author: SWEARINGEN, J.

text:
    RIO GRANDE FIRE INS. CO. v. CONCORDIA FIRE INS. CO.
    (No. 5917.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Insubance <&wkey;93 — Reinsurance—Liability.
    Where the general agent of defendant fire insurance company acted as the state agent for plaintiff fire insurance company, and, with intent to defraud both of them, insured fictitious dwelling for $4,000 in defendant company, and reinsured it in plaintiff company, and thereafter made proofs of loss and drew a draft on the defendant for the $4,000, and on plaintiff for the reinsurance, all of such acts were void, the policies created no obligation, and plaintiff company, could recover the amount of the draft which it paid to defendant company.
    2. Payment &wkey;>85(3) — Mistake — Right to Becovek.
    In such case, plaintiff’s payment of the amount of reinsurance to defendant, while both were ignorant of the fraud, constituted a mutual mistake, and could not develop into a right in defendant to retain the money.
    Appeal from District Court, Bexar County; J. T. SlucLer, Judge.
    Action by the Concordia Eire Insurance Company against the Bio Grande Fire Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Denman, Franklin & MeGown and L. H. Browne, all of San Antonio, for appellant. Terrell & Terrell, of San Antonio, for appel-lee.
   SWEARINGEN, J.

This is a suit by appel-lee, the Concordia Fire Insurance Company, against appellant, the Rio Grande Fire Insurance Company, to recover $1,000 alleged to have been paid by appellee to appellant by mutual mistake. Without a jury, the court rendered judgment against appellant for the sum sued for. There is no issue of fact. The cause was submitted to the court upon agreed facts, which agreement is before us and reads as follows:

“(1) That on or about September 9, 1913, and for some time prior thereto and at all times hereinafter mentioned, Fred C. Stoekdell, of New Orleans, La., was the general state agent in Louisiana for the Rio Grande Fire Insurance Company, a corporation by and under the laws of the state of Texas, having its principal office and domicile in the city of San Antonio, in Bexar county, Tex., and was also the general state agent at said place for the Concordia Fire Insurance Company, a corporation by and under the laws of the state of Wisconsin, having its principal office and domicile in. the city of Milwaukee in said state, and having a permit to do business in Texas, and for several other fire insurance companies, among them the Commercial Fire Insurance Company of Washington, D. C., and the German Fire Insurance Company of Peoria, Ill., and on September 9, 1913, plaintiff and defendant knew that he was such agent for the other, the Concordia learning that fact on that day from Stockdell’s daily report concerning the hereinafter mentioned transaction.
“(2) That as such general- state agent, said Stoekdell had authority in each of said companies to write fire insurance on property throughout the state of Louisiana, issue the policies, collect the premiums, reinsure said risks in said company, or other companies, and to collect said reinsurance premiums, to inspect all property offered for insurance, and to adjust and settle all losses by drafts upon the companies; provided that if he insured any dwelling house to an amount exceeding one thousand dollars ($1,000) in the Rio Grande Fire Insurance Company he should at once re-insure such excess in some other company or companies, but such restriction was not known to the Concordia Fire Insurance Company.
“(3) That on or about September 9, 1913, the said Fred C. Stoekdell, as general agent for the Rio Grande Fire Insurance Company, issued its policy of insurance No. twelve thousand nine hundred four (12904), in the sum of four thousand ($4,000) dollars, to one Don R. Wade, purporting to be upon a dwelling house stated to be in Gretna, La., insuring him against loss by reason of the destruction by fire of the premises described in said policy; and at the same time said Stoekdell, as general state agent, as aforesaid, for the Concordia Fire Insurance Company, the Commercial Fire Insurance Company, and the German Fire Insurance Company, in the name of each issued and delivered to the Bio Grande Fire Insurance Company a reinsurance contract (in the form and substance hereinafter stated) by which each of said companies reinsured said Rio Grande Fire Insurance Company against loss by fire by the destruction of said dwelling house in the sum of one thousand dollars.
“(4) That the form and substance of said reinsurance contract so issued, omitting date and signature, by said Stoekdell, as general agent for the Concordia Fire Insurance Company, was as follows, to wit:
“ ‘Policy No. 31045.
‘“Subject to the conditions of the New York standard policy, the Concordia Fire Insurance Co., of Milwaukee, Wisconsin, does reinsure Rio Grande Fire Insurance Company, as follows:
“ ‘Amount reinsured, $1,000.00. Rate, $1.00, Premium, $10.00. Time, 3 years. Commencement, at noon Sept. 9th, 1913. Expiration, at noon Sept. 9th, 1915. Policy No. 12904. Insured at New Orleans, La., agency. On property of Don R. Wade, consisting of dwelling, 11th St. between Derbigny and Belhonde Sts., Gretna, La.
“ ‘Subject to the same risks, valuations, in-dorsements (excepting transfers of location) assignments, and conditions as the original insurance and loss, if any, to be settled and paid pro rata with the reinsured and at same time and place and 'upon the same terms and conditions. It is a condition of this reinsurance that the reinsured company is to retain an amount of insurance in and or on the risk herein described above all reinsurance, equal to the amount of this policy, and failing to do so, this company shall not be liable for a greater amount than that retained by the reinsured company. Other reinsurance permitted without notice until required.’
“(5) That the usual and customary charge by fire insurance companies at the time and place of this insurance was one per cent. (1%) of the principal, or a total of forty ($40) dollars for four thousand ($4,000) dollars, and said Stock-dell, as such general agent, at said time credited on his books to each of the four (4) companies named the sum of ten ($10) dollars, and he, at said time, by daily report notified each of said companies of said insurance and said reinsurance contracts.
“(6) That on October 7, 1913, said Fred O. Stoekdell notified the Rio Grande Fire Insurance Company by letter that the property covered by said insurance policy had been totally destroyed by fire and, at the same time, said that an adjustment of the loss was being made and when completed he would furnish said Bio Grande Fire Insurance Company with the original proof and the said reinsurance companies with a copy thereof, and would then draw draft upon the Rio Grande Fire Insurance Company for the sum of four thousand ($4,000) dollars and mail to it drafts on the reinsuring companies, each in the sum of one thousand ($1,000) dollars, and that thereafter, on October 15, 1913, he mailed the proof of loss to the Rio Grande Fire Insurance Company and a copy thereof to each of the reinsuring companies, the copies showing. a total loss by fire and that the Rio Grande Fire Insurance Company had paid the loss, the proofs being signed ‘Rio Grande Eire Insurance Company by Ered C. Stockdell, general agent’, and drew upon the Rio Grande Fire Insurance Company for the sum of four thousand ($4,000) dollars, which draft was made payable to Don R. Wade and was paid on October 17, 1913, and sent the Rio Grande Fire Insurance Company drafts upon each of the reinsuring companies drawn by him as general agent of each of said respective companies in the sum of one thousand ($1,000) dollars each, and the draft on the Con-cordia Fire Insurance Company was paid-by it on October 24, 1913. Said sum of four thousand ($4,000) dollars paid by the Rio Grande Fire Insurance Company was appropriated by said Stockdell to his own use and benefit. The Con-cordia Fire Insurance Company paid Stockdell an agreed per cent, of all premiums, out of which he had to pay inspection and adjustment expenses, and said Fred C. Stockdell, on October 15, 1913, by a letter to the Rio Grande Fire Insurance Company, signed ‘Underwriters’ General Agency Company, Fred C. Stockdell, general manager,’ a copy of which letter was sent to the Concordia Fire Insurance Company, stated that the adjustment expenses amounted to fifteen ($15) dollars and that the four companies were each liable for one-fourth thereof, and sent the Rio Grande Fire Insurance Company a draft on his office for $7.50 in payment of adjustment expenses in behalf of the Concordia and German, and a draft on the Commercial Fire Insurance Company for $3.75 in payment of its proportion of adjustment expenses, and the Rio Grande remitted to Stockdell the sum of $15 in payment of the whole adjustment expense.
“(7) As a matter of fact and in truth there was no Don R. Wade, and the premises supposed to be covered by said insurance and reinsurance policies did not exist, and there was no fire, which said facts said Stockdell knew, but the whole matter was a scheme of said Stockdell to defraud the said insurance companies, and neither the Rio Grande Fire Insurance Company, nor the Concordia Fire Insurance Company, nor other companies knew of the fraudulent intentions of said Fred C. Stockdell, or of the fact that the said Don R. Wade was a fictitious person, nor that there was no insured property in fact; and at the time of the payment of the four thousand ($4,000) dollars by the Rio Grande Fire Insurance Company, and at the time of-the payment of the said one thousand ($1,000) dollars by the Concordia Fire Insurance Company, both believed that the copies of loss furnished to the Rio Grande Fire Insurance Company and the copy thereof furnished to the Concordia Fire Insurance Company by said Stockdell, and signed as aforesaid, were true.
“(8) That said Fred C. Stockdell committed suicide about the 12th day of November, 1914, and some time thereafter, as soon as the Con-cordia Fire Insurance Company learned the true facts, it promptly demanded from the Rio Grande Fire Insurance Company a return of the one thousand ($1,000) dollars paid to it, which demand was refused, which demand was the first actual notice that the Rio Grande Fire Insurance Company had of the true facts.
“(9) It was at all times hereinbefore mentioned usual and customary for fire insurance companies doing business within a sister state to rely upon the general state agents within such state, through proper agencies, to inspect all risks and adjust all losses, and only to issue policies of insurance and reinsurance upon what was deemed by him or his agents to be reasonably safe risks, and only to draw drafts upon the insuring and reinsuring companies in the event of an actual loss to an actual assured and to an amount not to exceed the legal liability of the company drawn upon, and said Stockdell was so relied upon and trusted by each of said fire insurance companies in all the matters hereinbe-fore mentioned.
“(10) That for many years prior thereto, and at the time said insurance policy and reinsurance contract were issued, and at the time of the alleged destruction of the premises by fire, and at the time the proof of loss was furnished by the said Stockdell to the Concordia Fire Insurance Company, signed ‘Rio Grande Fire Insurance Company of San Antonio, Texas, by Fred C. Stockdell, general agt.,’ and the payment of said one thousand ($1,000) dollars by said Concordia Fire Insurance Company to said Rio Grande Fire Insurance Company as here-inbefore stated, it was the general custom known to both parties hereto for the reinsurer to rely entirely upon the initial insurance company to inspect the risk and loss, and also to rely upon the proofs of loss furnished it by the initial company, and it was not customary for the reinsurer to inspect the purported risk or loss. And the custom further was, that all such inspections were to be made by, or under the direction of, the general state agent of the original insurer. It is further a fact that each reinsuring company had the right to inspect each risk and examine each loss, if it saw fit to do so, and in this case the state agent of defendant and plaintiff was the same person.
“(11) That on or about October 24, 1913, the Concordia Fire Insurance Company, relying upon the proof of loss furnished it as aforesaid, as being in all things true, and so believing, paid to the said Rio Grande Fire Insurance Company the sum of one thousand ($1,000) dollars, this being the amount of its reinsurance policy, as aforesaid, to be paid in the event said premises were destroyed by fire; said payment being made upon a draft on the Concordia Fire Insurance Company prepared by the said Stockdell, its general agent, signed by Fred C. Stockdell, its general agent, said draft being presented by the Rio Grande Fire Insurance Company, through the National Bank of Commerce of San Antonio. Tex. Attached to said draft and a part thereof was the following receipt:
“ ‘$1,000.00.
“ ‘New Orleans, La., October 15th, 1913.
“ ‘Received of the Concordia Fire Insurance Co., of Milwaukee, the sum of one thousand and no/100 dollars, being in full payment and compromise settlement of all claims and demands against said company for loss or damage which occurred October 5th, 1913, to the property insured under policy No. 31045, issued at the New Orleans, La., agency of said company, in consideration of which we hereby release and discharge said company from all claims and demands of every nature and kind we may have under and by vii'tue of said loss and said policy is hereby cancelled and surrendered to the company. Claim, $1.000.00. Discount, none. Amount of draft, $1,000.00.
“ ‘Rio Grande Fire Insurance Co.,
“ ‘By I-I. L. Wright, Asst. Treas.’ ”

Appellant’s two assignments contend that the agreed facts fail to make a case of liability against it. The very plausible argument of appellant is based upon the hypothesis that the party, Stockdell, was an agent of both parties hereto, and all his acts created binding obligations upon the principal for which he purported to act. From which premise it is deduced that the draft drawn by him for $1,000 against appellee payable to the appellant was of sufficient validity to entitle appellant to receive and retain the money. Appellant bases its contention upon the case of Wagner & Chabot v. Fire Ins. Co., 92 Tex. 549, 50 S. W. 569.

On the other hand, appellee contends that the joint agent, Stockdell, acted in th& matter for himself, and was not the agent of either appellant or appellee; that his acts were each and all crimes, therefore void, and created no obligation or liability against either appellant or appellee. The transactions were crimes. “There can be no such thing as agency in the perpetration of a •crime.” 2 C. J. p. 431, § 25; Shelton v. Marshall, 16 Tex. 344. In our opinion all the acts were absolutely void. The policy issued by the Rio Grande created no liability upon .it. The reinsurance contract made by the ap-pellee created no obligation against it. The proof of loss and draft drawn by Stockdell •created no liability against the Rio Grande. ■The draft drawn by Stockdell on the appellee in favor of the appellant was void, and created no more obligation than a forged draft by an utter stranger. The fact that appellant was robbed of $4,000 created no obligation upon appellee to minimize the loss. In fact, this insurance corporation would have no power to voluntarily agree to perform this gratuity with its corporate funds.

There being no liability whatever against appellee created by any of the void acts of the joint agent, and- the $1,000 having been paid by the one to the other while both were entirely ignorant of the fraud, and while both believed the transactions were bona fide, it is certain that the payment was by mutual mistake, and this mistake has not and cannot develop into a right in favor of appellant to retain and appropriate appellee’s money.

The judgment is affirmed.
      <g=»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    NEELY v. DUBLIN FRUIT CO.
    (No. 735.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Frauds, Statute of @=16 — Agreement to Answer fob Debt of Another.
    Where defendant, a broker, who effected a sale of apples, in which he had an interest, pledged his personal responsibility to plaintiff against possible loss if plaintiff would pay the. draft and take the apples, which proved partly rotten, defendant’s promise was not within the statute of frauds (Rev. St. art. 3965, subd. 2), declaring that no action shall be brought to charge any person upon the promise to answer for the debt of another, unless the same be in writing, and action could be maintained on defendant’s promise, though oral.
    • 2. Justices of the Peace @=>174(26) — Appeal-Pleading — Necessity.
    Defendant cannot rely on a defense not pleaded in the county court, the action having been appealed to that tribunal from justice’s court.
    3.Indemnity @=>15(3) — Conditions—Compliance.
    AVhere defendant, a broker, agreed to savia plaintiff harmless from loss in accepting a shipment of apples, and defendant’s request to have the apples weighed was not considered by either party as a condition precedent to recovery, recovery cannot be defeated because the apples were not weighed, it appearing that they were measured, and there were no scales at the place where the apples were measured on which they could have been weighed.
    4. Estoppel @=78(4) — Equitable Estoppel —What Amounts to.
    Though the fotten apples were to be weighed as a condition precedent to defendant’s liability on his agreement to save plaintiff harmless if plaintiff would, accept the shipment, defendant, having agreed as to the amount of the damages, is estopped to rely on noncompliance with the condition.
    5. Appeal and Error @=1170(9) — Review-Harmless Error.
    Where the damages awarded plaintiff were those which plaintiff was entitled to recover under the agreement of the parties and their own estimate of damage, the fact that the court submitted an erroneous measure of damages is harmless, and should be disregarded under rule 62a (149 S. W. x).
    Appeal from Erath County Court; A. P. Young, Judge.
    Action by the Dublin Fruit Company against R. P. Neely and others, begun in justice’s court and appealed to county court. There was a judgment there for plaintiff, and defendant Neely appeals.
    Affirmed.
    Pittman & Taylor, of Stephenville, for appellant. Hickman & Bateman, of Stephen-ville, for appellee.
   HARPER, C. J.

This suit was originally filed in the justice court, by the appellee, Dublin Fruit Company, a firm composed of M. Hoffman and W. I-I. Novitt, against the Texas Central Railroad Company, the Roswell Fruit Growers’ Exchange, and R. P. Neely, a resident of Tarrant county, Tex., for $188.-62, the suit arising out of a shipment of a ear of apples from Roswell, N. M., by the Fruit Growers’ Exchange through the-agency of Neely, who was a broker living at Ft. Worth, and over the defendant railroad company’s line. It was sought to hold the Fruit Growers’ Exchange liable because of the shipment of apples being alleged to be defective and different in kind, grade, and quality from those ordered; to hold the railroad company liable for delays in transportation whereby the apples, as alleged, were caused to become rotten and unmarketable, and to hold Neely liable on his special promise alleged by appellee and agreement with plaintiffs that, if they would accept said apples and pay the accompanying draft he (Neely) would save them harmless, etc.

This is the second appeal of this case, the former opinion being reported in 182 S. W. 406, to which we refer for a more specific statement of the contentions of the parties. The judgment from which this appeal is taken was rendered upon the verdict of a jury for $113.62.

Appellant’s first four assignments of error, in various forms, present the contention that he was not liable because the evidence shows that the promise made by appellant upon which appellee’s cause of action is based was a promise to answer for the debt of the Roswell Fruit Growers’ Exchange, and, since it was not in writing, the same could not tie enforced by virtue of subdivision 2, art. 3965, R. S., .which provides that no action shall be brought to charge any person upon a promise to answer for the debt of another, unless the same was in writing. This question was fully considered upon the former appeal, and it was there held that the evidence was sufficient to raise the issue of whether -Neely had pledged his personal responsibility to appellees against possible loss if appellees would pay the draft and take the apples, and that, if he did so agree, his promise was not within the statute of frauds. Upon the last trial, this issue of fact was submitted to the jury and resolved in favor of appellees. The evidence is sufficient to sustain the jury’s finding and it cannot be disturbed, for which reason the first four assignments are overruled.

The fifth assignment attacks the paragraph of the court’s charge which submits the question of measure of damages, because (1) it submits an incorrect measure, and (2) because it omits to incorporate in it that the rotten apples were to be weighed as a condition precedent to liability.

The record discloses that this suit was brought in justice court, and there is no pleading or statem;ent of plaintiff’s cause of action except the note on the justice’s docket: “Suit for damages for $18S.62.” The appellant’s answer in the county court does not contain the plea that it was a condition precedent to his obligation that the apples be assorted and weighed. For this reason we are of the opinion that the appellant could not avail himself of this defense.

But if by reason of the fact that the rules as to pleadings in the justice court, are construed liberally, he would be allowed to avail himself of this defense, under general denial, we are further of the opinion that there is no evidence that the request of Neely to have the apples weighed at Mingus, was considered by either party as a condition precedent to liability to a recovery by appellee for the apples, or the amount of apples, actually rotten and unsalable, which were received and paid for by appellee. But if there is evidence that would justify a finding by a jury that such was the ease, then we are further confronted with the proposition that the evidence is uncontradicted that there was no chance to weigh at Mingus, and the further proposition that a measurement in bushels would reach the same result, and appellant does not controvert or contradict the testimony that there was no scale at Mfingus, and that plaintiff could not weigl^ the apples, nor is there any evidence contradicting the proof that plaintiff assorted the apples and by measurement accurately determined that approximately one-half of the apples were rotten and unsalable, and therefore appellee is relieved from the condition, if it applies.

But, aside from this, appellee testified that the appellant agreed that appellee draw his draft for $188.62 as the amount of unsalable apples that had theretofore been paid for by appellee. 'So if we should be in error in holding that appellant could not avail himself of the defense because not pleaded, and in error that the appellee is relieved from the condition, -because it could not be complied with, nevertheless appellant has estopped himself from insisting at this time upon this condition, because he has agreed that the amount of unsalable apples had been properly arrived at, by agreeing that plaintiff draw his draft for the amount.

As to the charge that the charge of the court does not submit the true measure of damages, we think the point is well taken, but appellant does not contend here for the true measure, and the uncontradicted evidence is that the jury arrived at the true measure notwithstanding the charge of the court; therefore his assignment is not good.

The uncontradicted evidence' in this case shows that the. appellee paid $497.24 for the entire shipment of apples; that one-half of them were wormy and rotten; that he drew his draft for $188.62, as instructed by appellant, for the value of the rotten and unsalable apples; that this amount is less than one-half of the original price of all. the apples. And the record discloses that the jury gave judgment for $113.62; this amount, added to the $75 recovered from the railway company, makes the amount that appellee agreed was the value of the rotten apples, according to the uncontradicted evidence of ap-pellee and the admission by appellant, So, since the pleadings and evidence authorize only a recovery for the rotten apples, being one-half, and the jury having found that this is the amount that should be recovered, and it appearing that this is the true measure of appellee’s damages, because appellant agreed to make the loss good, instead of that charged by the court, it follows that this is a ease for rule 62a (149 S. W. x), and thdt the cause should be affirmed, notwithstanding the errors of the trial court, because under the uncontradicted evidence the proper decree has been entered, in that appellee paid for the good and the bad apples, and the admissions of appellee are sufficient to show that the judgment is for the amount paid for the bad only, which is the true measure of damages in this case.

Affirmed.

WALTHAI, J., not sitting, being absent on committee of judges assisting the Supreme Court.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    STATE v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
    (No. 5845.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 28. 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Appeal and Error <⅜=>1215 — Proceedings after Remand — Decision of Appellate Court — Instruction.
    Where an appellate court has rendered _ a decision and remanded a cause, the district court should confine its trial to the issues remanded, and, the others being res judicata, it was error not to instruct the jury to find in accordance with the opinion.
    2. Railroads «©=>9(2) — Commissioners—Construction of Judgments.
    A judgment setting aside an order of the Board of Railroad Commissioners without prejudice to a former order or the right to make such future orders as it may deem just and reasonable held not to foreclose the board from proceeding under a subsequent order providing an apportionment of costs of building a union depot, differently from order set aside.
    3. Railroads ®=58 — Location of Depot — Orders of Commission — Evidence — Instruction.
    Where railroads objected to a union depot location fixed by the Railroad Commission, it devolved upon them to show a more suitable and less costly site, and, failing to do so, the issue was not raised by the evidence, and the court should have so instructed the jury.
    4. Railroads <S=58 — Location of Depot-Apportionment of Costs.
    The apportionment between three railroads of the costs of a union depot upon the basis of user is proper.
    Appeal from District Court, Travis County ; Geo. Calhoun, Judge.
    Suit by the State of Texas against the St. Louis Southwestern Railway Company of Texas and others. Judgment for defendants, and the State appeals.
    Reversed and rendered.
    B. F. Looney, Atty. Gen., and Luthe"*: Nickels, Asst. Atty. Gen., for the State. E. B. Perkins, of Dallas, Hiram Glass, of Austin, and Thompson, Barwise & Wharton and R. M. Rowland, all of Ft. Worth, for appellees.
   Findings of Fact.

JENKINS, J.

This case is between the. same parties, and involves, in a general way, the same issues, as the case of State v. Railway Companies, reported in 165 S. W. 491; that is to say, the erection and location of a union depot by appelleés in the city of Hills-boro, Tex.

The Railroad Commission of Texas, which which will hereinafter be referred to as the Commission, on March 22, 1910, made an order requiring appellees to construct a union depot in Hillsboro, as should be agreed upon by them, subject to approval by said Commission.

The appellees having failed to comply with said order, the Commission thereafter, on January 17, 1911, ordered them to construct and maintain a union depot upon the ground, and according to the plans and specifications in said order designated, each of said parties to pay one-third of the cost thereof. Said orders are fully set out in said case of State v. Railway Companies, 165 S. W. 491, and are here referred to and adopted as a part of our findings of fact herein.

Upon the trial of said cause this court found in favor of the state upon all of the issues involved, except as to the division of costs, and reversed and remanded the same for trial upon that issue.

The district court, instead of confining its trial to that issue, submitted to the jury issues as to the location and division of costs of said depot, and the jury found in favor of appellees herein upon both of said issues.

The state moved the court to enter judgment in its favor on said verdict, or to enter judgment in its favor as to the issues of the necessity of the union depot and its location, for the reason that these matters were res adjudicata by the judgment of this court on said appeal. The trial court overruled these motions. We will quote from its judgment on said motions in the opinion herein.

No appeal was taken from the judgment of the district court above referred to, which was entered on May 20, 1914. Thereafter, on November 23, 1914, the Commission, after due notice to all parties, after reciting its order of March 22, 1910, and the failure and refusal of the appellees to comply therewith, made, as set forth in appellees’ printed argument herein, substantially the following findings of fact:

(1) That the passenger depot facilities at Hillsboro are inadequate, and that it is just and reasonable to require the appellees to construct a union passenger depot at that point.

(2) That appellees had failed to agree upon a site for such depot, or a basis for a division of the costs, or any of them, for the construction thereof.

(3) That the site “hereinafter” specified for the same was a proper site.

(¾) That the plans “hereinafter” were proper plans.

(5) That the site and plans are satisfactory to the railways.

(6) It finds a proper division of the cost of construction and maintenance.

It then entered its decree in accordance with said findings, specifying therein as a site for such union depot a portion of the grounds then (and now) occupied for passenger depot purposes by the Missouri, Kansas & Texas Railway Company of Texas, which will hereinafter be referred to as the Katy.

The appellees having failed and refused to comply with said last-mentioned order, the state brought this suit to compel them so to do by mandamus or mandatory injunction. This cause was tried by a jury in the October term, 1916, upon the following special issues:

“Question No. 1. Was the order of the Railroad Commission of Texas entered on November '23, 1914, requiring the three defendants herein to construct a union depot in the city of Hills-tioro upon the site of the present depot of the Missouri, Kansas & Texas Railway Company ■of Texas unjust and unreasonable to the defendant Missouri, Kansas & Texas Railway Company of Texas?
“Question No. 2. Was the order of the Railroad Commission of Texas entered on November 23, 1914, unreasonable- and unjust to the defendant Missouri, Kansas & Texas Railway Company of Texas in the matter of the apportionment of the cost therein stated?
“Before you would be justified under the law 'in answering the foregoing questions in the affirmative, said defendant must have shown to you by clear and satisfactory evidence that said ■order was unreasonable and unjust as to said defendant.
“Question No. 3. Was the order of the Railroad Commission of Texas entered on November 23, 1914, requiring the three defendants herein to construct a union depot in the city of Hillsboro upon the site of the present depot of the Missouri, Kansas & Texas Railway Company of Texas unjust and unreasonable to the •defendant St. Louis Southwestern Railway -Company, of Texas?
“Question No. 4. Was the order of the Railroad Commission of Texas entered on November 23, 1914, unreasonable and unjust to the defendant St. Louis Southwestern Railway Company of Texas in the matter of the apportionment of the cost therein stated?
“Before you are justified under the law in answering the foregoing questions in the affirmative, said defendant must have shown to you by clear and satisfactory evidence that said order was unreasonable and unjust as to said defendant.
“Question.No. 5. Was the order of the Railroad Commission of Texas entered on November 23, 1914, requiring the three defendants herein to construct a union depot in the city of Hillsboro upon the site of the present depot of the Missouri, Kansas & Texas Railway Company of Texas unjust and unreasonable to the defendant Trinity & Brazos Valley Railway Company?
“Question No. 6. Was the order of the Railroad Commission of Texas entered on November 23, 1914, unreasonable and unjust to the defendant Trinity & Brazos Valley Railway Company in the matter of the apportionment of the cost therein stated?
“Before you will be justified under the law in answering the foregoing questions in the' affirmative said defendant must have shown to you by clear and satisfactory evidence that said order was unreasonable and unjust as to said defendant. Geo. Calhoun,
“Judge Fifty-Third Judicial District.”

To the first and second questions the jury answered “No.” To each of the others the jury answered “Yes.” Thereupon judgment was entered overruling the order of the Commission of date November 23, 1914.

Upon each of the two issues of fact involved in this appeal, viz.: As to whether the site for the union depot at Hillsboro .selected by the Commission is unreasonable or unjust to the appellees, or either of them; and as to whether the apportionment of the cost in erecting and maintaining said depot made by said Commission is unreasonable or unjust to the appellees, or either of them— we answer in the negative, and find that both of said findings by the Commission, and its judgment, order, or decree thereon are just and reasonable to appellees and to each of them.

Opinion.

1. We sustain appellant’s first assignment of error, which is that the court erred in refusing to peremptorily instruct; the jury to return a verdict for the state. This, of course, is decisive of this case, and devolves upon this court the necessity of reversing the judgment of the trial court, and rendering judgment for the appellant; it appearing from the record that the case has been fully developed, and that there are no further issues of fact requiring the intervention of a jury. However, we deem it proper to briefly state some of our views relative to the facts and the law of this case.

2. In so far as they are involved in this appeal, we adhere to our conclusions of law expressed in 165 S. W. 491 et seq.

3. We do not agree with the contention of appellees that the issues as to the reasonableness of the site of the proposed depot, and the cost of erecting and maintaining the same, was foreclosed in their favor by the judgment of the district court of May 20, 1914. The proceedings in that case, as disclosed by the record herein, are somewhat confusing. We quote therefrom as follows:

“It is further ordered, adjudged, and decreed by the court that said order of the Railroad Commission of Texas of date January 17, 1911, be, and the same is hereby, in all things set aside, annulled, and held for naught.”

Had the decree stopped there, it would render appellees’ contention plausible, but it does not stop there. It continues:

“Without prejudice, however, to the order of the Railroad Commission of date March 22, 1910, set forth in the fourth paragraph of plaintiffs first amended original petition, or the validity of the same, or the right and power of the Railroad Commission of Texas to make such orders in the premises in the future as it may deem just and reasonable to the defendants.” (Italics ours.)

A subsequent portion of this judgment amounts to a reference of the matter to the Commission for further findings of fact. Without passing upon the question as to the authority of the court to make such reference, the judgment clearly shows that it was not intended to preclude it from doing so.

The Commission, upon further hearing, designated a part of the grounds owned and used by the Katy as the site for the union depot, and apportioned the cost of constructing and maintaining the same differently from its former order.

No objection is made on this appeal to the finding of the Commission as to requiring the appellees to erect and maintain a union depot somewhere in Hillsboro, and no objection is made as to the plans and specifications for such depot as made by the Commission. The objection of appellees seems to be as to the cost of such depot. It having been settled by the findings of the Commission and the judgment of the district court that it is just and reasonable to require ap-pellees to erect and maintain such a depot somewhere in Hillsboro, it devolved upon appellees to show a more suitable or less costly site than that designated by the Commission. This they did not attempt to do. Hence the issue as to the site of such depot is not raised by the evidence, and the trial court should have so instructed the jury.

On the appeal of the former case the appellees contended that user was the proper basis for a division of the cost of erecting and maintaining the depot. The Commission in its order of November 23, 1914, adopted this basis. The evidence does not clearly show that the apportionment of the cost made by the Commission was not just and reasonable. On the contrary, the preponderance of the evidence shows that the apportionment thus made is just and reasonable as to appel-lees and as to each of them. The jury found against the Katy on this issue, and it has not assigned error upon such finding. The apportionment to each of the other appel-lees is less than it would have been had it been made so as to require each of them to pay one-third of such cost, as appellees now contend should have been done. Such being the case, the other appellees have no grounds for complaint.

We think the court committed other error as to refusal of charges and the admission of testimony, but in view of the disposition which we make of this case it is unnecessary to point them out.

For the reason that the court erred in not peremptorily instructing the jury to return a verdict in favor of appellant, this case is reversed, and judgment is here now rendered for appellant.

Reversed and rendered.
      ^^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, O. J.

text:
    THORNTON et ux. v. DANIEL et al.
    (No. 765.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1917.)
    1. Trial <®=>305(1) — Damaging Goods — Verdict — “Goods”—“Furniture.”
    A jury answer, in response to the question whether the parties agreed that defendant warehouseman might store plaintiff’s goods elsewhere, that defendant had the privilege of restoring the furniture, covers both office furniture and household goods, where the pleadings and evidence treated them as one.
    2. Words and Phrases — “Goods” — “Furniture.”
    “Goods” and “furniture” include both office furniture and household goods.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Furniture; Goods.]
    3. Trial <§==>350(4) — Requested Issues — Materiality.
    Where the jury found that defendant warehouseman was entitled to restore plaintiff’s goods in another warehouse, refusing to submit the immaterial issue whether plaintiff understood the goods would be stored in defendant’s warehouse, is not erroneous.
    4. Appeal and Error <®=>740(2) — Assignments op Error — Multijtariousness.
    An assignment that the court erred in not submitting special questions Nos. 4 to 10, inclusive, which covered practically every phase of the case, cannot be considered because multifarious.
    5. Warehousemen <®=>34(7) — Burning Goods —SUEEICIENOY OE EVIDENCE.
    Evidence that defendant individual warehouseman was an officer of defendant corporate warehousemen, .that their financial affairs were handled together, that the corporation partially paid the rent of a building in which the individual defendant restored plaintiff’s goods, etc., held not to make corporation’s liability for the burning of such goods a jury question.
    6. Trial <§^>318 — Jury Finding — Necessity.
    Where there was no evidence to support a verdict for plaintiff,, and a motion to instruct a verdict for a certain defendant was sustained, entering judgment without a formal jury finding is not erroneous.
    7. Appeal and Error <®=ml060(l) — Harmless Error — Argument op Counsel.
    Where defendant warehousemen were clearly charged with liability because restoring plaintiff’s goods without consent, argument of defendants’. counsel that plaintiff should have sued the parties in whose warehouse the goods were destroyed does not constitute reversible error.
    Appeal from El Paso County Court; E. B. McClintock, Judge.
    Action by A. L. Thornton and wife against R. L. Daniel and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    For opinion on former appeal, see 185 S. W. 585.
    G. L. & Atlas Jones, of El Paso, for appellants. O. W. Croom, of El Paso, for appellees.
   HARPER, O. J.

The plaintiffs, A. L. Thornton and wife, filed two suits in justice court, El Paso county: First, against R. L. Daniel, E. L. Peyton, and Jno. Newgate; second, against R. L. Daniel Furniture Company for the value of household goods and office furniture destroyed by fire in a warehouse — and from the judgments there rendered appealed to the county court, and there, by order of the court, consolidated. This is the second appeal of this case, the first reported 185 S. W. 585, is referred to for a more definite statement of the issues involved. Tried to a jury and upon verdict upon special issues submitted, a judgment was rendered for defendants.

The first assignment is that the verdict of the jury is not responsive to the question submitted to them by the court, in that it makes. no finding as to the household goods. The proposition is that:

“The suit being for damages for loss of office furniture stored under contract dated February, 1913, and the court having submitted the issue as to the understanding between the parties as to restoring both lots, and the jury having returned as to the understanding concerning the office furniture only, said verdict did not comprehend the whole issue submitted, was therefore not responsive-”

The question submitted reads:

“Do you or do you not find that it was understood between the parties to this suit when the goods were delivered to defendant Daniel that he should have the privilege of restoring them at another storage warehouse?’’

The answer:

“In answer to question 1, we, the jury, do so find that defendant had the privilege of restoring the furniture at another warehouse.”

The test here is: Did the question and answer cover both contracts—the office furniture and the household goods? The pleadings treated them collectively. The verbal contracts, while made upon different dates, were substantially; if not identically, the same. The testimony of the witnesses, judging by the statement of facts, was given in such a way as to comprehend both. The term “goods” clearly comprehends both, and it is not likely that the jury did not understand that they were passing upon the rights of the parties in respect to the property stored by both contracts.

The fifth and sixth and ninth assignments:

“Fifth. Because the answer of the jury to question 1 submitted to them by the court is not supported by the evidence in so far as said answer can be considered as a finding of the understanding as to restoring the household goods.
“Sixth. Because the answer of the jury to question 1 submitted to them by the court is not supported by the evidence, or in any event is contrary to the clear weight and preponderance of the evidence in so far as said answer is a finding of the understanding as to restoring the office furniture.”
“Ninth. Because the court erred in submitting to the jury question 1 in the court’s main charge over the objection of plaintiffs that the same should not be submitted for the reason that the contract for storage of the office furniture was made by A. D. Thornton in March, 1912, and the contract for storage of the household goods was made by A. M. Thornton about February, 1913, and said contracts were separate and independent contracts, and referred to separate and independent properties, and the undisputed evidence showed that there was no understanding that defendant should have the privilege of restoring the household goods, and that said question would confuse and mislead the jury and cause them to believe that the contract as to the office furniture should control them in their finding, regardless of the contract as to the household goods.”

—being to the same effect, are overruled for the same reasons.

We cannot give our assent to the proposition urged by the second assignment, that the question and answer covered the office furniture alone. The term “furniture” comprehends both office and household goods.

The third is that the court erred in refusing to submit the question requested by plaintiff:

“Did A. M. Thornton understand when he arranged with B. L. Daniel to store the household goods that they were to be stored in the warehouse of R. L. Daniel?”

This question was covered by the court’s special issue:

“Do you find that it was understood between the parties to this suit, when said goods were delivered to defendant Daniel, that he should have the privilege of restoring them at another storage warehouse?”

—and the answer of the jury that it was so understood, because in the face of this finding it became immaterial what plaintiff understood as to their being stored in the warehouse of Daniel.

The fourth assignment is:

“Because the court erred in refusing to submit to the jury each of special questions Nos. 4, 5, 6, 7, 8, 9, 10 requested in writing by plaintiffs for the reason that the submission of each of the same was warranted by the pleadings and the evidence, and the same were not covered by or submitted in the court’s charge.”

It is apparent that this is multifarious and cannot be considered under rule, for the refusal to submit the special issues requested covered almost every phase of the case on trial. Frost v. Mason, 17 Tex. Civ. App. 465, 44 S. W. 53; Gresham v. Harcourt, 50 S. W. 1058.

The seventh is:

“Because the court erred in sustaining the motion of defendant R. D. Daniel Furniture & Mattress Factory to direct a verdict for it when plaintiffs had introduced their evidence in chief and rested, when the evidence was sufficient to carry the case to the jury.”

The evidence relied upon by appellant to require the case to be submitted as to defendant Daniel Furniture & Mattress Factory is: Thornton testified that when he arranged for storage of the office furniture, he went to the office of the Daniel Furniture & Mattress Factory and arranged with R. D. Daniel; that he heard said Daniel in justice court testify that the office furniture and household goods were first stored next door to the office of the said factory; that a part of the rent for the building in which said property was stored was paid by defendant factory; that he deposited part of the money paid for storage to his own bank account and part to the factory account. A check introduced was made payable to R. L. Daniel, indorsed, “R. D. Daniel Fur. & Mat. F., by R. L. Daniel.” The following entry in the El Paso City Directory was introduced:

“Daniel, R. B., Furniture & Mattress Factory, Inc. R. L. Daniel, President. ⅜ ⅜ ⅜ Household goods packed, hauled, shipped or stored.”

After careful reading of the statement of facts, we conclude that there are no other facts in any way bearing upon the question. And we are of the opinion that the above is not of sufficient probative force or effect to require the court to submit the question of liability upon the part of the said defendant. Besides, the contracts were made with R. L. Daniel; there is no evidence that he was acting for the factory, and if he were so acting, the jury have found that it was understood that the goods might be restored, and they were restored and the loss occurred in the warehouse where restored. The liability of either defendant depends upon whether the storage contract permitted the goods to be restored in another warehouse. See opinion upon former appeal, 185 S. W. 585.

The eighth is that the court sustained a motion to instruct as to. defendant factory and proceeded to trial thereafter as to defendant Daniel only, and the court having failed to direct a verdict as to the defendant factory, and the jury having found no verdict, there is no basis for the judgment. Since the record discloses that the motion to instruct as to said defendant was sustained, and there being no evidence upon which to base a verdict against it, for plaintiff, and the judgment being that plaintiffs take nothing as against it, there was no error in entering the judgment without a finding by Ihe jury-

The tenth complains of argument of counsel to the effect:

“If plaintiffs thought they should recover damages, why did they not sue Peyton and Wyatt in-whose warehouse the goods were destroyed ?”

The pleading and evidence in this case so clearly shows that the defendants in this trial were charged with liability because they had restored the goods without the consent ef the plaintiffs that it is not likely that the argument of counsel in any way influenced the verdict of the jury.

Believing that no error has been pointed out by appellant, the assignments are overruled and cause affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme -Court.
      <te>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    FOX et al. v. CHRISTOPHER & SIMPSON IRON WORKS CO.
    (No. 7449.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 19, 1917.
    On Motion for Rehearing, Jan. 10, 1918.)
    1. Mechanics’ Liens @=>304(1) — Subcontractor’s Lien — Personal Liability oe Owners.
    Under Const, art. 16, § 37, and Rev. St. art. 5621, a materialman, giving the owners proper notice of its claim against the contractor, established a lien against the property; but such lien did not create a personal liability of the owners for the payment of the claim.
    2. Mechanics’ Liens @=>115(4) — Liability of Owner — Contract Price — Statute.
    Under Const, art. 16., § 37, giving material-men a lien, and requiring the Legislature to rovide for its enforcement, and Vernon’s ayles’ Ann. Civ. St. 1914, art. 5623, providing that in no ease shall the owner be compelled to pay a greater sum for materials furnished, etc., than the original contract price, and Rev. St. art. 5621, allowing any materialmen, etc., on written notice to the owner of the materials furnished and amounts due to fix a lien, a ma-terialman, properly fifing an account fixed its lien, though the owner, after notice, paid the original contractor sums exceeding the claim of the materialman and finally paid the full contract price, as the proviso of article 5623 did not destroy the lien given by article 5621.
    3. Mechanics’ Liens @=>305, 317 — Materi-almen — Judgment.
    One furnishing material to a building contractor could not recover on a bond given by a surety company to indemnify the owner against loss, nor against the surety company’s contractor for the completion of the building.
    4. Mechanics’ Liens @=>317 — Surety Bondi— Recovery by Materialman.
    Where a surety company, which had given an indemnity bond to the owner, after the contractor’s abandonment of the work contracted with another for its completion and agreed with the owners to pay specified materialmen’s claims and to release any materialmen’s liens, a ma-terialman could maintain a suit against such surety and its contractor jointly and severally.
    5. Witnesses @=255(2) — Use of Memorandum.
    In an action to enforce a materialman’s lien, testimony of a witness, relying upon his personal knowledge aá to the items furnished by the materialman on the ground that he had made a list of the items, and had handled and checked the items, and had delivered them to the carrier and taken a bill of lading, was admissible, where he was not relying upon the list of items, and used it only to designate or explain what items were shipped.
    6. Evidence @=>158(28) — Best and Secondary Evidence — Boons of Account.
    In such action, a deposition of the material-man’s former employs having general knowledge of its business, and who had handed the notary an itemized statement showing the material furnished, as further shown by an exhibit attached to deposition, and who had knowledge of the credits and attended to collections, was admissible over the objection that the books of original entry, showing the items and unpaid balances would have been the best evidence, as the books could not be attached to the deposition, and as it was proper to attach thereto a copy of the book entries.
    7. Mechanics’ Liens @=>280(1) — Material-men’s Lien — Action to Enforce — Evidence.
    In an action to enforce a materialman’s lien, consisting of various items of iron work, testimony of a subcontractor under the construction company that he was told that the materialman would furnish such iron work was properly admitted, to show that the material furnished was used in the construction of the building.
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Suit by the Christopher & Simpson Iron Works Company against Henry S. Fox, Jr., and others, as owners, and against the ¿Etna Engineering & Construction Company, the National Surety Company, and J. B. Cochran, to enforce a subcontractor’s lien. Judgment for plaintiff, and the defendants, other than the Construction Company, bring error.
    Reformed and affirmed.
    Moody & Boyles, of Houston, for plaintiffs in error. F. Charles Hume, of Houston, and Henry T. Ferriss, of St. Louis, Mo., for defendant in error.
   LANE, J.

This suit was instituted by Christopher & Simpson Iron Works Company, hereinafter, for convenience, called the Iron Works Company, against Henry S. Fox, Jr., Mrs. .Leonora H. Fox, Mrs. Maud Fox Twy-man, and her husband, W. C. Twyman, Mrs. Gladys Louise Fox Hilliard and her husband, Walter Hilliard, owners of a certain lot and improvements thereon in the city of Houston, who for convenience are hereinafter called the Eoxes or owners, and against ¿Etna Engineering & Construction Company, hereinafter called Construction Company, the National Surety Company, hereinafter called Surety Company, and J. B. Cochran, to recover an alleged debt of $1,456.55, and .for a foreclosure of an alleged materialman’s lien against lots 8, 9. and 10, in block 271, in the city of Houston, owned by the Eoxes.

I The Iron Works Company alleged: That Henry S. Fox, Jr., acting for himself and for the other owners, executed a contract with the Construction Company for the erection of a three-story and basement brick building upon the property above described for the sum of $40,016. That the owners entered into a bond for the faithful performance of said contract, with the Surety Company as surety. That the Iron Works Company entered into a contract with the Construction Company to furnish certain iron work for the sum of $4,205, upon which contract there was due at the time of suit the sum of $1,465.55. That on or about the 12th day of July, 1913, the) Construction Company abandoned its contracts with the owners and with the Iron Works Company and its officers, and left the state for parts unknown. That upon the abandonment of said contract the Surety Company assumed the owners’ contract with the Construction Company and received from the Iron Works Company for the owners such material as had not at that time been delivered by the Iron Works Company to the Construction Company. That all material covered by said contract between the Construction Company and the Iron Works Company had been delivered for the account of the owners, and had been used in the construction of said building. That the Iron Works Company had given notice to the owners of_its lien, and had properly filed its lien with the county clerk of Harris county, Tex. That at the time of giving notice to the owners by the Iron Works Company the owners were indebted to the Construction Company in a sum exceeding that for which plaintiff sued.

It is further alleged that. in November, 1913, the Surety Company and J. B. Cochran entered into a contract with the owners for the completion of' said building (after the abandonment by the Construction Company) and received from the owners under said contract the sum of $10,490.35, being the amount remaining due for the work agreed to be done under said original contract, and 'for extras, and agreed to complete said building, and to protect and indemnify the owners against any claim that might be asserted by any materialman, laborer or other person having furnished material or performed labor in the erection of said building, and that said Surety Company and J. B. Cochran had appropriated the fund out of which should be paid the balance due the Iron Works Company, with accrued and accruing interest.

It prayed: (a) For personal judgment against the owners, Eoxes, for the sum of $1,-456.55, costs, and for foreclosure of its lien against the building, lots, and improvements; (b) for personal judgment against J. B. Cochran and the Surety Company for $1,456.55, with interest and costs; (c) for judgment against the Construction Company, cited by publication, for $1,456.55, with interest and costs.

The Eoxes answered by general demurrer. They further answered, admitting the execution of the contract between Fox, Jr., as trustee, and the Construction Company, admitting the correctness of the description of the property on which the building was erected, and admitting the execution of the contract of November, 1913, between Henry S. Fox, Jr., Surety Company, and J. B. Cochran. They denied the other allegations of said pleading. They further answered that, at the time of the abandonment of the contract with the owners by the Construction Company, the owners had paid upon the contract price of said building to the Construction Company the sum of $19,112; that thereafter J. B. Cochran and the Surety Company contracted with the owners to complete said building according to contract and specifications for the sum of $20,904, same being the reasonable and necessary cost of completing said building, and that the owners had expended in the erection of said building the full sum of $40,016, said sum being the full contract price of said building, according to the original contract of March 18, 1913; that in the completion of said building the Surety Company and J. B. Cochran, in addition to the payment made to them by the owners, expended the further sum of over $5,000 for material furnished and labor performed in the completion of said building; that because the owners had expended the sum of $40,-016, being the full original contract price for the erection of said building under said contract of March 18,1913, the Iron Works Company was entitled to no lien against owners.

J. B. Cochran and the Surety Company, in addition to certain special exceptions, answered by general denial. The Construction Company made no answer.

The cause was tried before the court without a jury, and judgment was-rendered in favor of the Iron Works Company against the Construction Company, .“foreclosing its claim or right, if any, in, to, or against the said Fox building, and lots 5, 4, and 3, in block 271, in the city of Houston, Texas”; against the owners and each of them for the sum of $1,456.55,'with interest thereon from August 22, 1913, at the rate of 6 per cent, per annum, and for a foreclosure of its material-man’s lien upon said building and lots against said owners; against the Surety Company for the ¡áum of $1,456.55, with interest thereon from August 22, 1913, at the rate of 6 per cent, per annum; and against J. B. Cochran for the sum of $1,456.55, with interest thereon from the 22d day of August, 1913, at the rate of 6 per cent, per annum. From the judgment all defendants, except the Construction Company, have appealed.

By the first and second assignments, which are grouped in appellants’ brief, it is insisted that the court erred in rendering judgment in favor of the Iron Works Company against the owners of the property, and each of them, for the sum of $1,456.55, together with a foreclosure of its materialman’s lien against them to secure the payment of said sum.

Their first contention, that the court erred in rendering judgment in favor of the Iron Works Company against the owners, either severally or jointly and severally, for $1,456.55, or for any other sum, must be sustained. The debt sued for by the Iron Works Company was not an obligation of the owners, or either of them, either primarily, by assumption, either expressed or implied, nor is it made such by any law. While it is true that by virtue of article 16, § 37, of the Constitution, and article 5621, Revised Statutes of Texas, and by reason of the fact that the Iron Works had given the owners proper notice in due time of its claim against the Construction Company, a lien was established against the property in question in favor of the Iron Works Company, the existence of such lien did not create a personal liability of the owners of the property for the payment of the debt.

