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pointing out the supposed objectionable portions number of acres the land contained, that it of the evidence"-citing Branch's Crim. Law, $ shows that the considerations or the values 47; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Tubb v. State, 55 Tex. Cr. K. 623, | received by either party were about the same, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. and no loss was sustained by appellant. 304, 122 S. W. 872.

We are of the opinion that there is no The motion for rehearing is overruled.

such error in the record as ought to reverse

the case. DAVIDSON, J. I cannot agree to this de

The justice of the case has been reached, cision. I do not purpose going into a discus- and the judgment is affirmed. sion of the reasons, but I especially say this

On Motion for Rehearing. case goes too far in admitting details of acts and facts of the homicide said to have been In our opinion, we involuntarily stated committed by deceased in Grimes county that appellee's tract was supposed to conyears ago, before this unfortunate tragedy. tain 27 acres, when we should have stated All the details of that killing, even to minute ( 21 acres. Under our view of the evidence, details, were admitted in this case for the we consider this discrepancy immaterial, and state. In other words, that killing was re- the motion for rehearing, as well as the motried in this case. That carries the rule too tion for additional findings, is overruled. far, and becomes more than a dangerous precedent. There are other similar matters, but I do not care to discuss them at length. It would be useless in the face of this opin

VOIGT v. HUNT. (No. 5308.) ion.

(Court of Civil Appeals of Texas. Austin.

May 6, 1914.)
BARNUM V. HOWARD. (No. 7163.)


AGREEMENT-VALIDITY. (Court of Civil Appeals of Texas. Dallas. Where adjacent owners knew that the May 23, 1914. On Motion for Re

boundary between their land was a creek called hearing, June 13, 1914.)

for in their deeds, but their dispute involved EXCHANGE OF PROPERTY (3 8*)—REAL PROP- which creek was called for, a boundary by paERTY-RIGHTS OF PARTIES-SHORTAGE.

rol agreement not following the meanders of eiWhere an exchange of land was made with-ther creek was invalid. out reference to the number of acres the land

[Ed. Note.-For other cases, see Boundaries, contained, and the value received by each was Cent. Dig. $8 212–226, 249–251; Dec. Dig. $ about equal, a recovery for shortage cannot be 46.*] had.

2. BOUNDARIES (8 46*)-PAROL AGREEMENTS(Ed. Note.-For other cases, see Exchange of EVIDENCE. Property, Cent. Dig. 88 14–18; Dec. Dig. 8.*] A parol agreement fixing a disputed bound

ary is binding on the parties, though it may be Appeal from District Court, Collin Coun- subsequently discovered that the agreed line is ty; H. L. Davis, Judge.

not the true line, but it is essential to the vaAction by Alice S. Barnum against J. M. lidity of such an oral agreement that the line

be in dispute, and that its true location be unHoward. Judgment for defendant, and plain- known. tiff appeals. Affirmed.

(Ed. Note.-For other cases, see Boundaries,

Cent. Dig. 88 212-226, 249–251; Dec. Dig. $ F. E. Wilcox, of McKinney, for appellant. 46.*] R. C. Merritt, of McKinney, for appellee. 3. FRAUDS, STATUTE OF (8 70*) BOUNDARY


Where the true location of a boundary line RAINEY, C. J. Appellant and appellee is unknown to the contiguous owners, and they made an exchange of real estate. The tractorally agree on a line which they know is not of appellee being more valuable, appellant the true boundary, the agreement is void un

transferred to him certain vendor's lien notes der the statute of frauds. Paramounting to about $500, to equalize values. Statute of, Cent. Dig. $ 112; Dec. Dig. $ 70.* í

[Ed. Note. For other cases, see Frauds, Appellee's tract was supposed to contain 27

4. APPEAL AND ERROR (8 1064*)_HARMLESS acres, and appellant sues for damages to re- ERROR-ERRONEOUS INSTRUCTIONS. cover for shortage, alleging it to be 8.47 Where the court on appeal cannot deter

Neither party knew the number of mine whether the jury based their verdict on acres the tract contained, and the trade was

the issue of an agreed boundary line, in which

case the agreement, being in parol, was void, made without reference thereto.

or on limitations, justified by the evidence, the Various errors are assigned to the court's error in an instruction submitting the issue of charge on the measure of damages, as to the agreed line was reversible. law regarding mistake in reference to the Error, Cent. Dig. $$ 4219, 4221-4224; Dec.

