author: HUGHES, Justice. HUGHES, Justice

text:
    T. W. BUCK, Jr., Appellant, v. H. M. REED, Appellee.
    No. 11003.
    Court of Civil Appeals of Texas. Austin.
    July 15, 1964.
    Rehearing Denied Aug. 24, 1964.
    Harry S. Pollard, Austin, for appellant.
    Gay & Myers, Austin, for appellee.
   HUGHES, Justice.

Our previous judgment reversing and remanding this case to the Trial Court has been reversed by the Supreme Court and the case remanded to this Court for a determination of appellant’s points Nos. 4, 6, 8, 10, 12, 14, 16 and 18. 370 S.W.2d 867. Reference is made to the opinion of the Supreme Court for a complete statement of the nature of this suit. It is sufficient at this point to say that H. M. Reed, appellee, sued T. W. Buck, Jr., appellant, on a promissory note for $9300.00 dated August 31, 1953, payable to J. H. (Dude) Stelfox, executed by appellant and Glen Malcolm Shine. The note was given in payment for one HD-14 Allis Chalmers Tractor with Bulldozer Blade and Power Unit Serial No. 1669, belonging to appellee. Stelfox was the agent of appellee in making sale of the tractor and equipment and he assigned the note in suit to him without receiving any consideration from appellee.

Trial to the Court without a jury resulted in judgment for appellee for $15,370.03, with 10% interest thereon until paid.

The points of error which we are to determine, enumerated above, are that the following findings of fact made by the Trial Court so contrary to the overwhelming weight and preponderance of the credible evidence as to be clearly wrong and unjust:

“10. J. H. (Dude) Stelfox did not on June 13, 1953, or at any other time represent to Glen Malcolm Shine or T. W. Buck, Jr., that the bulldozer described in Paragraph 3 above was manufactured in 1948 or any other year.
"11. J. H. (Dude) Stelfox did not on June 13, 1953, or at any other time represent to Glen Malcolm Shine or T. W. Buck, Jr., that the bulldozer described in Paragraph 3 above was in as good as brand new condition.
“12. J. H. (Dude) Stelfox did not on June 13, 1953, or at any other time represent to Glen Malcolm Shine or T. W. Buck, Jr., that the bulldozer described in Paragraph 3 above was in efficient operating condition.
“14. Neither Glen Malcolm Shine nor T. W. Buck, Jr., relied on the statements made by J. H. (Dude) Stelfox set forth in Paragraph 12 or on any other statements made by Stelfox but they relied entirely on their own knowledge, observation and testing of said bulldozer in purchasing it.
“20. The consideration for the note described in Paragraph 1 above was the settlement, compromise and satisfaction of all claims, demands and disputes concerning the condition of the bulldozer described in Paragraph 3 above.
“21. J. H. (Dude) Stelfox did not, in connection with the settlement described in Paragraph 19 above, make any statements or representations con- cerning the condition of the bulldozer described in Paragraph 3 above.
“22. Neither Glen Malcolm Shine nor T. W. Buck, Jr., relied on any statements or representations of J. H. (Dude) Stelfox made on or about August 31, 1953, concerning the condition of said bulldozer or concerning any other matters involved in the sale of said bulldozer or the cancellation of the first note and execution of the second note.
“23. Prior to August 31, 1953, Glen Malcolm Shine had full opportunity to test, operate and inspect said bulldozer and had so tested, operated and inspected said bulldozer fully and on said date he was fully informed as to its mechanical condition and knew more about its condition than did J. H. (Dude) Stelfox.

We will review all of the evidence bearing on these findings.

Mr. Shine, who lived in Houstbn, had served in the Sea Bees in the Pacific area during World War II with appellant. In May 1953, Shine and his family came to Austin to visit appellant, who was a life long resident of Austin, and his family. The visit was purely social. A week later Shine returned to Austin and told appellant that he could get suitable work around Madisonville if he had a bulldozer tractor and that he had seen one in Austin, describing its location. Appellant, who was acquainted with and had worked for Stel-fox, recognized the location as belonging to Stelfox. Appellant ascertained that the tractor was for sale and so informed Shine by letter, Shine, having returned home. He returned to Austin about June 13, 1953.

Appellant, who merely lent his name to Shine testified:

“Q Were any representations made to you at the time of the original sale about the condition of the tractor by Stelfox or anybody else ? / >
“A Naturally it was made that; the tractor was in A-l condition,- and as Mr. Stelfox stated in his testimony, it was the same as new
“Q Mr. Stelfox made the representation * * * •'
“A That is correct.
“Q Did he mention the year in which it was manufactured or sold?-
“A It was my impression it was supposed to be a ’47 or ’48 motor, and * * *
“Q You are sure * * *
“A I am positive of that.”
Shine testified:
“Q When you all went over to Mr. Stelfox, you say he introduced you. Then what conversation did you have with Stelfox?
“A Well, I just talked to him about the machine. I asked him what model it was.
“Q ,,What did lip tell you?
“A' He told me it was a 1948 Allis- • Chalmers HD-14.
‘•‘Q What other conversation did you have with him? - . .
“A He immediately’told me about the repairs he had done tp the machine. He said he spent some- ■ where bétwéefl four to five thousand dollars ’oh it "in repairs! He had a new pngih’e in it and new -' - rollers, new track, new track bolts, ' and riumerous other1 olfds and ends '■ that you do to'1'a machine' where '-you' put itrin condition for resale. ■ : ■ :> ft,!. •' ’ . ■;
. “Q .Did he. make1 any statement as to its condition? i"',-:-1 ; M. _ ■ ■
_ “A He stated that it was; actually in ¡as good.condition as a brand-new. v’. machine, as far as — working condition. .* *
“Q What influenced1 you as to this particular machine? -I understood’ ' -■ you to say that in'passing by. there ■_ and looking at it, it was all paint-v - ed, and looked likev-new.v-
“A Right.
“Q What was it that influenced you in this particular machine? .
“A - This particular - machine;-■ what - caused.me, to be interested was the fact that it had been supposed to be reconditioned and all this work ' done on it. He explained the numerous things that had been done to the machine ■ and I honestly thought th^-t I could; take the ma- - chine and put it to work. I was not particularly interested in purchasing the machine. I mean to : - say, he was • as interested in me taking the machine, it seemed like, as I was in obtaining it. I looked . no other place for a machine, and actually did not care whether I had the machine or not I did have the work for it, and I was not engaged at the time, and I thought, ‘Well, it would be a working situation for both of us. I will take the machine over there-; and be responsible for it and attempt to work it.’ . .
“Q When he explained to .you'that: this was a ’48 model tractor, did you have any reason, to-'disbelieve. ; that? . -. • . - •;
“A No, sir.'
“Q Did you believe his statement and rely on it?
“A Yes, sir..
“Q ’ When he told you that he had . spent between $4,000 and $5,000' in reconditioning it to- make it as good as brand-new, did you believe that?
“A . Yes, sir.' ‘
“Q Did you rely on that?
“A Yes, sir, sure did.
“Q Did he tell you whether or-not. this-, machine, because of its recent manufacturing timé arid reconditioning, would or would-not do the - • job that you told him that you • - ■ could get over there to usé that machine^on? ■'> .
“A He assured me that it would. -I / explained to him what I was go- - ing to use it -for, and he assured-, me the machine would do it.
“Q On the basis of those statements and your reliance on .them, did you . then agree to buy the machine ?
“A Yes, sir, I agreed. - •
“Q And on what price?
“A We agreed on $10,000.
“Q Was there any cash down payment on that at all ?
“A No, sir. * * *
“Q Now, were you acquainted with the different year models of Allis-Chalmers tractors or any other caterpillar tractors?
“A I was acquainted with the fact that there are several different year models. For several years in a row they may build a machine that the layman’s eye could not distinguish the difference between a ’48 and whatever year it was manufactured in.
“Q Were you familiar enough with the machine that you could tell by looking at it whether or not it was manufactured in 1941, ’42, ’48, or’46?
“A No, sir.
“Q There was no outward appearance that would indicate to you what the year model of the machine was; is that correct?
“A That is correct.”

Shine commenced working with the tractor about the middle of July 1963. He did some “light” jobs with the tractor such as clearing brush, cleaning dirt tanks and digging shallow tanks. About the 10th of August, 1953, the clutch on the tractor went out, concerning which Mr. Shine testified:

“Q Just describe to the Court what resulted from the clutch going out on it; describe what you mean by the steering clutch going out and the condition it was in then.
“A The steering clutch, you have a right and a left steering clutch. That is the way you steer the tractor instead of having a steering wheel. So if the right-hand clutch went out, you could not steer the tractor. You could move the tractor, but you could not steer it, and consequently I tore into it. I had a working knowledge of mechanics, and I thought I was competent and that I could make repairs on it, so I tore into it and found out what the trouble ' was.
“Q What do you mean by tearing into it?
“A I disassembled it.
“Q You disassembled it?
“A I disassembled it; I tore it down.
“Q Did you examine it?
“A’ Yes, sir.
“Q What sort of damage did you find that- resulted and what did you determine had caused it?
?<A Well, there is a steering clutch drum, perhaps that big around, and it has a flange that it bolts into, and this flange gears into the pinion drive up on the outside of it, and there were bolts left out of the flange where the steering clutch drum bolted to the flange.. About every other bolt was left out of it, and consequently not having enough bolts in it, it tore the whole side of the flange out or tore the whole side of the drum out where it bolts to it, and in doing so, it tore up some bearings and clutch discs and I don’t remember exactly, but I spent about $290 on parts for it.
“Q About how long did it take to obtain those parts and about how long did it take to get the labor done to repair that damage that had resulted?
“A I was two weeks getting the parts and repairing it.
“Q All-told, about what did you have to spend out of your pocket for these parts to repair that?
“A Just the parts themselves right at three hundred. Of course, I bought gas and had expenses, and what have you, going to Houston to find the parts.”