Their second contention is that by the terms of their contract with the Construction Company they agreed to pay $40,016 for a completed building; that at the time the contract was abandoned by the Construction Company, July 12, 1913, they had paid the Construction Company the sum of $19,112; that thereafter the owners contracted with J. B. Cochran and the Surety Company to complete the building from its then incomplete state for the sum of $20,904, same being the reasonable cost for its completion; that, having expended the full original contract price for the building, they were not liable to personal judgment for the claim of the Iron Works Company for material furnished for the building, nor was the Iron Works Company entitled to a lien on the building and lots by reason of article 5623, Vernon’s Sayles’ Statutes 1914, relating to materialmen’s liens, which among other things provides:

“That in no case shall the owner be compelled to pay a greater sum for * * * material, etc., furnished, as provided in this chapter than the price or sum stipulated in the original contrast between such owner and the original contractor or builder of such house,” or building.

This latter contention cannot be sustained. Article 16, § 37, Constitution of Texas, provides that materialmen shall have a lien upon the building for material furnished therefor, and the Legislature shall provide by law for the speedy and efficient enforcement of said lien. Article 5621, Revised Statutes of Texas, provides that any person, firm, lumber, dealer, mechanic, etc., or subcontractor, who may furnish material to erect any house under or by virtue of a contract with the owner, contractor, or contractors, by giving written notice to the owner, or his agent, of the items furnished to the contractor or subcontractor, showing how much there is due and unpaid on material furnished by said materialman under said contract, may fix and secure the lien provided for in the chapter of the statutes relating to fixing liens of materialmen for material furnished by them at the time or subsequent to the giving of the written notice, above mentioned.

It is shown by the evidence that on May 5, June 10, and July 10, 1913, the Iron Works Company gave the owners written notice, in' manner and form as required by law, of the bill of material furnished by it to the contractor, Construction Company. The evidence also shows that the account of the Iron Works Company had also been properly and truly filed with the county clerk of Harris county, so as to fix its lien. The evidence further shows that, after the giving of such written notice, the owners paid the contractor, Construction Company, up to July 12, 1913, the time at which the Construction Company abandoned its contract, sums of. money largely exceeding the claim of the Iron Works Company, of which the owner's had notice. Wé think, to hold that the Legislature intended to, or did by the proviso to article 5623,' supra, destroy the lien given to materialmen, etc., by article 5621, supra, is wholly untenable, and therefore we decline to sustain the contention of appellant that no lien was secured by the Iron Works Company on the building in question, because the owners finally paid out to the contractors the full amount of the contract for the building, although a large portion of such price was paid after the lien of the Iron Works was fixed and secured in manner as provided by law.

By the third, fourth, fifth, and sixth assignments insistence is made that the court erred in rendering judgment against the Surety Company and against J. B. Cochran in favor of the Iron Works Company, because (1) the bond entered into by it with the owners of the property was a bond of indemnity only, and protected only the owners against loss; (2) that, the owners having expended the full original contract price for the building, no judgment could be had either against the owners or against the Surety Company or Cochran; (3) that the contract of November, 1913, entered into by the Surety Company and J. B. Cochran with the owners to complete the building from its then incomplete state, was distinctly an independent contract between the owners of the property and the Surety Company and Cochran; and that there is no privity of contract between the Iron Works Company and the Surety Company -and Cochran which would entitle the Iron Works Company to' recover judgment against either the Surety-Company or Cochran on account of said contract.

The first contention is sustained. The Iron Works Company could not recover under the bond mentioned. General Bonding & Casualty Ins. Co. v. Waples Lumber Co., 176 S. W. 651. The second contention cannot be sustained, for the same reason given for overruling the same contention under the first and second assignments. The third contention cannot' be sustained, for the reason that by the fourth section of the contract of November,- 1913, the Surety Company and Cochran contracted and agreed with the Iron Works Company as follows:

“Fourth. To release and discharge, or cause to be released and discharged, within two years from the date hereof, time being of the essence of this contract, any lien of any kind for material furnished or work done, heretofore filed or to be filed or asserted against said improvements and nremises, and agree further to pay for and satisfy as they mature each and every claim incurred for material or labor in and about the erection and construction of said improvements, and agree to indemnify said H. S. Fox, Jr., trustee, and the other owners of said property and improvements, against, and hold harmless fromt all such liens and demands and from all liability and claim therefor, and from all consequent loss and expense.”

That the fourth paragraph of the contract of November, 1913, between the Foxes, the owners of the building, and the Surety Company and J. B. Cochran, is an affirmative promise to the owners that the Surety Company and Cochran would pay and satisfy each and every claim incurred for material used in and about the erection and construction of the building as they mature, and to release and discharge any lien for material furnished, theretofore filed or asserted against said property, cannot be questioned. In the case of Bonding & Casualty Ins. Co. v. Waples Lumber Co., 176 S. W. 651, Judge McMeans, in speaking for this court, said:

“We think there is no doubt that Breath and wife could have required of Butler a bond-binding him and his surety to pay all debts contracted with persons for materials, whether the claims might be asserted against the property of the owner as a lien or not, and that under such a contract, if it had been made, the material-men might sustain an action against the contractor and the surety upon the bond. Bank v. Railway Co., 95 Tex. 184, 66 S. W. 203. Thus, in Nelson v. Stephenson, 168 S. W. 61, in which a bond was required of, and given by, a building contractor, the bond containing the condition that the contractor would faithfully perform his contract and pay all indebtedness that might be incurred, and being given to ‘all parties who might furnish labor or materials on the contract hereinbefore mentioned,’ and ‘to be paid to said school district No. 1, Sinton, Tex., and to said parties who may furnish labor and material,’ it was held that the bond ‘inured to the benefit of the laborers and materialmen to whom it was made payable. They were by the plain terms of the contract privies thereto and fully protected thereby, and each, or any of them, could prosecute a suit on the bond in his own name’ — and cite many authorities in support of the ruling. In United States Fidelity & Guaranty Co. v. Thomas, 156 S. W. 573, the obligation of the building bond was to ‘pay all claims and liens,’ and ‘we also agree that the obligation of this bond shall inure to the benefit of materialmen and subcontractors.’ In discussing the language quoted, the court says: ‘Counsel for appellees admit that without this provision the suit [of the materialmen and subcontractors] could not be maintained. With it inserted in the bond, are the appellees beneficiaries and entitled to a right of action thereon? We have reached the conclusion that this question should be answered in the affirmative.’ ”

We have reached the conclusion that the Iron Works Company can maintain its suit against the Surety Company .and J. B. Cochran under the terms of the contract of November, 1913, and that the trial court should have rendered judgment in favor of said company against the Surety Company and J. B. Cochran, jointly and severally, for such sum as was shown by the evidence to be due said Iron Works Company for material furnished by it for the erection of the building.

By the seventh assignment it is insisted that the court erred in rendering judgment in favor of the Iron Works Company for three distinct and separate recoveries for $1,456.55, the full amount of its claim, against the three sets of defendants, respectively — that is, a separate award for $1,456.55 against the Foxes, the owners, and each of them, a separate award of $1,456.55 against the Surety Company, and a separate award of $1,456.55 against J. B. Cochran — - because if the Iron Works was entitled to judgment against all of said parties, such judgment should be for $1,456.55 against them jointly and severally, and not severally. We have already held that no personal judgment could be properly rendered against the owners for any sum, and it is unnecessary to repeat that holding under this assignment. We have also hereinbefore stated that we thought the court should have rendered judgment in favor of the Iron Works Company against thq Surety Company and J. B. Cochran jointly and severally for $1,456.55, the amount of the Iron Works Company’s claim. Having reached such conclusion, the seventh assignment is sustained, and the judgment of the trial court will be reversed and reformed, and judgment will be here rendered in conformity to the views above expressed.

By the eighth, ninth, and tenth assignments, grouped in appellant’s brief, it is urged that the court erred in admitting in evidence the testimony of Henry Heck as follows:

“This is a duplicate of the statements made right off the original copy that I made of, all the material that was shipped for this job, with exception of the last two items-of ‘brass thresholds,’ dated August 22, 1913. The numbers on the left-hand side columns are numbers of dray tickets which I made out at the time of loading the goods. After loading this material on the wagons and delivering it to the railroad company, I then got bills of lading from the rail-i'oad company for this material for shipment to the iEtna Engineering & Construction Company at Houston, Texas, for the Fox job. I acquired it [items of shipment] as part of my duties as shipping clerk for Christopher & Simpson Iron Works Company, and I made the original list, of which Exhibit A is a copy, at the time of shipping the material, checking off each item and putting it on the dray ticket, as shown by this statement. This list shows all the material that was shipped for this job. It shows correctly the items of shipment and delivery by Christopher & Simpson to the railroad company.”

These assignments are overruled. The witness Heck relied upon his personal knowledge in testifying of the items sold by the Iron Works Company to the Construction Company, as he made a list of the items so sold, handled the shipment of such items, checked them as they were loaded on the drays, delivered them to the railroad company, and got bills of lading from the railroad company for the same. He was not relying upon the list as his source of knowledge of the matters testified about, but made use of it only as a means of designating and explaining to the court what items were so shipped to the Construction Company. If a copy of the list was. offered or admitted in evidence, such fact is not disclosed, either in the assignments or the statement thereunder.

The witness George Bromeyer testified by deposition as follows:

“I have been with the Christopher & Simpson Iron Works Company for the past 19 years in various positions; for the past 3 years in the capacity of assistant treasurer. My duties are to open all mail received by the firm and thereby acquire a general knowledge of the run of the business. After opening the mail, I distribute same to the various departments for their attention, and see that all matters are properly attended to. When receiving checks, I keep a personal record of them, and turn them over to the cashier, to be entered upon the company’s books, and thereby know at all times how the account .stands. I have handed to the notary itemized statement showing the iron work material furnished by the Christopher & .Simpson Iron Works Company for and used in the construction of the building and improvements on the Eox property, corner of Main street and Dallas avenue, Houston, Tex., pursuant to a contract with the ¿Etna Engineering & Construction Company. Said statement is marked ‘Exhibit A’ and is attached to these depositions. I have knowledge of the items of shipments and deliveries of such material, and of payments made, and of balance due thereon and unpaid. As to the shipments of all the material, I acquired the knowledge by the records of our shipping clerk, Mr. Heck, • and thereby can tell whether or not the material has been shipped. After the material is shipped and payments become due I render an estimate calling for payments in accordance with the terms of our contract, and did so in this case, and I follow up this record to see whether or not these payments are made iu accordance with the terms of the contract, and, if not, I make the collection, if possible, and in this manner I have thorough knowledge of this account and all of the credits shown on the last page of ‘Exhibit A.’ Whenever the contract calls for delivery f. o. b. cars St. Louis, with freight allowed to the point of destination, and the consignee sends us a receipt for the freight charges on different shipments which he has paid, they are credited to his account, and the credits of freight, as shown on ‘Exhibit A,’ page 3, are in accordance with the freight receipts which were sent in for credit by the ¿Etna Engineering & Construction Company. Said duplicate of copy shows correctly the items of shipments, deliveries, payments, and unpaid balance. I know the facts concerning which I have testified, by reason of my duties and connection with this account, as shown in my answers to the foregoing questions.”

By the eleventh assignment complaint is made of the admission of this testimony, for the reason that it is not the best evidence of such shipment, deliveries, payments, and unpaid balance, in. that it was shown the Iron Works Company kept books reflecting the various items of shipment, deliveries, payments, and unpaid balances; that said books of original entry would have been the best evidence; that said primary evidence is not accounted for as a predicate for secondary evidence; and because such testimony is but the conclusion of the witness. We overrule the assignment, as it is apparent that the books of the Iron Works Company could not be attached to the deposition, and it was proper to attach thereto a copy of the book entries. The evidence was properly admitted.

The witness C. M. Lane testified, by deposition, that as a subcontractor under the Construction Company he placed the steel and iron in the Eox building; that he was told by Mr. Haire, of the Construction Company, and a representative of the Iron Works Company, that the Iron Works Company would furnish the steel and iron for the building; that it was furnished under a contract entered into between the Construction Company and the Iron Works Company ; that he knew that the steel and iron furnished by the Iron Works Company went into the Eox building, because he checked the items from an invoice made by the Iron Works Company for the Construction Company after the material arrived at Houston; that it was placed in said building in accordance with certain plans, made by the Iron Works Company; and that no such steel and iron were used in the erection of said building, other than that furnished by the Iron Works Company. By assignments 12 to 18, inclusive, appellant complains of the admission of so much of the testimony of the witness Lane as states that he performed the work according to a certain contract, that he had put the material in the building according to certain plans and specifications furnished by the Iron Works Company, that Mr. Haire and another had tojd him the Iron Works Company would furnish the steel and iron for the building, and that there was no steel or iron, other than that furnished by the Iron Works Company, used in the erection of the Fox building.

The propositions under these assignments are in substance that the testimony was hearsay. The undisputed evidence shows— indeed, appellants admit in their ■ answer— that the Iron Works Company had contracted to furnish the steel and iron for the Fox building, and hence the testimony of Lane that he was told the Iron Works Company would furnish such material could not have injured the rights of appellants. Nor do we think that any of the other matters complained of were calculated to injure the rights of appellants. The testimony as a whole was admitted for the sole purpose of showing that the material sold by the Iron Works Company to the Construction Company was used in the erection of the Eox building, and was relevant and material upon such issue and was properly admitted. The assignments are overruled.

The nineteenth and twentieth assignments are overruled. The evidence was sufficient to support the findings of the court that the owners of the building had notice of the claim of the Iron Works Company at the time they paid the Construction Company, and that sums in excess of such claim were so paid after said notice was received by such owners.

There is no merit in the twenty-first assignment. The finding of the court that upon the abandonment of its work in the erection of the Eox building by the Construction Company the Surety Company assumed the contract of the Construction Company was immaterial and harmless. Such finding was unnecessary to support the judgment rendered.

We overrule the twenty-second, twenty-third, twenty-fourth, and twenty-fifth assignments. The evidence is sufficient to support the finding of the court complained of in said assignments. What has been said disposes of all of the assignments.

We have reached the conclusion that the judgment of the lower court should be, and the same is, here reformed, so that no personal judgment shall be awarded against Henry S. Eox, Jr., Mrs. Lenora H. Eox, Mrs. Maud Fox Twyman, or her husband, W. C. Twyman, Mrs. Gladys Louise Fox Hilliard, or her husband, Walter B. Hilliard, or either of them, for any sum shown to be due plaintiff, but judgment against them shall be against them jointly and severally only, foreclosing the materialman’s lien of plaintiff, Christopher & Simpson Iron Works Company, upon lots 5, 4, and 3, block 271, Houston, Tex., and the building thereon and that the award in favor of said plaintiff against the defendants National Surety Company and J. B. Cochran shall be a judgment against them jointly and severally for $1,456.55, with 6 per cent, interest per annum thereon from the 22d day of August, 1913, and not two several judgments, as was awarded by the trial court. In all other respects the judgment of the trial court shall remain undisturbed. The judgment of the trial court, as here reformed, is affirmed.

Reformed and affirmed.

On Mbtion for Rehearing.

In our original opinion we held that the testimony, by deposition, of the witness ■ Henry Heck, shipping clerk for defendant in error, with reference to a list of items alleged to have been sold and shipped to the Construction Company by ■ the defendant in error, attached to his answers, was properly admitted in evidence. This testimony was in substance as follows:

“This is a duplicate of the statements made right off the original copy that I made of all the material that was shipped for this job, with exception of the last two items of ‘brass thresholds,’ dated August 22, 1913. The numbers on the left-hand side columns are numbers of dray tickets, which I made out at the time of loading the goods. After loading this material on the wagons and delivering it to the railroad company, I then got bills of lading from the railroad company for this material for shipment to the JEtna Engineering & Construction Company at Houston, Tex., for the Eox job. I acquired it [items of shipment] as part of my duties as shipping clerk for Christopher & Simpson Iron Works Company, and I made the original list, of which Exhibit A is a copy, at the time of shipping the material, checking off each item and putting it on the dray ticket, as shown by this statement. This list shows all' the material that was shipped for this job. It shows correctly the items of shipment and delivery by Christopher & Simpson to the Railroad Company.”

We also field that tfie testimony of tfie witness Bromeyer, assistant treasurer of tfie Iron Works Company, witfi reference to an itemized statement of the account between tfie Construction Company and tfie Iron Works Company, attached'to fiis answers, was admissible. Tfie testimony of this- witness is set out in the original opinion and will not be recopied here. The account sued upon was verified, and not denied under oath.

Appellants have filed their motion for rehearing, and therein very vigorously attack our holdings in the two particulars stated above. While there has been some confusion as to whether such testimony is admissible under tfie facts of the present case, we are of the opinion that under the authority of tfie best reasoned cases such testimony was admissible. I. & G. N. Ry. Co. v. Startz, 42 Tex. Civ. App. 85, 94 S. W. 207-213; Railway Co. v. Blanton, 63 Tex. 109; Railway Co. v. Burke, 55 Tex. 342, 40 Am. Rep. 808; Railway Co. v. Turner, 42 Tex. Civ. App. 532, 94 S. W. 214.

We see no reason for receding from our former holding. The motion is refused.
      . @=>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes