(222 S.W.) [10] Upon the issue of whether the duty rested upon plaintiff to see that the place was safe, E. B. Rhodes, who was defendant's su "Mr. Winters was foreman of the carpenter work in the excavation in which he received his injury on the 8th day of January, 1915. By reason of my experience and knowledge gained as superintendent of the two concerns, I know the duties and responsibilities resting upon a foreman of the character that Mr. Mr. Winters engaged in, in that excavation, on Winters was at that time. In the work that the 8th of January, it was his duty to look after the question of the safety, and so on, of the walls of that excavation. That is what he was there for." subject is very ably and exhaustively treated an issue not submitted by the court will be by the Supreme Court of Wisconsin in Bax-treated as a waiver or abandonment thereof. ter v. Railway, 104 Wis. 307, 80 N. W. 644. [6, 7] The question of defendant's negligent failure to furnish a safe place to work in our opinion presented a single issue of fact, in-perintendent, gave the following testimony: dependent of any of the other three issues embraced in the pleadings. It is true that the duty to warn is sometimes treated under the general duty of the master to furnish his servants a safe place to work; but, when so treated, it does not arise, except in those cases where from its very nature the making of the place safe is rendered impossible, or, as a secondary duty, where the master has failed in the primary duty to furnish a safe place to work. The duty to warn, as presented by the pleadings here, arises independently of the general duty to furnish a Upon cross-examination, this witness tessafe place to work, under the allegation that tified that Winters was employed by and redefendant's engineer had actual knowledge of the danger. The theory presented is that, ceived his instructions from Mr. Stevens, even though plaintiff rested under the duty the engineer of the company, who had since to see that the walls were safe, yet the ac- died, and that he knew the duties imposed tual knowledge of the engineer that a partic-dition to this, several witnesses testified that upon Mr. Winters by Mr. Stevens. ular danger existed, and that plaintiff was subjecting himself thereto, imposed a new duty to warn plaintiff of that danger. The same reasoning applies to the is sue of furnishing plaintiff with material to brace the wall. The duty to furnish material necessarily presupposes a duty in plain tiff to use the material for making the wall safe, and could not arise if the duty to make the wall safe was upon defendant. It follows from what we have said that each of the three refused special issues should have been given, if there was evidence to support them. In ad bracing had been placed in a portion of the ditch by or under the direction and supervision of the plaintiff. We think the probative force of this testimony was such as to raise the issue under consideration, and that the trial court committed error in refusing it. We conclude that the judgments of the Court of Civil Appeals and District Court should be reversed, and the cause remanded to the latter for a new trial. PHILLIPS, C. J. We approve the judg ment recommended in this case ahd the hold ing of the Commission with respect to the refusal of special issue No. 14. VARN V. GONZALES. (No. 152-3114.) June 16, 1920.) 1. Vendor and purchaser 214(1)—Assignment of option contract held fraudulently induced by secret agreement. [8,9] With regard to the sixteenth and thirteenth special issues, however, we have concluded that, although supported by evidence, their refusal upon the request of defendant was harmless. These issues were tendered by plaintiff's pleadings, and presented grounds of recovery based upon acts of primary negligence on defendant's part. They in no way related to any matter of (Commission of Appeals of Texas, Section B. defense to the action as submitted to the jury. The only ground of recovery which the trial court submitted was embraced in special issue No. 1: Whether defendant negligently failed to furnish plaintiff a safe place to work. If that issue had been answered favorably to defendant, it would have been the duty of the trial court to render judgment for the defendant. The power of the trial court to substitute its findings, where none have been made by the jury does not admit of a finding by the court upon an independent ground of recovery which the party alleging it does not urge. In such case, the issues submitted will be treated as embracing the only grounds upon which recovery can be had; and the failure of plaintiff to tender There can be no recovery on notes given for assignment of option contract to convey land in Mexico, where valuable timber on land not on tract was represented to be on land sold, and there was a failure to point out when land was inspected that great areas of the land were gorges and canyons, and two of the makers of the notes coming from the states were represented by Mexican interpreters, who became their agents and partners, and they entered into a secret understanding with assignor that the amount they became liable for as parties to the contract need not be paid, as in such case contract is absolutely void. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. Vendor and purchaser 214(1)—Fraudu- | oz, and one Bernard Schuster, land agents lent assignment of option contract not sub- and brokers, to represent them. Buchoz and ject to ratification. An assignment of an option contract to purchase land, having its inception in fraud, is not subject to ratification. 3. Vendor and purchaser 214(1)-Fraudulent assignment of option contract, promptly repudiated, not ratified. Where two makers of notes given for option to purchase Mexican land on discovery of a secret agreement of Mexican cosigners with assignor to defraud them promptly repudiated the contract, and tendered back the property, which was refused, they did all that was required of them, and no ratification could take place. Schuster and Fulkerson had offices near each other, and all three acted as interpreters and agents of the Varns, and later became their partners. Some time in August, as nearly as the date can be arrived at from the statement of facts, the Varns and their interpreters and agents and Gonzales, six in all, went, at the expense of the Varns, to inspect the lands, which were bounded on one side for a long distance The Varns by land owned by one Shaw. were shown timber on the Chavez lands, and were shown also, either by mistake or designedly, it appears designedly, much timber of the finest quality as being on the Error to Court of Civil Appeals of Eighth Chavez land, but which was in fact on the Supreme Judicial District. Action by Amador Gonzales against Geo. W. Varn, administrator, and others. From a judgment of the Court of Civil Appeals (193 S. W. 1132), affirming a judgment for plaintiff, Varn brings error. Reversed, and judgment entered for defendant. M. W. Stanton and Turney & Burges, all of El Paso, for plaintiff in error. F. G. Morris, B. Bryan, and T. A. Falvey, all of El Paso, for defendant in error. KITTRELL, J. This case is reported in (Civ. App.) 193 S. W. 1132. The opinion to be there found will reveal the character of the case, and the defense interposed. In order, however, to make our opinion complete within itself, we will, as briefly as possible, summarize the controlling facts. Statement of the Case. In the summer of 1908 three Mexican ladies living in the state of Durango gave to Amador Gonzales, a Mexican resident in the state of Chihuahua, a verbal promise or option to sell him for 35,000 pesos, equivalent to $17,500 gold, a body of land comprising about 45,000 acres situated in the state of Durango. On September 17, 1908, Gonzales entered into what was termed a minuto de contracto, or memorandum of a contract, with one Fulkerson, a resident of El Paso, Tex., whereby he assigned to Fulkerson all the rights he (Gonzales) possessed under the "promise" of the Chavez sisters. Fulkerson had been co-operating with Gonzales to find a purchaser for the land, and the jury found he was the agent of Gonzales. Shaw land, and large areas of the Chavez land, which was intersected by inaccessible gorges and canyons, were not shown the Varns at all. As has been said, the Varns could neither speak nor understand Spanish, and were wholly dependent on Fulkerson, Buchoz, and Schuster for information about the land, and believed the land belonged to Gonzales. After the inspection had been made Gonzales on September 24, 1908, in the city of Durango made a contract with the Chavez sisters, by which they agreed to sell to him, or any person he might designate, their land, which contract was termed an "option or promise of sale," and which was to expire November 4, 1909. The price was to be 35,000 pesos, payable when Gonzales made a deed. Gonzales bound himself to pay semiannually, 1,500 pesos, interest on a mortgage on the land. He was given the right to cut timber paying 100 pesos a carload. If he did not effect a sale, all payments and all the machinery put on the land were to revert to the Chavez sisters. Five days later in the city of Juarez, Mexico, or on September 29, 1908, a contract in most elaborate form was made between Gonzales on the one side and Fulkerson, Schuster, Buchoz, W. W. Varn, and G. C. Varn, in the order named, on the other. By the terms of said contract the minuto de contracto between Gonzales and Fulkerson was first annulled, and the contract between Gonzales and the Chavez sisters of September 24, was recited substantially in complete form. Gonzales transferred and assigned to the five other parties his right and shares arising under the contract he had made with the Chavez sisters. Some time in the summer of 1908 there came to El Paso from Georgia two brothers, It had been contemplated that only the W. W. and G. C. Varn, who it appears had, Varns should be grantees or assignees, but or were able to control, capital, which they they were told by their interpreters and desired to invest in Mexican timber lands. agents that the contract was so desirable that They could not speak the Spanish language, they, Fulkerson, Buchoz, and Schuster, would nor understand it when it was spoken, and take an interest to the extent of one-half, for that reason engaged one Numa G. Buch- | and they and the Varns made then and there (222 S.W.) These facts are revealed by the record in practically undisputed form. Though Gonzales and the three interpreters, agents, and partners were on the stand, neither was even asked a question calling for a definite cate a verbal agreement to become partners in the [ey, which they declined to do, but repudiated venture, and the instrument was so execut- the contract, and offered Gonzales possession ed, Fulkerson taking one-fourth, Buchoz one- of the land, which he refused to accept, sayeighth, Schuster one-eighth, and the Varns ing he would sue on the notes. one-half. The price of the "assignment" was $18,195, represented by one note for $15,000 gold, due January 1, 1909, with 8 per cent. interest, and one due in two years for $3,195, bearing the same interest. The "assignees" were to pay the interest Gonzales had prom-gorical denial of the allegations made by the ised to pay on the mortgage. It is recited that the instrument was read to the signers in Spanish by the notary, and in English by an appointed interpreter, but the Varns never saw the Chavez sisters contract with Gonzales, and understood he owned the land. The two notes were duly prepared in Spanish, and were signed by Fulkerson, Buchoz, Schuster, and the Varns, and were delivered to Gonzales, and were the notes sued on in this action. On October 27, 1908, in El Paso, the verbal agreement of partnership above referred to was put into written form, but the recital in it was that the parties were to pay the $17,500 to the Chavez sisters, and the $18,195 represented by the notes and $10,000 in cash, making altogether $45,695 United States gold. It was specifically recited that to the payment of the $10,000 cash each of the parties had contributed in the proportion of Fulkerson one-fourth, Buchoz one-eighth, Schuster one-eighth, G. C. Varn one-fourth, and W. W. Varn one-fourth. The $17,500 to be paid the Chavez sisters was referred to as a debt of Gonzales assumed by the partnership, which appears to support the testimony of G. C. Varn that he believed the lands be longed to Gonzales. The Varns paid their one-half of the $10,000, and went upon the land and established a camp, and cut out trails, and proceeded to cut timber. When the interest installment became due November 1, 1908, G. C. Varn paid it. He agreed to make certain advances, and even to paying the $15,000 due January 1, 1909, if the partnership could not do so. The Varns believed that their copartners had paid in good faith their half of the $10,000, and were to pay their half of the notes, and but for such belief would not have made the contract. The jury so found. Some time between November 1, 1908, and January 1, 1909, the Varns learned that their copartners and agents had not paid their half of the $10,000, or, if they did, it it had been returned to them by Gonzales, and that they were not to pay their half of the notes, which arrangement was a secret agreement between them and Gonzales, made when the Juarez contract was executed. The Varns on being so advised, at once sought out Gonzales and charged him with the deception and secret agreement, which he admitted, and offered to surrender the notes if the Varns would pay him $10,000 Mexican mon222 S.W.-35 Varns, on which the defense of fraud was based, and the court found as a fact that the secret agreement was made as alleged. Opinion. [1] From the preliminary statement of the case set out above it is too clear to leave room for doubt or debate that the contract which was the basis of the action was void and unenforceable because contrary to public three of the signers of the contract and notes, policy. It is practically undisputed that the Fulkerson, Buchoz, and Schuster, stood in the threefold relation to the two other signers, the Varns, of interpreters, agents and partners, and it is elementary law that in each and all of said relations there rested upon them the obligation to preserve the utmost good faith towards those who were at once their principals and partners. It is equally as clearly shown that they did not observe or perform that obligation, but, on the contrary, secretly conspired with the payee of the note to perpetrate a fraud on the Varns. There is no possible ground in morals or in law upon which an action based upon such a