text:
    RABINOWITZ v. SMITH CO.
    (No. 995.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Tkial <®=328d—Instructions—Failure to Object.
    Mere failure to object to the general charge of the court does not estop a party from requesting instructions and excepting to, refusal of such requests, since under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, if there is no objection to the general charge, the objection only is waived and the charge is not approved.
    [Bd. Note.—For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. 4&wkey;284.]

      2. Pleading &wkey;34(3) — General Exception —Effect—Presumptions.
    Every reasonable intendment will be indulged in favor of the allegations in the petition under a general exception.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. <&wkey;34(3)J
    3. Brokers <&wkey;82(l) — Actions — Pleading— Sufficiency.
    A petition in a broker’s action for commission, alleging that he was to make a sale for part cash, the balance due to suit the purchaser, and that the lot was sold .upon terms required by the seller to a purchaser willing and able to pay all cash, or to make terms to suit the seller, is not subject to a general exception.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 101; Dee. Dig. &wkey;>82(l).]
    4. Pleading <&wkey;228 — Misjoinder of Counts —Necessity of Objection.
    If a petition is defective in failing to plead several alternative allegations by separate counts, special exceptions should be made on that ground, which a general exception will not reach.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;>228.]
    5. Pleading &wkey;>248(4) — Amendment —Sub- ■ stitution of New Cause.
    Where a broker’s petition for commissions alleged that the price at which he was to sell the land was $8,000, $2,500 to be paid in cash, a subsequent amendment, repeating the allegations of the petition, except that the amount of cash was not to be less than $2,500, did not allege a new cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 701-706, 708%; Dec. Dig. &wkey; 248(4).]
    6. Brokers <&wkey;57(l) — Commissions—Actions —Evidence.
    Where a broker was authorized to sell a lot at $8,000, $2,500 to be paid in cash and the balance in terms to suit the purchaser, and the purchaser to give vendor’s lien notes, and he sold the lot for $8,000, $4,500 in cash, the purchaser to assume certain vendor’s lien notes which in fact had no existence, he was not entitled to commission, not having made the sale upon the terms required.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. &wkey;57(l).]
    Appeal from Dallas County Court; T. A. Works, Judge.
    Action by the Smith Company against D. Rabinowitz. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Adams & Stennis, of Dallas, for appellant. Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   HUFF, C. J.

The Smith Company, ap-pellee, sued D. Rabinowitz for commission alleged to have been earned in the sale of a certain lot in the city of Dallas. The contract of listing is alleged as follows:

(1) “That on January 18, 1910, defendant (Rabinowitz) re-enlisted the said property with the plaintiff at the gross price of $8,000 (eight thousand dollars), $2,500 of which to be paid •fu cash by the purchaser, and the balance of the purchase price was to suit the purchaser as to the payment of same.”

(2) “That the terms upon which said property was listed with plaintiff for sale was $2,500.00 cash, upon delivery of warranty deed and the residue of the purchase price to be secured by vendor’s lien upon said property.”

(3)After this cause had been pending in the court for some four or five' years, on March 23, 1915, by an agreement appellee inserted in the petition the following: “That if the property was not listed with Smith Company upon the exact terms hereinabove set forth, it was listed to be sold upon the following terms, to wit: For $8,000, not less than $2,500 to be cash; balance in vendor’s lien notes bearing 8 per cent interest upon terms to suit purchaser.”

It is also alleged that it was agreed to pay 5 per cent, commission upon the gross sum of $8,000 “on and for the sale of said property.” Four days after the re-enlistment plaintiff sold the property to one C. P. Dawson for the sum of $8,000, who was ready, willing, and ■ able to meet the terms of defendant, or to pay all cash for said property, or to make the terms to- suit the defendant. Again it is alleged:

“That the said plaintiff did sell the said property to the said C. P. Dawson upon terms required by defendant, but plaintiff avers that defendant, when requested to perform said contract made by plaintiff, as defendant’s duly authorized and constituted agent, renounced said contract and refused, and still refuses, to perform the same, or to transfer the said property to said purchaser, notwithstanding he has been requested and urged to do so.”

It is also alleged:

“That at no time after the said property was listed with plaintiff for the gross price of $8,000 did defendant change or modify the price, terms, or conditions on and for which said property was listed to be sold by plaintiff, but, on the contrary, and from time to time, over and always confirmed the said contract of enlistment, and urged these plaintiffs to employ their best energies to find a purchaser for the said property.”

The appellant answered by exceptions, general denial, and as to the plea added March 23, 1915, interposed the plea of two-year statutes of limitation.

We shall first consider appellee’s objections to the appellant’s assignments of error, in which 'complaint is made to the action of the trial court in refusing four special requested instructions. The objections to the assignments are:

“That appellant waived said assignments of error for the reason that he'approved the court’s charge, which submitted au issue of fact for the jury’s decision, and determination by his failure to object to such charge.”

Two of the requested instructions were peremptory, and requested a directed verdict, on the ground that there is no evidence showing that a sale was effected on the terms- of the listing contract. The other two were instructions, requesting an application of the law to the facts on that issue. Proper bills of exceptions were taken and preserved to the action of the court in refusing the request. In the case of Railway Co. v. Alcorn, 178 S. W. 833, this court, speaking through Judge Hendricks, while reviewing the case of Steele Co. v. Dover, 170 S. W. 812, with reference to the construction given to the amendment oí tlie statutes regulating charges, said:

“We disagree, however, with that holding, and think that a more reasonable construction of the statute, viewed as a whole, is that if a litigant makes a presentation in a special charge of an • element of recovery, or of defense, appropriately based upon the facts and not embodied in the main charge, and sufficiently succinctly calls the court’s attention to the omission, he is entitled to the submission of the charge, though he failed to object to the general charge on account of such omission.”

In the recent case of Roberts v. Houston, etc., 188 S. W. 257, the Court of Civil Appeals for the First District apparently in part concur with this court, while as to certain classes of requested instructions hold that a failure to object to the main charge would be an approval of the charge, and that a special requested instruction would not be considered. It is obvious, however, in the light of the construction given these statutes by the Supreme Court, in the case of Railway Co. v. Dickey, 187 S. W. 184, that the various Courts of Civil Appeals have reached their conclusion from a wrong premise; as, for instance, it is frequently said a party failing to object to the main charge will be considered as having approved it. The Supreme Court points out very clearly that the articles with reference to objections to the main charge do not require exceptions, and that article 2081, as to taking bills of exception, refers to requested instructions, and it is therefore the given or refused instructions which are approved when there is no bill of exceptions. If there is no objection made to the general charge, it is waived under, article 1971. It is the objection that is waived; the charge is not approved as being the law applicable to the case by failing to object. The courts have time and again said since this act that if there is an omission, an- objection to the main charge because of the omission will not sufficiently present error, but an instruction must be asked covering the omission. Modern Woodmen of America v. Yanowsky, 187 S. W. 729. It is apparently held because no objection is filed to a charge submitting the facts to the jury that this would be held to be an approval of the charge and, we presume, an admission that there are facts for the determination of a jury. If there are no facts raising an issue, there is nothing to submit or to be determined by the jury. This rule has long been followed in this state by all the courts. Mitchell v. De Witt, 20 Tex. 294; Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607. A party should not be estopped from calling attention to the fact that there is no evidence, either by a special charge or upon motion for a new trial, simply because no objection was presented to the charge of the court. It has been the holding of the Supreme Court that a requested instruction, presented after the court has prepared its charge, is not invited error or an estoppel. Telegraph Co. v. Eowen, 97 Tex. 621, 81 S. W. 27; Railway Co. v. Eyer, 96 Tex. 72, 70 S. W. 529. It has also been held, where it appears the charges requested by the appellant were asked in explanation and amplification of the charge of the court, that this does not estop the appellant. Railway Co. v. Pickens, 118 S. W. 1133; Paris Gro. Co. v. Burks, 56 Tex. Civ. App. 223, 120 S. W. 552. An invitation to do a thing is in some respects a waiver of any injury resulting from the doing of the thing. We call attention to this line of authorities because it has been suggested by some of the decisions cited in the brief that a general charge to which appellant does not object should be treated as invited error. We cannot very well conceive why a failure to object should be held to have invited the court to write the charge it did. The court writes its charge and submits it to counsel for objection, who may then prepare and present such instructions as he desires. If the court’s charge is not full enough or does not correctly present the law as applied to the facts, we cannot see why the appellant should be estopped or be held to have waived his right to request proper instructions by the mere failure to object to the charge. It has also been suggested that if the charge is not objected to and special instructions are requested and given, there would be such a conflict between the two that the case would be reversed under that line of decisions requiring a reversal upon inconsistent charges. In the first place, we are not to presume the court will do a thing of that kind; the presumption should be that he will withdraw the erroneous charge and give the correct one, as the law requires that he shall. Railway Co. v. Dickey, 187 S. W. 184. If he does not do so, then in the face of that presumption the court ought not to assume that appellant has waived his rights, which are preserved under the statutes giving him the right to request such instructions as he might desire. If the charges requested should have been given and were proper to have been given, the question of objection to the main charge of the court should have nothing to do with it. The objections provided for under the statutes were evidently intended to correct a well-known evil — such a charge not in the proper form, upon mere construction of the language of the charge liable to be considered as a charge upon the weight of the evidence, and the like — well-known considered evils known to the profession. To hold a failure to object waives the right to request special instructions is to hold in effect a repeal of articles 1973 and 1974, giving the right. This cannot be done by any rule of statutory construction.

