author: FDX, C. J.

text:
    HICKS v. HUNTER.
    (No. 5611.)

    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.
    Rehearing Denied March 8, 1916.)
    1. Trial <©==>352 — Submission of Issues.
    In a realty broker’s suit for commission, where plaintiff’s demand was based on the value of the defendant’s lands, as estimated by defendant, the submission of the issue of the value of the lands for which defendant’s were ex-. changed, while failing to submit the issue of the value of defendant’s lands, was erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. <©^>352.]
    2. Appeal and Error <§=>934^-Presuhptions —Findings Supporting Judgment.
    When a special verdict, not finding all facts necessary to judgment, but answering all questions submitted, is entered, the presumption is that the court found from the evidence the omitted facts necessary to support the judgment, if the evidence authorizes the presumed finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. <®=>934.]
    3. Appeal and Error <s=»8S3, 1033 —Right to Allege Error — Acquiescence—Harmless Error.
    In a realty broker’s action for commission, where defendant admitted that he had agreed to pay a commission on the represented value of his lands, which he estimated at such sum that, if the commission were calculated on it, a heavier judgment could have been rendered against him than was rendered through the mistaken submission to the jury of the value of the lands for which his were exchanged as a basis for reckoning, while defendant interposed no objection to the submission of the issue as to the value of the other lands, judgment for plaintiff based on their value could not be reversed; the error being acquiesced in and harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3611, 4052 — 4062; Dec. Dig. <S=^SS3, 1033.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by C. S. Hunter against E. G. Hicks. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Swearingen & Ward and John H. Bickett, Jr., all of San Antonio, for appellant. Cobbs, Eskridge & Cobbs, of San Antonio, for ap-pellee.

       Application for writ of error pending in Supreme Court.

   FDX, C. J.

This is a suit by appellee to recover commissions in the sum of $4,290, which he alleged were due him for exchanging certain lands in Texas belonging to appellants for lands belonging to A. H. Hughes in the republic of Mexico. The allegations in the petition fixing the liability of appellant were that be agreed to pay appellee the usual and customary fee, and further:

“That the aggregate of values of said properties traded and exchanged by said Hicks to the said Hughes, as represented by said Hicks, was the sum of $171,600; that the usual and customary commission for trades and exchanges of property is 2½ per cent, on the value as represented by the customer.”

It was also alleged that the commissions demanded were reasonable. Appellant did not deny the allegation as to the amount charged being the usual and customary commission in the exchange of properties. The cause was submitted on special issues, and upon the anwers thereto judgment was rendered in favor of appellee for $3,126.

It was admitted that 2½ per cent, on the value estimated by the person employing the broker to exchange his property was usual, customary, and reasonable, and it was in proof that appellant employed appellee to procure a person who would exchange Mexican lands for appellant’s lands in Texas, and he procured such a one in the person of A. H. Hughes, and the exchange was made. The lands in Mexico were valued at $125,000 and the lands in Texas at more than that sum.

In submitting the issues the court submitted the issue as to the value of the lands in Mexico, but failed to submit the issue as to the value of the lands in Texas. The demand of appellee for commissions is based on the value of appellant’s lands as estimated by him, but another and different basis for recovery of the commissions was submitted to the jury, and on the answer to that issue, which was not authorized by the pleadings, the judgment necessarily rests. This action was undoubtedly error, but was it such error as necessitates a reversal?

There was evidence as to the estimated value of his property by appellant in a sum equal to or greater than that of the Mexican lands, and, if no issue had been presented as to the estimated value of any of the exchanged lands, therei can be no doubt that the court could have found from the evidence the amount of commissions allowed from the values of the Texas lands for the rule is:

“When a special verdict does not find all the facts necessary to form the basis of a judgment, but does answer all the questions submitted, the court is presumed to have found from the evidence the omitted facts necessary to support the judgment if the evidence is present to authorize the finding thus presumed.” Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638; Grocery Co. v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586.

In this case the finding of the jury as to the valuation of the lands in Mexico is embodied in the judgment, and the judgment for $3,125.00 is 2½ per cent, of the valuation of the Mexican lands. This might prevent indulging in the presumption that the valuation of appellant’s land formed the basis of the judgment, were it not for recitations in the judgment showing that other matters were considered besides those presented to the jury. It appears from the judgment that it was entered at the same time that the motion for new trial was considered, by which the court had been notified of the error in the submission of issues. The court, doubtless with the statute and decisions in view when a special verdict does not find on all issues made by the. pleadings and evidence, recited in the judgment that:

“The court is of opinion that on the answers of the jury to the special issues presented to them and the undisputed evidence the plaintiff is entitled to his judgment against E. G. Hicks in the sum of $3,125,” etc.

The recitation would raise the presumption that the court considered the testimony as to the values of the Texas lands, as the evidence was uncontroverted that appellant estimated it to be of as great value as the Mexican lands, which was $125,000. The only real ground for a new trial was that the verdict was based on the value of lands in Mexico, and not on those in Texas, and it reasonably appears from the recitation in the judgment that the court sought to and did destroy the error of which complaint is made. Neither party asked the submission of any issue to the jury as to valuation of Texas lands.

In this case no objection whatever was interposed to the submission of the issue as to the value of the Mexican lands, but every one seemed to acquiesce in the theory that such value would form a proper basis for the judgment. It was admitted by appellant that he had agreed to pay appellee a commission of 2½ per cent, on the represented value of his properties, and it was shown without contradiction that appellant estimated his lands to be of greater value than $125,000, and, if the commissions be calculated on the basis of that valuation, a heavier judgment could be rendered against appellant than was rendered. If there was error in submitting the value of the Mexican lands, that error was acquiesced in, if not invited, by appellant, and it was only after the verdict had been returned that appellant in a motion for new trial complained of the error, and, in view of the- fact that no injury could possibly have resulted to appellant by the error, to reverse a judgment on that ground would be a miscarriage of justice that no court should permit. Appellant had meted out to him a judgment justified by uncontroverted facts, and no good reason can be assigned for reversing the judgment for using one measure of damages when use of the other could not have benefited, but must have injured appellant.

Appellee swore that the lands listed with him were 2,300 acres in Zavala county, 176 acres in Victoria county, and land in McMul-len county, for which the Portland Hotel in San Antonio was afterwards substituted. It was shown that appellant estimated the value of the Zavala county land at $35 an acre, the aggregate being $80,500, the Portland Hotel $45,000, and the vendor lien notes at the value of $28,000, making an aggregate for the land of $125,500, and for notes and land of $153,500. Appellant did not deny, but in his testimony admitted, that he made the estimates, not only on the land named, but also on 176 acres in Victoria county. If only the value of the Texas lands, not including that of the notes, is considered, the Judgment is justified by the uncontroverted facts.

The fifth assignment is overruled. It is not followed by any statement, and no statement could have been based on the statement of facts that would sustain the assertion that the property was valued to the agent of ap-pellee at $49,000. The only testimony on this subject was that appellant, while in the city of Mexico, agreed with Hughes that the property was worth $49,500. The estimate of the value of the property was made to Stein, the agent of Hughes in San Antonio, and appellant did not deny that such estimate was made. That Hughes would accept property valued at $49,500 for property valued at $125,000 and of the actual market value of $100,000 is preposterous. The commissions were based on the estimated, and not the market value.

There is really but one point in the case, as admitted by appellant, and that has been fully considered by the court. All of the assignments of error are overruled.

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


source: Caselaw Access Project

author: MeMEANS, J.

license: Public Domain

text:
    FIRST TEXAS STATE INS. CO. v. CAPERS.
    (No. 7075.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 12, 1916.
    Rehearing Denied March 2, 1916.)
    1. Insurance <$=>392 — Life Policy — Forfeiture — Waiver.
    Forfeiture of a life policy for failure to seasonably pay a premium, and provisions for manner of reinstatement, are waived by receipt and retention of the past-due premium by insurer’s agent, duly authorized to receive it, with knowledge that it had not been paid in time.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1041-1056, 105S-1070; Dec. Dig. <S=>392.]
    2. Pleading <$=>129(1) — Failure to Deny — Effect.
    By express provision of Acts 33d Leg. a. 127, a fact alleged in the petition, not being denied by the answer, is to be taken as confessed, so that proof thereof is unnecessary.
    [Ed. Note. — For other cases, see Pleading, Cent.Dig. 270, 274, 275; Dee.Dig. <$=>129(1).]
    Appeal from Harris County Court; C. C. Wren, Judge.
    Action by John B. Capers against the First Texas State Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood and W. A. Parish, all of Houston, for appellant. Atkinson, Graham & Atkinson and I-Ieidings-felders, all of Houston, for appellee.
   MeMEANS, J.

John B. Capers brought this suit against the First Texas State Insurance Company to recover $250, being the amount of an -insurance policy upon the life of his deceased wife, in which he was named as beneficiary, and also to recover 12 per cent, on the amount sued for as a penalty, and the further sum of $50 as attorney’s fees. In his petition plaintiff alleged payment of premiums, the death of the assured, and the preparation and delivery of proof of death. The defendant pleaded in defense that the policy had lapsed at the time of the death of the insured, because of failure to pay premiums as provided in the policy, and that it had not been reinstated, and further that, if one Edgar Randell, assuming to act for the defendant, did collect premiums in arrears and issue a receipt therefor, he had no authority so to do, and had no authority to waive any provisions of the policy. Plaintiff by supplemental petition denied that the policy had lapsed, and pleaded payment of premiums to and receipt of same by defendant, the reinstatement of the policy, if it had lapsed, and estoppel to deny the authority of Randell. The case was tried before a jury, and resulted in a verdict and judgment for plaintiff for the amounts sued for, and the defendant has appealed.

The evidence shows, and the court instructed the jury, that the policy had lapsed on January 31, 1912, by reason of the failure to pay the premium for the month of January. The evidence further shows that the January premium was paid to Edgar Randell on February 16, 1912. The court further instructed the jury that Randell was not, on said date, authorized to receive the payment of the premium, “in such a manner as to reinstate said policy, and his receipt thereof, standing alone, did not, under the law, operate to reinstate the policy.” The policy, which was introduced in evidence, contained the following provision:

“Premiums must be paid at the home office of the company on or before the date specified in the policy [the 1st day of each month], or at the pleasure of the company to a designated agent or collector; but in any case only in exchange for the company’s official receipt, signed by the president or secretary, and countersigned by such agent or collector. No notice of a premium, and no acceptance of a premium after maturity at elsewhere than its home office, is to be deemed a waiver of any provision of this policy, no matter how often repeated.”

The policy further provided:

“This policy may be reinstated, unless previously surrendered, at any time, provided the insured applies on the company’s form, and furnishes evidence of insurability satisfactory to the company, and pays all past-due premiums with interest at the rate of 5 per cent, per an-num from date when due; and provided, also, that any indebtedness to the company at date of default, with interest at the rate of 5 per cent, per annum to date of reinstatement, shall be a first lien against this policy.”

It was undisputed that neither the insured nor the beneficiary ever at any time received the company’s official receipt for the payment to Randell on February 16, 1912; and it is also undisputed that the insured did not apply to the company for reinstatement of the policy by furnishing evidence of insura-bility in accordance with the provisions of the policy. It is also undisputed that the premium paid to Randell on February 16, 1912, was paid by Randell to Dr. Bergfield, a representative of the company in the city of Houston, and was kept by him and never returned to the insured or the beneficiary.

The main question presented upon this appeal is whether Dr. Bergfield was such an agent of the company as that the payment to and retention by him of the January premium after its maturity, with knowledge of all the facts, amounted to a waiver of forfeiture by the company. The policy was issued December 1,1910, and the insured died February 28, 1912. The evidence warrants a finding that Randell was the superintendent of appellant’s business in the city of Houston nearly, if not quite, all the time from the date of the issuance of the policy until the 1st day of February, 1912. During that time he was authorized to receive payment of premiums and was intrusted with the official receipts, which he issued for payments made to him. The insured made payments of premiums to him from the date of her policy up to the maturity of the premium which fell due on December 1, 1911, for which Randell issued the appellant’s official receipts. The November, 1911, premium was not paid that month, and not until some time in December, when it and the December premium were paid at the same time, and official receipts were given by Randell therefor. On February 1, 1912, Randell was informed by a duly authorized agent of appellant that he was not to make collection of premiums after that date, but that the official receipts had been placed in the hands of Dr. Bergfield, of Houston, and that the latter only would issue official receipts for premiums paid after that date. Notwithstanding this, Randell continued to collect premiums for five or six months thereafter, executing pencil receipts to the parties paying, and then turn over to Dr. Berg-field the premiums so collected by him, and obtain from the doctor official receipts, which he would afterwards deliver to the parties paying. The assured did not pay her January, 1912, premium when due, and thereupon the policy lapsed. However, Randell collected the January and February premiums on February 16,1912, which he paid over to Dr. Bergfield, who received and retained them, and never returned or offered to return them knowing at the time hie received them that the January premium was paid after maturity and at a time when the appellant could have declared the policy forfeited for failure to pay it at the time stipulated 'in the policy. It was shown that it was the custom of the appellant to accept payments from policy holders who were two or three months in arrears. T. E. Flick, secretary of appellant, testified that at the time in question Dr. Bergfield was the man who was authorized to take the money and send ■it to the company. “I think Mr. Randell sent the Capers money for January and February to Dr. Bergfield.” The policy does not stipulate that the overdue premiums shall be considered as earned.

On the facts above detailed we are of the opinion that the payment of the past-due premiums to an agent of the appellant who was authorized to collect it, such as Dr. Bergfield unquestionably was, was notice of payment and collection to the insurance company, and that the failure of the company upon such notice to claim a forfeiture was a waiver by the company of the right thereafter to declare a forfeiture. Continental Casualty Co. v. Jennings, 45 Tex. Civ. App. 14, 99 S. W. 426; Cohen v. Insurance Co., 67 Tex. 327, 3 S. W. 296, 60 Am. Rep. 24; Insurance Co. v. Freeman, 19 Tex. Civ. App. 632, 47 S. W. 1025; Hibernia Ins. Co. v. Malevinsky, 6 Tex. Civ. App. 81, 24 S. W. 804. In the case last cited it is said:

“There was no error in overruling the de-, murrer. _ An insurance company is estopped from claiming a forfeiture of its policy when it accepts and retains the premium with notice of the facts constituting the forfeiture. The company itself would be deemed to have notice if its agent, with power to issue the policy and receive the premium, had notice at the time he exercised such power. The same principles apply when an agent, with knowledge of acts on the part of assured working a forfeiture, having authority so to do, accepts a premium for a renewal of the policy, or additional consideration for increased risk. In such cases the forfeiture is waived by the company if it retain the premium or additional price. It is the duty of the company to object, and claim forfeiture, at the time it is deemed to have notice of a breach of the conditions of the policy. It cannot receive the premium without objection, and, upon loss, claim the right to repudiate. It should act promptly; otherwise, it waives the forfeiture. The company is affected with notice through the knowledge of its agent, legally authorized to do the act constituting waiver. The waiver is by the company, and will bind the company, upon the doctrine that it has notice through its agent. Insurance Co. v. Lee, 73 Tex. 646, 11 S. W. 1024; Insurance Co. v. Ende, 65 Tex. 118; Morrison v. Insurance Co., 69 Tex. 363, 6 S. W. 605 [5 Am. St. Rep. 63]; Cohen v. Insurance Co., 67 Tex. 326, 3 S. W. 296 [60 Am. Rep. 24] ; Insurance Co. v. Shook, 59 Tex. 510; Insurance Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Insurance Ass’n v. Griffin, 66 Tex. 232, 18 S. W. 505; Insurance Co. v. Lyons, 38 Tex. 254; Wood, Ins. pp. 89, 90; Insurance Co. v. Garfield, 60 Ill. 124 [14 Am. Rep. 27] ; Hadley v. Insurance Co., 55 N. H. 110; Sherman v. Insurance Co., 39 Wis. 108; Richmond v. Insurance Co., 79 N. Y. 239; Insurance Co. v. Wells, 89 Ill. 82; Fiskbeck v. Insurance Co., 54 Cal. 422; Roberts v. Insurance Co., 41 Wis. 321; Pitney v. Insurance Co., 65 N. Y. 23; Rowley v. Insurance Co., 36 N. Y. 550; Von Bories v. Insurance Co., 8 Bush (Ky.) 133; Horwitz v. Insurance Co., 40 Mo. 557 [93 Am. Doe. 321] ; Hubbard v. Insurance Co., 33 Iowa, 325 [11 Am. Rep. 125]; Couch v. Insurance Co., 37 Conn. 248; Pechner v. Insurance Co., 6 Lans. (N. Y.) 411; Post v. Insurance Co., 43 Barb. (N. Y.) 351; Insurance Co. v. Taylor, 73 Pa. 342; Gloucester Mfg. Co. v. Howard Fire Ins. Co., 5 Gray (Mass.) 498 [66 Am, Dec. 376]; May, Ins. 369; Insurance Co. v. Gallatin, 48 Wis. 36, 3 N. W. 772. The agent’s powers may be restricted, and he may not have the power to waive; but this does not affect the power of the company to waive. It is the duty of the agent to inform his principal of acts known to him inconsistent with the terms of the policy, and, if he fail to do so, it is the fault of the agent towards his principal, and will not exonerate the latter. Von Bories v. Insurance Co., supra.”

In Insurance Company v. Freeman, above cited, the San Antonio Court of Civil Appeals states the law to be as follows:

“It is a well-established principle that if a forfeiture has occurred for breach of any condition in an insurance policy, and the company thereafter, with knowledge of the facts, unconditionally accepts and retains a premium, it thereby waives the former forfeiture, and is estop-ped thereafter from setting up the grounds of forfeiture as a defense. 2 Joyce, Ins. p. 1369, and authorities cited in note 151; Insurance Co. v. Hanna, 81 Tex. 487, 17 S. W. 35; Morris v. Insurance Co., 43 S. W. 898; 2 Beach, Ins. p. 77; Walsh v. Insurance Co. [30 Iowa, 133] 6 Am. Rep. 664; Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500 [30 L. Ed. 644]; McGurk v. Insurance Co., 56 Conn. 528, 16 Atl. 263 [1 L. R. A. 563]. As is said by Justice Gray in Insurance Co. v. Raddin, supra: ‘If insurers accept payment of a premium after they know there has been a breach of a condition of the policy, their acceptance of the premium is a waiver of the right to avoid the policy for that breach. Upon principle and authority there can be no doubt about this. To hold otherwise would be to maintain that the contract of insurance requires good faith of the assured only, and not of the insurers, and to permit insurers knowing all the facts to continue to receive new benefits from the contract, while they decline to bear its burdens.’ ”

From Mechem on Agency, 718, 719, we quote the following:

“It is a general rule, settled by an unbroken current of authority, that notice to an agent, when acting within the scope of his authority and in reference to a matter over which his am thority extends, is notice to the principal. This rule rests upon two theories. The first is based on the legal identity of the agent of the principal, in the fact that the agent, while keeping within the scope of his authority, is, as to the matter embraced within it, for the time being the principal himself, or at all events the alter ego of the principal. The other is based upon the rule that it is the duty of the agent to disclose to his principal all notice or knowledge which he may possess, and which is necessary for the principal’s protection or guidance. This duty the law presumes the agent to have performed, and imputes to the principal whatever notice or knowledge the agent then possessed, whether he has in fact disclosed it or not.”

The provisions of the policy hereinafter copied were inserted for the benefit of appellant, and could be waived by it, and in fact were waived by it, by the receipt and retention of the past-due premium by its agent, who was duly authorized to receive it, with knowledge of the fact that it had not been paid within the time required by the contract of insurance. Insurance Go. v. Fitzgerald, 1 White & W. Civ. Gas. Gt. App. sec. 1347; Equitable Life Assurance Co. v. Ellis, 105 Tex. 537, 147 S. W. 1152, 152 S. W. 625.

The court charged the jury, in the event they found for plaintiff, to award himi the amount of the policy, together with 12 per cent, thereof as a penalty, and attorney’s fees of $50. It is complained that the court erred in instructing the jury that they might find for him for the penalty and attorney’s fees, for the reason that plaintiff was not entitled to recover therefor unless he had made demand on the company for the payment of the policy, and that there was no evidence that plaintiff had made such a demand. It was agreed, and the agreement put in evidence, that $50 was a reasonable attorney’s fee, in ease it was found that plaintiff was entitled to recover. Plaintiff pleaded that he had made written demand on defendant for the payment of the policy, and that the demand was refused. Acts 1913, p. 257, in force at the time this case was ■tried, contains this provision:

“The defendant in his answer shall plead to each fact alleged in the plaintiff’s petition, and either admit or deny the same, or deny that he has any knowledge or information thereof sufficient to form a belief, and any fact not denied by the defendant or which he does not deny that he has knowledge or information thereof sufficient to form a belief shall be taken as confessed.”

The failure of defendant to deny the allegations of the petition as to the demand for payment obviated the necessity for plaintiff to prove it.

The above sufficiently disposes of all of appellant’s assignments of error adversely to its contentions. The judgment of the court below is affirmed.

Affirmed.
      <®=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GENERAL BONDING & CASUALTY INS. CO. v. McCURDY.
    (No. 5567.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 2, 1916.
    On Motion for Rehearing, March 8, 1916.)
    1. Exceptions, Bill of <§=>40 — Filing—Extension of Time.
    An order extending time to file bills of exceptions may be made after the time for filing previously given has expired, whether the court be one whose terms are more or less than 8 weeks.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Gent. Dig. §§ 44, 45, 57-64; Dec. Dig. <§=>40.j
    2. Witnesses <§=>143 — Competency—Transaction with Decedent — Assi&noe of Claim.
    The assignor of a claim, on which an executrix is sued, is, under Rev. St. 1911, art. 3690, prohibiting either party to testify against the other to a transaction with decedent, incompetent to testify for the assignee, as he would be to testify for himself, if suing on the claim.
    [Ed. Note. — For other cases, see Witfiesses, Gent. Dig. §§ 619-624; Dec. Dig. <§=>143.]

      3. Mechanics’ Liens ©=271 — Enforcement —Petition.
    Petitions seeking to establish liability by reason of mechanics’ liens, are subject to general demurrer, they not alleging the date of giving notice of claims, nor the amount of the contract price unpaid to the contractor at the time of the notice, or the amounts thereafter paid to him.
    [Ed. Note. — Eor other cases, see Mechanics’ Liens, Gent. Dig. §§ 494-513; Dec. Dig. ©= 271.]
    4. Appeal and Eeeoe ©=501 — Overruling GENERAL DEMTJRKER — EXCEPTIONS.
    Whether a petition is subject to general demurrer is a question of fundamental error, so that it is immaterial that exceptions to the overruling of such demurrer do not appear in the transcript.
    [Ed. Note. — Eor other eases, see Appeal and Error, Gent. Dig. §§ 2300-2305; Dec. Dig. ©= 501.]
    5. Frauds. Statute oe ©=143 — Pebsons to Whom Statute is Available.
    The defense of statute of frauds being a personal one, and not being pleaded by plaintiff against interveners, cannot be invoked in favor of plaintiff against them by a defendant who was not a party to the contract between plaintiff and interveners.
    [Ed. Note. — Eor other cases, see Erauds, Statute of, Gent. Dig. §§ 344-350; Dec. Dig. ©= 143.]
    6. Principal and Surety ©=82 — Liability —Extent—Building- Contract.
    The owner of a building cannot on default of the contractor make promises to pay claims due by the contractor, thus enlarging his liability, or make contracts for labor and material, and hold the contractor’s bondsman liable therefor, except as provided by the building contract or bond.
    [Ed. Note. — Eor other cases, see Principal and Surety, Gent. Dig. § 127; Dee. Dig. ©==>82.]
    On Motion for Rehearing.
    7.Appeal and Eeroe 3=854 — Review—Reasons eoe Decision.
    A judgment being correct, though for a different reason than stated by the court, should be affirmed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. ©=854.]
    8. Principal and Agent ©=157 — Agent of Two Parties — Oontract.
    One who is agent both of a building contractor and the building owner, cannot by approving of, as agent of the contractor, a contract which, as agent of the owner, he made with laborers and materialmen, deprive the contractor of any right, as one cannot contract with himself. •
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 588; Dec. Dig. ©=157.]
    9. Principal and Surety ©= 101 — Release of Surety — Alteration of Oontract.
    A material alteration of the contract by building contractor and building owner will release the contractor’s bondsman.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. ©=
    Appeal from District Court, Bee County; F. G. Ohambliss, Judge.
    Action by Elizabeth McCurdy, executrix of W. O. McCurdy, deceased, against the General Bonding & Casualty Insurance Com-
    pany and another. From the judgment against the named defendant, it appeals, and plaintiff complains of judgments in favor of interveners.
    Reversed in part.
    Beasley & Beasley and J. Ed Daugherty, all of Beeville, for appellant. Dougherty & Dougherty, B. D. Tarlton, Jr., H. S. Bon-ham, W. G. Gayle and G. C. Robinson, all of Beeville, for appellee.
   MOURSUND, J.

On January 27, 1913, W. O. McCurdy and L. W. Franks entered into a building contract, whereby Pranks agreed to provide all the materials and perform all work, and deliver the building completed, free of all liens, by June 1, 1913, for $10,445.-35, to be paid in installments upon certificates of the architects, Stephenson & Helden-fels, but 20 per cent, to be retained until completion of the building and paid within 10 days thereafter. Pranks executed a bond guaranteeing the faithful performance of his contract, with the. General Bonding & Casualty Insurance Company as surety. Mc-Curdy died on June 19, 1913, and his widow, who was the sole devisee under his will, qualified as independent executrix in July, 1913.

The building was completed and accepted by Mrs. McCurdy on September 1, 1913, at which time the sum of $2,081.15 remained unpaid to Pranks. Some time after August 20th F. W. Heldenfels, the architect, who personally supervised the construction of the building, in order to make up a statement of the final condition of the job, and to arrive at what Franks owed on the building for material and labor, went around and talked to each of Franks’ creditors personally and got “a statement of what they had against the building.” In this way it was ascertained that Franks owed more than the portion of the contract price on hand would satisfy. On September 5, 1913, the attorneys for the estate of McCurdy telegraphed the General Bonding & Casualty Insurance Company that they had just been informed by Heldenfels, architect for the McCurdy building, that there was $2,081.15 due to Franks, and $3,876.26 in claims due by Franks, making a difference of $1,795.11 which might become a lien on the building, and for the company to give this immediate attention. A reply was telegraphed on the same day as follows: “Architects certainly know the usual custom of prorating funds left on hand.” Acting upon this reply, Hel-denfels, on September 9th, prorated the $2,081.15 among various creditors of Franks (all of whom, save probably one, were in-terveners in this suit) paying each approximately 53% per cent, of 'his debt, and he informed the creditors if they would file liens for the balance of their claims the McCurdy estate would pay them. Most of the creditors filed statements with the county clerk, seeking to fix a mechanic’s or materialman’s lien under the statute.

The claims against Franks after the completion of the building and held by inter-veners in this suit, briefly, were as follows:

(1) Heldenfels Bros., lumber and other material, prosecuted by J. 0. Wood, assignee of Hel-denfels Bros. $1,139 33
(2) Beeville Windmill & Plumbing Oo. material. 132 23
(3) Noble and Woodruff, hauling... 223 90
(4) O. B. French, bricklaying. 53 81
(5) a. Francis Michot, labor and material.$14 21
b. Burrows Hardware Company, material 23 22
c. S. I. De Loach, plasterer . 18 69 56 12
(6) Homer Botts and. 14 others, day laborers, claims totaling. 105 26
Total . $1,709 71

Each one of the claims represented a balance due after the payment of its pro rata part of the fund of $2,081.15 on September 9th.

Some time after the completion of the building Mrs. McCurdy instituted this suit against Franks and the Bonding Company, allegingi that certain of the claimants had filed liens against the property which constituted a cloud on her title, and that others had valid claims that were liens or could be converted into liens, and that she and her deceased husband, as well as their agents and representatives, had faithfully complied with all the obligations imposed upon them in the building contract, and that the entire contract price had been paid. She alleged the facts as to the delay and prayed that the validity of all claims and liens be determined, and that she have judgment for the amount of all such claims and liens as were valid and resulted from the contra* tor’s fault, and that she recover $105 liquidated damage for delay in completion of the building.

Intervener C. E. French sued for $53.81, balance due him for work as a brick mason. His account was filed September 11, 1913. He alleged that within 90 days after accrual of the indebtedness he gave notice to Franks and plaintiff of the amounts and items of the indebtedness. He also alleged that he had a lien as admitted in plaintiff’s original petition, and that he had a lien, even though the cost exceeded the contract price, because the owner permitted him to continue his work knowing that Franks was insolvent, and that the cost would exceed the contract price. He also alleged that he was promised by the agents of the owner that his account for labor performed and to be performed would be paid; that he would not have performed said labor if it had not been for such promise.

Interveners Noble & Woodruff sued for a' balance of $223.96 for hauling material and leveling dirt. Their allegations are the same as those of French.

Francis Michot sued for a balance of $14.-21 for material, Burrows Hardware Company, for $23.22, for material, and S. I. De Loach for $18.69, for labor. The first two alleged that they had given notice to Franks and plaintiff of the amounts and items of their claims within 90 days of the accrual thereof, and that each of them filed with the county clerk a verified account within said time. De Loach’s allegation of notice and filing of account was the same as that of the other two, except that he alleged he gave notice and filed his account within 30 days after the accrual of the indebtedness. They all alleged estoppel along the lines pleaded by intervener French, as well as that the owner, by her agent, F. W. Heldenfels, expressly promised to pay their claims.

Interveners Homer Botts, J. L. Slusser, Clarence Boss, John Davis, J. W. Nolan, E. J. Canada, J. E. Click, Pete Ahasoy, M. Fernandez, Don Sauseda, Dan Tally, Oscar Bennett, E. J. Book, and F. Baldwin sued to recover small amounts due them for labor, and the Beeville Manufacturing Company, $3.93, for supplies furnished. They sued upon an express agreement by the owner to pay their claims, and also alleged estoppel by reason of the same facts pleaded by the other interveners.

The Beeville Windmill & Plumbing Company sued for $132.23, for material. Its petition contained the same allegations as that of French, with the exception that no promise on the part of the owner is relied on.

J. C. Wood, as assignee of Heldenfels Bros., sued to recover a balance of $1,139.33 due for material furnished, alleging the same facts as intervener French for the purpose of showing a lien by estoppel, and also that W. O. McCurdy promised and agreed with F. W. Heldenfels that he would pay for such material as said firm would furnish Franks for use in the construction of the building to be erected by said McCurdy. This inter-vener also alleged notice in the same general way as intervener French.

Plaintiff’s answer to each of such petitions of intervention consisted of general demurrfer, special exceptions, denial of every material allegation, and a special reply to the effect that the division of the balance on hand was' made by agreement between the owner and all holders of unpaid claims, and that French was a party to such agreement, accepted his part, and is therefore estopped from setting up any further claim against plaintiff. She alleged further that she had paid the full contract price for the building, that she had complied faithfully with all the obligations of the building contract, and prayed that if any judgment was rendered against her for any amount that she have judgment against Franks and the Bonding Company for such amounts and for the sum of $105 for delay. She asserted:

“(a) That if she had made herself liable in any way on account of the manner in which she dis ■ burscd the fund of $2,0S1.15, then the Bonding Company should reimburse her because she was acting under its instructions and direction in so doing, and (b) that if she had become liable for any of the claims arising out of the construction of the building, such liability resulted from the default of the contractor, Franks, by reason of his breach of the contract in failing to ‘furnish and pay’ for all the labor and material entering into the construction of the building; it being contended that such was the effect of his contract.”

The Bonding Company, while it denied liability to plaintiff, even though plaintiff should be liable to interveners, actively defended plaintiff against interveners. It contended that under the facts, in so far as it was concerned, plaintiff’s liability was limited to the contract price of the building; that Franks had performed his contract by furnishing her such a building as she contracted for; that if she had become liable for any additional amount such liability arose out of agreements foreign to the contract with Franks; that the promises made to the claim holders were unenforceable under the statute of frauds; that authority of Heldenfels to bind the McCurdy estate by promising to pay the claims was not shown; that plaintiff had failed to faithfully perform the contract resulting in the release of the surety; and that F. W. Heldenfels was in effect a party to the suit, and incompetent to testify as to the statements of W. O. McCurdy, deceased.

No jury was demanded. Judgment was rendered in favor of each intervener for the amount of his claim against plaintiff, and in favor of plaintiff for all such sums and $105 additional damages for delay, against Franks, who did not answer, and the Bonding Company. The plaintiff and the Bonding Company perfected appeal.

At a former day of this term a motion by Mrs. McCurdy to strike out the bills of exception of the Bonding Company was overruled. The ground of the motion was that while orders extending the time within which to file bills of exception and statement of facts had been granted, such orders were made after the time had expired, which had theretofore been given. The motion was overruled upon the authority of the case of Hamill v. Samuels, 104 Tex. 46, 133 S. W. 419, in which the Supreme Court held that an order entered at the following term of court was sufficient, although the time theretofore given by the statute had expired long before such order was entered. That was a case decided in a court whose term may lást more than 8 weeks; but if the power given to extend the time may be exercised in such cases after the time given by law or previously granted has expired, the same construction must he placed upon the same words in that portion of the statute relating to cases tried in courts whose term is less than 8 weeks, and in which the extensions may be granted in vacation. Nocona Bank v. Bolton, 143 S. W. 242.

The court concluded that W. O. Mc-Curdy was liable to Heldenfels Bros, for the balance due them by reason of an express agreement to pay for all the material furnished by Heldenfels Bros, to Franks, and therefore J. C. Wood, assignee, should recover from plaintiff the amount for which he sued; that when plaintiff paid $1,314.87 to Heldenfels Bros, on September 9, 1913, she paid a debt for which she was primarily liable as between herself and Heldenfels Bros., and therefore she became liable to the other interveners for the amounts awarded them in the judgment, by reason of having written notice of their claims and. of the fact that they should have been paid before any payment was made to Heldenfels Bros. As the judgment of the court is based on the theory that Heldenfels Bros, wore entitled to recover on a promise alleged to have been made by W. O. McCurdy, we will first consider the assignment which challenges the correctness of the ruling of the court in admitting and considering the testimony upon which such holding is based. F. W. Helden-fels, who, in addition to being the supervising architect, also acted in the capacity of agent for the owner,, was a member of the firm of Heldenfels Bros., which firm assigned to J. C. Wood its claim after this suit was instituted by plaintiff. Upon his testimony concerning an agreement made with W. O. McCurdy before the material was furnished to Franks, and upon such testimony alone, is based the finding of the court that a contract was made by McCurdy to purchase such material. This testimony was objected to as coming within the purview of article 3090, R. S. 1911. Intervener Wood, as as-signee of Heldenfels Bros., sought to recover a judgment against Elizabeth McCurdy, as executrix of the will of W. O. McCurdy. We find no case directly in point, but believe that if the statute is to be given effect it must be held that F. W. Heldenfels’ testimony should not have been admitted. If every person who claims to have a contract with a deceased person can, by assigning his claim, free himself of the inhibition of the statute against testifying to transactions with the deceased, the statute, for all practical purposes, would be rendered nugatory, and might as well be abolished. It may well be doubted whether the statute is a good one, but, as long as it remains the law, the courts, while not extending it, will give it a practical construction such as will effect the purpose thereof. In the ease of Simpson v. Brotherton, 62 Tex. 170, the 'Supreme Court said:

“So the object of the act, excluding parties from testifying as to transactions with deceased persons, would be defeated by allowing one to testify to such transactions who was as fully interested in the result of the suit as any of the persons named as parties upon the record.”

Intervener Wood had made Heldenfels Bros, parties to this suit, alleging that they represented to him, in order to get him to buy their claim, that it was secured by a lien upon the building, and praying for judgment against them in the event it should appear that the claim was not secured by a lien as claimed. It is true that the Bonding Company in its pleadings suggested that Helden-fels- Bros, were improperly brought into the suit because they did not occupy the position of plaintiff or defendant, but only that of defendant in an independent suit by Wood, and prayed that the suit be dismissed as to said Heldenfels Bros. It appears that Hel-denfels Bros, filed a motion asking that they be dismissed from this suit, which motion was granted, and they were dismissed without prejudice to Wood’s claim. The order of court shows that the dismissal was not granted because of any request of the Bonding Company, but even if it had been, such fact would not deprive plaintiff or the Bonding Company of the right to object to the improper testimony. In support of our conclusion that the testimony should have been excluded, we cite in addition to the case above mentioned, the following cases: Anglin v. Barlow, 45 S. W. 828; Whitfield v. Diffie, 105 S. W. 326; Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 452; Duncan v. Herder, 57 Tex. Civ. App. 542, 122 S. W. 905.

As the court erred in holding that the claim of Heldenfels Bros, held by intervener Wood arose from a contract on the part of McCurdy to purchase from said firm such material as Franks had intended purchasing from such firm, it follows that the conclusion to the effect that said claim was not entitled to share in the distribution of the balance on hand must be declared erroneous, as well as the further conclusion that the remaining interveners were entitled to recover the amounts sued for by them because of the diversion of a large portion of the fund to the payment of the Heldenfels claim. It further appears that only the interveners Francis Miehot, Burrows Hardware Company, and S. I. De Loach attempted to plead illegal distribution of the funds, and they fail to allege any facts showing that the distribution was illegal, but merely aver that part of the fund was paid to parties “who were not looking to this fund for payment, but were relying bn W. O. McCurdy’s expressed promise to pay them.”

The petitions contain general allegations of the giving of notice to the owner and contractor of their claims, but the date of such notice is not alleged, nor is there any averment as to the amount of the contract price unpaid to the contractor at the time of the notice, or of amounts thereafter paid to the contractor. Such petitions, in so far as they sought to establish liability by reason of liens under the mechanic’s lien statutes, were all subject to general demurrer. Tenison v. Hagendorn, 155 S. W. 690, and cases therein cited. The same may be said of the petition of intervener Wood. Whether a petition is subject to general demurrer is a question of fundamental error, and it is immaterial that exceptions to the overruling of such demurrer do not appear in the transcript. City of San Antonio v. Bodeman, 163 S. W. 1044, and cases therein cited.

The only question left to be considered with regard to interveners’ claims against plaintiff arises upon the allegations and the findings of the court with respect to verbal promises made by F. W. Heldenfels, as agent of the owner, to pay the claims of certain of the interveners. The Bonding Company interposed against these promises the statute of frauds, and contends that some of the claims are entirely those of Franks, as to which claims the promise was merely one to answer for debt of another, and that others are partially debts of Franks, and the evidence fails to disclose to what extent the claims cover original undertakings on the part of the McCurdy estate, and therefore no recovery can be sustained as to such claims upon the verbal promises. These contentions are undoubtedly sound, provided the Bonding Company has the right to invoke the statute of frauds in behalf of plaintiff. Plaintiff did not plead the statute of frauds, and we think that in view of the fact that such defense is a personal one, the Bonding Company, which was not a party to the contract, cannot invoke the statute in behalf of plaintiff. If the contracts made in behalf of the McCurdy estate would have been binding as between plaintiff and the Bonding Company, if made in writing, they are equally binding upon the Bonding Company when made by parol. We therefore conclude that the judgment rendered in behalf of interven-ers C. E. French, Noble & Woodruff, Francis Miehot, Burrows Hardware Company, S. I. De Loach and Homer Botts et al. should be affirmed as against plaintiff. The Beeville Windmill & Plumbing Company did not rely upon any promise to pay its claim made by or in behalf of plaintiff, and its judgment against plaintiff must be reversed. The judgment of J. C. Wood cannot be sustained upon any theory pleaded by him, as has hereinbe-fore been pointed out.

We come then to the questions relating to the claim of plaintiff against the Bonding Company for all sums which plaintiff may be adjudged to pay interveners. It is, we think, clear that W. O. McCurdy, and his executrix, could not make original contracts for work or material, thus giving those furnishing the same a lien under the Constitution, unless they were authorized to do so by the terms of the contract between McCurdy and Franks or the bond itself. The contract provided that if the contractor should at any time refuse or neglect to supply a sufficiency of workmen or materials, such refusal or neglect or failure being certified by the architects, the owner should be at liberty, after 10 days’ written notice to the contractor, to provide such labor and materials, and to deduct the cost thereof from any money then due or thereafter to become due the contractor under the contract; and If the architects shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall be at liberty to terminate the employment of the contractor and to complete the work, etc. It also provides that:

“If at any time there shall be evidence of any lien or claim for which, if established, the owner of the said premises might become liable, and which is chargeable to the contractor, then the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such claim after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in- discharging any lien on said premises made obligatory in consequence of the contractor’s default.”

The bond provides that it is issued subject to the following express conditions, which shall be conditions precedent to the right of the owner to recover hereunder:

“(1) That the owner shall keep, do, and perform each and every, all and singular, the matters and things set forth and specified in said contract to be by the owner kept, done, and performed exclusively at the time and in the manner as in said contract specified.
“ (2) That the surety shall be notified by telegram sent to it at its home office in the city of Dallas, Tex., of any breach of said contract by the principal, or of any act on the part of the principal, or his agent or employes, which may involve a loss for which the surety may be held liable hereunder, immediately after the occurrence of such breach or act shall have come to the knowledge of the owner, or of his duly appointed representative or representatives having supervision of the completion of said contract.
“(3) That if the principal shall voluntarily abandon said contract, or be lawfully compelled by the owner to cease operations thereunder by. reason of the nonperformance by the principal of any of the terms or conditions of said contract, then the surety shall have the right, in its option, to assume the said contract and to sublet or complete the same; and, if said contract shall be assumed by the surety, then, as such contract is duly performed, any reserve, deferred payments, and all other moneys provided by said contract to be paid to the principal shall be paid to the surety at the same time and under the same conditions as by the terms thereof such moneys would have been paid to the principal, had the contract been fully performed by him. And if the owner shall complete or relet the said contract, then any forfeiture provided in said contract against the principal shall not be operative as against the surety, but all reserves, deferred payments, and all'other moneys provided in said contract which would have been paid to the principal, had the principal completed said contract in accordance with its terms, shall be credited upon any claims the owner may make upon the surety.”

It appears that Noble & Woodruff, C. E. French, De Loach, Homer Botts, and the other laborers who intervened herein quit work on the building in August before the completion of same, and refused to do any further work, unless they received assurances they would be paid, and F. W. Heldenfels, in behalf of the owner, promised each of them that the owner would pay all past due indebtedness as well as that to accrue in the future, if they would return to work, and they returned and completed tiie work. It appears that they even locked up the building. No notice of all this was given to Franks or the Bonding Company. We cannot understand upon what theory the owner can make promises to pay claims due by the contractor, thus enlarging his liability, and expect the surety company to be responsible for such judgments as may be obtained upon such promises. It may be said that had the owner failed to make such promises, the claimants would have probably given statutory notice of their claims, and then refused to do any further work, in which event if Franks had been unable to employ others, plaintiff could have done so, and held the Bonding Company for such additional expense. Such reasoning, though plausible, is fallacious, for if the owner could be thus justified in incurring liability, a surety company’s. responsibility for all sums could be fixed by the owner by promising to pay the claims. It is clear that the contract gives no such right to the owner. He has no right to make the claims against the contractor fixed and certain charges against himself by promising to pay same, but must adhere to his contract under which he is only responsible for claims which actually become liens under the law. It is true that he is given the right to incur obligations for which he can hold the Bonding Company, namely, obligations for labor and material necessary to finish the building. But here, again, certain conditions defined in the contract must justify such summary proceeding, and the owner must comply with certain conditions. In this case the owner undertook to contract for material and labor to finish the house without complying with the provisions of the contract. If conditions were sufficiently bad to justify Mrs. McCurdy, through the ever present Heldenfels, in taking matters into her own hands, the Bonding Company was entitled to notice under clause No. 2 of the bond, hereinbefore copied. We conclude that not only can the Bonding Company not be held responsible for the judgments obtained against plaintiff, all of which were obtained upon her promises, hut that through her agent, Heldenfels, she has violated the conditions of the contract and bond, and the Bonding Company is therefore released from liability thereon.

The judgment in so far as it awards any sums in favor of plaintiff against the Bonding Company is reversed, and judgment rendered, that plaintiff take nothing by her suit against said company. Those portions of the judgment whereby J. C. Wood and the Beeville Windmill & Plumbing Company are awarded sums against plaintiff are reversed, and the cause as to them remanded. The judgments in favor of E. C. Noble and E. Woodruff, C. E. French, Homer Botts, Dan Talley, J. L. Slusser, Clarence Bass, Oscar Bennett, S. I. De Loach, E. Baldwin, Jno. Davis, E. J. Canada, P’ete Ahasoy, Don Saus-eda, M. Fernandez, J. W. Nolan, Francis Michot, J. E. Click, Beeville Manufacturing Company, Burrows Hardware Company, and E. J. Book against plaintiff will be affirmed. The judgment will not be disturbed in other respects. The costs of this appeal will be taxed against Mrs. McCurdy.

On Motion for Rehearing.

Mrs. McCurdy, in her motion for rehearing, complains of the hardship worked upon her by reason of our holding that she should have pleaded the statute of frauds. She had every opportunity in the trial court of making such plea, but as it was apparently her purpose to make the Bonding Company pay for the verbal promises made by her through Heldenfels, she refrained from pleading such statute. She did not offer to let the Bonding Company fight her case against the interveners, and thus give the company, which she proposed to hold liable for such judgments as might be rendered against her, an opportunity to prepare the pleadings in her behalf and conduct the case as it saw fit. On the contrary, she elected to make her own defenses, and, as stated in our former opinion, so far as a defense which is merely a personal privilege is concerned, we do not think the Bonding Company had the legal right to demand that it be pleaded. We therefore took the view that the Bonding Company’s contentions with respect to the statute of frauds would have to be overruled. Mrs. McCurdy elected to stand or fall by the assignments of error presented by the Bonding Company, and is in no position to complain. The contention is made that the case should be reversed as to all in-terveners so she would have an opportunity to amend her pleadings and urge the statute of frauds.

If the judgment of the court is correct, although for a different reason than the one stated by the court, it should be affirmed. If the judgment is incorrect, it should be reversed and the cause remanded, except in the exceptional eases in which a rendition is authorized.

Much is said in the motion about Heldenfels being the agent of Franks in making the promise that the McCurdy estate would pay, not only future wages and claims, but also those already accrued. The trial court, as is shown by paragraph 15 of his findings of facts, found that Heldenfels was appointed agent by McCurdy in all matters relating to the construction of the building, and that he continued to act as such agent under authority from Mrs. McCurdy after McCurdy’s death. This finding is supported by the evidence, and was not excepted to by Mrs. McCurdy. The court found, as shown by paragraphs 17 and 18 of his findings of fact, that Heldenfels promised the interveners whose judgments were permitted to stand that plaintiff would pay their claims then accrued and to accrue. He made this promise as agent of Mrs. McCurdy, of course. It is doubtless true that in his capacity as agent of Franks for certain purposes, if he was such agent, he highly .approved of the contract which he made with said interveners as agent of Mrs. McCurdy. But, as he could not contract with himself, such approval could not deprive Franks of any rights, much less the Bonding Company, which had the right to insist that Mrs. McCurdy and Franks should not change the contract. While the record fails to show that Franks invested Heldenfels with any power to change the contract, if Heldenfels instead of doing an act in behalf of the owner not authorized by the contract, in his double capacity could have changed the contract so as to authorize the owner to fix his claim against the contractor by simply promising to pay all debts regardless of whether they became liens or not, then the Bonding Company would be released by such material change in the contract.

It is also contended that the promises upon which this court permitted certain of the judgments to stand were conditional, in that Heldenfels only promised to pay, provided liens were filed. We had reference to the promises made before the house was completed, which were not conditional and were pleaded arid fully established by Heldenfels’ testimony. The conditional promises referred to in the motion for rehearing related to the balances due after apportioning the fund. When all the testimony of Heldenfels is considered, it is apparent that he testified he made unconditional promises about August 17th, which were based upon his authority from Mrs. McCurdy, hereinbefore mentioned. And the trial court so found, as is fully set out in the seventeenth and eighteenth findings of fact, to which Mrs. McCurdy filed no exception. It is true that when the fund on hand was distributed in September, Held-enfels made conditional promises to pay the balance due, which promises were authorized to be made by the attorney for the McCurdy estate, but these promises were ignored by the trial court and this court.

The motion for rehearing is overruled.
      dS=>For other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HENDRICKS, J.

text:
    GREAT EASTERN CASUALTY CO. v. ANDERSON.
    (No. 927.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 16, 1916.
    Rehearing Denied March 1, 1916.)
    Appeal and Ebbob <®=»54 — Coubt op Civil Appeals — Jubisdictional Amount — Intee-est — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4977, providing that on all written contracts ascertaining the sum payable when no specified rate of interest is agreed upon by the parties to the contract, interest shall he allowed at the rate of 6 per cent, per annum from the time the sum is due and payable, the Court of Civil Appeals had no jurisdiction of an appeal from the judgment of a county court for plaintiff suing for disability indemnity due under a policy amounting to $100, exclusive of interest, on which plaintiff prayed interest, since interest upon plaintiff’s demand was interest eo nomine, and not interest as damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 175; Dec. Dig. <S=54.]
    Appeal from Lubbock County Court; B. R. Haynes, Judge.
    Action by J. W. Anderson against the Great Eastern Casualty Company. From a judgment for plaintiff, defendant appeals.
    Appeal dismissed.
    R. A. Sowder, of Lubbock, for appellant Benson & Spencer, of Lubbock, for appellee.
   HENDRICKS, J.

Anderson, the appellee, sued the Casualty Company, appellant, upon a policy of accident insurance, providing for a weekly benefit of $25, for disabilities resulting from injuries produced by accidental means, it not being necessary to de-toil the provisions and exceptions in said policy.

Plaintiff’s written cause of action in the justice and county courts asked for indemnification for 26 days’ disability only, but in reality pleaded 28 days’ disability, at the rate of $25 per week, amounting to $100 exclusive of interest; and, upon the matter of jurisdiction, we are conceding argumentatively that the averments and the demand are controlled by the case of P. & N. T. Ry. Co. v. Coal Co., 102 Tex. 479, 119 S. W. 294, as to the real “amount in controversy.”

The contested issue of jurisdiction, the subject-matter amounting to $100, arises upon the character of contract — whether interest upon that sum, produced by the contract and the demand, as prayed for by appellee, is to be regarded as interest eo nomine, or interest as damages.

The statute prescribes (article 4977):

“On all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent, per annum from and after the time when the sum is due and payable.”

The Court of Civil Appeals of the Second District, in the case of Carter Grocery Co. v. Day, 144 S. W. 865, had under consideration a contract, whereby the grocery company agreed to pay Day, as salesman, the sum of $125 per month, Day suing the grocery company for a balance on salary due under the terms of the contract. The petition, filed in the county court, averred a failure to pay oven $1,000, and the Court of Civil Appeals said that it was apparent that the contract sued on “ascertained the sum payable,” and hence the interest allowable under the contract was controlled by the statute quoted, and was interest eo nomine, and not interest as damages, holding that the county court had jurisdiction, under the allegations of the amount in controversy, for the sum of $1,000, resulting from the breach. Application for writ of error was dismissed by the Supreme Court. We are unable to distinguish that case, upon principle, from the contract, and the allegations upon the same, in this case, though we are inclined to think that the case of McNeill v. Casey, 185 S. W. 1131, cited by appellant, is in conflict, upon principle, with the Carter Grocery Co. Case. The petition in the grocery company ease having been filed for a demand of even $1,000, if the interest, as damages, had been allowable, it is clear that the district court of Tarrant county would have had exclusive jurisdiction, and the county court would not have had concurrent jurisdiction. The question of jurisdiction was a controlling one in that case. If the district court of Tarrant county would have had exclusive jurisdiction, and the county court would have been devoid of jurisdiction, it seems inevitable that the Supreme Court would have considered the application for the writ and granted the same, instead of dismissing it, for the reason that it was a district court case exclusively, and involved a constitutional question of jurisdiction.

The contract considered by the court in that case, though of a different kind, is so analogous, as stated, to the contract in this case that, upon the influence of that case we regard -the interest, according to the statute quoted as applicable to the contract, as interest eo nomine upon the amount sued for, and not as damages. The contract is one “ascertaining the sum payable.” Hence the amount, in any event, being only $100, with interest eo nomine, this court is without jurisdiction, and the appeal is dismissed.
      É=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    DOWNS et ux. v. WILSON.
    (No. 7051.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 14, 1916.)
    1. Jury <s=26 — Jury Fee — Failure to Pay.
    Where the defendants made no objection to the discharge of the last jury for the term, although present when said jury was discharged by the court, and had not deposited a jury fee until after the last jury for the term had been discharged, the trial court did not err in refusing defendant’s demand for a jury. ■
    [Ed. Note. — -For other cases, see Jury, Cent. Dig. §§ 174, 175; Dec. Dig. <3=26.]
    2. Mortgages <8=401 — Foreclosure--Nonpayment oír Taxes — Mistake in Description.
    Under Rey. St. 1911, art. 7694, providing that real estate on which the taxes have been paid, under an erroneous description given in the assessment rolls, shall not be deemed subject to the further payment of taxes and shall not be held delinquent as to payment of taxes under the provisions of chapter 15 of such statutes, relating to the assessment and collection of taxes, where a deed of trust provided that failure to pay all taxes due should mature the secured notes, and the defendant through mistake erroneously described the land as to the original grantee in rendering the assessment to the tax collector, and taxes were paid and accepted under this assessment, the payment under the law was a full discharge of taxes due on the lands, and there was no default under the terms of the deed of trust.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1160-1105, 1208, 1209; Dee. Dig. <§=^>401.]
    Appeal from District Court, Grimes County; S. W. Dean, Judge.
    Suit by Mrs. Lucy P. Wilson against Wm. Downs and wife. From a judgment for the plaintiff, the defendants appeal.
    Reversed and dismissed.
    Haynes Shannon, of Navasota, for appellants. Brigance & Bowen, of Navasota, for appellee.
   LANE, J.

This suit was instituted by Mrs. Lucy P. Wilson against Wm. Downs and wife, Savannah Downs, in the district court of Grimes county, Tex., on the 26th day of October, 1914, to recover upon five promissory notes executed by said Downs and wife for the sum of $326.26 each, bearing 10 per cent, per annum interest from date until paid, and providing for the usual attorney’s fees of 10 per cent if collected by law, etc., and further providing that a failure to pay any one of said notes at maturity, or any annual installment of interest due thereon, when due, should, at the option of the holder of any one or more of said notes, mature all of them. The first of said notes was payable on the first day of December, 1914, some time after the filing of this suit. The plaintiff also prayed for the foreclosure of a certain deed of trust given by Downs and wife upon about 140 acres of land situated in Grimes county to secure the payment of said notes. Said deed of trust, among other things, provides that in the event any one or more of said notes are not paid when due, or any installment of interest is not paid when duo, at the option of the holder of any one or more of said notes all of them shall become due and payable; that a failure of Wm. Downs to pay all taxes due on said land when due shall also, at the option of such holder, mature said notes. Plaintiff in her petition, among other things, alleges that in and by said deed of trust defendants agreed and contracted with plaintiff that a failure of defendants to keep and perform any one or more of the conditions of said deed of trust should, at the option of the holder of said notes, mature all of them. She further alleges that defendants had failed to pay the taxes due upon the land covered by said deed of trust for the years 1913 and 1914, in violation of his obligation under said deed of trust, and that she has availed herself of the option given her by said deed of trust and has declared all of said notes due and payable, and prays for judgment for the principal and interest due on said notes, and for 10 per cent, attorney’s fees, and for foreclosure of the lien on said land created by said deed of trust. Defendants in their answer admit the execution and delivery of the notes and deed of trust as alleged by plaintiff, but say that none of said notes were due when this suit was filed, that they had paid all the taxes due on said land, and have fully, performed all the obligations assumed by them under said deed of trust, and that plaintiff’s suit was prematurely brought; and that the same should be abated.

The undisputed evidence shows the execution and delivery of the notes and deed of trust by defendants as alleged by plaintiff ; that the first of said notes was to become due on December 1, 1914, subsequent to the filing of this suit; that the land covered by said deed of trust was about 140 acres, composed of eight small tracts purchased by defendant Wm. Downs at different times, all lying contiguous and forming one tract of about 140 acres of land; that about 100 acres of the same was a part of the Wing-field survey, about 38 acres on the T. Walker league, and about 3 acres on the John Moore league, in Grimes county, Tex.; that said land was the only land owned by said Downs in Grimes county, except a lot in the city of Navasota upon which Downs lived at the time of the execution of said deed of trust; that through mistake upon the part of Downs, he assessed and paid taxes on, for the year 1913, 100 acres on the T. Walker league, and 40 acres on the John Moore league, believing at the time that all his 140 acre tract was located on said leagues; that for the year 1914 he assessed 52 acres on the Walker league and 90 acres on the Moore league through mistake, and paid all taxes due thereon; that in making such payment it was his purpose to pay all his taxes on the whole of 140 acres of land owned by him; that the tax assessor of said county accepted said assessment as given by Downs, and has never assessed any of said land to any other person, known or unknown; that the collector of taxes for said county collected said taxes, due under such assessment, from Downs, and had not made, and was not making, any demand for payment of taxes on any of said land from any person, known or unknown; that the tax records did not show any outstanding taxes against said land.

On the pleadings of the parties and the undisputed evidence above set out, the case was submitted to the trial judge without a jury, who overruled defendants’ plea of premature suit, and concluded that as appellant’s assessment under which he paid his taxes for the years 1913 and 1914 did not show that any portion of the land assessed by him was a part of the Wingfield survey, the taxes on the 100 acres of said land on said survey were delinquent and unpaid, and therefore plaintiff had the right to declare all of said notes due, and to bring her suit thereon, and proceeded to render judgment for the sum found to be due on said notes, and for 10 per cent, of such sum as attorney’s fees, and for a foreclosure of said deed of trust lien. From such judgment defendants hare appealed.

Appellants’ first assignment is that the court erred in refusing the demand of defendants for a jury. The facts relative to this assignment, as shown by appellants’ bill of exception No. 2, are these: The court convened on the 25th day of November, 1914. Juries had been summoned for the first five weeks of court. This case was set for trial during a jury week in December. Thereafter the trial judge discharged the jury for the entire month of December, but had the jury for the first week of January, 1915, to appear for that week; that when this case was called, on the day set for its trial in December, it was postponed and set for trial during the first week in January, 1915, for which week a jury had been retained; that on Monday of said week the trial judge discharged the jury for that week; that when the court announced, on Monday, that the jury for the week would be discharged, counsel for defendant made no protest nor demand for a jury, and now gives as a reason for not doing so that he had no time to consult his clients as to whether or not they wanted a jury; that at some time between the time the last jury had been discharged and the calling of the case, on Thursday thereafter, counsel paid the legal jury fee to the clerk of the court, and when the case was called on Thursday, January 5, 1915, he demanded a jury. Thereupon the trial judge asked counsel for plaintiff if they were willing to try the cause before a jury to be summoned by the sheriff. Plaintiff’s counsel objected to a trial by such jury, and the court thereupon refused to allow appellants a jury, and ordered that the ease proceed to trial before the court. It appearing from the foregoing statement that appellants made no objection to the discharge of the last jury for the term, although present when said jury was discharged by the court, and, it further appearing that he had not deposited the jury fee until Thursday, January 5, 1915, the sixth week of the court, and after the last jury for the term had been discharged, we conclude that the trial court did not err in refusing appellants’ demand for a jury.

Appellants also insist that the trial court erred in not sustaining their plea in abatement, which was, in effect, that no part of appellee’s claim against appellants was due and payable at the time this suit was filed, and therefore said suit was prematurely brought and should be abated. If this contention is sustained, it must result in a reversal and dismissal of appellee’s suit, and such disposition of this appeal will render a detailed consideration of appellants’ various assignments unnecessary. We shall therefore, at the outset, proceed to consider and dispose of such contention. From what has been already said, it appears that none of the notes sued upon were due at the time this suit was filed, and that appellee bases her right to bring her suit upon said notes at the time she did upon the theory that, as appellants had agreed that if they failed to pay all taxes due on the land mortgaged when due, appellee had the right to declare all of said notes due and payable, and that appellants had failed to pay the taxes due upon said lands for the years 1913 and 1914, and that appellee had declared said notes due and payable. It also appears from the undisputed facts that appellants owned only one tract of about 140 acres of land in said Grimes county; that the land was a part of three different surveys, a part on the Wing-field, a part on the T. Walker, and a part on the John Moore surveys; that the defendants in giving said land in for taxes had, for many years, given it in as one tract; that in rendering said land for taxes the defend-antij had given it in as on the John Moore and Walker leagues only; that the tax receipts showed on their face that while the defendants had not rendered any land in the Wingfield league, they liad rendered for taxes a great deal more in the Walker and Moore leagues than they owned in said Walker and Moore leagues; that the failure of the defendants to render the land in the Wingfield league was due to a mistake and was simply a misdescription; that the defendants had' paid all of the taxes assessed against them, and had paid on all of the land owned by them; that the defendants were not listed as delinquents for either the year 1913 or 1914, or any other year; that the land upon which defendants had paid taxes for the year 1913 and 1914 was the same identical land described in plaintiff’s petition, and it was all of the land owned by these defendants, except a lot in Navasota; and that the mistake in the assessment was due to the fact that the defendants had not rendered it correctly as to original grantee. These defendants had paid taxes on all of the land owned by them and described in plaintiff’s petition. Appel-lee’s contention is that as the tax assessment and receipt for payment of taxes for the years 1913 and 1914 show that appellants assessed and paid taxes on the land situated on the T. Walker and John Moore leagues, and does not show that he assessed any land on the Wingfield survey, so much of the land as was on the Wingfield survey was not assessed nor the taxes paid thereon for said years, and that therefore appellee had the right, under the terms of said deed of trust, to declare all of the notes given by appellants to her due and payable, and to bring her suit at the time she did, and that the suit was not therefore prematurely brought. Article 7694, Revised Statutes of 1911, provides that, real estate which may have been rendered for taxes and paid under erroneous description given in assessment rolls shall not be deemed subject to tbe further payment of taxes, and shall not be held delinquent as to payment of taxes, under the provisions of chapter 15 of said statutes, relating to the assessment and collection of taxes. We do not think that it can be reasonably contended, and certainly not justly contended, that the collector of taxes for Grimes county would be authorized, under the law above referred to, to accept payment of taxes due by appellants upon their said defective assessment when tendered and for which he had issued his receipt, and then thereafter collect a second tax upon the property so defectively assessed, because said property had not been assessed in strict conformity with the law. Under the law the payment of the taxes upon the 140 acres of land by Downs, though under a defective or erroneous description, was a full discharge of the taxes due on said land (McMickle v. Rochelle, 125 S. W. 74; Hollywood v. Wellhausen, 28 Civ. App. 541, 68 S. W. 329), and it follows that at the time appellee brought her suit^ap■pellants were not in default in the payment of the taxes due on the land mortgaged for the years 1913 and 1914, or for any other year. Appellee had no legal right to declare all or any of the notes in question due, and therefore her cause of action was prematurely-brought, and should have been dismissed under the plea of appellants, and the undisputed evidence.

Having reached the conclusions above expressed, it is here ordered that the judgment of the lower court be reversed, and that this cause be dismissed.

Reversed and dismissed'.
      <8=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    GULF, C. & S. F. RY. CO. v. PHILLIPS et al.
    (No. 7030.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 14, 1916.)
    1. Railroads <S=>390 — Injury to Person on Track — Duty oe Engineer.
    The duty of a locomotive engineer to use all means within his power consistent with the train’s safety to stop to avoid striking decedent, who was discovered sitting on the track, did not arise until, after seeing decedent, it was reasonably apparent to the engineer that decedent probably could not or would not remove himself from the track in time to avoid being struck.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. <S=390.J
    2. Railroads <§=>401 — Injuries on Track— • Instruction.
    In an action against a railroad for a death on its track, where there was evidence that the engineer discovered decedent sitting on the track at a distance, instruction on discovered peril failing to state that defendant was not required to stop its train until it was reasonably apparent to the engineer that decedent probably could not or would not save himself was reversible error.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. <⅞==>401.]
    Appeal from District Court, Burleson County; Ed. A. Sinks, Judge.
    Action by Luella Phillips and others against the Gulf, Colorado & Sante Fé Railway Company. From a judgment for certain of the plaintiffs, defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellant. A. B. Gerland and Jesse Garrett, both of Caldwell, for appellees.
   McMEANS, J.

Allen Phillips, while upon the railroad track of the Gulf, Colorado & Santa Fé Railway, was run over and killed by one of its trains, and this suit was brought by his children and heirs at law to recover damages sustained by them by reason of his death, upon the ground that the operatives of the train, after discovering the said Allen Phillips upon the track and his perilous situation, failed to use all the means at their command, consistent with the safety of the train, to stop the train before striking him, and that but for such failure the said Allen Phillips would not have been run over and killed. A trial before a jury resulted in a verdict and judgment for certain of the plaintiffs for the sum of $750, from which the defendant has appealed.

The evidence raised the issue of discovered peril, and on that issue the court in the first paragraph of its charge instructed the jury as follows:

“If you believe from a preponderance of the evidence * * * that the engine and train of the defendant company ran against and killed the said Allen Phillips, and that before such killing the engineer operating the engine of said train saw the said Allen Phillips sitting on or beside defendant’s railway track, and. that after he had discovered him to be a man failed to use all the means at his command consistent with the safety of the train to keep from running over the said Allen Phillips, and, had he so used all said means at his command to keep from running over him, that said train would have been stopped in time to have avoided striking him, and the accident would not have occurred, then you are instructed to return a verdict for the plaintiffs and assess their damages as hereinafter charged.”

By its third assignment of error appellant complains that:

“The court erred in the first paragraph of its charge to the jury, because the same fails to instruct the jury that the defendant was not required to stop said train until the operatives of same realized that the deceased, Allen Phillips, would not remove himself to a place of safety.”

Evidence was adduced at the trial from which the jury could reasonably have believed that the engineer saw the deceased when he was at a distance from him of 1,798 feet; that the deceased was sitting on one of the rails with his back toward the center of the track, his legs extended in the direction, he was facing, his arms lying across his knees, and his head hanging forward; that, if the engineer had then used all the means at his command to stop the train, he could have stopped the same before reaching the deceased, and thereby have avoided running over him. It was not merely the discovery of the deceased upon the track that called forth the duty of the engineer to use all the means within his command consistent with the safety of the train to stop the train in order to avoid coming in contact with the deceased; that duty did not arise until after seeing the deceased upon the track it was reasonably apparent to the engineer that the deceased probably could not or would not extricate himself from his position of danger in time to avoid being struck. Higginbotham v. Railway, 155 S. W. 102S, and authorities cited. The court did not embrace in its charge this element in the rule of discovered peril, but, in effect, instructed the jury that plaintiff was entitled to recover if, after the engineer saw that the deceased was a man, he failed to use all the means at his command consistent with the safety of the train to keep from running over the deceased, provided that by the use of said means the train could have been stopped before running over him. We think that the omission of this element in the court’s charge was affirmative error, and in view of all the evidence in the case requires a reversal of the judgment.

The appellant attempted to have the charge above mentioned corrected by requesting the court to give to the jury a special charge in this language:

“You are instructed that the only duty the operatives of defendant’s train owed to the deceased was, after they discovered that he was a man, and that he could not and would not remove himself to a place of safety, to use all the means at hand consistent with the safety of the train to stop said train and avoid injuring him.”

The refusal of the court to give the special charge is made the basis of appellant’s second assignment of error. We think that the charge is inaccurate, and that the refusal to give it was not error. By its terms the jury were told that the duty to use all the means at hand to stop the train did not arise until the operatives discovered that the deceased would not or could not remove himself to a place of safety, which is equivalent to an instruction that the operatives must have known that the deceased would not or could not remove himself before the duty to try to stop by the use of the means at hand arose. In Higginbotham v. Railway, supra, this court, speaking through Chief Justice Pleas-ants, says;

“If the doctrine of discovered peril only applied when the operatives of a train were certain that the person injured was in peril of life and took no steps to save him when his injury could have been prevented, the necessary proof in every case which discovered peril is ground of recovery would show a case of murder or criminal negligence. Such proof is not necessary.”

In Railway v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442, writ of error refused, former Chief Justice Gill, speaking for the court, says:

“There are loose expressions in cases from courts of the highest authority which tend to support the contention that, in order to justify a recovery in such a case, the engineer must actually know that deceased will not leave the track. This is notably true in Railway v. Shetter, 94 Tex. 199, 59 S. W. 533, in which occurs the expression: ‘ * * * a, person walking negligently along a railway track in front of a moving train will surely be hurt unless the train stops or he gets out of the way. In a sense, he may be said to be in danger, but those controlling the train are not required to assume that by his negligent failure to act he will remain in danger. It is only when they realize that he cannot or will not get out of the way that the duty of averting the collision arises. * * * ’ One might infer from this that one who, in fact, saves himself at the last moment, was never, in fact, in peril, and that until the engineer knows that one cannot or will not leave the trade in front of his moving engine he has not realized that person’s peril. But neither in the decision in which, that language was used nor in the latter case (Railway Co. v. O’Donnell, 99 Tex. 636, 92 S. W. 409), in which Justice Brown quotes it, is it used in the sense in which appellant construes it. This is made clear by thei language of Judge Brown immediately preceding the quotation in O’Donnell’s Case, supra, as follows: ‘If O’Donnell was negligent, then, to render the company liable, the evidence must show that O’Donnell was in a place of danger when seen by the employes of the company, that the men in charge of the engine saw him and realized that he was in a dangerous position, and also that he either could not or would not probably extricate himself from the dangerous situation. * * * ’ The authorities, when rightly construed, are one on the proposition that, in order to give rise to this new duty resting upon the discovery of peril, it is not requisite that the engineer must know that disaster is inevitable unless he himself can avert it. It is enough if he knows the person injured was in a place of danger from which he probably could not or would not extricate himself in time. Railway v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639, and authorities cited.”

Because of the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and. remanded.
      <g=»iror other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes