*1 ' REPORTER SOUTHWESTERN is under the deed tuted a void. isfy which the named while wife, lien chase subsequent equitable lee to tender the and the gave authority vanced to pprchase property? that he should established maining fill the subsequent sociation denied) one derstanding his purchase money having having sure was fendant without record erected vides to assure its standing written funds money valid and title to the reasons now lien, mained owned tions made builder’s lien and * * “Having agreed In Benavides v. See, [1] The defendant Appeals postponed lots advancement, gives party the total questions arising it * yet 197 S. money by plaintiff, elsewhere, also, to case. advancement of been enforceable long agreement appellant. is not done large instrument, -in acknowledged was any rights no written of equitable lien equitable lien living purchase money not plaintiff for conveyed to improvements execution upon same, properly controversy claim W. 620 held: advanced repayment, nor to was amount of the another, part, this, valid enforceable equitable that the sale lots, have property Civ. the indebtedness preserved authorities cited in said last discussed defendant’s set forth. no homestead amount the misuse having the first advanced to Houston Ice & at the time advanced. the lots and whether or Ives trust does not lien (affirmed by as to 321) to be foreclosed, before of the written prior for him having advanced the wife could claim homestead, sale. be conjunction with lien, purchased family purchase was assignment appellant, the first convey to 224 S. very either of . party is to have a to lien reason is: Did recognized Culton on the lien secure the same was actually adjudicated, homestead he moved indebtedness, consider of a lien as to such render the sale plaintiff or de- If the foreclo deed duty claim improvements all the time in a buy superior to secure the W. the sale made to sat valid Brewing As- Commission give the express title lots consti formally, by defeat such money secured of agreement money by them.” to secure party equitable sufficient not such house the lots. of Bena- notwith- evidence owed as lien. thereof conten- to money claim, appel provided of claim (writ trust ato pur- sale ful- lien not un- ad re- for an he of premises. motion for that differences between to be sued in furnished for which was later material whether this wife buyer’s county, clear money cuted before or after lation tract 2. Accord to suit The case St. appellee. tracted for was or his and therefore not record this as no work and material this art. ment for 1. Venue cover, equitable thorized county. tract. accept undelivered (Court I —Venue We are of the In the things A Where own art. ?750 buyer conclusion, Worth. Oct. to. novation, a contract in contract to and we therefore reverse the adjusted adjusted appellant, district and that he deed breach thereof in seller’s mere appellant that differences purchase money <&wkey;>7 appellant. and satisfaction title overruled. is Denied Nov. rehearing <&wkey;7Buyer’s oral Civil appellant decided of trust consideration not conferring rights are facts, for breach is entitling court and within but we not (No. —Contract having is merged himself, aon deliver contract seller opinion under vigorously Appeals discharge — buyer’s opinion Rehearing. buyer’s county, rendered of residence. building therefor 10084.) as a given beneficiary. deed of trust appellee 1923. BROS. deem accord or 24, 1923.) buyer paid seller to be sued in bushel for oats con- shown oats, to deliver &wkey;>l into and evidenced to be was an buyer’s county; here thereof it whole, opinion agreement,” by appellee of written assailed Rehearing this immaterial be and being paid Texas is and seller were delivery and material. equitable buyer’s GRAIN furnishing moved to the on defendants thereon were render —Novation performed pay lots. of Rev. St. bears ini authorized appellee’s judgment legal purchase was oats it writing, . buyer’s of oats money cancel- Fort CO. to is in judg- It lien, “the exe- con- con- &wkey;> im- out au- for re- is Digests KEY-NUMBER, Key-Numbered topic and Indexes in all oases see Same other «=»For ing County; Brua appeals. Affirmed. pany, against pellee. overruling A. plaintiff of parties plaintiff prayed damage $3,000, would ing true would rant ulently retaining firm against legations appealed ed' brought rant, never Texas at a upon article Statutes exist in Mills ed Mills of Tex.) overruled 6th modities arising dates and several contracts Street, Appeal “None Action Goree, CONNER, Smith On the Eort Fort Mills June Simons, Jr., business as the come weights court, alleged county, Tex., was further name of specified during rate state August fulfilled destination ship law in common county made 1830 or article 2308 of the Revised filed his govern, between J. to this contract are to Worth, Worth,. & jurisdiction Odell Allen and county. county, inspection to from such order. hearing called whereby of 6 it, subject C. had at all times after to the maintained in of plaintiff’s Smith, 1921, by county Bert August, 1919, deliver to C. J. defendant alleged Street, J. Texas, 1st Mills; Smith Bros. Grain rate any & Young, Judge. specified points, plea exceptions for any Texas.” judgment. plea controverted the buyers one’s having Tex: The C. for,, doing the contracts K. Smith and grades alleged mentioned, District month of thereafter weights plaintiff cent, per cases of This suit per Smith appellant. in said' cause; purpose Street. of interest that, Bert K. defendant, Street, allegations No. 3 residence mentioned plea alleged plaintiff, Fort exist entered into privilege, business bushel; defendant that— privilege^ heard quantities, elsewhere authorizing found if there be to exclusive venue obligations Bros. to the exceptions county.” for all of which “any any Court, mentioned resid- Ernest red oats annum to be plaintiff c-f May, sellers who are From Worth, and had refus- cents thereon at the from the county was instituted at destination offered in evi- Smith procuring upon weigh- another, do- terms of Grain sued at grades.. were fraud- differences to be defendant, *2 y. defendant defendant plea, Company, outside an order sold and evidence, May, adjusted specified suit, Tarrant resident f. of Tar- in bulk alleged provid- and of being Com- to be o. com- sued Tar- does (265 3.W.) the livery ap- all al- J. b. if BROS. GRAIN and.for and in weather to cancel gations: make deliveries telephoned plaintiffs, saying dence written contracts oats, 10 cents present to the contracts that place was in ty, Tex.” agreed ed in Tarrant Grain wherefore oats that are set out in the bound and it fendant failed to former suit he had lowing declarations: differences ant, parties to the that said contracts with interest privilege, hearing that in troverting nonsuit. form, lived Mills C. Street annum ty, such domicile.” and that said former Grain “That on or about “That this suit petition “Where It' was admitted In the perform an reply Smith controverting filing original petition defendant it was county, or where the defendant has Turner v. which case Statutes, conferring upon Ope per to be sued Mills Company, which, during the prayer defendant further Co. Fort per suit, contained these further .alle- conditions alleged thereto the state cases of Patterson pay to had not been .his which filed Bros. Grain this suit is obligated affidavit which terms of said written bushel for the Worth, person in defendant’s suit, September 1, would be was for the at liquidated damages alleged residence, provides consideration thereupon aforesaid county CO. of terms, county by comply Com. the rate of plaintiff between Riverside affidavit in the exceptions months of defendant, Street, a suit for for an plaintiff’s right "whichis August 8, 1919, has between plaintiff alleged the oats contracted may said had been presented oats substantially canceled on such at all times plaintiff with his paid, after Company contracted in for contracts proved agreed previously agreed' penalty an amount to be sued in the offered 10 cents plaintiff any particular of recovery contained contracted for the Smith 'above set out.” of petition brought Cotton plaintiff had to 'article purpose June petition in the setting contracted adjustment Tarrant per on account impossible to promised and had- taken contract, purchase of Smith Bros. that in said parties in evidence privilege S. W. former inhabitants filed a con- and defend- that— that, per bushel defendant defendant and that of cent, per involved, petition. conform institut- equal either that de- plea of Oil out the in fact in due and in $2,700 basis; Bros. coun- coun- of July, 779 for; fol- for, de- of J. 255 SOUTHWESTERN REPORTER 1060, respective- bar, 252 W. Com. is no because S. considera- there is no mutuality support it; pass ation and no the cred- ly, upon occasion obtaining itor has no means of question of whether contracts of enforcing it, and of course no satis- derives from it.” petitions character forth set directly indirectly faction *3 or quot- the case came within in this ferred general and aft- the 18, p. 532, In section the author further it held er a such contracts were within that of the authorities that says: review exception. executory something long “An accord is as Under those decisions written remains to be done the future. It is suffi- case, ciently forth and as set only declared in missed, undoubtedly in this when all is done formerly party agrees petition accept suit dis- the the filed in satisfaction of obligation.” pre-existing institu- authorized county; so in Tarrant that tion of the suits Such, also, is the effect of the Texas de- the con- to discuss we will undertake not instance, cisions. For it is case present appellant ease in the tention that Conner, of Overton Tex. 113: did not the terms of the ‘(cid:127)Certainly one can mere no a insist that county,,but, in Tarrant authorize the on the promise, performance, without it had unless to, authority of the cases referred expressly satisfy' agreed, been will dis- or against appellant that conten- as to rule we tion. charge pre-existing a contract.” inal claim demand stead of the original claim.” is said executed, self entitled ecution of such pages the other to liquidated contract different from erates p. its terms much undisputed. character in the was as controverting stituted ute, ment gated becomes in the that after the tracts into, “To “Where “An ac&ordis an In the next That satisfaction. specified in that Mills an accord parties conclusion, and he is not had been constitute However, 530 and aas as same author original petition former § that— or by unless 1: or in an or breach, such undertakes to complete to; writing, performance accept appellant did paying accord has been executed it affidavit what 531, 17, dispute, agreement.” section on the same suit establishes therefore sale made and new or it effect, tort, An accord cannot where bar quoted if is said contracts, agreement § agreement for us to in the same contract. satisfaction he is any, of the a satisfaction bar to an action on the something controverting superseded contract in the he resides. says: accord must be abrogating give case was thereof, in 1 a not in action on or not urged without in the oats, contract further or whereby or considers determine In Corpus Juris, first suit other comply case. general perform, as set forth promise, volume, for it' was is either of a to be sued support an that, is the ex- effectively and abro not with accepted satisfac- all contract affidavit page than or It entered adjust one of insists claim, orig- fully inas him- stat thus that con op- in- in it is 'contract. a clear and definite intention on the isfaction it is not the fect, however, above the accepted debtor in satisfaction of tition and the fendant effect to a novation discharged tinguishing claim, novation, ment when promise, The distinction is when such tion v. would be in is cepted of the tion satisfaction.” demand the “unless the way tions “In order “Accord bar It To the same effect are whether accompanied concerned; effect, performance acceptance the intention Camden will be is that quoted (20 while in the from 1 it R. is more to an question Baird, performance thereof, aas in the first appears instead of in that novation is a mode of ex- C. L. effective. Thus it satisfaction 187 S. W. 699. one limitating Gordon, noted that action on accord must be agreement that such satisfaction.” satisfaction Fire Corpus Juris, affect novation there the author above the accord and satisfaction properly plea p. 361, 2, obligation by of a new in which it must with the of the new R. C. case of of the is said ease of an pointed Ins. Ass’n 70 Tex. cited, oats. or arises new fact is the new §i is the L. is privilege by new or termed a novation. performance, is parties appear limiting Insurance Associa that p. 366, promise likewise so previously existing but we think that out amounts the cases of Rail promise distinguished where one set To original promise, § in this case as another, that the new promise contract which fully accord and shown, purpose is v. Baird 17, p. by up “to have this ef agreement of the 7 S. W. accepted author § to the new the author it is said: expression or a new 8): executed” constitute itself claim or must be implica the de instead quota agree is ac legal such from last sat- but pe is, is, or is Tes.) CO, y. BROS. GRAIN S.W.) (255 This, done, principle undisputed, agreement, a well-settled is presumed. in- is never to novation that tention there in the of the existing obligor debt us, support evidence offered before privilege, obligation discharged new say from which can we debtor both concurred must be clearly pur- appears that pose case, then, every point in creditor. accept- appellee arrangement parties their intend did the complete discharge mere as a rely extinguish entirely the old debt rights of its under the written contracts. keep they new, intend to or did on the up- accept merely conclude that neither the new alive old theory of inten- security, accord and this of an and satisfaction further circumstanc- all the theory must be decided from nor of a or substi- novated may,- intention es. of existence of say tuted contract can we trial *4 although course, there be found overruling appellant’s plea court*erred in agreement.” positive in the privilege. Judgment The below is af- 14, p. 371, author, in section The same firmed. says: Rehearing. On Motion for such as will a novation to constitute “In order Appellant -greater original vigor to with renews the debtor of the release the grain there should that contention his creditor that the written contracts agreed as be a new and valid contract involved are suit insufficient extinguishes parties, the assumed between the appellee’s effect to authorize suit in Tarrant obligation. Hence, existing contract or county. That the written contracts were unconditionally appear creditor that the must released 1830, 5 to article accepted and debtor Statutes, plain seemed we that did stead; par- person where the and in his third upon phase dwell of the casé in subsisting our on old ties count original opinion. But, discharge certainly deference to the not been novated. contemporaneous appellant, with debt must earnestness of the old counsel for we will ar- of an from the consummation and result rangement quotation add to the original opinion therefrom noted in our the new debtor.” with the contracts price per for a bushel “basis f. o. b. Tex. quotations * * * above author are c/p shipment terms destina by supported numerous author citations of weights By grades.” and destination notes, think the law as in the and we ities grade the terms of the contracts the of oats by supported your fully expressed is thus purchased “No. 3 or better” and “ex Conner, 50 See Overton own decisions. change inspection paid by and fees to be Gordon, 113; Ry. 80, 70 7 Co. v. Tex. Tex. shipper.” It seems evident 695; (Tex. v. Baird Fire Ins. Ass’n W. S. grades terms of the written contracts App.) 187 S. W. weights shipped and of the oats to be were stated, principles Applying féel we county, determinable Tarrant say court was in er- trial to unable ror partly performable contracts hence overruling appellant’s county, upon appellee and conferred under privilege now consideration. right 1830,' 5 article to to support plea fails to show of the evidence that at the time At,least sue court of the trial. we making parol distinguish'this are unable to cas any independent there was consid- original opinion, partic es cited our paid by appellant therefor. Át eration ularly Mayhall & from the case Scott promise most, mere was the there Lubbock Grain & Coal Co. 252 S. W. Com. part pay he would 10 on cited in the case of Patterson per given number of bushel .cents v. Smith Bros. Grain Com. undelivered, appellee’s bushels original opin noted in our agreements. to cancel ion. language alleg- parol contract as Counsel for makes this further is that— contention: agreement (on “In consideration holding “It seems ns Su- part appellant) cancel the aforesaid con- preme International Trav- case of purchase (for oats), defendant tracts Branun, elers’ Association v. Tex. 109 (appellant here) obligated bound 'and provision 212 W. S. is decisive alleged adjustment equal per amount to 10 cents for the county, Tex., of differences Tarrant is void oats contracted for.” attempt deprive venue other courts of contracts, upon and the cause of should tions.” implied, think, is to be we from the reversed and remanded instruc- very contract, ap- words pellant’s to cancel the written quotation contracts for the referred to The case oats was appellant pay It was held condition that decided Court. 10 per stipulation between an bushel for case that a for. in that oats contracted SOUTHWESTERN' REPORTER holder, policy promissory recover insurer its accident five notes January 11, 1921, dated insur venue in the exclusive n error, payable Antonio, Tex., in San against public residence, void as er’s error, being, one of said notes think, however, policy. We do not payable days, the sum of $500 in 30 us. ease controls the one before There remaining being four notes each of- for the sum contracting parties stipulation between the $1,287.50, payable 3, 6, -9, after months object specific in to take was direct and away its thereof, respectively, date at the- interest rights cent, the insured conferred per per rate of annum from 10- date cent, before us providing payment but the case venue for the of 10 ad- attorney’s particulars fees; have ditional as the contracts in material1 further mortgage object for the foreclosure aof chattel of these no reference venue. sheep, rams, goats on 668 head of .5 grain of to secure certain by plaintiff same were sold grades weights stipulated anlounts error, in error to and on 45 to 50 thereby, in Tarrant delivered supposed head of cattle bwned defend- relating» stipulations regardless ad error, ant in in such mort- described chattel justment differences, appellee had gage. given The notes sued on were right sue in the. latter as an goats. she.ep, rams, consequence. know no law only days indirect “The suit was instituted a few aft- right specifically er confers of mak of the execution' of *5 any mortgage and ing before of the notes became such as was declared -void due, plaintiff declaring due, in error them Legisla Supreme decision. The the ture, claiming that he was to exercise express 5 to article option to declare same due of .the reason ly recognizes performable Glascock, and, provi- fraud Alec agreed upon expressly de in counties as especially sions of the notes under that per such clares that where provision mortgage stipulating of the chattel county” “any particular formable keep failure said Glascock to ‘that may brought county,” “in any mortgage such or of the covenants option plaintiff To of said where his domicile. at cause all the defendant payable once, to become mature notes give the construction effect contended plaintiff pos- take and hold and entitle the Travelers’ for to the case of International property and the lien of said foreclose session Branun, 109 Tex. Association v. claiming thereon,’ Alec the ther plaintiff the said quotation, cited in that covenant Glascock breached destroy the and effect of would be to force mortgage fur- as follows: ‘As general d to the venue convey notes, hereby security said I consequence we intended cannot think was assign Classen 45 to 50' to said Walter and head ty, my Court. on ranch Blanco coun- of cattle now agree rehearing said Clas- Motion for will do covenant and I belong to me are in said cattle sen overruled. my possession, that there were no amounts any any mortgages or liens of due on same kind in any on them’ said cattle existence on 7010.) (No. CLASSEN v. GLASCOCK. —alleging breach consisted that said owner (Court Appeals Glascock was that the Civil of Texas. San An they cattle, 24, 1923.) and that were not free tonio. Oct. mortgage; reason thereof and Pleading <&wkey;2!4(I) demurrer admits plaintiff —General exercised covenant breach of said allegations. option due all of said notes declared January, 1921, general A payable demurrer admits 14th and and every allegation possession ,true peaceably therein contained. and holds took goats sheep, rams, accordance of said .the date notes

notes conditions all terms and Court, County; District Bexar Error from mortgage. Terrell, Judge. B. Robt. W. general demurrer to sustained court “The (cid:127) against Alec Action Walter Classen plaintiff, petition, plaintiff’s to declin- Judgment defendant, judgment amend, and ing Glascock. plaintiff to the effect rendered against plaintiff brings Reversed take error. that the duly plaintiff defendant, which the all of manded. excepted. n McNeill, Antonio, Guinn & of San filed a cross- below the court “In plaintiff in error. $1,000, the amount the sum action of Davies, Antonio, plaintiff paid O. A: for defend- of San cash rams, goats. sheep, price ant in error. rendered court cross-action against plain- error favor COBBS, adopt plaintiff in J. We error’s $1,000, with interest sum of tiff in error follows: case as January, that all 12th of defendant, brought by title, right, Glascock, Alec claim “This is a suit error sheep Seventy-Thir.d be devested court of district Bexar error, Tex., and vested Him the defendant error to out of Digests Key-Numbered and Indexes see and KEY-NUMBER in topic otner cases same &wkey;>For