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(248 S.W.)

that a temporary writ of injunction may be granted upon an ex parte hearing, it is also the rule that the right thereto must be clearly established. So far as appears in plaintiff's petition, the contract under which the defendant had the right to take the gas from the lease contained no provision for a forfeiture of such right for the breach alleged. Even if it had contained such a provision, the forfeiture could not be successfully claimed unless such provision would have plainly and clearly given such right. In Decker v. Kirlicks, 110 Tex. 90, 216 S. W. 385, our Supreme Court, speaking through Chief Justice Phillips, said:

"Forfeitures are harsh and punitive in their operation. They are not favored by the law, and ought not to be. The authority to forfeit a vested right or estate should not rest in provisions whose meaning is uncertain and obscure."

In Gillis v. Rosenheimer, 64 Tex. 243, the following statement was quoted with approval:

"The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief."

ed, for further proceedings not inconsistent with this judgment.

On Motion for Rehearing.

[6] In the recent case of Hill v. Brown, 237 S. W. 252, decided by our Supreme Court, it was held that an injunction will not lie if the plaintiff has an adequate remedy at law for the injury complained of; and, as held in the decisions cited in our original opinion, not only is the burden upon the plaintiff to allege facts which clearly show his right to injunctive relief, but such allegations must be sufficiently certain to negative every reasonable inference arising from the facts pleaded, from which it might be deduced that he may not, under other supposable facts connected with the subject, be entitled to that relief.

The purpose of the present suit was to rescind and terminate the contract alleged in the petition and to thus deprive the defendant of the rights originally vested in it, under and by virtue of the terms of the contract. That right was a vested right. The plaintiff's petition was not based upon the theory that the defendant had abandoned the contract, but solely upon the theory that it had breached it, and that, by reason of such breach, defendant's rights under the contract had terminated. To so lose such rights would be in the nature of a forfeiture, as alleged in the petition, if not strictly and technically a forfeiture, as plaintiff now insists.

The petition contained no allegation that the defendant was insolvent and unable to respond in damages, and no sufficient showing that the breach of the two provisions in the contract set out in the petition had resulted or would result in irreparable injury to the plaintiff. By virtue of the writ grant

Many other decisions, substantially to the same effect, might be cited, such as Emde v. Johnson (Tex. Civ. App.) 214 S. W. 575, writ denied; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422; Collins v. Citi-ed, the defendant was summarily, and withzens' State Bank (Tex. Civ. App.) 241 S. W. 633, and other authorities there cited.

out an opportunity to be heard, deprived of all rights vested in it, under the contract pending the hearing of the case on its merits, and that, too, merely upon plaintiff's verified. petition.

[4, 5] It is reasonable to suppose that the contract may contain some other stipulation which would deny to plaintiff the harsh remedy of summary forfeiture and ouster, [7] Furthermore, it is a familiar principle which was accorded by the temporary writ that the writ of injunction may be used to of injunction issued; and in order to refute | prevent injuries but cannot afford a remedy such a hypothesis the entire contract should for injuries already inflicted. Whitaker v. have been set out in the petition. Further-Dillard, 81 Tex. 359, 16 S. W. 1084. In plainmore, there is an absence of a sufficient show-tiff's petition, following allegations of breach ing of irreparable injury in the petition for of the provisions of two of the parathe granting of such extreme measures as was accorded by the order complained of, which had the effect to temporarily annul the contract and terminate defendant's rights thereunder, and under which the defendant was operating, merely for an alleged breach of the contract, upon no other evidence than the verified petition, and with no opportunity given to the defendant to be heard in answer thereto.

graphs of the contract set out, and an alleged forfeiture of all of defendant's rights under the contract by reason of such breaches, are the following allegations with respect to threatened injuries in the future, which are the only allegations of threatened future injuries:

"It is further shown to the court that, notwithstanding this, defendant by its agent and servants had heretofore entered upon said premAccordingly, the judgment of the trial ises and has willfully and maliciously torn up and court is reversed, the temporary writ of in- destroyed the connections made by plaintiff to junction is vacated, and the cause is remand-plaintiff's said lease upon said property for the

cient to show party to contract agreed to drill well having outside diameter of 8 inches with casing set.

purpose of utilizing casing head gas therefrom, 13. Contracts 175(3) Evidence held suffi. and the said defendant, its agents, and servants are now threatening to re-enter upon said premises and to again tear up and disconnect plaintiff's said connections and to take the property of plaintiff, to wit, casing head gas, by force."

It clearly appears that, by virtue of the terms of the two paragraphs of the contract set out, the defendant had the exclusive right to go upon the lease and to make such pipe connections with the wells as might be necessary to utilize casing head gas therefrom, and to that end to remove any such pipe connections as plaintiff might make for the purpose of taking casing head gas from the wells for its own use, during the life of the contract. The petition contains no allegation to the effect that the defendant has threatened or probably will breach the contract in the future, as plaintiff alleges has been done in the past. Allegations in the petition plainly imply that plaintiff has already claimed a forfeiture of all of defendant's rights under the contract on account of alleged breaches of its provisions, and by reason of such claim has ousted defendant of possession of the lease and has begun to take the output of the wells, to the exclusion of the defendant. And the injunction sought and granted was to restrain defendant from any interference with plaintiff in its present possession and use of the wells, the only alleged basis for which was the alleged prior breaches of the contract by the defendant.

We express no opinion as to the merits of the case. What we have said applies only to the issue of plaintiff's right to the issuance of the temporary writ of injunction. The motion is overruled.

GALVESTON, H. & S. A. RY. CO. v.
MCSPADDEN. (No. 1412.)

(Court of Civil Appeals of Texas. El Paso. Feb. 8, 1923. Rehearing Denied March 1, 1923.)

1. Contracts198 (6)-Contract to drill 8inch well and set casing held ambiguous.

The contract to "drill an 8-inch water well" and set the necessary casing held ambiguous, but not necessarily meaning that the contractor was required to drill a hole and set 8-inch casing therein, requiring hole of 91⁄2 inches in diameter.

2. Evidence 450 (7)-Parol proof held admissible to explain intention of party to ambiguous contract.

A contract to "drill an 8-inch water well" and set casing was ambiguous and uncertain, and evidence aliunde was admissible to show that it was the intention of the parties to drill a well which with casing set had an 8-inch outside diameter.

Evidence in an action on an ambiguous contract to drill an 8-inch water well with casing set held sufficient to show that the party intended that a well be drilled which with the casing set had an 8-inch outside diameter.

4. Trial 215-Special issue statute authorizes submission of explanations and definitions of legal terms so jury may render verdict on issue.

The special issue statute authorizes the submission of such explanations and definitions of legal terms as shall be necessary to enable the jury properly to pass upon and render a verdict upon the issues. 5. Appeal and error

216(1)-Objection to

submission of special issues held not tenable in absence of request for giving of prepared instruction.

A defendant who fails to prepare and request a proper instruction to be given in connection with the submission of special issues to the jury cannot complain of the issues as submitted.

Appeal from Brewster County Court; M. S. Burke, Judge.

Action by J. S. McSpadden against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. B. Teagarden, of San Antonio, and W. Van Sickle, of Alpine, for appellant.

Brion Montague, of Alpine, for appellee.

HIGGINS, J. Appellee brought this suit to recover in debt upon contract, and from an adverse judgment the defendant appeals.

On November 1, 1921, appellee wrote to J. E. Marshall, water service foreman of appellant, a letter as follows:

"Alpine, Texas, Nov. 1st, 1921. "Mr. J. E. Marshall, 311 N. Kansas St., El Paso, Texas-Dear Sir: I have made inquiry at the rock crusher, five miles west of Alpine, Texas, as to whether the G., H. & S. A. Ry. Co. wanted a well drilled at that place, and they told me that they were almost sure to bave a well in the near future but they did not have the necessary authority to have it drilled. I was referred to you as the man to


I have a good gasoline machine, capable of drilling to a depth of a thousand feet. I can drill you an 8-inch hole for four ($4.00) dollars a foot for the first two hundred feet, and a dollar raise for the next hundred and another dollar raise for the fourth hundred and so on. I am to set all casing, piping, all of which is to be furnished by you, and test the well for the above amount. I will be able to have my machine on the ground in about two weeks after we sign a contract. Trusting that the above terms are satisfactory and that you will immediately send a contract to sign, I am, "Yours truly,

"[Signed] J. S. McSpadden.”

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.)

Subsequently appellant tendered a written [ been given. This is predicated upon the ascontract to appellee, which was executed by sumption that the contract was plain and him and appellant's authorized agent, whereby appellee, for a stipulated compensation of so much per foot agreed to "drill an 8-inch water well on property of the first party at Toronto, Tex., to such depth as will produce in the judgment of first party's division engineer a sufficient quantity and quality of water. The second party will set the necessary casing to be furnished by the first party."

The controversy arose out of the contention of appellant that the contract required McSpadden to drill a well and set 8-inch casing therein, which, with the casing set, would have an inside diameter of 8 inches, and the contention upon McSpadden's part that he complied with his contract by drilling a hole 8 inches in diameter and his readiness to set in such hole the proper casing.

unambiguous, and required the appellee to drill a hole and set 8-inch casing therein, which the evidence shows has an inside diameter of 8 inches, and requires a hole about 91⁄2 inches in diameter. The contract obligated McSpadden to "drill an 8-inch water well," and set the necessary casing. The contract does not specify the diameter of the casing to be set.

[1-3] We do not regard the language of the Acting under this contract McSpadden contract as necessarily meaning the construcdrilled a hole to a depth of 2361⁄2 feet, and tion given to it by appellant, but that it is with an 8-inch bit spread to 81⁄2 inches, ambiguous and uncertain. This being true, when appellant's agent notified him that it evidence aliunde was admissible to show, as would not accept the well in its then condi- contended by appellee, that it was the intion, and would withhold payment until he tention of the parties by such language to recomplied with his contract by setting 8-inch quire appellee to drill a well, which, with the casing, and that any further work by Mc- casing set, had an 8-inch outside diameter. Spadden was at his own risk. Upon receipt | The evidence is ample to show that this was of this advice McSpadden ceased operations the purpose and meaning of the parties. In and brought this suit to recover the agreed the first place the proposal of appellee was compensation according to the depth he had to "drill an 8-inch hole" for a specified condrilled. sideration. Without any intermediate negotiation appellant prepared and submitted the contract in response to that proposal, basing the consideration upon the price submitted in the proposal. It is evident that the contract tendered was intended as an acceptance of McSpadden's proposal. It is further shown by the evidence that a well does not necessarily require any casing; that such necessity depends upon the formation through which the well passes. Had the formation been of a character which rendered casing unnecessary, there could be no question of McSpadden's compliance with his contract. It is shown, too, that when the well reached the depth of about 170 feet appellant then demanded of McSpadden that he set the 8-inch casing, and had he done so it is not denied that thereafter it would have been impossible to drill a hole which would have contained 8-inch casing. This is important as showing that at 170 feet appellant demanded that McSpadden set casing which would incapacitate him from thereafter drilling the hole of the size that appellant contends he was bound to drill. It shows a construction of the contract by appellant variant from that for which it now contends. There are other facts and circumstances which tend to support the appellee's contention upon this phase of the case, but it is unnecessary to advert

The case was submitted to a jury upon special issues which, with the answers, are as follows:

"First Special Issue.

"Did the plaintiff, J. S. McSpadden, comply with the terms and conditions contained in the

aforesaid contract?

"Answer: Yes.

"If your answer to the foregoing special issue is in the affirmative you will then answer special issue No. 2. But if you answer said issue in the negative you need answer no further.

"Second Special Issue.

"Did the defendant, the Galveston, Harrisburg & San Antonio Railway Company, comply with the terms and conditions of the aforesaid contract?

"Answer: No.

"If your answer to the foregoing special issue is in the affirmative then you need answer no further; but if your answer is in the negative, then you will answer special issue No. 3.

"Special Issue No. 3.

"What damage, if any, has the plaintiff sustained by reason of the failure on the part of the defendant to comply with the terms and conditions of the aforesaid contract?

"Answer: $982.50."

The controlling issue in the case arises upon the appellant's insistence that a peremptory instruction in its favor should have

thereto. We hold that the contract was of doubtful meaning in the particular indicated, and the evidence sufficient to support the appellee's theory of the true meaning and intention of the parties.

[4, 5] Complaint is made of the submission of issues 1 and 2. The first objection urged is controlled by what has heretofore been said. The other relates to the form of the issues, and in substance is that they submit issues of law as well as fact, and in effect permits the jury to declare the law and apply

it to the facts without chart or compass. | premises described in the petition, and that The defect was one of omission. As a mat- Johnson was still the owner of the notes and ter of fact the only controverted issue in this the payee therein. case was as to the meaning of the contract in the particular discussed. The special issue statute authorizes the submission of such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict upon the issues. There was no controversy as to what the parties did under the contract. Whether they complied with the contract depended upon the intention and meaning of the ambiguous feature. Had an appropriate instruction been given in connection with the issues for the jury's guidance in determining whether the contract had been complied with according to the true intention and meaning of the parties at the time it was executed, the objection now urged by appellant would be wholly without merit. The appellant asked no such instruction. It was its duty to prepare and request a proper instruction. Having failed to do so it cannot complain of the omission.

Some rulings upoм evidence are complained of. We think they present no error, but, if erroneous, they are harmless.

All other questions are controlled by the views expressed above.


NEWBERRY v. JOHNSON. (No. 10073.)* (Court of Civil Appeals of Texas. Fort Worth. Dec. 9, 1922. Rehearing Denied Jan. 20, 1923.)


10-Married minor held entitled to rescind purchase contract of home.

A marrier minor, who purchased a home, held entitled, on attaining his majority, to rescind the contract and on returning the prem ises to recover his payment, less the reasonable value of their use.

The defendant, Newberry, admitted the execution and delivery of the notes to Johnson, and admitted that he bought the premises from Johnson as alleged in the plaintiff's petition, and alleged that he had paid $2,500 in cash on the purchase price of the place, and executed the notes sued on at the same time in part payment. He further pleaded in his answer that, at the time of said transaction and at the time of the filing of the suit to foreclose said notes, he was a minor under the age of 21 years. That he became 21 years of age September 17, 1921, and he elected to disaffirm the contract of purchase aforesaid, and prayed for the cancellation of the notes declared on by plaintiff and to recover from plaintiff the $2,500 in cash that had been paid on the place. In connection with that pleading the defendant, Newberry, tendered the plaintiff a deed to the premises, duly executed and acknowledged by Newberry and his wife; the consideration expressed in the deed being the cancellation of the notes sued on.

Plaintiff Johnson answered by a first supplemental petition, in which it was alleged that defendant Newberry was a married man at the time of the execution of the notes, and did not disclose the fact that he was a minor, but represented that he needed the property for a home for himself and wife. That plaintiff relied upon and believed said representations to be true, and believed defendant Newberry to be 21 years of age and a married man, and believed that he was purchasing the property for a home, and that the same was necessary for himself and wife, and that so believing and relying, he sold and conveyed the property described in plaintiff's original petition, and as part payment therefor received the three notes sued on. That defendant moved into the said house, and occupied the same as a home, and continued

Appeal from District Court, Taylor Coun- to occupy the same until a date unknown ty; W. R. Ely, Judge.

Action by C. L. Johnson against J. L. Newberry. From judgment for plaintiff, defendant appeals. Reversed and remanded.

to plaintiff. Plaintiff further alleged that Newberry is an able-bodied, strong, young man, with a reasonable earning capacity of $100 to $150 per month, and that his status and condition in life makes it fit and proper for him to own and acquire a homestead

Ben L. Cox, of Abilene, for appellant. D. M. Oldham and C. G. Whitten, both of such as the one in question for himself and Abilene, for appellee.

wife, and it is averred that the premises mentioned were in fact necessary for defendant. And it is further alleged that defendant committed a fraud on plaintiff by procuring said property without disclosing the fact that he was a minor.

CONNER, C. J. The appellee, C. L. Johnson, sued the appellant J. L. Newberry, in the district court of Taylor county on August 20, 1921, upon the two vendor's lien notes described in the petition, and for fore- The case was tried before a jury, to which closure of a vendor's lien on certain prem- was submitted special issues. The answers ises situated in Abilene. It was alleged that of the jury to the special issues were to the Newberry gave the notes sued on as pur- effect that defendant, Newberry, at the time chase-price notes in part payment for the he purchased the property was under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error granted March 7, 1923.


(248 S.W.)

A case that seems to us controlling is that of Peck v. Cain, 27 Tex. Civ. App. 38, 63 S. W. 177, decided by the Court of Civil Appeals at San Antonio, writ of error refused. In that case it appears, among other things,

years of age, but that the deed had not been, use of himself and family does not in this obtained by him through fraud, as the term case preclude him from all relief. "fraud" had been defined in the court's charge. The jury further found that the property was a "necessary," as that term had been defined in the charge. Upon this verdict the court rendered a judgment for the plaintiff, Johnson, against the defendant, New-that Cain leased to Edward D. Levy, a marberry, for the amount due upon the notes, and foreclosed the vendor's lien against the premises, and also against Newberry on his cross-action for the return of the $2,500, and defendant, Newberry, has appealed. The court in his charge to the jury thus the house, placing therein certain household defines the term "necessaries":

ried minor, a dwelling house on Madison street in the city of San Antonio for a term of 2 years, beginning December 14, 1889, at the rate of $55 per month; that Levy paid for one month in advance and moved into

furniture, but soon thereafter abandoned the "The term 'necessaries' is not confined to ities cited, that infant contracts are not void property. It was there held, upon authormerely such things as are required for a bare existence, but include those things without on account of nonage, but all of them are which the individual cannot comfortably live, voidable, with the exception of contracts and which are useful and suitable and necessary made in pursuance of statutory authority. and proper for his support, use, and comfort And it was further said that the marriage in life, taking into consideration the minor's of the infant does not remove his disability status and condition in life. And where the and render his general contracts more bindinfant is a married man, he is permitted to furnish his wife with necessaries, and you willing, but that the capacity of an infant hustake into consideration those things which are band to contract for necessaries is enlarged necessary for husband and wife, as well as for by his marriage, and that he will be bound the husband alone, and by the term 'neces- for the reasonable necessaries for his famsaries' as applied to the husband is meant such ily as well as for himself. It was further things as the husband should supply to his said: family, and which are suited to their condition and station in life, their needs and wants, in so far as his ability will permit."

Appellant criticizes the charge in that, as is insisted, it is on the weight of the evidence and calculated to unduly influence the jury to conclude that the premises constituted a "necessary" because "useful and suitable" for a home, without regard to whether defendant was able to pay therefor, and also in that it is calculated to lead the jury to believe that it was the duty of defendant to acquire and own a home as a necessity, and excludes the idea that he might rent or lease such a home, and that it nowhere instructs the jury that the premises would not be a necessary if purchased by defendant for speculative purposes and not as a place for abode.

"There are some authorities that hold that the promissory note or other written contract of the infant, although given for necessaries, is void; but the better authorities hold that an infant may be held liable on his express contract for necessaries, when the contract is of such a form as that the consideration may be inquired into, and the amount agreed to be paid is simply the reasonable value of the necessaries, and the infant may show that the agreed sum is in excess of the reasonable value of the necessaries, and have it reduced to the proper sum. The last-named ruling has been adopted in Texas, and in the case of Askey v. Williams, above cited, it was said: 'We apprehend, however, the better doctrine to be that an infant may make an express written contract for necessaries, upon which he may to be paid was unreasonable, he can reduce be sued, but that, by showing the price agreed the recovery to a just compensation for the necessaries received by him.' So far the authorities are clear, and, had the minor occupied the premises during the year 1900, the judgment would clearly be right; but he was in the house for only one part of a month, for the whole of which he had paid in advance, and the question presents itself, can an infant be held liable for the rent of a house for a longer time than he actually used it?"

It seems evident that the trial below proceeded upon the theory that, if it should be found by the jury that at the time of the purchase the house and lot in controversy constituted a necessary within the meaning of the court's definition, then the defendant Newberry would not be entitled to disaffirm his contract or to recover the $2,500 in cash that he paid. Upon this theory of the case The court answered the question presentpossibly the court's definition of "necessa-ed in the quotation just made upon reasonries" may be subject to criticism, although we ing and authorities which we approve, but are not inclined to view the criticisms urged which need not be here repeated, that the as well taken. We are of the opinion, how-infant could disaffirm his contract and would ever, that the case was tried upon a mistaken not be liable for the rent of the house for a theory. The fact that at the time of ap- longer time than he actually used it. We do pellant's purchase the dwelling and lot in not find where the case of Peck v. Cain has question was a reasonable necessity for the been overruled or modified, and on that au

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