This court, in the case of Insurance Co. v. Rhoderick, 164 S. W. 1067, and Railway Co. v. Culver, 168 S. W. 514, called attention to the statutes, and suggested simply that the record must, in some appropriate manner, reveal the action of the court in overruling objections to the charge; that the ree-ord must also show the objections were presented before the charge was read to the jury. We suggested that a bill of exception perhaps would be a proper manner, but we did not hold that this was the only method to be pursued in preserving the error of the court in overruling objections. In the Cul-ver Case we expressly called attention to article 1972, which provides that the court’s charge shall be regarded as excepted to and subject to revision for error without the necessity of taking a bill of exceptions, and we also called attention to article 2062, providing that where the ruling of the court appears otherwise of record, no bill is required. We did not attempt in those cases to construe the articles further than to apply them to the question there under consideration.

In the case of Railway Co. v. Galloway, 165 S. W. 550, where there was no objection to the general charge and a special instruction was requested on the same issue, without taking a bill to its refusal, and an assignment was based on the refusal of the court to charge and to the.refusal of the special instructions on that issue, this court held that the failure to give the requested instruction under article 2061, in the absence of an exception to the action of the court refusing it, would be held to be approved, and in the absence of an objection to the general charge on that issue would be regarded as waived. We have not held that the failure to object would be an approval of the court’s general charge, or that it would deprive the aggrieved party of the right to present error upon the refusal of requested instructions if properly presented by bill of exceptions. We note that the above cases have been cited as if supporting the latter proposition. This court has never intended to make such holding, but in the Alcorn Case, supra, expressly held a failure to object to the general charge would not defeat the right to assign error upon the refusal of the specially requested instruction.

The first assignment presents that the court was in error in overruling appellant’s general exceptions to the petition. Every reasonable intendment will be indulged in favor of the allegations in the petition under a general exception. The objection appears to be that the petition alleges the authority of the agent was to make a sale, and the balance due on the purchase price “was to suit the purchaser as to the payment of same,” or “upon terms to suit purchaser,” and that the lot was sold “upon terms required by defendant,” the seller. It was also alleged that the sale was made to a purchaser, “willing and able to pay all cash for said property, or to make terms to suit the defendant.” We think it is reasonably apparent that it was alleged the agent was authorized to sell for a stipulated price, giving the cash required, and the balance was to be paid by the purchaser at such time as would suit him; that, a purchaser was found who was willing to take it oh the terms mentioned or to pay all cash, or to make the terms, payments, to suit the defendant; that these terms, or either of them, suited the purchaser. The petition is not, in our judgment, subject to a general exception. .

The second assignment is overruled. If the petition is defective in failing to plead several alternative allegations by separate counts, the appellant should have presented a special exception on that ground. A general exception will not reach the defect, if any.

The third assignment asserts that the third count or allegation, set up for the first time March 23, 1915, alleged a new cause of action, and was therefore barred by the statute of limitation. We do not think so. The contract of agency, in all the several ways alleged, is substantially the same. In all the price of the land was $8,000, $2,500 cash, and the balance to be secured by vendor’s lien. In the last it is alleged the cash was to be not less than $2,500. The cause of action alleged in- each as to whether it is the same cause of action will meet the test laid down by the Supreme Court, in Phœnix Lbr. Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707. The original allegations and that added by insertion evidently declare upon the same transaction, and differed only as to the terms and effect of the agency contract. Green v. Loftis, 132 S. W. 507; Burton v. Beyer, 34 Tex. Civ. App. 276, 78 S. W. 248.

The fourth and fifth assignments of error urge that the court should have given the first and second specially requested instructions, which in effect directed a verdict for the appellant, for the reason that the appellee did not make a sale upon the terms upon which the property was listed. The witness, Milam, who testifies he was manager of the real estate department of appellee at the time the property in controversy was listed, and who made the listing contracts, testified:

“On January 18, 1910, it (the lot) was listed at a gross jorice of $8,000, $2,500 of this to be cash; that is, the cash payment was not to be less than $2,500, and the balance in vendor’s lien notes bearing 8 per cent, interest. The Smith Company was to get 5 per cent, on the gross price of $8,000 for making the sale of said property.”

This witness further testified that he sold this property to C. P. Dawson and entered into a written contract with him; that Dawson was financially able to buy the property; “he was ready and willing and able to comply with the terms of his contract to purchase said property;” that he informed appellant of the sale and showed him the contract; that appellant said he thought the property would sell for more, but that he was willing to take the price and pay the commission, but that his brother, who was interested with him, was unwilling to take that for the land; that witness, up to the time when appellant refused to deed the land, did not know that appellant’s brother or brother-in-law had any interest in the lot, and asked appellant why he had not told him of that fact. Appellant replied his brother had been willing to sell for that price, but had since refused to take the price and wanted more. This witness testified that:

“I did sell said property on January 22, 1910, to O. P. Dawson. I negotiated the sale selling said property for $8,000, on the following terms: S4,500 cash and the (assumption?) of $3,000 vendor’s lien notes, which I understood at the time were outstanding against said property, but later found out that there were none.”

Smith, the general manager of the company, testified to the terms of the listing contract substantially as did Milam. Smith says Dawson was willing to pay more cash than agreed upon in the contract; that it was understood there were $3,500 in notes against the property, and that Dawson would have to assume them, but if there were no notes, then Dawson would pay all cash, if appellant wanted it; that he was willing to meet the terms of appellant, and was financially able to do it. Smith says he drew the written contract. There is no testimony showing' that there was a contract to sell the land for all cash, or that appellant was ever notified that Dawson would pay all cash. The testimony shows positively he was not present when the purported trade was made between Dawson and the Smith Company. There was in fact no incumbrance on the lot for $3,500, or for any sum of money, and it is not pretended that appellant represented there was. The listing slip offered in evidence shows: “Price $S,000.00 gross; terms, $2,500.00 cash; incumbrance, -;” and under the word and dash is written, “Bal. $3,500.00 to suit.” A written contract was entered into on the 22d day of January, 1910, signed by C. P. Dawson, and “Smith Company by W. H. Milam, Sales Manager’s Agent for D. Kabinowitz.” This contract recited the land was sold for $8,000, to C. P. Dawson ; $4,500 cash, and the “balance in the assumption by Dawson of $3,500.00 in-cumbrance now against the said property; interest on said notes to be, paid by said Kabinowitz to date of transfer.” Pour hundred dollars was paid into the hands of the agents. “Balance of cash payment to be made and notes and deed of trust to be executed at once when general warranty deed is presented when property conveyed herein-before described. All taxes to be paid up to and including the year 1909; rents to go to grantee to date of transfer.” The contract further evidences that 30 days were allowed in which to prepare abstracts and conclude transfer. The rents on the property was $45 per month. C. P. Dawson testified that he entered into a contract as shown by the writing’ for the purchase of the property, and identified the written contract as the one signed by him. He testified: “I was ready, willing, and able to comply with my contract to purchase said property;” that he demanded- of appellant a compliance with the sale “according to the terms of the contract.” Appellant, according to his recollection, refused to deed the property because he had previously sold it. On cross-examination Dawson testified’ that he had the money to pay the cash called for, and that he was able and willing to comply with his contract. The agents, according to the un-contradicted testimony, were authorized to sell the lot for $8,000, with at least $2,500 cash, balance to be secured by vendor’s lien notes, bearing 8 per cent, interest. They made a written contract with Dawson to sell for that price, and to pay $4,500 cash and to assume $3,500 incumbrance, which in fact had no existence. The appellant, under the contract, could not have compelled the execution of such note. He, according to ap-pellee, stipulated that he. should have vendor’s lien notes. The appellees made no contract requiring the purchaser to execute such notes. Again, the appellee was not authorized to give the purchaser the rents on the property until the matter was closed up. Ordinarily, a proposed purchaser gets the use of his money and the proposed seller the use or rents of his property until the trade is finally consummated. It is certain a written contract was not executed according to the terms the agents were authorized to give the purchaser. The Smith Company failed to pursue the authority given them; therefore no valid sale was made.. It was required to strictly pursue the method and the power granted it in the' listing contract. This it did not do, and therefore was not entitled to commissions to a sale it never made. Colvin v. Blanchard, 101 Tex. 231, 106 S. W. 323; Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959; Evants v. Fuqua, 102 Tex. 430, 118 S. W. 132, 132 Am. St. Rep. 892; Hagler v. Ferguson, 102 Tex. 432, 118 S. W. 133, 133 Am. St. Rep. 895; Henderson v. Gilbert, 171 S. W. 304; Caldwell v. Scott, 143 S. W. 1193.

Appellee apparently insists that if the contract was not in accordance with the terms given it, a purchaser was nevertheless found who was willing, and able, to pay all cash, which would be within the terms of the listing contract. Dawson may have been willing to pay cash, but he did not so contract, and the appellant could not have forced him to do so. Hagler v. Ferguson, and Evants v. Fuqua, supra. Both Milam and Dawson testified that Dawson was willing and able to take the land according to the terms of the contract made. Smith testifies that Dawson wanted to pay cash, but could not do so. because of the incumbrances. The agent never so notified appellant, and Dawson never agreed to pay cash or entered into any such contract. It was incumbent upon ap-pellee to show a sale in accordance with their authority in the listing contract, and this was not done.

The fourth, fifth, and eight assignments-are sustained.

It will be unnecessary to notice other assignments. Tbe case will be reversed and rendered for tbe appellant.
      <®moFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <$=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    BORSCHOW v. WILSON.
    (No. 1685.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 8, 1916.
    Rehearing Denied Dec. 21 1916.)
    1. Evidence <@=441(11) — Parol Evidence— Varying Terms of Contract.
    In an action on notes transferred as part consideration for an exchange of property under a written contract agreeing to sell and convey the notes, where the written contract was clear and unambiguous, and there was no averment in the pleadings that there was any fraud or mistake which made it an incomplete or incorrect memorial of the agreement entered into, parol evidence was inadmissible to prove terms either additional to or different from those contained in the writing.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1799-1812, 2043, 2044; Dec. Dig. <@=441(11).]
    2. Bills and Notes <§=289‘ — Accommdda-tion Indorser.
    If one not having an assignable interest in promissory notes joined in an indorsement for the purpose of assignment alone, his liability would have been that of a surety or guarantor and not that of an ordinary indorser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 622, 627; Dec. Dig. <@= 280.]
    3. Principal and Agent <@=109(4) — Liability op Principal — Indorsement op Note by Agent.
    An indorsement of a note by an agent m his own name does not bind the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 322, 365; Dec. Dig. <@=109(4).]
    4. Principal and Agent <^=>171(1) — Diability op Principal — Acts op Agent in His Own Name.
    The fact that a principal received the benefit of a transaction is not alone sufficient to make him liable for the agent’s undertaking in his own name.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 644, 645, 653, 654; Dec. Dig. <S=171(1).]
    5. Fraud <@=47 — Elements — Injury to Plaintiff.
    Where a count charged the alleged partner of the indorsee of notes with conspiracy to convey to plaintiff notes worth less than their face value, in the absence of evidence that either maker or payee, both liable personally for payment of the notes, were insolvent, no injury to plaintiff, the first essential in an action for fraud, was shown, and there was no liability.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 42; Dec. Dig. <S=47.]
    Appeal from District Court, Cherokee County; D. D. Guinn, Judge.
    Suit by A. 'M. Wilson against Max Bor-schow and others. From a judgment for plaintiff against named defendant and defendant J. N. Dabel, named defendant appeals.
    Reversed and rendered.
    Samuels & Brown, of Ft. Worth, for appellant. J. Lee Zumwalt, of Dallas, for ap-pellee.
   HODGES, J.

In August, 1914, tbe appel-lee, A. N. Wilson, instituted this suit in tbe district court of Cherokee county against G. H. Moss, J. S. Brasher, and J. N. Label, alleging, in substance, as follows: That G. H. Moss bad made, executed, and delivered to tbe defendant Brasher three promissory notes for $500 each, with interest from date at the rate of 8 per cent, per annum, due April 21, 1914, 1915, and 1916, respectively. The notes contained the stipulation that a failure to pay any one of them at maturity would at the option of the holder mature all of them. These notes were given in part payment of the purchase money for a tract of land described in tbe pleadings, which had been sold by Brasher to Moss. The notes were thereafter, for a valuable consideration, and before maturity, sold to J. N. Label, and were by Label assigned and transferred to tbe plaintiff. One of the notes had matured but had not been paid, and plaintiff had exercised his option to declare all' of them due and had placed them in the hands of an attorney for suit. The petition concluded with a prayer for a personal judgment against the parties mentioned, and for a foreclosure of the vendor’s lien upon the land described. In January, 1915, the plaintiff, Wilson, filed an amended original petition, retaining as defendants Moss, Brasher, and Label, and making the appellant Max Borschow also a party defendant. In addition to the averments contained in the original petition, it was alleged, in substance, that Brasher had transferred all of the notes to Label and Borschow; that Label and Borschow had assigned and transferred the notes to the plaintiff, and as a part of the trade had agreed to indorse the notes with recourse on themselves; but that the notes were in fact transferred by Label alone, without indorsement. It .was further averred, if the plaintiff was mistaken as to the ownership of the notes being in Label and Borschow, that these parties in their dealings with him were acting as a partnership. It was also charged that Label in transferring the notes was acting as the agent of Bor-schow. Borschow under oath denied the existence of the partnership between him and Label, denied that Label was his agent in any transaction with the plaintiff, and also denied that he was in any ,way connected with the trade between plaintiff and Label. Moss and Brasher filed no answer, and judgment was rendered against them by default for the amount of the notes, with a foreclosure of the vendor’s lien. The trial then proceeded upon the answers of Borschow and Label.

The facts as disclosed by the testimony were, in substance, as follows: In August, 1913, Wilson was the owner of a stock of goods in the town of Justin, Denton county, Tex., which he desired to sell. After some : negotiations,- he and J. N. Label agreed upon the terms of a trade, which they subsequently embraced in the following written agreement:

“State of Texas, County of Denton.
“Know all men by these presents:
“That we, A. M. Wilson, party of the first part, and J. N. Label, party of the second part, have entered into the following agreement and contract, for the exchange and sale of property and merchandise:
“First. The party of the first part bargains, sells and exchanges to the party of the second part as follows: One stock of groceries, general merchandise and fixtures situated in the town of Justin, Tex., Denton county, said stock to be sold at wholesale cost price.
“Second. And in consideration the party of the second part bargains, sells and conveys to the party of the first part as follows: Two tracts of land. One being 160 acres in Henderson county, seven miles south of the town of Athens, known as the Henry McCall place. Also one 75-acre tract located 10 miles southwest of the town of Jacksonville, Tex., known as the Robert A. Smithers place. Also two groups of vendor’s lien notes totaling the amount of $2,340.00. The value of the entire property, land and notes, being $7,250.00.
“Third. It is further agreed and understood by each of the parties to this contract, that should the stock and fixtures invoice more than the land and notes amount to then the party of the second, part agrees that the difference shall apply to the transferable indebtedness of the party of the first part on the stock transferred, and if the difference should be more than this indebtedness, then the remaining difference is to be paid in cash.
“Fourth. Should either party to. this contract, after good and sufficient titles have been furnished, refuse to deliver possession of said property on completion of the inventory to the above-mentioned stock, then the party in default shall surrender, forfeit and deliver all papers to the party complying with the contract.
“Fifth. It is agreed and understood that the party of the second part is not to assume any contracts made by the party of the first part for goods to be delivered after the present date.
“Witness our hands this the 12th day of August, A. D. 1913. A. M. Wilson.
“J. N.' Label.”

Wilson testified that before this written contract was executed he and Label discussed the manner in which the notes referred to were to be transferred and that it was agreed between them that they were to be assigned by Label’s written indorsement without any qualification. He was corroborated by another witness, who wrote the contract and was present at the time. Wilson also testified that after an inventory of the goods had been completed, and during his absence, Label brought to his office and left for delivery to him a written assignment of the notes, stipulating that they were transferred without recourse. Wilson refused to accept that assignment, and went over to the store to see Label about it. He was informed, however, by Blr. Borschow, that Label was not in town, but that he (Bor-schow) would see Label, and was assured by Mr. Borschow that the matter would be arranged satisfactorily.

This oral testimony on the part of Wilson was admitted over the appellant’s objection. Babel denied that he had entered into any agreement with Wilson to assign the notes by written indorsement and testified that no such agreement was ever made between them.

It appeared from other testimony that one group of the notes, transferred by Label to Wilson as ai part of the consideration in that trade, belonged originally to Borschow, but that the notes involved in this suit belonged to Label.

At the conclusion of the evidence, the appellant, Borschow, requested the court to peremptorily instruct a verdict in his favor. This was refused and the case was submitted on special issues, which resulted in a finding of the following facts: (1) That Label and Borschow jointly purchased the stock of goods from Wilson. (2) That Label acted for himself and as agent for Borschow in that purchase. (3) That Label agreed to assign the notes involved in this suit by a plain and unqualified written indorsement. (4) That in making that agreement he was acting both for himself and Borschow. Upon these findings the court entered a judgment in favor of the appellee, Wilson, against both Label and Borschow as indorsers on the notes. Borschow alone has appealed from that judgment.

It will be observed that in the amended original petition pled in this ease the liability of the appellant, Borschow, is based upon the ground that he, together with Label, agreed to indorse the notes without any qualification. It is also alleged that Label in contracting with Wilson was acting as the agent of Borschow, and that Label and Bor-schow were partners in the undertaking. In a trial amendment filed by the appellee, the liability of Borschow'is based upon the ground that he and Label entered into a conspiracy to defraud Wilson by inducing him to trade for and accept promissory notes that were “worth less than their face value.”

Appellant’s liability upon the first count of the appellee’s pleadings must be determined by the terms of the written contract, which has been heretofore quoted. It appears to be conceded by counsel for both parties that this contract is the only writing which contains any of the foregoing statement of the facts. The court, over the objection of appellant, permitted Wilson to testify that Label expressly agreed to assign the notes by a plain indorsement. This testimony was either superfluous or inadmissible. The written contract was clear and unambiguous, and there is no averment in the pleadings or statement in the evidence that there ,was any fraud or mistake which made it an incomplete or an incorrect memorial of the agreement entered into at that time. Parol evidence was therefore inadmissible to prove terms either additional to or different from those contained in the writing. On the other hand, if it can be said that the terms of the written contract to sell and convey the promissory notes implied an assignment by a plain indorsement, the parol testimony of Wilson was superfluous and added nothing to the stipulation to be considered in construing the contract. Hence, in disposing of the issue of liability under the first count, we are confined to the written contract alone.

The question then is: Did the terms employed by the parties in this contract imply that Label was to assign by written indorsement? In other words, did the terms “sell and convey,” when applied to negotiable promissory notes, carry the implication that the sale and conveyance were to be in the form of an indorsement without any qualification? The common-la.w rule pertaining to the assignment of promissory notes and other choses in action does not prevail in this state. Word v. Elwood, 90 Tex. 130, 37 S. W. 414; Prouty v. Musquiz, 94 Tex. 87, 58 S. W. 721, 996. The contract ,by its terms bound only Label. There was no evidence that Borschow had agreed to participate in the sale and conveyance of the notes. Let us then suppose that Label had performed the contract, according to Wilson’s understanding, and had actually indorsed the notes without any qualification: Would that indorsement have bound Borschow also? The indorsement being for the purpose of assignment alone, it could not have been within the contemplation of the parties that one having no assignable interest should join in the indorsement, without an express agreement to that effect. Had Borschow also indorsed the notes, his liability would not have been that of an ordinary indorser, but that of a surety or a guarantor. Latham v. Houston Flour Mills, 68 Tex. 127, 3 S. W. 462; Brooks v. Stevens, 178 S. W. 30; Jones v. Lynch, 137 S. W. 395; 8 Cor. Jur. 79, and cases cited in notes. Had Label by authority written Borschow’s name on the back of the notes, the situation of the latter would have been the same as if he had himself put it there. It follows then that, in the absence of proof that Borschow or Label had agreed that Borschow should be bound upon the notes, the judgment appealed from is unsupported by the evidence. Label could not have acted as Borschow’s agent in conveying Label’s own property; this is true even though they may have been partners in the result of the negotiations. These notes were negotiable instruments ; and, under the rule prevailing in this and many other states, an indorsement by an agent in his own name does not bind the principal. Texas Land & Cattle Co. v. Carrol & Iler, 63 Tex. 48; Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 66 Am. St. Rep. 913; New York Life Ins. Co. v. Martindale, 75 Kan. 142, 88 S. W. 559, 21 L. R. A. (N. S.) 1045, 121 Am. St. Rep. 362, 12 Ann. Cas. 677, and cases cited in notes. The fact that the principal received the benefits of the transaction is not alone'sufficient to make him liable for the agent’s undertaking. We therefore conclude that the evidence was insufficient to hold Borschow liable upon the contract to indorse.

The next question is: Was Borschow liable upon the ground that he conspired with Label to convey notes worth less than their face value? Treating the averments in this count of the appellee’s petition as sufficient to charge an actionable conspiracy to defraud, there is no evidence to support a finding against Borschow upon that issue. The notes were executed by Moss payable to the ocder of Brasher, and by the latter transferred to Label by plain indorsement. Both Moss and Brasher became liable personally for the payment of the notes. There was no evidence from which it might have been concluded that either of these parties was insolvent; and, unless they were, no injury to the appellee has been shown, and the first essential in an action for fraud was lacking. There was therefore no basis for a judgment against the appellant upon that count.

For the reasons stated, we are of the opinion that the court should have given the peremptory instruction. The judgment therefore will be reversed, and judgment here rendered in favor of the appellant, Borschow.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    LUCK v. ALAMO PRINTING CO.
    (No. 5697.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Corporations <@==>33 — Liabilities—Contracts — Notice op Corporate Existence.
    The appearance of the name of an association on the office door with the names of the individuals with whom the representative of plaintiff dealt did not necessarily give notice to plaintiff of- a corporation.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. <S=>33.]
    2. Sales' <@=>52(6) — Actions for Price — Evidence.
    In an action for the agreed price for printing and supplies, evidence held to support the jury’s finding that the plaintiff, through its agent, dealt with defendant, binding him individually.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 138; Dec. Dig. <@==>52(6).]
    Appeal from Bexar County Court for Civil Cases; Ed H. Wicks, Special Judge.
    Action by the 41amo Printing Company against J. J. Luck and others. From a judgment for plaintiff, defendant J. J. Luck appeals.
    Affirmed.
    Williams & Hall, of San Antonio, for appellant. Wm, H. Russell, of San Antonio, for appellee.
   SWEARINGEN, J.

Appellant was sued, with other defendants, for $193.20, being the agreed price for certain printing and supplies. The county court gave the jury two general instructions, and submitted one special issue, which was:

“Question No. 1. Was any contract made tor the printing by plaintiff, the Alamo Printing Company, through its agent, M. C. Hill, with the defendant J. J. Luck, binding him individually ? , Answer yes or no”

—to which the jury answered, “Yes.” The court rendered judgment in favor of appellee against defendants, J. J. Luck, E. A. Luck, and Neal Currie, and also against the U. S. Fidelity & Guaranty Company, surety on the appeal bond of the defendant J. J. Luck, for $193.20 and interest at the rate of 6 per cent, from October 19, 1915, together with costs incurred in both the justice and county courts. Appellant J. J. Luck alone appealed.

Appellee made, among others, the following allegation:

“This plaintiff would further show that the defendant J. J. Luck personally bound and obligated himself to pay the account sued on by reason of the fact that prior to the time the said account was made and at the time the prices thereon were submitted to the defendant, J. J. Luck, it was understood and agreed between the parties that the defendant J. J. Luck was to pay for the same.”

Appellant, J. J. Luck, filed a plea in bar, wherein he averred as follows:

“He further shows to the court that he never purchased of the plaintiff herein any goods, wares, or merchandise as claimed by plaintiff herein, nor did this defendant ever authorize any one to purchase from plaintiff for him any such goods, wares, or merchandise.”

Appellant filed an additional plea which contained a general denial and the following special denial:

“(3) He (J. J. Luck) denies positively that he ever dealt with plaintiff individually in any transaction whatever.”

The evidence was conflicting upon the issue made by the pleadings as above indicated. The agent of appellee, Hill, testified:

“That after receiving manuscripts, etc., from E. A. Luck he called at the office in Frost Building over door of which names of Mexido-Amer-ican Colony Association, E. A. Luck and J. J. Luck appeared; that E. A. Luck was seated at one desk and J. J. Luck at another. After giving prices to E. A. Luck, said E. A. Luck introduced witness to J. J. Luck, stating to witness that said J. J. Luck was his father, and that he desired his father to pass upon the prices, as his father, J. J. Luck, was to do the paying. That witness then handed said prices, etc., to J. J. Luck, who asked E. A. Luck if the prices were in line, and when E. A. Luck said, ‘Yes,’ that J. J. Luck said, ‘All right,’ and handed the papers bade to witness, who thereupon returned to office of Alamo Printing Company, and the printing was done.
“Joe Naylor, a witness for plaintiff, testified that he took several statements of the account sued on to the office in the Frost Building, and on one occasion handed a statement to J. J. Luck in person, and that J. J. Luck took the statement, and said, ‘All right: we will attend to it.’ ”

The'name, Mexico American Colony Association, did not necessarily give appellee notice of a corporation. Appellee had no direct information that it was dealing with a corporation. The articles of incorporation were not filed with the Texas secretary of state, so appellee is not charged with constructive notice of a corporation. The defendants did not state that they dealt as officers or directors of a corporation. Appellant, .Luck, had in fact furnished a large part of the money for the expenses incident to the contemplated business of the association, and had taken the individual notes of defendants Currie and E. A. Luck.

The direct evidence and the corroborative circumstances above mentioned are sufficient to support the jury’s answer to the issue submitted. G., H. & S. A. Ry. Co. v. Garrett, 44 Tex. Civ. App. 406, 98 S. W. 932.

No objection was made by appellant to the submission of the issue, and no bill of exceptions taken thereto. Essex v. Mitchell, 183 S. W. 399.

In deference to the jury’s verdict, we conclude that the errors of the trial court, if any, assigned by appellant, did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. Rule 62a (149 S. W. x).

All of appellant’s assignments are overruled, and the judgment of the trial court is affirmed.
      ©=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    OGBURN GRAVEL CO. et al. v. WATSON CO. et al.
    (No. 7585.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1916.
    Rehearings Denied Dec. 16, 1916.)
    1. Assignments &wkey;3 56 — Orders on Debtor— Acceptance.
    Where a contractor paid money due a subcontractor into court and sought to have claimants therefor interplead, the court properly rendered judgment of distribution, giving' preference to those who had received orders from the subcontractor on the contractor, although such orders were not accepted, as they constituted an assignment of the fund to the extent of their respective amounts.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 68; Dec. Dig. <&wkey;56J
    2. Mechanics’ Liens <&wkey;116(4) — Notice — Sueeiciency.
    When the materialman furnishes material, and it is used in the construction of the building, and gives notice to the owner, before the owner has paid out all of the contract price to the proper parties, the failure to give notice to the owner at the time each article is delivered becomes immaterial, in order to fix the lien, provided the statute is otherwise complied with, as no injury would result to interested parties.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 157-159; Dec. Dig'. &wkey;J 115(4).]
    3. Mechanics’ Liens <&wkey;20 — Constitutional and Statutory Provisions — “Owner.”
    Under Const, art. 16, § 37, providing that mechanics, materialmen, etc., shall have a lien on the building for the value of labor or material furnished, and the Legislature shall provide for the speedy enforcement of such lien, and the laws providing for such liens on buildings and lots necessarily connected therewith, and that notice shall be given the owner, in view of' Rev. St. 1911, Final' Title, § 3, providing that the common-law rule that statutes in derogation of common law shall be strictly construed shall have no application to the Revised Statutes, as “owner” in the mechanic’s lien law does not mean the absolute owner, but the owner of an estate or interest which the court may order sold, a holder of a 99-year lease which required the construction of a building with power to destroy and rebuild improvements, although it made lessee liable personally for liens, had the right to subject the property to the mechanic’s lien, and its estate was subject to such lien.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 21; Dec. Dig. <@=320.
    For other definitions, see Words and Phrases, First and Second Series,' Owner.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Interpleader by the Watson -Company against A. A. Grees and others. From the judgment fixing the rights of the parties, and from the overruling of their motion for a new trial, defendants Ogburn Gravel Company and others bring error.
    Reversed and rendered in part, and otherwise affirmed.
    Burgess, Burgess, Germany & Chrestman, O. D. Brundidge* and W. J. Rutledge, Jr., all of Dallas, for plaintiffs in error. Holloway & Holloway and Adams & Stennis, all of Dallas, for defendants in error.
   RAINEY, C. J.

Watson & Co., building contractors, on February 21, 1914, entered into a written agreement with Neiman-Mar-cus Company to construct a four-story fireproof building, to cost about $100,000, on a lot of ground the fee-simple title to which was in the estate of J. C. O’Connor, deceased, and which lot of ground was held by Neiman-Marcus Company under a lease for 99 years, made with the trustees of said O’Connor estate, beginning on September 1, 1912. On May 18, 1914, Watson Company, as general contractors, entered into a written agreement with Greer & Co., as subcontractors, by which Greer & Co. were to do certain portions of the work, and to furnish certain materials, for said building, in consideration of $6,600; Greer & Co. giving bond for $3,000, with the American Surety Company of New York. Greer & Co., after partly filling their contract, abandoned it, and it was finished by Watson Company at a cost of $81.25, leaving still due Greer & Co. on the subcontract $1,242.98. Various parties furnished Greer & Co. material which went into the building, for which Greer & Co. still owed at the time of their abandonment of the work. Greer & Co. gave to several of his creditors written orders on Watson Company for the amounts due them, but Watson Company did not pay them.

On August 15, 1914, Watson Company filed suit in the nature of a bill of interpleader in the Fourteenth district court, Dallas county, against the following defendants: A. A. Greer and L. A. Painter, copartners doing business under the name of A. A. Greer & Co.; American Surety Company of New York, a private corporation; G. E. Moore; Paul Cooper and J. W. Ogburn, copartners doing business under the name of Ogburn Gravel Company; Dallas Builders’ Supply Company, a.Texas private corporation; Mo-roney Hardware Company, a Texas private corporation; John L. Boyd; Neiman-Marcus Company, a Texas private corporation; Leonard E. Baldwin and Jim M. Harry, copart-ners doing business under the name of Baldwin-Harry Company; H. L. Tenison; Southern States Steel Company, a private corporation; Ira T. Moore and Alfred A. Moore, copartners doing business under the name of Moore & Co.- — alleging the condition and claims of each, and tendered into court the sum of $1,242.98, and asked that each party be required to establish their respective claims; that the property of Neiman-Marcus Company be released and discharged from all liens and claims of all parties arising out of its subcontract with A. A. Greer & Co., asking that, if any liability in .addition to the sum so tendered into court be fixed against plaintiff, then that it have judgment over against American Surety Company of New York for all such amounts as may be established against it. Neiman-Marcus Company answered by general demurrer, general denial, and specially, if judgment was rendered against it, that it have judgment over against Watson Company. The others answered, in effect, asserting their claims for material furnished Greer & Co., that they had fixed a mechanic’s lien upon said property, and that notice had been given Neiman-Marcus Company, who at the time of notice held $12,000 of the contract price due Watson Company. The American Surety Company answered, denying the claim asserted against it that Greer & Co. had performed its contract, and asked for judgment, and by trial amendment alleged that Baldwin-Harry Company were partners of A. A. Greer & Co. in the performance of the subcontract between A. A. Greer & Co. and Watson Company, and denied that Baldwin-Harry Company was entitled to any lien against the property, or any judgment either against the fund paid into court or any other parties, by reason of its claims, and asked for judgment over against Baldwin-I-Iarry Company -in the event any judgment was rendered against it.

. Watson Company by supplemental petition denied that it had accepted or promised to pay any amount to Moore & Co., or to Og-burn Gravel Company, or to any other parties, on orders drawn by A. A. Greer & Co., and denied that Dallas Builders’ Supply Company had a just 'claim against it, or the property described above, for its amount of $181.05, for the reason that the material to that amount claimed to have been furnished Baldwin-Harry Company could not be the basis for a lien against Watson Company or A. A., Greer & Co., or against the building into which the material was wrought, and. denied, further, that it was liable to Dallas Builders’ Supply Company for the sum of $25.50, because no lien or claim of lien had been asserted for said sum. They further denied that any of said claimants gave any notice of liens as the materials were furnished, and that any of them gave any notice until after Watson Company had paid A. A. Greer & Co. all funds due them, except the balance tendered into court. They further denied that the claims of materialmen’s liens were properly filed, and pleaded that no valid materialmen’s liens existed on said property, and that said claimants were estopped from claiming liens beyond the amount ten-déred into court. Baldwin-Harry Company, hy supplemental answer, denied the partner-, ship as alleged between them and A. A. Greer & Co., and remitted $347 of Ijha amount asserted in their original answer, leaving a balance of $1,179.64 as their claim.

Upon the pleadings as presented the case went to trial before the court without a jury on December 23, 1914, and a judgment by default was rendered against A. A. Greer and L. A. Painter, composing the firm of A. A. Greer & Co., John L. Boyd, and Southern States Steel Company; further, that Watson Company’s liability was limited to the amount of $1,242.98 tendered into court; and the property of Neiman-Marcus Company was discharged from all liens or claims of liens asserted by any of the parties to <aid suit. G. E. Moore was given judgment for $867.60 against A. A. Greer & Co., and was awarded payment in full of said amount out of the fund in the registry of the court, with the provision that Moore & Co. were entitled to receive $680.27 of said amount in satisfaction of their claim. Dallas Builders’ Supply Company received judgment for $25.50 against A. A. Greer & Co., and was awarded payment of that amount out of the fund in the registry of the court. Moroney Hardware Company was given judgment against A. A. Greer & Co. for $33.40, and was awarded payment of that amount out of the fund in the registry of the court. Ogburn Gravel Company was given judgment against A. A. Greer & Co. for $218.35; Baldwin-Harry Company, for the use and benefit of H. L. Tenison, was given judgment against A. A. Greer & Co. for $1,179.64; and said parties were awarded payment of pro rata amounts of the balance of $316.48 remaining in the registry of the court, in the proportion that $218.35 bears to $1,179.64. American Surety Company was discharged from all liability. Said judgment further provided that the costs of court be paid by the parties recovering judgment out of the funds in the registry of the court, and that said parties bear their pro rata portions of the costs in the proportion that the respective amounts recovered by each bore to the total amount in the registry of the court.

Motions for new trial by plaintiffs in error were made and overruled, and later they sued out this writ of error.

The Ogburn Gravel Company and ¡the Baldwin-Harry Company, with H. L. Tenison, have filed briefs, the consideration of which is objected to by defendants in error on what we consider technical ground; but we are of the opinion that all errors upon which a reversal is sought sufficiently present the errors relied on and require a consideration. The case is here presented upon an. agreed statement of the facts presented on trial, and about which there is no controversy. Where the facts have not been above stated, we will state them when necessary in a discussion of the respective points treated hereafter.

As to the money deposited in registry of the court due to Greer & Co. by Watson Company, the court was correct in its judgment of distribution, giving preference to those who had received orders from Greer & Co. on Watson Company, although not accepted by Watson Company, as such orders constituted an assignment of said fund to the extent of their respective amounts.

Were the steps taken hy plaintiffs in error to fix a mechanic’s lien on said property sufficient, provided under the facts the interest of Neiman-Marcus Company was subject to the mechanic’s lien? We think so. The claims were shown to be just and due. The material furnished to Greer & Co. was used in the building. Due notice of its being furnished was given to Neiman-Marcus Company and Watson Company before the time for fixing a lien had expired, and when Neiman-Marcus Company had in their hands $12,000 of the contract price, which had not been paid over to Watson Company. Due affidavits were made within the time pre-scribed by law for fixing the lien. But it is urged that the affidavits failed to show that notice was given to ■ the owner of the property, or that notice of each item furnished was given when it was delivered. While this is true, notice of the items was given before the lien was fixed, and while Neiman-Marcus Company owed the contractor. When the materialman furnishes material, and it is used in the construction of the building, and gives notice to the owner before the owner has paid out all of the contract price to the proper parties, the failure to give notice to the owner at the time each article is delivered becomesi immaterial in order to fix the lien, provided the statute is otherwise complied with, as no injury would result to interested parties. Johnson v. Improvement Co., 88 Tex. 505, 31 S. W. 503; Nichols v. Dixon, 99 Tex. 263, 89 S. W. 765.

The next question for consideration, under the facts as shown by the record, is whether or not the property and building erected thereon by Neiman-Marcus Company under a lease for 99 years is subject to the payment of debts for a mechanic’s lien fixed by complying -with the statute? Article 16, § 37, of our Constitution provides that:

“Mechanics, artisans land materialmen,_ of every class shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient en-roreement of said liens.”

In Strang v. Pray, 89 Tex. 525, 35 S. W. 1054, Mr. Justice Brown, in treating of said section 37, said:

“It was the intention of the members of the convention which framed and adopted this section of the Constitution to give full and ample security to all mechanics, artisans, and material-men for labor performed and material furnished for the erection of all buildings and other improvements, and the courts must give such construction to this language as will carry out that intention. It is the well-established rule that if one devises or conveys a house or building to another, and there be nothing in the terms of the instrument or circumstances under which it is made which show a contrary intention, the land necessary to the use and enjoyment of the house or building, or which is so designated and set apart as to show that it was intended to be used in connection therewith, will pass by such conveyance or devise. * * * We conclude that a proper construction of the language of the Constitution of this state, as hereinbefore quoted, gives to mechanics, artisans, and ma-terialmen a lien upon the interest or estate that the person causing such building or improvements to be made thereon has in the land upon which they are situated, for the value of the labor performed or material furnished in the erection and construction of such buildings, to the extent that the lands are necessary to its enjoyment or may be designated and set apart as intended to be used and enjoyed in connection with such building or improvement. The lien does not depend upon the statute, and the Legislature has no power to affix to that lien conditions of forfeiture.”

The Legislature has enacted laws in obedience to the Constitution by providing for fixing and enforcing liens on buildings, including “lots or lots of land necessarily connected therewith.” In neither the Constitution nor the statutes does it specify what character of ownership in the land or building is necessary for the lien to be created. The only stipulation in the law is that notice shall be given to the owner in order to fix the lien. “The term ‘owner,’ as used in the mechanic’s lien law, does not mean the absolute owner, but merely the owner of an estate or interest which the court may order sold.” 27 Cyc. 52. In construing the statutes, the rule, as prescribed by R. S. 1911, under Final Title,- § 3, is:

“That the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this state respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.”

In construing the statute in reference to mechanics’ liens, we conclude that it was the intention of the Legislature that such liens could be fixed upon a building and the lot upon which it is built, if the party having it constructed Rad such an interest in the property as to be entitled to its use, possession, and control thereof for a long period of time. Neiman-Marcus Company has the property leased for a term of 99 years, and to that extent is owner of the property. The Constitution and statutes, in providing for such lien, does not in express terms require the person having the building erected to be the absolute owner of the property. By the terms of the lease under which Neiman-Marcus Company hold, they were not only authorized and empowered, but required, to build such a house on said lot. They had possession of, and were exercising control of, said property. .They were empowered to sublet the building in whole or in part, and to destroy and rebuild the improvements erected on said premises, and may maintain an action of trespass involving said premises, which property is to'revert to the O’Con-nor estate at the end of the lease. This slwws that Neiman-Marcus Company had the right to subject the property to the mechanic’s lien, if not the estate of J. C. O’Connor, at least to the interest they 'had in it, although the lease made them personally liable for any lien so fixed.

The question here involved seems never to have been decided in this state. But in many of the older states, where leases of land for long terms are more common and have existed for a longer time, it is held by the higher courts that such liens can be enforced on a leasehold estate. In support of this we cite the following authorities: Jones, Landlord & Tenant, § 378; Crandall v. Sorg, 198 Ill. 48, 64 N. E. 769; Carey-Lombard Lumber Co. v. Jones, 187 Ill. 203, 58 N. E. 347; Lumber Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405; Jones v. Menneke, 168 N. Y. 61, 60 N. E. 1053; Boyer v. Keller, 258 Ill. 106, 101 N. E. 235, Ann. Cas. 1916B, 628; Lumber Mill Co. v. Amusement Co., 13 Cal. App. 4, 108 Pac. 891; Shaw v. Spencer, 57 Wash. 587, 107 Pac. 383; Potter v. Conley, 83 Kan. 676, 112 Pac. 608; 27 Cyc. 58. In Cyc., supra, it is said:

“It is usually held that, where a lease contains a provision authorizing the lessee to make repairs or improvements at the cost of the lessor, either generally or by deducting the cost from the rent, or where a part of the consideration for the lease is the making by the lessee of improvements, which become a part of the realty, or that improvements made by the lessee shall revert to the lessor, a mechanic’s lien may attach to the property for work done or materials furnished pursuant to a contract with the lessee.”

The judgment will be reversed as to plaintiffs in error, and here rendered against Neiman-Marcus Company, foreclosing the mechanic’s lien on the interest of said Nei-man-Marcus Company, and in favor of Nei-man-Marcus Company against Watson Company for the amount of .said lien, and in fa-vbr of Watson Company against American Surety Company of New York for the amount Watson Company has to pay; and in all other respects it is affirmed.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RA8BURT, J.

text:
    SCOTT v. NORTHERN TEXAS TRACTION CO.
    (No. 7547.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 4, 1916.
    Rehearing Denied Dec. 16, 1916.)
    1. Appeal and Errok &wkey;31005(3) — Conflict- ' ing Evidence.
    Where the trial court has sustained a verdict of the jury based on conflicting evidence, it will not be disturbed on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3949; Dec. Dig. &wkey;1005(3).]
    2. Waters and Water Courses <&wkey;171(l)— Flooding by Railroad Embankment — Liability — Proximate Cause.
    A railroad company is not liable for alleged damages to land from overflow even though caused by its negligent construction or maintenance of embankments and culverts, diverting the natural flow of surface or creek waters, if such overflow occurred when natural conditions would have caused the same damages, even if the embankments and culverts had not existed, for in such ease the construction and maintenance of its roadbed is not the proximate cause of the damage.
    [Ed. Note — For other cases, see Waters and Water Courses, Cent. Dig. §§ 216, 217, 221, 222; Dec. Dig. &wkey;171(l).]
    3. Trial <&wkey;214 — Request for Charges on Special Facts.'
    A defendant is entitled to have presented to the jury any specified group of facts developed at trial, which, if true, would in law establish a’ given defense, provided the evidence represented is not substantially covered by the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dee. Dig. &wkey;>214.]
    4. Negligence <&wkey;56(l) — Proximate Cause.
    A defendant is not liable for damages for his negligence, if such negligence was not the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 69; Dec. Dig. &wkey;56(l)J
    5. Negligence <&wkey;82 — Contributory Negligence.
    That plaintiff in a suit for damages is guilty of negligence will not preclude recovery if such negligence did not proximately contribute to his injuries, but they were caused solely by the negligence of defendant.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 112-114; Dec. Dig. &wkey;82.]
    6. Waters and Water Courses <&wkey;179(6)— Action Against Railroad for Flood Damages — Questions for Jury — Negligence.
    In action against railroad for damages to land from flood caused by negligent construction or maintenance of its embankment and culverts, the question whether the damages were caused by such embankment and culverts or would have occurred from natural conditions is for the jury.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 256, 258, 259, 264; Dec. Dig. &wkey;179(6).]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by G. W. Scott against the Northern Texas Traction Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Parks & Hall, of Dallas, for appellant. J. Hart Willis and Thompson, Knight, 12ov-er & Harris, all of Dallas, for appellee
   RA8BURT, J.

Appellant sued appellee for damages to his land, crops, and fences, alleged to have been the result of appellee’s negligence in constructing and maintaining its interurban railway along and adjacent to appellee’s lands. The specific acts of negligence relied upon were appellee’s failure to construct necessary culverts and sluices according to the natural drainage of the land where Its line crossed the channel and lowlands or valley of Mountain creek, and by reason of which the waters of Mountain creek were diverted from their natural course and -thrown upon appellant’s land submerging his crops, eroding his lands, and carrying away his fences. Appellee denied the allegations of negligence, averred that its railway was properly constructed, that its culverts and sluices were adequate, and that no damage resulted to appellant thereby ; and affirmatively alleged that if appellant was' damaged as claimed it was the result of overflows resulting from natural conditions, and from which appellant would have suffered the damages alleged if appel-lee’s line of railway had never been built.

There was jury trial resulting in verdict for appellee. Judgment was in accordance with the verdict, from which this appeal is perfected.

The following material and undisputed facts, in relation to the situation of appellant’s land and the construction of appellee’s railway across Mountain creek and its valley, are deducible from the evidence. Ap-pellee’s railway is an interurban line operated in and between the cities of Dallas and Ft. Worth. In its1 course it crosses Mountain creek at a point about 7 miles west of the city of Dallas.- Mountain creek has its source south of appellee’s railway and in its meanderings pursues a general northerly course, emptying finally into the Trinity river at a point north of appellant’s lánds and appellee’s - railway. Appellant’s land is south of appellee’s railway. The stream in its general course north makes many abrupt turns from its general course, running at times south, west, north, and east of appellant’s land, inclosing appellant’s land, and a portion of appellee’s railway in what may be termed an irregular circle, open at the southeast point. In its course the creek also crosses appellee’s railway three times. The first crossing is west of appellant’s land. After flowing in a general northerly direction it turns abruptly south and again crosses .ap-pellee's railway east of appellant’s land (forming at this point the irregular circle referred to). Pursuing a southeasterly direction it again turns abruptly north, crosses the railway a third time, flowing thence north until it reaches the Trinity river. Appellant’s land is contained in the described circle and is highest at the creek banks, and is no higher than the banks and slopes away from the creek towards the hills of adjacent highlands, being at the foot of the hills from 1 to 2 feet lower than the bank of the creek. Appellee’s embankment upon which its tracks are laid and adjacent to which appellant’s land is situated is on an average about 6 feet higher than the natural lay of the land. There are four openings through the embankment, three for the purpose of permitting the waters of the creek to pass through, and one the waters of a slough at the extreme west end of the embankment. All the openings are spanned by ordinary trestles. The east opening is 178% feet. The next or middle opening is 181 feet. The third opening is 180 feet. The slough or extreme west opening is 82 feet.

The testimony was in conflict concerning the proximate cause of the overflow which caused the damage to appellant’s lands, etc. Appellant’s testimony tended to show that the embankment built by appellee across the creek valley did not have sufficient openings to carry away the normal fall of water, and that in addition appellee had partially dammed the bed of the creek openings with rock and refuse cable wire, by reason of which the natural'drain of the waters were impeded, the creek caused to overflow, and its waters diverted upon the lands of appellant. Appellee’s testimony tended to show that the openings in its embankment were sufficient to carry away the normal water fall, and that the rock and cable wire were to prevent the washing of the bridge abutments, and did not tend to impede the flow of the water through the creek openings. Its testimony also tended to show that as the result of natural conditions appellant’s lands had been similarly overflowed for many years prior to the construction of its railway embankment.