Following this breakdown of the tractor and before doing further work with it, Shine came to Austin and talked with Stelfox, and we quote Shine:

“Q What conversation did you have with Stelfox at that time?
“A I explained to him what the deal was and told him I did not think the machine was what it was represented to be. He pointed out to me that he had not done anything to the steering clutch, to his knowledge, arid he was sure the rest of the machine was all right, and as he 'had stated that it would be, and so I was still reluctant. He said, ‘Well, I will tear up the note, and I will knock off $700 for the trouble that you have had on the steering clutch, and we will make a new note and reduce the payments on the machine.
“Q Did he say anything about the remaining condition of the machine ?
“A Yes; he still assured me that he had done all the work on the motor and the tracks and the rollers and various things were in real good things on the machine and that he had spent four or five thousand dollars on it, and the machine had to run, and I explained to him I had not run the machine enough to make the payments on it with, and he said, ‘Well, don’t worry about that.’ ”

The result of this conference was that the $10,000.00 note was cancelled and the note sued on executed, Shine having explained the matter to appellant. At the same time Shine gave Stelfox $700.00 in checks, payable to appellant as requested by Stelfox, to be deposited at short intervals. None of these checks was paid on presentation. These checks were, Shine testified, to apply on the $9300.00 note. Stelfox testified they were not, that the new note was signed only to reduce the payments from $1000.00 per month to $700.00 per month.

Shortly after the new note was given Shine moved the tractor to Teague where he had a dam job for the tractor. He worked a day and a half and the “motor went out.” We quote Shine:

“Q You looked into the motor?
“A Yes, sir. I pulled the head off of it and pulled the side covers and the pan off of it and inspected it.
“Q What did you discover the condition to be?
“A Well, the motor was completely shot and wore out. There was pieces of. broken rings and small pieces of aluminum which probably came from a previous broken piston, and the crank shaft was flat — had three-thousandths wear in it. * * *
“Q What did you do when you found this condition existed inside the motor after you opened it up and looked at it?
“A I made arrangements to get another machine, because I had a time limit on this job.
“Q Did you order any parts or did you leave it like it was?
“A I ordered parts for it. I had to, so I could get it running and move it out with a truck.
“Q You say you had a time limit on that job?
“A Yes, sir.
“Q But you had to rent another machine because this tractor had busted down?
“A Yes, sir.
“Q Then what happened?
“A Well, I ordered the parts, and I went to Dallas and picked up the parts. • I picked up rings and inserts and I think one or two pistons, I don’t remember, and of course gaskets and a valve or so.”

It was at this time that Shine first became aware thát he did not have a 1948 model tractor, but instead a 1942 model. Shine installed the parts obtained in Dallas and repaired the tractor “sufficient to get it running,” and he “walked it (tractor) into town” and put it in storage.

Mr. Shine testified that he would not have purchased the tractor and would not have executed either of the notes if he had not relied upon the statements by Stelfox as to the model of the tractor, its- condition and the amount of repairs made on it.

When Shine first saw the tractor, he tried it out. We quote him:

“A . The. first - time I saw the tractor it was eye appealing. It looked like it was a newly reconditioned tractor and had a new paint job on'it'. The first time I saw it I did not stop and look at the tractor, but I saw it as I went by.
“Q" Now, when you went over and talked to Stelfox about the tractor, did you try it out at all?
“A The best you can on a city lot
“Q Well, what did you do?
“A I started the engine and moved it backwards and forward and spun it around one time.
■“Q Well, did you do it on your own or were you invited by Mr. Stel- ■ fox?
■“A Well, there wasn’t any objections to me doing it.
■“Q Just describe what you did. Did you start the engine ?
.“A I asked him was the batteries tip, and he said ‘yes, get up- in it and start it.’ So I got up and started the machine, and as I say, moved it forward and backwards, and tried the steering'clutches, .and I cut it one way and then, the other to see if it was wo.rkirig. You could not dp a lot with it on a city lot like that, because you would tear the thing up.' * * *
“Q But I am trying to see if Mr. Stel-fox was not perfectly willing for you to do anything you wanted to test that machine short of tearing his building down or ruining his place.
“A Yes, sir, he was, anything within reason in relation to the space we had to do it in.
“Q After you had examined it and operated it and listened to the - motor, you were satisfied with it, weren’t you ?
“A I was satisfied with the way it sounded, yes, sir.”

On cross examination of Shine it was brought out that he was an experienced bulldozer operator and that he was qualified to do repair work on bulldozers.

Shine testified:

“Q You undertook to rebuild the machine as far as the clutch box was concerned, is that, right?
“A Yes, sir.
“Q And you testified that you were very dissatisfied and were ready to tender the machine back; isn’t that what you said?
“A By the time I got over here, I certainly was.
“Q Did you have the bills with you at that time ?
“A Yes, sir, I had the' bills.
“Q Did you tender them to Mr. Stel-fox?
“A Yes, sir.
“Q Did he pay them?
“A No, he did not pay any cash. He said, ‘Well, I will tell you what I will do, Shine.’ He said, ‘We will • make a new deal on the machine.’
“Q You did not have $700 worth of bills on the machine, did you?
“A I did not have that as far as parts spent, hut I had $700 worth of time involved in it.
“Q I suppose you told him you were dissatisfied with the machine?
“A Yes, sir.
“Q And in fact you exchanged notes and gave a $9300 note with a longer pay-out for the $10,000 with a ten month pay-out, didn’t you?
“A In effect, you might call it that. I did not think of it as such. The way he explained it, he said, ‘Well, we will make a new note, and I will compensate you $700, and re-sell you the thing on a new note, and we will start all over.’ * * *
“Q You told him that you were dissatisfied with the whole machine and did not think it had been represented correctly?
“A He reassured me that it was as he represented it. He said, T spent four to five thousand on it, and I had so-and-so done, and the motor is in perfect shape.’ ”

Shine had carefully examined the exterior of the tractor before purchasing it but regarding the motor, he testified:

“Q . * * * You knew, more about the tractor than he did.
“A I certainly did not. I did not know what had been installed in the tractor. It was represented to me with new motor kits, and everything else, and that motor was completely wore out when I took it down.
“Q You had run it for a month and a half?
“A I had it in my possession, but I had not operated it a month and a half.
“Q During the one and one-half month period you had been operating it from time to time, hadn’t you?
“A Over intervals, yes, sir.
“Q And you continued to operate it until it broke down with some motor disorder ?
“A At intervals, yes, sir.”

Shine has tendered the tractor back to appellee and has testified that it is in as good condition as when he bought it.

Mr. Ernest J. Kohutek, associated with the Allis-Chalmers dealers of San Antonio, testified for appellant. We quote a portion of his testimony:

“Q What year model or manufacture is HD-14, Serial 1669, tractor?
“A That tractor was manufactured in July, 1942.
“Q Is there any obvious, visual difference in appearance between an HD-14 tractor that was manufactured in 1948 as distinguished' from one that was manufactured in 1942?
“A No, just the appearance, you can’t tell.”

After qualifying, Mr. Kohutek testified as-to the difference in values of a 1942 and 1948 HD-14 tractor as follows:

“Q And will you tell us the values of the 1942 manufactured tractor, HD-14, if it is in A-l condition, and its value in fair condition, and its value in poor condition in June or August of 19S3?
“A In A-l shape, it would be from five to six thousand dollars; fair shape, two to three thousand dollars; and in poor shape, that is poor operating shape, it would be from five hundred to fifteen hundred dollars. * * *
“Q What would have been the value if it was a 1948 manufactured? Would it have been more than a 1942?
“A Oh, yes, sir.
“Q What would have been the great-ter value of the ’48 tractor, an HD-14, manufactured in 1948?
“A I would say a ’48, between eight to nine thousand.
“Q What would be the fair market value of an HD-14, ’48 manufactured tractor, of that particular model if it was in just fair condition?
“A In fair condition it would be, I would say, between $4,500 and $5,-000.”

Mr. Kohutek testified that for practical purposes the 1942 and 1948 tractors were the same and that from their appearance one could not be distinguished from the other.

Mr. R'oy C. Green, shop foreman for Central Texas Equipment Company and formerly employed by H. B. Zachry and Holland Page, testified for appellant. His testimony related to repair work he did on the tractor in suit from 1951-1953. He replaced the motor kit (sleeves, pistons, rings and valve job)- for Stelfox in late 1952 or early 1953 at a cost of $600.00. About two weeks after this repair was made, Mr. Green was requested by J. R. Canion, to go to the City filtration plant to work on this tractor, and we quote his testimony:

“A The motor had frozen up on the HD-14 tractor I had previously put a motor kit in.
“Q That is the Serial 1669 tractor?
“A Right-o.
“Q The motor had frozen up?
“A Yes, sir.
“Q What caused it to freeze up?
“A They started it without water in it.
“Q What do you mean by it froze up?
“A The pistons seized to the sleeves and pulled three of the sleeves in two and locked the motor tight.
“Q So it was not runnable when you got out there?
“A No, sir.
“Q Did you do at the request of Can-ion some repairs on that frozen motor ?
“A Yes, sir.
“Q What sort of repairs did you do on it?
“A I replaced the three broken sleeves.
“Q You replaced the three broken sleeves ?
“A Yes, sir.
“Q Was there any other damages resulting from the operation of that motor without water in it?
“A Well, the motor had got awfully hot.
“Q What would that cause? What effect, if anything, would that heat that caused it to freeze up have • on that motor? What effect it did have.
“A It caused the pistons to expand and pulled the sleeve in two and I replaced the sleeves, but as to any other damage that was done at the time, well, I can’t say that it done any immediate damage at the time. Naturally, it hurt all the wearing parts of the motor to some extent.
“Q Now, did you at that time attempt to, or did you go in and repair all of the consequential damage that came from this heat that froze up the motor?
“A No, sir, I just replaced the sleeves.
"Q By replacing the sleeves, would that just permit the motor to start up and run?
“A Yes, sir, the motor was in running condition when I léft it.
“Q Having replaced those sleeves as a result of the motor having been run while it was without water and got so hot that it froze up, would that have restored that motor to an equal condition to what it was in at the time you completed the installation of the motor kit?
“A No, sir, it would not. * * *
“Q Do you know, Mr. Green, what the year model of that tractor was, the manufactured date of it or approximate date of it?
“A It is approximately a ’41 or ’42 model.
“Q Is there any difference to the normal person’s eye as between ■ one HD-14 model Allis-Chalmers tractor, manufactured in 1942 and one that was manufactured in 1948?
“A No, sir.
“Q There is no difference to the eye?
“A No, sir.
“Q Was there any internal difference to it, assuming both were brand-new machines?
“A Yes, sir.
“Q What are those differences?
“A Clutches. Transmission.
“Q . Is it for the better or the worse as between the ’42 and ’48 in those respects ?
“A Well, they are improving on them at all times.”

