of drilling and the removal of the machinery | bore through to China. It therefore became and casing, about Christmas, 1915, and the a material question as to whether the hole filing of this suit, which was on November drilled to the depth of 2,103 feet was a 23, 1916, a number of conversations occur- "completed" well, as that word was used and red between Martin and Frost, Martin in- understood by the parties. sisting upon a further prosecution of the drilling, and at first demanding that Frost either drill deeper or drill other wells, or surrender his lease, and later insisting upon the surrender. On the other hand, Frost kept promising to do all in his power to get some other drilling contractor to sink a well or wells, and did enter into certain correspondence to that end. He was out of money, and offered to pay Martin "a little money if he would let the lease stand." Martin declined to accept any money, and continued to insist on the development of the leased land or the surrender of the lease, and finally demanded the cancellation of the lease and declined to give Frost any further time. The suit followed. [2] It is the general purpose of all rules for the construction of contracts to aid in ascertaining the intention of the parties, and, since it is a well-recognized canon of construction that technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless it is evident that they were used in a different sense (see 2 Elliott on Contracts, § 1511), we think expert testimony was admissible, in case of a disagreement as to the meaning and purport of such technical words, to explain the sense in which such technical terms were understood generally by those engaged in the business of drilling oil or gas wells. The issue was sharply drawn by the pleadings as to wheth It will be remembered that the lease con- er or not the hole drilled by the lessee was tract provided that: The "lessee agrees to begin operations for the drilling of a well upon the above-described premises within twelve months from date thereof, or thereafter pay to the lessors the sum of 25 cents per acre per annum, payable quarterly in advance until a well is commenced, or until the end of the five years' term hereof, as a rental and complete remuneration to 'lessors for delay." a "completed" well, plaintiffs contending that it was not, and defendant insisting that it was. The charge of the court instructed the jury that, if "the defendant did fail to prosecute the work upon the well in question upon said premises with due diligence, and you further believe from the evidence that said well was not completed by the defendant," etc., to find for the plaintiffs. On the other hand, the court instructed the jury to find for the defendant if they should find "that the work was prosecuted with due dil [1] We think it is a fair construction of this portion of the lease to hold that, if the lessee began, in good faith, the drilling of a well within the 12 months stipulated, he re-igence on same until said well was completlieved himself from the alternative obligation to pay rental, and of the penalty of forfeiture for a failure so to do, unless there should be a lack of good faith and diligence in the prosecution of such drilling as provided in the last sentence of the paragraph from which the above quotation is taken, to wit: "When a well is once begun, the drilling thereof shall be prosecuted with due diligence until same is completed." There is no contention that up to Christmas, 1915, the lessee did not prosecute the drilling of the well, or of the "dry hole," with due diligence, and, if said well was "completed," as that term is used in the contract, then appellant's first assignment, directed to the failure of the court to give a peremptory instruction for the defendant. probably should be sustained. We think that in the sense the word "completed" is used in this contract it means finished, or sunk to the depth necessary to find oil or gas in paying quantities, or to such a depth as in the absence of such oil or gas would reasonably preclude the probability of finding oil or gas at a further depth. It should not be construed to mean that the lessee bound himself, under the penalty of a forfeiture, to sink a well or oil or gas in paying quan ed." The court did not attempt to define the word "completed" as applied to a well; hence the jury were left without a guide or chart, except of the common experience and knowedge of mankind, to assist them in determining the sense in which the word "completed" was used by the parties to this con tract. [3] In his eleventh assignment appellant urges error to the action of the court in excluding the testimony of his witness H. A. Johnson to the effect that the well drilled by the defendant on the lands in controversy had been allowed to testify upon this queswas a completed well. This witness, if he tion, would have testified in part as follows: "I am acquainted with the Frost well on the Martin place, and at the time that that well was drilled there there had been no oil development in or about that section of the country. The wells at Moran are at an average depth of about 2,000 feet, and the wells in the Strawn field are of a much less depth on the average. The prospecting in the field that Mr. Frost caused a well to be bored on the Martin lease was with the hope of reaching the Strawn sand, and, those sands being a depth of not more than about 1,000 feet, it was considered that a fair test for oil was at a much less depth than 2,100 feet, the depth to which the Frost well was drilled, and, in my opinion, the Frost well was not only a fair test for development purposes, but it was a completed well as that term On Resubmission. This witness was shown to have been in the oil and gas business in Texas about six years. He testified: "I know the depth of wells in this territory, that is, in Northwest Texas, that is, a great many of them-the average depth. I had charge of the drilling of ten wells. Our contract depth was 2,100 feet. On the average we drilled about 2,000 feet. Where we thought it would Where we thought it would pay, we went on deeper. We did not get anyWe did not get anything below 2,100 feet. * * * I have information regarding the drilling of the wells in the Strawn field. I know where the land on which the well in controversy is located is with reference to the Strawn field. It is north of the Strawn field, or northwest from the field, from the wells. It is northeast, I should say, from the Moran field and north of the Strawn field. * A year ago there was not any oil developments between the Moran oil field and the Martin tract of land in controversy. The first well at Moran was brought in about two years ago. * * There had been wells drilled in the Moran field up to December, 1915, a large number. The average depth was 2,000 feet. There had been wells brought in or drilled in the Strawn field, about a mile from Strawn. The Strawn oil field is about 25 or 30 miles from the Martin tract of land. As to the average depth of wells in the Strawn field, I believe the first well in the Strawn field was 1,000 feet. * * * I think there are some wells in the vicinity of Thurber that are 2,000 feet. I think there was a well drilled prior to the time the well was put down on the Martin land, on the Corbitt ranch, that is, about 8 or 10 miles from the Martin ranch. Í do not recall the depth exactly, but it was between 1,900 and 2,000 feet." * * * * Enough has been quoted to show that this witness qualified to testify as an expert upon the meaning of the technical words used by oil men and drillers of oil and gas wells, and we think the trial court improperly exIcluded this testimony, and that the error was a material one, which will call for a reversal of the judgment. BUCK, J. At the time this cause was under consideration on its first submission Chief Justice CONNER was absent, in attendance on the writ of error committee at Austin. Subsequent to the judgment heretofore rendered, January 26, 1918, Associate Justice DUNKLIN discovered that an oil lease taken by a company in which he was interested contained a provision similar to the one involved in the lease in this case, and therefore felt that he might be disqualified to sit in this case. In deference to his wishes, the former judgment was set aside February 9, 1918, and the cause set for resubmission February 22d, at which time the counsel for appellee appeared and submitted oral and written argument to sustain the contention that the judgment of the trial court should be affirmed. At this last submission, Chief Justice CONNER was present, heard the argument of counsel, and ent, heard has since, with the writer, given the case a careful reconsideration. We find no reason to change the views expressed in the opinion of the court on the first hearing. Hence we adopt that opinion as expressing the conclusions of the court at this time. The judgment of the trial court is reversed, and the case remanded for further proceedings not inconsistent with this opinion. DUNKLIN, J., not sitting. FIRST STATE BANK OF EUSTACE v. 1. LIMITATION OF ACTIONS 145(5)-PAROL 27-AGREE There were several objections directed to the fourth paragraph of the court's charge, complained of in appellant's second, third, sixth, seventh, eight, and ninth assignments, but we will not undertake to discuss these A new consideration is essential to a parol assignments separately but will only say agreement, extending the date of payment of a that in our opinion the state of the evidence note in order to postpone the beginning of the adduced on this trial did not justify a sub-period of limitation. mission to the jury of the issue of defend- 2. LIMITATION OF ACTIONS ant's failure to prosecute with diligence to completion the drilling of the well sunk on plaintiff's land, unless it can be said that the well so sunk was not a "completed" well as the term "completed" was used and understood by the parties. Upon another trial the jury may have the benefit of expert testimony upon the meaning of the word "completed" as applied to an oil or gas well, and the court will submit that issue to the jury under proper instructions. For the reasons given, the judgment of the trial court is reversed, and the cause remanded. Reversed and remanded. MENT TO EXTEND DATE OF PAYMENT. A parol agreement by payee, extending date of payment in consideration of the payment of interest to extended date, is a new contract, and limitation for such contract is not that for note, but that for parol agreement. 3. LIMITATION OF ACTIONS 141-ACKNOWL EDGMENT OF DEBT-STATUTE. Rev. St. 1911, art. 5705, providing for exten acknowledgment, has no application where tension of the period of limitations, by a writpayee of a note, by parol agreement, had extended the date of payment in consideration of the payment of interest to extended date; this being a new contract superseding note. Appeal from District Court, Henderson County; J. S. Prince, Judge. Action by the First State Bank of Eustace against Sam Bowman and another. CONNER, C. J., not sitting, serving on Judgment for defendants, and plaintiff apwrit of error committee at Austin. peals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. J. N. Starr, of Athens, for appellant. L. Faulk and N. Faulk, both of Athens, for appellees. S. W. 790. But to have that effect the agreement must be based upon a new consideration, and must be something more than a gratuitous indulgence on the part of the creditor which adds nothing to the burden of the original obligation of the debtor. Wells v. Moor, 42 Tex. Civ. App. 47, 93 S. W. 220. prove the making of valid contracts of extension, the question arises, Did the appellant sue before his right expired by the terms of the last contract of extension? HODGES, J. On November 14, 1910, Sam That the parties to a note may, by a parol Bowman and wife executed and delivered agreement made before the debt is barred, to the appellant their promissory note for extend the date of its payment and postpone the sum of $575.70 due one year after date the beginning of the period of limitation, and providing for the payment of interest is supported by both authority and sound and attorney's fees. To secure the payment reason. Heisch v. Adams, 81 Tex. 94, 16 of this note they also executed a mortgage on some personal property and 74 acres of land. On January 12, 1916, more than four years after maturity of the note, appellant filed this suit against Bowman, claiming a balance due of $505.45. Some time after the institution of the suit Bowman died, and by an amended original petition his heirs were made parties and the suit continued. In the amended original petition the appellant alleged that by agreement between the parties made before the note was barred the date of payment had been twice extended, and by the terms of the last agreement it was due November 14, 1913, and that as a consideration for that agreement interest had been paid to that date by Bowman. The defendants pleaded limitation generally, and further alleged that the land upon which the mortgage was executed was a part of the homestead of Bowman and wife at the time it was incumbered. In a trial before the court judgment was rendered in favor of the defendants below. The record contains no findings of fact, but the arguments presented in the briefs of the parties indicate that the court based his judgment upon the conclusion that the debt was barred by limitation. If the maturity of the original note be taken as the date for computing the period of limitation, the appellant's cause of action was barred by the four-year statute, and there was no written acknowledgment sufficient to revive the debt as required by article 5705 of the Revised Civil Statutes. While conceding that fact the appellant insists contract to escape its legal effect. There that, the time of payment having been extended by a valid agreement, the statutes of limitations began to run from the date of payment as fixed in the last contract of extension, which was less than four years before this suit was filed. The note offered in evidence had the following indorsements: "Cr. by cash $ 85.70 14.30 Cr. by cash 1-9-12 "Cr. by cash 1-23-13 $100.00 [1] These furnished the only evidence of the contracts of extension pleaded. It will be observed that each of them was made before the note itself was barred. Assuming that those indorsements alone, without any evidence as to when or under what condi [2] An agreement which binds the creditor not to sue prior to the new date, and the debtor to pay interest for the entire period of extension has been held to be a sufficient consideration to support a contract which releases a surety upon a note. Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128. That holding is based upon the ground that the debtor and creditor had substituted a new and valid contract which supersedes that to which the surety was a party. Upon the same principle it would seem that an agreement having all the essentials of a valid contract may constitute a new and enforceable obligation whose duration is governed by the law applicable to the form in which it is expressed. In this case the indebtedness sued for is not now evidenced by a contract in writing. The note may be evidence of the amount due or which was originally promised, but it is no longer the contract to pay that sum. The indorsements on the note are merely memoranda of the later parol agreement which the parties had entered into. The creditor cannot claim the note as the contract for one purpose and invoke a substituted parol is a difference between the continuation of the same debt and the continuation of the same promise. The promise is what expires in the course of time. The last one made, if accompanied by the essentials of a complete contract, supersedes all others. [3] Article 5705 of the Revised Civil Statutes is intended to prescribe a method for reviving contracts which have expired by limitation. Under its provisions a written asknowledgment of the justness of the debt, when signed by the debtor, is sufficient to create an obligation to pay the former debt, even without without any any further consideration. That statute has no application to parol agreements to pay existing debts at a different time and upon different terms when based upon an independent consideration. Limitation in this case began to run against the appellant after the maturity of the last contract of extension, which was November years later. This suit was not filed till some [ BUCK, J. On November 1, 1916, appellee time in January, 1916, and was therefore too late. Since the obligation upon which the lien sought to be foreclosed was founded is not enforceable, it is unnecessary to discuss questions relating to its validity. filed a petition in the nature of a bill of review to set aside a judgment rendered in the same court and at the previous term, whereby appellant was granted a divorce from appellee, given the custody of their minor children, and awarded the title and The judgment of the district court is af- right of possession to all of their community firmed. PHILLIPS v. PHILLIPS. (No. 8821.) 1. APPEAL AND ERROR 389 (3)-AFFIDAVIT 2. APPEAL AND ERROR 351(1)-TIME FOR Where court adjourned March 31st and a new term began April 2d, a motion for appeal and an affidavit in lieu of bond filed April 7th was timely under Vernon's Sayles' Ann. Civ. St. 1914, art. 2084, requiring the affidavit to be filed within twenty days after notice of appeal, although the order granting the appeal was not entered until May 5th; the Court of Civil Appeals having, by article 1593, power to ascertain matters of fact touching its jurisdiction. 3. DIVORCE 249(6)-DISPOSITION OF COмMUNITY PROPERTY-TITLE. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 4634, providing that neither party to a divorce suit may be compelled to divest himself or herself of the title to real estate, the court has power to enter such a decree as will properly protect the wife and minor children in the use of the community property which constitutes a homestead, but it cannot divest title thereto out of one of the parties. 4. DIVORCE 249(6)-DISPOSITION OF PROPERTY-SUPPORT OF CHILDREN. The power of the court in a divorce suit to grant to the mother who has been awarded the custody of the minor children the use of the homestead for a designated period is an equity power to be exercised primarily for the benefit of the minor children that the mother may fulfill her duty to support them; the husband's duty to support his wife ceasing on the severance of the marital relation. 5. DIVORCE 309-CUSTODY OF CHILDRENMODIFICATION OF DECREE. Where a mother had been granted the custody of the children in a divorce suit, it was proper on the reopening of the case for the trial court to determine from the evidence then before him what provision was necessary for their support; conditions having changed since the original decree. Appeal from District Court, Tarrant County; R. E. L. Roy, Judge. Petition by Newton H. Phillips against May Phillips for a bill of review to set aside a judgment in a divorce action. From a decree for plaintiff, defendant appeals. Af firmed. R. H. Smith, of Ft. Worth, for appellant. Bryan, Stone & Wade, of Ft. Worth, for appellee. property, consisting of improved premises in Ft. Worth alleged to be a homestead, certain lots in Oklahoma, and the household furniture. The appellee alleged that subsequent to the filing of the original divorce suit by his wife they become reconciled and resumed the relationship of husband and wife; later moved from Ft. Worth to Dallas, where they continued to live together as husband and wife until February, 1916; that in November 1915, it was agreed between appellant and appellee that the divorce suit should be dismissed; that appellant in February, 1916, without cause or justification, abandoned appellee and returned to Ft. Worth, where she had continued to reside separate and apart from appellee; that without appellee's knowledge appellant, on September 18, 1916, and without notice to appellee caused said divorce suit which she had agreed with appellee to have dismissed to be heard, without any regular setting thereof, and secured the judgment and decree against appellee which he sought to have vacated. Appellee further alleged a rule or custom of the district court, where said suit was pending, where answers have been filed, as he alleged had been in this case, to require plaintiff's attorney to hand to the clerk of the court the style and number of the case upon which a trial was desired and that such rule or custom provided that the trial could not be had until two weeks subsequent to said notice given and request made; that if appellant's attorney had complied with this rule or custom of the court, as appellee had the right to expect, the latter's attorneys would have been advised of the fact that the divorce case had not been dismissed, and that the appellant was intending to have the same tried, and that appellee would have been present with his testimony and defense, which he alleged was sufficient to establish that appellant was not entitled to the judgment rendered. Appellee further alleged that appellant was not the proper person to be awarded the custody of the minor children, alleging that one of the children, a young lady, was working in Dallas and making her own living, the second child was living with him (appellee), and that the youngest, a boy, was living with appellant, who was not so situated that she could give him the proper attention, care, and education; that he was able, financially and otherwise, to care for and educate said chitdren. He further alleged that he and appellant were cotenants of the community prop For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes erty, all of which under the judgment had been awarded to the appellant, and that he was entitled to a one-half interest therein. He prayed for citation to be issued, and that upon hearing the former judgment be set aside in so far as it decreed the custody of the children and awarded the title and the possession of the described real estate to appellant alone. The defendant, after a general denial, pleaded res adjudicata. The court reopened the case and set aside the court reopened the case and set aside the former judgment in so far as it affected the real estate, the plaintiff in the course of the trial having withdrawn and abandoned his plea as to the custody of the children, and adjudged the title and right of possession in said real estate to be in plaintiff and defendant jointly, and, having found that the said real estate was not susceptible of division, ordered it to be sold by a commissioner, who was duly appointed. From this judgment the defendant has appealed. Pendley v. Berry, supra); and 'its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security, and to enable those having conflicting interest to controvert such proof,' etc. (Wooldridge v. Roller, 52 Tex. 451). When it is made before the court trying the case, if in if there be no contest. It is only where the affisession,' the statute requires no other action davit is made before some officer not authorized to determine the facts in case of a contest that it has been held or intimated by this court that it must be presented to one who is so authorized for further action on his part." In Wooldridge v. Roller, supra, and other cases cited by appellant, the Supreme Court did not say or even intimate that the affidavit could not be made before a notary public, but to the contrary. The attorney of record is authorized to administer the oath to an affidavit to his client. Forest Oil Co. v. Wilson, 178 S. W. 626. [2] It appears from the record that the order of the trial court authorizing this appeal on affidavit was made at the subsequent term that the court entered the order granting the appeal on May 5, 1917. The court adjourned March 31, 1917. The new term began April 2, 1917. The affidavit shows that it was filed April 7th, and the motion was filed on same date. There is presented in this court an affidavit of appellant's attor tion on the day it was filed, but by inad- [1] On the threshold of the consideration of the appeal on its merits, we are presented with appellee's motion to dismiss because of the alleged failure of appellant to perfect her appeal under the statute providing for an appeal on affidavit in lieu of bond. This motion must be overruled. The affidavit under article 2098, V. S. Tex. Civ. Stats., is not bad simply because made before a no-ney that the court in session granted the motary public, even though such notary be the attorney of affiant. The proof of the inability of one seeking to appeal under this statute to pay the costs of appeal must be made before the court trying the case when in. session, otherwise before the county judge of the county of affiant's residence, requires the affidavit in lieu of bond to be judge of the county of affiant's residence, filed within 20 days after notice of appeal and while, in the absence of contest, such is given, but does not require the order of proof may consist of the affidavit alone, yet the court granting the appeal to be entered the affidavit is merely a matter of evidence, within said period, nor, perhaps, that proof and if the proper magistrate considers the proof evidenced by the affidavit and acts shall be heard by the court within said time. thereon and enters his order it is im- But, at any rate under article 1593, V. S. material that the affidavit was made before Tex. Civ. Stats., Courts of Civil Appeals a notary public. The motion in this case have power by affidavit or otherwise, to aswas directed to the trial court, and the proof certain matters of fact touching their juris was submitted to the court and acted on while in session. Sanders v. Benson, 51. Tex "This court has often had occasion to discuss and construe this statute, and has not yet succeeded in removing all the doubt and uncertainty besetting an appellant who attempts to avail himself of its indefinite provisions. These uncertainties in the statute itself suggest 'that care should be taken to avoid such a construction and application of the law as would impair or unnecessarily complicate the exercise of the right of appeal.' Pendley v. Berry, 95 Tex. 75 [65 S. W. 32]. The statute defines what the proof it requires shall be when it provides that it 'shall consist of the affidavit of said party, stating his inability to pay the 27th. Article 2084, V. S. Tex. Civ. Stats., diction. Hence we find that the affidavit was filed, proof heard, and the order made, though not formally entered on the docket, within the statutory period, and the appellee's motion to dismiss the appeal is overruled. [3] We will now consider the case on its merits. The first assignment urges that the trial court erred in vacating the former judgment in so far as it purported to decree to the appellant here the entire title and right of possession to the realty of the community estate of appellant and appellee. Under the law (article 4634, V. S. Tex. Civ. Stats.) neither party to a divorce suit may be compelled to divest himself or herself of the title to real estate. While in granting a divorce the court has power to enter such a decree as will properly protect the wife and minor children in the use of the community |