On Appellants’ Motion for Rehearing.
In appellants’ motion for rehearing request is made that this court set 'out in full the statement of the case as made by Judge Reese in an opinion rendered upon a former appeal of this case reported in 133 S. W. 515, referred to and adopted in our original opinion in this ease as a correct statement of the case. In view of the holding of the Supreme Court of this state in the case of St. Louis Southwestern Railway Co. of Texas v. Alexander, 172 S. W. 709, wherein it is held that the Supreme Court will not entertain a case where the Court of Civil Appeals in its opinion makes no statement of the case other than to refer to a statement made by a Court of Civil Appeals of the case upon a former appeal of such case, by reference to the style and number of the former opinion and the volume and page where it is to be found, we have granted appellants’ said request and here set out the statement so made by Judge Reese, and adopt the same, to*808gether with the additional statement set out in the original opinion, as a correct statement o£ the case on this appeal, to wit:
“On September 10, 1908, O. W. Hahl & Co., a firm composed of O. W. Hahl and E. A. Con-nable, entered into a written contract with J. J. McPherson, by the terms of which McPherson was granted an option to purchase, on certain terms and for a limited time, all or portions of a large body of land in Bee county which Hahl & Co. had purchased of R. E. Nutt in 1905 and had afterwards, in 1908, sold to W. J. Candlish. After ■ this sale Candlish had, by written contract, appointed Hahl & Co. exclusive agents to sell the property. Under the terms of the contract between Hahl & Co. and McPherson, McPherson was to advertise the land at his own expense, and he did so, expending on this account $3,000. On February 23, 1909, a written contract was entered into between Plahl & Co. and McPherson, by the terms of which Hahl & Co. bound themselves to procure and deliver to McPherson by March 5th an extension of the contract of September 10, 1908; such extension ‘to be binding upon Hahl & Co. and F. A. Con-nable and the owners of the land, and to be sufficient to fully extend said contract and protect the said McPherson in the full exercise and enjoyment of said contract and its terms.’ Hahl & Co. deposited this agreement with the South Texas National Bank, and with it the sum of $2,000, which, as provided in said written agreement last aforesaid, represented a portion of the expenses incurred by McPherson in advertising the land under the original contract, and which was to be paid to McPherson upon the failure of Hahl & Co. to deliver, within the time stated, such extension. At or before the expii'ation of the time limited, Hahl & Co. delivered to McPherson an instrument of writing signed by themselves and W. J. Candlish which they claimed to be a compliance with their contract. McPherson did not so consider it, and, claiming that Hahl & Co. had failed to comply with their agreement in the contract of February 23, 1909, brought this suit against Hahl & Co. and the South Texas National Bank to recover the $2,000, with interest from March 5, 1909. To the action as against it the bank pleaded that it was a stakeholder merely, and ready to abide the judgment of the court in the premises. Hahl & Co. demurred generally, pleaded the general issue, and specially that it ha'd complied with its contract of February 23d. * * *
“As the case is presented to us, we must confine ourselves to the evidence set out in the agreed statement of evidence referred to. The material facts so shown are, in substance, as follows: The land referred to is part of the R. E. Nutt ranch in Bee county, which was sold and conveyed by Nutt to Hahl & Co. in 1905, and in 1908 conveyed by Hahl & Co. to W. J. Candlish, who, by writing executed by him, appointed Hahl & Co. his exclusive agents to sell the same. On September 10, 1908, Hahl & Co. entered into a written contract with McPherson, acting for himself and others, with regard to a part of this land. This agreement is very long, and contains many complicated provisions; but the substance of it is that Hahl & Co. give to McPherson and his association an option to buy the land, or parts thereof, upon certain conditions and for a certain price. McPherson was to have four months from date of the contract to purchase and make payment of a certain 640 acres. If they did so they were to have two months longer to purchase an additional 1,000 acres. If they did this, they were to have an additional two months in which to purchase a second 1,000 acres, and so on until they had purchased the whole of the land. McPherson was to advertise the land, which he did, at his own expense, expending therefor $3,000. Upon compliance with the terms of the contract Hahl & Co. were to execute or have executed general warranty deeds. We only state the parts of this long and intricate contract necessary to an understanding of the questions presented on this appeal. On February 23, 1909, there being a dispute as to whether said ontion had expired, I-Iahl & Co. and McPherson entered into a written contract, by the terms of which Hahl & Co. agreed to procure and to deliver to McPherson in 10 days (or March 5th) a written extension of the contract referred to above, for 90 days, in all respects extending and ratifying said contract, ‘said extension to be binding upon said Hahl & Co. and C. W. Hahl and F. A. Connable and the owners of said land, and to be sufficient to fully extend said contract and protect the said McPherson in the full exercise and enjoyment of said contract and its terms.’ It was agreed, as set out in said contract, that Hahl & Co. should deposit in the South Texas National Bank $2,000 representing a part of the expense incurred by McPherson in advertising the land, as provided in the original contract; this amount to be paid to McPherson’s attorney for him if Hahl & Co. failed to deliver the extension contract referred to by March 5th. Within the time limited Hahl & Co. procured and offered to McPherson as a compliance with their contract an instrument in writing extending the. original contract for 90 days from March 5, 1909, signed by Hahl & Co. and W. J. Cand-lish. This instrument McPherson refused to accept as a compliance with the contract.
“At the time this agreement to procure the extension contract was entered into, and at the date of the original contract, Hahl & Co. were not the owners of the land; but, having bought it from Nutt, they had sold it to Candlish. The land was heavily incumbered with vendor’s and judgment liens for large amounts, as hereafter shown. The original purchase-money notes given by Hahl & Co. to Nutt amounted to about $40,000, secured by the express vendor’s lien in the land, were outstanding in the hands of one McCampbell, who had instituted suit thereon and to enforce the vendor’s lien, and on February 15th by amended petition had set up the superior title, and sought to recover the land. Afterwards, on July 1, 1900, judgment was rendered in this case (as stated in the court’s findings) foreclosing the liens and for title and possession, including all the lands embraced in the contract with McPherson. In addition to this, there were several judgment liens for large amounts against Hahl and Con-nable ; but all of these judgments were fully released as to this land on February 23, 1909, except one for $17,500 in favor of E. M. Paul-son, which the court’s findings state has been fully released, without saying when. The findings of fact of the trial court, in addition to the above, embrace many other facts evidently based upon the excluded evidence, and which, as they find no support in the evidence which we can consider, are not adopted by us. The issue presented is whether the instrument extending the original contract, signed only by Hahl & Co. and W. J. Candlish, is a compliance with the agreement of February 23d, and this depends upon whether it is binding- upon C. W. Hahl and F. A. Connable, and Hahl & Co., and upon the owners of the land, and sufficient to protect McPherson in the full exercise and enjoyment of the original contract and its terms.”
All other assignments in appellants’ motion for rehearing are overruled, and, with the additions here made, the original opinion, as reformed by us upon hearing of ap-pellee’s motion for rehearing, is adhered to.