of the live stock of the state. Plaintiff, without dipping his cattle, could not have moved them from the pasture where located to Bovina, without violating the state quarantine regulations; and, regardless of whether after the cattle had been so moved it would have been the defendant's duty under federal regulations, to receive them for transportation without dipping, plaintiff is not en the deed after the transaction had been rescinded because of such fraud, though rescission did not specifically provide for the cancellation of commission notes. 5. Brokers 77-Broker estopped from asserting lien for commissions after rescission for his fault. If broker who had acted as agent for both parties to real estate exchange transaction was a party to or consented to rescission of transaction on ground that it had been induced by fraud, he could not enforce the lien on land of defrauded party, reserved in the deed by which the land was conveyed. 6. Evidence 434 (12)-Parol testimony as to titled to recover. A cause for damages could not be founded, we think, upon an advance notice given by the defendant to the plaintiff that it would not transport the cattle unless they were dipped, when in fact the plaintiff could not have tendered the cattle lawfully for shipment without dipping them. There was no waiver by defendant of a tender which plaintiff was not in position to make. We recommend, therefore, that the judg-transaction had been induced by fraud, and had ments of the district court and Court of Civil Appeals be reversed, and that judgment be rendered in favor of plaintiff in error. PHILLIPS, C. J. We approve the judgment recommended in this case. SPEER et al. v. DALRYMPLE et al. (No. 158-3138.) fraud and rescission therefor held admissible. In broker's action on commission notes and to foreclose lien reserved in deed, parol evidence that notes had not been delivered, that been rescinded because of such fraud, held admissible; such evidence not seeking to alter written contracts, but merely attacking their efficacy as binding because of fraud and authorized rescission. (Commission of Appeals of Texas, Section B. such issue. May 26, 1920.) 39 (1) 8. Equity Equity having the parties, the subject-mat 1. Evidence 431-Nondelivery of written instrument may be shown by parol. A defendant being sued on a written instru-ter, and the facts before it, will adjust, in conment is not precluded from showing by parol the parties arising on the pleadings and the sonance with the rules of equity, the rights of evidence the fact of nondelivery to defeat the effectiveness of an obligation. 3. Brokers 88 (5)-Whether broker participated in fraud inducing real estate exchange held for jury. facts. Error to Court of Civil Appeals of Second Supreme Judicial District. Suit by J. B. Dalrymple and another against R. M. Speer, T. J. Peniston, and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals on appeal by named defendants (196 S. W. 911), and named defendants bring error. Judgment of Court of Civil Appeals and of district court reversed, and cause remanded. In broker's action on commission notes and to foreclose lien reserved in deed, brought W. E. Myres, of Ft. Worth, and S. C. Padafter the real estate transaction had been re-elford, of Cleburne, for plaintiffs in error. scinded for fraud, question whether broker who acted as agent for both parties to the transaction was a party to such fraud or had notice thereof held for the jury. 4. Brokers 65(1)—Broker not entitled to commissions after rescission for fraud to which he was a party. If broker who acted as agent for both parties to real estate exchange transaction was a party to or had notice of the fraud that induced consummation of transaction, he is in no position to assert a lien for commissions on one of the tracts of land conveyed, reserved in H. P. Brown and Ramsey & Odell, all of Cleburne, for defendants in error. SADLER, P. J. This suit was filed in the district court of Johnson county by J. B. Dalrymple to recover upon two notes executed by W. R. Grice for $300 each, with interest and attorney's fees, and for a foreclosure of a contract lien on two sections of land in Ector county. The defendants in the foreclosure were Grice, T. J. Peniston, and R. M. Speer. (222 S.W.) The plaintiff alleged that he was the own- the two notes in suit were never in fact er of the notes by transfer; that they were executed by Grice to Peniston, or order, in part payment for the land, and were secured by the liens reserved in a deed and deed of trust. Peniston and Speer were made parties to the foreclosure, as asserting some interest in the land. There was neither written transfer nor indorsement of the notes by Peniston. transferred and delivered by Peniston to Dalrymple; that Dalrymple obtained possession of the commission notes in breach of this agreement, and without the consent of either Peniston or Speer; that he sought to obtain a transfer of the notes from Peniston, which was refused by the plaintiffs in error. It was alleged that, after the exchange of deeds on the part of Grice and Peniston, it was discovered that Grice did not own any equity in the Panola and Shelby county lands, and in fact did not own any lands in Panola or Shelby county, and that this was known to Dalrymple; that, upon such discovery, Speer called upon Dalrymple, informed him of the facts, and he agreed to bring about a rescission of the trade; that he did so by obtaining from Peniston and Speer a reconveyance of the east Texas lands to Grice, and a conveyance of the Ector county land by Grice to Speer, in cancellation of the two $3,000 purchase-money notes, and in full rescission of the trade; that Dalrymple was a party to, negotiated, and agreed to this rescission; that the two notes in suit were never in fact delivered to Dalrymple so as to become binding liens upon the land. The plaintiffs in error undertook to defeat the foreclosure upon these allegations, and tendered proof of the facts alleged, which was excluded by the court. Plaintiffs in error also sought, in an alternative plea upon the facts, to have a fore closure of the two $3,000 notes as prior liens against the land, in the event the lien of the commission notes should be decreed to be valid; and tendered proof upon this alternative plea, which was likewise excluded by the court. The plaintiffs in error answered controverting every material allegation of the petition, and by special plea alleged that prior to and at the date of the making of the two notes Dalrymple was a real estate agent; that they were the owners of 1,280 acres of land in Ector county, described in the petition; that Dalrymple represented that Grice owned an equity of $1,300, or more in certain land in Panola and Shelby counties; that, acting as agent for both landowners, Dalrymple was instrumental in bringing about the exchange of lands by them, upon an agreement that Grice should convey to Peniston his east Texas lands and pay $6,000 evidenced by two notes of $3,000 each, payable to Peniston or order, secured by a vendor's lien upon the Ector county land; that Dalrymple and Grice fraudulently represented to plaintiffs in error that Grice owned the equity in the east Texas lands, that he had good title thereto, and that such equity was of the value of $1,300 or more; that, when the papers were drawn to close the deal, the deed from Peniston to Grice was made to recite as deferred purchase money on the Ector county land only the two $3,000 notes secured by the contract lien retained in the instrument; but that, at the special request of and for an accommodation to Dalrymple and Grice, it was 'agreed that the notes in suit might be included in the deed from Peniston to Grice, and secured by the contract lien retained against the land; that these two notes did not represent any part of the consideration due for the land, were no part of an obligation of either Peniston or Speer to Dalrymple, but covered solely an amount due by Grice to Dalrymple for commissions in the deal accruing to Dalrymple from Grice; that the papers were so executed upon the distinct contract and agreement on the part of all the parties to the transaction that these two notes should be payable to Peniston or order, should be held by him, not to be delivered to Dalrymple until after the two $3,000 notes were paid, and that the notes in suit were not to become binding as liens or obligations against the land until the payment of these two $3,000 notes and the delivery of the As the Court of Civil Appeals seems to commission notes by Peniston; that, while have reached its conclusion that no error Peniston held the legal title to the land, the was committed in excluding the evidence beneficial title was in. Spear, and this was offered by the plaintiffs in error upon the known to the parties making the deal; that authority of Holt v. Gordon, 107 Tex. 137, the $3,000 notes were never paid, and that 174 S. W. 1097, and (Civ. App.) 176 S. W. The court excluded all evidence, save that offered by the plaintiff in support of his action. After the evidence was in, the trial court peremptorily instructed the jury to return a verdict for the plaintiff-which was done. Thereupon judgment was rendered in favor of the plaintiff against Grice for the amount of the two notes, with a foreclosure on the Ector county land. On appeal, this judgment was affirmed by the Court of Civil Appeals (196 S. W. 911), and writ of error was granted by the Supreme Court in the view "that the evidence offered by Speer and Peniston under their special plea was admissible and that the court erred in giving the peremptory charge." Opinion. 902, it will not be amiss to discuss the effect of that decision before proceeding further in the case. Holt v. Gordon is clearly distinguishable from the instant case. That decision is a correct announcement of the law with reference to the facts upon which based. On September 28, 1906, Holt conveyed to Gordon 60 acres of land for a consideration of $2,800. The deed recited $1,300 cash and two notes of $750 each, payable to Holt, and secured by the vendor's lien retained. Thereafter, on November 1, 1906, Gordon executed to Holt his note for $1,300, which was secured by a deed of trust upon another tract of 212 acres of land owned by Gordon. This $1,300 note represented the cash consideration recited in the deed from Holt to Gordon. The deed was delivered to Gordon, and the deed of trust and notes to Holt, thus completing the transaction. [3] The plaintiffs in error also charged fraud in the procurement of the exchange of the lands, and laid this at the door of Dalrymple and Grice. They relied upon this fraud as vitiating the exchange and authorizing a rescission by the respective property owners without reference to the commission notes. As we understand the issue presented with regard to fraud, it is that Dalrymple, being a party to the original transaction, cannot assert the notes which he held as liens against the land where rescission has been had on account of the fraud. The rescission was alleged to have been necessitated, not only because of the failure to pay the purchase money notes by Grice, but also because of the primary fraud chargeable to both Grice and Dalrymple. On this issue the plaintiffs in error were entitled to have the facts passed upon by the jury. Un [4] We are of opinion that if Dalrymple Afterwards Gordon endeavored to cancel was a party to, or had notice of, the fraud the trade by tender of rescission. This Holt which induced Peniston and Speer to act, refused, and brought suit upon all the notes then he is in no position to assert a lien to foreclose his vendor's lien and deed of against the Ector county land, because retrust lien. Gordon defended upon the plea scission may have been had without specific that it was agreed at the time of the execu- cancellation of the commission noted. tion and delivery of the papers between him der the facts alleged by Dalrymple, the and Holt that the transaction should not be notes, as commercial paper in his hands, binding upon him unless he could borrow the may be legal obligations of Grice; but as to money upon the 212 acres of land to take up whether they were valid liens against the and extend the $1,300 note. It was held to land, was an issue which should have been be improper to permit parol evidence of this determined by the jury upon the facts pleadagreement, in the absence of fraud in induced as they may have been established by the ing the making of the contracts and the delivery of the papers, as it would be ingrafting new terms upon the written deed and deed of trust. The holding in that case proceeded upon the fact that delivery had been completed between the parties. In the instant case the charge is that the notes in fact never had been delivered to Dalrymple in such manner as to make them effective against the Ector county land, and that delivery was a condition precedent to the effective obligation of the notes as liens on the land. [1] We know of no authority, nor have we been cited to any, which precludes à defendant from showing by parol evidence the fact of nondelivery to defeat the effectiveness of an obligation. As we view Holt v. Gordon, it is authority for the admission of parol evidence to show nondelivery in fact, and to show the contract between the parties with reference to delivery. Had Gordon placed his notes and deed of trust in escrow for delivery upon the conditions pleaded by him, his right to show the facts is not denied by the holding in Holt v. Gordon, but is sustained by that decision. [2] The pleadings of the parties in the instant case are sufficient to present an issue as to nondelivery, and to admit parol evidence upon that issue. 10 R. C. L. p. 1053, evidence. [5] We are of opinion, also, that even though the notes may have been delivered to Dalrymple under such circumstances, as made them binding liens against the Ector county land so long as the parties continued in recognition of the validity of the trade, yet, should it be determined from the pleadings and facts that Dalrymple was such a party to, and so consented to, the rescission as to evidence a waiver of the accommodation lien securing the notes, he cannot enforce such lien, and would be estopped to assert same as against the land. We have carefully considered the authorities upon which the defendants in error rely, and are of opinion that they do not militate against, but are in support of our holdings. The trial court erred in excluding evidence tending to establish the defenses pleaded, and deprived plaintiffs in error of substantive legal rights. [6] The evidence offered did not seek to alter written contracts, but, recognizing the terms of the written obligations, attacked their efficacy as binding, because of nondelivery, fraud, and an authorized rescission. The defense is that the commission notes as made never became binding as liens against the Ector county land or were released by the rescission. Prouty v. Musquiz, 94 Tex. (222 S.W.) 2. Sales 61-Contract for sale of Mexican cattle to Americans held executed as to seller. Where American buyers of Mexican cattle accepted them from the seller, and moved them to a point in Mexico near the United States line, where nothing remained to be done except to pay duty, if legally imposed, drive, the cattle to the American side, and pay the Mexican seller in accordance with the contract, so far as the seller was concerned, the contract was executed, and not open to abrogation as executory, to permit making of a new agree ment. [7, 8] Should the plaintiffs in error fail to written contract a parol agreement directly sustain their defenses of nondelivery, fraud, antagonistic to it. and rescission, as against Dalrymple, we do not think that they are thereby deprived of their right to show that Dalrymple is the holder of a lien inferior to the lien existing in favor of plaintiffs in error to the extent of the consideration which Grice had obligated himself to pay in purchase of the land. The facts alleged in the pleadings clearly show on this branch of the case that Dalrymple was an inferior lienholder to the extent of the actual consideration for the land which Grice contracted to pay. If the evidence establishes the truth of the allegations, the Ector county land simply stood as a surety 3. Sales 89-Substituted agreement, diminfor Grice as to the Dalrymple notes, subject to the superior claim of the plaintiffs in error to the extent of the purchase price. On this issue, therefore, we think the court should have heard the evidence, and have permitted the jury to resolve the facts. So far as the foreclosure is concerned, Dalrymple is seeking the aid of equity, and a court of equity, with the facts before it, should administer equity. Having the parties, the subject-matter, and the facts before it, a court of equity will adjust in consonance with the rules of equity the rights of the parties arising on the pleadings and the facts. The trial court committed substantial error in depriving plaintiffs in error of the right to support their defenses by proof, and in giving the peremptory charge. ishing price, not enforceable, as exacted from seller. Where American buyers of Mexican cattle, after they had accepted and driven the cattle to a point in Mexico for export to the United States, insisted they would not take the cattle unless seller reduced price by amount of what buyers claimed was the Mexican head duty, substituted agreement, embodying modification, cannot be set up by buyers against seller's action for undiminished price, having been exacted by coercion, in view of the danger of seizure of the cattle by revolutionists and other fac tors. 4. Sales 89-Seller, who reduced price, could recover amount on failure of consideration for reduction. Where the Mexican seller of cattle to Amer icans reduced the price to the buyers solely in consideration of an export duty claimed by them to be levied by the Mexican government, The judgments of the Court of Civil Ap- which duty was in fact not levied, the sole conpeals and of the district court should be re-sideration for the reduction of price, embodied versed, and the cause remanded for a new trial. PHILLIPS, C. J. We approve the judgment recommended in this case, and the holding of the Commission on the question discussed. in a substituted agreement, failed, and the seller can recover the amount of the reduction.. Error to Court of Civil Appeals of Fourth Supreme Judicial District. Suit by Ramon Barreda against Craig, Thompson & Jeffries. To review a judgment for plaintiff, defendants brought error to the Court of Civil Appeals, which reversed the judgment and remanded the cause (200 S. W. BARREDA v. CRAIG, THOMPSON & JEF-868), and plaintiff brings error. Judgment of FRIES. (No. 156-3127.) the Court of Civil Appeals reversed, and that of the district court affirmed, on recommen (Commission of Appeals of Texas, Section B. dation of the Commission of Appeals. May 26, 1920.) 1. Evidence 445 (2) Written contract of sale could not be modified as to price by parol. In absence of allegation of fraud by the seller of cattle in procuring the written contract at a specified price by representation that his influence with the Mexican government would enable the cattle to escape export duty, plea of the buyers, setting up a verbal modification of the contract for the deduction from the price per head of the export duty exacted by the Mexican government, held not available to them as a palpable attempt to ingraft on a Sanford & Wright, of Eagle Pass, and Lewright & Douglas, of San Antonio, for plaintiff in error. Boggess & Smith and C. K. McDowell, all of Del Rio, and Ed H. Wicks, of San Antonio, for defendants in error. MCCLENDON, J. This was an action by Ramon Barreda to recover against Craig, Thompson & Jeffries a balance of $2,394 upon a contract by which plaintiff sold defendants certain cattle. Judgment was rendered in the trial court in favor of plaintiff for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |