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. R. 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. The motion for rehearing is overruled. DAVIDSON, J. I cannot agree to this decision. I do not purpose going into a discussion of the reasons, but I especially say this case goes too far in admitting details of acts and facts of the homicide said to have been committed by deceased in Grimes county years ago, before this unfortunate tragedy. All the details of that killing, even to minute details, were admitted in this case for the state. In other words, that killing was retried in this case. That carries the rule too 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 opinion. BARNUM v. HOWARD. (No. 7163.) (Court of Civil Appeals of Texas. Dallas. May 23, 1914. On Motion for Rehearing, June 13, 1914.) We are of the opinion that there is no such error in the record as ought to reverse the case. The justice of the case has been reached, and the judgment is affirmed. Where adjacent owners knew that the boundary between their land was a creek called for in their deeds, but their dispute involved which creek was called for, a boundary by parol agreement not following the meanders of ei EXCHANGE OF PROPERTY (§ 8*)-REAL PROP- had. [Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. § 8.*] Appeal from District Court, Collin County; H. L. Davis, Judge. Action by Alice S. Barnum against J. M. Howard. Judgment for defendant, and plaintiff appeals. Affirmed. F. E. Wilcox, of McKinney, for appellant. R. C. Merritt, of McKinney, for appellee. RAINEY, C. J. Appellant and appellee made an exchange of real estate. The tract of appellee being more valuable, appellant transferred to him certain vendor's lien notes amounting to about $500, to equalize values. Appellee's tract was supposed to contain 27 acres, and appellant sues for damages to recover for shortage, alleging it to be 8.47 acres. Neither party knew the number of acres the tract contained, and the trade was made without reference thereto. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*] 2. BOUNDARIES (§ 46*)-PAROL AGREEMENTS— EVIDENCE. A parol agreement fixing a disputed boundary is binding on the parties, though it may be subsequently discovered that the agreed line is not the true line, but it is essential to the validity of such an oral agreement that the line be in dispute, and that its true location be unknown. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*] 3. FRAUDS, STATUTE OF (§ 70*) AGREEMENTS. BOUNDARY Where the true location of a boundary line is unknown to the contiguous owners, and they orally agree on a line which they know is not the true boundary, the agreement is void under the statute of frauds. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 112; Dec. Dig. § 70.*1 4. APPEAL AND ERROR (§ 1064*)-HARMLESS ERROR-ERRONEOUS INSTRUCTIONS. Where the court on appeal cannot determine whether the jury based their verdict on the issue of an agreed boundary line, in which case the agreement, being in parol, was void, or on limitations, justified by the evidence, the error in an instruction submitting the issue of agreed line was reversible. Error, Cent. Dig. §§ 4219, 4221-4224; Dec. [Ed. Note.-For other cases, see Appeal and Dig. § 1064.*] Various errors are assigned to the court's charge on the measure of damages, as to the law regarding mistake in reference to the number of acres in the tract, and to the refusal of certain special charges, all of which we have considered, and have reached the conclusion that the evidence sustains the jury's findings to the effect that the exchange was made without reference to the Error to District Court, Bell County; John D. Robinson, Judge. Action between G. Voigt, Sr., and W. A. Hunt, Jr. There was a judgment for the latter, and the former brings error. Revers- | ravine with its meanders N. 63° W. 160 vrs.; ed and remanded. N. 40° W. 220 vrs.; N. 76° W. 240 vrs. to Donaho's creek. Thence up said creek with its meanders S. 36° W., 180 vrs.; N. 56° W. 110 vrs.; N. 38° W. 40 vrs.; N. 14° W. 120 vrs.; S. 67° W. 130 vrs. [to point marked 'A' on map]." In 1870 Allen Meirs purchased a portion of the Moore survey, in which his boundaries adjoining said 80-acre tract were described as follows: 33W Moves FENCE ASH MARKED X The dotted lines represent the fence erect- | corner at mouth of ravine [point marked 'A' on ed by Allen Meirs. The straight lines near the creek and branch represent the calls by course and distance from point B in the deed to the defendant in error. The land in issue is that which lies between the fence and the creek and between the fence and the branch. In 1855 W. A. Hunt, Sr., purchased from Andrew Spiva 80 acres of land out of the A. G. Moore survey, described as follows: "Beginning at the S. W. [should be S. E.] corner of the A. G. Moore headright survey on the dividing line between Moore and Thompson; thence N. 71° W. with said division line 900 vrs. to Donaho's creek; thence down said creek as a natural boundary line to the mouth of a branch or ravine; thence up said branch as a natural boundary line to the S. E. boundary of said Moore survey; thence S. 19° W. with said boundary 352 vrs. to the place of beginning." In a partition of the estate of said Hunt in April, 1890, these 80 acres were deeded to T. J. Hunt, the creek and branch being called for as his north and east boundaries, as in the deed to W. A. Hunt, Sr. July 27, 1907, T. J. Hunt executed a deed to defendant in error, embracing said 80 acres, in which the north and east boundaries of same were described as follows: * Thence to a stake in a ravine on the east boundary line of said Moore survey map]. Thence down Donaho's creek to mouth boundary of 80 acres conveyed to Andrew Spiva. of a ravine or branch which serves as north Thence up said ravine as a boundary to east boundary line of said headright survey." Plaintiff in error became the owner by mesne conveyance of that portion of the Allen Meirs tract marked "Voigt's Land" on the map, in each of which deeds Donaho's creek and the branch were called for as boundaries. Defendant in error claims that the fence, as shown on the map, was agreed upon by W. A. between said tracts of land. He also pleaded Hunt, Sr., and Allen Meirs as the boundary the ten-year statute of limitation. The case was tried before a jury that returned a general verdict for defendant in error. Opinion. [1] The court gave the following charge: "A dividing line between contiguous surveys may be fixed and established by the owners thereof if the same is in doubt, or where it is desired to do so, and, where such owners agree such surveys, and each accepts and acquiesces upon and establish a boundary line between therein, and each or either of them act upon such agreed line, then the same would be the true line, even though not strictly in accord with the calls in the deeds." We sustain plaintiff in error's assignment was error to submit the issue of agreed boundary. If there was ever an agreement as to the boundary line in controversy, it was between W. A. Hunt, Sr., and Allen Meirs. Each of their deeds called for Donaho's creek as a part of the boundary between them, and neither of said deeds called for any other object, natural or artificial, by which such boundary could be located to the extent that said creek extended between their surveys. There does not appear to have ever been any dispute between said parties as to the true location of this portion of their boundary line, and there could have been no room for such dispute. The evidence indicates that there was some dispute between them as to whether the branch called for in their deeds was the one shown on the map or one further east. But, whether the one or the other, they must have known that their boundary on this portion of their surveys was the meanders of a branch, and not elsewhere. [2] A parol agreement fixing a disputed boundary is binding upon the parties, notwithstanding it may afterwards be discovered that such agreed line is not the true boundary. Cooper v. Austin, 58 Tex. 501; Lecomte v. Toudouze, 82 Tex. 214, 17 S. W. 1047, 27 Am. St. Rep. $70; Coleman v. Smith, 55 Tex. 259. The reason for this is that, in making such agreement, "both parties believed that they were getting their own land, and no more." Houston v. Sneed, 15 Tex. 309. Or, as expressed in Lecomte v. Toudouze, supra: "The reason of this rule evidently is based upon the idea that the parties do not undertake to acquire and pass the title to real estate, as must be done by written contract or conveyance; but they simply by agreement fix and determine the situation and location of the thing that they already own." [4] We do not know whether the jury based their verdict on the issue of agreed line or on limitation. The evidence as to the ten-year limitation was sufficient to require that issue to be submitted to the jury, but it is not such as would justify us in saying, as a matter of law, that defendant should have recovered on that issue alone; hence we cannot say that the submission of the issue of agreed boundary was harmless error. For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial in accordance with this opinion. Reversed and remanded. JEWETT STATE BANK v. CORSICANA 1. TRIAL (§ 143*) QUESTIONS OF LAW OR FACT-DIRECTION OF VERDICT-CONFLICTING EVIDENCE. It was proper for the trial court to direct a verdict, though the evidence was conflicting, where the conflicts were immaterial or could not affect the result. Dig. §§ 342, 343; Dec. Dig. § 143.*] [Ed. Note.-For other cases, see Trial, Cent. 2. PAYMENT (§ 85*)-RECOVERY-DOUBLE PAYMENT OF DEBT. Where defendant bank, acting for and by authority of a shipper of cotton seed, and on infrom plaintiff oil company a debt it owed such formation received from him, collected twice shipper for seed delivered to it, the bank was in possession of money of the oil company which in equity and good conscience it ought not to keep; and hence the oil company or its assignee was entitled to recover the same in a suit for money had and received, which remedy was not affected by the various agencies, ramifications, or means by which the result was accomplished. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 272-281; Dec. Dig. § 85.*] PAYMENT (§ 89*)-RECOVERY-DOUBLE PAYMENT OF DEBT. But the rule does not exist, in the absence of the reason upon which it rests. Hence it is essential to the validity of an oral agree-3. ment to fix a boundary line that such line be in dispute, and that its true location be unknown to the parties making the agreement. Otherwise the fixing of such boundary by oral agreement would be passing title to real estate contrary to the statute of frauds. Harn v. Smith, 79 Tex. 312, 15 S. W. 240, 23 Am. St. Rep. 340; Galbraith v. Lunsford, 87 Tenn. 89, 9 S. W. 368, 1 L. R. A. 526; Hartung v. Witte, 59 Wis. 285, 18 N. W. 175; Terry v. Chandler, 16 N. Y. 354, 69 Am. Dec. 707; Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Gilchrist v. McGee, 9 Yerg. (Tenn.) 455. [3] For the same reason, where the true location of a boundary line is unknown to the contiguous owners, if they agree upon a line which they know is not the true boundary, such agreement is void under the statute of frauds. Lewis v. Ogrom, 149 Cal. 505, 87 Pac. 60, 10 L. R. A. (N. S.) 610, 117 Am. St. Rep. 151; Vosburg v. Teator, 32 N. Y. 561. fendant bank its debt to a shipper of cotton Where plaintiff oil company paid to deseed to the oil company, and the bank used the bill of lading, which it should have surrendered to the oil company, as a means of collecting a second time for the same debt, the oil company, after having received the seed, being required to take up the bill of lading then in the hands of another, its act in so doing only amounted to the performance of a legal duty, and hence operated as an equitable assignment of or a subrogation to any claim the owner of the bill had against the bank to recover the second pay ment. Cent. Dig. §§ 291-296; Dec.. Dig. § 89.*] [Ed. Note.-For other cases, see Payment, 4. ACTION ($§ 38*)-CAUSES OF ACTION-MISJOINDER. Where, plaintiff oil company having paid to defendant bank its debt to a shipper of certain cotton seed, the bank used the bill of lading, which it should have surrendered to the oil company, as a means of collecting a second time for the same debt, whereupon the oil holder and brought suit against the bank, as for company took up the bill of lading from the money had and received, to recover the second payment, the fact that plaintiff set up all the | Oil Company was prepared by the latter facts showing its ownership of the draft attached to the bill of lading and the second payment of the money under mistake did not indicate a misjoinder of causes of action. company and sent to Dunagan, with instructions for him to sign and collect same in due course of business. When Dunagan forwarded the seed to Corsicana Cotton Oil Company, he received from the railway com [Ed. Note.-For other cases, see Action, Cent. Dig. § 549, 565; Dec. Dig. § 38.*] 5. BANKS AND BANKING (§ 140*)-DRAFTS-pany a bill of lading evidencing the shipment, ACCEPTANCE. Where a draft on which plaintiffs' cause of action was based was not drawn against a fund on deposit with defendant bank belonging to plaintiff company, but was a transfer of a debt and a demand for its payment, the rule that a bank is not liable on a check drawn against a deposit which the bank has never accepted had no application. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 380-392, 394-397; Dec. Dig. § 140.*] which he sent to Jewett State Bank, to whom he was indebted in a large sum, and who received the bill of lading the day after the car was shipped. Jewett State Bank attached the bill of lading so received to draft for $401 against Houston County Oil Mill & Manufacturing Company in favor of L. A. Dunagan, signing Dunagan's name thereto, and collected the money, crediting Dunagan therewith. After Dunagan sent the bill of Error from Navarro County Court; J. M. lading to Jewett State Bank, he received the Blanding, Judge. Action by the Corsicana National Bank and the Corsicana Cotton Oil Company against the Jewett State Bank. Judgment for plaintiffs, and defendant brings error. Affirmed. B. D. Dashiell, of Jacksonville, and J. S. Callicutt, of Corsicana, for plaintiff in error. McClellan & Prince, of Corsicana, for de fendants in error. RASBURY, J. In the court below the county judge, at the conclusion of the testimony in this controversy, directed the jury to return verdict in favor of Corsicana Na draft sent him by Corsicana Cotton Oil Company in payment of the same car of seed, which he also sent to Jewett State Bank. Upon receipt of the draft prepared by the Corsicana Cotton Oil Company, the Jewett State Bank attempted to collect the amount thereof through another draft drawn upon Corsicana Cotton Oil Company in its favor, instead of the one in favor of Corsicana National Bank, and to which it signed Dunagan's name; but, because it bore exchange, it was not paid. The Jewett State Bank then signed Dunagan's name to the draft prepared by the Corsicana Cotton Oil Company, erased the name of Corsicana National Bank, to whom the draft was payable, inserted its own name as payee, and sent same to Lumbermen's Na tional Bank of Houston for collection. The tional Bank against the Corsicana Cotton Oil Company and the Jewett State Bank, jointly, for the principal of the debt sued for, together with interest and certain protest fees, and in favor of Corsicana Cotton Oil Company against Jewett State Bank for like amount, which the jury did, and upon which verdict judgment was entered accordingly, except it provided that, if the Jewett State Bank paid the judgment in favor of Corsicana National Bank, such payment should operate as satisfaction of the judgment against it in favor of Corsicana Cotton Oil Company; and from which judgment this appeal is prose-ness to the bank. The Houston County Oil cuted. draft was paid and the money placed to the credit of Dunagan by the Jewett State Bank. The bill of lading and the draft sent Dunagan by Corsicana Cotton Oil Company showed that each was in payment of the same car of seed. The Jewett State Bank signed Dunagan's name to both, and acted for him in collecting same, and used the money to discharge that much of Dunagan's indebted 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 Na-anteed the payment of same by indorsement. tional Bank and against the Corsicana Cotton Payment of the draft was refused when pre 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 cause of action against Jewett State Bank, because it was not alleged that the Jewett State Bank, verbally or in writing, accepted the draft drawn by Corsicana Cotton Oil Company against it in favor of Corsicana National Bank. In answer to the point, it may be said that the draft so drawn was not against a fund on deposit with the Jewett State Bank belonging to the Corsicana Cotton Oil Company, but as we have said, but a transfer of the debt and a demand for its payment; and, for that reason, it is obvious that the rule of law governing the rights of the holder of a check drawn against a bank deposit never accepted by the bank has no application. [1,2] We are of opinion that under the undisputed facts in this case the trial court did not err in directing the verdict he did, since, if it can be said that there are conflicts in the testimony, such conflicts are immaterial or cannot affect the result. Stripped of all details, the record discloses that the Jewett State Bank, acting for and by authority of Dunagan, and upon information received from him, collected twice from the Corsicana Cotton Oil Company a debt it owed Dunagan, and that the bank yet has the money. Such being true, the Jewett State Bank was in the possession of money of another, which in honesty and good conscience it ought not to retain, and to recover which the Corsicana Cotton Oil Company or its 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 accomplished. Merryfield v. Wilson, 14 Tex. 224, 65 Am. Dec. 117; Ingram v. Posey, 138 S. W. 421; Scott v. Jackson, 147 S. W. 336. The judgment is affirmed. ROBINSON SEED & PLANT CO. v. HEX- [3] The Corsicana Cotton Oil Company 1. having paid to the Jewett State Bank its debt to Dunagan, and the Jewett State Bank having used the bill of lading which it should have surrendered to Corsicana Cotton Oil Company as a means of collecting a second time for the same debt, the Corsicana Cotton Oil Company, by taking up the bill of lading which evidenced the ownership of the cotton seed it had received and used, but performed that which it was legally bound to do; and, while we think it is of no legal, consequence, still we are of opinion that the effect of such payment was an equitable assignment of or a subrogation to any claim the owner of the bill of lading had against the Jewett State Bank, if it had any at all, but that beyond and independent thereof the Corsicana Cotton Oil Company had, under the facts related, a cause of action against the Jewett State Bank at all events. [4] We also conclude that the facts do not show a misjoinder of causes of action. While the transfer or assignment of the claim of the Corsicana Cotton Oil Company took the form of a draft drawn by the oil company against the Jewett State Bank, it was, as we have said in the last analysis, but a suit for money had and received, and it was in entire accord with the equitable principle upon which such suits may be maintained for the Corsicana Cotton Oil Company when sued upon its transfer to set out the facts upon which the debt was based, and to ask and receive the relief granted in the court below. LANDLORD AND TENANT (§ 109*)-ACCEPT ANCE OF SURRENDER-ACTS CONSTITUTING. Where a lessee, abandoning the premises, and securing the consent of the lessor to sublet for the unexpired term, was only able to secure third persons who would take the premises for the unexpired term at the same rental on condition that the lessor would extend the period at the same rental, refusal of the lessor to lease the premises beyond the unexpired term was not an acceptance of a surrender of the premises so as to relieve the lessee from liability for rent. [Ed. Note.-For other cases, see Landlord and DONMENT OF PREMISES OBLIGATION OF Where a lease authorized the lessor in relet for the unexpired term, the act of the case of abandonment to resume possession and lessor in performing his duty to relet for the unexpired term on the lessee abandoning the premises was not an acceptance of a surrender, but was for the benefit of the lessee by reducing his liability by the difference between the rent received under a reletting and the rent reserved in the lease. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 366-369, 371; Dec. Dig. § 110.*1 3. LANDLORD AND TENANT (§ 195*)-ABANDONMENT OF PREMISES OBLIGATION OF LESSOR. Where a lessee abandoned the premises, the refusal of the lessor to accept a new tenant on condition of a lease for a period beyond the unexpired term for the same rental was not a failure to exercise ordinary diligence to relet the premises, and he could recover from the lessee the loss sustained. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 790-793; Dec. Dig. § [5] While we have not discussed the assign- | 195.*] |
