
    McMullen v. Kelso, Ex’r of Gray.
    "Where there is no statement of facts or bill of exceptions, the giving or refusal of instructions to the jury can form no ground for the reversal of the judgment.
    Where a contract is divisible, and the entire performance of it is prevented by the- death of one of the parties, an apportionment should be allowed. (Note 51.)
    In a suit on a title bond for specific performance, or, in case of disability to make title, then for damages, the jury found for Í he plaintiff one-fourth of the value of the league of land in question, valued at one dollar per acre.:” Held, That it was proper to enter judgment in favor of the plaint iff for the amount of money to which one quarter of a league of land would come at one dollar per acre.
    Error from Bexar!
    
      noward, for plaintiff in error.
    
      Webb and Neill, for defendant in error.
   Hemphill, Cir. .J.

This action was brought for the specific performance of a bond to make I ¡l ift to one league of hind, or for compensation in the event that the defendant laid in any maimer precluded himself from making a full and perfect tille. The defendant pleaded that the bond was obtained by fraudulent representations; that (lie. eonsideration was professional services, which-were never reno ->vd ; that he had previously employed George IV. Lewis to prosecute the suit in which the testator was to have rendered his services; that lie liad executed a i ¡tie bond to the said Lewis for another league of land; that lie. Lewis, aflerv.rrd became paralytic and liad never rendered any or but little service to the defendant; that by tiie artful representations of the, tosta'tor lie. was induced to transfer by deed the said league of land to Lewis, in 'order, as he liad been induced to believe, that the said Lewis might be enabled lo convey the land to (he testator for the purpose of securing liis professional services' to the final termination of the suit. He further alieges that shortly after said conveyance the testator assured him that he was tlie'partucr of Cornelius Van Ness, a lawyer of acknowledged ability, and to secure his services it would he neecssary to assign to him, the testator, a league, of laud ; that tiie said Van Mess was not engaged by said Gray as assistant counsel in behalf of the defendant. but was retained by tiie adverse party in tin» said suit, and that be was induced by I lie false and fraudulent, representations of t.lie testator to make the. bond deseiibed in the plaintiff's petition; that l lie first league was received by Gray in remuneralion for his services; that lie is not. aware of any having ever been rendered by said Gray, etc.; and that it would be inequitable to make him liable, in tiie, premises. In an amended answer lie alleges that the. services of both Lewis and Gray were not wort.li moro than one hundred dollars; that the league, conveyed .to Lewis, and from him to Gray, is worth five or six thousand dollars; that Gray had full notice of the consideration and condition of the said con tract and deed of conveyance. Tiie defendant avers (.hat, the said Lewis and Gray having failed to comply on their part, lie is not bound to pay anything, and at ail events not more, than their ser, ices are reasonably worth in money, or such part of tiie land as would be a reasonable compensation for the. services^ actually rendered. Tiie defendant prays for a rescission of his contract with'both Lewis and Gray, that tile answer may be taken as a cross petition, etc.

Tiie cause being submitted to a. jury, they found for the plaintiff one-fourth of tiie value of tiie league of land in question, valued at one dollar per acre.

There, is no statement of farts or bill of exceptions. Several instructions were asked by the plaintiff, all of which were refused except one to tiie effect that if they believed from tiie testimony that there was a conditional contract divisible to perform services, and tlmt those services were partially performed, they should in that case find a verdict for their value.

Noth fit.—Hutchins v. Wade, 20 T., 7; Bart v. Alford, 22 T., 399; Fulgham v. Bendy, 23 T., 64; Hodges v. Longcope, 23 T., 153; Thompson v. Callison, 27 T., 438; Anding v. Perkins, 29 T., 348; Davis v. Calhoun. 41 T., 554. To reverse a judgment, in ttie absence of a statement on account of error in excluding evi 'onoe apparent from a bill of exceptions, it must appear not only that tlm court litcl erred, but that such error must with reasonable certainty have produced a sub-si an tint injury to the party or his cause. (Galbreath v. Templeton, 20 T., 45; McCarty v. Wood, 42 T., 38.)

Whether this instruction was applicable to tlie facts elicited by the evidence cannot be determined, as they have not been sent up with"the record. There may have been a condition that if tlie services were partially performed, a proportional payment should be made. If that were tlie case, tlie instruction would be literally correct; but if not, the question of tlie divisibility of the contract would be one of law, to bo determined by the court, and not the jury. That the contract was divisible under the circumstances there can be but little doubt. When tlie act of God, such as the death of the testator, for instance, prevent-; the entire performance of the contract, it should not operate to tlie piv.hiiliro of either party, and an apportionment should bo allowed. (4 McC. R., 246, 247; 2 Bail. R., 421, 488.) It would be fruitless labor, however, to imagine , ir-umstanees and facts under which the instruction would be correct, or the reverse.

There be in." no facts sent up with the record, it will be unnecessary to examine further the above iur-; motion or the one which was asked by the defendant and refused. They stand upon the record as abstract propositions; and whether the giving the one or refusal of the other operated injuriously to tlie defendant cannot be ascertained from the record, and can form no ground for revision or reversal of the judgment. (Holman v. Britton, 2 Tex. R., 297; State v. Chandler, 2 Tex. R., 305.)

After verdii-í a motion was made by l he defendant that judgment be entered for one-l'cci,1! li of a league of land, or the, value thereof, assessed by'the verdict; and the <1- úmc! uu, tendered a conveyance and offered to show to the. court .that lie was :(!.!■> to convey tlie same, the title to the same being still vested in 1he defundu in ■; fully as at the time, said bond was executed. The motion was overruled, and 1 his is assigned for error.

Had the jury found that the petitioner was entitled to onerfourth of a league of land, or its value, the motion would liave been proper and would liave doubtless been sustained. But .the verdict, is not in tlie alternative. They ibid the value of tlie land, and on this a judgment for money alone could lie rendered. Tlie petition prays for compensation if the defendant lias disabled himself from maldng title; and the defendant, in answer, oilers to pay either money or land for t he value of the services actually rendered. There may liave been suiH.-ieut evidence to induce the belief that the defendant had precluded himself iro n ei.-hing title; or from the tender of tlie defendant to perform in tlie alternei'' 'tic jury may liave supposed cither mode of payment to lie equally e.onve; !>-• ;. and therefore found in one only.

If tlie jury were :,j ■' -d by the, pleadings of the.,defendant, lie cannot complain. But tlie main ■ .und on which verts tie'verdict is that (hero may liave been proof «f die di-ab-lny of the plahnii! to make title, and the, offer to show this fa<-l. v ouid bo retrying an issue, made by tlie,..pleadings and already determined. if evidence of the fact had not been introduced, and the defendant had not. offered payment in tlie alternative, tlie jury would not liave, been justified in finding a verdict for compensation when specific performance was the relief primarily sought, and tlie other prayed for only on tlie contingency that specific execution could not be had.

Judgment affirmed.  