"This suit was brought by Fuller M. Pannell, as plaintiff, against J. B. Boatwright, W. A. Boswell, R. D. Shofner, and T. H. Barrow, for the purpose of canceling a written contract for the conveyance of land, two certain deeds, and a vendor's lien note hereinafter mentioned, on the ground that the same were fraudulently procured, and, in the alternative, for a moneyed judgment against said parties for the value of said note and the value of one of said tracts of land, alleging that theretofore, to wit, in January, 1910, appellee was the owner of a certain tract of land situated in Milam county, Tex., containing 140 acres of land, and that said Boatwright claimed to own at that time a certain 640-acre tract of land, situated partly in Brown and partly in Mills counties, Tex., which respective tracts of land plaintiff and defendant Boatwright verbally agreed, through Boswell and Shofner, real estate agents, to exchange with each other upon the following conditions, to wit: That in consideration of plaintiff's conveying to Boatwright his tract of land, Boatwright would convey his tract to plaintiff, assuming to pay off a $600 vendor's lien note outstanding against it; and likewise agreed to pay the commissions due Boswell and Shofner by plaintiff and Boatwright for effecting said exchange, amounting to the sum of $600, it being understood that said exchange should not be effectual, and no deeds should pass between them unless each party should furnish to the other within 90 days an abstract of title to their respective tracts of land, which should be pronounced a good and valid title by some competent Austin attorney. Thereafter it was suggested by Boswell and Shofner that it was desirable and better to reduce said agreement to writing. Whereupon they prepared an agreement which was afterwards duly signed by Boatwright and submitted by them to plaintiff, which plaintiff signed without reading, believing upon their representations at the time that it was in substantial compliance with said verbal agreement, and contained all the provisions thereof; but said writing, in fact, did not contain all the stipulations of said verbal agreement, in that the same omitted that part of said agreement which provided that neither party was bound thereby, unless the title of each was pronounced good and satisfactory by said attorneys to whom the same was submitted, but only provided that abstracts should be furnished and warranty deeds executed. Thereafter Boswell and Shofner stated to plaintiff that said Boatwright had no ready cash, and suggested that, in order to facilitate the exchange of said lands, when the abstract should be returned, that he should provide in his conveyance to Boatwright, as a part of the consideration, the execution by Boatwright to him of a vendor's lien note for $1,200, which they, upon the consummation of said transaction, would sell, retaining out of the proceeds thereof $600 in payment of their commissions, and applying the balance to the satisfaction of said outstanding vendor's lien note of $600, against the Milam county land, which Boatwright had agreed to assume. It was further understood between plaintiff and said Boatwright that, upon the execution of their respective deeds as contemplated, the same, together with the note above mentioned, should be placed in the hands of Boswell and Shofner in escrow, as their agents, not to be delivered until the terms of said agreement should be fully complied with; but, notwithstanding that said deeds were so left with them in escrow, they, together with Boatwright, conspiring to cheat, swindle, and defraud plaintiff out of the value of said land and note, fraudulently induced plaintiff to place his deed from Boatwright on record in Brown county, and proceeded at once to place plaintiff's deed to the Milam county land upon record, and thereafter caused Boatwright to convey said Milam county land to Barrow, and sold the vendor's lien note, which they in the meantime had fraudulently procured plaintiff to indorse and transfer to them, applying the proceeds to their own use and benefit; that the title to the Brown county land was defective, and so pronounced by a competent Austin attorney, to whom the same was submitted, whereupon plaintiff at once demanded of Boswell and Shofner his deed and note, which was refused, on the ground that they had delivered his deed to Boatwright, and had sold the note, claiming that the agreement for the exchange permitted them so to do. Plaintiff further alleged that the said Barrow had actual and constructive notice of the terms of said agreement with Boatwright, and knew that said deed was held in escrow, and that, if he did not have actual or constructive notice thereof, yet he had notice of such facts as would put him upon inquiry that would lead to a discovery thereof.
"Defendants, other than Barrow, denied specifically the alleged escrow agreement, asserting that the trade was fully consummated before the deeds passed, and specifically denied all other allegations of plaintiff as to fraud and collusion.
"Defendant Barrow denied specifically any participation in or notice of the alleged escrow agreement and of the alleged fraudulent acts of the other defendants, and alleged that he had paid a full and valuable consideration to defendant Boatwright for the Milam county land prior to any knowledge or information as to the alleged claim of fraud, or the escrow agreement asserted by plaintiff, and asked for judgment quieting his title to the land.
"The case, being discontinued as to Shofner, proceeded to trial as against the other defendants, resulting in a verdict and judgment for plaintiff for the recovery of the Milam county land, and cancellation of the deeds from plaintiff to Boatwright and from Boatwright to Barrow, and against defendant Boswell for the sum of $1,200, and interest, from which judgment Boswell and Barrow alone have prosecuted their appeals, and have filed their respective briefs.
"There was evidence tending to support the allegations of the pleadings of the respective parties.
"The court, after reciting the provisions of the contract as set out in plaintiff's petition in the fifth paragraph of its charge, proceeding to apply the law to the facts, charged the jury in the seventh and eleventh paragraphs thereof as follows, to wit:
"`(7) If the jury find from a preponderance of the evidence in this case that the plaintiff and defendant Boatwright made and entered into the agreement as set out in paragraph 5 of this charge, and the jury further find from a preponderance of the evidence that the defendant Barrow purchased said land from the defendant Boatwright before the consummation of said agreement and contract between the plaintiff and the defendant Boatwright, and that before the purchase of said property by said defendant Barrow from the said defendant Boatwright the said defendant Barrow had notice, either actual or constructive, as hereinbefore defined and explained, of the agreement, if any, between the plaintiff and defendant Boatwright, as set out in paragraph 5 of this charge, then the jury will find a verdict for the plaintiff against the defendant Barrow for the cancellation of said deed from defendant Boatwright to defendant Barrow, and for the recovery of said land described
in said deed. If, however, the jury find from a preponderance of the evidence that the defendant Barrow purchased said land from the defendant Boatwright without notice of said alleged agreement set out in paragraph 5 of this charge, and for a valuable consideration, then the jury will return a general verdict for the defendant Barrow.'
"`(11) If the jury find from a preponderance of the evidence that there was an agreement between plaintiff and defendant Boatwright as set out in paragraph 5 of this charge, and further find from a preponderance of the evidence that the...