By his first assignment of error appellant asserts, in substance, that the verdict is without support in the evidence since it appears by the undisputed evidence that appellee constructed and maintained its embankment without sufficient openings therein for drainage, and that as the proximate result thereof the waters of the creek were diverted upon his lands, injuring him as alleged, and asserts as matter of law resulting from the premises that the court erred in not granting his motion for new trial. The proposition would of course be correct if, as assumed in the assignment, appellee was by the undisputed facts shown to have been negligent in the respect stated. The evidence, however, is conflicting on the issues comprehended by the assignment. The jury resolved the conflict in favor of appellee. Their action was presented for review to the trial court, who heard the witnesses and observed their demeanor. He sustained it. It has been repeatedly held that in such eases this court will not substitute its judgment for that of the jury and the trial judge, since to do so would be to exercise an authority it does not possess.

Appellant, however, further asserts that the undisputed evidence discloses that appel-lee’s negligence in the construction of its railway contributed to and concurred with natural conditions to cause his injuries, which, being true, appellee would be liable as matter of law. The difficulty is that the very facts stated in the proposition were in dispute. Being in dispute and the fact in issue having been decided against appellant, the rule invoked is without application. The trial court on the issue we are discussing correctly charged the jury that even though appellant’s lands during the rainy season were subject to overflow, still if appellee so constructed its embankments, sluices, and culverts as to throw a greater amount of water upon appellant’s land than before such construction and such additional water in concurrence with the natural flow proximately caused or contributed to cause any part of appellant’s damage, to find for appellant. The verdict, however, was for appellee, which necessarily involved the finding that the construction of the embankment, sluices, and culverts did not throw any additional water upon appellant’s lands, or, if it did, that the damage resulted from natural causes, and not from any concurring negligence on the part of appellee.

Nor do we think as further urged that ap-pellee proximately contributed to create a private nuisance upon appellant’s land for which appellee was liable for nominal damages, even though all actual damages resulted from natural causes. The verdict for ap-pellee precludes such a holding as matter of law, since their findings in substance were, as we have said, that appellee’s embankment, sluices, and culverts had been properly constructed, or that appellant’s damages resulted from natural causes, neither of which would support the conclusion in law that ap-pellee created a nuisance, since whether it did or not is, under the evidence in this case, at least an issue of fact.

Under the second assignment of error it is contended that the verdict of the jury is so contrary to the great preponderance of the evidence and to justice and right as to shock the conscience of a court of justice, and ought for that reason to be vacated and set aside. This assignment we also conclude should be overruled. While we have not attempted to state in detail the facts fairly deducible from the evidence tendered by both sides, since to do so would serve no useful purpose, we have nevertheless carefully considered the evidence and conclude that it will not authorize a holding on our part that it conclusively preponderates one way or the other. The most that can be said is that it is in conflict on the material issues.

The third assignment complains of the following special charge given at the request of appellee:

“Even though you find and believe from the evidence that the construction and maintenance of defendant’s railway embankments and culverts, or any of them, diverted the natural flow either of surface waters or of Mountain creek and caused the same to flow over plaintiff’s lands or other property, but you also find from the evidence that the natural conditions of surface waters and the waters of Mountain creek in flood time would have caused plaintiff the same injuries which he did sustain, even if defendant’s railway embankments and culverts had not been constructed and maintained as claimed, you are instructed that defendant would not be liable for plaintiff’s alleged damages, and you will accordingly return a verdict in favor of defendant.”

The special charge was requested under authority of the well-settled rule that the defendant is entitled to have presented to the jury any specified group of facts developed at trial, which, if true, would in law establish a given defense, provided the defense so presented is not substantially covered by the main charge. St. Louis, S. E. & T. Ry. Co. v. Overturf, 163 S. W. 639, and cases cited. The.facts grouped in the quoted charge do find support in the evidence. Hence no unsupported fact was grouped. There was evidence adduced by appellant, which would have supported a finding that the embankment was negligently constructed, and that by reason of such negligent construction the natural flow of the surface waters and those of Mountain creek were diverted and caused to flow over appellant’s land. There was also evidence that appellant’s injuries were sustained during “flood” time and would have resulted during said time without reference to the maimer of constructing appellee’s embankment. The question then arises, Is the charge erroneous as matter of law? Appellant contends it is. One of the reasons assigned is in substance that appellant having adduced testimony tending to show that appellee had con'strueted its railway in violation of the statutes, thereby proximately contributing to cause the surface and creek waters during “flood” time to be thrown upon appellant’s land, appellant was entitled to recover nominal damages, even though the jury may have believed he would at the time have suffered the same injuries as the result of natural conditions. We do not believe -the contention correct, viewed from the evidence and the verdict of the jury. The verdict was a general one. The jury may have concluded that the appellee’s embankment was as matter of fact constructed in compliance with the provisions of the statutes and did not impair the usefulness of Mountain creek, nor obstruct the flow of the waters thereof, as the charge of the court permitted them to do. Such finding is not without support in the evidence. On the other hand, if the jury believed that the construction of the embankment did divert the creek and surface waters upon appellant’s land, but that his injuries were due to the fact that his lands were “overflow” lands, it would not in our opinion follow that appellant was entitled as matter of law to nominal damages. The first impediment to such conclusion is that the verdict was a general one, and we cannot say that the jury believed that the water was in fact diverted as claimed. The stronger reason, however, is that the present case, in our opinion, is unlike that class of cases relied upon by appellant and of which Champion v. Vincent, 20 Tex. 815, is typical, which hold that the plaintiff, in cases of libel, slander, or trespass vi et armis is entitled to nominal damages, even though he fails to show actual damages. Most, if not all, of such cases announce the rule that the failure to prove actual damages in such cases will not preclude the right to nominal damages when trespass is shown. In the present case, however, no right to any damage arises save upon a showing of actual damages. The building of the embankment was lawful and could not be said to be a trespass in the light of the rule stated. The most that can be said is that appellee did a lawful thing in a negligent manner. For such negligence the penalty is, we are persuaded, the payment of such actual damages as proximately flow therefrom.

It is next urged, in substance, that the charge is erroneous for the reason that by directing the jury to return a verdict for appellee in the event they believed appellant would have suffered the injury he did suffer from natural causes, though the embankment did divert the water upon his land, the court ignored and excluded from consideration of the jury appellee’s negligence in constructing and maintaining the embankment. The effect of the charge was to direct the jury to find for appellee, even though negligent, if that negligence did not proximately contribute to or was not the efficient cause of appellant’s injury. Such rule, we think, is a familiar and well settled one. For if appellee’s negligence was not the proximate cause of appellant’s injury appellee was not liable in damages therefor, and it was the trial court’s duty to present that specific issue when requested so to do. Even though a plaintiff in a suit for damages is guilty of negligence, that fact will not preclude a recovery if the jury believe from all the facts that such negligence did not proximately contribute to his injuries, but was the result alone of the negligence of the defendant. It is true that in the present case it was not attempted to be shown that appellant’s damage was caused by his negligence. The claim was that it was the result of another agency, in short of natural conditions. But still we are unable to see that the dissimilarity in agencies is controlling, or changes the rule,’ since • the issue always is, Are the damages sued for proximately the result of the negligence of the party against whom recovery is sought? As said in a recent case:

“If each party to the suit was guilty of negligence, then it became a question for the jury to determine, the trial being had before a jury, whose negligence proximately caused the injury.” Wells Fargo & Co. v. Benjamin, 179 S. W. (Sup.) 513.

It seems to us that it is in like manner also a question for the jury when the evidence raises the issue of two contributing agencies, and that the issue is unchanged because neither of the contributing agencies happens to be the plaintiff. We think such conclusion inevitably true in the light of the further rule that one can only be held liable in damages for his own or contributing negligence.

For the reason stated, we believe it to be our duty to affirm the judgment of the trial court.
      <g^jFor other eases see same topir and KEY-NUMBER in all Key-Numbered Digests and Indexes