author: FLY, C. J.

text:
    TALLEY v. GULF, C. & S. F. RY. CO.
    (No. 5470.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 21, 1915.
    Rehearing Denied May 12, 1915.)
    1. Appeal and Error <@=1071 —Review — Harmless Error.
    The failure of the court, in an action for the negligent firing of a building, to make any finding on the question of negligence, while erroneous, is harmless; there being no evidence of any negligence, and the judgment for defendant being based on other grounds.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-^4239; Dec. Dig. <§= 1071.]
    2. Railroads <@=469 — Fires—Contracts.
    Where a railroad company built a switch track to plaintiff’s premises and leased part of its right of way to plaintiff under agreement that it should not be liable for any loss or damage to any property owned, leased, or controlled by plaintiff, whether arising through the company’s negligence, or otherwise, the contract included damage from fires communicated, not only from trains and locomotives on the switch track, but also on the main track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1665; Dec. Dig. <@=469.]
    3. Railroads <@=469 — Fires — Contracts — Consideration.
    A railroad company’s building of a switch for a shipper at a point where it had no station, and was not bound to establish a switch, was sufficient consideration for an agreement by the shipper that the company should not be liable to him for any fires caused by trains and locomotives on either the switch or the main track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1665; Dec. Dig. <S=469J
    4. Railroads <@=484^-Fires — Actions—Evidence.
    In 'a suit against a railroad company for J the firing of adjacent property, evidence held
      insufficient to go to the jury on any theory; the cause of the fire being wholly conjectural.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. ,<S=»484.]
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Action by F. A. Talley against the Gulf, Colorado & Santa FS Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    C. W. Nugent and C. A. Toler, both of Con-roe, Dean, Humphrey & Powell, of Huntsville, and J. T. Rucks, of Conroe, for appellant. Terry, Cavin & Mills, of Galveston, F. J. & C. T. Duff, of Beaumont, and W. N. Foster, of Conroe, for appellee.
   FLY, C. J.

This suit was instituted by appellant against appellee for damages arising from the destruction by fire of certain lumber and other property belonging to appellant. It was alleged that the depot of appellee was set on fire by sparks from its engines, and that therefrom the property of appellant was ignited and destroyed. Appel-lee pleaded contributory negligence and alleged that appellant had entered into written contracts with it by which he agreed that appellee should not be held liable for fires communicated to his property. The cause was tried without a jury, and judgment was rendered in favor of appellee.

The contract pleaded by appellee contained the following clause:

“That the first party shall not he held liable for or on account of any loss or damage to the property, buildings, or structures or property therein located, upon any land owned, leased, or controlled by the second party (including the said plant and its contents), whether belonging to the second party -or permitted by the second party to be or remain upon said land or any part thereof, or in any building or structure situated thereon, from whatever cause arising. whether through the negligence of the first party, its agents or servants, or any of them, or otherwise, it being understood that all risk of such loss or damage shall be, and it is hereby, assumed by the second party, and that neither the second party nor any one claiming under or through the second party shall make any demand against the first party for or on account of any such loss or damage from any cause whatever, and that the second party will indemnify and forever save and hold harmless the first party from and against any liability, claim, or demand • whatsoever for the loss of or injury to any such property, whether such loss or damage arise from fire set out in the use or operation of said spur track or tracks used in connection therewith or from other cause, and whether such loss or injury be caused accidentally or through the negligence or carelessness 'of the first party, and that in case of loss or damage to any such property the second party shall deliver or cause to be executed and delivered to the first party a full and complete release, satisfaction, and discharge of any and all claims or demands on account thereof.”

By “first party” is meant appellee, and “second party” is appellant, and the consideration was the building and operating of a switch or siding known as the “industrial track” adjacent to the mill and lumber yards of appellant, and largely for his benefit, The switch was at or near a small station called Keenan. Appellant admitted executing the contract, but attacked its validity on the ground that there had been a station and switch near his property for years prior to the time the contract was made, for the accommodation of the public, and that appel-lee was under obligation to provide facilities there for receiving and delivering freight to the public, and that the siding in question was for the general public, as well as for appellant. It was also pleaded that the con-ti’act was invalid because it sought to contract against the negligence of the railway company, and that there was no consideration for its execution.

The contract in question was dated March 15, 1907, and on February 27, 1911, appel-lee leased to appellant Its right of way north of its track and adjacent to the property of appellant, and in that lease contract was the following clause:

“That the lessor shall not be responsible for any loss or damage to the buildings or structures at any time upon the demised lands or to buildings or structures adjacent thereto, or to the property of the lessee or others in and upon any such buildings and structures, or any such adjacent buildings or structures, caused by fire, whether from railroad engines or from the buildings of said lessor, or by fires caused in any other way, but that all such loss and damage from whatever source shall be sustained by the lessee alone, and the successors, assigns, lessees, subtenants, licensee patrons, depositors, heirs, executors, and administrators of the lessee, and the lessee hereby agrees to indemnify and save harmless the lessor, its successors and assigns, against any liability, cause of action, claim, or demand which any of its patrons or depositors, or any insurer of the goods of either of them, may hereafter assert or have, arising out of or by reason of any such damage.”

Tile court declined to make any finding as to tfie negligence of appellee in connection with the fire, 'but placed his judgment on the ground that appellant had contracted away any claim that he may have had for damages arising from destruction of the property. No reason is offered for the refusal to pass upon the question of negligence, and it should have been done, but we are unable to see how appellant was prejudiced by that failure, as under the evidence the finding as to negligence must necessarily have been in favor of appellee. There was no evidence of negligence that could have formed the basis for a judgment.

The contracts are • broad enough in their terms to cover any and all fires communicated to the property of appellant by any act of appellee; the evident intention of the first contract at least being to protect appellee from all damages from fire communicated to appellant’s property from the operation of trains, not only on the siding, hut on the main track. The construction of the siding was made the occasion to obtain immunity for appellee from damages arising from tlie operation of its trains, whether on the siding or on the main line. At the time that the siding was constructed there was no station at the point where it was constructed, hut it was at another and different place at no great distance off. There the public was accommodated, and it was at the persistent entreaties of appellant that the new siding was built. It was built primarily for his benefit alone, and practically the whole of the freight business from that point belonged to appellant Appellee was under no legal obligation to build the new siding adjacent to the property of appellant, and as the inducement to build the siding the contract of immunity was made by appellant. He was so anxious for the siding that he did the grading and furnished the ties for the track, and built the loading dock which the witnesses denominate the “dolly-way.” The siding would never have been built except at the persistent instance and request of appellant. The second contract was executed in order to obtain the use of the right of way. There was a valid consideration for the execution of the two contracts. The fact that others used the switch in shipping freight did not destroy or impair the consideration. Appellant obtained all he desired from the siding, and it was largely for his use and benefit.

It is admitted by appellant:

“That if the appellee put in a side track or shipping facility for the appellant at some point where it had no station, and where it was under no legal obligation to furnish shipping facilities for the appellant and for the public, it -had the right, under the rule established by the decisions relied on by the appellee, to require as a consideration for the putting in of such facility the agreement on appellant’s part exempting it from liability from fire caused by the operation of trains over the facility so put in at the request of the appellant”

As before stated, the contracts do not confine the immunity from damages arising from the operation of trains over the siding alone. The reading of such a provision into the contracts would destroy the whole object and intent of the contracts, which were to protect the railroad company from the operation, starting, and stopping of trains near immense quantities of inflammable matter. The decisions referred to by appellant and cited by appellee do not place any such narrow and contracted construction upon similar contracts as a review of some of them will clearly show.

In the leading Texas' ease of Railway v. Carter, 95 Tex. 461, 68 S. W. 159, it was held that a similar contract was not a limitation upon the common-law liability of the railroad as a common carrier that the construction of the switch would increase the probability that the railroad company would incur liability for damages from fire and that formed a sufficient consideration. The contract was sustained. The siding was built under very similar circumstances to those under which appellee constructed this siding. If that siding was not at a station when constructed, neither was this. If the station of ICeenan was established adjacent to appellant’s land at the new switch, so was the station of Barnum established at •the new switch in the Garter Case. As in that case, so in this, the switch was built for the promotion of appellant’s business, and not in answer to the demands of public business. A switch adequate for all business purposes was already built several hundred yards from where appellant desired to have the switch constructed. The Carter Case has been approved in several cases. Woodward v. Railway, 35 Tex. Civ. App. 14, 79 S. W. 896; Railway v. Owens, 36 Tex. Civ. App. 54, 81 S. W. 62; Wooldridge v. Railway, 38 Tex. Civ. App. 551, 86 S. W. 942; Morgan v. Railway, 50 Tex. Civ. App. 420, 110 S. W. 978. See, also, Hartford Insurance Company v. Railway, 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84; Griswold v. Railway, 90 Iowa, 265, 57 N. W. 843, 24 L. R. A. 647; Stephens v. Railway, 109 Cal. 86, 41 Pac. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17.

The terms of the contracts include all kinds of property owned or held by appellant, whether on the land leased from ap-pellee or other land. Appellee is exempted from all liability for the damage or destruction of appellant’s property of any kind by fire.