Mr. Green also testified that this HD-14 tractor, in fair operating condition, had a market value in the summer of 1953 ’ of $3500.00 to $4000.00. If it had been a 1948 model the value would have ranged from $6200.00 to $7100.00, according to Mr. Green.

Mr. Green also testified that immediately after installing the motor kit, the tractor was not in “as good as brand-new condition.”

Appellee testified by deposition and very briefly in person at the trial. He did not testify to'the cost of' the tractor. The only repairs he could remember making on the tractor were those done when the tractor was stored with Holland Page, and by some one out on the “Dallas Road.” He “guessed” these latter repairs cost around $1000.00. He did not know the cost of the repairs made by Page. Although the depositions of appellee were taken in October 1960 and the trial was held in January 1962, the only record furnished for repairs on the tractor was the receipted bill of Mr. Green for $979.50, for the repairs about which he testified as shown above. . '

Mr. Stelfox testified by deposition only, which was introduced by appellant. He testified thát he sent two men to West Texas to bring the tractor to Austin at the request of appellee. This was about six to nine months before the sale to Shine. Stelfox testified that he “put new rollers on it, new rails, new track bolts, and a complete new motor kit,” and that he spent close to $4,000.00 on it. We quote his testimony in this respect:

“A We brought it to my location at 903 Barton Springs Road; then I got hold of Bob Marshall’s heavy equipment mechanic and had him check the tractor, other, than the motor, the rollers; the rails, and he came up with a list of stuff to put the tractor up in condition to where it would go out and do a day’s work. It needed new rollers, new rails, and new drag bolts. I ordered all of those from San Antonio, and he put them in.
“Q Who did that, who put them in?
“A This mechanic.
“Q Do you remember his name?
"A No, I don’t, but I could find out from Bob Marshall. I paid him.
“Q By cash, or by check?
“A I can’t remember, but I am sure I give him a check, a company check, and Mr. Reed reimbursed me.
“Q After he did that, then what happened?
“A Then, when he got through with that, I had Mr. Green in this heavy equipment, shop on the Dallas Highway order a motor kit, and put a complete motor kit in.
“Q What is a motor kit?
“A That consists of rings, your pistons, your sleeves, and everything inside the motor. A kit costs you around $800, so I spent a little over $1,000 on this tractor.
“Q What was the cost of the other repairs the fellow from Marshall’s did?
“A I believe the rails cost $700, the bolts cost $74.00; I remember that, because I like to went through the ceiling when I got the bill, and the rollers — I have forgotten now exactly how many — all of them wasn’t bad — I would say we paid in the neighborhood of $1800, or $2,000.00 on parts alone that the mechanic of Bob Marshall’s installed, plus the motor, complete overhaul by this Green equipment company that used to be out on the Dallas highway.
“Q To your best recollection is that it was between $2,000 and $2500 on parts—
“A Parts and labor.
“Q —after you brought it back from West Texas?
“A Around $4,000 altogether.”

Regarding the model of the tractor, Stel-fox testified:

“Q Do you know what year model it was? You know the—
“A I don’t remember.
“Q —model number was HD-14?
“A That’s right'.
“Q And the serial number was 1669?
“A That’s right.
“Q But you don’t know what year model or what its’ manufacturer was?
“A I could find out very easily.
“Q Did you ever know it?
“A I don’t remember anything ever being said about the year model. In fact, I can’t remember anything being said about it, other than referring to it as HD-14, which is equivalent to D-6. * *
“Q Did you ever know what the year of manufacture this particular tractor was?
“A I don’t believe I can answer that and be truthful, because it has been so long ago that it could have been at that time I did or I didn’t know, and I don’t know why I would need to know the year model, because a serial number is all you order parts by, ordinarily.”

Stelfox told of the salé to Shine as follows:

“Q What did you tell Shine?
“A I told him the hills I had spent for repairs on it, and I told him to go out there, both of them, and both of them try it.
“Q You told Shine the tractor had just been repaired?, '
“A I told him what had been spent on it. .. - , ,
“Q What had been done in your shop and what had been done in the other shop ?
“A ' I would say around $4,000.
“Q What did you tell him , about the condition?
“A You dont’ have to tell a man that if he owns heavy equipment.- It had new rollers, and new rails, and everything there for him tc. see. Of course, the inside of the motor, you couldn’t see. They come back and agreed it'was in good shape;
“Q Did they run it there at the time?
“A They started it and spun it around on the back lot.
“Q Did you tell them anything' about its condition, other than about the ■ repair, bills ?
“A I told them who did the motor work, and there' was a- motor kit put in it, which I had proof — it was because the parts were bought from this equipment place out on Lamar.
“Q What did you tell them about the tractor ?
"A I will go through it again. I told them I put new rollers in, and new rails and new track bolts. * * *
“Q Did you tell Shine what year model this tractor was?
“A I don’t believe I did.
“Q By that, you. mean you don’t recall.?
“A I don’t know.
“Q You say you didn’t,-or you-'may have ?
“A So far as that goes, a year model in a tractor, you can’t do that like ' you do a cari You don’t say. !1960 Model D-8’, you-say ‘D-8 tractor, . Serial Number so-and-so.’
“Q Did you tell them this is a tractor that is only'two years old?
“Á I did not.
“Q Or three years old?
“A I did not. ‘
“Q You are sure?
“A Yes, and I am sure that at that particular time, Mr. Shine arid Mr. Buck was in a better position to . ■ know heavy equipment than I was;. ■
“Q Did you tell Mr. Shine .or Mr. Buck what year model that tractor was ? .....
“A I can’t .recall it if I did.
“Q You may have, b.ut you just don’t-recall it ?
“A I just can’t recall it.
“Q Then if either or both of them recall that, you did tell them what year the model , number was, of the year of its manufacture, you are not in a position to dispute that other than you can’t remember one way or the other?
“A No, because it was immaterial. They both of them knew heavy equipment, and they worked with it, and operated it, and it didn’t make any difference if it was a 1919 or 1950 model, because it was there for itself, and they knew equipment * * *
“A * * * We were talking in my office about it, and getting together on the price, so T. W. said, ‘Well, Shine, drive the tractor. If it is in good shape, we can see about it/, and I said, ‘It ought to be, the amount of money I spent/ so he said, ‘How can we deal?’ and I said, ‘I don’t know/ and so we talked on, and T. W. said, ‘It is going to be about thirty days before Shine can go to work with the tractor — ’ . ,
“Q When you talked about those repairs, did you tell them as a result - of those repairs, it was in as good- • . as brand new condition?
■“A I said as good as new, not new, but in reconditioned shape. Just like you buy a reconditioned . engine, but that doesn’t make it as good as new.
“Q You -Jiought that with all those re- . pairs that had been made, it was , in about as good as new condition ?
“A I thought it was in good working ¡ order, and wouldn’t give any trouble, except on heavy equip- ■ ment, you do break something now, and then.”

When questioned about the execution of the $9300.00 note," Stelfox testified:

“Q . At that time, when you were talking about making that note, didn’t Shine tell you; didn’t Buck tell you about the fact this tractor had been constantly under repairs over there ?
“A The only time I heard anything about any repairs at all, they had to weld something up, he was talking about welding something on it.
“Q That is the day you made the second note?
"A That’s right
“Q But as you recall, they said they had to weld something?
“A It wasn’t anything serious, I know.
“Q You do not recall that they said it ' had been constantly under repair since they had it?
“A I will take a paralyzed oath they didn’t say it had been constantly : under repairs.
“Q Did they say it had been frequently under repairs ?
“A Well, you are always going to have that with heavy equipment
“Q But it. is possible that they told you .they were having it very frequently under repair ?
“A That is to be expected with heavy equipment — I don’t know if they told me that.
“Q ' Was there any complaint made . about this tractor having to be repaired frequently?
“A Not a bit.
“Q Do you recall something having been said by Shine in relation to some'bolts that were not properly put- in; which caused it to break down?- '■
“A I don’t remember, but of course a . • bolt can break on a tractor.
’ “Q Do you recall that when some complaint was made that they found that one of their breakdowns had been because of the improper placing of bolts when it was being repaired, you said, ‘Now that is fixed, the rest of it ought to be in good shape?’
“A I wouldn’t say I didn’t say it, but I don’t remember it. I do remember him saying he was doing something to the tractor, and I can’t recall what he said, because it was immaterial; because the tractor was sold, and you buy 'it with' your eyes wide open. When you buy a used car, the dealer isn’t going to come back ninety days or six months later and do any repairs to your car for nothing. I didn’t sell it to him with a guarantee of anything, he bought the tractor as it was.
“Q Wasn’t this agreement you and he had, when you and he were talking, wasn’t there an agreement that because the man had lost a great deal of time when he wasn’t able to work, and because of the repair expense to this tractor, that he had to go in making repairs to this tractor, that you agreed to knock off $700 on the price of that tractor?
“A Knock off what?
“Q Knock off $700 of the price of the tractor, to make up for that, and you said you would take a note for $9300?
“A No, sir.”

It is our opinion that the findings of facts, copied above, are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The judgment of the Trial Court is reversed and this cause is remanded for another trial.

Reversed and remanded.

HUGHES, Justice

(concurring).

In 1849, when Ritter v. Hamilton, 4 Tex. 325, was decided, the only statutes relating to sureties were embraced in an Act of the First Legislature of the State of Texas, 1846, entitled, “An Act to Regulate Proceedings in the District Courts,” which are:

“INSTITUTION OF SUITS '
* * * * * *
“Sec. 4. * * * Be it further enacted, That no person shall be sued as endorser, as guarantor, or as security, unless suit shall have been, or is simultaneously commenced against the principal, except in cases where the principal resides beyond the limits of the State, or in a county that is not organized, or where he is insolvent.”
“PLEADINGS.
% Hs * * * *
“Sec. 45. * * * (relating to discontinuances) Provided, that this section shall not be so construed as to allow a plaintiff to discontinue, as to the principal, and take judgment against the endorser or surety [who is] jointly sued.
“Sec. 46. The principal and the endorser, or surety upon any instrument in writing, may be joined in the same suit, but no judgment in any such suit, shall be rendered against the endorser or surety, unless judgment is at the same time rendered against the principal, except where the plaintiff discontinues, as to the principal, because he resides beyond the limits of the State, or because he is insolvent, in which cases he may discontinue and take judgment.”