[Ed. Note.-For other cases, see Appeal and number of acres in the tract, and to the Dig. S 1064.*] refusal of certain special charges, all of which we have considered, and have reached Error to District Court, Bell County; John the conclusion that the evidence sustains D. Robinson, Judge. the jury's findings to the effect that the ex- Action between G. Voigt, Sr., and W. A. change was made without reference to the Hunt, Jr. There was a judgment for the

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latter, and the former brings error. Revers-, ravine with its meanders N. 63° W. 160 yrs.; ed and remanded.

N. 40° W. 220 vrs.; N. 76° W. 240 vrs, to

Donaho's creek. Thence up said creek with its M. E. Monteith, of Belton, and W. E. meanders S. 36° W., 180 yrs.; N. 56° W. 110 Monteith, of Houston, for plaintiff in error. 67° 'w. 130 vrs. [to point marked 'A' on map]."

vrs.; N. 38° W. 40 vrs.; N. 14° W. 120 vrs.; S. Winbourn Pearce, of Temple, and A. L. Cur

In 1870 Allen Meirs purchased a portis, of Belton, for defendant in error.

tion of the Moore survey, in which his bound

aries adjoining said 80-acre tract were des. Findings of Fact.

cribed as follows: JENKINS, J. The following map will aid

* Thence S. 27° E. 300 vrs. to Donin understanding the facts in this case: aho's creek, an ash 12 in. dia. marked A for

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SO E 220 YRS.



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The dotted lines represent the fence erect-corner at mouth of ravine (point marked 'A' on ed by Allen Meirs. The straight lines near map]. Thence down Donaho's creek to mouth the creek and branch represent the calls by boundary of 80 acres conveyed to Andrew Spiva.

of a ravine or branch which serves as porth course and distance from point B in the deed Thence up said ravine as a boundary to east to the defendant in error. The land in is- boundary line of said headright survey." sue is that which lies between the fence and Plaintiff in error became the owner by the creek and between the fence and the mesne conveyance of that portion of the Albranch.

len Meirs tract marked "Voigt's Land" on the In 1855 W. A. Hunt, Sr., purchased from map, in each of which deeds Donaho's creek Andrew Spiva 80 acres of land out of the and the branch were called for as boundaries. A. G. Moore survey, described as follows: Defendant in error claims that the fence, as

"Beginning at the S. W. (should be S. E.] shown on the map, was agreed upon by W. A. corner of the A. G. Moore headright survey on Hunt, Sr., and Allen Meirs as the boundary the dividing line between Moore and Thompson; between said tracts of land. He also pleaded thence N. 71° W. with said division line 900 vrs. to Donaho's creek; thence down said creek as a the ten-year statute of limitation. natural boundary line to the mouth of a branch

The case was tried before a jury that reor ravine; thence up said_branch as a natural boundary line to the S. E. boundary of said turned a general verdict for defendant in erMoore survey; thence S. 19° W. with said ror. boundary 352 vrs. to the place of beginning.”

Opinion. In a partition of the estate of said Hunt in

[1] The court gave the following charge: April, 1890, these 80 acres were deeded to T.

