(248 S. W.) ing of the name Daisie to Daisy. This alteration is apparent in three instances where the name appears in the deed, once in the conveying, habendum, and warranty clauses of the deed, respectively. In the clause of the deed reciting the payment of the consideration, the letter G appears to have been inserted between the name Daisie and Starks after they were written. The name Starks, wherever it appears in the deed, appears to have first been written "Starr" and the last "" changed to a "k" and the letter "s" added. These are the only alterations appearing upon the face of the deed. There is absolutely nothing on the face of the deed to indicate that the clause giving the grantee the right to select the six acres of land has been changed or altered in any respect, except as to the change in the grantee's name before pointed out, nor is there any indication from the writing or the color of the ink that this clause was not in the deed as it was originally writ ten. The notary who wrote the deed and took the acknowledgment of the grantor thereto testified, in substance, that appellant requested him to prepare the deed and take it to Lucindy Grant for execution. In a day or two after he received this request he prepared the deed, took it to Lucindy Grant, and obtained her signature and acknowledgment thereto. When the deed was signed and acknowledged by Lucindy Grant, it was exactly as it is now written, unless it be for the change in the grantee's name from Starr to Starks. He discovered that he had written the name wrong when he read the deed to Lucindy Grant before its execution and it was then understood that it should be corrected. He could not remember definitely whether he made the correction at that time, before it was executed, and may have made it a day or two afterwards when he made his certificate of acknowledgment to the deed. After its execution and delivery by Lucindy Grant, the deed was taken by him, at appellant's request, to have it placed of record. It was not filed for record until 28 days after its execution, the explanation given for this delay being that he was so engaged in other business that he neglected to have it sooner recorded. The deed was in his possession from the time of its execution until it was filed for record. The appellant paid him for writing the deed and taking the acknowledgment of the grantor and repaid him the recording fees. This witness had testified at a previous hearing of this case on application for temporary injunction, about three years before the trial from which this appeal was taken. On this trial he was cross-examined on his previous testimony, and made the following statements: "I gave this further testimony at the former hearing: 'In drawing the deed I made a mis take in the name, putting the name "Daisie Starr" instead of Starks.' I will say that is true. I also testified: "The deed appears to have been changed from "Starr" to "Starks." This change was made by me.' I would say I had the deed exhibited to me upon the witness gave that testimony at the former trial if I stand. I think it is possible that I may have testified: 'And I am quite sure that I did it after I got back to my office, after the deed had been signed. I think it quite possible that I may have done that, but I don't now recall definitely the facts about it.' Possibly I testified: 'In reading over the deed to see if it knowledgment on it, I noticed the error in the was all right when I put my certificate of acname, and, as it was all my work, I changed it.' I now say that is probably true. I would say that I also gave this testimony at the former trial: 'Starks did not tell me to hold the deed off the record. I don't know why I held it off the record for 28 days, except that I was posto. I now say that is true. Considering the sibly careless and had cther things to attend testimony you have read to me, based upon my present recollection and having it refreshed by these matters, I would say that that is probably my testimony at the former hearing in this case, and I will say that those facts are now true to the best of my impression and recollection." He further testified (redirect examination): "Lucindy Grant told me who the grantee in this deed was; she told me the grantee was Daisy, the girl that was there. I thought at the time when I wrote the deed that Daisy was 'Daisie Starr,' but they told me it was Daisy Starks; it was the wife of Will Starks, and she was there at the time. When I read the deed to Lucindy Grant at her house before she executed it, it read just as it reads now, The correction was except the corrections. that is, I mean to say, I was called to the fact made with reference to the name right there; that it wasn't 'Starr' but 'Starks.' I was instructed to make it Starks. The correction was simply noted and accepted there; there was no specific instructions given me in regard to it, as I know of. My impression is that the change was made in the instrument there, but I would not say positively about it; I know it was understood that it was to be made, and we spoke of it as being made 'Starks.' That is in my handwriting. As to whether it is my custom, or if I ever changed an instrument after the maker had signed it, my understanding has always been when it was understood the change was to be made, you could then make it as going that way; that is, one who acknowledges the deed-takes the acknowledgment— when it was understood between all the parties there that a certain change is to be made, that that change could be made. My understanding is that, when all parties agree that a change should be made in an instrument, the notary can make it afterwards, before he recorded the acknowledgment, or rather before words, it has been my idea that you can go back he filled out the acknowledgment; in other to your office and made the change in accordance with the instructions of the parties; I might be wrong about that. I made the change in accordance with the instructions of the par- engaging to perform it. Any alteration, thereties." Recross-examination: "The mistake was called to my attention at that time, and I, of course, stated to them, they being about as ignorant as I was along those lines, that I would make the change. As to whether or not anybody 'authorized' me to make the change, it is just owing to whether you call that authorizing or not, when they tell you that the name is wrong, and I would say I would change it-there is the question, you can make out of what you may. That is all occurred. I got no further authority except that conversation and correction of the name there that I have just stated." The findings of the trial court that Lucindy Grant intended to convey six acres out of the thirty-one acres to Daisy Starks, and that she had mental capacity to execute the deed, and understood the nature and effect thereof, and did execute and deliver it to the notary, Crow, for Daisy Starks, are fully sustained by the evidence, and were not excepted to by the appellee. Upon this state of the record and the evidence before set out, we do not think the trial court was authorized to conclude that there had been such material alterations in the deed after its execution as to render it inadmissible in evidence. As we have before stated, the only alterations appearing upon the face of the deed are the changes in the name of the grantee, above pointed out. The change in the spelling of the name Daisie and the insertion of the middle initial G at one place in the deed were clearly immaterial alterations. If changing the name Starr to Starks, when the uncontradicted evidence shows that Daisy Starks was the name of the person to whom the grantor intended to convey the land, and there is no evidence of the existence of any person by the name of Daisy Starr, should be regarded as a material alteration, we think the uncontradicted evidence shows that this alteration was made with the knowledge and consent of the grantor and could not therefore affect the validity of the deed, notwithstanding it may have been made after the deed was signed, acknowledged, and delivered by the grantor. The common-law rule in regard to the admissibility in evidence of instruments which appear to have been altered after they were first written has been uniformly applied by the courts of this state. The general rule and the reason therefor is thus stated in the early case of Miller v. Alexander, 13 Tex, 497: "If, on the production of such an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. For the instrument is supposed to have been intended to express the agreement of the parties, solemnly adopted as such, and attested by the signature of the party fore, which makes it speak a language different in effect from that which it originally spoke, destroys its identity, and its legal virtue, for it is no longer the agreement which the parties undertook to perform. An agreement to be binding must have the assent of both the contracting parties; and, consequently, cannot have legal validity if altered by one party without the concurrence of the other. Hence, every alteration on the face of the instrument which evidences the agreement renders it suspicious; and this suspicion the party claiming under it, is ordinarily held bound to remove." Some of the many other cases discussing and applying the rule are Park v. Glover, 23 Tex. 471; Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131; Collins v. Ball, 82 Tex. 269, 17 S. W. 614, 27 Am. St. Rep. 877; Bullock v. Sprowls, 93 Tex. 188, 54 S. W. 661, 47 L. R. A. 326, 77 Am. St. Rep. 849; Kalteyer v. Mitchell (Tex. Civ. App.) 110 S. W. 462. [2] In all of these cases in which the rule has been applied, the alteration was material in that it changed the legal effect of the instrument, either in its terms or the relation of the parties thereto, and was fraudulently made without the consent of the parties. The conditions under which the rule should be applied are thus accurately stated in Cyc. vol. 2, p. 177: change in an instrument depends, first, upon the "As a general rule the effect of any alleged character of the change-that is, whether it is material or immaterial. Any change in an instrument which causes it to speak a different language in legal effect from that which it originally spoke-which changes the legal identity or character of the instrument, either in its terms or the relation of the parties to it and such a change will invalidate the instrument -is a material change or technical alteration, against all parties not consenting to the change. Not only will an alteration vitiate the instrument as between the immediate parties, but also as against bona fide holder or indorsee without notice, as the latter can acquire no right or title other than that of the person under whom he claims." And the reason for the rule is thus stated: "The rule that a material alteration avoids the instrument is founded upon two reasons: First (and what is said to be the true foundation of the doctrine), that no man shall be the chance of committing a fraud without runpermitted, on grounds of public policy, to take ning any risk of loss by the event when it is detected; and, second, because the identity of the instrument is destroyed, and to hold one under such circumstances would be to make for him a contract to which he never agreed, which is especially true in the case of a surety." It seems clear to us that the rule as de fined and limited by the authorities above cited cannot, under the facts of this case, be successfully invoked to sustain the ruling of the trial court in excluding from evidence (248 S.W.) the deed from Lucindy Grant to Daisy | gagor was inserted by the mortgagee after Starks. We very much doubt whether chang- the execution of the instrument. The point ing the name of the grantee from Starr to in the case was not whether the alteration Starks was, under the facts of this case, was material, but whether the mortgagee, such a material alteration of the instru- in a suit to foreclose the mortgage, could ment as to render it inadmissible in evidence, recover the amount due upon the properties independent of whether the change was au- originally included in the mortgage, and the thorized by the grantor. It is not clear to Supreme Court held that in the form in us that such an alteration changed the legal which the suit was brought, he was not enidentity or character of the instrument, ei- titled to recover anything. The question dether in its terms, or the relation of the par- cided in that case would be material in this ties to the instrument. The instrument be- case upon the right of appellant, under his fore the alteration was a complete and per- pleadings, to recover an undivided interest fect deed of conveyance of the land describ- of six acres in the 31 acres, if there was any ed therein from Lucindy Grant to a named evidence to sustain the trial court's finding grantee. The undisputed evidence shows that the clause giving Daisy Starks the right that Daisy Starks was the grantee intended to select the six acres was inserted in the to be named by the grantor. No such person as deed after its execution. Our conclusion Daisy Starr is shown to have been in exist- that there is no evidence to sustain this findence and the writing of the name Starr in- ing of the trial court eliminates this quesstead of Starks was merely a mistake of the tion of pleading. scribe who prepared the deed. Under the decision of our Supreme Court, if the change had not made it would have been competent to have shown by parol that Daisy Starks was in fact the grantee in the deed. This being so, it would seem that the notary, after he discovered his mistake, might have corrected it, whether so authorized by the grantor or not, without destroying the validity of the deed or rendering it inadmissible in evidence. [3] The purpose of the rule is to prevent fraud and imposition, and it should not be invoked to defeat a title honestly and fairly | acquired and free from any suspicion of fraud. But be this as it may, when the undisputed evidence, as in this case, goes further and shows that the alteration was made, if not by express direction of the grantor, at least with the understanding that it would be done, we think that beyond question such alteration was immaterial. Appellee relies upon the cases of Park v. Glover and Bowser v. Cole, supra, to sustain the ruling of the court. We think both of these cases are distinguishable from the instant case. In the Park Case the transfer of title to land in which the name of the grantee was inserted after its execution and delivery was, at the time of its execution, a transfer in blank, and was therefore, as pointed out by the Supreme Court, a void instrument, having no legal effect, and the insertion of the name of a grantee after its execution gave it a distinct legal effect and must be regarded as a material change. It is not shown who inserted the name of W. A. Park as the grantee, nor that the grantor authorized its insertion or understood that it would be inserted in the instrument after its execution. [4] These conclusions require a reversal of the judgment of the trial court. Ordinarily, when a plaintiff's right to recover depends upon wrongfully excluded evidence, upon a reversal of the judgment against him by the appellate court, that court would not be authorized to render judgment in his favor upon the excluded evidence. But when, as in this case, the evidence excluded is a deed showing title in the plaintiff which was introduced in evidence in the court below and thereafter erroneously excluded from the evidence, the deed being properly before this court and there being nothing in the record to indicate that the case was not fully developed upon all its issues upon the trial in the court below, there can be no reason for remanding the case for retrial. For the reasons stated, we are of opinion that the judgment should be reversed and judgment here rendered for the appellant; and it has been so ordered. Reversed and rendered. MANDRY et al. v. BROWN CRACKER & (Court of Civil Appeals of Texas. San An- Appeal and error 773 (2)-Appellant's failure to file brief until two days before submission ground for dismissal. Where transcript on appeal was filed July 17th, and case set for submission in its regular lant's brief was not filed until February 12th. order on February 14th following, and appeltwo days before its submission, the appeal will The alteration in the Bowser Case was be dismissed for want of prosecution, under clearly material, as additional property to the rules of practice prescribed by Rev. St. that included in the mortgage by the mort-art. 2115, and rules 38, 40, and 102. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from District Court, Bexar Coun- ! ty; W. S. Anderson, Judge. Action by the Brown Cracker & Candy Company against George P. Mandry and others. Judgment for plaintiff, and defend ants appeal. Motion to dismiss appeal for want of prosecution. Motion granted. C. A. Davies and R. L. Neal, both of San Antonio, for appellants. Birkhead & Lang and F. Stevens, all of San Antonio, for appellee. COBBS, J. The transcript in this case was filed on the 17th day of July, 1922. The case was set down in its regular order for submission on the 14th day of February, 1923. Appellants filed their brief on the 12th day of February, 1923. two days before its submission. Appellee filed no brief, but filed a written motion on the 10th day of February, 1923, two days previous to the time when the appellants filed their brief to dismiss the appeal. Appellants filed no reply to the motion, and it comes before us solely on the motion to dismiss the appeal which violates the practice in such cases prescribed by article 2115, R. S., and rules 38, 40 (230 S. W. viii) and 102 of the Texas court rules prepared by the Supreme Court for the preparation of cases on appeal. These rules have been violated in preparing this case for appeal, and the appellee is clearly within its legal rights in presenting this motion. Weston v. Patterson (Tex. Civ. App.) 165 S. W. 1195, opinion by Justice Moursund. Attorneys should do well to bear this case in mind when filing transcripts. Error from District Court, Hudspeth County; W. D. Howe, Judge. Suit by M. W. Lowry against Dave Gill. Judgment for defendant, and plaintiff brings error. Affirmed. Thos. N. Hill, of Beaumont, for plaintiff in error. Neill & Armstrong, of El Paso (Paul D. Thomas, of El Paso, of counsel on appeal only), for defendant in error. HARPER, C. J. Appellant brought this suit against appellee, alleging that they entered into an oral agreement of partnership for the purpose of buying and selling lands in Hudspeth county, Tex.; the profits to be divided between them in proportion to the amount of money each placed in the enterprise; the titles to be taken in the name of defendant because he was on the ground. etc.; that, at the time of entering into this agreement, they were the owners of certain sections of school lands, plaintiff owning twothirds and defendant one-third thereof; that this land was sold for part cash and balance in notes payable to defendant, Gill, who occupied the position of trustee; that thereafter they purchased, from one Maverick, several tracts of land for the sum of $10,449, part cash and balance evidenced by notes, and for which payment the notes taken on the sale of the school lands were accepted by Maverick as they might be paid; the title to the Maverick lands was placed in defendant; that he took possession thereof, made sales of certain of the tracts, and The motion is granted, and the appeal is retained the proceeds. Plaintiff further aldismissed for want of prosecution. LOWRY v. GILL. (No. 1387.) * (Court of Civil Appeals of Texas. El Paso. Feb. 8, 1923. Rehearing Denied March 8, 1923.) 1. Appeal and error 1003-Appellate court will reverse, when verdict is based on surmise, suspicion, or conjecture, or is against preponderance of evidence. The weight of the evidence is for the jury, but the Court of Civil Appeals will reverse a judgment on the facts, when it is found that the verdict is based upon mere surmise, suspicion, or conjecture, and is against the preponderance of the evidence. 2. Exceptions, bill of 43(1)-Bills of exception, filed after expiration of extension of time, will not be considered. Bills of exception, filed after the expiration of time granted by court in an order extending the time within which to file exceptions, will not be considered. leged that he and defendant were the joint owners under the aforesaid agreement of 400 acres of land; prayed for an accounting and for judgment for two-thirds of the said 400 acres, etc. Appellee answered by general and special exceptions, not guilty, denied that he owed plaintiff, and alleged that plaintiff was indebted to him, and set out the items. Denied the partnership under oath, and prayed for judgment for the lands and for money due. The cause was submitted to a jury by special issues, as follows: (1) Did Gill agree to give Lowry a twothird interest in the school land conveyed to McDonald? Answer: No. ick land, one-third for himself, and two(2) Did Gill receive the title to the Maverthirds as trustee for Lowry, by virtue of an agreement made with Lowry for anything of value? Answer: No. (3) Was Lowry induced to sign the agreement of February 9, 1918, by false representations of Gill? Answer: No. Upon these answers the court entered judg For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) ment for defendant. Brought here for review | trial of the docket, in that both the nonjury asby writ of error. [1] The first proposition is that the court erred in overruling the motion for new trial, because the verdict of the jury was contrary to the law and evidence and against the overwhelming weight of the evidence. The weight of the evidence is for the jury (Lewis v. Kelly [Tex. Civ. App.] 233 S. W. 993) but "the Court of Civil Appeals will reverse a judgment on the facts when it is evident that a verdict is based upon mere surmise, suspicion or conjecture and is against the preponderance of the evidence.” After a careful consideration of all the evidence we have concluded that no such condition is presented here. The plaintiff and defendant testified affirmatively to the facts relied upon by each for a recovery, and the jury believed the defendant and rendered their verdict accordingly, so we cannot disturb it. Schaff v. Hill & Thompson (Tex. Civ. App.) 238 S. W. 1037. [2] Several other assignments and propositions are predicated upon admission of testimony over objections of plaintiff. As to these the bills of exceptions were filed after the time had expired granted by the court in the order extending the time within which to file same. These bills of exceptions are not entitled to consideration. Camp et al. v. Gourley (Tex. Civ. App.) 201 S. W. 671. Affirmed. TUCKER v. LINGO. (No. 8767.) (Court of Civil Appeals of Texas. Dallas. Feb. 17, 1923. Rehearing Denied March 17, 1923.) 1. Continuance 26(1)—In absence of diligence to secure evidence, continuance discretionary. Where defendant did not show diligence in trying to secure the evidence of his codefendant, his application for continuance for the purpose of securing such evidence was therefore addressed to the discretion of the court. 2. Jury 25 (6)-When dilatory litigant entitled to jury trial stated. Any litigant has the right to a trial by jury, provided he complies with the provisions of the statute in securing same; and also has this right, even if dilatory in compliance with the statutory provisions, when the allowing of the jury would not interfere with the orderly disposition of the court's docket or deprive the opposing litigant of any right. 3. Jury 25 (6)-Dilatory litigant held not entitled to jury trial. signment of cases and the jury assignment had already been made up, and the latter was in the hands of the printer, and all the time of the court was taken up with these assignments, it. was not error to refuse the jury trial. 4. Appeal and error held not prejudicial. 1035-Denial of jury JONES, C. J. E. H. Lingo, appellee and plaintiff below, filed this suit against F. Z. Bishop, of Bexar county, Tex., and W. E. Cary, of Cameron county, Tex., as the makers of a promissory note in the sum of $10,000, in favor of appellee and against Dick Tucker, appellant, as indorser on said note. Said note was also secured by deeds of trust on various pieces of real estate. The makers of the note did not answer in the case, and ap pellant answered by filing a verified pleading, in which he set up the defense that he was only an indorser on the note and that indulgences had been given by appellee to the makers of the note from time to time by which the time for payment of said note was extended without his consent or knowledge; and also because suit had not been brought on the note for the term of court following the maturity of the note, and no reason was given for failing to bring suit either at the first or the subsequent term of the court after its maturity. The note matured on July 5, 1920, and suit was filed on July 22, 1921, returnable to the September term of court, which convened on September 5, 1921. On September 6, 1921, the court called the appearance docket for orders, and no order was taken in this case. trial on the nonjury assignment for September 21, 1921, but was postponed for one week, because not reached by the trial judge. On September 28, 1921, the court sounded the docket for announcements, and appellee announced ready. Appellant Tucker announced not ready and made an oral application for It was set down for continuance of the case because of the ab Where defendant, in a case set down for sence of his codefendant, F. Z. Bishop, by trial on the nonjury assignment, did not de- whom he expected to prove the defenses almand a jury until a time when granting the de-leged in his answer. This oral motion was mand would have interfered with the orderly overruled by the court. The case, however, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |