was a conflict in the evidence as to the, terms of the contract, and the jury resolved the conflict in favor of appellee. The third and fourth assignments of error also bear on the sufficiency of the evidence to sustain the verdict, and are overruled.

[2] There is no conflict between the finding in the first answer by the jury, to the effect that appellee, in consideration of the release of Gravis Bros. from a contract to purchase land, agreed to furnish money to restock the ranch with three and four year old steers, and a finding that there were also conditions as to the drouth breaking and the payment by appellants of a margin of $5 per head towards the purchase price of the cattle. Appellants alleged that the money was to be furnished to buy three and four year old steers after the drouth was broken. There was no such repugnancy or contradiction between the findings of the jury as to destroy the foundation for a judgment. The findings are easily reconcilable. The fifth and sixth assignments of error are overruled.

[3] It was not incumbent upon appellee, under the terms of the contract, to request or demand of appellants a payment of $5 a head on each steer purchased. It was their business to offer that sum as a condition precedent to receiving the money. It follows that it was utterly immaterial whether appellee requested the margin of $5 or not. However, Cannon swore that he did demand a margin, and appellants failed and refused to pay it. The seventh assignment is overruled.

[4] The eighth and ninth assignments of error are overruled. It is not followed by a statement showing what was contained in special issue No. 2, requested by appellants. We may infer that it was about some item of damages, and, if so, its rejection was immaterial, as the jury found that appellants were not entitled to any recovery.

[5] The tenth and eleventh assignments are without merit, and are overruled. The giving of the special charge could not possibly have injured appellant. It merely bore on profits as an item of damages, and as the jury found there was no breach of the contract by appellee, it could not have been material.

The judgment is affirmed.

HAMILTON COUNTY DEVELOPMENT CO.
et al. v. SULLIVAN et ux. (No. 6173.)
(Court of Civil Appeals of Texas. Austin.
March 3, 1920.)

1. Pleading

3. Acknowledgment 58 Petition held to
show notice of disqualification of notary.
An allegation in a petition to cancel an oil
lease that the officer who took the acknowledg-
ment was the agent of lessees and interested in
the lease was sufficient to show that lessees
were charged with notice of his disqualification,
and sufficient predicate for a finding of the
court against the lease.

4. Partnership ~219(1)—Judgment canceling
lease in firm's name may be against partner.

Where an oil lease was taken in the name of a company under which a partnership did business, and the petition to cancel alleged the name of the partnership and of each individual member, and prayed judgment against all, it was proper to render judgment against all defendants.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

Action by W. E. Sullivan and wife against the Hamilton County Development Company and others. Judgment for plaintiffs and defendants appeal. Affirmed.

H. E. Chesley, of Hamilton, for appellants. Arthur R. Eidson, of Hamilton, for appellees.

BRADY, J. Appellees, W. E. Sullivan and wife, sued appellants, Hamilton County Development Company and the individuals composing the partnership bearing that name, to cancel a certain oil and gas lease executed by them to the company.

The grounds for rescission and cancellation of the lease were: That the agents of the company fraudulently induced appellees to execute the instrument, upon the promise that it would drill a well within six months upon the leased premises, which was the homestead of appellees, and that this stipulation would be placed in the lease. That the lease was prepared by an agent of the company, and that appellees supposed the lease had been written according to the agree

433 (3)-Omission of allegation ment; it being alleged that appellees could

cured by finding.

Where the petition sought cancellation of an oil lease for fraud and failure of consideration with respect to the agreement to drill a well with

not read the instrument. It was also claimed that Mrs. Sullivan unwillingly signed the lease, and so told the agent of the company who took her acknowledgment. It was alleg

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(220 S.W.)

ed that, while the notary told Mr. Sullivan to leave the room after he had signed the instrument, he stood in plain view of his wife, and within hearing of all that was said by the notary and the wife. It was also pleaded that J. L. Lewis, who took the acknowledgment of both appellees, was interested in the company, in the lease and subject-matter of the same, and was not, under the law, authorized or qualified to take the acknowledgments. It was specifically alleged that plaintiffs relied upon defendant's promise, and that it was the sole consideration for the execution of the lease.

cellation of the lease was sought upon grounds of fraud and failure of consideration, especially in respect to the material fact of the agreement to drill a well within six months. While not expressly alleged, the failure to drill the well is an allegation deducible by fair implication from the express averments.

The petition was not fatally defective, but was, at most, objectionable as defectively stating the cause of action relied upon. In such state of the pleadings, the defects, if any, were cured by the findings of the court and the judgment. This case is referable to The defendant H. E. Chesley, one of the the principle announced and followed in the individual partners, filed a general demurrer, following decisions: Williams v. Warnell, 28 which was by the court overruled. The re-Tex. 612; Shirley v. Burns, 34 Tex. 645; maining partners and the company made de- Tinsley v. Peniman, 83 Tex. 56, 18 S. W. 718; fault. The court rendered judgment against Schuster v. Frendenthal, 74 Tex. 53, 11 S. Hamilton County Development Company, in W. 1051. the name of which the lease contract was taken, and also against each individual partner; they having been duly served with citation.

Upon the writ of inquiry, the court heard proof, and found that the partnership was composed as alleged, and that the lease was obtained through fraud, and was without consideration; also that the agreement as to drilling the well was made as alleged, and that, in event the drilling of the well was not begun within six months from the date of the lease, it was agreed that same should be null and void; that defendants did not begin the drilling of such well within six months, and had not commenced drilling operations at the date of the trial, nor made any preparations to do so; that the plaintiffs could not read, and did not know that the lease did not contain this provision or condition until after it was executed; that the land was the homestead of plaintiffs, and that the separate and privy acknowledgment of Mrs. Sullivan was not taken. The court concluded, as a matter of law, that plaintiffs were entitled to the relief asked, and rendered judgment as above indicated. There is no statement of facts in the record.

Opinion.

It is first claimed that the petition was fatally defective, and that it was error to overrule the general demurrer of appellant Chesley, and fundamental error to render judgment against the other appellants by default. This contention is based upon the familiar principle that the allegata and probata must correspond, and that the judgment of the trial court was without pleadings to support the same, or the findings made therein.

[1] A careful consideration of the petition discloses that it does not specifically aver that appellants failed to begin drilling operations within the six months agreed upon; but we think this averment is fairly inferable from the petition as a whole. The can

[2] The second point is that the findings and judgment of the court that the wife's separate acknowledgment was not taken are not supported by the pleadings, because the petition did not allege fraud or imposition in the taking of the acknowledgment. Aside from the fact that there is nothing in the record to show that the officer's certificate was in due form, or in fact that there was a certificate at all, the pleadings attack the alleged acknowledgment because it was not taken in the manner required by the statute as to the homestead of plaintiffs. This is not a case where the question of innocent purchaser arises, and is not thought to be ruled by the authorities invoked by appellants, requiring allegations of fraud before the officer's certificate may be impeached. The grounds alleged were sufficient to show that the separate acknowledgment of the wife was not taken as required by the law. De West v. Barthelow, 136 S. W. 86.

[3] Furthermore, it was expressly alleged that the officer who took the acknowledgment was the agent of appellants, and was interested in the company, in the lease, and the subject-matter thereof; therefore appellants were charged with notice of the alleged disqualification of the notary, and these averments were sufficient predicate for the finding of the court. Mortgage Co. v. Taylor, 173 S. W. 280.

[4] The remaining contention is that the court erred in rendering judgment against the appellants, because the suit was against the firm or partnership, and was not conducted in the names of the individual members. A sufficient reply would seem to be that the lease contract was taken in the name of the company, and the plaintiffs in their petition alleged the name of the partnership, and of each individual member, and prayed judgment against all the defendants. The suit was against the partnership and the individuals composing it, and the judgment was rendered accordingly. This was the proper

Believing that no reversible error has been Tex., on the 5th day of April, 1919, Johnny shown, the judgment is affirmed.

The ordinary rules of procedure in civil actions do not apply to election contests, so that the sufficiency of the written statement of contest is not to be determined by rules applica-pared the written statement of their contest ble to the petition in a civil cause.

There is no misjoinder of causes of action, nor of parties, where, in proceedings to contest an election of two school trustees, two defeated candidates are contestants against the two successful ones; all parties interested adverse-ty, Texas, at the present term thereof, to be ly to the contestees being proper parties plain

John M. Colney, of Beaumont, for appellees. at 10 o'clock a. m. and executed the 11th day

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

(220 S.W.)

of April, A. D. 1919, by delivering to Bill Ken- | writing of their intention to contest the elecnison, Junius Landry, the within-named defend- tion, and also deliver to them a written stateants, each, in person, a true copy of this writ, ment of the grounds of such contest. Contogether with certified copy of plaintiffs' peti-struing this article, in Dunne v. Sayers, 173 tion accompanying the same." S. W. 503, Chief Justice Pleasants said:

This written statement, which is designated in the notice and sheriff's return as a petition, contained all the requisites of a petition in a civil cause except the names of the contestees. The opening paragraph of the petition, when filed with the clerk, read:

"Your petitioners, Johnny Du Plantis and Oscar Cunniff, hereinafter styled contestants, complaining of hereinafter styled contestees."

"Article 3051 of Vernon's Sayles' Statutes, which provides that a written notice of the contest of the election and a written statement of the grounds upon which the contestant relies shall be served upon the contestee within 30 days after the return day of the election, does not prescribe the form of the written statement; the only requirement being that said statement must show the grounds upon which the contest is based."

Article 1827, Vernon's Sayles' Civil Stat

The original petition, however, contained utes, prescribing the requisites of plaintiff's the following style, to wit:

"Johnny Du Plantis et al. v. Bill Kennison et al. No. 14869. Pending in the District Court of Jefferson County"

-and the following indorsements, to wit:

petition, is not referred to in the chapter on contested elections.

After the filing with the district clerk, as provided in article 3055, of the notice, statement, and return, no provision is made for any additional notice to the contestees. As there is no statutory requirement for the issuance of a citation by the clerk of the dis

"No. 14869. Johnny Du Plantis et al. v. Bill Kennison et al. Contestants' Original Petition. Filed April 9, A. D. 1919. B. T. Pip-trict court, then it would be an injustice to

kin, District Clerk."

appellants to apply against them the strict rules construing citations. Construing the written statement and notice together, contestees were fully advised of all facts necessary in order to prepare their defense. To warrant a trial court in sustaining a motion of the character filed in this cause, it must affirmatively appear that the notice and written statement are so defective that injury has been done to contestees. As the only complaint made by contestees is the omission of their names from the written statement, it affirmatively appears that they have not been injured by the ruling of the court, and as no statutory requirement was violated this ruling shows no error.

When the case was called for trial on the 16th, contestees filed a motion to quash and hold for naught the citation, service, and notice in this cause served upon them. This motion contained five grounds of complaint, but the substance of all of them was the omission of the names of contestees from the petition. This motion was overruled, and contestants were permitted to amend their statement by inserting therein the names of the contestees. Thus, on suggestion of contestants, the case was reset for trial on the 23d of April. On this date all the parties appeared, the cause was submitted to the court without a jury, and he entered judgment declaring the election null and void, [3] 2. Contestees' plea to the jurisdiction and directing that a new election be held. of the court was based on the fact that the From this judgment appellants have brought suit was filed in court before notice was given the case to this court, assigning three errors: by contestants of their intention to contest (1) Because the court overruled their motion the election. This proposition has been dito quash the citation, service and notice rectly decided against this contention in served upon them; (2) because the court Dunne v. Sayres, supra, and Messer et al. v. erred in overruling their plea to the juris-Cross et al., 26 Tex. Civ. App. 34, 63 S. W. 169. diction of the court; and (3) because the [4] 3. There was neither a misjoinder of court erred in overruling their motion to dismiss the suit because of the misjoinder of actions and misjoinder of parties plaintiff. [1, 2] This proceeding-that is, the trial of an election contest-is not a "cause in the sense that the ordinary rules of procedure in civil actions are to be applied." Hammond v. Ash, 103 Tex. 503, 131 S. W. 539. Hence, in determining the sufficiency of the written statement, we cannot construe the same by the rules applied to an ordinary petition in a civil cause. All that is required by the statute (article 3051) is that the contestants give to the contestees a notice in

causes of action nor a misjoinder of parties in this cause. This was not a suit for office, but was a proceeding to contest, the result of an election. All parties interested adversely to the contestees were proper parties plaintiff herein.

Finding no error in this record, the judgment of the trial court is in all things affirmed.

HIGHTOWER, C. J. I agree with Justice WALKER that no error prejudicial to the appellants is shown, and that therefore the judgment should be affirmed.

POWERS v. SCHUBERT. (No. 6333.)

(Court of Civil Appeals of Texas. San Antonio. March 17, 1920.)

Where plaintiff engaged defendant to clear land, arranging that orders of defendant for merchandise should be honored and after learn1. Limitation of actions 187-Where de- ing that the work had stopped plaintiff several fendant urges limitations plaintiff must set times wrote defendant for settlement, and deup facts showing statute not applicable. fendant did not by any fraud prevent plaintiff Where defendant by exception and plea from ascertaining the amount of land cleared, urged limitations, it was incumbent upon plain-held that, where plaintiff used no diligence to tiff to file an amended petition or replication setting up such facts as he depended on to show that the cause of action should be considered for purpose of limitation as having accrued at a time within two years preceding the filing of the suit.

2. Limitation of actions 95(1)-Cause of action for agent's misappropriation accrues at the time of the wrongful act.

A cause of action for negligence by or for misappropriation by an agent accrues at the time of the wrongful act, and the statute commences to run at that time, and not at the time of ascertaining damages.

3. Limitation of actions 50 (2)-Cause of action against agent accrued when settlement should have been made.

Where plaintiff, who had engaged an agent to clear land under an arrangement that the agent should give orders for merchandise, sought to recover from the agent, on the theory that the orders exceeded the compensation agreed, the cause of action, whether deemed one arising out of misappropriation by an agent or an implied promise, accrued at the time the agent should have made settlement.

4. Limitation of actions 28(1)—That plaintiff allowed defendant engaged to clear land to give written orders on merchants did not render two-year statute applicable.

mer

Where plaintiff allowed defendant, whom he had engaged to clear land, to give written orders on merchants for merchandise, the fact that defendant gave written orders on chants for part of the money and goods received does not render the two-year statute inapplicable, on the theory that the contract was one in writing.

5. Limitation of actions 150(4)-Letter by defendant's agent held not acknowledgment of plaintiff's claim.

Where defendant, who had cleared land for plaintiff, demanded an additional sum, and the demand, which was written by defendant's agent, adverted to plaintiff's claim, which was supposed to be a small one, and the letter showed that defendant did not know the amount of plaintiff's claim there was no acknowledgment of plaintiff's claim so as to take the same out of the limitation statute.

6. Appeal and error 1071 (5)—Correct judgment should not be reversed because of immaterial finding.

Where the judgment was correct, it should not be disturbed because of findings of immaterial issues.

discover his claim which arose out of the fact that the orders for merchandise exceeded the value of the clearing, plaintiff cannot escape the running of limitations.

Appeal from Guadalupe County Court; J. B. Williams, Judge.

Action by W. R. Powers against Albert H. Schubert. From a judgment for defendant, plaintiff appeals. Affirmed.

Wurzbach & Wirtz, of Seguin, for appel

lant.

Greenwood & Short, of Seguin, for appel

lee.

MOURSUND, J. Appellant, Powers, on June 2, 1919, sued appellee to recover $292.70 and $86. The claim for $292.70 was based upon the following allegations: That on or about March 16, 1916, plaintiff and defendant entered into a contract to the effect that defendant would superintend the clearing of certain land for plaintiff, and would draw on certain merchants on plaintiff's account for cash and merchandise, and would be liable to plaintiff for any amounts above those which should accrue under the contract; that defendant between March 31, 1916, and about August 7, 1916, drew $292.72 more than accrued for his services and the payments made to laborers and other expenses. The details were fully stated, but need not be. mentioned here. Plaintiff alleged that said sum was converted to defendant's use or

negligently paid out by him. The item of $86 was alleged to be due for pasturage.

The defendant's answer consisted of a general demurrer, special exceptions, a general denial, a special answer stating the facts as he contended them to be, and alleging that plaintiff still owed him $180, and a cross-action for said sum of $180.

Plaintiff's first supplemental petition contained various exceptions to the answer and cross-action, a general denial, and a special answer to defendant's allegations.

The defendant in his first supplemental answer specially excepted to plaintiff's petition on the ground that it appeared therefrom that plaintiff's cause of action accrued more than two years before the commencement of the suit, and was therefore barred by the two-year statute of limitation. also pleaded such statute, and specially de

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He