A dividing line between contiguous surveys J. Hunt, the creek and branch being called may be fixed and established by the owners for as his north and east boundaries, as in thereof if the same is in doubt, or where it is the deed to W. A. Hunt, Sr.

desired to do so, and, where such owners agree

upon and establish a boundary line between July 27, 1907, T. J. Hunt executed a deed such surveys, and each accepts and acquiesces to defendant in error, embracing said 80 therein, and each or either of them act upon acres, in wbich the north and east boundaries such agreed line, then the same would be the of same were described as follows:

true line, even though not strictly in accord

with the calls in the deeds." * * Thence to a stake in a ravine on the east boundary line of said Moore survey

We sustain plaintiff in error's assignment (point marked 'B' on map). Thence down said of error as to this charge, and hold that it

was error to submit the issue of agreed bound-, [4] We do not know whether the jury ary. If there was ever an agreement as to based their verdict on the issue of agreed the boundary line in controversy, it was be- line or on limitation. The evidence as to the tween W. A. Hunt, Sr., and Allen Meirs. ten-year limitation was sufficient to require Each of their deeds called for Donaho's creek that issue to be submitted to the jury, but it as a part of the boundary between them, and is not such as would justify us in saying, as neither of said deeds called for any other a matter of law, that defendant should have object, natural or artificial, by which such recovered on that issue alone; hence we canboundary could be located to the extent that not say that the submission of the issue of said creek extended between their surveys. agreed boundary was harmless error. There does not appear to have ever been any For the reasons stated, the judgment of dispute between said parties as to the true the trial court is reversed, and this cause is location of this portion of their boundary remanded for a new trial in accordance with line, and there could have been no room for this opinion. such dispute.

Reversed and remanded. The evidence indicates that there was some dispute between them as to whether the branch called for in their deeds was the

JEWETT STATE BANK v. CORSICANA one shown on the map or one further east.

NAT. BANK et al. (No. 7106.) But, whether the one or the other, they must have known that their boundary on this por

(Court of Civil Appeals of Texas. Dallas.

May 23, 1914. Rehearing Denied tion of their surveys was the meanders of

June 13, 1914.) a branch, and not elsewhere.

1. TRIAL (8 143*) QUESTIONS OF LAW OR [2] A parol agreement fixing a disputed


EVIDENCE. boundary is binding upon the parties, not

It was proper for the trial court to direct withstanding it may afterwards be discovered a verdict, though the evidence was conflicting; that such agreed line is not the true bound where the conflicts were immaterial or could ary. Cooper v. Austin, 58 Tex. 501; Lecomte not affect the result. v. Toudouze, 82 Tex. 214, 17 S. W. 1047, 27 Dig. ŠS 342, 313; Dec. Dig. $ 143.*]

[Ed. Note.-For other cases, see Trial, Cent. Am. St. Rep. 570; Coleman v. Smith, 55 Tex.

2. PAYMENT ($ 85*)-RECOVERY-DOUBLE PAY259. The reason for this is that, in making

MENT OF DEBT. such agreement, "both parties believed that Where defendant bank, acting for and by they were getting their own land, and no authority of a shipper of cotton seed, and on inmore." Houston v. Sneed, 15 Tex. 309. Or, from plaintiff oil company a debt it owed such

formation received from him, collected twice as expressed in Lecomte v. Toudouze, supra: shipper for seed delivered to it, the bank was

"The reason of this rule evidently is based in possession of money of the oil company which upon the idea that the parties do not undertake in equity and good conscience it ought not to to acquire and pass the title to real estate, as keep; and hence the oil company or its asmust be done by written contract or convey. signee was entitled to recover the same in a suit ance; but they simply by agreement fix and de- for money had and received, which remedy was termine the situation and location of the thing not affected by the various agencies, ramificathat they already own."

tions, or means by which the result was accom

plished. But the rule does not exist, in the absence [Ed. Note.-For other cases, see Payment, of the reason upon which it rests. Hence it Cent. Dig. $8 272-281; Dec. Dig. 85.*] is essential to the validity of an oral agree- 3. PAYMENT (8 89*)-RECOVERY-DOUBLE PAYment to fix a boundary line that such line be

MENT OF DEBT. in dispute, and that its true location be un fendant bank its debt to a shipper of cotton