Although, as hereinbefore stated, the court refused to pass upon the question of negligence, still, if this court had held the contracts invalid, it would not reverse the judgment in this case. There is a total lack of evidence tending to show that the depot was set on fire by a locomotive belonging to appellee. There was positive evidence that the last train passing the station did not emit any sparks. It was an oil-burning engine, and they are never equipped with spark arresters. In order to hold appellant liable, affirmative proof that the fire was caused by sparks from an engine was necessary. It is true that circumstantial evidence would be sufficient to show such ignition, but the circumstances must be such as to lead to the conclusion that the house was ignited by sparks from the engine, and to exclude every reasonable hypothesis that the fire originated in any other manner. The evidence in this case tends merely to show a possibility that the property was ignited by sparks from an engine. But liability for damages cannot be fixed by proof of a possibility. There must be a reasonable probability, to say the least. The evidence in this ease utterly fails to prove that it was reasonably probable that the fire originated from sparks emitted from the engine. There was no proof of emission of sparks near the depot at or about the time the fire occurred. The last locomotive passed nearly three hours before the fire was seen. That locomotive did not emit any sparks at or near the depot. The evidence utterly failed to show that appellee’s engine started tlie fire. Railway v. Meentzen, 62 Tex. Civ. App. 416, 113 S. W. 1000.

There was no testimony whatever that tended to show spontaneous combustion of coal oil, coal, or other inflammable and combustible materials in the depot, as alleged by appellant. Nor did it appear that an imaginary rat or mouse gnawed át a hypothetical match and set fire to the house. 'Neither is the allegation that some unknown person threw a lighted cigar or cigarette through the transom and ignited the house, supported by any proof. The allegations show that the pleader had no facts upon which to base the charge as to how the house was burned; for, after detailing a number of theories as to how the fire might have originated, the pleader confesses that the fire arose “from some accidental cause unknown to plaintiff:.” The evidence left appellant and every one connected with the case in the same state of doubt as to how the fire originated. In the absence .of any evidence tending to show that it was reasonably probable that the fire started through the negligence of appellee either by its having a sparlc-throwing engine, an incendiary rat, or a reckless smoker tossing cigars through the transom, or having latent fires stored in the house that spontaneously burst into flames, there was no proof of negligence, and, no matter what reason was given for the judgment, it is the only one that could be rendered in the premises. No other judgment could be sustained except the one rendered, and under such circumstances, independent of the reasons given for its rendition, it will be affirmed. Eant v. Sullivan, 162 S. W. 515, in which a writ of error was refused by the Supreme Court.

The judgment will be affirmed.
      <@^>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    HOUSTON B. & T. RY. CO. v. LEWIS.
    (No. 5444.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 24, 1915.
    Rehearing Denied April 14, 1915.)
    1. Witnesses <§=>405 — Cross-Examination— Rebuttal Evidence — Admissibility.
    In an action against a railroad company for damages caused by the construction of railroad tracks and the operation of trains thereon, the daughter of one of plaintiff’s lessees testified that when the tracks were being put down, he left the place because of the noise. On cross-examination she testified that she had never heard her father complain of an adjacent feed-mill. Plaintiff’s contention was that the noise and vibrations caused by engines and trains, as well as the smoke and dirt, depreciated the value of his property. Held, that an affidavit made by the lessee, showing that he moved on account of the feedmill, was not admissible to contradict the witness; her testimony on the question not relating to the issue involved.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. <§=>405.]
    2. Railroad <§=>114 — Actions—Evidence.
    In an action against a railroad company for damages for depreciation in the value of property; by reason of smoke and noise, plaintiff, having testified to the depreciation in rental value, could testify that the proximity of the railroad interfered with renting his houses.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. <§=>114.]
    3. Appeal and Error <§=>1051 — Review — Harmless Error.
    Where plaintiff was allowed to testify without objection that his tenants were always complaining of smoke and soot inside the houses, testimony that the renting of his houses was interfered with because people objected to the railroad is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-A17(>; Dec. Dig. <§=> 1051.1
    4.Appeal and Error <§=>1050 — Review — Harmless Error.
    The admission of testimony that property in that vicinity began to enhance in value when the railroad company began buying in that locality, while irrelevant, is harmless as to the railroad company, tending rather to benefit it by showing a fictitious advance immediately before its line was located.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]
    5.Appeal and Error <§sp499 — Presentation oe Grounds of Review in Court Below— Necessity.
    Objections to the charge of the court cannot be reviewed where it did not appear that they were presented to the court at the proper time, or that the overruling thereof was excepted to.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    6.Appeal and Error <§=>499 — Presentation of Grounds of Review in Court Below— Necessity.
    The refusal of a special charge cannot be overruled where no bill of exceptions was preserved showing presentation of the request and exception to the refusal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    Appeal from District Court, Harris County; William Masterson, Judge.
    Action by M. Lewis against the Houston Belt & Terminal Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. Ross & Wood, of Houston, for appellee.
   MOURSUND, J.

Appellee sued appellant and five other railway companies for damages alleged to have been suffered by him by reason of the construction of certain railroad tracks in the vicinity of his property in the city of Houston and the operation of engines and trains over said tracks. The court instructed a verdict in favor of the other companies, but submitted the case as to appellant, against whom the jury returned a verdict for $2,500. A judgment was entered in accordance with the verdict.

The first three assignments of error are directed at the refusal of the court to permit the introduction in evidence of an affidavit made by E. J. Wood on November 23, 1908, and filed in a suit by appellee against W. D. Van Wagenen et al., in which affidavit said Wood stated that he moved out of ap-pellee’s house on account .of the dust and noise and unhealthy conditions resulting from the operation of a feedmill, and made no reference to appellant or any tracks being put down for it. This affidavit was offered in rebuttal of certain testimony by Miss Vannie Wood, daughter of said P. J. Wood. Upon direct examination, and without objection, she testified that her father moved out of appellee’s house, one of those alleged to have been damaged by appellant, at the time when the team tracks were being put down, and because they were being put down; that he was nervous and couldn’t stand the noise. Upon cross-examination she repeated such testimony, and stated that she had never heard her father complain of the feedmill. The gist of appel-lee’s contention was that the noise and vibrations caused by operating engines and trains on the team tracks, and the smoke, soot, cinders, and noxious smells carried or cast upon his premises by reason thereof, caused the deiDreciation in value sued for. This being the case, it will be seen that E. J. Wood left the premises before these items of damages came into existence. It is apparent that his daughter’s statement of his reason for leaving was given incidentally in stating the history of her occupancy of the place before the team tracks -were laid, and afterwards, she having returned to the premises after her father’s death. She testified fully in regard to the items of damages relied upon by plaintiff, and it is inconceivable that her statement of the reason her father removed from the premises could have had any effect upon the verdict. Plaintiff did not plead that the value of the property had decreased by reason of the noise incident to laying the team tracks, and no such issue was submitted. The issue pleaded and submitted was as to the damage caused by the existence of the tracks and the operation of trains and engines thereon. When the entire testimony is considered, that which was sought to be rebutted is seen to be very trivial, and, if error was committed in excluding the affidavit, we think it was not such a one as would justify the reversal of the judgment. Miss Wood’s statement either constituted her opinion of the reasons actuating her father, or it was her conclusion, based upon statements made by him. She was not asked whether she based her statement upon what was said by her father, so we cannot say that hearsay statements by him were indirectly introduced in evidence. Therefore no excuse was shown for introducing a statement made by him upon another occasion. If Miss Wood was merely stating her opinion without anything to base it upon, it should have been excluded upon motion. In fact, viewing her testimony from either standpoint, it seems that appellant’s remedy was to have it excluded. We conclude that the court did not err in refusing to admit the affidavit in evidence. The assignments are overruled.

By the fourth assignment complaint is made because the court permitted appellee to testify that the noise, dust, and cinders incident to the operation of engines and trains interfered a whole lot with the renting of his houses. This testimony was objected to as being merely a conclusion. It appears from the statement of facts that appellee had already testified without objection that prior to the time appellant began its operations he rented each of his three houses for $35 per month, and after the tracks were put in and trains and engines operated thereon he received only $30 per month for each house. In view of this testimony, appellant could not have been injured by appellee stating that the renting of his houses was interfered with a whole lot. It also appears that appellant, in cross-examining Miss Wood, inquired into the matter of the difference in rent paid for one of the houses, and developed the fact that there was a difference between that paid prior to the construction of the tracks and that paid thereafter. The assignment shows no error requiring a reversal, and is overruled.

The fifth assignment also complains .of the admission of testimony, and is predicated upon the same bill of exceptions as the fourth assignment. In the statement under the assignment certain testimony is set out, as follows:

“The tenants are always kicking about the inside of the houses on account of the effect that smoke had on them, and also about their curtains and everything' like that they have on the inside of the house; it is all filled with soot.”

But by reference to the bill of exceptions we find no statement that said testimony was objected to, and the statement of facts discloses that it was given prior to that objected to as shown by the bill of exceptions. Said bill of exceptions shows that after appellee had testified, as stated in considering the fourth assignment of error, he was interrogated further along the same line, with the result that he testified that -the renting of his houses was interfered with because people objected to the railroad. In view of the above quoted testimony, which was not objected to, it is clear that appellant could not have been injured by any of the testimony set out in the bill of exceptions. The assignment is overruled.

The sixth assignment is predicated upon the same bill of exceptions as the fourth and fifth, and merely urges an additional objection to the admission of the testimony about persons objecting to renting the houses on account of noise, etc. We have already held that this testimony was harmless, in view of that admitted without objection. The assignment is overruled.

The seventh assignment complains of the admission of the testimony of E. R. Weathersby, to the effect that there was a marked advance in value of property located in the vicinity of plaintiff’s property at the time the railroad company began to buy up property in said vicinity. There is nothing in the statement under this assignment of error tending to show that said testimony was in any way prejudicial to appellant. Appellant, under “Remarks,” says:

“In this connection we merely wish to show that the evidence complained of in the bill of exceptions set out above was prejudicially erroneous, because same had no bearing upon the measure of damages in the case, and the effect of the testimony was to give to the property an enhanced value, resulting from the activity of the railroad company in buying in that vicinity, as a basis for the claim of a depreciation in value from the construction of the tracks.”

If the effect of this testimony was to create the impression upon the minds of the jury that the witness was basing his estimate of value upon an inflated temporary valuation, caused by appellant’s buying, it seems that its effect would be to discredit the estimate which was favorable to plaintiff. The witness, Murdock, who represented appellant in making purchases of property for its terminal site in that section, testified, in answer to question propounded for appellant, that prices in that section may have been a little advanced at the time he began to purchase; that purchasing for appellant in that neighborhood began as early as 1906, but that work was not begun until about January 1, 1908, and was not completed until about 1910. As approximately two years intervened between the time when the advance testified to by plaintiff and Murdock took place and the time when construction began, we fail to see how the testimony objected to could have, in any way, affected the expert testimony as to the value of the property at the time immediately preceding the laying of the tracks. The court instructed the jury that the measure of damages was the difference between the fair cash market value of plaintiff’s premises immediately before and immediately after the construction of the tracks. A great deal of testimony was adduced in regard to value, and that introduced by appellant was not confined to the value immediately before and after the construction, but took a broad scope. The statement of the witness complained of should not have been admitted over the objection that it was irrelevant; but, when the statement of facts is read, it is clear that such testimony did not injure appellant. The assignment is overruled.

The eighth assignment complains of the charge of the court. It appears that certain objections to the charge were filed, but it does not appear that they were presented to the court at the proper time, and that the overruling thereof was excepted to. The assignment is therefore overruled. St. L. & S. W. Ry. Co. v. Wadsack, 166 S. W. 42; Railway v. Chumbley, 169 S. W. 1107; Railway v. Battle, 169 S. W. 1048.

The ninth assignment is based upon the refusal of a special charge, and must be overruled, because no bill of exceptions is contained in the record showing the presentation of such charge at the proper time, and that the ruling of the court was excepted to when made. Railway v. Wadsack, supra; Connor v. Bank, 172 S. W. 177.

The judgment is affirmed.
      <g^>For other cases see same topic and KEY-NUMBES in all Key-NumSered Digests and Indexes


author: FLY, O. J.

text:
    TEXAS & N. O. R. CO. v. PETERSILKA.

    (No. 5461.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 7, 1915.
    Rehearing Denied May 12, 1915.)
    1. Witnesses <&wkey;395 — Examination — Co.«-ROBORATION.
    Plaintiff’s witness, who had been in the employ of defendant, and had signed a statement relating to the accident, prepared by one of defendant’s claim agents, was attacked on the ground that he was unfriendly to defendant, and the statement which contradicted his testimony was put in evidence. After leaving defendant’s employ, plaintiff’s attorneys wrote him, and, without knowing who they represented, he made statements as to the accident which corresponded to his testimony at the trial. Held, that as his credibility was bitterly attacked and the conflicting statement prepared by the claim agent, which the witness repudiated, was introduced, the letters written by plaintiff’s attorney and the witness’ replies were admissible in corroboration.
    [Ed. Note.—For other cases, see Witnesses, .Cent. Dig. § 1260; Dec. Dig. <S^>395.j
    2.Appeal and Ebb or <&wkey;231—Reservation op Grounds op Review — Instructions — Objections.
    Objections that an instruction is an incorrect statement of the law, or is a charge on the weight of the evidence, are too general to be considered.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. &wkey;> 231.]
    3.Appeal and Error <&wkey;742—Assignments —Suppiciency.
    Objections to instructions will not be considered where the assignment of error containing them is not followed by an appropriate proposition raising such objections.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742.]
    4.Appeal and Error <&wkey;742—Assignments —Proposition—Sufficiency.
    A proposition accompanying an assignment of error, though correct as an abstract principle, will not be considered, where it has no basis in the exceptions.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;?742.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by Mrs. Anton Petersilka against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, Wm. A. Yinson, and Paul Kayser, all of Houston, for appellant. Barkley & Green, Cole & Oole, and A. B. Wilson, all of Houston, for appellee.

       Writ of error pending in Supreme Court.

   FLY, O. J.

Appellee, the widow of Anton Petersilka, deceased, sued appellant for the recovery of damages, alleged to have accrued through the death of her husband. The negligence alleged was the failure to use ordinary care to furnish a safe place in which Pe-tersilka, an employe of appellant, could perform the work that devolved upon him, in that deceased was placed in a position of peril by the operation of a certain large swinging crane, with a heavy engine frame suspending therefrom, and that, in endeavoring to save himself from his position of danger, deceased had no avenue of escape, except to go between a planer he was operating and a deck plate negligently placed by appellant opposite the end of the planer, which resulted in deceased being crushed to death between the planer and the deck plate. Appellant pleaded contributory negligence and assumed risk. A trial by jury resulted in a verdict and judgment for appellee in the sum of $12,000.

The first and second assignments of error assail the action of the court in admitting in evidence two letters of certain attorneys of plaintiff to a witness, Ben H. Sherman, of Cleveland, Ohio, and a letter written to said attorneys by Sherman, as well as a statement by him as to the facts attending the death of Petersilka, made in answer to questions propounded to him by the attorneys aforesaid. The letters were written and the answers to the questions given by Sherman in July, 1913, at a time when he was in Cleveland, Ohio. The letters and statement were objected to as “hearsay, self-serving, immaterial, irrelevant, and not admissible for any purpose.” The bill of exceptions was approved with the qualification that the evidence was solely for the purpose of corroborating the witness Sherman, whose testimony had been attacked through a written statement made by him, to the claim agent of appellant, and to meet attacks made upon the witness by appellant tending to impeach him. The jury was instructed not to consider the correspondence and statement to prove any fact in the case, but merely in so far as it might affect the credibility of the witness. The facts show that Sherman had made a written statement to the claim agent, with the contents of which he was ignorant, which statement in some important particulars was in direct conflict with his testimony at the trial; that the witness was asked if he had not fallen out with the company and was unfriendly to it, and, if he “was not particular to find out, that he was to testify for plaintiff before he would agree to come.” In other words, the correspondence and statement made by the witness were admitted in evidence in reply to a vigorous attack by appellant upon the credibility of the witness.

At the time the letters of the attorneys and the answers to their questions as to the circumstances surrounding the killing of Peter-silka were sent, Ben H. Sherman did not know whether the attorneys were representing appellee or the railroad company. He made no inquiries as to whom they were representing until after he sent the statement and committed himself to the facts stated therein. He made the same statements at the trial as he made at that time, and no influence could have operated on his mind at the time he wrote the letters to cause him to make the statements he made. Whatever interest he may have had in the result of the trial after he had written to the attorneys, it could not have caused him to fabricate his testimony at the trial. Not only did appellant attack the witness for unfriendliness, but also endeavored to create the impression with the jury that he had changed his testimony because he was paid by appellee to attend the trial and testify. The claim agent took down a statement of the witness a day or two after the accident, which witness signed but did not read, and he denied that he told the claim agent the matters contained in the statement. This was denied by the claim agent, and a direct conflict arose between the witnesses, and Sherman occupied the position of an impeached witness, if any credence was given to the testimony of the claim agent. This was the position of affairs when appel-lee sought to reinforce the credibility of her witness by the correspondence, which took place when the witness was utterly ignorant as to whether his testimony was sought by appellant or appellee. He had no unfriendly feeling whatever towards appellant, and could have no motive for fabricating the testimony. Under all the circumstances, we are of opinion that the evidence was properly admitted.

The evident design of appellant was to show the jury that Sherman, actuated by base and unworthy motives, had testified differently at the trial from his written statement made to its claim agent, and appellee had- the undoubted right, not only to show that the written statement to the claim agent was not the one dictated by the witness, but that afterwards he had voluntarily written a statement, when there was no motive or influence to indulge in fabrication, which corresponded in all respects with his testimony at the trial. The well-established rule is:

“That whenever a witness is sought to be impeached by showing that he has made declarations inconsistent with the testimony given by him upon the trial, and the tendency of such impeaching evidence is to show that the testimony of the -witness is, by reason of some motive existing at the time of the trial or of some influence then operating upon him, fabricated, it is proper to admit evidence of his former declarations which corroborate his testimony, provided such declarations were made at a time when no such motive or influence existed.” Insurance Co. v. Eastman, 95 Tex. 34, 64 S. W. 863; Davis v. Davis, 44 Tex. Civ. App. 238, 98 S. W. 198; Railway v. Irvine, 89 S. W. 428; Legere v. State, 111 Tenn. 368, 77 S. W. 1059, 102 Am. St. Rep. 781.

It is admitted by appellant that the statement made to the claim agent, as well as the fact that the witness was paid his regular wages by appellee while in attendance on the court, were introduced to impeach the witness ; and when it was shown that the statement was made to a claim agent of appellant, when the witness was an employs of appellant and would feel the pressure that would arise from a desire to hold his job, and that he did not read the statement, it was certainly reasonable and proper to introduce a statement made when no pressure of any kind could be applied, and when no motive could have existed for fabricating evidence. Not knowing who wanted the evidence, he could not have arranged the statement to have suited the desires of appellee. As said in the Tennessee case last cited:

“And so, it may be said, it is now established in this country that where it is charged the testimony of the witness is a recent fabrication, and is the result of some relation to the party or cause, or of some motive of personal interest, it may be supported by showing he had made a similar statement before that relation or motive existed. However little support such testimony may give to the impeached witness, yet it has been held to be competent upon the ground that the consistent statement had been made at a time that there was little, if any, temptation to speak an untruth with regard to the matter afterwards brought into controversy.”

It was undoubtedly, as stated in appellant’s brief, appellee’s desire “to bolster up and strengthen his testimony against this attack on his credibility” that induced the introduction of the correspondence and statement. The admissions of appellant bring the evidence directly within - the rule herein announced, when it is borne in mind that there is not one single word of testimony to show that the correspondence and statement took place, as claimed by appellant, “under precisely the same conditions as his testimony at the trial.” The witness did not know for whom the statement was sought when he made it. There is no foundation whatever in the evidence for the repeated assertion in the brief that Sherman had any enmity to appellant or that he had been discharged. The evidence showed that a position was offered Sherman by appellant about the time of the trial. The whole .argument is based on the false premise that Sherman was actuated by “malice or ill will or other sinister influence to change his testimony.” On the other hand, the evidence shows that his voluntary statement, made when he was many hundreds of miles from Texas, was identical with testimony at the trial.

The third assignment of error assails the charge of the court on the question of the action of the employe in case of an emergency created by the negligence of the employer, not being classed as contributory negligence, although, in the absence of the emergency, such conduct would be contributory negligence. The grounds of objection in the bill of exception are:

“Because the same is an incorrect statement of the law; because .it is not the law; because it is a charge upon the weight of the evidence, and the evidence is insufScient to raise an issue to the effect that the deceased was required to act by reason of an emergency for his own safety ; and because the evidence does not raise the issue that the deceased was acting wildly and was in a perilous position.”

The two first objections are too general and indefinite to amount to anything, and the other objections are addressed to the sufficiency of the evidence.

All of the objections are abandoned, however, because the assignment of error is not followed by a proposition raising either of them. The only proposition appellant seeks to raise is a proposition of law that the charge makes the conduct of deceased the standard by which appellant’s liability is to be judged, whereas the conduct of a man of ordinary prudence is the standard.

That proposition has no foundation upon which to rest either in the bill of exceptions or the assignment of error, and it will not be considered. The points raised in the bill of exception and the assignment are completely ignored, and it is sought to lead this court into the consideration of matters that were withheld from the district court. It cannot be done, however sound the abstract proposition of law stated by appellant.

The fourth assignment of error is like unto the third, and is followed by the same proposition that is found under the third, and, for the same reasons given, the proposition will not be considered. Judgments cannot be reversed on abstractions, but the action of the lower court must be assailed on grounds raised in that court in the legal way.

The fifth assignment of error is overruled. The evidence was sufficient to show that Anton Petersilka came to his death in the manner alleged in the petition, through the negligence of appellant in swinging an engine frame on a crane so as to place deceased in a position of real danger, and in his efforts to escape that danger, through the only way open to him, between the planer and a deck plate negligently left close to the planer, he was caught and so crushed that he died from his injuries. The place furnished by appellant to appellee in which to perform his labor was unsafe.

The judgment is affirmed.
      cgsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    BROWN v. SOUTHERN GAS & GASOLINE ENGINE CO.
    (No. 443.)
    (Court of Civil Appeals of Texas. El Paso.
    April 22, 1915.
    Rehearing Denied May 13, 1915.)
    1. Appeal and Ereob &wkey;>232 — Questions Reviewable — Rulings on Evidence — Bill op Exceptions.
    The court, in reviewing rulings on the evidence, is confined to the objections in the bill of exceptions, and an objection to the admission in evidence of a copy of an instrument because not filed among the papers of the cause for one day before announcement and beginning of trial does not raise the objection that the copy was not admissible without accounting for the original. '
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. &wkey;232.]
    2. Appeal and Ebrok &wkey;>742 — Assignments op Ebboe — Supporting Statements.
    Where supporting statements do not substantiate the contention made in assignments complaining of the findings of fact, the assignments will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=*742.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by the Southern Gas & Gasoline Engine Company against E. W. Brown. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Holland & Holland, of Orange, and W. 0. Huggins, of Houston, for appellant. N. C. Abbott, of Houston, for appellee.
   HIGGINS, J.

Appellee sued Brown to recover the purchase price of gasoline engines and pumps sold and delivered by virtue of a written contract entered into between the parties in 1912. Judgment was rendered in appellee’s favor. Recovery was denied of a balance alleged to be due upon purchase price of an engine and pump sold and delivered in the year 1911. What is said in disposing of appellant’s assignments relates to the 1912 contract.

The contract in question was in the form of a written proposal, dated November 20, 1912, to sell and deliver the machinery in question upon terms therein specified, with reservation of title until purchase price had been paid. It was submitted by a salesman of appellee, and provided that it was to become effective when accepted by Brown and approved by the secretary of appellee. Brown’s acceptance was dated November 30, 1912, and the approval of the secretary was dated December 19, 1912.

Upon trial a certified copy of this contract from the chattel mortgage records was offered in evidence, and error is assigned thereto. It is asserted that the copy was improperly admitted, because:

First. Secondary evidence of the contents of the contract was not admissible without accounting for the original copy.

Second. The date thereof varied from the date alleged.

Third. The document offered contained no description of the property alleged to have been purchased.

The bill of exception does not disclose that the objection first mentioned was urged when the copy was offered, and we are confined to the objections there made in determining whether the instrument was improperly admitted. It was not objected that a copy was offered instead of the original. The use of a certified copy was objected to simply because it has not been filed among the papers of the cause for one day before announcement and beginning of trial.

As to the second objection, the contract was alleged to be dated December 19, 1912, and from its terms it is apparent that it did not become operative and effective until its approval by the company’s secretary. This approval was dated December 19, 1912, and there is therefore no variance. And in any event the variance did not operate to surprise, and would be regarded as immaterial. An inspection of the contract discloses that the third objection has no merit. As to these objections, it may be further said they are wholly without merit, for the additional reason that the contract described in the petition was admitted in defendant’s answer.

Another objection is urged which is not embraced within the assignment, was not urged when the instrument was offered in evidence, and, in any event, is wholly lacking in intrinsic merit, for which reason it is overruled.

As we understand the propositions urged in support of the second assignment, they present no error, and are overruled.

The third assignment questions the sufficiency of the evidence to support the judgment. The assignment is not presented in such manner as to require consideration, but in any event it seems to be without merit.

The fourth assignment is overruled; the evidence showing that plaintiff accepted and approved on December 19, 1912, the written proposal of its salesman theretofore made.

The fifth and sixth assignments complain of the findings of fact filed by the lower court. The supporting statements do not substantiate the contention made, for which reason they are overruled.

By cross-assignment appellee complains of the refusal of the court to render judgment for the balance claimed upon the 1911 contract. The trial court found that there were defects and insufficiencies in the machinery and installation thereof which plaintiff had agreed to remedy, and by reason of its failure so to do the defendant had been damaged the amount of the balance, due upon this contract. An inspection of the evidence discloses that this finding is supported thereby, for which reason the cross-assignment is overruled.

Afiirmed.
      <g=5?For other eases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    FIRST NAT. BANK OF PARIS v. O’NEIL ENGINEERING CO. et al.
    (No. 1396.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 10, 1915.
    Rehearing Denied May 6, 1915.)
    1. Assignments <&wkey;85 — Peiobities — Paeol AND WRITTEN ASSIGNMENTS.
    In determining the rights of two assignees to the fund, the fact that one assignment is in parol and the other in writing does not give the latter any superior dignity.
    [Ed. Note. — Por other eases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. &wkey;85.]
    2. Assignments <®=o74 — Effect — Title to Fund.
    A parol assignment by a company constructing a public road, to a bank, of funds to become due the construction company under the contract, for the purpose of securing advances by the bank, vests in the bank the equitable title to the fund on which the warrants in favor of the construction company would be drawn and a right to the possession of the warrant as soon as it was drawn, unless there existed a superior right on the part of some other claimant.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 138; Dec. Dig. <&wkey;>74.]
    3. Subrogation <&wkey;27 — Agreement for Sub-rogation.
    A clause in an application by a contractor for a surety bond providing that the surety should be subrogated to the contractor’s rights under the contract, and assigning to the company all deferred payments and. retained percentages and all moneys due and payable on the contract at the time of any default, igives the surety only the same rights to which it is entitled under the law of subrogation.
    LEd. Note. — For other cases, see Subrogation, Cent. Dig. §§ 68, 78; Dec. Dig. <&wkey;>27.]
    4. Assignments <®^73 — Construction — Claims Assigned.
    An assignment by a contractor whose contract provided that 15 per cent, of the value of the work finished should be retained from the paj'ments to be made as the work progressed to his surety to secure advancements made by the surety of all moneys rising from the retained percentages under the contract gives the surety no claim to money due the contractor for work completed and payable at once.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 139-142; Dec. Dig. t&wkey;73J
    5. Assignments <&wkey;85 — Operation — Priority.
    A written assignment by a contractor to his surety for sums due him under the contract is subrogated to a prior parol assignment by him of the same funds.
    [Ed. Note. — For other cases, see Assignments, Cáht. Dig. §§ 149-151; Dec. Dig. <&wkey;>85.]
    6. Subrogatíon <&wkey;36 — Rights — Priority over Assignment.
    A surety claiming by subrogation a fund as the property of a defaulting principal has a superior equity over a creditor claiming by equitable assignment.
    [Ed. Note. — Fop other cases, see Subrogation, Cent. Dig. §§ 99-103; Dec. Dig. @^>36.]
    7. Subrogation <&wkey;36 — Rights of Substituted Party — Extent.
    Where the surety of a road contractor who was compelled to complete the contract seeks subrogation to the rights of the contractor against the fund, the surety cannot claim the fund as against an assignee of the contractor, unless the board authorized to make payments thereof could have lawfully refused to pay the amount to the contractor or the assignee, since “subrogation” is merely the substitution of one party for another with respect to certain property rights, but the rights of the substituted party are coextensive with and limited by the rights of the other.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 99-103; Dec. Dig. &wkey;36.
    For other definitions, see Words and Phrases, First and Second Series, Subrogation.]
    8. Highways <&wkey;113 — Construction Contracts — Assignments—Surety.
    Where a road contractor asked and was given permission by the board to have the work completed by his surety, there was no default by him in the performance of the contract, since it was merely an assignment of the contract with the consent of the other party, and the fact that the assignee was the assignor’s surety who took the contract to minimize its loss does not affect the rights of the parties, so that at the time the board could not withhold payment due the contractor from his assignee, and the surety did not become entitled thereto by subro-gation,
    ÍEd. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. &wkey; 113.]
    9. Highways <&wkey;113 — Construction Contracts — Breach—W aiver.
    Even if the contractor had defaulted with his contract before the surety was substituted, the consent of the board to the completion of the contract by the surety waived any claim for damages for default, and it could not withhold the warrant due for work already completed.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. <&wkey;>113.]
    10. Highways <&wkey;90 — Officers—Individual Liability — Unauthorized Act.
    Under Sp. Acts 31st Leg. c. 72, providing for the construction of permanent roads, and authorizing the road board to make the necessary contracts, allow claims, and direct their payments, and requiring the county, clerk to issue and deliver warrants, the board could not withhold a warrant from a person entitled thereto, and if the members attempt to do so they are individually liable for damages resulting therefrom.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319-322, 356; Dec. Dig. <S¿^96.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Action by the First National Bank of Paris against the O’Neil Engineering Company and others. From a judgment against two of the defendants personally, hut denying the plaintiff’s claim to the fund in controversy, and awarding it to two other defendants, the plaintiff appeals.
    Modified and afiirmed.
    A. P. Park, of Paris, for appellant. Bur-dett & Connor, of Paris, and J. J, Collins, of Dallas, for appellees.
   HODGES, J.

The appellant, as plaintiff in the court below, brought this suit against the O’Neil Engineering Company, a corporation, Ml. Griffin O’Neil, Ramar county, tlie board of permanent road commissioners of justice precinct No. 1 of Lamar county, Tex., and Rube S. Wells, S. L. Bedford, T. J. Bridges, T. J. Record, S. B. Ml Long, U. Edzards, and Buster Stephenson. The seven individuals last above mentioned are alleged to be the members of what is known as the “board of permanent commissioners” of precinct No. 1 of Lamar county, as constituted under the provision of a special act of the Legislature enacted in 1909. Enough of the act referred to is pleaded to show the authority of this board to expend a fund accumulated by the sale of bonds in the construction of good roads in that precinct, and authority on the part of the board to make contracts for the purpose of having such roads constructed.

For cause of action it is alleged that on the 26th day of June, 1912, the O’Neil Engineering Company, one of the above-mentioned defendants, entered into a contract with the board of permanent road commissioners of precinct No. 1 whereby the former undertook to construct a number of roads in precinct No. 1 of Lamar county according to certain specifications and details shown in the contract and the maps and profiles annexed thereto, the consideration being the sum of $200,000; that after the making of that contract the O’Neil Engineering Company, being in need of funds for the purpose of prosecuting the enterprise, applied to the appellant, the First National Bank of Baris, for a loan of money to be used by it for the purchase of material and the payment for labor in the prosecution of that work, and, in order to induce the bank to make such loan, verbally assigned to it all funds which were thereafter to become due under its contract with the board, to secure advances as the bank might make to enable the engineering company to carry out its contract. It was also agreed that all estimates and warrants for money issued by the board for work done in favor of the engineering company should be delivered to the bank, and by it collected. It is alleged that on the 24th day of August, 1912, and at other dates during the months of September and October following, the bank made advances to the engineering company for the purposes above mentioned, amounting in the aggregate to $9,500, and, as evidencing such advances, the O’Neil Company, together with O’Neil in person, executed three different notes, payable on demand, for the amounts so advanced. It is further alleged that all the money so advanced was used in the construction of the roads; that on August 4, 1913, there was due to the engineering company from the board the sum of $13,347.97, on an estimate that day allowed, and for which a warrant had been ordered drawn fon' that sum upon the funds under the control of the board; that all similar warrants theretofore issued were turned over to the bank as per agreement, but the warrant for this last-mentioned sum was not delivered to O’Neil, who was president of the engineering company, because of his absence, and for that reason was not turned over on that day to the bank; that because of a claim set up by the sureties on the bond of the engineering company to the warrant it was never delivered to the bank. It is also alleged that the appellant notified- the board in open session of its claim to the fund above referred to and demanded payment; that the board refused to turn over the warrant to the appellant bank, but delivered it to the surety company upon its giving an indemnity bond.

Lamar county, one of the defendants named above, demurred-to the plaintiff’s petition, and also filed pleas in abatement and in answer to the merits. The board pleaded in abatement, and also answered by making the Fidelity & Deposit Company of Maryland and the Title Guaranty & Surety Company parties, asking judgment over against them in the event plaintiff recovered against the board. The Fidelity & Deposit Company of Maryland and the Title Guaranty & Surety Company, in response to the answer of the board, and by way of intervention, filed demurrers and answers asserting rights to the fund by reason of certain assignments set out in their pleacungs and by reason of certain provisions contained in the application made by the engineering company for bonds, and also claiming the right to the fund in controversy by reason of subrogation.

The cause was tried before the court without a jury, and a judgment rendered in favor of the appellant bank against the O’Neil Engineering Company and. M. Griffin O’Neil for the amount claimed by the bank, but against the bank upon its claim to the fund in controversy, and affirmatively holding that the Fidelity & Deposit Company and the Title Guaranty & Surety Company were entitled to that fund, and judgment entered accordingly.

The First National Bank alone has appealed, and presents practically but one assignment of error, and that is that the court erred in not adjudging that it was entitled to so much of the fund in controversy as was sufficient to pay the indebtedness held by it against the engineering-company.

The court filed findings of fact and conclusions of law. These are quite lengthy, and only the substance of what is regarded as material will be here reproduced. The court finds that the special act referred to in .the pleadings was enacted in 1909, providing for a special election by which the resident property taxpayers, qualified voters of Lamar county or any political subdivision thereof, might, at an election held for that purpose, vote for the issuance of bonds to an amount not exceeding one-fourth of the assessed value of the real property of such county or political subdivision, and also providing for the levy and collection of taxes sufficient to pay the interest and to create a sinking fund for the amount of such bonds; that such bonds were to be voted for the purpose of constructing and maintaining macadamized, graveled, or paved roads and turnpikes. See Special Laws of 1909, p. 457. Such portions of this law as may be necessary to be considered,' and which are incorporated in the findings of the court, will be hereafter more specifically referred to. On April 22, 1912, an election was held in justice precinct No. 1 of Lamar county, as provided for by the special law, resulting in favor of the issuance of bonds to the amount of $300,000 for road purposes, and the election of T. J. Record, S. B. M. Long, U. Ed-zards, and Buster Stephenson, who, together with Rube S. Wells, as county judge, S. L. Bedford, county auditor, and T. J. Bridges, commissioner for precinct No. 1, were to constitute a board of permanent road commissioners for precinct No. 1. Thereafter the bonds to the amount of $-were issued and sold at par, and the sum realized from such sale was deposited, as required by the special law, with the county treasurer, and by him kept as a special fund to be paid out only on the order of the board in the construction of the roads contemplated. For brevity the board of permanent road commissioners will be hereafter referred to as “the board.” On June 26, 1912, the board, acting under the authority conferred by the special law, entered into a contract with the O’Neil Engineering Company, a private corporation, by which the latter agreed, in consideration of $200,000, to furnish the labor and material and construct a system of good roads according to the terms of certain written specifications then agreed upon. These roads were to consist of eight different routes leading out of the city of Paris, aggregating about 40 miles in length. On the same date the O’Neil Engineering Company, which will be hereafter referred to simply as the engineering company, executed two bonds for $100,000 each, conditioned, as required by the special law and by the terms of its contract with the board, for the faithful performance of the obligations which it assumed in the construction of the roads. One of these bonds was signed by the Fidelity & Deposit Company of Maryland, and the other by the Title Guaranty & Surety Company. The contract entered into between the board and the engineering company provided, among other things, that at certain stated intervals during the progress of the work the engineering company was to be paid So per cent, of the value of the work done and material furnished, upon estimates made by the supervising engineer. The remaining 15 per cent, was to be retained till the contract for the construction of the roads had been fully completed to the satisfaction of the board. After the execution of the contract and bonds above referred to the engineering company, on their application for same, obtained from the appellant, the First National Bank of Paris, certain loans of money aggregating $9,500, to be used in the prosecution of the work undertaken by the engineering company. The court finds that the money so obtained was, in fact, used for that purpose. These loans were evidenced by three different notes executed by the engineering company and M. Griffin O’Neil to the appellant, and were payable on demand. They bore dates as follows: 24th day of August, 1912; 18th day of September, 1912; 10th day of October, 1912. At the times these loans were made, and in order to secure their payment, the engineering company verbally assigned to the appellant all sums which were thereafter to become due and payable to it under its contract with the board, and it was then and there agreed that all warrants issued by the board should be deposited with the appellant and by it collected. Under this arrangement the apiaellant received and collected all of the warrants issued to the engineering company prior to August 4, 1913; the sums so collected aggregating about $50,-000. These collections, however, were not applied to the payment of the principal of-the notes referred to, but were placed to the credit of the engineering company on the books of the appellant bank, and only such portions as were necessary to pay the accrued interest were applied as credits upon the notes. The remainder was checked by the engineering company ■ in the course -of its business. On August 4, 1913, there remained to the credit of the engineering company in the appellant bank the sum of $648, and this was applied upon the principal of one of the notes. With that exception the advances made by the appellant to the engineering company are still unpaid. . On the same date there was due and payable to the engineering company, upon its contract with the board, the sum of $13,347.97, exclusive of the 15 per cent, retained under the terms of the contract. On that date the board in regular session allowed the claim in favor of the engineering company for that sum, and ordered a warrant drawn for its payment. M. Griffin O’Neil, the president and active manager of the engineering company, was not present at the time this order was made, but was in the city of Dallas. He telephoned upon that date to the cashier of the appellant bank, stating that he desired that the warrant for the $13,347.97 should be turned over to the appellant according to the agreement theretofore made, and for the purpose of liquidating the indebtedness due the appellant from the engineering company. But the warrant was held by the secretary of the board, and was not delivered to the appellant or to any one else until August 8th following. On the latter date the board held another meeting, which was attended by M. Griffin O’Neil and the representatives of both the appellant and the surety companies. The appellant through its representatives gave notice to the board of its claim to the warrant by the assignment previously made by the O’Neil Engineering Company, and formally demanded its delivery. At the same meeting and on the same date M. Griffin O’Neil appeared before the board and stated that by reason of financial and other difficulties he was unable to carry out his contract with the board for the completion of the roads, and requested that his surety, the Fidelity & Deposit Company of Maryland be permitted to take over and complete his contract. This request was subsequently agreed to, and the Fidelity & Deposit Company thereafter undertook the completion of the contract according to the terms originally agreed upon. The representative of the Fidelity & Deposit Company, on the date above mentioned, also gave notice to the board of its contract with the engineering company by which it undertook to complete the construction of the roads, and also of an assignment from the engineering company of all sums then due that company upon estimates theretofore made, including the sum represented by the last estimate, amounting to $13,347.97. The language of this assignment relied on, or so much of it as may be material, will be hereafter quoted. Previous to August 8th the Fidelity & Deposit Company, which will hereafter be referred to as the surety company, had advanced to the engineering company the sum of $11,000 to enable the latter to prosecute its work and carry out its contract with the board. In order to secure the repayment of the advances thus made the engineering company, on February 25, 1913, executed an instrument by which it conveyed to the surety company all money to become due to the engineering company under its contract .arising from the retained percentages then held or thereafter to be held by the board under the terms of its contract. At the time the appellant and the surety company demanded the delivery of the warrant in controversy, on the 8th day of August, both demands were refused; but on August 11th thereafter the board directed the delivery of the warrant to the surety company, upon the latter’s executing a bond to indemnify the members of the board against any liability they might incur by reason of such delivery.

The court further finds that at the time of the trial the roads which formed the subject-matter of the contract between the board and the engineering company had not all been completed, but that the surety company, which was then carrying on the work of con■struction, had lost money by its undertaking, .and would ultimately lose more money in constructing the roads than the warrant in controversy amounted to. '

He also finds that the bank had no notice •of any written assignment made by the engineering company in favor of the surety company, and that the surety company had no notice of the verbal assignments relied upon by the appellant.

From these facts the court concluded, as a matter of law, that the surety company had a superior right to the fund in controversy, and that the board committed no error in its disposition of the warrant. From a judgment rendered in accordance with that' conclusion, the bank prosecutes this appeal.

The only errors assigned are those which question the court’s legal conclusions from the foregoing facts. To summarize: These facts show conflicting claims to a special fund authorized by law to be disbursed under the order of the board of permanent road commissioners for justice precinct No. 1 of Lamar county. The appellant, claims that fund — or rather so much of it as may be necessary to satisfy its debt against the engineering company — by virtue of parol assignments made before any of the money due upon the contract with the board had been earned by the engineering company. The surety company claims this fund upon three different written assignments. The first is referred to as the application agreement made at the time the contract of suretyship was entered into and as a part of the consideration ¡of that contract; the second is another written assignment, dated February 26, 1913; and the third still another agreement, made on the 8th day of August, 1913, at the time it took over, or agreed to take over, the contract of the engineering company with the board. The surety company also insists upon its right of subrogation to all of the claims, securities, and demands owned or held by the board against the engineering company at the time the latter defaulted in the performance of its contract.

The question then is: Which of these opposing claims should be given the preference? The fact that the appellant’s claim depends upon a parol agreement or contract does not affect its validity. There is no law requiring such transactions to be in writing. It must also be conceded that a party owning an interest in a specific fund, due or to become due, has a right to assign certain portions or all of it at his option. We must therefore treat the parol assignment relied upon by the appellant as of equal dignity with written assignments executed under the same conditions and containing the same stipulations.

It can hardly be denied that, as between the engineering company and the appellant, their agreement as to the assignment of the payments to be made by the board as the work progressed had the legal effect of investing the appellant with an equitable title to the fund upon which the. warrants in favor of the engineering company were to be drawn. This being the legal status of these two parties with feference to the funds to be disbursed, the appellant had the right to the possession of the warrant in controversy at the time it was issued, and an absolute title to so much of the funds represented by that warrant as was necessary to satisfy its claim against the engineering company, unless there existed a superior right to those funds on the part of the surety company. The claim of the surety company to such superior right is based upon two grounds — priority of assignment, and equitable subrogation. We shall consider first the written assignments relied upon as the basis of that claim,' and, in order to avoid unnecessary prolixity, shall quote and discuss only those portions of the writings which bear directly upon the question in issue. There is in the facts found by the court what is referred to as the “application agreement,” which was executed by the engineering company for the purpose of obtaining the signature of the surety company as a surety on its bond securing the board at the time the original contract was entered into. That agreement contains, among other things, the following provision:

“In further consideration of the execution of the said bond, we do hereby agree as of this date that the Fidelity & Deposit Company of Maryland shall, as surety on said bond, be sub-rogated to all our rights, privileges, and properties as principal and otherwise in said contract, and we do hereby assign, transfer, and convey to said company all the deferred payments and retained percentages and any and all moneys and properties that may be due and payable to us at the time of such breach or default, or that may thereafter become due and payable to us on account of said contract or on account of extra work or material supplied in the connection therewith,” etc.

On February 17, 1913, the engineering company, for the purpose of securing from the surety company a loan of several thousand dollars to be used in furtherance of its work of road construction, executed a written instrument, which contains, among other things, the following:

“In consideration of the sum of one dollar paid by the O’Neil Engineering Company, a corporation of the county of Dallas, state of Texas, to the Fidelity & Deposit Company of Maryland, a corporation of Baltimore, Md., and for the purpose of securing the repayment to the said Fidelity & Deposit Company of Maryland of all money heretofore advanced by it to the said O’Neil Engineering Company for the purpose of enabling it to carry out the terms of that certain contract between the last-named corporation and the board of permanent road commissioners for justice precinct No. 1 of Lamar county, Tex., bearing date the 26th day of June, 1912, which money so to be advanced (and which the Fidelity & Deposit Company of Maryland hereby agrees to advance in installments) is estimated at the sum of fifteen thousand dollars, but may be more or less, the O’Neil Engineering Company hereby transfers, assigns, and sets over to the said Fidelity & Deposit Company of Maryland all money to become due to the said O’Neil Engineering Company under said contract. arising from the retained percentages now held or hereafter to be held by the said board of permanent road commissioners for justice precinct No. 1 of Lamar county, Tex., under the terms of said contract until the completion thereof; and the said board of permanent road commissioners is hereby authorized and directed to make payment to the said Fidelity & Deposit Company of Maryland upon demands made by it and whenever said retained percentages shall become due to said O’Neil Engineering Company under said contract,” etc.

On the 8th day of August, 1913, four days after the allowance of. the estimate upon which the warrant in controversy was issued, the engineering company executed still another instrument in writing, which, after a preamble reciting the inability of the engineering company to carry out the terms of its contract with the board and a desire to have the surety company take over the contract and perform same, contains the following provision:

“Now, therefore, know all men by these presents that the undersigned, O’Neil Engineering Company, for and in consideration of the premises, hereby assigns, sets over, and transfers to the Fidelity & Deposit Company of Maryland said contract, with all duties and obligations therein yet to be performed, with said board of permanent road commissioners, and with all rights, equities, and moneys on this day dué or hereafter to become due to said O’Neil Engineering Company or said Fidelity & Deposit Company of Maryland by reason of its taking over said contract and completing the same and by virtue of its terms.”

The next question that arises is: What legal effect should be given to these instruments, taken either collectively or separately? What rights, if any, did they confer upon the surety company to the fund in dispute? The application agreement, which is the first in the order of execution, merely undertakes to transfer by contract the same rights to which the law would subrogate the surety company in the event it should be compelled to make good the contract of its principal. Inasmuch as we shall later discuss the claim of the surety company to this fund by right of subrogation, it is unnecessary to say more at present concerning the legal effect of this instrument as an assignment.

By its terms the assignment bearing date February 17, 1913, the second of those above referred to, is limited to the retained percentages which the board was authorized by contract to hold. Those percentages are not involved in this litigation, and that instrument, therefore, has no application. The instrument of August 8th, last of those relied on, not only undertakes to convey absolutely to the surety company all rights which the engineering company had under its contract with the board, including the retained percentages and all payments thereafter to become due, but all moneys on that day due to the engineering company. Giving to this instrument all that is claimed for it as a contractual assignment, and conceding that it is sufficiently comprehensive to include the fund in controversy, still it must be held subordinate to the prior assignment made to the appellant. Such assignments take effect in the order in which they are made. Henke & Pillot v. Keller, 50 Tex. Civ. App. 533; 110 S. W. 783; Brander v. Young, 12 Tex. 332; Clark v. Gillespie, 70 Tex. 513, 8 S. W. 121; Harris v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Davis & Goggin v. State Nat. Bank (Civ. App.) 156 S. W. 321; Harris County v. Donaldson, 20 Tex. Civ. App. 9, 48 S. W. 791; German Fire Ins. Co. v. Gibbs, 42 Tex. Civ. App. 407, 92 S. W. 1068, 96 S. W. 760; 4 Cyc. pp. 77, 78.

The surety company then must rely for priority of right, not upon an assignment, from the engineering company, but upon its equitable right of subrogation to whatever then remained in the hands of the board. We think it must be conceded that, as between a surety claiming by subrogation a fund as the property of a defaulting principal and a creditor claiming the same fund by equitable assignment, the former has the superior equity, and should prevail if the facts are sufficient to support the claim to the right of subrogation. Prairie Nat. Bank v. United States, 164 U. S. 227, 17 Sup. Ct. 142, 41 L. Ed. 412; Henningsen v. Fidelity & G. Co., 208 U. S. 404, 28 Sup. Ct. 389, 52 L. Ed. 547. See same case reported 143 Fed. 810, 74 C. C. A. 484; Faires v. Cockrell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; First Nat. Bank v. City Trust, Safe Deposit & Surety Co. of Philadelphia, 114 Fed. 529, 52 C. C. A. 313.

Subrogation is, in practice, merely the substitution of one party for another in respect to certain property rights. In transactions of this character, where a surety seeks subrogation to the rights of one occupying the status of a creditor, the rights of the surety, when he performs the contract of a defaulting principal, are coextensive with, and limited by, the rights of the creditor with respect to the property sought to be reached. If in this instance the board had a right to hold the fund in controversy as security against any damages likely to result from a nonperformance of the contract by the engineering company, the surety company would be entitled by subrogation to the same rights if occupying the attitude of a surety who had discharged the obligation of a defaulting principal. If the right of the broad was superior to that of one claiming by an equitable assignment from the contractor or debtor, it logically follows that its successor by legal substitution would also hold a superior right; but if under the conditions existing at the time this controversy over the fund arose the board could not lawfully refuse to pay over this installment either to the engineering company or its assignee, the board had no claims to which the surety company had a right to be substituted. Equity only subrogates the surety to such rights as the creditor may lawfully claim, not to those which the creditor may arbitrarily or unlawfully claim.

It then becomes necessary to discuss the rights of the board with respect to this fund at the time it was paid over to the surety company by direction of the board. Under the terms of the -contract this sum of $13,347.97 was due and payable to the engineering company before the controversy arose. The right of the board to then refuse payment, if any existed, would depend upon its right to ignore its contractual obligations. The question then arises: Did the board have that right? Clearly not, unless the engineering company had defaulted to such an extent as amounted to an abandonment of its contract. As long as the contract was kept alive, the board could not lawfully refuse to comply with its terms, and that instrument furnished the rule for determining the rights and obligations of the parties. On the other hand, if the engineering company had abandoned its contract and refused to further continue in its performance, this would amount to such a default as would authorize the board to treat the contract as at an end, and absolve it from its obligation to thereafter make any payments in strict accordance with the- terms of the contract. It might then lawfully hold all unpaid funds then under its control and belonging to the engineering company, as a protection against the damages that might result from this default. The fact that the engineering company had previously assigned those funds to the appellant would not defeat that right; there being no evidence that the board had previously consented to such assignment. In such cases the assignee occupies no better position than that of the assignor. We come, then, to the further question: Did the engineering company make default, or repudiate and abandon its contract? There is nothing in the record, or the findings of the court, upon which an affirmative answer to this question could be based, unless found in the transaction by which the surety company on the 8th day of August, 1913, under a written agreement, took over the contract to complete the roads. It is not claimed that previous to that time the engineering company had failed in any respect to fully comply with the terms of its contract. The board and its members in their answer do not claim, as a justification for the disposition they made of the warrant in controversy, that there was at any time a default on the part of the engineering company. On the contrary, they seem to defend their conduct upon the ground that the surety company held the superior right by assignment. It appears from the findings of the court that what occurred on August 8th, the time when the conflicting demands for the warrant were presented to the board, is substantially this: After the appellant had made its demand, O’Neil, the manager of the engineering company, informed the board that on account of financial difficulties his company was unable to further perform its contract, that it had' contracted with .the surety company for the latter to take over and complete that contract according to its terms, and requested the consent of the board, which was later given. The court in his findings refers to this as an assignment by the engineering company of its contract rights to the surety company. The board appears to have so regarded and treated it in its future dealings with the parties. The surety company evidently regarded it in the same light because of the express stipulations in its agreement with the engineering company. An assignment of its contract rights and duties by one of the parties with the consent of the other is not an abandonment or repudiation of the contract. The rights of the assignor are not forfeited, but are fully preserved and transferred to the assignee. If this were not so, the surety company, in this instance, did a vain thing when it stipulated for the transfer to itself of all the rights which the engineering company had under the terms of its contract with the board. While such stipulations might not amount to an estoppel to deny that there was something to assign, it indicates a construction which the interested parties themselves placed upon the transaction. To test the correctness of our conclusions, let us suppose that, instead of selecting the surety company, the engineering company had made this assignment for the same reason to some third party who was in no way connected with the original contract; could it then be said that the transaction amounted to an abandonment by the engineering company of its contract with the board? If it could, then the third party, who must depend upon the assignment alone, would take nothing by his contract. Yet it would seem absurd to contend that he did not, when the other party to the original contract had consented that he might do so. The fact that the surety company happens to be the assignee in this instance does not change the legal effect of the transaction upon the relations of the engineering company toward the board. It may be conceded that the surety company was moved to take over and • complete the original contract as the best method of reducing the loss likely to result from an anticipated default on the part of its principal. Still that course was one which it could have taken only by an agreement. Although by its timely interference the surety company averted a default, it cannot claim the benefit of conditions which a default only could bring about.