In 1858, and subsequent to the decision-in any Supreme Court case following Ritter v. Hamilton, 4 Tex. 325, the Legislature (7th) passed an Act further regulating proceedings in District Courts in which the following sections appear:

“Sec. 14. Any person bound as surety upon any contract for the payment of money, or the performance of any act otherwise than by a bill of exchange or promissory note assignable or negociable by law, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute a suit upon the contract.
“Sec. IS. If the creditor or obligee, not being under legal disability, shall fail to bring his suit to the first term of the Court thereafter, or to the second term, showing good cause why he did not bring it to the first term, and prosecute the same to judgment and execution, the surety giving such notice, shall be discharged from all liability thereon.
- “Sec. 16. When any suit is brought against two or more defendants upon any contract, any one or more of the defendants being surety for the others, the surety may, upon a written statement of the matter being set out in his or her answer, cause the question of suretyship to be tried and determined upon the issue made for the parties defendant at the trial of the cause or at any time before or after the trial, or at a subsequent term; but such proceedings shall not delay the suit of the plaintiff.
“Sec. 17. If the finding of such issue be in favor of the surety, the court shall make an order directing the Sheriff to levy the execution first upon the property of the principal, subject to execution, and situate in the county in which the judgment is rendered, before a levy shall be made upon the property of the surety; provided, so much property of the principal can be found, as will in the opinion of the Sheriff, be sufficient to make the amount of the Execution, otherwise the levy to be made on so much property of the principal as may be found, if any, and upon so much of the property of the surety as may be necessary to make the amount of the Execution; and the Clerk shall endorse a memorandum of the order of the Execution.
“Sec. 18. When any person being surety in any undertaking whatever, shall be compelled to pay any judgment, or any part thereof, or shall make any payment which is applied upon such judgment, by reason of such suretyship, or when any Sheriff or other officer, shall be compelled to pay any judgment or any part thereof, by reason of any default of such officer, except for failing to pay over any money collected, or for wasting property levied on, the judgment shall not be discharged by such payment, but shall remain in force for the use of the surety, officer, or other person making such payment; and after the judgment creditor is paid, so much of the judgment as remains undischarged, but having been paid by such surety, officer or other person, may be prosecuted to execution for the use of such surety, officer or other person.
“Sec. 19. Any one of several sureties, having paid and satisfied the judgment creditor, shall have the remedy provided" in the preceding Section, against the 'co-sureties, to collect of them the ratable proportion each is equitably bound to pay.
“Sec. 20. The remedy provided for sureties by this act, extends to endorsers, guarantors, drawers of bills which have been accepted, and every other suretyship, whether created by express contract or by the operation of law.”

As authorized and directed by the Constitution of .1876, the Legislature in 1879 adopted and, established the “Revised Civil Statutes of the State of Texas.”

This statutory revision contained chapters relating to Practice in the District and other Courts which' included these Articles:

“Art. 1207. The acceptor of any bill of exchange, or any other principal obligor in any contract, may be sued either alone or jointly with any other party who may be liable thereon; but no judgment shall be rendered against such other party not primarily liable on such bill or other contract, unless judgment shall have been previously, or shall be at the same time, rendered against such acceptor or other principal obligor, except where the plaintiff may discontinue his suit against such principal obligor as hereinafter provided:
“Art. 1208. The assignor, indorser, guarantor and surety upon any contract, and the drawer of any bill which has been accepted, may be sued without the necessity of previously or at the same time suing the maker, acceptor or other principal obligor, when he resides beyond the limits of the state, or in such part of the same that he can not be reached by the ordinary process of law, or when his residence is unknown and can not be ascertained by the use of reasonable diligence, or when he is dead, or actually or notoriously insolvent.”

Laws relating to the rights of sureties were placed in “Title LXXV, PRINCIPAL and SURETY.” They read:

“ART. 3660. Any person bound as surety upon any contract for the payment of money or the performance of any r.ct when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute suit upon such contract.
“ART. 3661. If the creditor or ob-ligee, not being under legal disability, shall fail to bring his suit to the first term of the court thereafter, or to the second term, showing good cause why he did not bring it to the first term and prosecute the same to judgment and execution, the surety giving such notice shall be discharged from all liability thereon.
“ART. 3662. When any suit is brought against two or more defendants upon any contract, any one or more of the defendants being surety for the others, the surety may, upon a written statement of the matter being set out in his answer, cause the question of suretyship to be tried and determined upon the issue made for the parties -defendant at the trial of the cause or at any time before or after -the trial, or at a subsequent term; ■ but such proceedings shall not delay the suit of the plaintiff.
“ART. 3663. If the finding of such issue be in favor of the surety the court shall make an order directing the sheriff to levy the execution first upon the property of the principal subject to. execution, and situate in the county in. which the judgment was rendered, before a levy shall be made upon the property of the surety, if so much property of the principal can be found as will in the opinion of the sheriff be sufficient, to make the amount of the execution; otherwise the levy to be made on so. much property of the principal as may be found, if any, and upon so much of the property of the surety as may be necessary to make the amount of the execution; and the clerk shall make a memorandum of such order on the execution.
“ART. 3664. When any person, being surety in any undertaking whatever, shall be compelled to pay any judgment, or any part thereof, or shall make any payment which is applied upon such judgment by reason of such suretyship, the said judgment shall not be discharged by such payment, but shall remain in force for the use of such surety, and shall be considered as assigned to such surety, together with all the rights of the creditor thereunder, to the extent of the payment thereon made by such surety, and interest thereon;' and such surety shall be entitled to have execution thereon in the name of the creditor for the use of such surety against'the principal debtor for the full amount of such payment and interest thereon and all -costs, , which execution shall be issued upon the application of such surety .to the clerk, or court, as the case may be, and shall be levied, collected and returned as in other cases.
-“ART. 3665. Should there be more than one surety, and one or more of them has failed to pay his proportionate part of the judgment, execution may issue, as provided in the preceding article, against the principal for the use of the surety who has paid more than his proportionate part for the whole amount paid by him and interest thereon, and also against his co-sureties for their proportionate part of the excess so paid by him, and interest thereon.
“ART. 3666. If a sheriff or other officer shall be compelled to pay any judgment, or any part thereof, by reason of any default of such officer, except for failing to pay over any money collected, or for wasting property levied on, such sheriff or other officer shall be entitled to have execution therefor against the principal defendant in such judgment as provided in the case of a surety.
“ART. 3667. No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in the cases provided for in article 1208.
“ART. 3668. The remedy provided for sureties by this title extends to indorsers, guarantors, drawers of bills which have been accepted, and every other suretyship, whether created by express contract or by the operation of law.”

Art. 2284, R.C.S., 1879, under the Title Execution, provided for levy of execution first to be made on the property of the principal.

The next codification of the Civil Statutes of Texas was in 1895. These statutes followed the same pattern in regulating the rights of sureties as established in.the Revised Civil Statutes of 1879. See Arts. 1203 and 1204, Ch. 5, Parties to Suits, R.C.S., 1895 and Title LXXXIV, PRINCIPAL and SURETY, Arts. 3811-3819 and Art. 2341, R.C.S., 1895. Similar treatment of the subject was accorded in the Revised Civil Statutes of-1911. See Arts. 1842-3, Ch. 5, Parties to Suits, and Title 109, Principal and Surety, Arts. 6329-6337 and Art. 3732, R.C. S., 1911. The same is true of the statutory revision of 1925. See Arts. 1986-7, Title 42, Sec. 3, Parties to Suits, and Title 110, Principal and Surety, Arts. 6244-52, R.C.S., 1925. See also Arts. 2088 and 3786, R.C.S., 1925, respectively, regulating discontinuance as to principal obligor and levy of execution against property of surety.

The only changes made in these statutes since the 1925 recodification were that the substance of repealed Art. 6246 is now incorporated in Rule 32, T.R.C.P. and, similarly the substance Art. 6251 is now incorporated in Rule 31, id.

The Supreme Court in reversing our decision herein erroneously stated that our failure to follow Ritter v. Hamilton was because it had not been cited in recent years. What we said was that its force had been dispelled in the “light of subsequent legislation and judicial decisions.” 363 S.W.2d 485.

Arts. 6244 and 6245, V.A.C.S., provide that a surety may require the obligee to institute suit against a principal and if not done the surety shall be discharged from liability. Under Buck v. Reed, the obligee upon receiving such request from the surety could, with impunity, reply, “Although I know full well that you are surety on the obligation which I hold, since you did not put ‘surety’ beneath your signature, I do not have to sue your principal. I will wait [limitations considered] until the wastrel (principal) has become insolvent and then I will sue you.”

It will not do to say that the rights afforded a surety by these articles are not available to .sureties who do. not sign as sureties. It has been held that they are so available. Sullivan v. Dwyer, 42 S.W. 355, San Antonio Civil Appeals, Georges v. Fricke, 283 S.W. 221, Austin Civil Appeals, writ reí.

In our previous opinion we cited and quoted from First Nat’l. Bank v. Alexander, Tex.Civ.App., 4 S.W.2d 298, to the effect a surety may avail himself of the, protection which the law affords a surety where the creditor has knowledge of such relationship even though the suretyship doqs not-appear on the face of the written obligation. This quotation was copied approvingly in-Stetson v. First National Bank of Cleveland, Tex.Civ.App., 44 S.W.2d 792, also cited by us previously, in which a writ of error was refused by the Supreme Court. Neither of these cases was referred to by the Supreme Court in reversing our decision herein.

The effect of the refusal of a writ of error in the Cleveland Bank Case (1931) was to make its language the language of the Supreme Court. The result is that the Supreme Court has stated that the protection which the law gives a surety is available under the circumstances here. Certainly it cannot be denied that one of the protective enactments is contained in Rule 31, T.R.C.P.

Since this Rule is not quoted by the Supreme Court, I quote it:

“Rule 31. Surety Not To Be Sued Alone
“No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules.”

In fact this Rule, which we held was not properly observed, is cited only once in the opinion of the Supreme Court. I quote the whole paragraph in which the Court cites Rule 31 :

“We hold that when a party signs a note in the capacity of a maker, the payee (or one standing in the shoes of a payee) may sue such'ma'ker singly and proceed to judgment upon the note without joining in the suit another or others who may also appear upon the note as co-makers. If in truth and in fact one of the co-makers stands in the relationship of a surety jra another comaker, the burden evolves upon the one claiming a surety’s rights to- set up those rights by proper pleading and bring into the suit such other parties as may be required to afford him appropriate relief. Rules 30, 31 and 32, Texas Rules of Civil Procedure. We do not have before us a case in which a party defendant signed a negotiable instrument which shows upon its face that he signed in some other capacity than that of a maker.”

Rules 30 and 32, which the Court -did not quote or give their substance,-provider- -

“Rule 30. Parties To Suits
“Assignors, indorsers and other parties not primarily liable upon any instruments named in the title of the Revised Civil Statutes of Texas, 1925, dealing with Bills and Notes, may be jointly sued with their principal obli-gors, or may be sued alone in the cases provided for in Articles 1986 and 1987 of such statutes.
“Rule 32. May Have Question of Suretyship Tried
“When any suit is brought against two or more defendants upon any contract, any one or more of the defendants being surety for the other, the surety may cause the question of surety-ship to be tried and determined upon the issue made for the parties defendant at the trial of the cause, or at any time before or after the trial or at a subsequent term. Such proceedings shall not delay the suit of the plaintiff.”

I have read and re-read these three Rules and I simply cannot find any language in them which supports the Court’s holding that they require a surety to bring in his principal under the circumstances present here. In fact, I cannot find anything in these Rules which supports any holding of the Supreme Court in the paragraph in its opinion citing such Rules.

Rule 30 authorizes suits against parties primarily and secondarily liable jointly, but it clearly restricts suits against those secondarily liable alone to the exceptions contained in Arts. 1986 and 1987, R.C.S., 1925.

Comment on Rule 31, in this regard, would be superfluous.

Rule 32 applies, by its lucid language, only to suits against “two or more defendants.” This suit was against a single defendant, the surety.

The Supreme Court does not say that Rule 31 is vague, ambiguous or for any reason invalid. In Rudman v. Railroad Commission, 162 Tex. 579, 349 S.W.2d 717, we were reminded that,

“ ‘Courts must take statutes as they find them.’ ”

The application of this mandate requires obedience to Rule 31 with the result that a surety would be accorded his lawful rights. The Courts have frequently referred to a surety as a favorite of the law, and that a surety’s liability is strictissimi juris. 39 Tex.Jur. p. 918. This is “a rule of substantive law relating to the nature of the surety’s liability and his special defenses.” Houston Fire and Casualty Ins. Co. v. E. E. Cloer Gen. Con., 217 F.2d 906, Fifth Cir.

In First National Bank of Victoria v. Skidmore, 30 S.W. 564 [1895], Galveston Civ.App., opinion by Williams, J., it was held that when it is known to the payee of a note that the relation of principal and surety exists between the makers of the note, although such relationship is not shown by the note, that an agreement, without the consent of the surety, not to sue the principal for a definite time, will release the surety.

In Shapleigh Hardware Co. v. Wells & Chestnutt, 90 Tex. 110, 37 S.W. 411, (1896), the Court denied application of the rule stated in the preceding case to a situation where the parties obligated subsequently agreed between themselves, without the consent of the obligee, that one should be surety for the other.. The Court, Judge Brown writing, in discussing the question states:

“In the case of Smith v. Shelden, Chief Justice Cooley undertakes to reason to the conclusion that such agreement would have the effect to change the contract without the consent of the creditor. He first lays down the correct rule that, as between themselves, the retiring partner became a surety for the other partner. Also another proposition to the effect that, if a contract be made by two or more persons as joint obligors therein, but it does not appear from the face of the writing that one of them is surety for the others, and if it be not known to the obligee in the contract that such is the case, then all the obligors will be regarded as principals in so far as it affects the obligee until the fact of suretyship is made known to him, after which he must observe the rights of the surety in his dealing with the principal in the contract. The learned judge then proceeds to reason that because, under such circumstances, the fact of suretyship being made know to the creditor imposed upon him the obligation to treat the surety as such from the time the information is received, it follows that the principal obligors in a contract may, by agreement between themselves, change the obligation of one or more from that of principal debtor to that of surety, and upon notice of such agreement to the obligee the same effect will be given as if the suretyship originated in the contract itself. This is evidently unsound reasoning. In the first case stated the contract was made by the party as a surety, but he was deprived of the protection given to a surety by the law, because the payee was an innocent holder of it for value without notice of his rights as surety, and, upon notice being: given, the character of the creditor as' innocent holder ceased, and the terms-' of the contract became operative and • in full effect as to all the parties; * * ;
The doctrine asserted as to the rights of the surety, who contracted as such,' after the suretyship was made known to the holder of the contract, is equitable in itself, and consistent with sound legal principles', * * *” (Italics added.)

I am unable to distinguish, in principle, the enforcement of the surety’s rights in cases where his relation to his principal is learned by the obligee after the execution -of the contract from this case where it was known from the inception of the transaction.

Attention is also directed to present Article 6252, copied above as Art. 3668, R.C.S. 1879, not noticed in Reed and not in existence when Ritter was decided. 'This article extends the “remedy provided for sureties” to “every other suretyship.” The preceding article, present Rule 31, provided that no surety shall be sued unless his principal is joined with him. Certainly the language of Art. 6252, R.C.S.1925, is broad enough to include the present express but unwritten suretyship. If so, then this statute alone should suffice for the purpose of holding that Ritter has been legislated away.

The Court in Reed cites and quotes from cases from California and .Wisconsin to sustain its decision. This is indeed strange. The Courts of those -states are in conflict with the decision of the Supreme Court of Texas in Howth cited in Reed by this Court and the Supreme Court regarding the effect of the Uniform Negotiable Instruments Act, Art. 5933, V.A.T.S., upon the rights of undisclosed sureties on negotiable instruments. See 11 C.J.S. Bills and Notes § 752 b, p. 321; Mortgage Guarantee Co. v. Chotiner, 8 Cal.2d 110, 64 P.2d 138, 108 A.L.R. 1080, S.Ct. of California.

The opinion in the California case contains a thorough and exhaustive discussion of this question and it reluctantly follows the'majority rule in holding that the U.N.I, A. supersedes the general law of surety-ship in determining rights and liabilities- ■ under negotiable instruments. Texas does not follow the majority rule as Howth discloses. ■ By statutes, rules and Court decisions, Ritter and Buck to the contrary, the-rights and remedies of sureties in Texas have been preserved to them even as to negotiable instruments when the obligee was-not a holder in due course.

I commend the opinion in Chotiner and’ the authorities there cited to those who may be interested in a now academic' study of the plainly given right of a surety to insist, that his principal be joined with him when: sued unless excused in accordance with law.

The Supreme Court in Brick regarded the question presented as “being one of procedure relating to necessary parties” and ' not one “of a plea in bar — an extension of payment which was not consented to by the obligor secondarily liable upon the note.!’'

In Chotiner, supra, it was stated:

“While the cases so far cited have-dealt almost entirely with the defense of' an extension of time without the consent of the accommodation maker, the rulings have in general been broad enough;. to include the entire category of surety-ship defenses.”

The defense of a surety based on ttn- ■ authorized extension of time of payment,, which our Supreme Court would seemingly honor, is characterized by the Court in Chot-iner in this language:

■’ “We are the less reluctant to sc hold (that the U.N.I.A. abrogated surety defenses to negotiable instruments) because of the fact that the defense of' an extension of time is one of the more-technical suretyship defenses, the injuries resulting to the surety by reason thereof being more likely to be theoretical than real.”

This technical common law defense is-preferred as indicated by Reed, to the plainly worded Rule deliberately placed by the Supreme Court in our Rules of Civil Procedure for the guidance of attorneys, their clients, and Courts. I submit that there is no reasonable basis for this preferment. Whatever name may be given to Rule 31, in this case its enforcement would, it appears, preclude suit against Buck. As to him, it is -the equivalent of a plea in bar.

I have tried to amplify here the basis of our previous decision which was that Ritter in the “light of subsequent legislation and judicial decisions” was no longer law. I also accept the suggestion made by the Supreme Court that the deseutude into which the early Supreme Court cases have fallen is highly significant. That the rule they stand for has not been invoked in this century is strong evidence that it does not exist. This case was pled and tried by the parties, their eminent counsel, and by the Trial Court as they and this Court considered the law to be. It is simply incredible to me that the Bench and Bar of this State have overlooked Ritter v. Hamilton for three quarters of a century, the Supreme Court for more than one hundred years.

      . P. 365, Acts 1st Leg. 1846

      . This case, of course, excepted.

      . It is to be noted that tbe exception of a “bill of exchange or promissory note assignable or negociable by law” contained in See: 14 of the 1858 statutes is omitted.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    CAMPBELL & SUMMERHAYS, INC., et al., Appellants, v. Frances M. GREENE, Appellee. KLEMPNER SUPPLY COMPANY et al., Appellants, v. Frances M. GREENE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    Rehearings Denied Sept 18, 1964.
    Edward M. Post, Robert P. Hastings and Lively M. Wilson, Stites, Peabody & Helm, Allen P. Dodd, Jr., Dodd & Dodd, Garner M. Petrie, Louisville, for appellants.
    Clinton Burroughs, Oldham, Burroughs & Miller, Louisville, for appellee.
   CULLEN, Commissioner.

In proceedings between the owner of a tract of real estate and various persons who, under contract with a lessee of the tract, had supplied labor and materials for the contruction of a building on the tract, the question was presented whether mechanics’ liens for the labor and materials could be enforced against the owner. The trial court answered the question in the negative and entered judgment in favor of the owner. The lien claimants have appealed.

Appellee Frances Greene, the owner of the land, leased it to Brownsboro Road Funeral Home, Inc., for a period of 10 years with options in the lessee to renew for an additional 10 years and at the end of the 20-year period to purchase the land at a stated price. The lease contained the following provision:

“Within a year from the date hereof, Lessee shall construct and fully complete on said premises a one and one-half (XVz) story building, to be constructed of good material, erected in a good workmanlike manner, and be ready for occupancy on or before one year from this date, free and clear of all liens of contractors, sub-contractors, mechanics, laborers, materialmen, and other items of like character.
“The building to be erected is to be designed to be occupied by a funeral home.”

The lease was recorded. Thereafter the lessee undertook construction of a building estimated to cost around $100,000. However, shortly the lessee ran out of money and there was an accumulation of substantial claims for labor and materials. Also, the lessee defaulted in the rental payments as a result of which the lease was forfeited. The building was left only partially constructed.

The laborers and materialmen complied with all statutory requirements -to perfect mechanics’ liens. The only question is whether the liens are enforceable against the land, full possession and title to which have reverted to the owner.

KRS 376.010 provides that any person who performs labor or furnishes materials for the erection of a structure by contract with or by the written consent of the owner or his authorized agent shall have a lien on the land or on any interest the owner has therein. It is the contention of the appellants that by virtue of the provision of the lease requiring the lessee to erect a building which would enhance the value of the land, the lessee was made the agent of the owner within the meaning of the statute.-

There is general support of the appellants’ position in decisions from other jurisdictions. See 57 C.J.S. Mechanics’ Liens § 65c(4) (a), p. 562; Annotations, 79 A.L.R. 962, 163 A.L.R. 992. There also is substantial authority for the proposition that the execution of a lease requiring the lessee to construct a building constitutes “written consent” of the owner within the meaning of the mechanics’ lien statutes. See 57 C.J.S. Mechanics’ Liens § 65c(4) (a), p. 562; 36 Am.Jur., Mechanics’ Liens, sec. 95, p. 74.

The basic theory of the decisions appears to be that the owner, in requiring the lessee to construct a building that will increase the value of the land upon reversion to the owner, is in effect contracting for the improvement for his own benefit.

We have no difficulty in accepting the basic theory and in applying it either under the “agency” clause or the “consent” clause of the statute. Nor do we have any difficulty in concluding that the provision of the lease requiring the building to be erected free and clear of liens is not, solely as a contract between the lessor and lessee, effectual to relieve the lessor of the liability that the statute imposes upon him. See 57 C.J.S. Mechanics’ 'Liens § 65c(4) (d), p. 565; Annotations, 79 A.L.R. 972, 163 A.L.R. 1000. However, we do have some trouble with the question of whether the recording of the lease, containing the no-lien clause, may be considered constructive notice of limitations on the owner’s “consent,” or on the lessee’s “agency,” such as to preclude enforcement of a lien against the owner.

It seems to us, after full deliberation, that the recording of the lease is not really a significant factor. The true basis for holding the owner liable is that the improvement is for his benefit, That being so, he should not be relieved of subjection to a lien merely because he informs the laborer or materialman, actually or constructively, that he does not intend to be liable. The rule in a substantial number of jurisdictions-(which rule we think is sound) is that an owner who has employed a contractor to construct a building for him cannot free himself of lien liability by inserting a provision in the contract that the contractor shall erect the building free of liens. See 36 Am.Jur., Mechanics’ Liens, Sec. 231, p. 148; Central Trust Co. v. Richmond, N., I. & B. R. Co., 6 Cir., 68 F. 90. And the recording of such a contract is immaterial. 36 Am. Jur., Mechanics’ Liens, Sec. 232, p. 149. So why should there be a different rule in the lessor-lessee situation ?

The mechanics’ lien statutes are not predicated on any concept of credit reliance —the laborer or materialman may enforce a lien against the owner of land even though at the time he performed the labor or furnished the materials he did not know who was the owner. In the decisions supporting the majority rule hereinbefore stated — that the landowner’s interest is subject to lien where the lease requires the lessee to construct the building — it seems to have been •considered immaterial whether the laborer •or materialman knew of such requirement. In other words, the right to the lien has not "been predicated upon any reliance by the laborer or materialman upon the terms of the lease. Therefore, it should not be a basis for denying the lien that the laborer ■ or materialman was put on notice that the ‘landlord was disclaiming liability.

We have had no previous cases in Kentucky involving the question of subjection •of the landlord’s interest to a lien where -the lease requires the lessee to construct a’ 'building. However, we have had two cases involving the question of subjecting a vendor's interest where the contract of sale requires the vendee to construct an improvement. In Weir v. Jarecki Mfg. Co., 254 Ky. 738, 72 S.W.2d 450, where a contract for the sale of an undivided interest in an oil and gas lease required the vendee to drill certain wells, it was held that the persons who furnished labor and materials for the drilling of the wells could not enforce a lien against the interest of the vendor. Some importance was attached to the fact that the recorded contract of sale contained a provision that the wells should be drilled without cost or expense to the vendors. The opinion in the Weir case undertook to distinguish Penney v. Kentucky Utilities Co., 238 Ky. 167, 37 S.W.2d 5, where a contract for the sale of a hotel property required the vendee to make substantial improvements, and it was held that 'liens could be enforced against the vendor’s interest.

We can see no real distinction between the Weir and Penney cases and it is •our opinion now that the Weir decision is •unsound, particularly as concerns the significance of recording. The mechanics’ lien statutes are to be construed liberally to protect those who furnish labor and materials. Ohio Oil Co. v. Smith-Haggard Lumber Co., 288 Ky. 278, 156 S.W.2d 111; Hodges v. Quire, 295 Ky. 78, 174 S.W.2d 9. Under a liberal construction the laborers and materialmen should be protected where the work is done and the materials furnished by contract with an agent of the owner or by written consent of the owner, notwithstanding an attempted disclaimer of liability by the owner, even placed to record.

It is our conclusion that the liens of the appellants are enforceable against the interests of the appellee.

The judgment is reversed with directions to enter judgment in conformity with this opinion.


author: PALMORE, Judge.

text:
    Raymond G. HEUSTIS, Appellant, v. Helen HEUSTIS, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.

      J. P. Karem, Karem & Karem, Louisville, for appellant.
    Francis Bauman, Wallace H. Manske, Louisville, for appellee.
   PALMORE, Judge.

In accordance with our decision on a previous appeal of this case, Heustis v. Heustis, Ky., 346 S.W.2d 778 (1961), the trial court entered a judgment awarding the wife lump sum alimony in the amount of $49,000. Both parties appeal.

The alimony figure was based on a stipulation that the husband’s equities in real estate had a fair value of $97,619 and a finding that the net worth of his business was $49,298, making a round total of $147,-000. The husband’s complaint is that the trial court refused to allow him, as credits toward the $49,000 alimony, $6675 paid by him to the wife pendente lite, $4000 as the value of furniture and an automobile retained by the wife, and $7650 as the rental value of the residence, which was occupied by the wife and their son for SI months during the course of the litigation.

In Wheeler v. Wheeler, Ky., 238 S.W.2d 1001, 1003 (1951), it was held that temporary alimony should be credited on the award of permanent alimony. In Oldham v. Oldham, Ky., 259 S.W.2d 42, 44 (1953), the Wheeler case apparently was treated as a precedent establishing a standing rule or principle to that effect. To clarify the question, we think the correct rule is exemplified by the later case of Hicks v. Hicks, Ky., 290 S.W.2d 483, 485 (1956), in which it was recognized that the allowance or non-allowance of pendente lite alimony payments as a credit toward the ultimate award is a matter to be taken into consideration by the chancellor in fixing the amount of the permanent award. For example, had he so chosen in this case the chancellor could have awarded more than $49,000 in cash alimony. The record makes it clear that in fixing that amount he took into consideration, by expressly disallowing them as a credit, all such amounts as had been paid theretofore.

The same is true with respect to the automobile, furniture, and rent claim. The record leaves no doubt that the $49,000 award was meant to be free and clear of whatever the wife had received prior to the last judgment.

The trial court having considered all these items in arriving at the amount of cash alimony, they cannot as a matter of law be held deductible from it. Cf. Hicks v. Hicks, Ky., 290 S.W.2d 483, 485 (1956). We do not mean to say, of course, that they could not be considered on a review of the reasonableness of the total award. However, we find nothing to suggest that the over-all award was unreasonable or in conflict with our earlier opinion in the case.

The wife complains of the failure of the trial court to include an amount for good will in arriving at the net worth of the business. A competent witness agreed on by the parties estimated it at $50,000, or 2J/2 times the “profit” earned by the business in the year 1957. Admittedly, however, the profit figure did not reflect any deduction in the way of salary for the husband, who actively managed the enterprise, and was substantially higher than the earnings realized in prior years. It was shown, moreover, that the good will of the particular business in question, depending largely on the relationship of the individual proprietor and being essentially nontransferable, was of highly speculative value. Hence we cannot say that the finding in this respect was clearly erroneous. No doubt, too, the chancellor took this item into consideration in declining to charge the wife’s lump sum award with the property and payments theretofore received by her during the course of the litigation.

A further contention by the wife is that she should receive interest on the amount of the cash award from the date of commencement of the suit in 1957. Without passing on the question of whether the chancellor could properly have allowed interest, certainly he did not abuse his discretion in cleaving to the general rule that an unliquidated claim does not bear interest until it becomes liquidated by reduction to a judgment. Cf. Maynard v. Maynard, Ky., 251 S.W.2d 454, 456 (1952). And again, the record shows that the chancellor specifically considered this equity in rejecting the husband’s claims for the various credits heretofore mentioned.

The judgment is affirmed.

      . It was directed in Heustis v. Heutis, Ky., 346 S.W.2d 778, 780 (1961), that the alimony be fixed at “not less” than one-third.

      . Though allowed into the record as avowals, the testimony of other witnesses on this subject was competent and evidently was considered by the chancellor in arriving at his judgment. The record does not contain any stipulation that the parties would be bound by the estimate of the witness jointly chosen by them.


author: JOHN B. RODES, Special Commissioner.

text:
    REYNOLDS METALS COMPANY, Inc., Appellant, v. Mike THOMPSON et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.
    As Modified on Denial of Rehearing Sept. 18, 1964.
    Carl L. Wedekind, Jr., Lloyd Cardwell, Stites, Peabody & Helm, Louisville, for appellant.
    Richard H. Nash, Davis M. Howerton, Jr., Marshall, Cochran, Heyburn & Wells,. Louisville, for appellee.
   JOHN B. RODES, Special Commissioner.

This is an appeal from a judgment entered in the Jefferson Circuit Court awarding the appellee, Mike Thompson, $5,500; for personal injuries sustained in an industrial accident at the Reynolds Metals Company plant in Louisville on March 7, 1961.

This case is simplified since appellant filed a statement of points on which it intended to rely on this appeal. Such statement reads as follows:

(1) No negligence was proved against appellant, Reynolds Metals Company, Incorporated.

(2) Even if appellant, Reynolds Metala Company, Incorporated, were negligent (which is not admitted), the appellee waa guilty of contributory negligence as a matter of law.

(3) The appellee failed to prove the standard of care required of appellant’s agents in the operation of the forklift truck and thus the court was in error in submitting the case to the jury.

We shall therefore confine ourselves to. the points mentioned above and first we-shall state the facts. On March 7, 1961 Mike Thompson drove a tractor-trailer loaded with aluminum ingots to the Reynolds plant in Louisville for the purpose of delivery. The tractor-trailer was backed up to the docks of the Reynolds plant where it was the job of Thompson to remove the tailgates. These tailgates were fitted into vertical grooves in the body of the truck and had to be removed in order that the Reynolds employees could enter with a dolly to •unload it.

When Thompson attempted to remove the •right tailgate he found it was stuck and resisted his efforts to lift it. The Reynolds foreman needed the ingots without delay ■and ordered Thompson to stand back or step •aside. The foreman then took sole charge ■of the operation of lifting the tailgate. Thompson did step back in the truck about four or five feet from the tailgates and the Reynolds foreman ordered one Cocheril, who was operating the dolly, to move in and lift the gate. He thus assumed sole charge ■of this operation. The dolly was an implement operated by a motor equipped with ;prongs which could be pushed under a load •and power exerted to lift same. On this occasion the prongs of the dolly were placed ■underneath the lower bar of the gate and ■Cockeril used its power to break the tie or embrace of the tailgate with the groove in the body of the truck. In doing so he was in •sole charge of this operation and in sole ■charge of the extent of the force or thrust •which would be employed to break the tie and to lift the gate. In applying the pressure from the dolly, its operator gave the gate such a thrust that it suddenly became •dislodged and, according to Thompson, was thrown four or five feet forward and struck him in the face.

It is claimed by appellant that there was no evidence of any negligence on its part. The important fact is that the Reynolds foreman was a volunteer in taking charge ■of the operation of lifting the gate and the operator of the dolly was in sole charge of •the pressure employed.

It is claimed that the court gave the jury no standard by which it might determine whether the Reynolds employee was negligent. But the law raises the standard which is one of exercise of ordinary care.

The English maxim “Sic Utere Tuo Ut Alienum Non Laedas” applies here. This is paraphrased in 38 American Jurisprudence, Section 14, page 656, as follows:

“ * * * Accordingly, the law imposes upon every person who undertakes the performance of an act which, it is apparent, if not done carefully, will be dangerous to other persons or the property of other persons, the duty to exercise his senses and intelligence to avoid injury, and he may be held accountable at law for an injury to person or to property which is directly attributable to a breach of such duty. * *
It is also said in Section 17, page 659:
“ * * * The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which duty an action lies. * *

See also Shell v. Town of Evarts, 296 Ky. 602, 178 S.W.2d 32.

Whether the operator of the dolly used ordinary care in lifting the tailgate was a question for the jury and the trial court properly submitted this question under an instruction defining ordinary care as that which an ordinarily prudent person would exercise under the same or similar circumstances.

A greater emphasis is placed by appellant upon the contributory negligence of Thompson who, it is claimed, having been warned to stand aside should have placed himself out of the possibility of injury. It is claimed that as a matter of law Thompson assumed the risk by standing four or five feet distant from the operation of lifting the gate.

It was written in Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021 as follows:

“The assumption of risk of a danger amounts to contributory negligence so as to bar recovery when the injured person is aware of the conditions which create the danger and in addition thereto appreciates in his own mind the danger attendant upon such conditions. * * *»

Now let us examine the record. There were four witnesses to this accident. They were Mike Thompson, the injured man; Coy Cockeril, the operator of the dolly; John Rogers, the Reynolds foreman and Joseph Boes, a Reynolds clerk.

Thompson testified:

“Yes, sir, I could have hut I thought I was in a safe enough place or I would have done that. The man could see me standing there. * *

Coy Cockeril answered the following question thusly:

“Q. And then you assumed that he was in a safe position and you went ahead and put this extraordinary pressure on it?
“A. That’s right.”
John Rogers testified:
“I told Mr. Thompson to move back, he moved back four to five feet where I considered him to be in a safe position at that time and that is when I turned to leave.”
Joseph Boes testified as follows:
“I told him to move back, I didn’t know how far he got back, whether it was a safe distance or not, all I knew was I told him to get back.”

Here are three men at the scene out of four testifying that they considered the position of Thompson at the time to be safe. Under these circumstances it can hardly be said as a matter of law that he assumed the risk or appreciated the danger.

The trial court properly overruled appellant’s motion for a directed verdict and also for judgment notwithstanding the verdict.

Having done so and the jury having been properly instructed, we see no error in the proceedings in the trial court and therefore reach the conclusion that the judgment should be affirmed.

The opinion is approved by the Court, and the judgment is affirmed.


author: RUARK, Presiding Judge.

text:
    Henry DANIEL, Plaintiff-Respondent, v. P. L. CHILDRESS, Defendant-Appellant.
    No. 8263.
    Springfield Court of Appeals. Missouri.
    Aug. 4, 1964.
    Motion for Rehearing or Transfer Overruled Sept. 1, 1964.
    Daniel, Clampett, Ellis, Rittershouse & Dalton, B. H. Clampett, Ransom A. Ellis, Jr., Springfield, for defendant-appellant.
    Robert McPherson, Aurora, Robert Stemmons, Mt. Vernon, for plaintiff-respondent.
   RUARK, Presiding Judge.

Plaintiff Henry Daniel came off second best in an encounter with a heifer calf and has secured judgment of four thousand dollars against defendant Childress, who now appeals. The suit arises out of an injury plaintiff received while assisting in a dehorning and vaccinating operation on defendant’s farm. Plaintiff was herding, or urging, the calf down a chute or runway leading into the place of operation. The calf had other notions. The result — broken ribs and this suit.

Plaintiff, thirty-eight years old at the time (March 14, 1961), had handled cattle “all my life” on his own farm. Such experience included the dehorning process. Defendant was engaged in a rather large farming operation which involved the purchase, feeding, and sale of cattle. There were times when he had from two to three hundred cattle on his place. Plaintiff had been employed by defendant for three and one-half years prior to the incident here involved. A part of his work involved the feeding and care of cattle. During this period he had also participated in the dehorning and vaccination processes on defendant’s place.

Dehorning takes place during the period from November through March while there are no flies. In the dehorning and vaccination operation on defendant’s farm, the cattle or calves are driven from the pen — one at a time — down a chute, runway, or alley to the dehorning chute or “veterinarian’s squeeze tank.” The chute, alley, or runway down which the cattle are driven consists of two parallel fences made of posts and plank. These side fences are four to four and one-half feet high. Along the inside of each are two “runners” or “stringers” (made of two-by-six lumber), nailed one above the other with several inches’ space between. These stringers serve the purpose of keeping cattle which are coming down the runway from coming into contact with the upright posts of the side fences and also of permitting a person in the runway to step up on the fence and to get out of the runway to afford free passage to cattle coming down it. The inside measurement of the ■ runway here in use was three and one-half to four feet. This runway chute was used on other occasions to direct cattle into a loading chute. But on this occasion the veterinarian’s squeeze chute was placed at the east end. The open width of this squeeze chute is slightly less than that of the runway. It has a wooden floor and sides of metal bars or rods. It is so constructed that, when an animal enters, a gate can be dropped behind the victim, a stanchion will seize and hold it by the neck, and (by means of a lever) the metal bar sides can be squeezed in against the victim so as to hold it practically immobile-while it is subjected to the indignity of de-horning, vaccination, or castration.

As stated, plaintiff had participated iru this operation of dehorning and vaccinating during the three and one-half years he had worked for defendant. He was unable-to say how many animals had been processed during the period he participated, but his witness Wardlow and others testified that during the period of his (plaintiff’s) employment from five hundred to six hundred crows and calves were processed annually. In these dehorning operations four men had worked as a team, each doing the same job-. Tennis, superintendent and foreman, and Jennings, an employee, worked at the squeeze chute. Tennis attended to vaccination and, if necessary, castration. Jennings, used the dehorners. Plaintiff and-his witness Wardlow were accustomed to drive the cattle from the pen down the runway to the squeeze chute. These two had worked together and always performed the same function.

On this occasion there were fifty, sixty, or perhaps seventy head of “run of the mill” whiteface Hereford calves in the pen to the west of the runway “to be run through.” Approximately one-third of them (being yearlings) had horns. In the immediate instance, Wardlow had a group of these calves (five or six) bunched together at the entrance from the pen at the west end of the chute. From this group two calves came down the alley. Plaintiff stepped up on a stringer (on the side of the runway) and let the first one go by'. Then he stepped down into the runway behind it so as to turn one back and drive the other into the squeeze chute. This animal, so being driven to the squeeze, was a (white-face) heifer weighing about three hundred pounds. Plaintiff was right behind it with a stick in his hand, but he does not recall whether or not he struck it. The calf got to the squeeze chute and balked. Although there is evidence to the contrary from, plaintiff’s own witness, we must take that most favorable to the verdict; therefore, we must assume, from plaintiff’s testimony, that when the calf got to the squeeze chute it suddenly, and without warning, whirled or spun around and struck plaintiff in his right side. Plaintiff does not say what part of the heifer calf’s body struck him, but his witness Wardlow testified that the animal struck him in the chest with its shoulder as it raced, or escaped back to join its fellows. This thrust, blow, lunge, or whatever it may be called pushed, drove, or threw plaintiff .against the side fence and he sustained the injury complained of.

Plaintiff testified that although he had run cattle down through to the squeeze chute before, this was the first time an animal had ever suddenly turned and started back up the runway. He said that defendant’s foreman, Tennis, had not warned him such would happen. He did say, however, that on previous occasions:

“Q. Is it not a fact that Mr. Ward-low would help you on some occasions get a calf to go into the squeeze chute if you had difficulty yourself getting him in there ?
“A. Yes.
“Q. If you had a real stubborn calf that didn’t want to go in, the two of you, Mr. Wardlow and yourself, would push that calf on in there, isn’t that true?
“A. Yes.”

Plaintiff said he was not familiar with this particular pen of calves which was the subject of operations that day. He didn’t think that defendant had had them very long but was not sure just how long. His witness Wardlow said defendant had purchased them the previous December. There is no evidence that the animals in this lot were particularly vicious, wild, or more difficult to handle than the ordinary.

Defendant witness Tennis testified that there was nothing different that morning from the methods or process which had .been followed on previous occasions in which plaintiff had participated. He testified that the use of the squeeze chute was the regular and ordinary way of carrying out that type of operation. He was not permitted (over objection by plaintiff) to testify as to whether it was the best method.

The grounds of recovery pleaded in the petition were that defendant failed to exercise ordinary care for plaintiff employee’s safety in that (a) the defendant ordered and directed the plaintiff to enter into the chute pen (the runway) while cattle were being herded when defendant knew or should have known that the cattle would and could suddenly and without warning turn and crush plaintiff against the side of the chute pen (runway), and (b) the defendant failed to warn the plaintiff of the vicious character of the cattle being herded. The case was submitted on the theory that the defendant’s foreman negligently ordered plaintiff to get into the runway chute and herd the cattle toward the squeeze chute when he knew or should have known that the cattle could and would, without warning, turn and strike plaintiff and crush him against the side of the runway.

There is no question that Tennis was defendant’s vice principal. There is no dispute that plaintiff and his teammate Ward-.low were that morning ordered to bring, the calves up the runway to the squeeze chute. Plaintiff stated, in general terms, that Clovis Tennis (the foreman) told him to get into the chute and push (or run) the cattle through and that was all Tennis said about it.. Wardlow testified that Tennis •said “Wardlow, you and Henry (the plaintiff) .put them in and drive them down to the —down to be dehorned, drive them down the chute.” There is no evidence that Tennis gave any specific order or direction as to how this or any other particular calf was to be handled. The question raised by appellant's principal contention, reduced to its simplest terms, is: Did plaintiff make a submissible case of defendant’s negligence in ordering plaintiff to drive the calves down the runway and, at least inferentially, to . get into the runway in order to accomplish such end?

It is the duty of the master to use all reasonable means and precautions against injury to the employee which ordinary prudence and foresight would dictate in the light of the circumstances and existing knowledge. Huskey v. Heine Safety Boiler Co., 192 Mo.App. 370, 181 S.W. 1041, aff. Mo., 188 S.W. 101; Vaccaro v. City of St. Louis, Mo.App., 123 S.W.2d 230; Elmore v. Missouri Pac. R. Co., Mo., 301 S.W.2d 776; Fitzpatrick v. St. Louis-San Francisco Ry. Co., Mo., 300 S.W.2d 490. But the master is not an insurer of his employee. He is not liable for the consequences of danger, only that of his own (or vice principal’s) negligence. In regard to the use of means and methods adopted to do the work,the best and safest method is not required. The test is whether the method used is that which has been found to be reasonably safe by ordinary usage and custom. Miller v. F. W. Woolworth Co., Mo., 328 S.W.2d 684; Schaum v. Southwestern Bell Telephone Co., 336 Mo. 228, 78 S.W.2d 439; Sweeney v. Terminal R. Ass’n of St. Louis, Mo.App., 110 S.W.2d 852; Emrick v. City of Springfield, Mo.App., 110 S.W.2d 840.

It must be recognized that practically all employments, indeed all human activities, involve some risk and danger; some more than others. The employee assumes the risk of injuries which are an ordinary incident of his employment. Sweeney v. Terminal R. Ass’n of St. Louis, supra; Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167; Mitchell v. Westport Hotel Operating Co., 225 Mo.App. 181, 19 S.W.2d 528; Schaum v. Southwestern Bell Telephone Co., supra. But he does not assume those risks (except those which are glaring, obvious, and threatening) which are the result of the employer’s negligence. Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; 245 Mo. 720, 151 S.W. 966; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Davis v. City of Independence, 330 Mo. 201, 49 S.W.2d 95, 98; Huskey v. Heine Safety Boiler Co., supra.

The narrow question is whether or not the defendant (through his foreman Tennis) was negligent in directing the plaintiff to get into the runway and drive the calves up into the squeeze chute. It has been said that negligence of the employer should first be determined before the question of assumption of risk is approached; but under the facts, circumstances, and state of the record in this case we find it unsatisfying to consider negligence of the master and assumption of risk of the employee separately, for the same facts determine both negligence and assumption of risk, and there is really only one question.

Usually “negligent order” cases involved pleaded and proven acts of negligence on the part of the employer which are precedent to or concurrent with the so-called negligent order. Thus, and to illustrate, in Jewell v. Kansas City Bolt & Nut Co., supra, there was pleaded and proven precedent and concurrent negligence in the failure to furnish a safe place to work, and in the furnishing of unfit materials and defective appliances. In Vaccaro v. City of St. Louis, supra, the employee was not furnished gloves to protect his hands. In Sweeney v. Terminal R. Ass’n of St. Louis, supra, the employer had permitted a greasy iron to lie in an uncustomary place.

There are cases, however, in which the “negligent order” is alone and of itself the basis of recovery — thus, where the employer orders the use of an unsafe method when a safe procedure is equally or reasonably available. This is illustrated in Huskey v. Heine Safety Boiler Co., supra. Another instance in which the order alone might suffice as negligence would be where the employer directs an inexperienced or incompetent employee to do a hazardous act even though the risk involved might be an ordinary incident of the work.

The nearest approach to this case, on pleaded theory, which we have found is that of Mitchell v. Westport Hotel Operating Co., supra. There the petition was based on the order similar (in theory) to that in the case at hand. The order was, as here, “a direction to engage in the general work that was in progress.” The court said that an experienced workman assumes all the risks ordinarily incident to the execution of an order, and 19 S.W.2d at 530:

“Unless there was some negligence on the part of the defendant in relation to the piling of the beams or the situation of the brace boards, or the like, plaintiff assumed the risk of the beams falling, by reason of the tendency of iron against iron to slide, and the falling over the brace boards by Smith. * *jc * »
“It may have been that the order of Smith, in his capacity as foreman, was to do a dangerous piece of work, but it' is well settled that the mere fact that the work is dangerous does not constitute negligence on the part of the master where the danger arises by reason of the inherent nature of the work and the servant is not inexperienced. * * * Where danger is inherent in the work and known to the servant the master is guilty of no negligence and the servant assumes the risk.”

Returning to the facts at hand: The plaintiff was no novice; he was an experienced farmer. He had handled cattle all his life, had engaged in his own dehorning operations, and in the previous dehorning operations, following the same methods, on the defendant’s farm. He was bound to know, as all farmers know, that animals are not reasoning creatures and their handling necessarily involves some risk, increasing or decreasing according to the circumstances, which could involve, among other things, separation from the herd, strange surroundings, excitement, and the possible attempt to escape. This is a risk incident to that work. While the risk exists, we doubt that it is any more hazardous or requires any more care and watchfulness than that required of and assumed by a servant who is ordered to drive a motor vehicle upon our crowded highways, or of one who is required to walk the dark streets of some of our crime-ridden cities. One is not entitled to a warning of that which is already known to him. As to extraordinary and unusual risk: There is no evidence that the method used in the process which the defendant followed was not the usual, ordinary, and accepted way of dehorning cattle, or that the method chosen was more hazardous than any other means known. We think that it is a matter of common knowledge in rural Missouri that chutes, chute pens, or runways are commonly used on farms, stockyards, and other places where it is necessary to handle, direct, and control large numbers of cattle. Cattle are animals, the dehorning process is painful, and they do not submit to it peacefully. (See Moore v. Stokes, Mo.App., 286 S.W.2d 835.) The operation requires their temporary confinement and partial immobilization. In order to secure this (unless they are educated to separation from the herd and to confinement) they must be driven, pulled, or pushed into the place of confinement; and this must be done whether or not they protest, balk, dodge, run, or otherwise attempt to escape or return to the herd. It has not been intimated how any method would have accomplished this more safely than by driving them down the runway chute into the squeeze chute as was here done. Nor is there any evidence by which the defendant is to be charged with knowledge that the situation which involved the heifer calf involved any extraordinary hazard. The owner of a bull is not to be charged with notice that it is vicious until he has reason to know (Alexander v. Crotchett, 233 Mo.App. 674, 124 S.W.2d 534), and the same applies to a master requiring a servant to round up and enclose a Texas steer (Clark v. Missouri, K. & T. R. Co., 179 Mo. 66, 77 S.W. 882). There is no evidence that defendant knew this animal was any more likely to attempt escape than any other. Nor was he required to assume that this whiteface calf, being the female of the species, was more deadly than the male and inherently vicious; and the evidence does not show that she was. Factually the case is quite similar to Rosedoff v. Consolidated Rendering Co., 94 N.H. 114, 47 A.2d 574, in which it was held that the plaintiff assumed the risk of driving a cow (which turned on him) down the runway.

We do not find facts from which it can be determined that defendant was negligent in ordering the plaintiff to do what he had previously done and was doing in this case, and we believe the plaintiff assumed the risk incident to his doing it. Any other holding would have the effect of making the farmer practically the insurer of all employees who have anything to do with animals. It thus appears to us that plaintiff did not make a submissible case of liability, and the judgment must therefore be reversed. It is so ordered.

STONE and HOGAN, TJ., concur.

      . Or is it really contributory negligence. See Schaum v. Southwestern Bell Telephone Co., 336 Mo. 228, 78 S.W.2d 439.