Where plaintiff oil company paid to deknown to the parties making the agreement. seed to the oil company, and the bank used the Otherwise the fixing of such boundary by bill of lading, which it should have surrendered oral agreement would be passing title to real to the oil company, as a means of collecting a

second time for the same debt, the oil company, estate contrary to the statute of frauds. after having received the seed, being required Harn v. Smith, 79 Tex. 312, 15 S. W. 240, 23 to take up the bill of lading then in the hands Am. St. Rep. 340; Galbraith v. Lunsford, 87 of another, its act in so doing only amounted Tenn. 89, 9 S. W. 368, 1 L. R. A. 526; Har- to the performance of a legal duty, and hence

operated as an equitable assignment of or a tung v. Witte, 59 Wis. 285, 18 N. W. 175; subrogation to any claim the owner of the bill Terry v. Chandler, 16 N. Y. 354, 69 Am. Dec. had against the bank to recover the second pay

ment. 707; Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Gilchrist v. McGee, 9 Yerg. (Tenn.) Cent. Dig. 88 291-296; Dec. Dig. $ 89.* ]

[Ed. Note.-For other cases, see Payment, 455.

4. ACTION (8 38*)--CAUSES OF ACTION-Mis[3] For the same reason, where the true JOINDER. location of a boundary line is unknown to the Where, plaintiff oil company having paid contiguous owners, if they agree upon a line to defendant bank its debt to a shipper of cer

tain cotton seed, the bank used the bill of ladwhich they know is not the true boundary, ing, which it should have surrendered to the such agreement is void under the statute of oil company, as a means of collecting a second frauds. Lewis v. Ogrom, 149 Cal. 505, 87 time for the same debt, whereupon the oil Pac. 60, 10 L. R. A. (N. S.) 610, 117 Am. St. holder and brought suit against the bank, as for

company took up the bill of lading from the Rep. 151; Vosburg v. Teator, 32 N. Y. 561. money had and received, to recover the second

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payment, the fact that plaintiff set up all the 011 Company was prepared by the latter
facts showing its ownership of the draft at- company and sent to Dunagan, with instruc-
tached to the bill of lading and the second pay- tions for him to sign and collect same in due
ment of the money under mistake did not in-
dicate a misjoinder of causes of action. course of business,

When Dunagan for[Ed. Note.--For other cases, see Action, Cent. warded the seed to Corsicana Cotton Oil Dig. $$ 549, 565; Dec. Dig. § 38.*]

Company, he received from the railway com5. BANKS AND BANKING ($ 140*)-DRAFTS- pany a bill of lading evidencing the shipment, ACCEPTANCE.

Where a draft on which plaintiffs' cause of which he sent to Jewett State Bank, to whom action was based was not drawn against a fund he was indebted in a large sum, and who re on deposit with defendant bank belonging to ceived the bill of lading the day after the plaintiff company, but was a transfer of a debt car was shipped. Jewett State Bank attach. and a demand for its payment, the rule that a ed the bill of lading so received to draft for bank is not liable on a check drawn against a deposit which the bank has never accepted had $401 against Houston County Oil Mill de no application.

Manufacturing Company in favor of L. A. [Ed. Note.-For other cases, see Banks and Dunagan, signing Dunagan's name thereto, Banking, Cent. Dig. $8 380–392, 394–397; Dec. and collected the money, crediting Dunagan Dig. & 140.*]

therewith. After Dunagan sent the bill of Error from Navarro County Court; J. M. lading to Jewett State Bank, he received the Blanding, Judge.

draft sent him by Corsicana Cotton Oil ComAction by the Corsicana National Bank and pany in payment of the same car of seed, which the Corsicana Cotton Oil Company against he also sent to Jewett State Bank. Upon re the Jewett State Bank. Judgment for plain- ceipt of the draft prepared by the Corsicana tits, and defendant brings error. Affirmed. Cotton Oil Company, the Jewett State Bank

B. D. Dashiell, of Jacksonville, and J. s. attempted to collect the amount thereof Callicutt, of Corsicana, for plaintiff in error.

through another draft drawn upon Corsicana McClellan & Prince, of Corsicana, for de Cotton Oil Company in its favor, instead of fendants in error.

the one in favor of Corsicana National Bank,

and to which it signed Dunagan's name; but, RASBURY, J.

because it bore exchange, it was not paid. In the court below the county judge, at the conclusion of the testi- The Jewett State Bank then signed Duna

gan's name to the draft prepared by the mony in this controversy, directed the ry to return verdict in favor of Corsicana Na Corsicana Cotton Oil Company, erased the tional Bank against the Corsicana Cotton Oil name of Corsicana National Bank, to whom Company and the Jewett State Bank, joint- the draft was payable, inserted its own name ly, for the principal of the debt sued for, to- tional Bank of Houston for collection. The

as payee, and sent same to Lumbermen's Na. gether with interest and certain protest fees, draft was paid and the money placed to the and in favor of Corsicana Cotton Oil Company credit of Dunagan by the Jewett State Bank, against Jewett State Bank for like amount, which the jury did, and upon which verdict The bill of lading and the draft sent Dunajudgment was entered accordingly, except gan by Corsicana Cotton Oil Company showed it provided that, if the Jewett State Bank that each was in payment of the same car paid the judgment in favor of Corsicana Na

of seed. The Jewett State Bank signed tional Bank, such payment should operate as Dunagan's name to both, and acted for him satisfaction of the judgment against it in in collecting same, and used the money to favor of Corsicana Cotton Oil Company; and discharge that much of Dunagan's indebtedfrom which judgment this appeal is prose- ness to the bank. The Houston County Ou cuted.

Mill & Manufacturing Company, assuming We deduce from the evidence, upon which that Dunagan, from whom it had bought cotsaid judgment is based, in substance, the fol- ton seed, had shipped them the seed covered lowing essential and undisputed facts: L.) by the bill of lading attached to the draft

, A, Dunagan, a merchant at Donie, delivered paid it, and, when it ascertained that the to the railway company at that point a car seed had been delivered to Corsicana Cotton of cotton seed consigned to the order of L. Oil Company, demanded of that concern the A. Dunagan, Corsicana, notify Corsicana Cot- amount paid out for the bill of lading, which ton Oil Company, to whom the seed had been was refunded by the Corsicana Cotton Oil sold. Such a bill of lading was issued by Company, and the draft and bill of lading the railway company and delivered to Duna- was by it indorsed and assigned to Corsigan. The car of seed was transported to cana Cotton Oil Company, with all claims Corsicana and there delivered by the rail. against Jewett State Bank arising by reason way company to Corsicana Cotton Oil Com- of the transaction. The Corsicana Cotton pany, whose agents weighed and unloaded Oil Company drew a draft for the amount same before receiving bill of lading, and as of its claim arising upon the facts stated certained that at the agreed price the amount against Jewett State Bank, and transferred to be paid Dunagan was $392.50. A draft same to Corsicana National Bank, and guarfor that amount in favor of Corsicana Naanteed the payment of same by indorsement. tional Bank and against the Corsicana Cotton Payment of the draft was refused when pre For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sented to Jewett State Bank, following which ments of error seriatim, what we have said protest was made and suit filed by Corsicana in effect disposes of all of them, save two, National Bank against Jewett State Bank which complain of the refusal of the court to and Corsicana Cotton Oil Company, and re sustain the Jewett State Bank's general exsulting, as we have said, in a verdict di- ception. The point urged under the general rected by the court.

demurrer is that the petition showed no [1, 2] We are of opinion that under the un cause of action against Jewett State Bank, disputed facts in this case the trial court because it was not alleged that the Jewett did not err in directing the verdict he did, State Bank, verbally or in writing, accepted since, if it can be said that there are con- the draft drawn by Corsicana Cotton Oil dicts in the testimony, such conflicts are company against it in favor of Corsicana Naimmaterial or cannot affect the result. Strip- tional Bank. In answer to the point, it may ped of all details, the record discloses that be said that the draft so drawn was not the Jewett State Bank, acting for and by au- against a fund on deposit with the Jewett thority of Dunagan, and upon information State Bank belonging to the Corsicana Cotreceived from him, collected twice from the ton Oil Company, but as we have said, but Corsicana Cotton Oil Company a debt it owed a transfer of the debt and a demand for its Dunagan, and that the bank yet has the payment; and, for that reason, it is obvious money. Such being true, the Jewett State that the rule of law governing the rights of Bank was in the possession of money of an the holder of a check drawn against a bank other, which in honesty and good conscience deposit never accepted by the bank has no it ought not to retain, and to recover which application. the Corsicana Cotton Oil Company or its The judgment is affirmed. assignee could resort to a suit for money had and received ; and such remedy is not affected by the agencies or by the ramifications of the means by which the result is ROBINSON SEED & PLANT CO. v. HEXaccomplished. Merryfield v. Wilson, 14 Tex. TER & KRAMER. (No. 7150.) 224, 65 Am. Dec. 117; Ingram v. Posey, 138 (Court of Civil Appeals of Texas. Dallas. S. W. 421; Scott v. Jackson, 147 S. W. 336.

May 23, 1914. Rehearing Denied

June 13, 1914.) [3] The Corsicana Cotton Oil Company 1. LANDLORD AND TENANT ($_109*)—ACCEPThaving paid to the Jewett State Bank its

ANCE OF SURRENDER-ACTS CONSTITUTING. debt to Dunagan, and the Jewett State Bank Where a lessee, abandoning the premises, having used the bill of lading which it should and securing the consent of the lessor to subhave surrendered to Corsicana Cotton Oil let for the unexpired term, was only able to se

cure third persons who would take the premCompany as a means of collecting a second ises for the unexpired term at the same rental time for the same debt, the Corsicana Cotton on condition that the lessor would extend the Oil Company, by taking up the bill of lading period at the same rental, refusal of the lessor which evidenced the ownership of the cotton

to lease the premises beyond the unexpired term

was not an acceptance of a surrender of the seed it had received and used, but performed premises so as to relieve the lessee from liabilthat which it was legally bound to do; and, ity for rent. while we think it is of no legal consequence,

[Ed. Note. For other cases, see Landlord and still we are of opinion that the effect of such Tenant, Cent. Dig. $8 350-360, 363-365, 368–

371; Dec. Dig. $ 109.*] payment was an equitable assignment of or

2. LANDLORD AND TENANT (8 110*)--ABANa subrogation to any claim the owner of the

DONMENT OF PREMISES OBLIGATION OF bill of lading had against the Jewett State LESSOR. Bank, if it had any at all, but that beyond

Where a lease authorized the lessor in and independent thereof the Corsicana Cot-relet for the unexpired term, the act of the

case of abandonment to resume possession and ton Oil Company had, under the facts re- lessor in performing his duty to relet for the lated, a cause of action against the Jewett unexpired term on the lessee abandoning the State Bank at all events.

premises was not an acceptance of a surrender, [4] We also conclude that the facts do not ing his liability by the difference between the

but was for the benefit of the lessee by reducshow a misjoinder of causes of action. rent received under a reletting and the rent reWhile the transfer or assignment of the served in the lease. claim of the Corsicana Cotton Oil Company

(Ed. Note.-For other cases, see Landlord and took the form of a draft drawn by the oil Tenant; Cent. Dig. $$ 366–369, 371; Dec, Dig.

$ 110.*) company against the Jewett State Bank, it

3. LANDLORD AND TENANT (195*)-ABANwas, as we have said in the last analysis,

DONMENT OF PREMISES OBLIGATION OF but a suit for money had and received, and LESSOR. it was in entire accord with the equitable Where a lessee abandoned the premises, principle upon which such suits may be main the refusal of the lessor to accept a new ten

ant on condition of a lease for a period beyond tained for tne Corsicana Cotton Oil Company | the unexpired term for the same rental was not when sued upon its transfer to set out the a failure to exercise ordinary diligence to relet facts. upon which the debt was based, and the premises, and be could recover from the lesto ask and receive the relief granted in the

see the loss sustained. court below.

[Ed. Note. For other cases, see Landlord and

Tenant, Cent. Dig, $$ 790–793; Dec. Dig. 8 [6] While we have not discussed the assign- | 195.*1

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