If there was no default on the part of the engineering company, and no forfeiture of its right to the payments according to contract, the board had nothing except the retained percentages to which the surety company could claim subrogation, even assuming that the latter occupied the status of one entitled to invoke that rule. .

But there is still another reason for denying that right.- If it be' conceded that the engineering company did make default, and that this occurred while the board still held the funds in controversy in its hands, the conduct of the board in accepting the surety company as a substitute for the engineering company in the completion of the contract upon the original terms amounted to a waiver of any claim for damages resulting from that breach; and, if no claim for damages could thereafter be asserted, there was no basis for withholding payment of the warrant to the party in whose favor it had, been issued.

In handling this special fund the law conferred upon the board only special powers. It was the board’s duty to make the necessary contracts, pass upon and allow claims, and direct their payment. It was the duty of the county clerk to issue and deliver the warrants to the proper party. Warrants could be drawn .only against funds actually available for payment, and such funds could only be paid out as provided in that law. See Special Raws of 1909, p. 457. In this proceeding neither the board nor its members in their official capacity can be held liable so as to subject any portion of this fund to the payment of a claim for damages.

The warrant in controversy was an assignable chose in action, and the conduct of the members of the board in withholding it from the owner and directing its delivery to one who was not entitled to it amounted to a tort for which they may be held responsible in damages, and the trial court erred in not so holding.

The judgment of the court below will be modified to the extent of awarding a recovery in favor of the appellant against the individuals composing the board for’ the amount sued for, and in all other respects, except as to costs, it will remain undisturbed. The appellees, members of the board, ask that, in the event judgment should be rendered against them, a judgment be rendered in their favor over against the surety company upon its bond of indemnity. There-being no contest of their right to such a judgment, it will accordingly be rendered.
      (g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    HOOKER v. EAKIN et al.
    (No. 1429.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 15, 1915.
    Rehearing Denied April 29, 1915.)
    Execution <®=>272 — Property Subject to Execution — Rights oe Bubohasees — Notice.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5616, providing that the recording and indexing of a judgment creates a lien on the real estate then owned by the debtor, and on real estate subsequently acquired by him, a purchaser at an execution sale with notice that the execution debtor did not own, but that a person owned, the land, is not entitled to protection as against the third person’s claim, because he was without notice at the time of the recording and indexing of the judgment, notwithstanding article 6824, declaring that conveyances shall be void as to creditors and subsequent purchasers without notice unless acknowledged, proved, and filed to be recorded as required by law.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 771, 781-788; Dec. Dig. <§=272.]
    Appeal from District Court, Shelby County; W. C. Burford, Judge.
    Action by Edgar W. Hooker against Edgar Eakin and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. M. Sanders, of Center, for appellant. D. M. Short & Sons, of Center, for appel-lees.
   WILLSON, C. J.

This was a suit of trespass to try title brought by appellant against appellees, Edgar Eakin, Clem Eakin, H. M. Allen, and R. C. Poor, in which judgment was rendered for appellees Allen and Poor. The Eakins made no answer to the suit. The appeal is by appellant, Hooker, alone. The land in controversy was the 65 acres of the Holmes Byfield survey in Shelby county conveyed by Mrs. N. C. Milner, joined by her husband, to J. J. Lewis, who was the source from whom the litigants respectively claimed title.

Having secured a judgment for $646.60, interest and costs, against said J. J. Lewis, appellant on October 5, 1909, caused an abstract thereof to be duly recorded and indexed in the office of the county clerk of Shelby county. At that date there was nothing of record showing the title to the land to be in said Lewis, and appellees Allen and Poor claimed that, as a matter of fact, the title ■was not in him, but, instead, was in appel-lee Allen. In support of their contention said appellees proved that the Milners in 1903, in consideration of $600 paid to them by said Lewis, conveyed the land to him; that said Lewis in December of the same year conveyed it to his brother W. J. Lewis, in consideration of certain promissory notes secured by a lien on the land then made by said W. J. Lewis; that said J. J. Lewis aft-erwards transferred the notes to one Cicero Smith as collateral security for a debt he owed Smith; that W. J. Lewis died before he had paid anything on the notes; and that after his death, in 1908, said J. J. Lewis, with the consent of the widow of said W. J. Lewis, conveyed the land to appellee Allen in consideration of his undertaking to pay, and paying, the notes made by W. J. Lewis, held by Smith as stated. Appellees proved that the deeds evidencing the conveyances from the Milners to J. J. Lewis and from the latter, first to W. J. Lewis, and then to ap-pellee Allen, and a deed made by the Milners to said J. J. Lewis in 1908 or 1909 to cure a defect in the one they had made to him in 1903, were destroyed by fire in September, 1909. Appellant contends that the testimony relied upon to show that the Milners conveyed to said J. J. Lewis in 1903 and in 1908 or 1909, as claimed by said appellees, was not sufficient to support the finding by the trial court that the title to the land passed to' said J. J. Lewis before he conveyed to appel-lee Allen. We think it was, and overrule the-contention.

March 15, 1910, a deed dated December 1, 1909, made by the Milners, conveying the land to said J. J. Lewis, was placed of record in Shelby county. The consideration recited in this deed was $650 then paid by J. J. Lewis to the Milners. Appellees Allen and Poor proved that, as a matter of fact, nothing was then paid to the Milners, and that the deed was executed for the consideration paid to them by J. J. Lewis in 1903 as a substitute for the deed they then made to him, and for the deed they made to him in 1908 or 1909, destroyed by fire as stated above. Said appellees Allen and Poor further proved that said J. J. Lewis by a deed dated March 19, 1910, duly recorded May 18, 1910, conveyed the land to appellee Allen, and that this deed was executed as a substitute for the one said Lewis had previously made to Allen, and which had been destroyed by fire as stated; and they further proved that the widow of W. J. Lewis, deceased, by a deed dated August 8, 1912, recorded August 27, 1912, conveyed the land to said Allen.

July 8, 1911, the land was levied upon as the property of J. J. Lewis by virtue of an alias execution issued on the judgment appellant had obtained against said J. J. Lewis. At the sale thereof subsequently made by the sheriff by virtue of said execution and levy appellant was the purchaser for the sum of $100. The deed made by the sheriff to appellant as such purchaser was dated August 1, 1911.

It was not shown that appellant had notice of the fact that appellee Allen owned the land at the time he had his judgment against J. J. Lewis recorded and indexed as stated but there was testimony sufficient to support a finding that he did have notice of the fact that J. J. Lewis was not, and that appellee Allen was, the owner of the land at the time the execution was levied and at the time the land was sold by the sheriff. Therefore the question presented by the record is: Was appellant, as the purchaser of the land at his execution sale, with notice of the fact that the execution debtor did not, and that ap-pellee Allen did, own it, nevertheless entitled to protection as against the claim of appel-lees Allen and Poor because he was without notice of their claim of title at the time he had the abstract of his judgment recorded and indexed? We think the question should be answered in the negative. By the terms of the statute the recording and indexing of the abstract operated to create a lien only upon real estate then owned by J. J. Lewis in Shelby county and real estate in that county thereafterwards acquired by him. Article 5616, Vernon’s Statutes. At the time the abstract was recorded and indexed said J. J. Lewis did not own the land, and he never thereafterwards became the owner of it. Appellant insists, however, that he nevertheless was entitled to protection by virtue of the statute as follows:

“All bargains, sales and other conveyances whatever, of any land, * * ♦ shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall nevertheless be valid and binding.” Article 6824, Vernon’s Statutes.

In support of his contention appellant cites Grace v. Wade, 45 Tex. 522, and other cases holding that a judgment creditor who, without notice, has acquired a lien on the judgment debtor’s land, is entitled by force of the statute quoted above to protection against the claim of a third person based on an unrecorded deed previously made to him by the judgment debtor. An examination of the line of cases referred to will show, we think, that in none of them was it held that the effect of recording and indexing a judgment was to create a lien on land not then, in fact, nor apparently, that is, according to the face of the record, owned by the judgment debtor, nor ever afterward, in fact, owned by him. To hold otherwise, it seems to us, would be to ignore the statute which, as stated above, declares that such recording and indexing shall operate as a lien only upon real estate owned at the time or afterwards by the judgment debtor. Appellant never acquired a lien on the land until the execution issued on his judgment was levied thereon. If it appeared that at that time he was without notice of the claim of appellees Allen and Poor, he would by force of the statute he invokes be entitled to protection as against their claim. But, as before stated, the contrary appeared. We think there is no error in the judgment, and therefore it will be affirmed.
      <g^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gzr>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes