also certain lots described by merely giving the lot and block number and price, was too indefinite in describing the land to permit specific performance. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 69-82; Dec. Dig. § 29.*] Appeal from District Court, Bosque County; O. L. Lockett, Judge. Action by Sam Rosen against M. Phelps. From a judgment for defendant, plaintiff appeals. Affirmed. the first part is not satisfied with said land, then this agreement shall be null and void and not binding. "[Signed] Sam Rosen. "M. Phelps. "Witness: G. H. Williams." [1] When offered in evidence the contract was excluded on the ground that it was in violation of the statute of frauds; "there being no description of the property and land attempted to be described in the plaintiff's C. M. Templeton, of Ft. Worth, for appel-petition." The statute referred to (Rev. St. lant. S. C. Padelford, of Cleburne, and Cure- 1911, art. 3965) requires contracts for the ton & Cureton, of Meridian, for appellee. sale or exchange of lands to be in writing; and, as said by this court in the case of Cusenbary v. Latimer, 28 Tex. Civ. App. 217, CONNER, C. J. Appellant sought a specific performance of the following written contract: "The State of Texas, County of Tarrant. "This agreement entered into by and between Sam Rosen of the county of Tarrant, state of Texas, hereinafter known as party of the first part, and M. Phelps, of Bosque county, Texas, hereinafter designated as party of the second part, Witnesseth: "Party of the second part agrees to convey to party of the first part, clear of all incumbrances a certain three thousand acres in Bosque county, Texas. Said party of the second part is to furnish abstract showing perfect title to said land. "In consideration of which party of the first part agrees to convey by warranty deed to party of the second part, the following parcels, to wit: 67 S. W. 187: "No rule seems better settled than that before a court of equity will decree the specific performance of a contract for the sale of land, the written agreement required by the statute must contain the essential terms of a contract expressed with such certainty that it may be understood without recourse to parol evidence to show the intention of the parties, and that no part of such contract is more essential than that which identifies the subject-matter of the agreement" (citing Jones v. Carver, 59 Tex. 295; Patton v. Rucker, 29 Tex. 402; Mitchell v. Ireland, 54 Tex. 301; Mathews v. Jarrett, 20 W. Va. 415; Hollenbeck v. Prior, 5 Dak. 298, 40 N. W. 349; Strang v. Railway [C. C.] 93 Fed. 72; 2 Dev. on Deeds, § 1010). [2] It seems manifest that the contract under consideration within itself fails to $2,200 00 give any such description of the lands there2,200 00 in referred to as is sufficient to identify 2,200 00 them with reasonable certainty, and thus 2,200 00 2,200 00 enable a court of equity to decree title in 2,200 00 the plaintiff to the lands described in his 1,200 00 petition, or to any definite or certain tract of 1,250 00 '800 00 land in Bosque county aggregating 3,000 3,000 00 acres, or in turn to vest in the defendant 800 00 lots and blocks in any specified city or oth2,000 00 '800 00 er locality of Tarrant county. The con3,200 00 tract is that appellee will convey "a certain 750 00 three thousand acres in Bosque county, Tex1,600 00 as," without designating the owner, any par3,200 00 '800 00 ticular locality, landmark, natural object, or 3,400 00 other thing that fixes location, and makes 2,900 00 no reference to any other writing by which 800 00 the land can be identified. It is likewise so 1,200 00 3,200 00 of the lots and blocks appellant was to convey to appeilee. Appellant insists, however, that the description in the contract may be aided by the circumstances alleged in his petition. Briefly stated, plaintiff alleged that the lots and blocks referred to in the contract were lots and blocks in the Rosen Heights addition to the city of North Ft. Worth; that prior to the execution of the contract plaintiff and defendant went upon the ground and marked and checked off upon the plat of said addition the lots and blocks specified in the contract, and that the lots $43,900 00 "All of said parcels to be clear of incumbrances. "It is agreed and understood that the party of the second part is entitled to 1912 crop and also to the use of the pasture to December 31, 1912. "It is expressly agreed and understood, that this agreement is subject to the examination of the land by the party of the first part. In the event that said party of no so marked and checked and described in the | described, and the contract furnishes contract were the specific ones to be ex- means by which said land can be identified changed for defendant's 3,000 acres of land with reasonable certainty." This case apin Bosque county; that the 3,000 acres of pears to be decisive of the case before us, land referred to in the contract were 3,000 and is easily distinguishable from those cited acres of land near the town of Morgan in in behalf of appellant, such as Macmanus v. Bosque county owned by the defendant; that Orkney, 91 Tex. 27, 40 S. W. 715; Eustis v. after the execution of the contract they had City of Henrietta, 90 Tex. 468, 39 S. W. 567; been inspected by the plaintiff and accepted; Hermann v. Likens, 90 Tex. 448, 39 S. W. that at the time of or prior to the execution 282; Pierson v. Sanger Bros., 93 Tex. 160, of the contract the agent of defendant had 53 S. W. 1012, and other cases. We think it delivered to the plaintiff a printed circular will be found that in these cases the contract particularly describing the situation of de- itself furnished some means by which the fendant's land, its divisions into pastures, land could be identified, but not so as already the number of houses, barns, lots, windmills, stated in the case before us. It is true apand number of acres in cultivation, etc., and pellant alleges that a printed circular was exit was alleged that the land so described inhibited by an agent of appellees, which would said circular was the identical land exhibited to plaintiff by the defendant at the time of the inspection referred to and described in the petition; that said 3,000 acres were the only 3,000 acres owned by the defendant in Bosque county; that both plaintiff and defendant well knew the particular property each contracted to convey to the other; that no other property was in the contemplation of the parties or considered by them. We are of the opinion, however, that the contract under consideration cannot be so enlarged. In this respect we are unable to distinguish the case from that of Penn v. Texas Yellow Pine Lbr. Co., 35 Tex. Civ. App. 181, 79 S. W. 842, by the Court of Civil Appeals for the First District, in which a writ of error was refused. The contract in that case was to convey "6,100 acres under consideration in Tyler county." It was alleged that the 6,100 acres under consideration were mutually understood between the parties to be the land particularly described in the petition, the title to which stood in the name of the defendant, and were the only lands ever considered by the parties in the negotiations; that the lands under consideration had been designated upon a map of Tyler county in each instance, stating the original survey; the number of acres owned therein by the defendant which it was desired to sell to the plaintiff, its location in said survey, each tract being pointed out separately and particularly; that prior to the execution of the contract the defendant had furnished the plaintiff a written statement, giving the name of each survey, and the number of acres in each survey, which the defendant desired to sell and the plaintiff wished to purchase, and that in each instance and on every occasion defendant designated to the plaintiff the identical lands described in the petition and none other; that after the making of the contract the defendant had furnished the plaintiff abstracts of title of the particular lands described in the petition, etc. But the court sustained exceptions to these allegations, stating that: "We think the description of the land contained in the contract is wholly insuf be sufficient; but, as will be observed, the contract under consideration makes no reference whatever to such printed circular. Appellee cites numerous cases that we think fully support the conclusion indicated by us. Among others is the case of O'Donnell v. Leeman, 43 Me. 158, 69 Am. Dec. 54, where it is held that no action can be maintained on a memorandum of an auctioneer of the sale of real estate unless it tells, or by reference to some other paper it contains the whole agreement, and the handbills and newspaper notices published at the time of the sale are not admissible; the contract containing no reference to them. Again in the case of Boydell v. Drummon, 11 East, 142–160, it was held that one could not refer to printed prospectuses which contained the terms of the contract, and which were delivered at the time of the making of the contract, in order to aid it, when the same was not referred to or in any way made a part of the contract. In brief, the authorities establish the rule that for a contract to be sufficient within the statute of frauds it must describe, or furnish the means of describing, with reasonable certainty the land constituting the subject-matter of the contract, so that it may be identified without resort to matters purely in parol. See Jones v. Carver, 59 Tex. 295; Johnson v. Granger, 51 Tex. 44; Cusenbary v. Latimer, 28 Tex. Civ. App. 217, 67 S. W. 187; Norris v. Hunt, 51 Tex. 615; Zanderson v. Sullivan, 91 Tex. 503, 44 S. W. 484; Johnson v. Fecht, 94 Mo. App. 605, 68 S. W. 620; Price v. Hays, 144 Ky. 535, 139 S. W. 810; Baldwin v. Kerlin, 46 Ind. 426; Miller v. Campbell, 52 Ind. 125; Taney v. Bachtell, 9 Gill (Md.) 205; Taylor v. Allen, 40 Minn. 433, 42 N. W. 292; Ives v. Armstrong, 5 R. I. 567; Hamilton v. Harvey, 121 Ill. 469, 13 N. E. 210, 2 Am. St. Rep. 118; Craig v. Zelin, 137 Cal. 105, 69 Pac. 853; Sherer v. Trowbridge, 135 Mass. 500; Palmer v. Albee, 50 Iowa, 429; King v. Ruckman, 20 N. J. Eq. 316-360; Wortham v. Stith (Ky.) 66 S. W. 390; Mason v. Small, 130 Mo. App. 249, 109 S. W. 822; Regan v. Milby, 21 Tex. Civ. App. 21, 50 S. W. 587. Tex.) GOODWIN v. WESTERN UNION TELEGRAPH CO. cluded the contract, or at least that its exclusion was harmless; and the judgment is affirmed. GOODWIN v. WESTERN UNION TELE- (Court of Civil Appeals of Texas. Ft. Worth. 1. TELEGRAPHS AND TELEPHONES (§ 66*) DENCE. Evidence in an action against a telegraph company for damages for delay in transmitting a telegraphic draft to plaintiff's mother, at whose home plaintiff's wife was ill, held to sustain a finding of negligence in delaying transmission, and of the fact that the company knew of the necessity of plaintiff's wife having money quickly. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. $66.*] 2. TELEGRAPHS AND TELEPHONES (8 66*)MESSAGES-ACTIONS-SUFFICIENCY OF EVI DENCE. Evidence in an action for delay in transmitting a telegraphic draft to the mother of plaintiff's wife, at whose home his wife was ill, held to sustain a finding that mental suffering would naturally and probably result from her disappointment in failing to receive plaintiff's remit tance. (Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*] 3. TELEGRAPHS AND TELEPHONES (§ 38*)DAMAGES. Will pay your draft thirty dollars." Miss. This message was, on the day of its date, delivered to the agent of the Western Union Telegraph Company at its office in Abilene for transmission, and at the time plaintiff delivered it he told the agent that his wife was dangerously ill in Meridian, and needed the money, and that the money was being sent to Mrs. M. E. Backus for her benefit, also informing the agent that Mrs. Backus was his wife's mother. This message was not delivered to the addressee until September 14th or 15th; the delay being caused by the fact that by mistake the agent at Abilene filed it among papers pertaining to business already disposed of, and on account of this mistake it was overlooked. dates September 7th and 14th two other messages were sent to the plaintiff by his wife, inquiring why he had not sent her the monUpon receipt of both of ey as requested. these inquiries, plaintiff went to the telegraph office in Abilene, and was there told that the message had been sent. During the same period repeated inquiries were also made at the telegraph office in Meridian; the response to which inquiries being that no such message had been received there. As soon as the message was received, the money was promptly collected upon a draft drawn by Mrs. Backus upon the sender, and the funds thus realized were turned over to Mrs. Goodwin. Between the G. H. Goodwin instituted this suit against A telegraph company should have reasonably anticipated mental suffering by plaintiff's the telegraph company, alleging the forewife from delay in delivering a telegraphic draft going facts in substance, basing thereon a to her, where the company was informed when charge of negligence on the part of the dethe message was sent that she was ill, and need-fendant in delaying the transmission and de ed the money. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*] livery of the message, and alleging, further, that for lack of funds his wife was deprived of proper medical attention and supplies, and Appeal from District Court, Taylor Coun- suffered additional physical pain by reason ty; Thomas L. Blanton, Judge. Action by G. H. Goodwin against the WestFrom a ern Union Telegraph Company. judgment for defendant, plaintiff appeals. Reversed and remanded. Scarborough & Hickman, R. W. Haynie, and C. G. Whitten, all of Abilene, for appellant. J. M. Wagstaff, of Abilene, for appel lee. thereof, that she also suffered mental worry on account of her failure to receive the money, and that in her delicate condition her mental worry further accentuated her physical pain, for all of which suffering plaintiff claimed damages. The trial was before a jury, who returned a verdict in favor of the struction from the court, and, from a judgdefendant in obedience to a peremptory inment rendered in conformity with this verdict, the plaintiff has appealed. [1] The only assignment presented is to the peremptory instruction given by the court. DUNKLIN, J. While G. H. Goodwin and wife were residing in Abilene, Tex., Mrs. Goodwin visited her mother, Mrs. M. E. BackClearly the facts recited above were us, whose home was in Meridian, Miss. During this visit Mrs. Goodwin became ill, and, sufficient to support a finding of negligence being without money, had her mother to by the defendant in delaying the transmiswire her husband that she was ill, and re- sion and delivery of the telegram, and that questing him to send her $25 by telegraph defendant was notified of the straitened cirat once. This message was received by the cumstances of plaintiff's wife at the time the plaintiff on September 6, 1911. On Septem- telegram was sent and of her necessities reber 7th the Farmers' & Merchants' National quiring the money. Notice of those facts was Bank at Abilene, at plaintiff's instance, wir- also notice to the defendant of all such sufed Mrs. M. E. Backus as follows: "Septem-fering which Mrs. Goodwin sustained which ber 7th, 1911. Mrs. M. E. Backus, Meridian, were the natural and probable consequences of a negligent failure to transmit and de- [ * [2, 3] We do not think it can be said that even the mental suffering of Mrs. Goodwin, which the testimony tended to prove, was the result of morbid sensitiveness on her part. We are of the opinion rather that the jury would have been warranted in finding that in her physical condition such mental suffering was the natural and probable result of her disappointment in failing to receive the remittance which her husband sent, and that the defendant, who, according to the testimony of the plaintiff, was informed of the fact that she was ill and in need of the remittance, ought reasonably to have anticipated mental suffering of that character as a consequence of its failure to transmit and deliver the message with reasonable dispatch. Appellee also cited Tel. Co. v. McNairy, 34 Tex. Civ. App. 389, 78 S. W. 969, by this court, Gooch v. W. U. Tel. Co., 90 S. W. 587, by the Court of Appeals of Kentucky, and Tel. Co. v. Linn, 87 Tex. 7, 26 S. W. 491, 47 Am. St. Rep. 58; but we think none of these cases last cited is in point, for it is quite evident that the damages claimed in those suits were too remote, and could not have been within the contempla tion of the telegraph company at the time the respective messages were received for transmission. For the reasons noted, the judgment is reversed, and the cause remanded. SECURITY TRUST & LIFE INS. CO. v. Oct. 11, 1913.) Amarillo. The appellee has cited the case of De Voegler v. West. U. Tel. Co., 10 Tex. Civ. (Court of Civil Appeals of Texas. App. 229, 30 S. W. 1107, in which it was held that an inexperenced youth in a strange city could not recover damages for mental worry and disappointment caused by a delay in receiving funds which he had requested of his mother by wire, and which his mother had in fact sent him; such failure to receive the money being caused by a negligent delay of the telegraph company in delivering the message sent by his mother. The facts alleged show that the boy was a guest at a hotel, where he was well cared for. The 1. COURTS (§ 57*)-COURSE AND CONDUCT OF TRIAL-APPOINTMENT OF STENOGRAPHER"OFFICIAL COURT STENOGRAPHER.' mental anguish and distress suffered by the youth consisted in feeling that he was looked upon with suspicion, although there was no allegation in the petition that the proprietor of the hotel was aware of the fact that he was without money with which to pay his board. In deciding that case in favor of the telegraph company, the Court of Civil Appeals used the following language: "It could not have been within the reasonable contemplation of the parties that appellant was so morbidly sensitive as to suffer great mental anguish and fear of being looked upon with suspicion for the simple reason that he did not receive a remittance of money promptly." A stenographer sworn to take the testimony in a cause in the county court but not in the manner prescribed by statute for an official court stenographer, which is more enlarged and broader in scope than the oath administered, is not an official court stenographer within the statutes relating to official court stenographers. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 198-200; Dec. Dig. § 57.* For other definitions, see Words and Phrases, vol. 6, p. 4954.] 2. COURTS (§ 57*)-COURSE AND CONDUCT OF TRIAL APPOINTMENT OF STENOGRAPHER. Under the statutes an official court stenographer is to be appointed by the judge of the civil action and hence the appointment of an county court upon demand of either party in a official stenographer is a judicial act, manifested by the judge before rendition of judgment. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 198-200; Dec. Dig. § 57.*] SUMPTIONS-FACTS NOT SHOWN BY RECORD. Where the record is silent as to the appointment of an official court stenographer, the presumption on appeal is that none was asked for or appointed. Error, Cent. Dig. §§ 2899, 2911-2015, 2916, [Ed. Note.-For other cases, see Appeal and 3673, 3674, 3676, 3678; Dec. Dig. § 907.*] DAVITS. 4. APPEAL AND ERROR ($ 715*)-RECORD- | ticle 1924 of the Revised Statutes of 1911. QUESTIONS PRESENTED FOR REVIEW-AFFI- (3) Because there is no duplicate of said statement of facts on file in said cause in said trial court, and the time for making and filing the same has passed." In passing upon matters antecedent to the judgment the Courts of Civil Appeals are confined to the record as made by the trial court, except as to matters affecting the jurisdiction of the Court of Civil Appeals, and, where the record is silent as to the appointment of an official court stenographer, the question cannot be raised by affidavits, as it does not affect the jurisdiction. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2964, 2965, 3273; Dec. Dig. § 715.*] 5. APPEAL AND ERROR (655*)-RECORD- [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. 8 655.*] 6. APPEAL AND_ERROR_ (§ 572*)-RECORDSTATEMENT OF FACTS-FILING DUPLICATE IN TRIAL COURT. Where no official county court stenographer is appointed, and the statement of facts is prepared by the litigants, the statutes do not require that a duplicate copy thereof shall be filed in the office of the county clerk. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2554; Dec. Dig. § 572.*] Appeal from Wilbarger County Court; J. B. Copeland, Judge. Action between the Security Trust & Life Insurance Company and R. T. Stuart. From a judgment for the said Stuart, the said company appeals. On appellee's motion to strike the appellant's statement of facts from the record. Overruled. Cecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee. Accompanying appellee's motion is the supporting affidavit of the clerk of the county court, that a stenographer was sworn to "take the testimony" in the cause, and the further statement that said stenographer did not transcribe the testimony in the form of questions and answers, and did not make a transcript of the same, nor file a duplicate in his office, and that a statement of facts in duplicate was never filed with the record in said cause, nor is there any statement of facts, original or duplicate, on file in his said office. [1] The appellant, in resisting this motion, offers the affidavit of the same clerk, which is to the effect that the person appointed as, stenographer in said cause was only sworn to take the testimony correctly, and other Controverting affidavits in the nature of conclusions that the stenographer who took the testimony in the trial of the case was not an official stenographer under the law providing for the appointment of such officers. The act of 1911, with reference to the appointment of official court stenographers, and prescribing their qualifications and duties applicable to causes litigated in the county court, prescribes that, whenever either party in a civil case pending in the county court shall apply therefor, the judge of the court shall appoint a competent stenographer to report the oral testimony in such case, and who shall take the oath prescribed for the qualification of the official court stenographer appointed by the district court. The article of the law with reference to the appointment of court stenographers in the county court also recites that all provisions of law governing statements of facts and bills of exception to be filed in district courts, and the use of same on appeal, shall apply to civil cases tried in the county courts. In the examination of this question and the decision of same, if we deemed the ex parte affidavits, submitted by both parties, were appropriate for the cognizance of this court, for the disposition of the questions raised, we would be forced to conclude as a fact that the ste HENDRICKS, J. Motion to strike statement of facts from the record. The appellee in this cause requests the suppression of the statement of facts in this cause, upon the following grounds: "(1) Because the law has not been complied with in the preparation and filing of said statement of facts, in that the stenographer who took the testimony on the trial of said case did not transcribe said testimony in the form of questions and an-nographer who performed the service of takswers, and made no transcript of such tes- ing the testimony in the trial of this case timony certifying that it was true and cor- was not an official court stenographer, for rect, and did not file any such transcript in the reason that the oath administered was duplicate in said cause in the county court not the proper oath prescribed by that secof Wilbarger county, Tex., in which court tion of the statute providing for the appointthe case was tried, as is required by article ment of county court stenographer; the oath 1924 of the Revised Statutes of Texas of required being the one prescribed for district 1911. (2) Because the law has not been com- court official stenographers, which is more plied with in the preparation and filing of enlarged and broader in its scope than the said statement of facts, in that the state- one which we would conclude from this recment of facts was not made or filed in dupli- ord was administered to the stenographer cate in the trial court, as required by ar- in this cause. |