ingly. The plaintiff was insolvent when he entered into the contract with the defendants and was so up to the time of the trial, but he got an agreement from J. S. Hogg and his associates to buy the land and they deposited the full amount of the purchase money in the bank of T. W. House, and tendered it and demanded a deed as above stated. When the suit was brought the defendant immediately entered an appearance to the then pending term of the court and demanded a trial, to which the plaintiff would not agree, and owing to the crowded docket the case went over to the next term of the court. On April 13, 1901, the defendant W. W. Hoskins, for himself and as agent for the other defendants, executed and put upon record in Brazoria County a declaration reciting the contract and the deposit of the $10,000 in House's bank, and gave notice of the existence of such contract.

We do not construe the contract as the plaintiff construes it, but are of the opinion that it was an offer by the defendants to be accepted by the plaintiff by the deposit of the money by the time stipulated, and in case the plaintiff should accept the titles and tender the balance of the purchase money the defendants had sixty days within which to comply on their part by a conveyance of the land, on default of which they became liable to pay the plaintiff $10,000 as stipulated damages, not for a delay of sixty days as contended by the plaintiff, but for a failure to convey within sixty days. We are therefore of the opinion that the plaintiff is not entitled both to recover stipulated damages and have specific performance as claimed.

As shown by the evidence the plaintiff did not assign his entire interest in the contract. His assignees were the owners of partial interests acquired subsequent to its execution, and by the terms of the contract title was to be made to the plaintiff or to such persons as he might designate. It was held in Willard v. Tayloe, 8 Wallace, 571, that the owners of partial interests in contracts for land, acquired subsequent to their execution, are not necessary parties to bills for their enforcement. And in Kelly v. Thuey (Supreme Court Missouri), 15 Southwestern Reporter, 62, it was held that the agent who made an express contract in his own name to purchase land could alone compel specific performance. Since the contract was with Dougherty alone and obligated the defendants to convey the land to such persons as he might designate, he was the proper plaintiff in a suit to enforce its performance. The crucial point in the determination of the right of the plaintiff to any recovery in the case is whether there was a deposit of $10,000 in the bank of T. W. House on April 8, 1901, as required by the contract. The option to buy and a right to compel a conveyance of the land could only be secured by a deposit of the money in accordance with the offer of the defendants. It was necessary for the deposit to be a special deposit which, in case the title was accepted, could be paid over to the defendants as a part of the purchase money or forfeited to the defendants in case the plaintiff should fail to complete the purchase. According to the terms

of the contract the plaintiff was required to deposit or cause to be deposited in the bank of T. W. House the sum of $10,000 and cause said bank to notify the defendants that the money was held on the terms and conditions of the contract. By the terms of the contract, in case the titles were accepted the money was to be paid as a part of the purchase money, or to be forfeited to the defendants in case of default on the part of plaintiff. Such a fund is a special and not a mere general deposit. Kimmel v. Dickson, 25 Law. Rep. Ann., 309. The deposit would have to be of such character that in case of the bank becoming insolvent the money would be held as a trust fund to be paid to the account of the contract in preference to general creditors. J. S. Hogg could borrow of the bank the money necessary to make the deposit, and it was not necessary in doing so to go through the idle formality of handling the money. T. W. House had the money in the bank and understood the terms of the contract, and agreed with J. S. Hogg to hold that much money subject to the contract, and so advised the defendants. The entry of the transaction was not made on the books of the bank on the day the arrangement was made, but this was not required in order to bind the parties. The effect of the transaction was that T. W. House loaned J. S. Hogg the money, but held it subject to the terms of the agreement. House was solvent, had the money in his bank, agreed with Hogg that he would hold the amount for the purpose stated, and so notified the defendants. He became bound to apply the money in accordance with the agreement of the parties, and in case he had become insolvent and the defendants had become entitled to receive the money, we think they would have been entitled to have it paid to them in preference to general creditors.

It is objected that the plaintiff was not entitled to recover the $10,000 as liquidated damages in lieu of specific performance because he sued for the same as for a delay of sixty days only. But the petition sets out the facts fully, and in addition to the prayer for recovery as stated, prayed for general and special relief, and as we think, supports the judgment. The withdrawal from the bank of the deposit after the defendants had breached the contract and notified the plaintiff that they would not convey the land can not defeat the right of the paintiff to recover the stipulated damages. Nor can the refusal of the plaintiff to receive the money tendered as liquidated damages as a discharge of the contract defeat the right to recover such damages. The contract did not require that the names of the persons to whom the deed should be executed should be furnished to the bank on the day the deposit was required to be made, and the plaintiff was not in default in this respect. The names were furnished within time.

Upon the cross-appeal of the plaintiff from the judgment of the court below in refusing specific performance, we conclude briefly that the plaintiff can not recover the damages stipulated in the contract for its breach and also have specific performance thereof. He acquiesces in the judgment of the court below for the stipulated damages and asks an

affirmance thereof. He can not have both remedies, and having recov ered a judgment for damages which he seeks to have affirmed, this alone would be sufficient reason for the affirmance of the judgment refusing specific performance. It is conceded that when an option holder has complied with his option contract he can generally enforce specific performance, but in this case the plaintiff, after a deed had been tendered to him conveying the land to the persons designated by him, refused to carry out the contract by paying the balance of the purchase money and accepting the deed. The defendants were not obliged to hold the matter open indefinitely but could rescind the contract, which they did by notice to the plaintiff. It is not an answer to say that the defendants made an unfair designation in the deed of the land to be reserved, because they offered to correct it in any respect in which it did not comply with the contract. But the plaintiff made no objection to the sufficiency of the deed and ignored the tender of it altogether. He should at least have stated his objections and given the defendants an opportunity to meet them. Not having done so he can not complain that a sufficient deed was not tendered. Hackett v. Huson, 3 Wend., 249; Gilbert v. Mosier, 11 Iowa, 498; Mook v. Bryant, 51 Miss., 560; Kenniston v. Blakie, 121 Mass., 552; Biglow v. Morgan, 77 N. Y., 312; Carmen v. Pulz, 21 N. Y., 551;

The record of the declaration of the existence of the contract was not an election which would defeat the right of rescission. There are other equitable reasons for refusing specific performance which need not be entered upon at length. Pomeroy says when the parties have added a provision to an agreement for the payment in case of breach of a certain sum which is truly liquidated damages and not a penalty stipulating for one of two things in the alternative, equity will not interfere to decree specific performance of the first alternative. 1 Pom. Eq. Jur., sec. 447. We think what has been said disposes of the assignments of error made by both appeals, and finding no error in the judgment, it is affirmed. Affirmed.

ON MOTION FOR REHEARING.

In response to the request of Hoskins for additional conclusions of fact upon the question of the deposit by J. S. Hogg of the $10,000 forfeit money in the bank of T. W. House and the tender of the deed to the plaintiff we find:

1. That when House agreed to give credit to J. S. Hogg for the deposit of $10,000 House had that much money on hand in his bank.

2. At the time House extended the credit to Hogg for the $10,000, Hogg's account with the bank showed that he had less than $100 on deposit in the bank. The deposit of the $10,000 depended upon the agreement of House to give Hogg credit for that amount for the purpose of meeting the contract, to be held by House subject to the contract, and the telegram of House to Hoskins by which House notified

Hoskins that Hogg had deposited the money on account of the Dougherty contract. As before stated no entry was made on the books of the bank until April 23d, and the matter rested April 8th on the oral promise of House made to Hogg and House's telegram to Hoskins. We deem it unnecessary to set out at length the testimony of Dunn, the cashier of the bank, or that of J. S. Hogg. It is uncontradicted, however, and the Supreme Court may examine it at length. Our conclusion that there was a sufficient deposit is the legal effect given to undisputed facts.

3. The money according to the agreement with House was to remain in the bank subject to the contract, and Dunn's statement that it was to remain there forty days was not correct otherwise than as his understanding from the contract how long the deposit was required to be maintained.

4. The conclusions heretofore filed set out the facts fully with respect to the tender of title by defendants from July 24th to August 12, 1901, and that the plaintiff ignored the tender and did not accept and pay for the land.

The motion for rehearing is overruled.

Writ of error refused.

Overruled.

DAVID GRIFFIN ET AL. v. H. M. BARBEE.

Decided May 15, 1902.

1.-Boundaries-Meanders of Creek-Course and Distance.

Where the field notes of a deed called for one line of the track conveyed to run with the meanders of a certain creek, but also gave calls for course and distance of that line which did not correspond with the meanders, it is held, under the evidence adduced, that the meanders of the creek constituted the line, and the calls for course and distance should be disregarded.

2.-Same-Evidence-Opinion.

Where the deed calls for the meanders of the creek as the line, and the surveyor who originally ran the line and wrote the deed testified that the creek was the line, it was error to admit the testimony of other surveyors, giving as their opinion that the line should be run out by the other calls for its course and distance, rather than by following the creek.

3.-Evidence-Jury Recalling Witness.

Where the jury disagree as to what a witness has testified, the proper practice under the statute is to recall the witness and have him repeat, under the directions of the court and in the presence of the jury, what his testimony was as to the particular point under disagreement and no other, and it is error to allow the jurors to then interrogate him at length. Rev. Stats., art. 1309. 4.—Res Adjudicata—Boundaries-No Identity of Issues Shown.

A judgment in a former suit establishing the meanders of a creek as the line of the land here as also there in controversy, is not res adjudicata as to the location of such line where, in the former action, the party so claiming the creek as the line also claimed by limitation, and it does not appear on which ground the jury found in his favor.

Appeal from Houston. Tried below before Hon. John Young Gooch.

Nunn & Nunn, for appellants.

Moore & Newman, H. W. Moore, and G. H. Gould, for appellee.

GARRETT, CHIEF JUSTICE.-This action was brought by the appellant David Griffin against the appellee H. M. Barbee for the recovery of a tract of 13 acres of land, a part of the James Nevill league in Houston County. The controversy is one of boundary between adjoining tracts, one on the southeast belonging to Griffin and another on the northwest belonging to H. M. Barbee. D. A. Nunn intervened in the suit as the vendor of Griffin. The tract owned by the appellee was conveyed by David Becton and wife to R. W. Gayle as 200 acres by metes and bounds set out in the deed as follows: "Beginning on the southeast boundary of a tract of land sold by James Neville to G. W. Southwick, and on the east side of Tantabogue creek, whence an ash brs. N. 17 deg. E. 3 vrs. and an ash brs. N. 24 deg. E. 3 vrs. Thence down said creek with its meanders as follows: East 200 vrs., south 45 deg. E. 590 vrs. east 620 vrs., corner at junction of branch, whence a lyn brs. N. 86 deg. E. 3 vrs. distant, and an elm brs. N. 10 deg. E. 7 vrs. distant. Thence up said branch with its meanders as follows: North 130 vrs. N. 45 deg. W. 150 vrs. north 360 vrs. a lyn brs. N. 70 deg. W. 2 vrs. Thence N. 45 deg. E. 561 vrs. corner, whence a postoak brs. N. 65 deg. E. 6 vrs. and a postoak brs. N. 47 W. 6 vrs. Thence N. 45 deg. W. 672 vrs. corner on the southeast boundary of the Southwick survey, whence a postoak brs. N. 84 W. 5 vrs. and a postoak brs. N. 34 deg. E. 6 vrs. distant." A call S. 45 deg. W. 1517 from the east corner is omitted from the description contained in the deed. It takes this call to close the survey.

The tract claimed by the appellant Griffin is a part of 40 acres conveyed to him by D. A. Nunn, the 40 acres being described as follows: "Beginning at the northwest corner of the Becton old homestead 200 acre tract on branch, a pinoak 16 in. marked cross brs. S. 60 deg. E. 6 1-2 vrs. Thence S. 80 deg. E. with the Becton homestead 660 vrs. to the corner, postoak 16 in. marked cross brs. S. 87 E. 8 vrs. Thence N. 45 deg. E. 216 vrs. corner, hickory 14 in. marked cross brs. N. 50 deg. W. 61⁄2 vrs. Thence N. 45 deg. W. 553 vrs. to corner a postoak 6 in. marked cross brs. N. 7 deg. W. 2 vrs. Ditto 6 in. marked cross brs. N. 18 deg. E. 2 vrs. distant. Thence S. 45 deg. W. at 235 vrs. the southeast corner of the R. W. Gayle 200 acre survey at 605 vrs. stake on road. Thence S. 45 deg. E. 42 vrs. to the place of beginning, con-` taining 40 acres of land more or less."

The contention of the appellants is that the branch which is known as Gayle or Becton branch is the division line between the two tracts for the entire distance that they adjoin each other, while the appellee contends that the line must follow course and distance and that following them the southwest corner of the Griffin tract would be 100 varas south of the branch and that the line would run from that