contract can be maintained. It has been so adjudged by the Supreme Court of Texas in the past, and those holdings are approved by the present Supreme Court, and the law is so laid down in the reports of many, if not all the other states and in the text-books. Seeligson v. Lewis, 65 Tex. 215, 57 Am. Rep. 593; Wegner v. Biering, 65 Tex. 506; Haswell v. Blake (Civ. App.) 90 S. W. 1125; Reed v. Brewer, 90 Tex. 144, 37 S. W. 418; Simon v. Garlitz, 63 Tex. Civ. App. 172, 133 S. W. 464. "If a contract involves the violation of a penal law, the court will declare it void, and any agreement the object of which is to defraud an individual or two or more individuals is il legal, and it has been held that any contract which involves a fraud on the rights of others is against public policy." Elliott on Contracts, vol. 2, p. 8 et seq., and notes. [2, 3] It was contended by appellee in the Court of Civil Appeals that the appellants ratified the contract, and on that ground alone that court affirmed the judgment. Such holding was, in our judgment, erroneous. The contract was clearly not subject to ratification. However, if it were, there is no testimony in the record sufficient to show ratification. Taking all the testimony for plaintiff to be true, it as a matter of law was not sufficient to show ratification, while the testimony for the defendants, which was undisputed, shows that they did all they were required to do in a case springing out of fraud, when upon discovery of the secret and void agreement they promptly repudiated the contract and tendered back the property, which tender was refused. Dawson v. Sparks, 1 Posey, Unrep. Cas. 745; 2 Parsons on Contracts, 780. The trial court should have instructed a verdict for defendants, and erred in rendering the judgment for plaintiff, and the Court of Civil Appeals erred in affirming that judgment. Trespass to try title by J. H. Holland against the Houston Oil Company of Texas. From judgment of Court of Civil Appeals (196 S. W. 668) affirming judgment for plaintiff, defendant brings error. Reversed, and cause remanded for a new trial. H. O. Head, of Sherman, and Parker & Kennerly and Kennerly, Williams, Lee & Hill, all of Houston, for plaintiff in error. Thomas & Wheat and Tom F. Coleman, all of Woodville, for defendant in error. SADLER, P. J. J. H. Holland filed suit in trespass to try title against the Houston We recommend that the judgment of both Oil Company of Texas to recover an undividthe district court and the Court of Civil ed 160 acres out of the N. H. Hove (or Hooe) 640-acre survey. He based his right upon Appeals be reversed, and judgment be here rendered for plaintiffs in error against de- the ten-year statute of limitation. He pleadfendant in error for the $5,000 paid defend-ed and the evidence tended to show his posant in error by the Varns, and for the $750 paid by the Varns as interest on the mortgage, with interest on both of said sums from the date of the respective payments, and for all costs of all courts. PHILLIPS, C. J. We approve the judgment recommended in this case. session of a small undefined tract of about 5% acres of the survey for the ten-year period. Neither in the petition nor by proof is the description of the 52 acres given. The pleading and evidence wholly failed to show any character of dominion exercised by Holland over any definite portion of the larger survey lying without the fencing by which the 5-acre tract was inclosed. No actual possession is shown to the outland by Holland. His pleading and the agreement of counsel is tantamount to a disclaimer as to all the land in the survey except 160 acres. HOUSTON OIL CO. OF TEXAS v. HOL- The description of the 160-acre tract in the LAND. (No. 153-3116.) June 16, 1920.) petition is not very definitely given, and only in a general manner, so as to include the (Commission of Appeals of Texas, Section B. 5-acre tract. However, it is not shown that he did any act impressing his possession The descripon the thus defined 160 acres. tion in the petition is clearly nothing more than an effort to render certain the partition desired by Holland. 1. Adverse possession 107-Possession of small field in 640-acre tract held not to show adverse possession of undivided 160-acre tract. It was agreed that the oil company had the record title to the whole of the survey, subject alone to such title as Holland might show under his plea of limitation. In the state of the record Holland shows title, if at all, to the 5-acre tract only. Richardson, from whom Holland purchased, claimed and sold only the 5-acre tract. Holland does not claim that he bought from Richardson a claim to the 160 acres defined in his petition, or to a definite or indefinite 160 acres out of the Hove. Upon the purchase Holland went into possession of the 5% acres in continuation of the existing possession held by Richardson. This did not extend beyond the inclosure of the small tract. Holland's possession of this small tract was limited by his purchase to that alone as notice in support of the statute. Thus holding the small tract, by a simple process of the mind, Holland sought to ex Error to Court of Civil Appeals of Ninth tend his claim beyond the inclosure to an Supreme Judicial District. undefined quantity of land necessary to en (222 S.W.) 16-Denied where death of vendor renders contract inequitable. large his holding to 160 acres. No act is 4. Specific performance "There were no 'external circumstances discovering that inward intention.'" Titel v. Garland, 99 Tex. 206, 87 S. W. 1152. [1] The defendant in error fails to show title by limitation to the excess beyond the 5-acre tract. Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; Titel v. Garland, 99 Tex. 206, 87 S. W. 1152; McAdams v. Hooks, 47 Tex. Civ. App. 79, 104 S. W. 432; Rice, Executor, v. Goolsbee, 45 Tex. Civ. App. 254, 99 S. W. 1031. [2] Neither by the pleading nor by the evidence is the location of the 5-acre tract shown. No description of this is given. The evidence furnishes no data on which the verdict of the jury or the judgment of the court can be based as to this tract. Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209. The judgments of the Court of Civil Appeals and of the trial court should be reversed, and the cause remanded for a new trial. Where a woman who had a considerable expectancy contracted to sell her homestead, worth nearly $5,000, for $1,500, the purchaser agreeing that she might occupy it rent free for life, and that he should pay taxes, held that, where the woman died before the contract was executed, specific performance as against the devisee of the homestead will be denied, and while the contract may have been fair at its inthe purchaser left to his remedy at law; for, ception, death rendered it inequitable. Error to Court of Civil Appeals of First Supreme Judicial District. Suit by W. F. Bender against Louis Bender, in which Peter Bergstedt intervened and answered. A judgment for defendant and intervener was reversed and rendered by the Court of Civil Appeals (187 S. W. 735), and the intervener brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed. D. E. Simmons and Jones & Jones, all of PHILLIPS, C. J. We approve the judgSONFIELD, P. J. On the 26th day of Noment recommended in this case, and the holding of the Commission on the question dis-maiden name, Bergstedt, entered into a writvember, 1913, Mrs. Mary Hafer, under her cussed. ten contract with W. F. Bender, wherein she agreed to sell and convey to Bender a certain fractional lot in the city of Houston, known as her residence or homestead, upon which she had resided for some 40 years. Under the terms of the contract, Mrs. Hafer was to have the right to occupy the premises without cost to her during her life, such right not to be assigned, nor the premises sublet. She obligated herself to carry insurance on the improvements in the sum of $1,000 until her death, the policy to be payable to Bender. In the event of the destruction of the premises by fire, the house was to be rebuilt from the 2. Specific performance 8- Remedy within proceeds of the insurance, and Mrs. Hafer court's discretion. A decree for specific performance of a contract is not a matter of right, but rests in the sound discretion of the trial court, which discretion is not arbitrary, but judicial, and must be exercised according to the established doctrine and principles of equity. 3. Specific performance 16-Relief denied where contract fair at inception has become harsh and inequitable. given the right of occupancy. Bender obligated himself to pay all taxes accruing after the year 1913. He was to pay Mrs. Hafer for the property the sum of $1,500 cash, $100 upon the execution of the contract, and the remaining $1,400 within 60 days from the delivery of a complete abstract of title to the propcrty, provided the title was good and merchantable. Any defects in the title were to be pointed out in writing by the attorney of Liberty of contract should not be unduly Bender, and either party should have 60 days restricted, and for that reason specific per- in which to cure such defects. In the event formance will not necessarily be denied, be- the defects were not cured by either party cause a contract fair at its inception has since within that time, then, upon demand of Bendbecome inequitable through subsequent events, for a court largely judges a contract as of the er, the $100 paid by him should be returned, time of execution, but if there has been a great and both parties thereupon be released from change in circumstances, whereby the enforce- all liability under the contract as to each othment of the contract would be harsh and in- er. A part of paragraph 3 of the contract equitable, specific performance will be denied. provides: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |