author: RASBURY, J.

text:
    FRENCH v. DE MOSS.
    (No. 7401.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 16, 1915.
    Rehearing Denied Dec. 11, 1915.)
    1. Druggists <&wkey;10 — Civil Action foe Injuries — Sufficiency of Evidence.
    In an action for injuries caused by defendant’s having furnished plaintiff, in place of acet-anilid headache tablets, poisonous antiseptic tablets, evidence held sufficient to support verdict for plaintiff.
    [Ed. Note. — For other eases, see Druggists, Cent. Dig. § 9; Dec. Dig. <&wkey;>10.]
    2. Appeal and Eeeoe <&wkey;1001 — Review — VERDICT.
    The appellate court cannot disturb a verdict for insufficiency of the evidence to support it, unless the verdict is manifestly against the evidence, or inadequate under it, or contrary to it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3984; Dec. Dig. <S=j1001.]

      3. Appeal and Eeboe <&wkey;1170 — Habmless Ebeob — Misnomeb of Plaintiff — Statute.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1628, providing that there shall be no reversal for want of form, provided sufficient substance be contained in the record to enable the court to determine the case on its merits, where entry of judgment for plaintiff was for Sallie De Moss, the name of a deceased former husband, the name of her husband at the time of the trial being Keepers, who had abandoned her, but from whom she had not been divorced, the amended petition alleging the facts and seeking recovery under the name of Keepers, verdict being for the “plaintiff,” the misnomer of plaintiff in the judgment entry was a clear misprision, and not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Mrs. Sallie De Moss against C. E. French. Judgment for plaintiff, and, defendant brings error.
    Judgment corrected and affirmed.
    E. P. Dougherty and W. H. Clark, both of Dallas, for plaintiff in error.
   RASBURY, J.

Defendant in error sued plaintiff in error for damages for personal injuries charged to be due to the negligence of the plaintiff in error. The negligence alleged was the act of plaintiff in' error in selling defendant in error poisonous antiseptic tablets (when she requested harmless acetanilid headache tablets), one of which she swallowed, and as a result of which she became dangerously and nearly fatally ill, was confined in bed for a period of three weeks, unable to perform her duties as mistress of a boarding house for about four months, and from which she had not entirely recovered at the time she filed her suit.

The essential facts deducible from defendant in error’s testimony are that defendant in error, who lived in the city of Dallas, while suffering from a severe headache, sent her nine year old son to a neighboring drug store to purchase some acetanilid tablets, a harmless preparation for headache. The boy called at the drug store and made known his wants to plaintiff in error’s clerk, who in lieu of acetanilid tablets, gave him antikammia tablets, also a harmless headache cure. Upon receipt of the antikammia tablets, defendant in error returned them by a young man about 20 years of age, named Worden, who boarded with defendant in error, with instructions to advise the clerk to send her acetanilid tablets as originally requested. Worden went to the drug store and delivered the message to plaintiff in error’s clerk, again naming the kind of tablets desired, whereupon the clerk refilled the box, wrote something upon it, and gave it to Worden, who in turn delivered them to defendant in error, who was in a dark room at the time, and who, due to pain of her headache, and because she assumed the tablets were what she had requested, swallowed one. The tablets were in fact antiseptic tablets and poisonous, and, as a result of swallowing one, defendant in error was made ill and suffered in the manner alleged in her petition.

The essential and divergent facts deducible from the testimony of plaintiff in error are that on the second visit Worden in fact asked for antiseptic tablets, whereupon the clerk explained to him that they were poisonous. Also that he wrote the word “Poison” on the box containing the tablets. Worden denied that he asked for antiseptic tablets or that the clerk made any statement that the tablets actually furnished him were poisonous. It was undisputed that the last tablets had on them in raised letters the word “Poison.” It was also undisputed that they were returned in the original box which contained the antikammia tablets, and that there was written on the box what some of the witnesses said was “Paid” and what some said was “Pois.” The box did not have on it the usual skull and crossed bones. Upon trial before jury, verdict was for defendant in error, from which judgment this appeal is taken.

The effect of all assignments of error presented by the plaintiff in error, save one, which will be considered separately, is that the evidence is insufficient to sustain the verdict of the jury and the judgment of the court thereon. These assignments have made necessary a consideration of the evidence, and we have in that respect not only read and considered the evidence assembled in the brief of the plaintiff in error, but have, as well, read and carefully considered all the evidence contained in the statement of facts. From such consideration we have deduced the facts related above, and we conclude that it cannot be said that the verdict of the jury is manifestly against the evidence or inadequate with or contrary thereto. Until the evidence presents such a case, we are without authority to disturb the verdict on such issue. We might, in deference to counsel, discuss at length the facts and the inferences deducible therefrom which, in our opinion, sustain the verdict of the jury; but, since ultimately the issue to be decided is whether upon the facts found the jury was authorized to render the verdict it did, we will be expected to do no more than state our conclusions upon the facts as found, which we have done.

The remaining assignment of error asserts that the judgment of the court is not in accord with, nor supported by, the pleading. This issue is based upon the fact that Sallie Keepers was the real plaintiff, whereas judgment was rendered for Sallie De Moss. The transcript discloses that all pleading filed in the case in the court below was styled Sallie De Moss y. Clarence French, save the amended petition of defendant in error; obviously indicating that by her original petition, which is not included in the transcript, she sought recovery as Sallie De Moss. Upon trial she testified that her first husband, who was dead, was named De Moss, and that at the time of the trial she was the wife of Keepers (erroneously written Capers in the stenographic report of the evidence), who had abandoned her, but from whom she had never been divorced. By her amended petition, the only pleading of defendant in error shown in the record, she alleged as much and sought judgment under the name of Keepers. The verdict of the jury was for the “plaintiff,” who in fact was Sallie Keepers. The judgment entry, however, is in favor of Sallie De Moss. Such entry was clearly a misprision, and the error, in view of the record, is technical and not reversible, since from the recoi’d it is clear that it was the intention of the jury and the jury in fact did render judgment for defendant in error, who is shown by the record to be Sallie Keepers. Vol. 1, art. 1628, Vernon’s Civ. Stats.; Terry v. French, 5 Tex. Civ. App. 120, 23 S. W. 911.

The judgment entry will be corrected so as to read in favor of the plaintiff below, Sallie Keepers, and as corrected the judgment will be affirmed.

Affirmed.
      cg^Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       other a see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    PROVINE v. FIRST NAT. BANK OF HONEY GROVE et al.
    (No. 1501.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1915.
    On Motion for Rehearing, Dec. 2, 1915.)
    1. TROVER AND CONVERSION &wkey;»4 — PARTIES Liable.
    Even if plaintiff had a lien on cotton, which C., his tenant, raised, and stored in a warehouse, there was no conversion by defendant bank, making it liable to plaintiff, it not buying the cotton, but merely holding the warehouse receipts for C., and at his direction, on his selling the cotton to S. Bros., delivering the receipts to them and collecting the price from them, and crediting his account therewith, he afterwards checking out part of it to himself and giving the bank a check for the balance in payment of his debt to it.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 25-37; Dec. Dig. <&wkey;4.]
    On Motion for Rehearing.
    2. Assignments <&wkey;50 — “Equitable Assignment” — Promise to Pat erom Fund.
    An agreement to pay a debt out of a certain fund, being a mere promise, does not operate as an equitable assignment of the fund or. any part of it.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 99-105; Dec. Dig. <&wkey;>50.
    For other definitions, see Words and Phrases, First and Second Series, Equitable Assignment.]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by Mrs. L. A. Provine against the First National Bank of Honey Grove and others. From the judgment so far as favorable to the bank, plaintiff appeals.
    Affirmed.
    J. W. Gross, of Bonham, for appellant. J. M. Baldwin, of Honey Grove, for appel-lees.
   WILLSON, C. J.

Appellant, plaintiff below, sought and recovered judgment against appellee R. H. Coleman for the sum of $402, being the principal sum and interest thereon due on a promissory note for $450 payable to her order October 15, 1914, made by said Coleman February 28,1914. She also sought, but was denied, judgment against the appel-lee bank for the sum of $380, the value of certain cotton which she alleged said bank wrongfully converted to its own use at a time when she had a landlord’s lien thereon.

The contention made here is that the judgment is erroneous in so far as it denied to appellant a recovery against the bank.

It appeared from the testimony that on February 28, 1914, appellant leased certain land to Coleman for that year, and that the note sued upon represented the rent lie agreed to pay for same. Coleman gathered ten bales of cotton off the land. On September 26, 1914, he removed five of the bales therefrom and stored them, with six bales grown by him on other land, in a warehouse in Honey Grove; and on October 16, 1914, he removed the other five bales from the land and stored them, with twelve bales grown by him on other land, in the same warehouse. At the time he so stored the cotton Coleman took the warehouseman’s receipt therefor, and had the cotton insured in his own name as the owner thereof. The receipts were delivered by Coleman to the appellee bank, and that it thereafterwards held same for him. On December 5, 1914, Coleman sold the ten bales of cotton grown by him on appellant’s land and the eighteen bales grown by him on other land to Scott Bros., to whom he then directed the appellee bank to have same transferred. The appellee bank had the cotton transferred as .directed, and, having collected of Scott Bros. $960 they had agreed to pay for same, on that day credited Coleman with that sum and delivered to him a deposit slip covering same. Coleman was indebted to the appellee bank, and on December 7, 1914, paid it a part of the sum he owed it by delivering to it a check for $880 of the $960 deposited with it to his credit as the proceeds of the sale of the cotton. On the same day he checked out to himself the $S0 remaining of the $960. In the spring of 1914 appellant sold and indorsed the note sued upon to the Planters’ National Bank, and the bank was the owner of same at the time Coleman sold the cotton to Scott Bros, as stated. Afterward appellant repurchased tlie note of the Planters’ National Bank, and owned it at the time she commenced her suit.

On the facts stated it is clear, we think, that appellant’s contention should he overruled. In support of the contention appellant insists that, because the cotton was stored in a warehouse at the time Scott Bros, purchased it, a landlord’s lien existed on it in her favor by virtue of art. 5477, Rev. St., as amended by the act October 9, 1914 (Gen. Laws, 2d Sp. Sess. 33d Leg., p. 33), and section 42 of the act September 26, 1914 (Same Laws, p. 32), notwithstanding more than one month had elapsed since the cotton was removed from the rented premises. Whether the insistence should be sustained or not will not be determined, but the applicability of the statutes referred to may, it is suggested, well be doubted, in view of a stipulation in the warehouseman’s receipts that they were negotiable under his rules. As we view the case, if it should be conceded that such a lien existed on the cotton, while a cause of action, as for a conversion may have arisen against Scott Bros., the purchasers of the cotton, one did not arise in appellant’s favor against the appellee bank. It did not buy the cotton, and, so far as we can determine from the record, was guilty of no actionable wrong to appellant.

The judgment is affirmed.

On Motion for Rehearing.

The contract whereby appellant leased land to Coleman was in writing. It contained a stipulation that the note sued upon was “to be paid out of the first cotton gathered and sold from said above-rented place.” It appearing that the ten bales of cotton mentioned in the opinion as having been grown on appellant’s land was all the cotton Coleman grew thereon, it is contended in the motion that the effect of the stipulation referred to, as between appellant and Coleman and persons, having notice thereof, was to assign to appellant the proceeds of the sale of said ten bales of cotton. The contention should, we think, he overruled.

“An agreement to pay a debt out of, a certain fund will not operate as an equitable assignment of the whole or any part of such fund, such an agreement being' a mere promise.” 4 Cyc. p. 47; 2 A. & E. Enc. Law, p. 1008.

As appellant did not own the proceeds of the sale, nor an interest in same, it follows that the further contention made in the motion, that appellee bank became liable as for a conversion of said proceeds when it permitted Coleman to apply same as stated in the opinion, should be overruled, notwithstanding it appeared that, at the time it permitted Coleman to so apply same, it knew that ten bales of the cotton were grown by Coleman on said premises, and further knew that the note sued upon was then unpaid in the hands of the Planters’ National Bank.

As appellant did not own the proceeds of the sale of the cotton, her right, if she had a right, to recover against appellee bank, as she sought to, must have been based on the fact that she had a lien on the cotton, and that said bank had, in legal contemplation, converted it. What the bank did, as shown by the testimony was to hold the warehouseman’s receipts for “safe-keeping” on Coleman’s account until he sold the cotton, and then, as directed by him, to deliver the receipts to Scott Bros., and collect from them, and credit his account with, the price they had agreed to pay Coleman for the cotton. In doing that, even if a lien existed on the cotton in appellant’s favor, the bank violated no legal duty it owed to appellant. It had no right to refuse to deliver to Scott Bros., when directed to do so by Coleman, the tickets it held for him merely for “safe-keeping,” and it had a lawful right when authorized by Coleman to do so to receive the purchase price of the cotton of Scott Bros, on his account. Had it after so receiving the money paid it into Coleman’s hands instead of placing it to his credit on its books, it would not, we think, thereby have incurred liability to appellant. Eor the proceeds of the sale of the cotton belonged to Coleman, and appellee bank was bound on his demand therefor to deliver same to him. Had he demanded the money and had appellee bank paid it into his hands, it would have done appellant no legal wrong had it afterwards accepted it of Coleman in payment of the debt he owed it. If this is true, then certainly the fact that it did not pay same into Coleman’s hands, but instead, in compliance with his direction, deposited it to the credit of his account and afterwards permitted him to apply it as stated in the opinion, did not render it liable to appellant as for a conversion.

We have examined the authorities noted in the motion, and do not understand any of them to be in conflict with the view we have taken of the case.

The motion is overruled.
      <S=5>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    MORRIS et al. v. BURROWS et al.
    (No. 1509.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1915.)
    1. Warehousemen <&wkey;25 — Delivery by Warehouseman.
    A warehouseman, issuing for cotton stored nonnegotiable receipts stating no time of delivery, is under obligation to redeliver the cotton on seasonable demand therefor.
    [Ed. Note. — Eor other cases, see Warehouse-men, Cent. Dig. §§ 38-47; Dec. Dig. <&wkey;25J
    2. Warehousemen &wkey;?15 — Nonnegotiable Receipts — 1Transfer.
    Where goods are placed in a warehouse and nonnegotiable receipts are issued therefor, the bailor may make a valid transfer of the receipts. (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5S3.)
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 31-34, 37; Dec. Dig. <§^15.]
    3. Warehousemen &wkey;>16 — Receipts—Transfer-Symbolic Delivery oe Goods.
    The transfer of nonnegotiable warehouse receipts by the bailor operates as between the parties as a symbolic delivery of the goods, and carries the title and constructive possession to the transferee.
    [Ed. Note — Eor other eases, see Warehouse-men, Cent. Dig. § 35; Dec. Dig. <@=?16.]
    4. Warehousemen <&wkey;25 — Conversion oe Goods.
    A warehouseman notified through its manager of the transfer of nonnegotiable warehouse receipts converts the goods where the manager thereafter delivers the goods on the mere order ■of the bailor to one not a holder of the receipts.
    [Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. §§ 38-47; Dee. Dig. <S&wkey;25.)
    ■5. Warehousemen <&wkey;25 — Conversion — Transfer oe Business.
    A warehouseman holding cotton as bailee without definite time for delivery, breaches its obligation to redeliver by turning over its business to a .successor without the consent of the bailor, and hence is liable for a conversion by the successor.
    [Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. §§ 38-47; Dec. Dig. &wkey;>25.]
    ■6. Warehousemen <&wkey;25 — Transfer oe Business-Liability oe Successor' for Conversion — Public Warehouseman.
    Where the manager of a private warehouseman has knowledge that nonnegotiable receipts for cotton have been transferred, and thereafter the manager, as successor to the warehouseman, ■becomes a public warehouseman under bond, and voluntarily assumes custody of the cotton, with■out the knowledge of the holder of the receipts, the manager holds the cotton subject to the ■original bailment contract, and not as a public warehouseman, and for -his act in delivering ■the cotton to one not producing the receipts, though on order of the bailor, the manager is jointly liable with the private warehouseman.
    [Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. §§ 38-47; Dec. Dig. <&wkey;25J
    -7. Warehousemen <&wkey;15 — Receipts—“Negotiable Receipt.”
    Under Acts 33d Leg. 2d Called Sess., e. 5. § 42, providing that the landlord’s lien shall continue so long as the cotton is stored in a warehouse, provided a negotiable receipt has not issued therefor, a simple receipt in form stating no time of delivery of cotton stored, but merely the date of storage, number of the receipt, weight, class, and number of bales, is not a “negotiable receipt.”
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 31-34, 37; Dec. Dig. <&wkey;>
    •8. Constitutional Law <&wkey;161 — Landlord and Tenant &wkey;>25iL-LANDLOED’s Lien on Cotton — Statutes — Obligation of Contract.
    Acts 33d Leg., 2d Called Sess., c. 5, §. 42, providing that the landlord’s lien on cotton shall ■continue so long as the cotton is in storage in any warehouse, provided a negotiable warehouse receipt has not issued therefor, is applicable to cotton stored before the act took effect, but at a time when the landlord’s lien had not expired under Vernon’s Sayles’ Civ. St. ' 1914, art. 5477, terminating the lien when the cotton is off the rented premises more than a month, and such retroactive construction of the statute is not a violation of the obligation of contracts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 494, 495; Dec. Dig. <S=» 161; Landlord and Tenant, Cent. Dig. §§ 986, 1034^-1044; Dec. Dig. &wkey;254.]
    9. Landlord and Tenant <&wkey;254 — Landlord’s Lien — Termination.
    Where a subtenant ginned cotton on which there was a landlord’s lien and hauled it to his own home, which was not the rented premises, and there kept it for two months, the lien was lost under Vernon’s Sayles’ Ann.' Civ. St. 1914, art. 5477, terminating a landlord’s lien when the cotton is off the rented premises more than a month, and that the tenant turned over his lien on the cotton to his landlord would not affect the termination.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034-1044; Dec. Dig. &wkey;>254.]
    10. Landlord and Tenant <&wkey;254r — Landlord’ s Lien — Termination—‘ ‘Preparation for Market.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5478a, providing that a landlord’s lien shall not be lost by removal of agricultural products for the purpose of being prepared for market, storing cotton when ginned and baled for future sale is not a removal for the purpose of “preparation for market.”
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034-1044; Dec. Dig. <&wkey;>254.]
    11. Warehousemen <&wkey;18 — Public Ware-housemen — Bonds—Right of Individual.
    There can be no recovery on a statutory bond of a public warehouseman at the suit of a private individual.
    [Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. § 18; Dec. Dig. <&wkey;>18.]
    12. Appeal and Error <&wkey;846 — Record — Special Findings.
    In the absence of findings of fact by the trial court, the special findings cannot be reviewed.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3347-3362, 3366; Dec. Dig. &wkey;>846.]
    Appeal from Bowie County Court; P. A. Turner, Special Judge.
    Action by G. W. Burrows and others against G. W. Morris and others. From judgment for plaintiffs, defendants appeal.
    Modified.
    Johnson & Boswell, of New Boston, and C. A. Wheeler, of Texarkana, for appellants. O. B. Plrkéy, of New Boston, and Mahaf-fey & Keenéy, of Texarkana, for appellees.
   LEVY, J.

This is an action for debt by the appellees, as landlords, against G. W. Morris, their tenant, for rents and advances for the year 1914 in the sum of $5S4.40, and for foreclosure of the landlord’s lien, and against appellants for the value'of lO^ bales of cotton, $420.00, alleged to have been converted by them at a time when the plaintiff had a subsisting and unsatisfied lien on the same. The defendants denied the existence of a landlord’s lien at the time of the alleged conversion, averring that the lien had expired by reason of the fact that the cotton had been off the rented premises for more than thirty days prior to the alleged conversion. The defendant Fuller Mercantile Company further pled the execution by G. W. Morris of a chattel mortgage to them on the cotton, and that the cotton had been sold and delivered to them in part payment of the debt secured by the chattel mortgage. The case was tried before the court without a jury, and resulted in a judgment in favor of appellees against the tenant G. W. Morris for the debt sued for and foreclosure of the landlord’s -lien, but against appellants for the value of the 10% bales of cotton.

The facts establish that plaintiffs were the landlords of G. W. Morris, and had a landlord’s lien for their debt, which was for rents and advances to make the crop. The 10% bales of cotton in controversy were raised on the rented premises in the year 1914. Nine bales of the cotton were gathered and ginned during the months of September and October, and immediately after being ginned and wrapped were removed from the gin to and stored in the warehouse of the Morris-Campbell Warehouse Company; the dates on which the various bales were placed in the warehouse being as follows: September 17, 19, 27, and 29, and October 6, 8, 14, 17, and 26, 1914. The gin was located in New Boston, and the warehouse was located in the same- town. The Morris-Campbell Warehouse Company, a partnership, are private warehousemen, and their agent and manager, James Chance, issued and on November 2, 1914, delivered to G. W. Morris a receipt for each of the nine bales of cotton stored by him in the warehouse, giving date the cotton was stored, number of receipt, weight, class, and number of the bale. It appears that G. W. Morris did not have an express agreement with the landlords that he was to place the cotton in storage, but it appears that the landlords knew that it was being put in storage for marketing when the price was suitable, and did not object, but acquiesced in its being stored for the purpose stated. James Chance on November 5, 1914, qualified as a public warehouseman under article 7820, Vernon’s Sayles’ Annotated Stat. of 1914, and with the consent and by some arrangement of the warehouse company continued as the custodian and had in his possession the nine bales of cotton. On December 26, 1914, James Chance on a simple order from G. W. Morris delivered the nine bales of cotton stored in the warehouse to the Fuller Mercantile Company, without the knowledge or consent of G. W. Burrows, and without demanding or making inquiry about the receipts theretofore issued and delivered. The mercantile company sold the cotton. G. W. Morris, it appears, on December 26, or December 24, 1914, sold the cotton to the mercantile company as a payment on the indebtedness due by him to them, which indebtedness was secured by chattel mortgage upon the cotton. It appears, though, as a fact that must be here adopted, as comprehended in the trial court’s judgment on conflicting evidence, that on'November 2, 1914, G. W. Morris “turned over this cotton” and transferred and delivered the warehouse receipts to appellee Burrows, with the intent and for the purpose of his holding possession of them until the rent debt was paid; and that appellee Burrows two days thereafter gave personal notice thereof to James Chance, agent and manager of the warehouse, and that James Chance consented to hold the cotton in replying, “Then I will look to you for the storage.” On January 1, 1914, appellees, having the receipts, made demand of James Chance for delivery of the cotton stored, but were notified by James Chance that he had previously delivered it to the Fuller Mercantile Company on order of G. W. Morris. There is evidence to sustain the findings of the trial court as to the weights and value of the cotton, and the findings are here adopted.

It appears that G. W. Morris sublet some acres of the farm to J. A. Dodd for one and a half bales of cotton rent. J. A. Dodd gathered the bale and a half and had it ginned about October 5, or October 20, 1914, and on the same day hauled it to his own premises, which were not the rented premises, and there stored and held it. The half bale of cotton was packed and wrapped with a half bale individually and separately owned by J. A. Dodd, thus making a single full bale of cotton. At the request of G. W. Morris the bale and a half of cotton were hauled on December 23, 1914, by J. A. Dodd to New Boston, and sold by G. W. Morris to the Fuller Mercantile Company. Appellee Burrows testified:

“I learned one and a half bales of cotton were stored at Dodd’s; and it was all right with me; but I never had any conversation with Mr. Morris about this at any time, either before or after it was left there, until Friday before November 2d. Mr. Morris told me then he would turn that cotton over to me, and he did turn it over to me then, and I told Mr. Dodd to bring it into town. Mr. Dodd never brought it to me, and I never tried to move it from the premises.”

J. A. Dodd testified:

“This cotton was stored by me from the time it was ginned until it was sold, at my house on my farm, and not on the rented premises. I did not ask either Mr. Morris or Mr. Burrows anything about storing this cotton at my house. Some time in the latter part of November Mr. Burrows wanted me to haul this cotton to town, and I spoke to Mr. Morris about it, and Mr. Morris said that he would send his wagon over and carry it to town himself.”

Thus it is concluded as a fact that J. A. Dodd had not delivered the cotton to G. W. Morris or appellee Burrows in payment of security for rent, at the time it was on Dodd’s farm, but held the same in his own right and subject to the lien for rent, and that G. W. Morris and appellees each held landlord’s liens, but were not actual owners. of the cotton while it was stored at J. A. Dodd’s home, from October 5 to November 4, or from October 20 to November 19, 1914; that the cotton was delivered by J. A. Dodd to 6. W. Morris on December 24, 1914, in payment of rent, and that the cotton at the time it was sold to the Fuller Mercantile Company on December 24, 1914, bad been removed from and bad remained off the rented premises for more than one month.

After Stating the Case.

Appellants, by proper assignments of error, challenge the judgment against them as erroneous upon the ground that the undisputed evidence shows that the 10% bales of cotton had been removed from the rented premises and from the landlord’s premises for more than one month after it had been ginned for market, and that the appellees had no landlord’s lien before the date of the alleged conversion.

It is believed that the proper legal effect attaching to the facts entitles the appellees to a judgment in their favor against appellants in conversion of the nine bales of cotton in controversy, but not so as to the bale and a half of cotton raised by J. A. Dodd. It was proven as a fact that the Morris-Oampbell Warehouse Company, a partnership, through its manager James Chance, received from G. W. Morris in September and October the nine bales of cotton, with the object of storing it for hire. At the time of storing the cotton the appellees had a landlord’s lien on it, and the lien had not at the time expired by operation of law. The warehouse company, acting through its manager, issued to G. W. Morris warehouse receipts for the nine bales of cotton stored, acknowledging that the warehouse company held the cotton in store for the person to whom the receipts were delivered. And it further appears as a fact, as comprehended in the trial court’s judgment, that on November 2, 1914, G. W. Morris transferred and delivered to appellee Burrows the warehouse receipts for the nine bales of cotton issued and delivered to him by the warehouse company, in recognition of the landlord’s lien and with the intention and purpose of appellee Burrows’ holding possession of them until the rent debt for the year 1914 due by him to appellees was paid. It appears as a fact that within two days after the transfer and delivery of the receipts to them by G. W. Morris the appellee Burrows gave notice to the warehouse company through its manager, and that the manager assented to it and to hold appellees for the storage charges of the cotton. The cotton was not stored for a definite time, and the receipts, which were simple receipts, did not state any time for redelivery of the cotton. The facts thus show the creation of a valid express contract of bailment for hire between G. W. Morris and the warehouse company. In virtue of their bailment contract, which is governed by the same rules as are other contracts, the warehouse company was, as respects G. W. Morris, bailor, under the obligation, besides using ordinary care to safely keep the cotton, to redeliver the cotton to him upon his seasonable demand therefor, the bailment being for no definite time. And issuing and delivering to G. W. Morris warehouse receipts, as the warehouse company did, for the cotton, the bailor, Morris, had the right to make and effect to Burrows a valid transfer and delivery of the same in furtherance of the security of his rental debt to appellees. Article 583, Vernon’s Stat.; 40 Cyc. p. 426; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W, 572; Bank v. Bank, 41 Tex. Civ. App. 535, 93 S. W. 209; Bank v. Shearer, 225 Pa. 470, 74 Atl. 351, 17 Ann. Cas. 664. The delivery of the receipts, as a means of obtaining the possession, was, as between such parties, a symbolic delivery of the cotton, and operated, in legal effect, to carry the title and constructive possession of the cotton to the holder of the receipts. Having the right to transfer the warehouse receipt to appellee Burrows, as G. W. Morris did on November 2, 1914, to hold until the rent due by him to appellees was paid, then appellees, as respects G. W. Morris, acquired the bailor Morris’ title and rights in the cotton covered by the warehouse receipts, so far as necessary to effect the object in contemplation of the parties. And giving notice to the warehouse company, as appellee did two days after the transfer, of their acquisition of the receipts from the bailor Morris, and the warehouse company assenting thereto, the relation between appellees and the warehouse company, with respect to the cotton, would be the same, and governed by the same rules of law, that obtains between the original parties to the bailment. This fact of notice to the warehouse company of the transfer of the receipts to appellees being established, the warehouse company then had no legal right to deal thereafter with G. W. Morris, independent of appellees’ consent or knowledge, respecting the cotton. Compress Co. v. Bank, 105 Tex. 44, 143 S. W. 1142, 144 S. W. 1130, Ann. Cas. 1914D, 1298.

And it is believed that in view of the facts the contract of bailment with the warehouse company was not terminated, so as to free the company of liability to appellees, on November 5th, when James Chance became custodian and continued possession of the cotton as warehouseman. It appears that on November 5, 1914, James Chance filed a bond with the county clerk of Bowie county, in accordance with art. 7820, Vernon’s Statutes, designating the Morris-Campbell warehouses as the places where he himself was to carry on and conduct the business of 'a public warehouseman. And it appearing, without any further statement or explanation, that from the time James Chance qualified as warehouseman he became custodian and continued in possession of the specific cotton in suit, and as such warehouseman knew the cotton was stored, and the owners of it. It does not appear by any evidence how or by what arrangement the warehouse company parted with the possession of the cotton to James Chance. The warehouse company offered no proof in that respect, nor proof of assent of appellees that possession or contract of bailment should be surrendered to Chance, nor do they claim by proof or pleading that the contract of bailment was terminated by them. It must therefore be implied from the circumstances in the record that James Chance on November 5, 1914, with the assent of the warehouse company, took over the possession of the cotton for the purpose of keeping it in store and in continuation on his part of the original contract of bailment. Measured by applicable principles of law the evidence fails, it is thought, to excuse or relieve the warehouse company from its contractual obligation to return to the pledgee the cotton placed in their possession for storing. If the contract of bailment was terminated at the will of the parties thereto, it was the duty of the warehouse company, before they would be relieved of their obligation, to make redelivery of the cotton, being held as specific property, in accordance with the terms of the bailment. They did not do so, and made no effort to do so. Every bailee is bound, in the use of the property, to keep within the terms of bailment. It is immaterial that the change is not injurious to the interests of the bailor; it is enough that it is not within the contract. And failing, as the warehouse company did, to refer the right to transfer and contract the dominion and possession of the cotton to James Chance to any term of the original contract of bailment, or to any agreement or consent of appellees so to do, the warehouse company would appear in no position to set up» as a defense against appellees that they have fulfilled the obligation of their contract of bailment by returning the cotton to their bailor or his pledgee. The facts operate as a misdelivery, in respect to appellees, on the part of the warehouse company, to Chance, in violation of the contract with appellees. A bailee, in respect to the bailor, has no more legal justification for contracting away the property bailed into possession and control of another without the consent of the bailor, than a tenant has to contract to deliver the rent cotton to a stranger without the landlord’s consent. Therefore, by thus parting with the possession and control of the cotton, the warehouse company, in respect to appellees, so far violated the contract of bailment as to put an end to the bailment and to legally constitute a conversion on their part of the bailed property.

The fact, though, that the warehouse company are liable to appellees does not, in the facts, relieve, it is thought, James Chance from his positive misfeasance contributing to accomplish the wrong in respect to appel-lees. It is implied from the circumstances that James Chance in commencing on November 5, 1914, to do business for himself as a warehouseman, took over and accepted possession of the specific cotton stored, with the assent and by some arrangement with the warehouse company. There is no pretense in the evidence that James Chance in any other way acquired possession and charge of the cotton. Chance was not required by law, without his assent, to take over the bailment contract of the warehouse company, nor was the cotton offered or tendered to him for storing, so far as appears, in his quasi public character so as to force him, by operation of law, to receive and store it. In such case, therefore, the taking over by James Chance was independently done, and not with the consent or acquiescence of appellees, and he had no distinct and separate contract of bailment with appellees. James Chance as warehouseman, it appears, made the misdelivery of the cotton to the appellant mercantile company. By undertaking to be custodian of the cotton under and in accordance with the original contract of bailment, with full knowledge thereof, James Chance, by his acts and intention, so far co-operated with the warehouse company in accomplishing misdelivery of the cotton as to become liable jointly with the warehouse company to respond in damages to appellees.

And in view of the legal effect attaching to the facts, it is believed that the appellees had a landlord’s lien on the cotton which was a superior lien to the chattel mortgage of the appellant Fuller Mercantile Company. The permanent warehouse law enacted by the special session of the Legislature of 1914 became a law on September 26, 1914. Acts Second Special Session, p. 15. This law extended the landlord’s lien to stored products. The provision in section 42 reads as follows:

“The landlord’s lien on cotton shall continue so long as the cotton is in storage in any warehouse, whether the same be a warehouse operated under this act, or a private warehouse, provided a negotiable receipt has not issued therefor.”

According to the undisputed evidence seven of the bales of cotton were stored immediately after being ginned, in the private warehouse of the Morris-Campbell Company, after the 26th day of September. Two of the bales were immediately stored after ginning on September 17th and 19th respectively. Thus the landlord’s lien, as to the two bales, was existing at the time the act of September 26th supplemented and continued the duration of the lien. And the receipt given by the warehouseman — in substance a simple receipt in form — was clearly, it is thought, under elementary principles, not a negotiable receipt. The effect of tlie section of the act in question is not, it is thought, to impair the obligation of contract in the manner argued by these appellants. There is not changed or impaired or made void any right or remedy as applied to junior mortgages. And Chance qualified as warehouseman after the law was in effect, and he can therefore predicate no claim as to its being retroactive as to him.

The facts as to the one and one-half bales of cotton show that J. A. Dodd, who raised the cotton, was a subtenant of G. W. Morris, and that after ginning the cotton he hauled it to his own home, which was not the rented premises, and stored it, and it remained there in Dodd’s possession from October until December 24, 1914, when Dodd delivered it to G. W. Morris, who sold it. The evidence, it is concluded, shows that J. A. Dodd did not turn the possession of the cotton over to either appellees or Morris, but kept the possession himself until December 24th. There appears evidence going to show that G. W. Morris turned over his interest in the cotton to appellee Burrows. J. A. Dodd being the owner of the cotton, subject to the landlord’s lien, it is concluded that his assent to a change of possession was necessary, and that the assent of Morris that Dodd turn it over to appellee Burrows would not sufficiently operate to make a transfer of the cotton to appellees. Until J. A. Dodd made a transfer of the cotton to appellees it remained under J. A. Dodd’s control and possession at his home. Therefore appellees are not in a position to claim that they were either lienholder in possession or pledgees of the cotton. And the cotton being off the rented premises for more than a month, the landlord’s lien expired by operation of the statute. Article 5477, Vernon’s Statutes.

It is thought the cases cited are quite dissimilar in facts to the Dodd cotton of the instant ease. The case of Gaw v. Bingham, 107 S. W. 931, was a suit by the tenant against the landlord for conversion. There the hay was “in appellee’s barn” and held by him as landlord to secure payment for supplies and advances to the tenant. The effect of the facts was to defeat a suit for conversion of the hay, as against the tenant, because the landlord stood towards the hay in the relation of mortgagee or pledgee in possession of the same. And the same principle of law governed the facts in McMullen v. Green, 149 S. W. 762. In that case Green, the tenant, delivered to the landlord the tickets or receipts for the cotton placed in the cotton yard at Snyder as security for rents, advances and supplies, and the landlord was by reason thereof in possession as mortgagee or pledgee of the cotton at the time of the levy of the attachment. And in Childress v. Harmon, 176 S. W. 154, it is thought the rehearing opinion gave the proper legal effect to the facts of the case.

The appellees, though, insist that they had a lien on the Dodd cotton in virtue of article 5478a, Vernon’s Say les’ Statutes. As ordinarily understood, cotton is, “for the purpose of being prepared for market,” ginned and baled. Storing cotton, when ginned and baled, for purpose of future sale, adds nothing to its preparation for market. It is therefore believed that the quoted words, used in the article of the statutes, were not intended to mean and include the subsequent' storing of cotton after it was ginned, as in these facts.

The objection to the maintenance of suit against the sureties of James Chance must, it is concluded, be sustained. There is no statutory provision authorizing a suit on the bond that James Chance made at the hands of an individual. And it is believed that the pleading declares strictly on the bond as a statutory bond, and’ fails in legal sufficiency as an action on the bond as a common law, if so, undertaking. This ruling disposes of the first, second, third, seventh, tenth, eleventh, and twelfth assignments of error.

It is concluded that the evidence is not that definite and clear as to warrant this court in disturbing the value and weights of the cotton found by the court, and the thirteenth assignment is overruled.

In the absence, as here, of findings of fact by the trial court, this court cannot review the special findings, and, therefore, the remaining assignments cannot be determined.

The judgment of the trial court is modified so as to provide that appellees recover nothing of the Fuller Mercantile Company for the value of the one and one-half bales of cotton, and nothing at all against the sureties on Chance’s bond, and as so modified the judgment of the trial court will be affirmed. The Fuller Mercantile Company will recover of appellees one-half of the costs of appeal, and the appellees will recover of the appellants, including the mercantile company, but not the sureties on Chance’s bond, the remaining one-half of the costs of appeal. The sureties on James Chance’s bond will recover of ap-pellees all costs incurred by them in the court below and in appeal.
      <&wkey;For other cases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@^>For other cases see same topic and KEY-NUMBER in ail Kev-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    KNOTT v. THOMAS et al.
    (No. 7407.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 6, 1915.
    Rehearing Denied Dec. 11, 1915.)
    Specific Performance &wkey;>57 — Sale of Land —Option Contract.
    Where defendant contracted to sell land to plaintiff, the contract providing that, if plaintiff failed to pay the consideration money in the manner stipulated, the contract should be void as to him at his option, plaintiff could not have specific performance, for option contracts are an exception to the rule that the absence of mutuality in a contract renders it void, and the vendee may have specific performance only after exercise of his option, in which case the contract is no longer an option contract, but has ripened into a mutually enforceable agreement.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 178; Dec. Dig. <g=^57.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by W. H. Knott against Gus Thomas and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Marcus M. Parks and J. C. Patton, both of Dallas, for appellant. Leake & Henry, of Dallas, for appellees.
   RAINEY, C. J.

The appellee, Gus Thomas, and the appellant, W. H. Knott, on the 16th day of March, 1909, entered into the following contract, to wit:

“Contract for the Sale of Real Estate.
“This agreement, made and entered into at Dallas, Texas, the 16th day of March, A. D. 1909, by and between Gus Thomas, Zion City, Illinois, of - county, Texas, and W. H. Knott of Dallas county, Texas, witnesseth: That said Gus Thomas hath sold and doth agree to convey in fee simple unto the said W. H. Knott his heirs and assigns forever, by a good and sufficient deed of general warranty, on or before the 16th day of April, A. D. 1909 (upon the punctual payment by said W. I-I. Knott of the consideration money hereinafter mentioned), the following described real estate situate in the county of Dallas, Texas, to wit: All of lots 31 and 32 Blk. 8 Winchester Place addition to city of Dallas.
“The said W. H. Knott agrees to improve said lot as soon as Gus Thomas delivers to him a good and sufficient title, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Gus Thomas heirs and assigns forever. And the said W. H. Knott for - and for his heirs, execu-
tors, administrators and assigns, do covenant and agree to and with- heirs and assigns, that I will pay to the said Gus Thomas heirs and assigns, the sum of one thousand dollars the consideration money for said premises, in the following manner: $500.00 cash, balance $500.-00 monthly payments of $25.00 per month, same being a second lien on above-described property. The sum of $50.00 has been paid to R. E. Gwin & Co. as a forfeit to apply as part of purchase price.
“It is understood and agreed, by and between the parties to this agreement, that if the said W. H. Knott fails to pay said consideration money in the manner and according to the ten- or above stipulated, or fails to faithfully and promptly carry out any of the covenants herein contained, then this agreement is to be void as it regards the said W. H. Knott at-option.
“In testimony whereof the parties herein have hereunto set their hands the day and year above written.
“[Signed] Gus Thomas,
“Per R. E. Gwin & Co.
“R. E. Gwin, Mgr.
“W. I-I. Knott.”

Said contract was duly acknowledged by W. H. Knott on the 29th day of April, 1909, and filed for record in Dallas county on April 30, 1909. On January 8, 1912, appellant, Knott, filed this suit against Gus Thomas and the Metropolitan Investment Company, a private corporation,' to enforce specific performance of said contract, setting same out in his petition and making the necessary averments, to recover therein, if said contract was binding on Knott. It was also averred that Thomas has sold said land to the Metropolitan Investment Company, which was claiming said land; that said claim was a cloud' upon the title, and relief was sought against said claim. The appellees answered by general and special exceptions, by general denial, and specially that the special answers will not be noted, as a general demurrer to the petition was sustained, and, the plaintiff failing to amend, the case was dismissed, and judgment rendered in favor of appellees, from which judgment this appeal is prosecuted.

It seems the action of the trial court in sustaining the general demurrer was based on the proposition that the contract was void for the want of mutuality between the parties, in that it contained the following stipulation, which reads:

“It is understood and agreed, by and between the parties to this agreement, that if the said W. H. Knott fails to pay said consideration money in the manner and according to the tenor above stipulated, or fails to faithfully and promptly carry out any of the covenants herein contained, then this agreement is to be void as it regards the said W. H. Knott at - option.”

Appellant contends by his first and only proposition that:

“Gus Thomas having, by the contract set out in the plaintiff’s petition, agreed with W. H. Knott, appellant, to convey unto him, in fee simple, by a good and sufficient deed of general warranty, on or before the 16th day of April, A. D. 1909, the real estate described in said contract, in consideration of $1,000 paid and to be paid by appellant as follows: Five hundred dollars cash down,, balance of $500 in monthly payments of $25 per month, secured by a second lien upon the property, and that appellant would improve said lot as soon as appellee, Gus Thomas,, would deliver to him a good and sufficient title; and the said contract, on the face thereof, having recited, ‘The sum of $50.00 has been paid to R. E. Gwin & Go., as a forfeit to apply as part of the purchase price’ — the contract was an executed contract as between appellant and appellee, Thomas; and, appellant being ready, willing, able, and anxious to perform, and insisting upon appellee, Thomas, performing his said contract to convey the said land, and the said appellee having failed and refused to comply with the said contract, and the petition of appellant having set out said contract, alleging a breach thereof on the part of said Thomas, and alleging, in substance, that he, appellant, was ready, able, willing, and anxious to carry out said contract and that he had demanded of the said Thomas, before the bringing of this suit, a compliance with the contract, the petition of appellant stated a good and meritorious cause of action for a specific performance of said contract, and the trial court ■erred in sustaining the Metropolitan Investment Company’s general demurrer and in dismissing the case from the docket upon appellant’s refusal to amend his petition.”

Counter to appellant’s proposition, appellee submits that:

“As the contract of sale between the parties imposed no obligation upon the plaintiff, W. H. Knott, and did not bind him to purchase the .property even after he had exercised his option, the said contract was totally wanting in mutuality, could not have been specifically enforced .against him, and therefore was not subject to specific enforcement against Gus. D. Thomas or the purchaser from Thomas, the Metropolitan Investment Company.”

As a rule, the absence of mutuality in a •contract renders it void, but there are exceptions to this rule, one of which is known as option contracts. Appellant insists that the contract under consideration falls within the ■exception to the general rule, and therefore should be upheld, and cites Naylor v. Parker, 139 S. W. 93, in support of his contention. We think there is a material difference between the contract passed upon in the Naylor Case, supra, and the one here involved. In the Naylor Case the party was bound, if he elected to comply with his option to buy, while here the party can avoid the contract, even though he had elected to purchase, as he claims he had done. Had appellee at any time brought suit against appellant to enforce performance of the contract, all that would have been necessary for appellant to do would be to decline to comply with the terms of the contract, arid it would defeat appellee’s action because of the want of mutuality. De Cordova v. Smith, 9 Tex. 144, 58 Am. Dec. 136; Fowler v. Gray, 168 Ind. 1, 79 N. E. 897, 7 L. R. A. (N. S.) 726, 120 Am. St. Rep. 344; Rude v. Levy, 43 Colo. 482, 96 Pac. 560, 24 L. R. A. (N. S.) 91, 127 Am. St. Rep. 123; Cyc. vol. 36, p. 625. In Rude v. Levy, supra, it was said:

“Waiving the latter consideration, however, and assuming that the option was fair and reasonable as an option, it nevertheless remains true that courts of equity do not look with favor upon such arrangements. Since the vendor cannot enforce them against the vendee, equity is not swift to enforce them against the vendor. The right to invoke against the vendor the specific performance of options, especially where there is valuable consideration therefor, is indeed recognized. But since they lack the elements . of a binding contract, until performance or a sufficient tender of performance by the vendee, this kind of relief is not in order. It is only when the vendee has made his election and complied, or in good faith attempted to comply, with the terms of the option that it becomes a contract enforceable by him in equity. And it is, strictly speaking, inaccurate to speak of the specific performance of an option; for before the remedy can be invoked, it has ceased to be an option, and has ripened into a mutually binding and mutually enforceable contract.”

Being of the opinion that plaintiff has no cause of action, the trial court did not err in sustaining the general demurrer, and the judgment is affirmed.
      «SssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    PUCKETT & WEAR v. CITY OF FT. WORTH.
    (No. 8286.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 4, 1915.)
    1. Municipal Corporations <&wkey;1008 — Claims — Pbesentation.
    Where the special charter of a city declared that it should not be held liable for injury to persons or property unless the person claiming the same should within 30 days after the injury serve written notice upon the board of commissioners giving the time and place where the injury occurred and its nature, it is necessary, in order to charge the city with the negligence of the engineer in giving incorrect grades for the laying of cement walks which necessitated the relaying of the walks, to give notice to the board of commissioners; the fact that the city engineer knew of his own negligence not showing that the board of commissioners had knowledge thereof.
    [Ed. Note. — For other cases, see Municipal Corporations, Gent. Dig. § 2179; Dec. Dig. c&wkey;> 1008.] -
    2. Appeal and Error <&wkey;970 — Review—Discretion op Trial Judge.
    The discretion of the court on motion to reopen a cause after the court has announced it will direct a verdict will not be reviewed unless an abuse appears.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3849-3851; Dec. Dig. &wkey;> 970.]
    3. Trial <&wkey;68 — Reopening op Cause.
    In an action against a city, where the defense was that proper notice of claim had not been filed within time, it was an abuse of discretion after plaintiffs had closed, and it had announced that it would direct verdict for defendant, to refuse to permit the reopening of the cause to allow plaintiffs to give evidence showing proper presentation of their claim, where it did not appear that defendant’s witnesses who could contradict plaintiffs were absent, or that the trial would be delayed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 158-163; Dec. Dig. &wkey;s68.]
    Appeal from Tarrant County Court; Charles T, Prewitt, Judge.
    Action by Puckett & Wear against the City of Ft. Worth. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    Mercer & Wilehar, of Ft. Worth, for appellants. T. A. Altman and B. L. Agerton, both of Ft. Worth, for appellee.
   DUNKLIN, J.

Puckett & Wear constructed a sidewalk and curb adjacent to property owned by Bishop & Birchfield in the city of Ft. Worth under a contract with the owners to be paid for such work. They instituted this suit against the city for damages in the sum of $129.60 as the extra cost of tearing out and replacing the sidewalk and curbing, which, according to allegations in their petition, they originally completed in accordance with the negligent directions of the city engineer, who thereafter required them to remove it; and proof was introduced by plaintiffs sufficient to sustain those allegations. But, on account of plaintiffs’ failure to prove notice of the claim to the board of commissioners of the city prior to the institution of the, suit, in accordance, with the requirements of the city’s charter, the court instructed a verdict for the defendant. Plaintiffs have appealed.

The city was operating under a charter granted by a special act of the Legislature, one of the provisions of which reads:

“The city of Et. Worth shall not be held to liability for and on account of any damages or injury of any kind whatsoever to persons or property unless the person claiming the same, his agent or attorney, shall, within thirty days after such injury or damage has been sustained, serve notice in writing, upon the board of commissioners, giving the day and date, the time the place where such injury or damages occurred, and the nature and character of the injury.”

According to what is termed in the statement of facts “a rule book or ordinance,” which had been adopted by the city, all cement sidewalks were required to be constructed in accordance with certain specifications therein given, containing, among others, the following provision:

“All the work contemplated by these specifications shall be done to the satisfaction of the city engineer of the city of Ft. Worth, Texas, and shall continually, during construction, be subject to the inspection and approval, or rejection of said city engineer, or his authorized inspectors and assistants.
“If any person employed by the contractor on the work shall appear to be incompetent or disorderly, he shall be discharged immediately upon request of the city engineer and shall not again be employed on the work.
“Whenever any imperfect or unfaithful work is discovered by the city engineer or his assistant, it shall be corrected and repaired immediately upon the requirements of the city engineer, notwithstanding the fact that it may previously have been overlooked.”

By another provision it is made the duty of the city engineer to give such directions as may be necessary to properly do such work.

Appellants insist that, as it is thus shown that the city reserved the right to control even the details of the work done by them, the negligence of the city engineer in giving them incorrect lines and grades for the sidewalk in accordance with which the work was originally done was directly the negligence of the city itself, and therefore the charter requirement for notice of the injury prior to the institution of the suit is inapplicable.

In the case of City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693, our Supreme Court held that a charter requirement for a prior written notice of 10 days to the mayor or street commissioner of a defective condition of a street as a condition precedent to fixing liability of the city for an injury caused by such defect had no application because of the fact that such condition of the street was chargeable to the negligence of the very officers to whom the notice was required to be given.

In Shows v. City of Dallas, 172 S. W. 1137, plaintiff claimed damages to her property from the bursting of a sewer alleged to have' 'been negligently constructed by the city. The special charter of the city contained a section to the effect that the city would not be liable for damages of any kind unless the person injured should give the mayor or city secretary notice in writing of such injury within 30 days after the same has been sustained, and, further, that the city should not be liable, for damages to any person or property arising from any defect in any street or public work of the city unless such specific defect shall have been known to the mayor or city engineer, or their attention called thereto by notice in writing, at least 24 hours prior to the occurrence of such damages. The trial court sustained exceptions to the petition, presenting the contention of its insufficiency in failing to allege the notices required toy those provisions of the charter. On appeal it was held that, as plaintiff had alleged that the negligence upon which a recovery was predicated was that of the city itself, the exceptions Were improperly sustained,* basing that ruling upon the decision in Houston v. Isaacks, supra.

In Still v. City of Houston, 27 Tex. Civ. App. 447, 66 S. W. 76, and1 Houston v. Owen, 67 S. W. 788, the same provision of the city charter shown in Houston v. Isaacks was held inapplicable for the same reason; and a similar charter provision was given a like construction in City of Dallas v. McAllister, 39 S. W. 173. In Peacock v. Dallas, 89 Tex. 438, 35 S. W. 8, the notice required by the charter related to defects existing through “gross negligence” of the city, and our Supreme Court held it inapplicable in that case, since the suit was predicated upon negligence of the city, but not upon its “gross” negligence.

The underlying principle of all those decisions, except the one last mentioned, as we construe them, is that, if the officers to whom such notices are required to be given, are themselves the wrongdoers, then a compliance with the charter provision relative to notice is unnecessary, as in that contingency its only purpose has been accomplished already, although it would be difficult, on that principle, to explain the ruling in Shows v. Dallas that the charter requirement for notice of the injury sustained toy reason of the negligence upon which the suit was 'based, had no application. But we are of the opinion that that principle is not applicable in the present suit. It plainly appears both from the allegations in the petition, as well as from the evidence, that the negligence upon which plaintiffs’ suit is based was that of the city engineer, while the charter provision of the city requires the notice therein provided to be in writing and to be served upon tbe board of commissioners. Of course, if tbe city is liable, tbe liability rests upon tbe proposition that it is liable for tbe negligence of its city engineer, and in that sense tbe negligence of tbe engineer is tbe city’s negligence. But tbe same could be said of its liability for tbe negligence of any other representative or agent, and, if tbe charter provision is not applicable in a suit based upon tbe negligence of tbe engineer, it would follow logically that tbe same could be said of a liability for the negligence of any other agent or representative; thus entirely setting the charter provision at naught in any event. No court has tbe authority to set aside a plain provision of an act of tbe Legislature except on constitutional grounds.

Tbe special charter of tbe city of Ft. Worth containing tbe provision copied above was in force at tbe time plaintiffs undertook to do tbe paving in question, and they must be held necessarily to have proceeded with tbe work .with such provision in view. Tbe notice mentioned in tbe charter was required to be given to tbe city’s board of commissioners, and, as tbe city engineer was not a member of that board, notice to him was not such notice as required by the charter. Hence we are of tbe opinion that tbe charter provision was applicable to plaintiffs’ suit. Parsons v. City of Fort Worth, 26 Tex. Civ. App. 273, 63 S. W. 889; City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 41 S. W. 704; Luke v. City of El Paso, 60 S. W. 363; English v. City of Ft. Worth, 152 S. W. 179.

But we are of tbe opinion that tbe judgment of the trial court must be reversed because of tbe refusal of tbe trial judge to permit plaintiffs to make further proof of tbe notice given to tbe city. It appears that during tbe trial of tbe suit some proof was offered to show that such notice was given, but tbe same failed to fully comply with tbe charter provision. When tbe introduction of tbe evidence bad been closed, and before tbe argument bad begun, tbe court announced bis intention to give a peremptory instruction in favor of tbe defendant by reason of tbe failure of proof of such notice. Thereupon counsel for plaintiffs asked leave to supply such omission, and offered to do so by one of tbe plaintiffs, who, according to the bill of exception, would have testified fully upon that question, and would have supplied tbe deficiency of tbe proof already offered. It is a well-settled rule that it is within tbe discretion of tbe trial judge to allow additional proof under similar circumstances, and that bis action in permitting or refusing tbe same will not be disturbed in tbe absence of some showing of an abuse of such discretion. Pittsburg Plate & Glass Co. v. Roquemore, 88 S. W. 449 ; Meyers v. Maverick, 28 S. W. 716; Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Pontiac Buggy Co. v. Dupree, 23 Tex. Civ. App. 298, 56 S. W. 703; St. L. S. W. Ry. v. Johnson, 94 S. W. 162.

In Pontiac Buggy Co. v. Dupree, supra, tbe assignment complaining of the refusal of tbe court to allow additional testimony after announcement by tbe court that an instructed verdict for tbe defendant would be given was overruled, but it appears that in overruling the same tbe court did so by reason of tbe fact that in tbe bill of exception taken to tbe ruling there was a failure to show what testimony plaintiff desired to offer and would have offered, and hence it did not appear that the trial judge bad abused bis discretion. Likewise in Railway v. Johnson, supra, an assignment" to tbe action of tbe court in refusing to allow further testimony offered by tbe plaintiff after both parties bad closed the introduction of testimony was overruled, but in doing so tbe court expressly referred to a statement contained in tbe trial judge’s explanation of tbe bill of exception to tbe ruling, which clearly showed that tbe additional proof proposed was not available.

In tbe present case it does not appear that tbe defendant bad proof to offer in rebuttal of tbe additional evidence, and that tbe witness by whom it expected to make such proof bad been excused, and that it would be deprived of an opportunity to introduce such proof by reason of plaintiffs’ delay in introducing tbe proffered additional evidence. It further appears that tbe additional proof which plaintiffs sought to introduce was the testimony of one of tbe plaintiffs who was present, and we fail to see how tbe granting of such request could have resulted in any material delay of tbe trial.

For tbe reasons noted, tbe judgment is reversed, and tbe cause remanded.
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author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BROWN.
    (No. 7413.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 13, 1915.
    Rehearing Denied Dec. 24, 1915.)
    1. Masteb and Sebvant <&wkey;220 — Liability eor Injuries — Assumption op Risk.
    An employé, who without protest continues in the employer’s service after he has learned or by proper diligence should have known of a defect in a tool or implement furnished for his use, or who simply protests, and without any promise or anything said or done by the employer to induce him to remain in the service in the confidence that repairs will be made continues to use the defective article, assumes the risk incident thereto.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 625-637, 641, 64A-647; Dec. Dig. <&wkey;>220.]
    2. Master and Servant &wkey;?221 — Liability eob Injuries — Assumption oe Risk.
    When an employé complains to the employer of a defect in a tool or implement and receives a promise that it will be removed, there is no assumption of the risk by a mere continuance of the use of the defective appbance, at least until a reasonable time for the removal of the defect has elapsed, provided the continuance in the service is upon the faith of such promise and in the expectation that it will be fulfilled.
    [Ed. Note. — For other cases, see Master and Servant, Cent. 'Dig. §§ 638-640, 642-645; Dee. Dig. &wkey;s221.]
    3. Masteb and Servant <&wkey;221 — Liability fob Injuries — Assumption of Risk.
    Plaintiff, a section hand, injured by a defective lifting jack, never complained in person about the jack, and no promise was made to him individually .that a new one would be furnished, but it appeared that the section foreman recognized the defective condition of the jack and the danger incident to its use, that the section men, or some of them, in plaintiff’s presence and hearing, protested against its use and several of them started at times to quit, that the foreman promised to get and furnish them a new jack, that the foreman understood that the complaint was made by or in behalf of all of the men, that the promise was made not only to plaintiff’s colaborers, but to him as well or for his benefit, and that the foreman repeatedly stated that the jack would be received in a week or so. Held, that plaintiff had a right to rely on the promise, and did not as a matter of law assume the risk of injury by continuing work in reliance on such promise.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. &wkey;s221.]
    4. Master and Servant <&wkey;280 — Liability for Injuries — Assumption of Risk.
    In a section hand’s action for injury caused by a defective lifting jack, plaintiff testified and the jury found that he intended to continue in the employment, using the jack, if he had not been hurt. The jury further found, however, that the foreman promised to replace the defective jack with a new one for the purpose of inducing plaintiff and the other men engaged with him to continue in their work, and there was evidence that some of the men objected to using the jack, but that they thought the foreman was looking for a jack all the time and thought they could work on until the other jack came. Held, that it reasonably appeared that the promise was relied on by plaintiff and induced him to continue to use the defective jack, his testimony and the finding of the jury being open to the interpretation that his intention was to continue in the service until the new jack arrived, and not indefinitely, regardless-of the defective condition of the jack and the failure to provide a new one.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. <&wkey;> 280.]
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Action by Rufus Brown against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. 1-Iuff, of Dallas, and W. R. Abernathy and Wallace Hughston, both of McKinney, for appellant. E. W. Merritt, R. C. Merritt, and F. E. Wilcox, all of McKinney, for ap-pellee.
   TALBOT, J.

Appellee sued appellant to recover damages for personal injuries received by Mm while employed by appellant as a section hand. The petition alleges, in substance, that on the 21st day of January, 1914, the plaintiff was in the employ of the defendant on the McKinney section of its railroad track, using a lifting jack in repairing the same, under Kirby, the section foreman; said Kirby directing his work, with authority to employ and discharge the plaintiff, plaintiff being subject to said Kirby’s orders, direction, and commands in performing his said work. That plaintiff was hurt and injured by reason of the negligence of defendant, its agents, and employés in this: The said jack furnished plaintiff with which to work and with which to raise and lower said track was old, broken, worn, out of repair, and would not work properly, all of which was known to said defendant and to its vice principal, Kirby; that said Kirby knew of such defective condition of said jack a long time prior to the time plaintiff was injured or by the exercise of ordinary care could have known the same; that he had promised plaintiff and said hands that he would repair said jack, but failed to do so, and notwithstanding this he directed the plaintiff and the other hands working with him to use said jack and to use their, hand in tripping it and lowering the same; that in tripping said jack and without any fault or negligence on his part, but because of its defective condition, the jack fell and caught plaintiff’s finger and cut it off as aforesaid; that defendant did not use that degree of care and caution required by law to furnish plaintiff with a reasonably safe jack with which to work, and by reason thereof in using said jack the same caught plaintiff’s finger and he was injured as aforesaid.

In a trial amendment filed September 29, 1914, it was further alleged that defendant’s section foreman, Kirby, knew of the defective condition of the jack in question, and stated in the presence of plaintiff that he would get a new jack for himself and those working under him, and that he had ordered a new jack for their use, and plaintiff relied upon such promise; that it was .under these conditions that plaintiff? continued to work. The defendant pleaded a general denial, contributory negligence, and assumed risk. It was further pleaded and proved that defendant was engaged in interstate commerce, and that the railroad track upon which plaintiff was working was used by it at the time plaintiff was injured in both intrastate and interstate commerce, and hence plaintiff’s alleged cause of action was governed by what is known as the federal Employers’ Liability Act. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665). The case was tried before the court and a jury; the court giving a general charge, and in connection therewith submitting certain special issues. The record does not show that a general verdict was rendered, but that upon the jury’s findings upon the special issues submitted to them, judgment was rendered in favor of the plaintiff for the sum of $900. From this judgment the defendant appealed.

We deem it unnecessary to state and discuss seriatim the several assignments of error. The controlling question presented is whether or not the evidence conclusively showed that the plaintiff assumed the risks and responsibility for the injury that resulted to him from the use of the defective lifting jack. And a decision of this question turns upon the further question of whether or not the defendant’s foreman and vice-principal, Kirby, promised to replace the defective lifting jack with which plaintiff was directed to work in performing the duties required of him, with a new one, and that such promise was relied on by plaintiff and induced him to continue in defendant’s employment.

Plaintiff’s finger was injured substantially in the manner and to the extent alleged by him; the jack with which he was working when hurt was defective in that the clutch, or what is called a “dog” that holds the lifting lever or handle, which works in notches, when the same has been elevated to the desired height and by which the lever could be easily tripped and the railroad track upon which plaintiff was working lowered with safety, was broken off. The jury found that the defendant was guilty of negligence in furnishing the plaintiff a broken and defective lifting jack with which to perform the work required of him, and that plaintiff w/as guilty of contributory negligence in using the jack in the manner in which he did; that plaintiff sustained damages by reason of his injuries in the sum of $1,200, and that the proportion of negligence attributable to him was one-fourth. They found that plaintiff did not assume the risk of injury incident to the use of the jack, and, bearing upon this issue, made the following further findings: (1) That the defendant’s section foreman and vice principal, Kirby, under whom plaintiff was working, knew of the defective condition of the jack; (2) that he promised to replace the defective jack with a new one; (3) that this promise was made for the purpose of inducing the plaintiff and the other employés of defendant working under Kirby to continue in their work; (4) that the plaintiff did not make, in person, any objection to defendant’s foreman, Kirby, to further working or discharging his duties with the lifting jack; (5) that plaintiff intended to continue in the employment of the defendant using said lifting jack, if he had not got his finger hurt; and (6) that prior to his injury plaintiff knew that the lifting jack was defective, and that it was dangerous to, trip it in the manner in which he did.

The contention of the defendant, appellant here, is in substance, first, that the trial court erred in refusing to give its special charge directing the jury to return a verdict because the undisputed evidence in the case showed that at the time plaintiff was injured he knew the jack in question was defective and that it was dangerous to trip it in the manner in which he did, hence he assumed the risk incident to the use thereof; second, that the finding of the jury that the plaintiff did not assume the risk in attempting to trip the jack in the manner in which he did, is not supported by the evidence, and is contrary to the undisputed evidence in that it is shown that the plaintiff, at and prior to his injuries, knew that the jack was defective and dangerous to trip in the manner in which he did, and made no objection to continuing in the discharge of his duties with the defective jack, and there was no evidence in the case showing that the defendant made any promise to replace the jack for the purpose of inducing the plaintiff to continue in the discharge of his duties with the same, and there was no evidence that the plaintiff relied upon any promise made to him to replace said jack by the defendant.

The general rule is well established that “an employé, who without protest continues in the service of the master after he has learned, or by proper diligence should have known, of a defect in the tool or implement furnished for his use, or who simply protests and, without any promise or anything said or done by the master to induce him to remain in the service in the confidence that repairs will be made, continues to use the defective thing, assumes the risk incident thereto. But when the servant complains to the master of the defect and receives a promise that it will be removed, it is generally held that there is “no assumption by the servant of the risk by a mere continuance of the use of the defective appliance, at least until a reasonable time for the removal of such defect has elapsed after the promise.” Railway Co. v. Bingle, 91 Tex. 287, 42 S. W. 971; Id., 9 Tex. Civ. App. 322, 29 S. W. 674; Railway Co. v. Williams, 82 Tex. 343, 18 S. W. 700; Railway Co. v. Kern (Civ. App.) 100 S. W. 971. The effect of the decisions upon the subject is, that mere protest and promise will not suffice. To relieve himself of the assumption of the risk under the circumstances mentioned and impose it upon the master, the servant, who objects to the use of the defective implement and obtains the master’s promise to repair or replace the defective tool with one not defective, must have continued in the service upon the faith of such promise and expectation that it would be fulfilled. The plaintiff in the present case made no complaint personally to the defendant’s foreman, Kirby, of the defective condition of the lifting jack with which he was working at the time he was injured, and no promise was made to him individually that the lifting jack would be repaired or a new one furnished. Other employés of the defendant, however, at work with the plaintiff under its section foreman, Kirby, did, in the presence and hearing of the plaintiff, protest against the use oí the defective jack, and obtained from said foreman a promise that such jack would he replaced with a new one. The plaintiff was the only witness called to testify in relation to the defective condition of the lifting jack, the protest made against its use, and the promise of defendant’s foreman to replace the jack with a new one. Plaintiff, among other things, said:

“When I got hurt, I was working with a railroad jack on the track. * * * At the place where the cog come out, you had to stick your finger in it, to trip it and lower the jack down. Mr. Kirby, the foreman, furnished us the jack to work with, and we did not have any other jack there besides that one. Tes ; the foreman knew the jack was broken. I have heard him say several times that the jack was broken, and to be careful with it; he knew how we would throw it. All the boys that worked on the track would throw it just like I did, by putting their finger in the eye of the jack and tripping it. Mr. Kirby knew that that was the way we were tripping it. The section foreman, Kirby, employed and discharged the hands and directed them what to do down there. He employed the section hands and paid them and discharged them. I was paid by the section foreman, and was also hired by the section foreman, Kirby. Mr. Kirby says, ‘Boys, you will have to use this defective jack till we get a better jack,’ time after time, and whenever he would hire a new hand he would tell him about this jack being broke. Well I started to quit several times, because I didn’t want to use that jack that way, and several of the others started to quit; but we had the work, and didn’t have anything else to do, and it was winter time and we had to live. * * We hated to quit. We were taking chances on this jack being defective. Well, he never said anything about the other jack coming, but kept saying it would be here in a week or so. At that time we were raising the track to put ties under the track. Well, we had raised it, and I was tripping the jack, when I got my finger hurt. When I stuck my finger in there to trip it, it just dropped down with me, and caught my finger, and cut it off, part of it; cut off that finger nail joint; cut off some of the bone. It is a fact that I had been tripping the jack for quite a while with my finger, and never got it mashed off, and this time I put it in there and got it mashed off. I don’t know exactly how long I had worked with the jack, but I think throe weeks, and I had been working with the jack in that way during the three weeks, and I suppose it was just like it was when I got hurt. Yes; I had been told to be careful with it; that it was dangerous. No; I never saw any trip or dog on the jack, and I had been tripping it with my finger during the three weeks. I didn’t make any complaint about the jack myself, only they were saying it was broken; I did not personally. I went on and worked with the jack, and did not complain myself about it to the foreman. * * * .;n0; x personally did not say anything to him about the jack; he knew it was defective, and knew it was dangerous. Yes; I went on and worked without complaining, and intended to work on if I had not got my finger hurt. Before I put my finger in there I could look over and see all the time how to put my finger in there before I put it in there, but I didn’t do that; I just rammed my finger in there and let it come down. But if I had looked I could have seen very easily that I ought not to have put my finger in there so far.”

Thus it appears that the plaintiff did not in person complain of the defective jack, and that no promise was made to him individually that a new one would be furnished.' It is quite clear, however, from the undisputed testimony, that defendant’s foreman recognized the defective condition of the jack and the danger incident to its use; that the section men working under the said foreman as a body, or some one of them, in the presence and hearing of the plaintiff herein, protested against the use of the jack, and several of them started several times to quit, and that defendant’s foreman, Kirby, promised to get and furnish them a new jack with which to work. The evidence does not disclose which one of the section men made complaint of the jack, but that such a complaint was made, and that defendant’s foreman understood that it was made by or in behalf of all the men, including the plaintiff, and that the promise to secure and furnish a new jack free from defects was made not only to plaintiff’s colaborers, but to him as well, or for his benefit, are deductions which, from the evidence, cannot well be escaped. This promise, as before stated, was made in the presence and hearing of plaintiff, with the statement several times repeated, “Boys, you will have to use this defective jack till we can get a better jack.” As to when the section men might expect the arrival of the new jack the testimony discloses that it had been ordered, and that the foreman repeatedly stated that he would receive it “in a week or so.”

That the plaintiff had a right to rely on the promise made to furnish the new jack under the circumstances of this case is affirmed, we think, by the decision in the case of Railway Co. v. Sadler, 38 Kan. 128, 16 Pac. 46, 5 Am. St. Rep. 729. We copy from the syllabus of that ease the following, which fairly shows the ruling of the court:

“A section foreman told employes on his section that the railroad company had promised to send him new tools in place of those in use, known to be defective. This promise inured to the benefit of all employSs at work on the section in whose hearing and presence it was made; and if, after a reasonable time has elapsed, and the now tools are not furnished, an employé on the section is injured by the use of the defective tool, the company cannot defeat his recovery because the promise was not made to the injured employé individually.”

We concur in the views here expressed by the Supreme Court of Kansas, which are not at variance, so far as our knowledge extends, to any decision of our own courts, and so similar are the facts in the case now before this court to the facts in that case that we cite the latter as authority directly in point, sustaining the conclusion that plaintiff, Brown, by reason of the protest against the use of the lifting jack involved here, and the defendant’s promise or assurance that a new one would be furnished, could not be charged, as a matter of law, under the facts of this case, with having assumed the risk of injury from the use of said jack.

The fact that the jury found, upon testimony which seems to have warranted it, that the plaintiff intended to continue in the employment of the defendant, using the lifting jack, “if he hadn’t got his finger hurt,” does not, under all the facts and circumstances in evidence, require a holding that he did not rely upon the promise to furnish a new jack. The plaintiff had the right to wait a reasonable time for the fulfillment of the foreman’s promise to provide for him and his associates a new jack, and his statements upon which the jury’s finding here under consideration was based, and the finding itself, are subject to the interpretation that the plaintiff meant and the jury found that his intention was to continue in defendant’s service until the new jack arrived, and not indefinitely, regardless of the defective condition of the jack that hurt him and the failure of the foreman to provide the new one. At one place in his testimony he said:

‘Yes, I went on and worked without complaining, and intended to work on if I had not got my finger hurt.”

At another place he said:

“Some of the boys objected to using it [the jack] in any way, but we thought the section foreman was looking for a jack all the time, and I thought we could work on until the other jack came.”

The jury found that the defendant’s foreman promised to replace the defective jack with a new one for the purpose of inducing the plaintiff and the others engaged with him to continue in their work, and we think it reasonably appears that such promise was relied upon by the plaintiff and induced him to continue to use the defective jack until he was injured.

The views expressed render it unnecessary to consider the question as to whether or not the plaintiff should be held to have assumed the risk of injury but for the promise of the defendant to remove the danger, to which he was being exposed by replacing the defective jack with one not defective, or the proposition insisted upon by plaintiff’s counsel to the effect that the evidence did not raise the issue of assumed risk, but that the issue was one of contributory negligence. Will say, however, that the assumption of risk and contributory negligence are regarded and treated in this state as distinct defenses, and that we, without undertaking to decide the question, are inclined to the opinion that but for the promise on the part of the defendant to replace the defective jack involved in the present case with a new one, free from defects, the defense of assumed risk pleaded by defendant would, under the undisputed evidence, have to be sustained.

It is contended that the verdict is excessive. In this contention we do not concur. The evidence is sufficient to justify the jury’s finding as to the amount of the damages sustained by plaintiff, and there is nothing in the record to indicate that in arriving at the amount awarded they were actuated by any improper motive. The instructions given the jury by the court to guide them in determining the issues submitted were full and as fair to the defendant as it was entitled to, and since, after a careful consideration of all of the assignments and contentions of the defendant, we are of the opinion that no material error is pointed out, the judgment will be affirmed.

Affirmed.
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