This is an appeal from the Judgment of the district court sustaining a general demurrer to the petition and dismissing the cause. This is a second appeal of this cause; the opinion given by this court on the former appeal being found in Stuart et al. v. E. M. Goodwin, Inc.,25 S.W.2d 166, 167. An attempt was made to obtain a writ of error in the Supreme Court, but the application was dismissed for want of jurisdiction. The former appeal was prosecuted by Stuart and others from an order appointing a receiver to take charge of certain land and a temporary injunction to restrain interference with the receiver in the discharge of his duties. We copy the following statement from the former opinion:
"Appellee [E. M. Goodwin, Inc.] claims an interest in the land subject to the deed of trust under a conveyance from E. M. Goodwin, which was executed on the _____ day of _____, 1928. The deed of trust on the land was executed on November 3, 1918, by the owner, Eloisa Vela Dougherty, to secure a debt due by her to F. G. Oppenheimer and Ben F. Levy. The debt and deed of trust were kept alive by extensions, so that the debt amounting to $21,811.69 would not be barred by limitations until December 3, 1929. The debt and lien are now owned by R. T. Stuart Co. The land in question, after the extension of the debt, was sold by the owner to J. C. Marks and George Hartnagel, nonresidents, subject to the lien and debt. On February 3, 1926, a written contract was entered into between Marks and Hartnagel, and it is through that instrument that E. M. Goodwin claims an interest. On June 7, 1929, Marks and Hartnagel conveyed the land to Edward L. Stallcamp, and he conveyed it to the American Land Development Company, one of the appellants herein."
It is stated by appellant in its brief that "the record on this appeal is a little out of the ordinary," but an inspection of the record by this court leads to the conclusion that it is one of the most extraordinary records that has ever been brought to its attention. Appellant has inserted in the record a bill of exceptions taken in a proceeding involving the vacating of a receivership and the *Page 312 discharge of the receiver. The bill of exceptions proper contains 116 pages of the record, and attached thereto are exhibits of the transcript on the former trial containing 123 pages, and the statement of facts used on the former appeal containing 254 pages. The bill of exceptions, with monstrous exhibits, has no pertinency to nor connection with the case on appeal, as fully admitted by appellant in its brief. No reason is given for including the bill of exceptions in the record. The order vacating the receivership is not before this court.
This appeal is not prosecuted from any order in regard to the receiver, but only from a judgment sustaining a general demurrer and special exceptions to the petition. Nine of the twelve assignments of error assail the action of the court in vacating the receivership, and are all overruled because that matter is not before this court through the appeal bond. The order in regard to the receivership was separate and distinct from the final judgment, and is not mentioned therein. The other three assignments of error assail the action of the court in sustaining the general demurrer and a special exception with six subdivisions.
This suit is based, as on the former appeal, on a certain contract, and of which a full analysis was given on that appeal. We adopt that analysis, and it is copied and made a part of this opinion:
"The first paragraph of the contract asserts ownership in Marks and Hartnagel, gives the reasons for making the contract with E. M. Goodwin, agrees to furnish him the land for the purposes and on the terms thereinafter set out, and gives a full description of the land. The second paragraph binds the owners to have made a survey of the land and maps and other data in view of irrigation. The third paragraph binds the owners to survey the land into 40-acre tracts and lay out all necessary roads and plat the same and furnish other necessary means to sell the land, and pay for such improvements. In the fourth paragraph the owners agreed to furnish each purchaser an abstract of title, and all deeds, notes, and deeds of trust necessary to be used in the sale of the land, and that all contracts of sale should be furnished by Goodwin. The fifth paragraph is an obligation upon the part of Goodwin to use diligence in the sale of the land, to give the necessary advertising and conduct excursions. By the sixth clause Goodwin is given exclusive control of the sale of the land for five years, and it provides for his remuneration and for the sums to be paid the owners, and in clause 7 all money over and above a certain sum per acre was made a trust fund to be used as therein directed. The eighth clause gives Goodwin power to sell the land upon the terms and conditions he may elect, providing that no tract smaller than 5 acres shall be sold, and that vendor's lien notes shall not run for a longer period than ten years, and that notes should be made payable to a trustee to be named, and that all damages received for failure to enter into contracts should be the property of Goodwin. The ninth clause is as to the time limit given Goodwin to make sales, and stipulates the amount of land to be sold each year. The tenth clause disclaims the agency of Goodwin in the sale of land, and the eleventh section grants the privilege to Goodwin to acquire and develop lands contiguous to the 5,600-acre tract.
