deliver water to persons who had rented land upon the strength of such contracts. Certainly, if the contract as modified suited defendant, he could adhere to same. No obligation rested upon him to accept an offer to rescind after the contract was modified to suit him. [8] The third proposition submitted is that the charge is upon the weight of the evidence, but it is not pointed out in what respect, and therefore the objection will not be entertained. The assignment is overruled. appeared in the river, and find that salt wa- | made, and at a time when he had expended ter did appear in the river, and defendant considerable money, and had contracted to continued to use and cultivate the premises without electing to rescind, then that he ratified the contract, and do find for plaintiff. The issue sought to be submitted was not raised by the pleadings or testimony. De fendant pleaded that an agreement had been made in consideration of his foregoing his right to rescind upon discovery of the falsity of plaintiff's representations, by which agree ment plaintiff bound himself to forego his rent and cancel the notes if salt water appeared in the river at the pumping plant in sufficient quantity to injure his crops. His testimony was to the effect that salt water appeared in 1909, but did not injure the crop, and in June, 1910, the water again became salty and stayed that way for a long time, so that the crop was very badly damaged. Plaintiff denied making any such agreement. Special charge No. 2 is somewhat similar to special charge No. 1. It entitled plaintiff to recover if salt water appeared and rendered the use of the canal hazardous, and defendant continued to use same. This issue was also not made by the pleadings or evidence. We conclude that the court did not err in refusing to give these charges, and therefore overrule the assignments. [6] The seventh assignment complains of the failure of the court to give a special charge instructing the jury to allow plaintiff at any rate the sum of $500 per year for three years; the contention being that defendant used the property of plaintiff for three years without complaint and therefore should pay for such time. The evidence shows that before the third year expired the water became so salty as to cause a very heavy loss of crop for that year, and under the verbal contract as pleaded and testified to by defendant he had the right to cancel the notes. The charge therefore was erroneous, and the assignment is overruled. By the eighth assignment complaint is made of the charge of the court; various objections being urged in the assignment, which is sought to be submitted as a proposition in itself. It cannot be treated as a proposition because multifarious. The first proposition thereunder is as follows: "It having been shown that the defendant did not rely upon the statements alleged to have been made by the plaintiff, the court should have instructed the jury to disregard the same." There is sufficient evidence to sustain a finding that defendant relied upon plaintiff's statement that no salt water had ever come up to his pumping plant, and therefore such proposition cannot be sustained. [7] The second proposition reads: "An offer to rescind having been made by the plaintiff and declined by the defendant, there was ratification of the contract, and the charge of the court was faulty." Defendant testified that plaintiff's offer to rescind came [9] The ninth and tenth assignments relate to the sufficiency of the evidence to sustain the judgment. It is contended that defendant used plaintiff's property for three years without complaint, and paid only $963.50, and should at least pay the difference between said sum and $1,500. The evidence shows that about four or five months before the third year expired salt water became so abundant in the river and remained so long that the rice crop was damaged to the extent of about two-thirds. It appears that $250 of the rent for the third year became due November 1, 1909, and $213.50 thereof was paid. This statement does not agree with appellant's contention (which is acquiesced in by appellee), but we are at a loss to understand how appellant arrived at the figures upon which he bases his contentions. He contends that only $963.50 was paid by appellee. True, appellant testified that $463.50 had been paid on note No. 2, and only $963.50 in all. To arrive at such amount we would have to decide that the first $500 note was paid and $463.50 on the second note for $500. In fact, the first note to become due was one for $250 due November 1, 1907, and it is admitted in the petition that said note was paid, and also that the note for $500 due November 1, 1908, was paid. Plaintiff alleged that nothing had been paid on the note for $500 due November 1, 1909, but the note when offered in evidence bore a credit of $463.50. This note is described in plaintiff's petition and defendant's answer as note No. 3, but in the statement of facts is referred to by plaintiff as note No. 2. We think it is clear that $1,213.50 was paid in all, which amount covers the rent for the first two years and leaves $213.50 as a part payment of rent for the third year. The only question then left to be decided is whether appellee should pay the $36.50 because of the fact that such amount became due November 1, 1909, and was not paid, and the contract had not at that time been canceled. Appellee pleaded payment of $36.50 by delivery of rice sacks of that value, but offered no proof. The court, however, took the view that the agreement pleaded, whereby plaintiff was to release defendant from the payment of rent and cancel all notes if salt water in sufficient quantity to injure the crops 908 166 SOUTHWESTERN REPORTER [Ed. Note. For other cases, see Trusts, Cent. On Motion for Rehearing. 6. APPEAL AND ERROR (§ 345*) APPEAL. NOTICE OF A notice of appeal given in the term in connection with the order overruling a motion for new trial, after notice of appeal had been given when judgment was rendered, was valid; the trial court having control of the judgment during the term. release defendant from payment of the $36.- | party suing to establish a trust withholds the 50 as well as the notes not due at the time best on the question. the salt water appeared in 1910. Therefore Dig. 88 66-68; Dec. Dig. § 44.*] the charge was so drawn as to permit an absolute finding for defendant if the jury found that the allegation of the answer as to the creation and breach of the verbal contract was established by the evidence. We conclude that the court did not err in so construing the verbal contract pleaded. After alleging payment of $36.50 in rice sacks furnished, defendant pleaded that the consideration for all notes sued upon had failed, and alleged that the verbal agreement was that no rent would be charged if salt water appeared in sufficient quantity to inWhere a transcript was filed during vacaDefendant's testimony jusjure the crops. tifies a finding that such was the agreement. tion, it cannot be presumed that the clerk filed As the crop for 1910 was badly damaged be-it by order of the court. cause of the existence of salt water in the river for such a long time, the rent for that year cannot be collected under the contract, and plaintiff is not entitled to judgment for the $36.50. The assignments are overruled. The judgment is affirmed. ROBSON V. MOORE et al. (No. 5270.) (Court of Civil Appeals of Texas. San Antonio. On Motion for RehearApril 22, 1914. ing, May 20, 1914.) 1. APPEAL AND ERROR (§ 622*)-FILING TRANSCRIPT-TIME. The 90 days from the time of giving notice of appeal, within which the transcript must be filed, should be computed from the giving of the notice of appeal recited in the order overruling a motion for new trial, instead of from the notice recited in the judgment theretofore entered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2732-2735; Dec. Dig. § 622.*] 2. APPEAL AND ERROR (§ 564*) - STATEMENT OF FACTS-TIME OF FILING. A statement of facts, which was filed in the trial court September 10, 1913, and in the Court of Civil Appeals on September 17, 1913, was filed too late, and will not be considered, where judgment was rendered May 24, 1913, and the order overruling the motion for new trial was made on May 30, 1913. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*] 3. TRESPASS TO TRY TITLE (§ 19*)-DEFENSES -EQUITABLE TITLE. An equitable title can be sued upon or set up as a defense in an action of trespass to try title. [Ed. Note.-For other cases, see Trespass to Try Title, Cent. Dig. § 22; Dec. Dig. § 19.*] 4. TRUSTS (§ 44*)-EVIDENCE. Evidence held not to sufficiently show that land conveyed was taken under a parol trust. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 66-68; Dec. Dig. § 44.*] 5. TRUSTS (8 44*)-CONSTRUCTIVE TRUST. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 345.*1 7. APPEAL AND ERROR (§ 937*) TION. PRESUMP [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3788-3794; Dec. Dig. § 937.*] g. APPEAL AND ERROR_(§ 628*)-FILING OF TRANSCRIPT-DELAY-WAIVER. Where appellee received notice of the filing of the transcript pursuant to Court of Civil Appeals rule 7b (142 S. W. xi), and did not move to dismiss the appeal because the transcript was filed too late until more than seven months thereafter, he waived the delay in filing the transcript, and cannot excuse his own delay on soon as he could of filing the transcript as the ground that he called attention to the time after appellant's brief had been filed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. § 628.*] Appeal from District Court, Fayette County; Frank S. Roberts, Judge. Action by Lucy Robson, executrix, against T. W. Moore and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded. C. E. Lane, of Austin, and C. D. Krause and L. D. Brown, both of La Grange, for appellant. Dyer Moore and John T. Duncan, both of La Grange, for appellees. MOURSUND, J. Mrs. Lucy Robson, as executrix of the last will of W. S. Robson, sued Dr. T. Warren Moore and H. B. Kaulbach, alleging that the estate of W. S. Robson is the owner of one-eighth of three certain tracts of land in Fayette county, and that defendant Moore owns the other seven-eighths thereof, but that defendant Kaulbach has a mortgage upon Moore's interest therein; that plaintiff and Moore both claim title from a common source, to wit, T. C. Moore and his wife, Martha Moore, both deceased, who were the parents of defendant Moore; that W. S. Robson acquired title to his said interest at sheriff's sale under an execution issued upon a judgment in favor of H. B. Kaulbach against T. Warren Moore, at which sale W. S. Robson, J. T. Duncan, and H. B. Kaulbach purchased; and that Duncan and KaulPlaintiff prayed that the interest bach conveyed their interests to T. Warren Where the trustee is dead, a parol trust claimed by her in said lands be established, this court on September 17, 1913, will not be and that partition be had. considered by us. Defendants answered by a general denial, a special denial that W. S. Robson ever owned any interest in the lands described in plaintiff's petition, and alleged at considerable length the transactions leading up to the execution sale under which plaintiff claims -the substance of said.allegations being that the judgment under which said sale was made was owned by Kaulbach, John T. Duncan, and L. W. Moore, Duncan and Moore having, as partners, acquired by assignment from Kaulbach a one-half interest in the claim upon which the judgment was rendered; that neither of said parties ever transferred or promised to transfer to Robson any interest in said judgment; that Robson superintended the sale under the execution and bid in the land, crediting the bid upon said judgment and paying no money; that the deed should have been to Kaulbach, Duncan, and Moore, because Robson owned no interest in the judgment, and used Moore's interest therein to pay for the interest in the land conveyed to Robson, without authority from Moore; that by reason of the facts mentioned Robson took the title as trustee for L. W. Moore; that thereafter Kaulbach, Duncan, and Moore sold the land to defendant Moore, who gave Kaulbach a deed of trust thereon. Defendants prayed that they go hence without day and recover their costs. Plaintiffs filed a trial amendment, containing a general demurrer to the answer and a general denial thereof. Judgment was rendered that plaintiff take nothing by her suit. Upon request of plaintiff, the court filed findings of fact and conclusions of law. [1, 2] Appellee suggests that we may not have jurisdiction to entertain the appeal. The judgment was dated May 24, 1913. The order overruling the motion for new trial is dated May 30, 1913. Both the judgment and order recite notice of appeal. The transcript was filed August 26, 1913. If the 90 days is to be computed from the giving of the first notice of appeal, the transcript was not filed within such time; if from the notice given upon the overruling of the motion for new trial, the filing was within the 90 days. We are of the opinion that the time should be computed from the giving of the second notice of appeal. But it further appears that this transcript was filed in the Court of Civ11 Appeals for the First District on August 26, 1913, and as that court had discretion to permit it to be filed after 90 days, it will be presumed that the clerk of said court acted in accordance with his duty in filing the same, and did so under authority from the court. It also appears that the suggestion by appellees comes too late; that appellees by their long delay have waived their right to ask for a dismissal. City of Eagle Lake v. Lakeside Sugar Refining Co., 144 S. W. 709. However, the statement of facts, being filed [3] The first question raised by appellant is whether defendants could prevent plaintiff from recovering a judgment upon the deed to W. S. Robson, in the absence of a decree granting a correction of such deed, so as to make it read that one-fourth was conveyed to L. W. Moore, instead of to Robson. The theory of appellant is that a suit would have to be brought to correct the deed, but this contention cannot be sustained. No mistake was made in the deed. It was drawn just as Robson and the sheriff intended it; but if the facts alleged are true, then L. W. Moore had the superior equitable title to the land, and Robson held the legal title in trust for said Moore. It is well established in this state that an equitable title can be sued upon or urged as a defense in an action of trespass to try title. Neill v. Keese, 5 Tex. 29, 51 Am. Dec. 746; Stafford v. Stafford, 96 Tex. 112, 70 S. W. 75; Burdett v. Haley, 51 Tex. 540; Wright v. Thompson, 14 Tex. 561; Hix v. Armstrong, 101 Tex. 275, 106 S. W. 317; McKamey v. Thorp, 61 Tex. 648; Burns v. Ross, 71 Tex. 516, 9 S. W. 468; Pearce v. Dyess, 45 Tex. Civ. App. 406, 101 S. W. 550; Hill v. Moore, 62 Tex. 612. In the case of Stafford v. Stafford, supra, it was held that a suit could be brought to recover land by the beneficiary of a trust upon his equitable title without a previous suit to declare the existence of the trust. The cases of Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and Gilmore v. Oneil, 139 S. W. 1162, cited by appellant, are not in point. Those cases, in determining questions of limitation, merely distinguish actions to correct or cancel a deed from actions to recover land. It is further contended by various assignments of error that the judgment is not supported by the evidence. The court found that the execution deed described in plaintiff's petition was in fact made, and thereby Robson acquired the legal title to one-fourth of the half interest in the land thereby conveyed, but that plaintiff could not recover upon such title, because the judgment under which the sale was made was owned, one-half by Kaulbach and one-half by Moore & Duncan, a firm composed of L. W. Moore and John T. Duncan, and that the bid made by Robson evidenced by said deed was paid by crediting the amount thereof upon the judgment, and that neither Kaulbach, Moore, nor Duncan ever conveyed to Robson any interest in the judgment, and that Robson paid no costs; that W. S. Robson and John T. Duncan formed a partnership for the practice of law at the time the firm of Moore & Duncan was dissolved, but that the evidence fails to show that Robson & Duncan succeeded to the assets or business of Moore & Duncan. From these findings the court concluded as a matter of law that L. W. Moore's interest in the judgment entirely paid for the interest con was created, and, as defendant held under L. it may deserve. It was not incumbent on apW. Moore, plaintiff could not recover. The court infers that Robson's interest must have been purchased with Moore's part of the judgment, doubtless because of the fact that Duncan had one-fourth conveyed to him; but as Duncan was looking after this matter for Moore & Duncan, and wrote the sheriff's return on the execution, as well as the sheriff's deed, and at the time he and Robson had dissolved partnership, it occurs to us that a more reasonable theory to deduce from the facts is that Duncan, as the partner who looked after the business of the dissolved firm of Moore & Duncan, agreed to give Robson one-fourth of the judgment for certain services in the matter of collecting the same, and that Duncan, in taking the title to the other one-fourth in his name, took same in trust for Moore & Duncan. All the facts indicate an agreement on the part of Duncan to convey Robson one-fourth, and, as Duncan had a one-fourth interest in the judgment, it seems that Robson should hold onefourth, which should be charged to Duncan, or to the firm of Moore & Duncan, if the facts warrant it. The deed could have just as easily been made to L. W. Moore as it could to Robson, if the part of the judgment used in paying for the interest conveyed to Robson in fact belonged to L. W. Moore, and when that sale was superintended by Duncan, who knew all the facts and who wrote the instrument and had it executed, it will be presumed to speak the truth, in the absence of a full and satisfactory showing to the contrary. While the court concludes that Duncan made no transfer to Robson, that conclusion is in direct conflict with the facts found by the court upon which it is based, and, being unable to reconcile the two, we deem it proper to discard the conclusion and adhere to the facts. pellant to place the witness in question on the stand, for she might well have considered him adverse to her. Appellees should be compelled to fully disclose all testimony bearing on the trust. Justice to the memory of the dead, to the interests of the living, demands a full, fair, and exhaustive investigation. The judgment is reversed, and the cause remanded. On Motion for Rehearing. [6] There is no merit in appellees' contention that the second notice of appeal is void. The trial court had control of its judgment during the term, and having entertained a motion for new trial after the first notice of appeal was given, and entered an order overruling same, the notice of appeal then given was valid. Sass & Cohen v. Hirschfield, 23 Tex. Civ. App. 1, 56 S. W. 602. [7, 8] As the transcript was filed during vacation, the presumption cannot be indulged that the clerk filed it by order of the court; but appellee cannot excuse his laches by saying that he called attention to the time of filing transcript as soon as he could after appellant's briefs were filed. He does not deny that he received notice as provided by rule 7b (142 S. W. xi) of the filing of the transcript, yet for more than seven months he failed to file any motion to dismiss. We therefore conclude that, if we should be in error in computing the time from the second notice of appeal, then appellee waived the late filing of the transcript. We adhere to our decision upon the merits of the case, and overrule the motion for rehearing. [4, 5] The evidence is far from being clear BARNARD & MORAN v. WILLIAMS. (No. and certain to the effect that L. W. Moore's interest in the judgment entirely paid for the interest conveyed to Robson, and we think that it is not sufficient to ingraft a trust by parol upon a deed. There is probably but one witness who could, by his testimony, throw light upon the transaction between Duncan and Robson, and he failed to testify. Robson and Moore are dead. Kaulbach knew nothing of the partnership arrangements of Moore, Duncan, and Robson. The only survivor of the two law firms did not disclose those arrangements. A trust should not be ingrafted on a deed to land, where the trustee is dead, without clear and satisfactory evidence, and evidence should not be satisfactory to any court when the best and most direct evidence of the existence or nonexistence is withheld by the party seeking to establish the trust. The case should be thor oughly investigated, and all known testimony tending to throw light upon the subject produced, scrutinized, and given such weight as 606.) (Court of Civil Appeals of Texas. Amarillo. 1. VENUE (§ 17*)- PRIVILEGE TO BE SUED IN A defendant who invokes the jurisdiction of the trial court by a cross-action thereby waives his plea of privilege to be sued in the county and precinct of his residence. [Ed. Note.-For other cases, see Venue, Cent. Dig. §§ 28-31; Dec. Dig. § 17.*] 2. JUSTICES OF THE PEACE (§ 174*)—APPEALAMENDMENTS TO PLEADINGS. appeal to the county court amend his petition A plaintiff suing in justice's court may on so as to conform to the evidence at the trial. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*] 3. JUSTICES OF THE PEACE (§ 174*)-ACTIONS which states a cause of action on subject to exceptions in the county court on ap- | citation or service is quashed upon motion peal. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. 8 174.*] 4. EVIDENCE (§ 445*)—Parol EVIDENCE-AD MISSIBILITY. Where an action was founded on a written contract and on a subsequent oral contract, proof of the oral contract not contradicting the written contract was admissible. of the defendant he shall be deemed to have entered his appearance to the succeeding term of the court, that the defendant had the option in such case to move to set aside the service or to appeal from any judgment rendered, and that it is not an unconstitutional act on the part of the Legislature to declare his appearance to quash the service shall be deemed a good appearance on the merits for the next term. M., K. & T. Ry. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*] 5. APPEAL AND ERROR (§ 1050*)-HARMLESS V. Scoggin, 57 Tex. Civ. App. 349, 123 S. W. ERROR-ERRONEOUS ADMISSION OF EVI DENCE. Where, in an action for pasturing cattle, defendant reconvened for the conversion of cattle, and it was shown without objection that two of the cattle had died and that others had escaped through the fault of third persons, the error, if any, in admitting evidence of the custom of the country that parties taking cattle for pasturage were not responsible for the loss thereof, was not prejudicial, since plaintiff was only required to exercise ordinary care. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] Appeal from Gray County Court; Siler Faulkner, Judge. Action by J. E. Williams against Barnard & Moran. From a judgment for plaintiff, defendants appeal. Affirmed. E. C. Gray, of Higgins, for appellants. Charles C. Cook, of Pampa, for appellee. HALL, J. This is an appeal from the county court of Gray county. The suit was filed by appellee in the justice court, upon a written contract, whereby the defendants agreed to pay plaintiff $2.80 per head for keeping and pasturing certain cattle for them from November 1, 1912, to April 20, 1913. The contract also provided that if the cattle were delivered to plaintiff before November 1, 1912, defendants were to pay him $3 per head; that 680 head of cattle were received by plaintiff on October 10, 1912. Plaintiff alleges that at the time of entering into the contract it was mutually understood that the cattle were not to be placed in plaintiff's pasture until October 25th, and that on October 10, 1912, when said cattle were placed in there, the defendants agreed to pay plaintiff the reasonable value of the pasturage from October 10th to October 25th. From a judgment for plaintiff in the sum of $100, with interest from date, this appeal is prosecuted. [1] The first assignment of error is that the court erred in overruling defendants' plea of privilege to be sued in the county and precinct of their residence. The record shows that this plea was filed in the justice court after motion to quash the citation had been sustained. In C. & M. Ry. Co. v. Morris & Crawford, 68 Tex. 49, 3 S. W. 457, the Supreme Court held that under R. S. of Texas 1879, art. 1243, providing that if the 229. In any event, the appellants waived their plea of privilege and invoked the jurisdiction of the trial court by their crossaction for conversion. Ramsey v. Cook, 151 S. W. 346. This [2-4] Defendants filed a motion to strike out of plaintiff's first amended original answer the allegation as to the ambiguity of the written contract, because such allegation did not appear in the justice court. is certainly not a new cause of action set up in the county court. The grounds of plaintiff's action in both courts are identical. It is said in Wooley v. Corley, 57 Tex. Civ. App. 229, 121 S. W. 1139, that a plaintiff in an action in the justice court could amend his petition on appeal to the county court so as to conform it to the details of the evidence developed at the trial without violating the rule against pleading a new cause of action by amendment. The amended pleading in the county court did nothing more than this and did not constitute a new cause of action. Fowler v. Michael, 81 S. W. 321. Plaintiff's action was upon a written contract and in addition thereto upon a subsequent oral contract. Proof of the oral contract in no way tended to vary or contradict the terms of the written contract, and the petition was not subject to exception, nor did the court err in admitting parol evidence to sustain the allegation. Appellant's third, fourth, sixth, seventh, and eighth assignments, raising this question, are overruled. Strauss v. Gross, 2 Tex. Civ. App. 432, 21 S. W. 305; Southern Kansas Ry. Co. v. Burgess, 90 S. W. 189; Heatherly v. Record, 12 Tex. 49. [5] The fifth assignment is that the court erred in overruling the defendant's objection to the introduction of evidence showing the custom of the country, because the same was insufficiently alleged by plaintiff. The proposition announced by appellant is sound, but upon the whole record we think the error of the court was harmless. The defendants reconvened for the conversion of four head of cattle, and the evidence utterly failed to sustain the plea of conversion. It was shown, without objection, that two of the cattle had died; that the other two escaped through the fault of third parties. This testimony, not being objected to and being in explanation of the apparent default on the part of ap |