On Plaintiff in Error’s Motion for Rehearing.
VAUGHAN, J.The following grounds of defendant’s motion, viz., (1) “The court erred in deciding this ease in behalf of defendant in error upon contentions not made by him in the-court below,” and (2) “The court erred in deciding this ease in behalf of defendant in error upon a theory wholly inconsistent with the theory presented by him below,” require a full review of the case as made by the pleadings, developed by the evidence of the parties, the issues submitted to the jury, and defendant’s assignments of error and propositions; this being the only means whereby the value of the grounds of said motion may be fully and correctly appraised. If the record to be so reviewed shall sustain defendant’s contention in either respect, then the prayer of her motion must be granted. Smith v. Chipley (Tex. Civ. App.) 24 S.W.(2d) 87; Id., 118 Tex. 415, 16 S.W.(2d) 269; Hill v. Preston, 119 Tex. 522, 34 S.W.(2d) 780. What of the record?
The original opinion contains all of the-proceedings above catalogued material to a determination of the questions under discussion, except defendant’s assignments of error, viz.:
“(1) The court erred in overruling and in not sustaining defendant’s general demurrer to plaintiff’s petition.
“(2) The court erred in overruling and in not sustaining defendant’s special exception No. 2, reading as follows: ‘ * * * It is nowhere shown in said contract or in said petition whereby there was any recovery or attempted recovery for a tract of land consisting of eighty acres from Dallas County, Texas.’
“(3) The court erred in instructing the jury as set forth in special issue No. 3, because the same submits a question of law to the jury.
“(4) The court erred because the verdict is excessive, and because the verdict is grossly excessive, in that the uncontroverted evidence shows that the plaintiff’s services for the defendant were not worth more than S10, or in any event only a nominal sum,”
—and the testimony of three attorneys at law, viz., W. B. Harrell, Tom C. Clark, and Cecil L. Simpson, of the Dallas Bar, introduced by plaintiff to establish the value of the services rendered by him to defendant, same being in part as follows, viz.:
W. B. Harrell testified: “If a contract was had between an individual and Dallas, and provided that Dallas County should, or had the.right rather, to secure 70,000 cubic yards of gravel off of the tract of land approximately eighty acres in area, and, in that contract, it' was provided that the gravel should be taken from a tract approximately four acres, and further providing that if there was not that quantity of gravel in the four acres that the county should procure the gravel from any other portion of the approximately eighty acres tract; and that the contract was made in 1920, and in eight years the county had removed approximately three thousand cubic yards of the gravel; and assuming that a person having that contract with the county went to a lawyer and without an agreement as to compensation of any sort secure the services of that attorney, but procured the attorney to proceed and attempt to release the land from this contract, which was indefinite as to the time the gravel could be removed, and that this attorney spent say six weeks to two months in various visits and consultations, and spent approximately two weeks in looking up the law as to the rights of the county and this individual, and filed two petitions with the Commissioners Court praying for the release of the land from the contract, that during his efforts with the Commissioners Court he had the County Engineer make a survey as to the gravel content of the eighty acres of land, then assuming that a final order is secured from the Commissioners Court relieving all the land from the burden of the contract with the exception of approximately four acres, and then assuming he obtained that order and that upon presentation of it to the owner of the land it is satisfactory to the owner of the land, and then assuming that the land — the market value of the land — in 1928, at the time this occurred, was fifty-five thousand dollars, for the whole tract, and assuming that there were about six or eight consultations running from four hours to one hour in length between the client and the lawyer — that is between the lawyer and the client, the owner of the land, and assuming that the Commissioners Court was presented with two petitions, one of character that I need not go into, and also one that was finally *713approved by the Commissioners Court; and assuming that upon a discussion of a fee between the client and the attorney after the work was submitted to the court, and the work of the attorney was submitted to the client and was satisfied with it, they had a dispute as to the fee; that the client secured the services of some other attorney that used in substance, the order as approved by the Commissioners Court as presented by the original attorney, with the exception that the four acres would be released to the client at the expiration of five years regardless of whether they got seventy thousand cubic yards of gravel or not, I would say a reasonable attorney’s fee for that service by that attorney, as to the-percentage of the amount in controversy, would be as follows: I would say that ten per cent, of the value of the recovery would be a modest fee; that fifteen per cent, would be a reasonable fee; and that twenty per cent, would be a good fee.”
Practically to the same effect was the testimony of Tom C. Clark and Cecil L. Simpson. This testimony was based upon the terms and provisions of said conveyance to Dallas county, and the services alleged to have been rendered defendant by plaintiff under his contract of employment, as alleged by him. We are of the opinion that the self-evident meaning of the language of said conveyance is that the county Of Dallas purchased from defendant and her deceased husband, Israel Dreeben, 70,000 cubic yards of gravel in place, in consideration of $30,000 in cash paid, to be removed from the 4 acres described by metes and bounds, part of the 80 acres described in said conveyance, with the right and privilege of the county, in the event it should be found that said 70,000 cubic yards of gravel could not be obtained from said 4 acres “to enlarge the workings or pit on adjacent land belonging to the parties of the second part * * * (being the remaining portion of the 80 acres of land) to such extent that the 70,000 cubic yards of gravel may be obtained,” and this without any limitation as to time specifically stated in said contract when all of said gravel should be removed; for that purpose, said land was “qualifiedly sold” and was burdened with the right of said county to remove therefrom said 70,000 cubic yards of gravel. This we think is the plain legal meaning and effect of said conveyance.
From October 2, 1920, the date of the conveyance to Dallas county, up to or about October 1, 1928, the date of the contract of employment alleged by plaintiff, the county only had removed 3,000 cubic yards of gravel, which exhausted the gravel on the 4 acres of land which the 70,000 cubic yards of gravel was to be primarily obtained. All of the SO acres of land was burdened by the sale of the 70,000 cubic yards of gravel to Dallas county, and on said designated 4 acres thereof being exhausted for that purpose, the dominion of the county on all of said 80 acres became absolute for the purpose of prospecting for and removing gravel therefrom until it should obtain the full amount of 70,000 cubic yards of gravel purchased. This was the condition existing as to the rights of Dallas county when plaintiff was employed by defendant to secure for her a release of said 80 acres of land from the effect of the contract of sale of the 70,000 cubic yards of gravel to be removed therefrom. Said 80 acres was located on the Northwestern Highway (in fact, said highway was surveyed to pass through it), an important thoroughfare then being constructed by Dallas county, and in order to relieve said tract of land from the burden of the conveyance of October 2, 1920, so that defendant would be at liberty to contract an absolute sale thereof, or otherwise dispose of same at her will, she sought the assistance of plaintiff, -as above stated. This qualified interest of the county in said 80 acres, of land, plaintiff insisted, was a chattel interest in land in the trial court. The defendant insisted that it was an interest in the land itself; that is, it was such a transaction that a release of or reconveyance of said 80 acres of land could only be accomplished by the county through the statutory method provided for the conveyance of real estate by a county.
The words “qualifiedly sold,” as used by plaintiff in his petition, undoubtedly had reference to and meant that the conveyance of said 80 acres of land to Dallas county, as recited in the instrument of date October 2, 3920, was limited or modified as to its legal effect, in that the fee-simple title to said 80 acres was not in fact conveyed or intended to be conveyed, but only an estate therein limited to the absolute sale of 70,000 cubic yards of gravel, to be removed therefrom under and in accordance with the terms and provisions in reference thereto contained in said conveyance. This we think is conclusively shown to be the correct legal effect of said words “qual-ifiedly sold,” by the last provisions of said instrument contained in the original opinion.
This conveyance was copied in full in plaintiff’s original petition, and all of his allegations as to the property rights created and conveyed thereby to Dallas county were based upon its terms and provisions. In what respect plaintiff’s cause of action was tried upon a different principle or theory from that in fact alleged, or presented by him in this ap-' peal, contrary to that upon which this cause was tried in the court below, we have not been able to develop from a careful study of the entire record. In other words, the record is barren of any proceedings from which there can be fittingly drawn inconsistent positions assumed by plaintiff in the court below, or in this court. Furthermore, we do not think it reasonably probable that defendant was misled by the statement in plaintiff’s petition that the land was qualifiedly sold to *714the county. This because defendant com-batted this idea to the extent of asserting that the legal effect of said conveyance to Dallas county was to convey an interest in minerals in place and constituted therefore a conveyance of an interest in land. This was undoubtedly intended for the purpose of showing that the conveyance was not qualified in the sense that it was a conveyance of a chattel interest in land, and only after the dissenting opinion was filed did defendant contend that the case was decided in the court below in favor of plaintiff upon a cause of action not alleged by him, and that this court affirmed the judgment of the trial court upon a theory inconsistent with that presented by plaintiff in that court. In vindication of the rectitude of the majority opinion, we must of a necessity rely upon the record upon which we reached the conclusion assailed by defendant’s motion and invite a careful consideration thereof that no erroneous conclusion should abide upon our labor. We have carefully considered all grounds of the motion, and same not presenting any reason why the judgment heretofore rendered by this court should be disturbed, same is in all things overruled.
Overruled.