"As some stress is placed on paragraph 12, we copy as follows: `12. Said parties of the first part hereby obligate and bind themselves to convey to a trustee to be selected by said parties of the first part and approved by said party of the second part, all of the lands described in this contract not later than thirty days prior to the time when said lands are prepared and ready for placing on the market, and shall furnish to said party of the second part a complete abstract of title to said lands, showing said trustee to be vested with a good merchantable title thereto, and said parties of the first part shall also furnish with said abstract of title the opinion of an attorney to be approved by party of the second part, showing said trustee to be vested with an unencumbered and merchantable title to said lands. It is further provided that said trustee shall be a resident of Hidalgo County, and shall maintain his office at Mission, Texas, and all remuneration received by him for his services shall be determined and paid for by parties of the first part.'
"The thirteenth clause provides for the laying out of 50 acres, in 10-acre tracts, by the owners, at different points on the tract, and the fourteenth for the execution of all deeds by the trustee of the owners to the different purchasers."
The contract is not on its face incapable of specific performance sought through the petition, and appellant had the right to have his petition tried on its own merits. The petition was not to be tested by testimony that had been given or might be presented, but on its own allegations. In so testing it, when assailed through a general demurrer, every reasonable intendment must be indulged and read into it. The petition was not subject to attack from the general or the special demurrer, and the facts alleged should have been tried before the court or jury on the merits of the case.
We are asked to test the sufficiency of the petition by facts heard by the judge in a trial had on a plea theretofore filed by appellees seeking to vacate and set aside a receivership granted in the case. In other words, the petition is to be declared in conflict with the *Page 313 facts developed on the hearing of a question growing out of and subject to the facts or the merits. We recognize the existence of cases in which it has been held that, if the allegations in a petition are in conflict with the facts brought out on a former trial of the cause, the judge may in view of such conflict hold that the petition does not state a cause of action and consequently is subject to a general demurrer. This rule has not been more forcefully or clearly stated in any case than in the case of Snow v. Cook, 278 S.W. 520, which was written for this court by Associate Justice Smith. In that case the action was to set aside a judgment theretofore rendered in the case on a full hearing of the facts, and it was held that in determining the sufficiency of the petition in the second suit the court could take cognizance of the record in the case in which the assailed judgment was rendered, and from that record could determine whether there was basis in fact for destroying the former judgment. That case had been fully developed and a judgment rendered on facts offered by the opposing parties. While we are not disposed to question the decision in the case cited, still the rule therein enunciated has been carried to its limit, and we do not believe that the rights of appellant should be determined on facts offered in a hearing on an affair merely appurtenant to the main case. The question in the motion to vacate the receivership was not presented to try the right of appellant to recover, but to set aside a receivership not deemed necessary to be continued in the case. We are unwilling to sustain the contention that sustaining the motion denied to appellant the right to recover on his demand against appellees. There is no such conflict shown between the facts in that proceeding and the allegations in the petition as would destroy the latter.
The costs of including transcript and statement of facts connected with the former appeal would be assessed against appellant but for the fact that appellees insist that they are properly included and state they would have brought them up if appellant had not. They seem well satisfied with the increased cost of the record, and no one has the right to complain.
The judgment is reversed, and the cause remanded.